Judgement 24074/19 44839/19 9077/20

Applicant type Natural person (professional secrecy)
Number of applicants 3
Country Turkey
Application no. 24074/19 44839/19 9077/20 
Date 14/11/2023
Judges Arnfinn Bårdsen, President,
 Egidijus Kūris,
 Pauliine Koskelo,
 Saadet Yüksel,
 Lorraine Schembri Orland,
 Frédéric Krenc,
 Diana Sârcu,
Institution Court
Type Judgment
Outcome Art. 8 Violation
Reason No legal basis
Type of privacy Informational privacy
Keywords Lawyer-client priveledge; emergency
Facts of the caseThe applicants complained that the monitoring by an officer of their lawyers’ visits and the recording of those meetings by means of technical devices had contravened their right to confidential communication with their lawyers, in breach of their right to respect for their private life under Article 8 of the Convention. Relying on Article 13 of the Convention, they also complained of a lack of an effective domestic remedy in that respect.
AnalysisThe Court opts to deal with the case solely under Article 8 ECHR, as the claims under Article 13 ECHR are subsumed under that provision. The Court sets asside the government’s plea regarding the non-exhaustion of domestic remedies as well as the de minimis defence. Because the lawyer-client priveledge is the basis of the right to a fair trial, the Court holds that the secrecy of correspondency and the lawyer-client confidentiality may only be derogated from in exceptional cases and on condition that adequate and sufficient safeguards against abuse are in place. As a legal basis, the government points to an Emergency Legislative Degree. The Court refers to the quality of law doctrine and points to the lack of individualised grounds in the decisions to apply the impugned measures. There were not concrete time limits for the duration of measures involving the monitoring and recording of meetings with lawyers nor concrete conditions that had to be met in order for such measures to be terminated. There was no adequate review and the Court holds that the national courts failed to fulfil their obligation to ascertain whether the reasons put forward in the relevant decisions had justified the monitoring and recording of the applicants’ meetings with their lawyers contrary to the principle of client-lawyer confidentiality. Thus, it finds a violation of Article 8 ECHR, because the measures were not in accordance with the law.

Subsequently, it assessess whether Article 15 ECHR applies. But it quickly sets out that the flaws where so fundamental that the absence of any safeguards against arbitrariness and abuse cannot be regarded as having been justified by the emergency caused by the attempted coup in 2016.
Other Article violation? Article 15 ECHR does not apply
Damage awarded (a) that the respondent State is to pay the applicants, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:
(i) EUR 9,750 (nine thousand seven hundred fifty euros) to each of the applicants, plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 2,000 (two thousand euros) to the first applicant, EUR 4,942 (four thousand nine hundred and forty-two euros) to the second applicant, and EUR 2,184 (two thousand one hundred and eighty-four euros) to the third applicant, plus any tax that may be chargeable to the applicants, in respect of costs and expenses;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Documents Judgment