CEDH · CASELAW;COMMUNICATEDCASES;ENG — 27 janvier 2014

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In his own name he previously ran a law firm in in Oslo, Norway, until his licence to practice was suspended as a result of the opening of bankruptcy proceedings against him personally. A.     The circumstances of the case 2.     The facts of the case, as submitted by the applicant, may be summarised as follows. 1.     Proceedings before the City Court 3.     On 10 March 2010 the Oslo City Court ( tingrett ) decided at the request of Økokrim (The National Authority for Investigation and Prosecution of Economic and Environmental Crime – hereinafter referred to as the prosecuting authority) to authorise that a search be carried out at the applicant’s law office. This decision was taken on the ground of the prosecuting authority’s decision of 9 March 2010 to issue charges (siktelse ) against the applicant for aiding and abetting fraud in connection with the conveyance of works of art, the application for a bank loan and forgery of documents. 4.     The applicant did not lodge an appeal against the City Court’s decision of 10 March 2010, which thus gained legal force. 5.     On 23 March 2010 the police carried out a search at the applicant’s law office and collected documents stored on different means of support (electronic and paper). The applicant was present during a part of the search. Material thought to be covered by the lawyer’s statutory duty of confidentiality and therefore exempt from seizure pursuant to Article   204   (1) of the Code of Criminal Procedure was sealed. On 3 May 2010, at the prosecuting authority’s office, the applicant went through the paper documents that had been collected during the search and sorted those parts which he considered to be covered by the lawyer’s duty of confidentiality. This material was sealed separately. 6.     On 5 January 2011 the prosecuting authority made a request to the City Court to examine and make available to the former the material that had been collected at the applicant’s office. 7.     By a letter of 16 February 2011 the applicant’s lawyer disputed the lawfulness of the “seizure” arguing that there was no reasonable ground for suspicion against him and requested that the City Court quash the measure and order that that material “seized” be returned to him. 8.     Following further exchanges between the prosecution and the defence, on 11 May 2011 the City Court pointed out that the procedure applicable to the seizure of material allegedly covered by the duty of confidentiality was set out in the Supreme Court’s judgment reported in Norsk Retstidende (“ Rt .”) 2011 p. 296. Accordingly, a decision under Article 204 of the Code of Criminal Procedure was to be prepared and it was deemed appropriate that this decision also clarify the City Court’s assessments regarding which parts of the material should be left with the prosecuting authority. This implied that the City Court would henceforth review the material collected in the search. Once the review had been completed, the City Court would summon the parties to a session at which it would explain the review and the parties would have a possibility to comment. This decision could be appealed against. Only after a legally enforceable decision had been taken, the material would be made available to the prosecuting authority. Since the handling of the case so far had taken considerable time, the City Court’s examination would be expedited. 9.     Accordingly, there was no ground on which the City Court could hold a court hearing devoted to discontinuation of the seizure and return of the material. 10.     After further exchanges between the parties, the City Court stated in a letter of 22 July 2011 that a decision on seizure had still not been taken in accordance with Article 205 in respect of the material collected by the police when carrying out the search at the applicant’s office premises. This was because there was, as a starting point, a presumption that documents and other material at the office premises of a private practicing advocate were covered by the duty of confidentiality. 11.     While the applicable procedure for such instances was not regulated by law, according to practice the relevant court would peruse the material and make an assessment of which parts of it could be handed over to the prosecuting authority and which parts could not be so transmitted by reason of the confidentiality rules. This was precisely what the City Court had done so far. 12.     In its letter, the City Court disagreed with the applicant’s view that before carrying out its perusal of the material it ought to consider anew whether there existed a reasonable ground for suspicion against him, failing which its examination of the material would be unlawful, and that in the absence of such ground it ought to return all the material to him with the seals intact. 13.     As regards the existence of a reasonable ground for suspicion at the time of the search, the City Court reiterated that it had found so to be the case in its decision of 10 March 2010 which had gained legal force. There was accordingly no basis for holding that the search had been unlawful. 14.     As to whether there was a reasonable ground for suspicion against the applicant at present, this was an issue which in the City Court’s view fell outside its remit. The existence of such a ground was in any event not a prerequisite for ordering seizure of the documents in question. In this connection, the City Court pointed out that according to legal doctrine and practice this was a precondition for ordering seizure under Chapter 16 of the Code of Criminal Procedure, but, unlike what applied to search, it was not a condition that there was a reasonable ground for suspicion against the owner of the relevant material. 15.     From the above, it followed that it was not for the City Court in the present set of proceedings to take a stance on whether there was a reasonable ground for suspicion either when the search had been carried out or at present. The degree of suspicion was nonetheless not without importance, notably in respect of the exception under Article 204   (2), first sentence. 16.     As regards the condition for seizure that the item must be presumed to have an evidentiary value, cf. Article 203, the assessment was to be made by the prosecuting authority before deciding on seizure under Article 205. Thus the court was to refrain from considering the issue of relevance when perusing the material. It was the prosecuting authority which, under the system of the Code of Criminal Procedure, had primary competence to take a decision on seizure and to at first hand go through the material with a view to considering its importance as evidence. This was subject to the exception that where the City Court found that the material was in principle covered by the duty of confidentiality according to Article 204   (2), first sentence, it ought to take a stance on its relevance before authorising the material to be handed over to the prosecution. 17.     Accordingly, the sorting of documents that the court was currently about to complete had consisted of going through each document solely with a view to clarifying whether it was excluded by the confidentiality rule in Article 205   (3), except for documents in respect of which Article 204   (2), first sentence, applied and which the court considered might be presumed significant as evidence. 18.     According to the City Court, the next step in the procedure would be for the prosecuting authority, when going through the material handed over to them, to consider whether the conditions for seizure under Article   205 had been met, including whether at the time of the taking of this decision there existed a reasonable ground for suspicion that a criminal offence had taken place and whether the document could be assumed to be of significance as evidence in this connection, cf. Article   203. Such a decision could be challenged before the courts, in accordance with Article   208. 19.     If during the investigation the prosecuting authority found that there was no longer any reasonable ground for suspicion against the applicant, they had a duty to consider whether to drop the charges against him. 2.     Appeals 20.     On 22 August 2011 the applicant appealed against the City Court’s decision of 22 July 2011 not to examine the merits of his request to quash the seizure and to return the seized material. 21.     On 9 November 2011 the Borgarting High Court, after examining the applicant’s appeal on the merits, dismissed the appeal. The High Court held inter alia as follows. 22.     The relevant procedure for the seizure of material allegedly subject to a duty of confidentiality had been thoroughly examined by the Supreme Court in paragraphs 38 to 44 of its decision of 3 March 2011(reported in Rt .   2011 p. 296) and had been relied upon by the City Court. From the Supreme Court’s decision it transpired that the competent court, after having perused the documents, was to return to the prosecuting authority those documents that were not subject to a duty of confidentiality for an assessment and decision by the latter in accordance with Article 205   (1). It followed from the system of the Code, that it was the prosecuting authority who was vested with the primary competence to take decisions regarding seizure and who in the first place went through the material with a view to assessing its importance as evidence pursuant to Article   203. 23.     The Supreme Court had established that the person concerned by the seizure did not have a possibility to have the issue of seizure reviewed under Article 208 at this stage of the procedure. The relevant court’s review of the confidentiality matter was in reality part of an on-going search. It was only after this introductory sorting that the “real search” could commence. It was against this background that the prosecuting authority could take a decision on seizure, a decision which could then form the subject of review by the City Court under Article   208. 24.     From the above it followed, in the High Court’s view, that the applicant did not at the present stage of the procedure have a right to have reviewed the question whether to maintain the seizure in force under Article   208. The High Court could not see that it could lead to a different result that he disputed the existence of a reasonable ground for suspicion in his case. The Supreme Court’s decision contained no statements suggesting that the procedure should be different in such cases. Whilst the existence of such a ground had been undisputed in Rt . 2011 p. 296, the Supreme Court’s analysis of the scheme under the Code of Criminal Procedure was valid also for cases where it was disputed. Nor coul d the High Court find that there were other grounds, even if regard was had to Articles 6, 8, 10 and 13 of the Convention, suggesting that the accused had a wider right to judicial review in cases where he or she disputed the ground for suspicion. 25.     The Code contained several provisions conferring on the accused a right to judicial review in respect of enforcement measures taken in the form of search and seizure. A decision regarding search was to be taken by a court pursuant to Articles   197, cf. 192, and presupposed the existence of a reasonable ground for suspicion. If the decision were in the affirmative it could be appealed against. A decision by a court that documents be handed over to the prosecution authorities after its perusal of the documents pursuant to Article   204 could also be appealed against. A decision by the prosecution on seizure pursuant to Article   205 could be challenged before the courts, in accordance with Article   208, and a judicial decision on the latter could be further appealed to the appellate courts. 26.     The High Court considered that the applicant could not derive from the Convention any right to judicial review of the lawfulness of search and seizure going beyond what followed from the rules of the Code of Criminal Procedure. In his case the prosecuting authority had authorised the search and had ordered the handing over of documents, amongst others by virtue of the City Court’s decision of 10 March 2010. The latter decision had been taken on ground of reasonable suspicion against the applicant in regard to the offences of which he was charged, namely fraud and forgery. The applicant had not lodged within the prescribed time-limit an appeal against the City Court’s decision and the search was accordingly carried out. 27.     From the reasoning above, it followed that also the applicant’s alternative submission that he ought to have a right to judicial review of whether there was a legal basis for an on-going search could not succeed. 28.     Also, it was clear that the accused did not on a general basis have a right to judicial review of the justifications for the charges brought against him, whether there was a reasonable ground for suspicion, regardless of the use of any enforcement measures. The existence of such could be examined again but then in connection with for instance future investigative measures where it was a prerequisite. The Convention provisions relied on could not lead to any different result. 29.     In the High Court’s view, against this background, the City Court procedure suffered from no defects. Its decision of 22 July 2011 had been based on a correct approach to the handling of the seizure carried out at the applicant’s office premises. 30.     On 20 December 2011 the Appeals Leave Committee of the Supreme Court, whose jurisdiction was limited to reviewing the High Court’s procedure and interpretation of the law, rejected the applicant’s appeal in both respects. B.     Relevant domestic law 31.     Chapter 15 of the 1981 Code of Criminal Procedure ( straffeprosessloven ) included the following provisions which were of relevance to the present case: Article 192 “If any person is suspected on reasonable ground of an act punishable pursuant to statute by imprisonment, a search may be made of his residence, premises or storage place in order to undertake an arrest or to look for evidence or objects that may be seized or on which a charge [ heftelse ] may be created. A search may be made on any other persons’ premises when there is reasonable ground for suspecting such an act, and 1) the act has been committed or the suspect arrested there, 2) the suspect has been there under pursuit when caught in the act or on finding fresh clues, or 3) there are otherwise special grounds to assume that the suspect can be arrested, or that there may be found there evidence or objects that may be seized or on which a charge may be created.” Article 195 “If any person is suspected on reasonable ground of an act punishable pursuant to statute by imprisonment, he may be subjected to a personal search if there are grounds to assume that it may lead to the discovery of evidence or of objects that may be seized or on which a charge may be created. A personal search may be made of persons other than the suspect when the suspicion relates to an act punishable pursuant to statute by imprisonment for a term exceeding six months, and special circumstances warrant the making of such a search.” Article 197 “Without the written consent of the person concerned, a search pursuant to Articles 192, 194 and 195 may only be made pursuant to a court decision. If delay entails any risk, the decision may be made by the prosecuting authority. In the event of a search of editorial offices or the like, the decision shall be made by the public prosecutor, and only if it is probable that the investigation will be substantially impaired by waiting for a court decision. Any decision pursuant to the first or second paragraph shall as far as possible be in writing and specify the nature of the case, the purpose of the search, and what it shall include. An oral decision shall be noted down in writing as soon as possible.” 32.     Chapter 16 (“Seizure and surrender order”) contained the following relevant provisions: Article 203 § 1 “Objects that are deemed to be significant as evidence may be seized until a legally enforceable judgment is passed. The same applies to objects that are deemed to be liable to confiscation or to a claim for surrender by an aggrieved person.” Article 204 “Documents or any other items whose contents a witness may refuse to testify about pursuant to Articles 117 to 121 and 124 to 125, and which are in the possession either of a person who can refuse to testify or of a person who has a legal interest in keeping them secret, cannot be seized. In so far as a duty to testify may be imposed in certain cases pursuant to the said provisions, a corresponding power to order seizure shall apply. The prohibition in the first paragraph does not apply to documents or any other items that contain confidences between persons who are suspected of being accomplices to the criminal act. Nor does it prevent documents or any other items being removed from an unlawful possessor to enable them to be delivered to the person entitled thereto.” Article 205 “A decision relating to the seizure of an object that the possessor will not surrender voluntarily may be taken by the prosecuting authority. The decision shall as far as possible be in writing and specify the nature of the case, the purpose of the seizure, and what it shall include. An oral decision shall as soon as possible be reduced to writing. The provisions of Article 200, first paragraph, shall apply correspondingly. When the prosecuting authority finds that there are special grounds for doing so, it may bring the question of seizure before a court. The provisions of the second to the fourth sentences of the first paragraph of this Article and of Article 209 shall apply correspondingly to the court’s decision relating to seizure. The provisions of the first and third paragraphs of Article 208 shall also apply when seizure has been decided on by the court pursuant to this paragraph. Documents or any other item in respect of which the possessor is not obliged to testify except by special court order may not be seized without a court order unless such a special order has already been made. If the police wish to submit documents to the court for a decision as to whether they may be seized, the said documents shall be sealed in a closed envelope in the presence of a representative of the possessor.” Article 206 “Without a decision of the prosecuting authority a police officer may effect a seizure when he carries out a decision for search or arrest, and otherwise when delay entails a risk. Seizure may be effected by any person when the suspect is caught in the act or pursued when so caught or on finding fresh clues. The seizure shall immediately be reported to the prosecuting authority. If the latter finds that the seizure should be maintained, it shall issue a written decision containing such information as is specified in the second sentence of the first paragraph of Article 205.” Article 207 “All objects seized shall be accurately recorded and marked in such a way as to avoid confusion. As far as possible, a receipt shall be given to the person who had the object in his possession.” Article 208 “Any person who is affected by a seizure may immediately or subsequently demand that the question whether it shall be maintained be brought before a court. The prosecuting authority shall ensure that any such person shall be informed of this right. The provision of the first sentence of the first paragraph shall apply correspondingly when any person who has voluntarily surrendered any object for seizure demands that it be returned. The decision of the court shall be made by an order.” COMPLAINTS 33.     The applicant complained that in breach of Article 13 taken together with Article 8 of the Convention and Article 1 of Protocol No. 1, the City Court, whose decision was upheld on appeal, had refused to review the merits of his claim that the seizure was unlawful and not founded on the existence of a reasonable ground for suspicion. Without any legal authority or formalities nor any judicial remedies for challenge, the prosecuting authority could continue to keep indefinitely the approximately 100,000   documents, belonging to the applicant and his clients. The City Court did not regard the documents as “seized”. Nor had they been “submit[ted] to the Court” in accordance with Article 205   (3) of the Code of Criminal Procedure. 34.     Moreover, the seizure violated the applicant’s right to respect for private life and correspondence under Article 8. Whilst the national court sorted documents that were covered by the statutory duty of confidentiality, it did not carry out any review to assess their relevance to the charges brought against the applicant. Two years after the search this had still not been done. The court could not refrain from handing over to the prosecution purely private documents that were irrelevant to the charges. Nor could this be challenged before the courts until the prosecuting authority had stated in writing that the documents were “seized” formally. The prosecution authority had de facto seized the documents in question with the pretext that they would be adduced before the court, whereas only a fraction of the documents was so submitted. The remainder of the documents had stayed in their possession without a legal basis. In this connection the applicant also relied on Article 10. 35.     In addition, the applicant invoked the presumption of innocence in Article 6 § 2 and his right to protection of reputation, notably under Article   8. Under Article 6 § 3(a), he complained that the nature and cause of the charge against him had not been described sufficiently clearly in detail. For instance it was stated that he had held meetings in his office, without specifying the time when such had taken place, and that moneys had been paid to his client account. This had made it impossible for him to adduce counter-evidence and to request investigatory measures to dispel suspicion against him. QUESTIONS and requests TO THE PARTIES   1.     Bearing in mind his appeals to the national courts, to what extent has the applicant exhausted domestic remedies in respect of those matters he is complaining of under the Convention?   2.     Having regard to the Court’s case-law in this area (see as a recent example Bernh Larsen Holding AS and Others v. Norway , no. 24117/08, 14   March 2013), did the High Court’s decision of 9 November 2011, in respect of which the Appeals Leave Committee of the Supreme Court dismissed the applicant’s appeal on 20 December 2011, entail an interference with a right of the applicant protected by paragraph 1 of Article   8 of the Convention? In this regard, did the measure adversely affect his right to respect for (a) “private life”, (b) “home” and/or (c) “correspondence”?   3.     If so, was the interference “in accordance with the law” and “necessary in a democratic society” for the pursuance of one or more legitimate aims (i.e. supported by relevant and sufficient reasons and proportionate to such an aim or aims), for the purposes of paragraph 2 of Article 8, having regard to such factors as   (a)     The nature of the interference;   (b)     The scope and duration of the retention of material at the relevant stage of the proceedings;   (c)     The existence of safeguards against abuse, notably   (i)     The fact that the City Court had by a decision of 10 March 2010 authorized the search, against which the applicant did not lodge an appeal and which therefore gained legal force;   (ii)     The fact that the prosecuting authority had requested the City Court, in accordance with established practice, to review the material with a view to establish whether documents covered by the lawyer’s duty of confidentiality ought to be excluded from seizure;   (iii)     The extent to which it was possible for the applicant at this stage to obtain judicial review of the justification for the continued retention of the material collected, including such matters as the persistence of reasonable suspicion against him and the relevance of the documents as evidence;   (iv)     Any remedies that might have been available to the applicant at a next stage against any decisions taken by the City Court and the prosecuting authority regarding seizure of the material collected from him?   3.     Does the applicant’s complaint under Article 13 of the Convention give rise to any separate issue from those raised under Article 8? If so, has there been a violation of the former?   4.     The Government are requested to submit a copy of (a) the City Court’s decision of 22 July 2010 and (b) of any decisions taken by the national courts in the criminal proceedings against the applicant after 20 December 2011 and also (c) an English translation of the Supreme Court’s reasoning in paragraphs 38 to 44 of its decision of 3 March 2011 reported in Rt . 2011 p. 296.