CEDH · PRESS;CHAMBERJUDGMENTS;ENG — 21 janvier 2010

.s800EAC49 { font-size:12pt } .s598389F8 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:11pt } .s29100277 { font-family:Arial; font-weight:bold } .sA678F94A { margin-top:0pt; margin-bottom:0pt; text-align:right; font-size:11pt } .s7ED160F0 { text-decoration:none } .s2F5E426D { font-family:Arial; font-size:6pt; font-weight:bold; vertical-align:super; color:#0069d6 } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sC9AE5FA8 { font-family:Arial; font-weight:bold; font-style:italic; text-decoration:underline; color:#0069d6 } .s1F6AC3E7 { font-family:Arial; font-size:11pt; font-style:italic } .sA36B60A1 { font-family:Arial; font-style:italic } .sBB9EE52A { font-family:Arial } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s2E932ED2 { margin-top:0pt; margin-bottom:0pt; font-size:11pt } .s99A63BFE { margin-top:0pt; margin-bottom:0pt; text-align:left; font-size:11pt } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s4BAE41EE { font-family:Arial; font-size:11pt } .sBACB3E60 { font-family:Arial; font-size:11pt; text-decoration:underline; color:#800080 } .sC7EAD8B { font-family:Arial; font-weight:bold; text-decoration:underline } .s9FE28126 { margin-top:0pt; margin-right:42.5pt; margin-bottom:0pt; text-align:left; font-size:11pt } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 } .sB853CD26 { font-family:Arial; font-size:8pt }   054 21.01.2010   Press release issued by the Registrar   Chamber judgment [1] Xavier Da Silveira v. France (application no. 43757/05)     ILLEGAL SEARCH AND SEIZURE AT THE FRENCH HOME OF A LAWYER REGISTERED IN PORTUGAL   Violation of Article 8 (right to respect for private life and home) of the European Convention on Human Rights       Principal facts   The applicant, Caio Xavier Da Silveira, born in 1937, is a French national who also has Brazilian nationality. He is a lawyer, based mainly in Oporto, Portugal, but with a home in Châteauneuf-en-Thymerais (France), where he practises occasionally. On 15 June 2005, in connection with an investigation against a person or persons unknown for fraud and recording or storing nominative electronic data showing people’s religious convictions without their consent, a search was carried out at his French home and items were seized. This was done in spite of his objections and his informing the investigators that he was a lawyer registered in an EU country. He showed the police a business card indicating that he was a lawyer and had addresses in Portugal and France. He also showed them various documents proving that the premises in question were his actual abode in France. He further informed them – to no avail – that the President of the Chartres Bar Association had been informed of the situation and was ready to be present during the search, in conformity with Article 56-1 of the Code of Criminal Procedure concerning lawyers’ homes.   Mr Da Silveira lodged two requests with the investigating judge to recover the items seized, but they were rejected on 22 June and 1 July 2005, because, among other things, at the time of the search the applicant had not presented any official document proving beyond doubt that he was a lawyer. Mr Da Silveira lodged another request with the “liberties and detention judge” to recover the items and documents seized at his home and have the records of the search and other related documents destroyed. The request was declared inadmissible on 23 June 2005, the judge considering that he could intervene only if an objection was raised by the President of the Bar Association or his representative during a search at a lawyer’s office or home, whereas in this case neither had been present during the search. Lastly, Mr   Da Silveira lodged a request for judicial review with the President of the Investigation Division of the Paris Court of Appeal, but it was declared inadmissible on 6 July 2005 as the applicant was neither a party to the proceedings nor a witness assisted by a lawyer.   Complaints, procedure and composition of the Court   Relying mainly on Article 8, Mr Da Silveira complained of interference with his right to respect for his home and the lack of an effective remedy before the domestic courts by which to contest the search and the seizure of his possessions. The application was lodged with the European Court of Human Rights on 6 December 2005.   Judgment was given by a Chamber of seven judges, composed as follows:   Peer Lorenzen (Denmark), President , Jean-Paul Costa (France), Karel Jungwiert (Czech Republic), Rait Maruste (Estonia), Isabelle Berro-Lefèvre (Monaco), Mirjana Lazarova Trajkovska (The former Yugoslav Republic of Macedonia), Zdravka Kalaydjieva (Bulgaria), judges , and also Claudia Westerdiek , Section Registrar .   Decision of the Court   The Court’s task was to determine whether the interference with Mr Da Silveira’s rights, which was in accordance with the law and pursued a legitimate aim (the prevention of crime), was proportionate to the aim pursued, and whether the applicant had had the requisite effective remedy at his disposal.   The Court noted first of all that the search concerned had taken place at Mr Da Silveira’s place of residence as a lawyer and not as a private individual. This was an important distinction: searches and seizures at a lawyer’s home might breach the professional confidentiality so essential to the relationship of trust between a lawyer and his client, so it was imperative that they should be attended by “special procedural guarantees”. The fact that Mr Da Silveira was a lawyer, as well as the tenant of the premises, had been clear from the start of the search. In spite of that, he had not been given the benefit of the special guarantees offered to lawyers by Article 56-1 of the Code of Criminal Procedure, even though – and this was worth stressing – a lawyer practising on an occasional basis was not required to register with a national Bar Association to qualify for that protection. The provision made no distinction between lawyers practising on a regular or an occasional basis and such a distinction would in any event not be justifiable for the purposes of Article 8 of the Convention. In the Court’s opinion, even assuming that there had been any doubt as to whether Mr Da Silveira was a lawyer, the circumstances of the case should at least have led the authorities to proceed with caution and to verify his allegations as soon as possible, before searching his home. Lastly, not only had the applicant not enjoyed the “special procedural guarantee” to which he was entitled but, in addition, the impugned search concerned matters that were entirely alien to him: at no time had he been accused or suspected of having committed an offence connected with the investigation.   The Court then verified whether Mr Da Silveira had had an effective means of contesting the search and seizure of his possessions, and found that he had not, in so far as none of the remedies he had sought – in vain – had actually been available to him in law. The appeal to the “liberties and detention judge” applied only to objections raised by the President of the Bar Association or his representative when documents were seized during a search at a lawyer’s home or office. One of the issues in this case, however, was precisely the absence of the President of the Bar Association or his representative during the search. The appeal to the President of the Investigation Division was not admissible because the applicant was neither a party to the proceedings nor a witness assisted by a lawyer. Nor would an appeal to the Court of Cassation have succeeded, as in criminal cases such appeals were not admissible in respect of decisions not subject to appeal. Lastly, the authorities’ argument that Mr Da Silveira could have obtained compensation by lodging a claim against the State failed to convince the Court: the outcome of such an action would have been uncertain and, above all, it would not have produced the desired result, which was to have the impugned search annulled.   The Court held unanimously that there had been a violation of Article 8.   It considered that the finding of a violation in itself constituted sufficient just satisfaction (Article 41 of the Convention) for the non-pecuniary damage sustained by the applicant, and awarded him 5,980 euros for costs and expenses.   *** The judgment is available only in French. This press release is a document produced by the Registry. It does not bind the Court. The judgments are available on its   website ( http://www.echr.coe.int ).     Press contacts Frédéric Dolt (tel: + 33 (0)3 90 21 53 39) or Stefano Piedimonte (tel: + 33 (0)3 90 21 42 04) Tracey Turner-Tretz (tel: + 33 (0)3 88 41 35 30) Kristina Pencheva-Malinowski (tel: + 33 (0)3 88 41 35 70) Céline Menu-Lange (tel: + 33 (0)3 90 21 58 77) Nina Salomon (tel: + 33 (0)3 90 21 49 79)   The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. [1] Under Article 43 of the Convention, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17 ‑ member Grand Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer.