CEDH · CASELAW;COMMUNICATEDCASES;ENG — 5 avril 2024

.s800EAC49 { font-size:12pt } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .sBB9EE52A { font-family:Arial } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s665E407E { margin-top:66pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } Published on 22   April 2024   FIRST SECTION Application no.   3699/20 Flavio FASANO against Italy lodged on 13   December 2019 communicated on 5   April 2024 SUBJECT MATTER OF THE CASE The application concerns the interception of a lawyer’s telephone communications and the audio surveillance of conversations in his law firm via covert listening devices. In the context of investigations into a mafia-style murder opened against unknown perpetrators, national authorities found by wiretapping the telephone line of P.R.P., brother of the murder victim, that he was seeking “advice” ( consigli ) from the applicant, a lawyer, on the behaviour to keep with investigative authorities and private individuals in relation to the murder. Considering that confidentiality of lawyer-client relations did not cover such “advice”, also having regard to the absence of a mandate and to the fact that P.R.P. was not a suspect at that time – he was later accused and sentenced as the instigator of the murder –, the preliminary investigations judge authorised the wiretapping of all communications on the applicant’s mobile and business telephone lines and the audio surveillance of conversations in his law firm for forty days. The applicant was not a suspect and was monitored to gather information on the murder (decree of 7   October 2008). The preliminary investigations judge authorised nine extensions of monitoring activities, which ended on 30   April 2009. Based on the results of the monitoring of communications between the applicant and individuals other than P.R.P., investigating authorities brought charges against the applicant for offences allegedly committed against public administration in his capacity of councillor responsible for public works of the Province of Lecce. In the context of the criminal proceedings brought against him, the applicant complained that his conversations had been intercepted in breach of the legal professional privilege. By a judgment of the Lecce Court of Appeal of 13   November 2017 the applicant was in part acquitted on the ground that the alleged facts had never occurred and, as to the remaining charges brought against him, criminal proceedings were discontinued because the relevant limitation period had expired. By a final decision of 13   December 2019 the Court of Cassation rejected the applicant’s appeal on point of law. Invoking Article   8 of the Convention, the applicant complains that the interception of his telephone communications – by means of wiretapping of P.R.P.’s and his telephone lines – and the audio surveillance of conversations in his law firm via covert listening devices amounted to an unlawful and disproportionate interference with the confidentiality of relations with his clients. QUESTIONS TO THE PARTIES 1.     Has there been an interference with the applicant’s right to respect for his private life or correspondence, within the meaning of Article   8   §   1 of the Convention?   2.     If so, was that interference in accordance with the law in terms of Article   8   §   2 (see, mutatis mutandis , Kopp v.   Switzerland , 25   March 1998, §§   72-75, Reports of Judgments and Decisions 1998-II; Klaus Müller v.   Germany , no. 24173/18, §§   48-50, 52, 19   November 2020, and Vasil   Vasilev v.   Bulgaria , no.   7610/15, §§   86-94, 16   November 2021)?   In particular: (a)     in light of the wording of Article   103 of the Code of Criminal Procedure and the relevant case-law of the Court of Cassation, was the law sufficiently precise and foreseeable in excluding from legal professional privilege the “advice” the applicant provided to P.R.P. (see, mutatis mutandis , Vasil   Vasilev , cited above, §§   90 and 93 in fine )?   In answering to this question, the parties are requested to comment on whether the authorities had a reasonable suspicion that the communications between the applicant and P.R.P. may constitute a criminal offence (see, mutatis mutandis , Graviano v.   Italy (no.   2) (dec.), no.   24320/03, 16   October 2007).   (b)     In light of the fact that the monitoring activities covered all communications on the applicant’s telephone lines and conversations in the applicant’s law firm from October 2008 to April 2009, did the law afford effective safeguards against abuse or arbitrariness, particularly having regard to the confidentiality of relations with his clients (see, mutatis mutandis , Kopp , cited above, §§   72-74; Ekimdzhiev and Others v.   Bulgaria , no.   70078/12, §   333, 11   January 2022; and, in the context of a seizure of a lawyer’s laptop and mobile telephone, Särgava v.   Estonia , no.   698/19, §   98, 16   November 2021)?   3.     If so, having regard to the circumstances described above, was the interference necessary in terms of Article   8   §   2 (see, for example, in the context of searches of a lawyer’s office, Iliya Stefanov v.   Bulgaria , no.   65755/01, §§   38, 41-42, 22   May 2008)?