EIT: Todisteeksi annetun asianajajan matkapuhelimen täydellinen tutkiminen loukkasi yksityiselämän suojaa

Extraction and use by investigating judge of personal data from lawyer’s mobile phone, overstepping of judge’s remit, failure to apply procedural safeguards in respect of lawyers and their professional privilege, inadequate judicial scrutiny: violation of Article 8

Chamber judgment in the case of Bersheda and Rybolovlev v. Monaco (application nos. 36559/19 and 36570/19)

The European Court of Human Rights held, unanimously, as follows: With regard to Mr Rybolovlev’s application, it considered that the messages and conversations extracted in the context of the court-appointed expert’s assignment did not concern his personal data and correspondence or his exchanges with T.B., whether in a private context or that of the lawyer-client relationship. Consequently, it found that he could not claim to be a victim within the meaning of Article 34 of the Convention. His application was therefore declared inadmissible.
With regard to Ms Bersheda’s application, it was admissible and there had been, in respect of that applicant:

• a violation of Article 8 (right to respect for private life) of the European Convention on Human Rights.

The case concerned the conduct of a judicial investigation directed by a French judge seconded to the Monegasque courts.

The Court took the view that the investigations undertaken by the investigating judge involving a lawyer’s mobile phone and the massive, indiscriminate recovery of personal data – including those that had previously been erased by the applicant – had exceeded that judge’s remit,  hich had been confined to accusations of invasion of privacy, and had not been accompanied by safeguards to ensure due respect for the applicant’s status and professional privilege as a lawyer.

The applicant, Tetiana Bersheda, is a Swiss and Ukrainian national who was born in 1984 and lives in London; Mr Dmitriy Rybolovlev is a Russian national who was born in 1966 and lives in Monaco. A judicial investigation into infringements of privacy was entrusted to E.L., a French judge seconded to the Monegasque judiciary.

Ms Bersheda, a lawyer registered with a Swiss bar who had Mr Rybolovlev as a regular client, was charged with having secretly recorded a conversation of just under ten minutes with T.R. during a private meal on 23 February 2015. In the context of her defence, Ms Bersheda handed over her mobile phone to the police to allow the offending recording to be examined and to prove her good faith. The investigating judge, whose remit did not go beyond the investigation of a specific set of facts – by verifying whether the recording was authentic and examining the content of the conversation in  the light of Monegasque criminal law – nevertheless decided to commission a vast telecommunications report from a court-appointed expert, with no real limits as to dates or scope of inquiry, thereby authorising a “fishing expedition” that clearly exceeded the judge’s remit.

The expert’s assignment, which was to identify all calls, text exchanges or emails even “indirectly” related to the ongoing case, thus led to the recovery from Ms Bersheda’s mobile phone of tens of thousands of text messages, MMSs, iMessages and emails, plus telephone calls, covering a period of over three years.

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