FIFTH SECTION
CASE OF SABER v. NORWAY
(Application no. 459/18)
 
 
JUDGMENT
 
Art 8 • Respect for correspondence • Insufficient legal framework and safeguards for protecting data subject to legal professional privilege during police seizure of smart phone and search of its mirror image copy
 
STRASBOURG
17 December 2020
FINAL
 
17/03/2021
 
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Saber v. Norway,
The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:
 Síofra O’Leary, President,
 Mārtiņš Mits,
 Ganna Yudkivska,
 Stéphanie Mourou-Vikström,
 Ivana Jelić,
 Arnfinn Bårdsen,
 Mattias Guyomar, judges,
and Victor Soloveytchik, Section Registrar,
Having regard to:
the application against the Kingdom of Norway lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Norwegian national, Mr Mohammed Imran Saber (“the applicant”), on 27 December 2017;
the decision to give notice to the Norwegian Government (“the Government”) of the complaints concerning Articles 6 and 8 of the Convention;
the parties’ observations;
Having deliberated in private on 10 November 2020,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The application concerns the applicant’s complaint that proceedings in respect of search and seizure of data from his smart phone, facilitating access to correspondence between him and his lawyers, entailed a violation of Articles 6 and 8 of the Convention. THE FACTS
2. The applicant, Mr Mohammed Imran Saber, is a Norwegian national who was born in 1978 and lives in Oslo. He was represented before the Court by Mr J.C. Elden, a lawyer practising in Oslo. 3. The Government were represented by their Agent, Ms H. Busch at the Attorney General’s Office (Civil Matters), assisted by Ms L. Tvedt, an associate at the same office. The circumstances of the case
4. The facts of the case, as submitted by the parties, may be summarised as follows. 5. In connection with an investigation into a criminal case against two persons for, among other things, conspiracy to murder the applicant – who, being a possible victim of an alleged crime, was accordingly an “aggrieved party” (fornærmet) in the sense that that term is employed in the domestic criminal procedural law – the applicant’s smart phone was seized by the police on 23 November 2015. A mirror-image copy of the phone was captured, as the police wished to search it in order to shed light on possible conflicts between the suspects and the applicant. The phone was returned to the applicant. When the phone had been taken, the applicant stated that it contained his correspondence with two lawyers defending him (forsvarsadvokater) in another criminal case, in which he was a suspect. 6. Since the applicant had given information to the effect that the phone contained communications between the applicant and his lawyers, there were reasons to believe that some of the content of the mirror image copy would be exempt from seizure under Articles 204 and 119 of the Code of Criminal Procedure (see paragraph 29 below). On 4 January 2016 the prosecuting authority therefore decided to submit the mirror image copy to the Oslo City Court (tingrett) under the procedure set out in the last paragraph of Article 205, which the authority assumed applied by analogy. The prosecuting authority requested that the City Court peruse the mirror image copy and decide which parts of the data on it were subject to legal professional privilege (LPP) and which parts could be given to the police to search. At the same time the prosecuting authority declared that they had waived the seizure of those parts of the material that contained correspondence with the two above defence counsel or with the other counsel who assisted the applicant in his role as an aggrieved party in the case concerning conspiracy to murder (bistandsadvokat). 7. In the course of the continued proceedings before the City Court, the views of the parties were obtained. The prosecuting authority, counsel for the applicant in respect of his role as an aggrieved party, as well as defence counsel for the suspects in the case relating to conspiracy to murder, were given the opportunity to file submissions. Counsel for the applicant as an aggrieved party stated that the mirror image copy also contained confidential correspondence with other lawyers. 8. In a letter of 5 April 2016 the Oslo City Court listed the keywords that it proposed using in its perusal of the mirror image copy, in order to sift out data subject to LPP. The City Court suggested at the same time that it be assisted by a technical expert from the Oslo police. It was emphasised that the technical expert should not be associated with the investigation and was to sign a declaration of confidentiality. 9. In her reply of 9 April 2016, counsel for the applicant as an aggrieved party stated that she disagreed. She requested that a formal decision be given as to how to proceed with the search on the data on the mirror image copy. In addition, she argued that particular limitations to the prosecuting authority’s right to seize data applied when that data belonged to witnesses (which was the formal status of the applicant in the case relating to conspiracy to murder) and not to the persons charged. 10. In a letter of 8 August 2016 the Oslo City Court stated that the court would therefore not be assisted by an Oslo police technician in perusing the mirror image copy. The City Court would instead engage external technical assistance. 11. By letters of 30 August and 2 September 2016, the prosecuting authority objected to the engagement of external assistance by the City Court, as they feared that it could lead to the destruction of evidence. By letter of 29 September 2016, counsel for the applicant as an aggrieved party submitted that an attempt by the City Court to seek assistance from police officers in perusing the mirror image copy would breach Article 8 of the Convention. 12. By letter of 20 January 2017 to the Oslo City Court, the prosecuting authority made reference to a Supreme Court (Høyesterett) decision rendered – in an unrelated case – four days earlier; on 16 January 2017 (see paragraphs 30-40 below). Based on the decision, the prosecuting authority requested the return of the mirror image copy so that they could themselves examine it in order to assess which parts would be exempt from seizure. By letter of 10 February 2017, counsel for the applicant as an aggrieved party objected to the procedure proposed by the prosecuting authority, considering that it was for the City Court to examine the mirror image copy and filter out the data that should be exempt from seizure on account of LPP. 13. On 6 March 2017 the Oslo City Court declined jurisdiction for examining the mirror image copy in order to assess which data should not be subject to seizure. The City Court gave decisive weight to the Supreme Court’s decision of 16 January 2017, and found that that decision prescribed that it was for the police to carry out that kind of filtering. It accordingly returned the mirror image copy to the police for examination and assessment of whether the different data on it could be seized in accordance with Articles 203 et seq. of the Code of Criminal Procedure (see paragraph 29 below). 14. The applicant appealed to the Borgarting High Court (lagmannsrett) against the City Court’s decision. He also sought a stay of execution of the City Court’s decision pending the outcome of the appeal. The latter request was turned down by the City Court. 15. In its decision of 12 June 2017, the High Court initially noted that the case concerned the procedure for perusing a data carrier that had already been seized by the police. Specifically, the prosecuting authority had, by analogy with the third paragraph of Article 205 of the Code of Criminal Procedure (see paragraph 29 below), requested that an examination be carried out by the City Court in order to filter out the data which were subject to LPP and therefore exempt from seizure (which meant that the police would also not be entitled to search the data, then possibly deciding on their seizure); it was not a case in which seizure had been decided and the applicant subsequently requested that it be lifted pursuant to Article 208 (ibid.). 16. The applicant had principally argued that he, by virtue of the letters initially sent from the Oslo City Court in which that court had proceeded on the grounds that it was competent to peruse the mirror image copy with the assistance of an external technician, had a vested right to have that procedure followed. The High Court concluded on this point that the City Court had not taken any decisions to the effect that the applicant had acquired any rights relating to the procedure. It was therefore incumbent on the High Court to decide on the correct procedure. 17. Turning to this question of the correct procedure, the High Court took as its starting point the first section of Article 204 of the Code of Criminal Procedure, according to which documents about whose contents a witness would be entitled to refuse to testify were exempt from seizure (see paragraph 29 below). According to Article 119 a court was not entitled to take statements from lawyers about matters that had been vouchsafed to them in their capacity as lawyers. The High Court observed that conversations and messages between lawyers and clients enjoyed solid protection under the Code of Criminal Procedure and Article 8 of the Convention. 18. The High Court went on to examine the relevant Supreme Court case-law, in particular the Supreme Court’s decisions of 27 March 2013 (published in Norsk Retstidende (Rt) 2013-968); 11 October 2013 (Rt‑2013‑1282); 27 January 2015 (Rt-2015-81); and 16 January 2017 (see paragraphs 30-40 below). 19. The instant case, the High Court observed, did not concern seizure of documents at a lawyer’s office or a lawyer’s premises. It was likely, however, that the mirror image copy comprised occasional communications between the applicant and his lawyers. There was still no information on whether such communications formed any sizeable part of the total data content of the copy. 20. According to the High Court, it was the prosecuting authority that had the primary competence to take decisions on seizure, as well as the primary responsibility for ensuring that seizures were not decided in respect of data that were exempt from seizure under the Code of Criminal Procedure. It observed that in its decision of 16 January 2017 the Supreme Court had carried out a thorough examination of the relevant legal sources, including the case-law of this Court with regard to Article 8 of the Convention. 21. In the High Court’s view the City Court had rightly concluded that the prosecuting authority had the competence to peruse the data on the mirror image copy. When carrying out such examination, the prosecuting authority would have to sift out any data that could be exempt from seizure. Any such data would, without any further inspection, have to be returned to the applicant or deleted. Data in respect of which the question whether they might be exempt from seizure could be raised would have to be transmitted uninspected to the City Court so that that court could peruse them pursuant to the application by analogy of the third paragraph of Article 205 of the Code of Criminal Procedure (see paragraph 29 below). 22. Moreover, the High Court observed that the exemption from seizure under Articles 204 and 119 of the Code of Criminal Procedure (see paragraph 29 below) was absolute; it applied regardless of the owner of the object in question. Accordingly, the fact that the smart phone in the instant case belonged to the aggrieved party and not, for instance, to an accused, could not lead to any other conclusion than that which followed from the Supreme Court’s decision of 16 January 2017 (see paragraphs 30-40 below). 23. Lastly, the High Court noted that the City Court’s decision of 6 March 2017 (see paragraph 13 above) had been based on the prosecuting authority’s initial transmission of the mirror image copy to the City Court to enable the latter to peruse the data on it. In so doing the City Court had not taken any decision on items possibly to be seized or on details concerning the examination of such items. Such questions therefore fell outside the ambit of the appeal proceedings. The High Court nonetheless remarked that it had not been shown that the perusal could only be effected by searching for particular keywords. A keyword search would, however, have to be carried out in order to reveal which data were exempt from seizure. Reference was made to the Supreme Court’s decision of 16 January 2017, with further reference to, inter alia, the decision reported in Rt-2015-81 (see paragraphs 30-40 below). 24. Relying on the above considerations, the High Court unanimously rejected the appeal. 25. On 25 June 2017 the applicant appealed to the Supreme Court against the High Court’s decision. He also applied for the implementation of the High Court’s decision to be suspended pending the outcome of the appeal. The latter request was turned down by the City Court. 26. On 30 June 2017 the Supreme Court’s Appeals Leave Committee (Høyesteretts ankeutvalg), in a summary decision, unanimously concluded that the appeal against the High Court’s decision clearly had no prospects of success and therefore rejected it. 27. The mirror image copy was thereafter returned to the police for search. This search was then carried out by the police themselves, without any control by the regional court at this stage. The procedure was described in a report from police officer E.S.R. of 9 November 2017. The report stated, inter alia, the following:
“The seizure has been the subject of court proceedings, as Saber [(the applicant)] claimed that there are data items exempt from seizure on the phone, including legal correspondence with his defence counsel, attorney [Ø.S.] and attorney [P.D.]. Furthermore, attorney [S.E.] was appointed as counsel for Saber as aggrieved party on 30 September 2015 and it has also emerged that there is correspondence with her on Saber’s phone. On the basis of decisions from the court, it has been decided, in consultation with [L.P.], who is responsible for the prosecution (påtaleansvarlig), that correspondence with the above-mentioned attorneys and lawyer’s offices shall be removed from the mirror image copy which is to be examined by the police. It has also been decided that if the examination reveals contact that has not been captured (fanget opp), this shall not be examined.”
The report stated, moreover, that the work with filtering out correspondence had been carried out by police officer A.K. at the Section of Digital Policework (Seksjon for digitalt politiarbeid) and specified the methods she had employed for that purpose. 28. The parties have not informed the Court of any further proceedings involving the data on the applicant’s smart phone or of the further proceedings in respect of the case in which the applicant was the aggrieved party. The criminal proceedings against the applicant ended with his acquittal on 11 March 2019. RELEVANT LEGAL FRAMEWORK AND PRACTICE
The Code of Criminal Procedure
29. The 1981 Code of Criminal Procedure (straffeprosessloven), as in force at the relevant time, included the following provisions:
Article 119
“Without the consent of the person entitled to the preservation of secrecy, the court may not receive any statement from clergymen in the state church, priests or pastors in registered religious communities, lawyers, defence counsel in criminal cases, conciliators in matrimonial cases, medical practitioners, psychologists, chemists, midwives or nurses about anything that has been confided to them in their official capacity. ... This prohibition no longer applies if the statement is needed to prevent an innocent person from being punished. ...”
Article 203
“Objects that are deemed to be significant as evidence may be seized until a legally enforceable judgment takes effect. 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 under 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 under the said provisions, a corresponding power to order a 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 [in question]. Nor does it prevent documents or any other items being removed from an unlawful possessor to enable them to be given 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 rendered in 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 208
“Any person who is affected by a seizure may immediately or subsequently demand that the question of whether it should 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.”
The Supreme Court’s decision of 16 January 2017
30. In its decision of 16 January 2017, the Supreme Court considered the procedures governing the search of an extensive collection of e-mails collected from an accused person. After deciding on the specific case before it, the Supreme Court proceeded to attempt a general clarification of how, in procedural terms, to deal with situations where the police were examining seized data, only to discover that they included correspondence with lawyers. 31. The Supreme Court stated that counsel in the case before it had argued that if the police, when perusing data items, came across correspondence with lawyers, the perusal would have to cease immediately and all items on the data carriers in question would have to be transmitted to the City Court so that that court could separate the data which were exempt from seizure from those which could be searched by the prosecuting authority and possibly seized, should they be found to contain evidence of interest. Counsel had further submitted that the latter procedure would also have to be followed where the accused person claimed that the materials collected included data that were exempt from seizure. 32. The Supreme Court disagreed with counsel’s submissions. In the Supreme Court’s view, one could not set out as a general rule that any discovery of data exempt from seizure, or any claim that such data existed among those collected, would always automatically (uten videre) lead to the prosecuting authority having to discontinue its perusal of the collected data. 33. Reference was made to the fact that the primary competence to decide on seizures lay with the prosecuting authority. It was, accordingly, the prosecuting authority which had the primary responsibility for ensuring that no seizure was ordered beyond what was authorised in the Code of Criminal Procedure. From this it was inferred that the prosecuting authority also had first of all to have powers to examine any data collected; it was an evident precondition, however, that in so doing the prosecuting authority would filter out and return or delete whatever data it could not lawfully keep. 34. The preparatory works to the Code of Criminal Procedure had stated that when carrying out a search the police had to look through documents in order to be able to take a decision on whether they should be seized, and that it was unavoidable that the police in that context might happen to look through documents that would be exempt from seizure. 35. The Supreme Court reiterated that in its decision of 27 March 2013 (Rt-2013-968) it had found that the aforementioned statements in the preparatory works could not apply to a situation where a lawyer’s office was being searched and where the lawyer had maintained that documents in the office were subject to legal professional privilege. In such circumstances there would be a presumption that documents and other data were subject to confidentiality and should therefore be submitted to the City Court without any prior perusal or filtering. 36. In the Supreme Court’s view, however, the procedure established in respect of searches and seizures of data in lawyer’s offices was not to be transposed to any situation where lawyer’s correspondence was discovered as part of a larger collection of data or where someone alleged that the data that had been collected comprised such correspondence. In such situations, it was, according to the Supreme Court, more natural to apply procedures based on the guidelines which it had drawn up with regard to conversations recorded during surveillance. 37. Specifically, in its decision of 27 January 2015 (Rt-2015-81), the Supreme Court had indicated that in situations where the prosecuting authority, when reviewing surveillance data, became aware that a conversation involved or might involve a lawyer and his or her client, it could not itself listen through the conversation or read through transcripts of it in order to assess whether the conversation was subject to LPP. The Supreme Court found in that case that a system which entailed that the data at issue in such circumstances had to be sent to the regional court for examination would be compatible with Article 8 of the Convention. It did not pronounce on whether other types of filtering arrangements could be put in place meeting the requirements of that provision. 38. Returning to the case before it concerning e-mails, the Supreme Court assumed that an arrangement for filtering out data covered by LPP based on the guidelines drawn up on surveillance data in the above-mentioned decision would meet the requirements deriving from this Court’s case-law under Article 8 of the Convention. If one accepted that the police were the first to peruse the data in question, the domestic courts’ task would be limited to examining the data submitted to them by the police. 39. The Supreme Court refrained from commenting on how the police could sort the data, either in the case before it or in general, beyond pointing out that criteria for searching the data should be chosen in cooperation with counsel for the defence or counsel appointed to safeguard the interests of persons unaware that a search was being carried out, when a procedure to the latter effect was carried out. 40. Lastly, the Supreme Court stated that the existing legal regulation was not suited to technological developments which facilitated the seizure of large batches of data saved, for example, on computers, mobile phones and memory sticks. The Supreme Court noted that some of the difficulties had been commented on in the preparatory works relating to a proposal of a new Criminal Code, and in its view a more detailed regulation appeared pertinent (synes nærliggende). THE LAW
ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
41. The applicant complained that allowing the police to carry out an introductory examination of his smart phone in order to filter out data which might be exempt from seizure due to LPP, entailed a breach of Article 8 of the Convention, which reads:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
The parties’ submissions
42. The Government accepted that search and seizure of the applicant’s smart phone had amounted to an interference with his right to respect for his correspondence under Article 8 of the Convention. 43. As to whether the interference had been in accordance with the law, the Government maintained that the search and seizure had had a formal basis in the Code of Criminal Procedure and that the law had been accessible and foreseeable to the applicant. The relevant provisions of the Code of Criminal Procedure had been formulated with sufficient precision. Although the relevant legislation had not been applied as it was in the instant case until the Supreme Court’s decision of 16 January 2017, the procedures described in that decision had not contradicted any earlier Supreme Court rulings. Legal interpretation developed through case-law, and it was essential for national courts to be able to facilitate such development in order to ensure that the law was applied correctly to cases not specifically dealt with in the relevant legislation. This held especially true in a case such as the present one, where the legislation did not deal with the issue at hand owing to technological developments unforeseen by the lawmakers. 44. Furthermore, the Government argued that the search and seizure of the applicant’s smart phone had pursued the legitimate aim of preventing disorder and crime and had been necessary in order to obtain evidence in the criminal investigation in which the applicant was the aggrieved party. They also submitted that the Code of Criminal Procedure contained adequate and effective safeguards against abuse in respect of decisions to search as well as to seize objects. The preliminary filtering and deletion of LPP data had been carried out by a police officer who had not been involved in investigating the instant case. 45. The applicant submitted that the Supreme Court’s decision in the present case represented a departure from well-established practice in terms of filtering out data subject to LPP, such that he could not to a reasonable degree foresee the consequences; nor had the law been accessible to him. 46. Furthermore, the applicant argued that the impugned measure was not necessary in a democratic society because the relevant legislation and practice had not afforded the applicant adequate and effective safeguards against abuse. The applicant maintained that the case concerned not judicial authorisation before a seizure but the procedure regarding the seizure of a batch of data partly made up of information exempt from seizure, and how to filter that information out. Admissibility
47. The Court notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.

Outcome for Article 41: violation