Judgment 19162/19

Applicant typeLegal person
Number of applicants 1
Application no. 19162/19
Date 04/04/2023
Judges Arnfinn Bårdsen, President,
 Jovan Ilievski,
 Egidijus Kūris,
 Saadet Yüksel,
 Lorraine Schembri Orland,
 Diana Sârcu,
 Davor Derenčinović
Institution Court
Type Judgment
Outcome Art. 8 Violation
Reason Not necessary ( “the economic well-being of the country” and “the prevention of crime”)
Type of privacy Locational privacy; informational privacy; procedural privacy
Keywords Search and seizure; no adequate review
Facts of the case The applicant company complained that an inspection of its registered office by the Competition Council had been carried out in an unlawful and disproportionate manner and had not been subjected to any subsequent judicial review. It relied on Article 6 § 1, Article 8 and Article 13 of the Convention.
Analysis The applicant complained about the manner in which the inspection had been carried out and the absence of a subsequent judicial review. The Court considers that Article 8 cannot be interpreted as requiring an ex post facto judicial review in all cases concerning a search or seizure carried out in the premises of a commercial company. However, the availability of such a review may be taken into account, among other elements, when assessing the compliance of searches and seizures with Article 8. Te Court notes that a number of safeguards were provided in domestic law with regard to how an inspection of a company’s registered office had to be authorised and conducted. The authorities had seized or copied a large number of physical and electronic documents, including the entire mailboxes of five of the applicant company’s employees. The Court reiterates that the large amount of the information seized was a factor militating in favour of strict scrutiny. Moreover, the applicant company raised various allegations regarding the restrictions of the rights of its employees during the inspection, including the allegations that they had not been informed of their rights and obligations in writing, that their ability to contact lawyers or make any phone calls had been limited, and that the Competition Council’s officials had not respected their right to consult lawyers in private. The Competition Council did not deny the facts as described by the applicant company, but argued that those restrictions had been lawful and justified. The Court observes that the availability of a subsequent judicial review could have been a means of ensuring that the safeguards provided in domestic law were complied with and consequently effective in practice.In the light of the foregoing, the Court finds that, in the circumstances of the present case, the absence of an ex post facto judicial review of the manner in which the Competition Council’s officials carried out the inspection of the applicant company’s office meant that there were no adequate and effective safeguards against abuse and arbitrariness. Consequently, the interference with its right to respect for its home and correspondence could not be considered proportionate to the aim pursued or necessary in a democratic society, as required by Article 8 of the Convention.

It is interesting that the Court finds this to be aviolation of the necessity requirement, and not of the quality of law criterion.
Other Article violation? No violation 6 and 13 ECHR
Damage awarded Holds
(a) that the respondent State is to pay the applicant company, within three months from the date on which the judgment becomes final, in accordance with Article 44 § 2 of the Convention, EUR 26,577 (twenty-six thousand five hundred seventy-seven euros), plus any tax that may be chargeable to the applicant company, 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 amount at a rate equal to the marginal lending rate of the European Central Bank during the default period, plus three percentage points;
Documents Judgment