First Section: Case of Robathin V. Austria
First Section: Case of Robathin V. Austria
JUDGMENT
STRASBOURG
3 July 2012
FINAL
03/10/2012
This judgment has become final under Article 44 § 2 of the Convention. It may be
subject to editorial revision.
ROBATHIN v. AUSTRIA JUDGMENT 1
PROCEDURE
1. The case originated in an application (no. 30457/06) against the
Republic of Austria lodged with the Court under Article 34 of the
Convention for the Protection of Human Rights and Fundamental Freedoms
(“the Convention”) by an Austrian national, Mr Heinz Robathin (“the
applicant”), on 20 July 2006.
2. The applicant was represented by Mr R. Soyer, a lawyer practising in
Vienna. The Austrian Government (“the Government”) were represented by
their Agent, Ambassador H. Tichy, Head of the International Law
Department at the Federal Ministry for European and International Affairs.
3. The applicant alleged that the search and seizure of electronic data
from his law office had violated his rights under Article 8 of the
Convention.
4. On 5 September 2008 the application was communicated to the
Government. It was also decided to rule on the admissibility and merits of
the application at the same time (Article 29 § 1).
THE FACTS
in respect of the applicant and other persons. A lawyer could not rely on his
duty of professional secrecy and the attendant guarantees of Article 152 § 1
of the Code of Criminal Procedure when he himself was the suspect. In
sum, the examination of the seized files was necessary in order to
investigate the offences.
14. On 23 March 2006 the Vienna Bar Association contacted the
Procurator General, suggesting that he lodge a plea of nullity for the
preservation of the law (Nichtigkeitsbeschwerde zur Wahrung des Gesetzes)
in the applicant’s case. It submitted, in particular, that a search of a lawyer’s
business premises risked impinging on his duty of professional secrecy.
15. Pursuant to Article 139 of the Code of Criminal Procedure, the
investigating judge had to give reasons when issuing a search warrant and to
describe as clearly as possible which items were to be searched for and
seized. In the applicant’s case it was open to doubt whether the search
warrant had accurately described which items could be seized. Generally,
only a search for particular files likely to be related to the offence in issue
could be authorised. The same applied to searches of electronic data. A
practising lawyer was obliged by law to have at his disposal a computer
system fulfilling certain standards in order to communicate electronically
with the courts. In fact, most lawyers also had all their files in electronic
form. Standard software for law offices allowed full-text searches for any
name or word and thus made it easy to narrow the search of data. In the
present case such a search had returned results and thus the search warrant
did not extend to the seizure of all of the law office’s data.
16. For these reasons, the Bar Association argued that the seizure of all
the data and the Review Chamber’s decision to permit the examination
thereof had been excessive and therefore unlawful. The Review Chamber
had failed to give any specific reasons why an examination of the data
relating to Mr R. and Mr G. would not be sufficient. The applicant’s duty of
professional secrecy could only be lifted in relation to the suspicion against
him concerning two of his clients but not in respect of all his lawyer-client
relationships. Moreover, the partner in his law office was not under any
suspicion.
17. By a letter of 12 April 2006 the Procurator General informed the
Vienna Bar Association that he had not found any reason to lodge a plea of
nullity for the preservation of the law.
18. On 14 May 2009 the Vienna Regional Criminal Court convicted the
applicant of embezzlement but acquitted him of the other charges. The court
sentenced him to three years’ imprisonment, two of which were suspended
on probation. On 22 December 2009 the Supreme Court dismissed the
applicant’s and the public prosecutor’s pleas of nullity and on 10 March
2010 the Vienna Court of Appeal upheld the sentence. Subsequently, the
applicant obtained evidence which had not been available to him at the time
of the trial. He requested a reopening of the proceedings, which was granted
4 ROBATHIN v. AUSTRIA JUDGMENT
and led to the applicant’s acquittal by the Vienna Regional Criminal Court’s
judgment of 15 March 2011.
19. Articles 139 to 149 of the Code of Criminal Procedure in the version
in force at the material time concerned the search of premises and persons
and the seizure of objects.
20. Article 139 § 1 provided, in particular, that a search may be carried
out only if there is reasonable suspicion that a person suspected of having
committed an offence is hiding on the premises concerned, or that there are
objects on the premises the possession or examination of which is relevant
to a particular criminal investigation.
21. Pursuant to Article 140 §§ 1 and 2, a search should, in general, be
carried out only after the person concerned has been questioned, and only if
the person sought has not come forward of his or her own volition or the
object or objects sought have not been voluntarily produced and if the
reasons warranting the search were not eliminated during the questioning.
No such questioning is required where delay would be detrimental.
22. Article 140 § 3 stated that a search may, as a rule, only be carried out
on the basis of a reasoned search warrant issued by a judge.
23. Pursuant to Article 142 §§ 2 and 3, the occupant of the premises
subject to the search or, if he is unavailable, a relative of the occupant, must
be present during the search. A report is to be drawn up and signed by all
those present.
24. Article 143 § 1 of the Code of Criminal Procedure provided that, if
objects relevant to the investigation or subject to forfeiture or confiscation
are found, they are to be listed and taken to the court for safe keeping or
seized. It referred in this respect to Article 98, pursuant to which objects in
safe keeping must be put into an envelope to be sealed by the court, or have
a label attached so as to avoid any substitution or confusion.
Article 145 read as follows:
“1. When searching through documents, steps must be taken to ensure that their
content does not become known to unauthorised persons.
2. If the owner of the documents does not want to permit their being searched, they
shall be sealed and deposited with the court; the Review Chamber must determine
immediately whether they are to be examined or returned.”
25. According to the courts’ case-law, which is endorsed by the opinion
of academic writers (see Bertl/Vernier, Grundriss des österreichischen
ROBATHIN v. AUSTRIA JUDGMENT 5
THE LAW
30. The applicant complained that the search and seizure of all his
electronic data had violated his rights under 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.”
31. The Government contested that argument.
6 ROBATHIN v. AUSTRIA JUDGMENT
A. Admissibility
32. The Court notes that the application is not manifestly ill-founded
within the meaning of Article 35 § 3 (a) of the Convention. It further notes
that it is not inadmissible on any other grounds. It must therefore be
declared admissible.
B. Merits
with the relevant provisions of the Code of Criminal Procedure with a view
to securing the guarantees of Article 8 of the Convention.
37. As to the applicant’s claim that the examination of all his files had
been excessive and disproportionate, the Government argued that in order to
determine what was of relevance to the criminal proceedings, all the seized
data had had to be searched, as some relevant documents might not have
been detected by a comprehensive full-text search alone. A search of all
files – at least on a superficial level – had therefore been necessary. As a
result, the measure had served a legitimate aim and the applicant’s rights
had been interfered with to the least extent possible. Thus, the measure
could not be considered disproportionate. Furthermore, the search had not
had any impact on the proper administration of justice as regards the
relationship between the applicant and his other clients.
38. The Government contested the applicant’s argument that his
acquittal had to be taken into account when assessing whether the search
and seizure of electronic data had been justified. They pointed out that, at
the time when the search warrant was issued, there had been a reasonable
suspicion against the applicant. The fact that, following his conviction, new
evidence became available which led to the proceedings being reopened and
then to his acquittal could not change this assessment.
not contain specific provisions for the search and seizure of electronic data.
However, it contained detailed provisions for the seizure of objects and, in
addition, specific rules for the seizure of documents. It was established in
the domestic courts’ case-law that these provisions also applied to the
search and seizure of electronic data. Taking into consideration the criteria
of compatibility with the rule of law, accessibility of the domestic law, and
foreseeability of the consequences of the law, the Court accepts that the
search and seizure was in “accordance with the law”. In so far as the
applicant argues that the search warrant was too vague to be in accordance
with the law, the Court considers that his argument raises questions rather of
proportionality, which will be examined below.
42. The search and seizure also pursued a legitimate aim, namely the
prevention of crime.
43. It thus remains for the Court to ascertain whether the measure
complained of was “necessary in a democratic society”, in other words,
whether the relationship between the aim sought to be achieved and the
means employed can be considered proportionate.
44. In comparable cases, the Court has examined whether domestic law
and practice afforded adequate and effective safeguards against any abuse
and arbitrariness (see, for instance, Société Colas Est and Others, cited
above, § 48). Elements taken into consideration are, in particular, whether
the search was based on a warrant issued by a judge and based on
reasonable suspicion; whether the scope of the warrant was reasonably
limited; and – where the search of a lawyer’s office was concerned –
whether the search was carried out in the presence of an independent
observer in order to ensure that materials subject to professional secrecy
were not removed (see also Niemietz v. Germany, 16 December 1992, § 37,
Series A no. 251-B; Tamosius v. the United Kingdom (dec.), no. 62002/00,
ECHR 2002-VIII; and Wieser and Bicos Beteiligungen GmbH, cited above,
§ 57).
45. In the present case the search and seizure complained of were based
on a warrant issued by the investigating judge in the context of criminal
proceedings against the applicant on suspicion of aggravated theft,
aggravated fraud and embezzlement. He was suspected of having stolen
valuables and of having defrauded substantial amounts of money from
Mr. R. and Mr. G. The warrant gave details in respect of the alleged acts,
the time of their commission and the damage allegedly caused.
46. The Court disagrees with the applicant’s argument that his acquittal
showed the lack of a reasonable suspicion from the beginning. Rather, the
existence of reasonable suspicion is to be assessed at the time of issuing the
search warrant. In the circumstances described above, the Court is satisfied
that the search warrant was based on reasonable suspicion at that time. The
fact that the applicant was eventually acquitted years later cannot change
this assessment.
ROBATHIN v. AUSTRIA JUDGMENT 9
47. Turning to the question whether the scope of the warrant was
reasonably limited, the Court considers that the search warrant was couched
in very broad terms. While limiting the search and seizure of files to those
concerning R. and G., it authorised in a general and unlimited manner the
search and seizure of documents, personal computers and discs, savings
books, bank documents and deeds of gift and wills in favour of the
applicant. The Court will therefore examine whether deficiencies in the
limitation of the scope of the search and seizure warrant were offset by
sufficient procedural safeguards, capable of protecting the applicant against
any abuse or arbitrariness.
48. As the Court has already noted in the case of Wieser and Bicos
Beteiligungen GmbH (cited above, § 60) the Austrian Code of Criminal
Procedure provides the following procedural safeguards as regards the
search and seizure of documents and electronic data:
(a) The occupant of the premises shall be present;
(b) A report is to be drawn up at the end of the search and items seized
are to be listed;
(c) If the owner objects to the seizure of documents or data storage media
they are to be sealed and put before the judge for a decision as to whether or
not they are to be used for the investigation; and
(d) In addition, as far as the search of a lawyer’s office is concerned, the
presence of a representative of the Bar Association is required.
49. In the present case, the search was carried out in the presence of the
applicant, his defence counsel and a representative of the Vienna Bar
Association. While all of the applicant’s electronic data were copied to
discs, the police officers followed the proposal of the representative of the
Bar Association and copied all data containing the names “R.” and “G.” to a
separate disc. All the discs were sealed. A report was duly drawn up at the
end of the search, listing all the items seized.
50. The Court also notes that the applicant had a remedy against the
examination of the seized data at his disposal, namely a complaint to the
Review Chamber at the Regional Criminal Court. As the applicant opposed
the search of the data, it was for the Review Chamber to decide which data
could actually be examined. The Court has already noted above that the
search warrant in the present case was couched in very broad terms whereas
the description of the alleged criminal activities related exclusively to “R.”
and “G.” (see paragraph 9 above). Nevertheless all of the applicant’s
electronic data were copied to discs.
51. In these circumstances, the manner in which the Review Chamber
exercised its supervisory function is of particular importance. The Court
notes that the Review Chamber gave only very brief and rather general
reasons when authorising the search of all the electronic data from the
applicant’s law office. In particular, it did not address the question whether
it would be sufficient to search only those discs which contained data
10 ROBATHIN v. AUSTRIA JUDGMENT
relating to “R.” and “G.”. Nor did it give any specific reasons for its finding
that a search of all of the applicant’s data was necessary for the
investigation. Thus, the way in which the Review Chamber exercised its
supervision in the present case does not enable the Court to establish that
the search of all of the applicant’s electronic data was proportionate in the
circumstances.
52. However, the facts of the case show that the alleged criminal
activities, necessitating a search warrant, related solely to the relationship
between the applicant and “R.” and “G.” Thus, the Court finds that there
should be particular reasons to allow the search of all other data, having
regard to the specific circumstances prevailing in a law office. However, in
the present case, there were no such reasons either in the search warrant
itself or in any other document. In these circumstances, the Court finds that
the seizure and examination of all data went beyond what was necessary to
achieve the legitimate aim. It follows that there has been a violation of
Article 8 of the Convention.
A. Damage
58. The applicant also claimed EUR 22,849.36 for the costs and
expenses incurred before the domestic courts. This amount includes value-
added tax. As far as claims for costs and expenses incurred in the
ROBATHIN v. AUSTRIA JUDGMENT 11
C. Default interest
62. The Court considers it appropriate that the default interest rate
should be based on the marginal lending rate of the European Central Bank,
to which should be added three percentage points.
2. Holds by five votes to two that there has been a violation of Article 8 of
the Convention;
equal to the marginal lending rate of the European Central Bank during
the default period plus three percentage points;
N.A.V.
S.N.
ROBATHIN v. AUSTRIA – SEPARATE OPINION 13
DISSENTING OPINION
OF JUDGES KOVLER AND LORENZEN
In this case the majority found a violation of Article 8 because the
search and seizure went beyond what was necessary to achieve the
legitimate aim. For the following reasons we are unable to follow that
conclusion.
In this connection we attach great importance to the fact that all the
procedural safeguards provided for by Austrian law were complied with,
including that all the copied discs were sealed and could only be examined
under the control of the Review Chamber. The case differs in this respect
from the case of Wieser and Bicos Beteiligungen GmbH. Furthermore there
is no indication that the search and seizure of the applicant´s electronic
data risked encroaching on his duty to professional secrecy as a lawyer.