FOURTH SECTION
CASE OF NEZIRIĆ v. BOSNIA AND HERZEGOVINA
(Application no. 4088/21)
 
 
 
 
 
 
JUDGMENT
 
STRASBOURG
5 November 2024
 
This judgment is final but it may be subject to editorial revision. In the case of Nezirić v. Bosnia and Herzegovina,
The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:
Armen Harutyunyan, President,
Faris Vehabović 
Anja Seibert-Fohr, judges,
and Simeon Petrovski, Deputy Section Registrar,
Having regard to:
the application (no. 4088/21) against Bosnia and Herzegovina lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 10 December 2020 by a national of Bosnia and Herzegovina, Mr Sanel Nezirić (“the applicant”), who was born in 1976, lives in Sarajevo and was represented by Ms E. Veledar Arifagić, a lawyer practising in Sarajevo;
the decision to give notice of the application to the Government of Bosnia and Herzegovina (“the Government”), represented by their acting Agent, Ms M. Mijić;
the parties’ observations;
Having deliberated in private on 15 October 2024,
Delivers the following judgment, which was adopted on that date:
SUBJECT MATTER OF THE CASE
1. The issue in the case is whether the domestic law offered sufficient procedural safeguards to protect privileged data during the seizure and subsequent examination of a lawyer’s mobile phone, as required by Article 8 of the Convention. 2. The applicant is a lawyer. In 2018 the investigating judge of the Tuzla Cantonal Court, accepting a request by the Tuzla Cantonal Prosecutor (“the prosecutor”), authorised the seizure and examination of the applicant’s mobile phone in order to gather evidence against him in the context of a criminal investigation opened in respect of him and several other individuals on charges of criminal association and abuse of office. That decision was upheld by the Tuzla Cantonal Court’s Appeals Panel (“the Appeals Panel”), which stated that the investigating authorities would not access any data which were not relevant to the investigation. 3. The applicant’s mobile phone was seized and its exterior examined (model and colour, IMEI number, presence of the SIM card, visible damage and so forth) in the presence of a member of the Sarajevo Bar Association. The prosecutor then made an order for a digital forensic examination of the mobile phone’s content, referring in particular to communications between the co-suspects, but noting as well that the expert should make a list of all outgoing and incoming calls; all missed calls; all messages, including multimedia messages; the log of all deleted calls and messages; all contacts; the content of all SMS, Viber and Messenger messages; and “all other evidence which could be connected to the investigation”. An expert copied the entire content of the applicant’s mobile phone to a DVD and compiled an examination report. 4. Subsequently, acting upon an oral request by the prosecutor, two investigators sifted through the copied content of the mobile phone, using the phone numbers of the other suspects as search parameters. 5. On 15 July 2020 the Constitutional Court found no violation of Article 8 of the Convention. 6. The entire copied content of the applicant’s mobile phone was submitted as evidence at trial. Following an objection by the applicant, the Trial Chamber ordered the prosecutor to filter the evidence so as to disclose only the communications relevant to the criminal proceedings. At the time of receipt of the parties’ observations, the criminal proceedings in the applicant’s case were still ongoing.

Outcome for Article 8: violation