Kruglov and others v. Russia (Applications nos. 11264/04 and 15 others)
A selection of key paragraphs can be found below the judgment.
125. The Court has repeatedly held that persecution and harassment of members of the legal profession strikes at the very heart of the Convention system. Therefore, searches of lawyers’ homes or offices should be subject to especially strict scrutiny (see Elçi and Others v. Turkey, nos. 23145/93 and 25091/94, § 669, 13 November 2003; Xavier Da Silveira v. France, no. 43757/05, § 41, 21 January 2010; and Leotsakos v. Greece, no. 30958/13, § 42, 4 October 2018; see also international legal materials on the protection of lawyer-client relationship, paragraphs 102–105 above). To determine whether the measures were “necessary in a democratic society”, the Court has to ascertain whether effective safeguards against abuse or arbitrariness were available under domestic law and how those safeguards operated in the specific cases under examination. Elements to be taken into consideration in this regard are the severity of the offence in connection with which the search and seizure were effected, whether they were carried out pursuant to an order issued by a judge or a judicial officer or subjected to after-the-fact judicial scrutiny, whether the order was based on reasonable suspicion, and whether its scope was reasonably limited. The Court must also review the manner in which the search was executed, including – where a lawyer’s office is concerned – whether it was carried out in the presence of an independent observer or whether other special safeguards were available to ensure that material covered by legal professional privilege was not removed. The Court must lastly take into account the extent of the possible repercussions on the work and the reputation of the persons affected by the search (see Yuditskaya, cited above, § 27).
126. Turning to the present cases, the Court observes that in only one of fifteen applications (application no. 11264/04) was the applicant advocate officially suspected of having committed a criminal offence – libel of a judge. In the other fourteen applications the applicants were lawyers who were not under criminal investigation. In two applications (application nos. 32324/06 and 26067/08) the searches had been authorised in respect of the applicants’ relatives, who were suspected of criminal offences. In the other twelve applications, the lawyers’ premises were searched because their clients were under investigation and thus the lawyers might have been in possession of some useful information about them.
127. The court search warrants, where issued, indicated that the material submitted from the criminal cases had provided sufficient grounds to believe that documents or objects relevant to the investigation could be located on the applicants’ premises (see paragraphs 7, 12, 20, 24, 32, 37, 47, 56, 59, 67, 70, 74, 76 and 79 above). They did not however explain what those materials were or on what grounds the belief that the relevant evidence might be found at the premises to be searched was based (see, as a recent authority, Aliyev v. Azerbaijan, nos. 68762/14 and 71200/14, § 184, 20 September 2018). The court search warrants were couched in very broad terms, giving the investigators unrestricted discretion as to how to carry out the searches. According to the Court’s case-law, search warrants have to be drafted, as far as practicable, in a manner calculated to keep their impact within reasonable bounds (see Yuditskaya, cited above, § 29, with further references).
128. Furthermore, as regards the applicants who were members of the Bar, the national courts appeared to believe that the only safeguard to be ensured during the search of the lawyers’ premises was a prior judicial authorisation, and that that requirement was of a merely procedural character. The Court has previously held that judicial scrutiny in itself is not a sufficient safeguard against abuse (see Cronin v. the United Kingdom (dec.), no. 15848/03, 6 January 2004, and Gerashchenko v. Ukraine, no. 20602/05, § 130, 7 November 2013). At no point did the national courts attempt to weigh the obligation to protect lawyer-client confidentiality against the needs of criminal investigations. For instance, the courts did not examine the possibilities of obtaining the information sought from other sources (for instance, from the clients of the lawyers themselves). Furthermore, there is nothing to demonstrate that the courts had any rules by which to determine when it might be and when it might not be permissible to breach the confidentiality of legally privileged documents (see Sallinen and Others v. Finland, no. 50882/99, § 92, 27 September 2005). On the contrary, in issuing the search warrants, the courts seemed to imply that lawyer-client confidentiality could be breached in every case as long as there was a criminal investigation, even where such investigation was not against the lawyers but against their clients.
129. The Court concludes that in the cases where a court search warrant was issued, the national courts did not carry out a balancing exercise or examine whether the interference with the applicants’ rights had answered a pressing social need and was proportionate to the legitimate aims pursued.
130. Similarly, in cases where the applicants complained also or only about the manner of the execution of searches (applications nos. 11264/04 (second search), 32324/06, 26067/08, 2397/11 (first applicant), 14244/11, 73629/13, 19667/16 (in respect of the office search) and 36833/16), the national courts examined mainly whether the authorities’ actions had complied with the relevant criminal procedural requirements (see paragraphs 17, 21, 44, 64, 72 and 78 above). However, the national courts did not assess the necessity and proportionality of the investigating authorities’ actions.