Las consideraciones previas sobre el acceso a las comunicaciones electrónicas y los datos contenidos en las mismas (STS 25-06-2024, (II)) resultan avaladas por la doctrina del TEDH referida al artículo 8 del CEDH y aplicable a los mismos derechos protegidos por la Carta de los Derechos Fundamentales de la Unión Europea (artículo 52.3):
543. Technologies also come within the scope of Article 8, in particular data from a smart phone/lap top and/or the mirror image copy of it (Saber v. Norway, 2020, § 48; Särgava v. Estonia, 2021), electronic messages (emails) (Copland v. the United Kingdom, 2007, § 41; Bărbulescu v. Romania [GC], 2017, § 72; Tena Arregui v. Spain, 2024, § 31; for emails exchanged with correspondents on a casual dating site, see M.P. v. Portugal, 2021, § 34), Internet use (Bărbulescu v. Romania [GC], 2017, § 81 andCopland v. the United Kingdom, 2007, §§ 41-42), and data stored on computer servers (Wieser and Bicos Beteiligungen GmbH v. Austria, 2007, § 45), including hard drives (Petri Sallinen and Others v. Finland, 2005, § 71) and floppy disks (Iliya Stefanov v. Bulgaria, 2008, § 42).
546. All forms of censorship, interception, monitoring, seizure and other hindrances come within the scope of Article 8 (Potoczka and Adamco v. Slovakia, 2023, § 69). The mail and other communications of legal entities are covered by the notion of “correspondence”. Impeding someone from even initiating correspondence constitutes the most far reaching form of “interference” with the exercise of the “right to respect for correspondence” (Golder v. the United Kingdom, 1975, § 43).
547. Other forms of interference with the right to respect for “correspondence” may include the following acts attributable to the public authorities:
screening of correspondence (Campbell v. the United Kingdom, 1992, § 33), the making of copies (Foxley v. the United Kingdom, 2000, § 30) or the deletion of certain passages (Pfeifer and Plankl v. Austria, 1992, § 43);
interception by various means and recording of personal or business related conversations (Amann v. Switzerland [GC], 2000, § 45), for example by means of telephone tapping (Malone v. the United Kingdom, 1984, § 64, and, as regards metering, §§ 83-84, AzerAhmadov v. Azerbaijan, 2021, § 62; see also P.G. and J.H. v. the United Kingdom, 2001, § 42), even when carried out on the line of a third party (Lambert v. France, 1998, § 21; Potoczka and Adamco v. Slovakia, 2023, and also for the individual not concerned by the criminal proceedings, §§ 1, 46-51);
copying the full content of the hard drive of the applicant’s laptop on to an external hard drive, the mirror-image copy (Särgava v. Estonia, 2021), or the seizure of a smart phone and the search of its mirror image copy (Saber v. Norway, 2020, § 48);
storage of intercepted data concerning telephone, email and Internet use (Copland v. the United Kingdom, 2007, § 44). The mere fact that such data may be obtained legitimately, for example from telephone bills, is no bar to finding an “interference”; the fact that the information has not been disclosed to third parties or used in disciplinary or other proceedings against the person concerned is likewise immaterial (ibid., § 43);
556. The Court has emphasised the importance of the relevant international instruments in this field, including the European Prison Rules (Nusret Kaya and Others v. Turkey, 2014, §§ 26-28 and 55).
(Directive (EU) 2018/1972 of the European Parliament and of the Council of 11 December 2018 establishing the European Electronic Communications Code)
Lawyers’ correspondence
614. Correspondence between a lawyer and his or her client, whatever its purpose, is protected under Article 8 of the Convention, such protection being enhanced as far as confidentiality is concerned (Michaud v. France, 2012, §§ 117-119). This is justified by the fact that lawyers are assigned afundamental role in a democratic society, that of defending litigants. The content of the documents intercepted is immaterial (Laurent v. France, 2018, § 47). Professional secrecy is “the basis of the relationship of confidence between lawyer and client” (ibid.) and any risk of impingement on it may have repercussions on the proper administration of justice, and hence on the rights guaranteed byArticle 6 of the Convention (Niemietz v. Germany, 1992, § 37; Wieser and Bicos Beteiligungen GmbHv. Austria, 2007, § 65). Indirectly but necessarily dependent on the principle of professional secrecy is the right of everyone to a fair trial, including the right of anyone "charged with a criminal offence” not to incriminate themselves (Michaud v. France, 2012, § 118). While lawyer-client communications may concern matters which have little or nothing to do with litigation, there is no reason to distinguish between them, since they all concern matters of a private and confidential character; as a result, even though the conversation accidentally intercepted between the applicant and his client, did not consist, strictly speaking, of legal advice, the applicant was still entitled to the strengthened protection of lawyer-client communications (Vasil Vasilev v. Bulgaria, 2021, § 90). See also as regards an exchange between the applicant’s lawyer and a third party (Falzarano v. Italy (dec.), 2021, §§ 5, 24, 32-34).
617. The term “correspondence” is construed broadly (see for instance, Klaus Müller v. Germany,2020, §§ 37-41 as concerns general business exchanges between a lawyer and the representatives of his law firm’s clients). It also covers lawyers’ written files (Niemietz v. Germany, 1992, §§ 32-33;Roemen and Schmit v. Luxembourg, 2003, § 65), computer hard drives (Petri Sallinen and Othersv. Finland, 2005, § 71), electronic data (Wieser and Bicos Beteiligungen GmbH v. Austria, 2007, §§ 66-68; Robathin v. Austria, 2012, § 39), USB keys (Kırdök and Others v. Turkey, 2019, § 32), computer files and email accounts (Vinci Construction and GTM Génie Civil et Services v. France, 2015, § 69) and a folded piece of paper on which a lawyer had written a message and handed it to his clients (Laurentv. France, 2018, § 36). It also concerns correspondence between an applicant and his lawyers contained in the applicant’s own device (Saber v. Norway, 2020, § 52; see also Versini-Campinchi and Crasnianski v. France, 2016).
625. In Särgava v. Estonia, 2021, the Court elaborated on the question of sifting and separating privileged and non-privileged files, on mirror-image copy of content, and on the search of the content on the basis of a keyword-based search (§§ 99-109). Against the background of a scarce legislative framework, the Court found that the practical relevance as a safeguard of the presence of the lawyerconcerned or another lawyer during the search – or even during the actual examination of the copied content of data carriers – had been of limited effect.
( 99. While the question of sifting and separating privileged and non-privileged files is undoubtedly important in the context of hard copy material, it becomes even more relevant in a situation where the privileged content is part of larger batches of digitally stored data. In such a situation, even if the lawyer concerned or his representative is present at the search site, it might prove difficult to distinguish swiftly during the search which exact electronic files are covered by legal professional privilege and which are not.
100. The question of how to carry out sufficiently targeted sifting is equally pertinent in circumstances where under domestic law or practice such sifting is not carried out at the site of the search, but the data carriers are instead seized in their entirety and/or a mirror-image copy of their content is made. In that regard, the Court is prepared to accept the Government’s argument that making a mirror-image copy can been seen as a procedural guarantee against any possible manipulation of the content of those data carriers (see Wolland, cited above, § 76; compare and contrast Iliya Stefanov v. Bulgaria, no. 65755/01, § 42, 22 May 2008, and Kolesnichenko v. Russia, no. 19856/04, § 43, 9 April 2009). Such a practice would, moreover, allow the authorities to return the seized data carriers relatively promptly to their owners and – should the owners be lawyers or law firms – avoid their work from being unduly inhibited for longer than is absolutely necessary.
101. The Court emphasises that the lawyer’s obligation under the domestic law (see paragraphs 41-43 above) to separate data carriers used in the provision of legal services and the obligation to use clearly marked catalogue structures for clients’ files – if properly followed – would contribute considerably to carrying out the sifting task.
102. The Court draws attention to the fact that in addition to safeguards addressing the seizure of data carriers and/or copying of their content as well as the sifting of digitally stored data, it is also important to prevent unwarranted and unrecorded access to the data carriers and/or processing of the data from the moment that it is seized until it is either returned or destroyed in due course.
103. Turning to the circumstances of the instant case, the Court observes that the domestic law does not seem to contain any specific procedure or safeguards to address the examination of electronic data carriers and prevent communication covered by legal professional privilege from being compromised. The Court considers that this lack of a practical procedural scheme and safeguards is, to a lesser or greater extent, also reflected in how, in the instant case, the search was authorised and how the subsequent copying of the seized data carriers and the examination of their content was carried out.
104. In the case of the applicant, the search warrant issued by the preliminary investigation judge made no provision for safeguarding the possible privileged material protected by professional secrecy (compare Kruglov and Others v. Russia, nos. 11264/04 and 15 others, §§ 128-29, 4 February 2020; Iliya Stefanov, cited above, § 41; and Smirnov v. Russia, no. 71362/01, § 46, 7 June 2007). This was the situation despite the fact that the State Prosecutor’s application for a search warrant had specifically included reference to the possibility that the applicant might be in possession of information related to his professional activities as a lawyer but that would not be of relevance in the context of the ongoing criminal proceedings (see paragraph 9 above).
105. Although the applicant was later assured that the search of the content of his laptop and mobile telephone would take place on the basis of keywords – and such a search was indeed carried out – this obligation did not seem to derive from domestic legislation. Accordingly, the keyword-based search was not envisaged in the State Prosecutor’s application for authorisation of a search, nor was such an obligation mentioned by the preliminary investigation judge in the search warrants (compare Sérvulo & Associados - Sociedade de Advogados, RL and Others v. Portugal, no. 27013/10, 3 September 2015).
106. Rather, it appears that the decision of whether to conduct a keyword-based search (or use any other method of sifting) as well as the choice of relevant keywords was left entirely up to the investigative authorities. At this juncture, the Court observes that some of the keywords used for the search (such as “financial year” or “credit line”) were notably broad in scope. The Court has already found above that the domestic law did not grant the applicant any right to be present during the keyword-based search (see paragraph 68 above).
107. In any event, it remains unclear from the domestic law how any potential disputes between the investigative authorities and the lawyer concerned over the keywords to be used or any other methods of filtering the electronic content would be resolved. Indeed, the domestic law does not seem to have any specific rules about the procedure to be followed in the event that either the lawyer or his representative objects to the seizure or content examination with reference to lawyer-client confidentiality (compare, for example, Robathin v. Austria, no. 30457/06, § 50, 3 July 2012; Wieser and Bicos Beteiligungen GmbH v. Austria, no. 74336/01, §§ 60 and 62, ECHR 2007‑IV; and André and Another, cited above, § 44). The Court notes that the domestic law provides for the possibility to lodge an appeal against investigative activities. However, it does not appear to follow from the domestic law that material in respect of which the applicability of legal professional privilege is disputed would not be made available to the investigative authorities before the domestic courts have had a chance to conduct a specific and detailed analysis of the matter, and – if necessary – order the return or destruction of seized data carriers and/or their copied content (compare Kırdök and Others v. Turkey, no. 14704/12, § 51, 3 December 2019; Vinci Construction and GTM Génie Civil et Services v. France, nos. 63629/10 and 60567/10, § 79, 2 April 2015).
108. Against the background of a scarce legislative framework, the Court finds that the practical relevance as a safeguard of the presence of the lawyer concerned or another lawyer during the search – or even during the actual examination of the copied content of data carriers – is of limited effect.
109. Although the domestic legislation lacked the appropriate procedural safeguards in order to protect data covered by legal professional privilege, the Court has no basis on which to decide whether or not lawyer-client confidentiality was actually compromised in the case at hand. In the Court’s view, however, the lack of procedural guarantees relating specifically to the protection of legal professional privilege already fell short of the requirements flowing from the criterion that the interference must be in accordance with the law within the meaning of Article 8 § 2 of the Convention (see Saber, cited above, § 57). Having drawn that conclusion, it is not necessary for the Court to review compliance with the other requirements under that provision.
110. In the light of the above, the Court finds that there has been a violation of Article 8 of the Convention.)
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