–ECtHR considers Legality of Search and Seizure of Lawyer’s Data–
On 23rd January 2025, the ECtHR ruled in the case of Reznik v. Ukraine. In terms of the facts, the applicant is a lawyer. They had a contract with a company, in relation to which they received certain documents. These documents were then returned to the company. The company in question was then the subject of an investigation. In the course of this investigation, the applicant’s residence was searched by the police for documents connected with the company, and certain of its partners. The search resulted in the seizure of a number of pieces of paper stamped with a corporate letterhead, which were otherwise blank, and certain digital storage devices. The applicant petitioned the local courts for the return or the materials. Whilst the courts facilitated the return of the sheets of paper, the application for the return of the digital storage media was rejected. This then only happened two years later. The applicant also petitioned the local courts regarding the legality of the search and seizure, in particular highlighting issues concerning its breadth, its justification, a whole range of procedural problems, and the lack of independent authority to ensure legality. In this regard, the applicant complained to the Court, under Articles 8 and 13 that ‘the search of his home and the seizure of material there had been unlawful and unjustified, and that there had been no effective remedies for him to have his grievances addressed at the domestic level’. With regard to Article 8 – the discussion of Article 13 will not be covered – the Court found a violation. The Court reiterated, in the first instance, familiar principles connected with search and seizure, and legal professionals – e.g. the necessity for the search to be conducted on a lawful basis, to be strictly limited to what I necessary, the significance of legal privilege and the corresponding necessity for a pressing need to justify the search, and the need for a variety of safeguards to be in place. The Court was quick to find an interference. With regards to the quality of law, the Court considered that ‘serious doubts…persist as to the quality of procedural safeguards for the protection of legal professional privilege in the context of search operations in general and, in particular, in the context of such operations affecting the electronic data carriers’. The Court nevertheless left the question of the whether the interference was in accordance with the law open, and moved to consider the necessity of the interference in a democratic society. Here, the Court found that ‘the disputed search operation was not accompanied, in practice, by sufficient procedural safeguards and could not be justified as “necessary in a democratic society”’. In particular, the Court highlighted a range of issues with the procedure, including: the lack of justification for the proposition that the applicant actually had any relevant documents; the very wide scope of documents for which the authorities could search; the lack of ability for members of the Bar Association to impact on the process of the search at the applicant’s residence; the lack of supervision or other safeguards connected with the search of the applicant’s data following their seizure; and the length of time materials were held by authorities.
-Updates from the EDPB-
In the past two weeks, the EDPB published the following significant documents:
- 20th January 2025: ‘Coordinated Enforcement Action, implementation of the right of access by controllers’;
- 17th January 2025: ‘Position Paper on Interplay between data protection and competition law’;
- 17th January 2025: ‘Guidelines 01/2025 on Pseudonymisation’;
- 18th December 2024: ‘Opinion 28/2024 on certain data protection aspects related to the processing of personal data in the context of AI Models’;
- 17th December 2024: ‘EDPB Reply to the open letter to the EDPB on the United Nations Convention against Cybercrime’.
-News on the Appointment of the new EDPS-
On 16th January, the EU Parliament announced that the Civil Liberties Committee had chosen Bruno Gencarelli as their pick to be the new EDPS – there were four candidates in total, including: Bruno Gencarelli; François Pellegrini; Wojciech Wiewiórowski; and Anna Pouliou. Prior to making their decision, the Committee had heard the positions of the candidates on a range of significant issues, including: ‘the interplay between security and fundamental rights, including data retention and law enforcement questions; prioritisation and consistency after the EDPS’s tasks have been expanded; and the impact of new technologies’. Moving forward, the decision will now need to be confirmed by the Conference of Presidents (the ‘EP President and the leaders of the political groups’) following which the ‘Parliament and the Council will proceed to jointly appoint the new European Data Protection Supervisor for a term of five years’.