The European Court of Human Rights (ECtHR) is in the news again because of the struggle over whether our withdrawal from the European Convention on Human Rights (ECHR) will or will not be in the Tory manifesto for the upcoming general election.
So what better time to bring news of an ECtHR case involving a lawyer? Last week, the court decided Sommer v. Germany (application no. 73607/13).
Prof Dr Ulrich Sommer is a criminal lawyer from Cologne with, among other things, a speciality for bringing cases before the Strasbourg court. He was representing a client in a domestic matter regarding the use of illicit money. You can imagine his reaction when he found out from an investigation file relating to his client that the police were also investigating him (the lawyer). That is because the client’s fiancée had paid his fees for a previous case for the same client out of money that the police suspected was illicit. The police had gone straight to Dr Sommer’s bank and asked for information on a wide range of transactions in his professional account, and 53 of them were included in the investigation file as evidence, available also to lawyers of the co-accused in the case.
In effect, the public prosecutor and the police now had a complete picture of Dr Sommer’s professional activity, together with information about his clients – without telling him that they had obtained it. He found out by chance. The consequences for confidentiality of client information are obvious.
He tried to get the information back, but was told that it was not his but the bank’s. He complained through the court system in Germany as far as the Court of Appeal, but lost. The Federal Constitutional Court refused to admit his constitutional complaint, without providing reasons. His domestic remedies exhausted, he went to the Strasbourg court, complaining of a breach of Article 8 of the Convention (right to respect for private life) on the grounds that the German authorities had, without justification, collected, stored and made available information about his professional bank account, inevitably also revealing information about his clients. The German Federal Bar Association intervened on his behalf.
If you can’t bear the tension any longer: he won his case at Strasbourg, and was awarded 4,000 euros for non-pecuniary damage. There are lessons for us in the court’s finding that the inspection of Dr Sommer’s bank account was neither proportionate nor necessary in a democratic society.
It is not that the justification for the inspection, namely to prevent crime and to protect the rights and freedoms of others, as well as to protect the economic well-being of the country, was illegitimate. Rather, it was that the scope of the prosecuting authorities’ requests for information had been too wide, covering his whole bank account and limited only by time.
The shortcomings in the scope of the requests for information might have been offset had there been proper procedural safeguards in place. For instance, the Court has found in the past that the Convention does not prevent domestic law from allowing searches of a lawyer’s offices as long as proper safeguards are in place, such as the presence of a representative (or president) of the relevant bar. But there were no particular safeguards here. The inspection of the lawyer’s bank account was not even ordered by a judicial authority.
As for his ability to go to court to review the decision afterwards, this did not constitute an adequate safeguard, either, because, among other things, he had discovered the investigation by accident when he saw the file. The Court said that the effectiveness of subsequent judicial review is inextricably linked to the question of notification about the surveillance measures. You can’t go to court if you are not informed about the measures taken against you.
The Court has also made exceptions in the past if there was plausible evidence of the lawyer’s involvement in a crime. Here, the German authorities argued that the transfer of fees from the client’s fiancée to Dr Sommer, and the suspicion that money stemming from illegal activities had been transferred to the fiancée’s bank account before that, sufficiently substantiated a suspicion against the lawyer himself. But, on the basis of the information and documents provided by the parties, the Court dismissed the suspicion against Dr Sommer as rather vague and unspecific.
There were final points about the continuing storage of the data being an interference with private life under Article 8, and also a debate about whether the information had been given voluntarily by the bank (in theory yes, in practice no, since the bank was informed that non-compliance could result in the issue of a coercive summons for formal questioning).
So, all around it was a great victory for lawyers and lawyer-client confidentiality.