FIFTH SECTION
CASE OF MOČUĻSKIS v. LATVIA
(Application no. 71064/12)
 
 
 
 
 
 
JUDGMENT
 
STRASBOURG
17 December 2020
 
This judgment is final but it may be subject to editorial revision. In the case of Močuļskis v. Latvia,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
 Jovan Ilievski, President,
 Mārtiņš Mits,
 Ivana Jelić, judges,
and Martina Keller, Deputy Section Registrar,
Having regard to:
the application (no. 71064/12) against the Republic of Latvia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Latvian national, Mr Juris Močuļskis (“the applicant”), on 2 November 2012;
the decision to give notice to the Latvian Government (“the Government”) of the complaint concerning Article 8 and to declare inadmissible the remainder of the application;
the parties’ observations;
the decision to reject the Government’s objection to examination of the application by a Committee. Having deliberated in private on 19 November 2020,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The case raises issues under Article 8 of the Convention as regards the proportionality of a measure taken against the applicant – namely the seizure of his tablet computer, which contained privileged information – on the basis of a search warrant issued by a judge in connection with criminal proceedings. THE FACTS
2. The applicant was born in 1966. He lives in Riga, where he also practises as a lawyer (advokāts). He is a member of the Latvian Bar Association (Latvijas Zvērinātu advokātu kolēģija). 3. The Government were represented by their Agent, Ms K. Līce. 4. The facts of the case, as submitted by the parties, may be summarised as follows. Facts leading to the seizure of the applicant’s tablet computer
5. On 15 November 2011 the State Police Department for Combating Organised Crime (Valsts policijas Organizētās noziedzības apkarošanas pārvalde – “the organised crime department”) instituted criminal proceedings relating to trafficking in human beings. 6. On 30 January 2012 the applicant’s client, L.M., was arrested in connection with those proceedings; her home was searched and her portable computer was seized. She was placed in a short-term detention facility. On 1 February 2012 she was declared a suspect in those criminal proceedings. The following day, she was released on bail. 7. On 31 January 2012, from about 1 a.m. to 2 a.m., the applicant visited L.M. in the short-term detention facility. 8. On 31 January 2012, at about 4.15 a.m., an email account that had been used by L.M. was blocked and all of its content was deleted. Seizure and examination of the applicant’s tablet computer
9. On 12 March 2012 a judge of the Riga City Ziemeļu District Court (Rīgas pilsētas Ziemeļu rajona tiesa) issued a search warrant in respect of the applicant’s home in order to find and seize a computer possibly containing information about the email account which could serve as evidence in criminal proceedings relating to trafficking in human beings (see paragraphs 5-8 above). There were indications that the email account had been blocked and its content deleted using an IP address which was registered at the address where the applicant resided. The judge referred to section 122(2) of the Criminal Procedure Law (Kriminālprocesa likums) and held that the seizure of a lawyer’s computer – if it had been used to conceal an especially serious crime – did not breach the lawyer’s procedural immunity (see paragraph 27 below). 10. On 13 March 2012 several police officers from the organised crime department and an IT expert arrived at the applicant’s home. Having read the search warrant, the applicant voluntarily surrendered his tablet computer. The police also seized another portable computer that belonged to the applicant’s adult daughter. That computer was returned as soon as it was established that it did not contain any relevant material. The seizure of the applicant’s daughter’s computer is not the subject matter of this application. 11. The applicant signed the search record, without making any remarks or comments in the relevant field. A copy of the search record was then issued to him. 12. According to the applicant, his tablet computer contained confidential notes and other information about civil proceedings, constitutional proceedings, proceedings before the European Court of Human Rights, and criminal proceedings against his clients, including L.M. According to the Government, the applicant did not inform the police officers that his tablet computer contained such information. 13. On 13 March and 17 April 2012 forensic IT examinations of the tablet computer were ordered and their results were subsequently made known. Criminal proceedings against the applicant
14. On 5 April 2012 the organised crime department instituted criminal proceedings against the applicant for concealing an especially serious crime. 15. On 24 May 2012 the applicant was declared a suspect in those proceedings. 16. On 14 June 2012 a prosecutor brought the charges against the applicant. 17. On 30 November 2012 the case was sent for adjudication to a first-instance court. At the time of the exchange of the parties’ observations, the case against the applicant was pending before that court together with the case against L.M. Review of the applicant’s complaintsRegarding the search warrant for the applicant’s home

18. On 20 March 2012 the applicant complained to the President of the Riga City Ziemeļu District Court about the search warrant. 19. On 2 April 2012 the President confirmed the lawfulness of the search warrant and dismissed the applicant’s complaint. She held that the search warrant had been issued in accordance with the law and that there were no grounds for considering that the lawyer’s procedural immunity had been breached. Regarding actions taken by the police officers
20. The applicant lodged several complaints about the actions of the police officers during the search and about the seizure of his tablet computer. 21. In particular, on 13 April 2012 the applicant complained to a supervising prosecutor. He requested that his tablet computer be returned, since it contained all his confidential notes and other information in civil proceedings, constitutional proceedings, proceedings before the European Court, and criminal proceedings against several clients, including L.M. Some of those proceedings concerned matters under investigation in the organised crime department. This meant that the police officers had access to his confidential notes about his clients’ defence positions, and details of the identity of witnesses for the defence and of confidential conversations with his clients. The applicant requested information about anyone who had had access to those notes. 22. On 22 May 2012 the prosecutor dismissed the applicant’s complaint. He considered that the seizure of the tablet computer had been lawful and justified. It had been admitted as evidence and had to be stored until such time as a court judgment became effective or until the expiry of the time‑limit for lodging an appeal against the decision to terminate the criminal proceedings – unless any grounds for its return had been established (see paragraphs 28‑29 below). In response to the applicant’s argument that the tablet computer contained confidential information, the prosecutor noted that the relevant investigating authority was under an obligation to safeguard that information. The prosecutor saw no reason for concern that the information could become available to unauthorised persons. He noted that the seized computer was being stored as required by law, but did not provide more details in that regard. The prosecutor concluded that the search of the applicant’s home had been lawful and that the police officers’ actions had been lawful and justified. 23. On 2 July 2012 a superior prosecutor dismissed a complaint by the applicant. She did not consider that any further explanation about the lawfulness of the search was necessary. 24. On 30 July 2012 another superior prosecutor, by a final decision, dismissed a further complaint by the applicant. He reiterated that the search warrant had been issued in accordance with the law. The prosecutor was not persuaded by the applicant’s argument that he had voluntarily surrendered his tablet computer so that the IT expert could carry out all the necessary checks on site. There was no indication that the IT expert had received such instructions from the relevant investigating authority. The police officers had seized the objects lawfully. The search record had been drawn up in accordance with the law. RELEVANT LEGAL FRAMEWORK
Constitution
25. Article 96 of the Constitution (Satversme) guarantees the “inviolability of private life, the home and correspondence”. Criminal Procedure Law
26. Sections 179 to 185 of the Criminal Procedure Law set out the general terms governing searches of premises. The relevant parts have been summarised in Vinks and Ribicka v. Latvia (no. 28926/10, §§ 62‑65, 30 January 2020). 27. The principle of a lawyer’s procedural immunity is laid down in section 122 of the Criminal Procedure Law, which reads as follows:
“(1)  It shall be prohibited:
...
2)  to monitor, inspect or seize documents that a lawyer has prepared, or correspondence that he or she has received or sent while providing legal assistance, as well as to carry out a search in order to find and seize such correspondence and documents;
3)  to monitor information systems and means of communication used by a lawyer in providing legal assistance, obtain information from them and interfere with their operation. (2)  Unlawful activity by a lawyer ... in the interests of the client in providing legal assistance of any form ... shall not be deemed to constitute legal assistance.”
28. The storage of physical evidence and documents are subject to the terms laid down in section 239(1) of the Criminal Procedure Law, which reads as follows:
“Physical evidence and documents shall be stored until a court judgment enters into effect or until the expiry of the time-limit set for an appeal against the decision to terminate criminal proceedings unless any grounds laid down in section 235(2) of this Law have been established”. 29. Section 235(2) of the Criminal Procedure Law provides as follows:
“Objects and documents obtained during the course of investigative activities shall be returned to the owner or lawful possessor ... if one of the following grounds is established:
1)  ... the relevant objects and documents do not hold any significance as evidence in criminal proceedings; or
2)  the necessary investigative activities with the relevant objects and documents have been carried out and their return ... does not impair subsequent criminal proceedings.”
THE LAW
ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
30. The applicant complained about the seizure of his tablet computer, which contained privileged information, and alleged that the measure had been disproportionate. He relied on Article 8 of the Convention, which reads as follows:
“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.”
Admissibility
31. The Court notes that the 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. MeritsThe parties’ submissions

(a)   The applicant
32. The applicant alleged interference with his rights protected under Article 8 § 1 of the Convention. He expressly relied on the right to respect for his correspondence. The seizure of the applicant’s tablet computer containing confidential notes about his clients and their cases (see paragraph 12 above) had been carried out in breach of the principle of professional secrecy and independence of lawyers. Referring to Foxley v. the United Kingdom (no. 33274/96, 20 June 2000), the applicant emphasised that the lawyer-client relationship was in principle privileged, and correspondence in that context, whatever its purpose, concerned matters of a private and confidential nature. 33. The applicant submitted that the inference in issue had not been carried out in accordance with the law. The email account as such had not constituted evidence within the meaning of the Criminal Procedure Law. If that email account had indeed been important evidence, it remained unclear why the police had not seized L.M.’s computer until 30 January 2012, whereas the proceedings had been instituted more than two months earlier. The applicant was of the view that the necessity and proportionality of the interference with his rights had not been assessed at domestic level. He also submitted that his tablet computer contained important electronic evidence with regard to L.M.’s innocence. (b)   The Government
34. The Government accepted that there had been an interference with the applicant’s right to respect for his home on account of the search. However, they had doubts whether there had been an interference with the applicant’s right to respect for his correspondence because (i) the applicant had firmly denied having access to the email account in issue; and (ii) the police officers had not accessed any data stored on the applicant’s tablet computer other than the Internet browser’s history log to verify whether that device had been used to access the email account. 35. Firstly, the search had been authorised by the investigating judge, in accordance with the procedure laid down in the Criminal Procedure Law. Secondly, the interference had pursued the legitimate aims of furthering the interests of public safety, preventing crime, and protecting the rights and freedoms of others as it had been carried out with a view to discovering physical evidence that might be instrumental in any criminal investigation into serious offences. 36. Thirdly, the Government insisted that the interference had been “necessary in a democratic society”. The search warrant had been based on sufficiently reasonable suspicion against the applicant. The scope of the search warrant had been drafted in such terms as to prevent any arbitrariness or abuse. It had clearly identified the objects which were supposed to be sought and seized. As to the manner in which the search had been carried out, the evidence seized had been strictly limited to what had been specified in the search warrant. The applicant had willingly handed over his tablet computer. He had not made any objections about the seizure of privileged information, and he had not expressed any concerns in that regard in the search record. The Government also emphasised that the applicant had never lodged any complaints about the content of his tablet computer. He had not requested that a copy be made of the professional material contained on it. 37. Lastly, the applicant could not rely on the protection of lawyer-client confidentiality. He could not defend L.M. because he had been declared a suspect and charged with a related crime (see paragraph 15 above).

Outcome for Article 8: violation