PROCEDURE

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.

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.

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.

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

I. THE CIRCUMSTANCES OF THE CASE

The applicant was born in 1959 and lives in Vienna.

The applicant is a practising lawyer by profession. He runs his law office with a partner.

In 2005 criminal proceedings on suspicion of aggravated theft, aggravated fraud and embezzlement were opened against the applicant and a number of other persons by the Vienna Regional Criminal Court (Landesgericht für Strafsachen).

On 21 February 2006 the investigating judge issued a search warrant for the applicant’s premises. The warrant authorised the search and seizure of the following items: “Documents, personal computers and discs, savings books, bank documents, deeds of gift and wills in favour of Dr Heinz Robathin, and any files concerning R. [name of one person] and G. [name of another person].”

In its reasoning, the search warrant stated that the applicant was suspected firstly of having taken furniture, pictures and silver worth more than 50,000 euros (EUR) from Mr R. in December 2003 for personal enrichment; secondly, of having induced Mr G. to sign an agreement for a secured loan of EUR 150,000 in December 2004, which Mr G. then failed to receive; and thirdly, of having abused the power of attorney granted to him by Mr R. in order to make bank transfers, causing the latter financial damage of more than EUR 50,000 in September 2003.

The search of the applicant’s business premises was carried out by police officers of the Federal Ministry of the Interior on 21 February 2006. The applicant, his defence counsel and a representative of the Vienna Bar Association were present. The police officers proceeded to search the applicant’s computer system, copying all files to disc. The representative of the Vienna Bar Association opposed this as being disproportionate since it was technically possible, by using appropriate search criteria, to search for and copy only those files which corresponded to the criteria set out in the search warrant. Having contacted the investigating judge, the police officers insisted on copying all files. On the proposal of the representative of the Vienna Bar Association, the police officers copied all data returned by a search for the names “R.” and “G.” to one disc and all other data to separate discs. All the discs were sealed.

The report drawn up by the police officers lists the following seized items: (1) laptop, (2) CDs/DVDs of R./G. data, (3) CDs/DVDs of all Robathin law office data, and (4) copies of agendas.

All these items were handed over to the investigating judge. Because the applicant opposed the search of the data, the Review Chamber (Ratskammer), a panel of three judges, of the Vienna Regional Criminal Court was called upon to decide whether they were to be examined or returned pursuant to Article 145 § 2 of the Code of Criminal Procedure (Strafprozeßordnung).

On 3 March 2006 the Review Chamber authorised the examination of all the files. It repeated that there were grounds for suspecting the applicant of the offences described in the search warrant and noted that the data in issue had been seized in the context of the preliminary investigations 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.

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.

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.

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.

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.

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 and led to the applicant’s acquittal by the Vienna Regional Criminal Court’s judgment of 15 March 2011.
NOT_CONFIDENTIAL
check
001-111890_a8_e1
001-111890_a8_em1
CODE
DIRECT
30457/06
NOT_CONFIDENTIAL
correct
001-111890_a8_e2
001-111890_a8_em2
ORG
NO_MASK
Republic of Austria
NOT_CONFIDENTIAL
check
001-111890_a8_e3
001-111890_a8_em3
DEM
NO_MASK
Austrian
NOT_CONFIDENTIAL
check
001-111890_a8_e4
001-111890_a8_em4
PERSON
DIRECT
Mr Heinz Robathin
NOT_CONFIDENTIAL
check
001-111890_a8_e5
001-111890_a8_em5
DATETIME
QUASI
20 July 2006
NOT_CONFIDENTIAL
check
001-111890_a8_e6
001-111890_a8_em6
PERSON
QUASI
Mr R. Soyer
NOT_CONFIDENTIAL
check
001-111890_a8_e7
001-111890_a8_em7
DEM
QUASI
lawyer
NOT_CONFIDENTIAL
check
001-111890_a8_e8
001-111890_a8_em8
LOC
NO_MASK
Vienna
NOT_CONFIDENTIAL
check
001-111890_a8_e9
001-111890_a8_em9
ORG
NO_MASK
Austrian Government
NOT_CONFIDENTIAL
check
001-111890_a8_e10
001-111890_a8_em10
PERSON
QUASI
H. Tichy
NOT_CONFIDENTIAL
check
001-111890_a8_e11
001-111890_a8_em11
ORG
NO_MASK
International Law Department
NOT_CONFIDENTIAL
check
001-111890_a8_e12
001-111890_a8_em12
ORG
NO_MASK
Federal Ministry for European and International Affairs
NOT_CONFIDENTIAL
check
001-111890_a8_e13
001-111890_a8_em13
DATETIME
QUASI
1959
NOT_CONFIDENTIAL
check
001-111890_a8_e8
001-111890_a8_em14
LOC
QUASI
Vienna
NOT_CONFIDENTIAL
insert
001-111890_a8_e7
001-111890_a8_em15
DEM
QUASI
lawyer
NOT_CONFIDENTIAL
check
001-111890_a8_e14
001-111890_a8_em16
DATETIME
QUASI
2005
NOT_CONFIDENTIAL
insert
001-111890_a8_e15
001-111890_a8_em17
ORG
QUASI
Vienna Regional Criminal Court (Landesgericht für Strafsachen)
NOT_CONFIDENTIAL
check
001-111890_a8_e16
001-111890_a8_em18
DATETIME
QUASI
21 February 2006
NOT_CONFIDENTIAL
check
001-111890_a8_e17
001-111890_a8_em19
PERSON
QUASI
Dr Heinz Robathin
NOT_CONFIDENTIAL
correct
001-111890_a8_e18
001-111890_a8_em20
PERSON
QUASI
R.
NOT_CONFIDENTIAL
insert
001-111890_a8_e19
001-111890_a8_em21
PERSON
QUASI
G.
NOT_CONFIDENTIAL
insert
001-111890_a8_e20
001-111890_a8_em22
QUANTITY
QUASI
50,000 euros (EUR)
NOT_CONFIDENTIAL
check
001-111890_a8_e21
001-111890_a8_em23
PERSON
QUASI
Mr R.
NOT_CONFIDENTIAL
check
001-111890_a8_e22
001-111890_a8_em24
DATETIME
QUASI
December 2003
NOT_CONFIDENTIAL
insert
001-111890_a8_e23
001-111890_a8_em25
PERSON
QUASI
Mr G.
NOT_CONFIDENTIAL
insert
001-111890_a8_e24
001-111890_a8_em26
QUANTITY
QUASI
EUR 150,000
NOT_CONFIDENTIAL
check
001-111890_a8_e25
001-111890_a8_em27
DATETIME
QUASI
December 2004
NOT_CONFIDENTIAL
check
001-111890_a8_e23
001-111890_a8_em28
PERSON
QUASI
Mr G.
NOT_CONFIDENTIAL
check
001-111890_a8_e21
001-111890_a8_em29
PERSON
QUASI
Mr R.
NOT_CONFIDENTIAL
insert
001-111890_a8_e26
001-111890_a8_em30
QUANTITY
QUASI
EUR 50,000
NOT_CONFIDENTIAL
check
001-111890_a8_e27
001-111890_a8_em31
DATETIME
QUASI
September 2003
NOT_CONFIDENTIAL
check
001-111890_a8_e28
001-111890_a8_em32
ORG
NO_MASK
Federal Ministry of the Interior
NOT_CONFIDENTIAL
check
001-111890_a8_e16
001-111890_a8_em33
DATETIME
QUASI
21 February 2006
NOT_CONFIDENTIAL
check
001-111890_a8_e29
001-111890_a8_em34
ORG
QUASI
Vienna Bar Association
NOT_CONFIDENTIAL
check
001-111890_a8_e29
001-111890_a8_em35
ORG
QUASI
Vienna Bar Association
NOT_CONFIDENTIAL
check
001-111890_a8_e29
001-111890_a8_em36
ORG
QUASI
Vienna Bar Association
NOT_CONFIDENTIAL
check
001-111890_a8_e19
001-111890_a8_em37
PERSON
QUASI
G.
NOT_CONFIDENTIAL
correct
001-111890_a8_e30
001-111890_a8_em38
PERSON
QUASI
R./G.
NOT_CONFIDENTIAL
insert
001-111890_a8_e31
001-111890_a8_em39
ORG
QUASI
Robathin law office
NOT_CONFIDENTIAL
insert
001-111890_a8_e32
001-111890_a8_em40
ORG
NO_MASK
Review Chamber (Ratskammer)
NOT_CONFIDENTIAL
check
001-111890_a8_e33
001-111890_a8_em41
ORG
QUASI
Vienna Regional Criminal Court
NOT_CONFIDENTIAL
check
001-111890_a8_e34
001-111890_a8_em42
DATETIME
QUASI
3 March 2006
NOT_CONFIDENTIAL
check
001-111890_a8_e35
001-111890_a8_em43
ORG
NO_MASK
Review Chamber
NOT_CONFIDENTIAL
check
001-111890_a8_e7
001-111890_a8_em44
DEM
QUASI
lawyer
NOT_CONFIDENTIAL
check
001-111890_a8_e36
001-111890_a8_em45
DATETIME
QUASI
23 March 2006
NOT_CONFIDENTIAL
check
001-111890_a8_e29
001-111890_a8_em46
ORG
QUASI
Vienna Bar Association
NOT_CONFIDENTIAL
check
001-111890_a8_e7
001-111890_a8_em47
DEM
QUASI
lawyer
NOT_CONFIDENTIAL
check
001-111890_a8_e7
001-111890_a8_em48
DEM
QUASI
lawyer
NOT_CONFIDENTIAL
check
001-111890_a8_e37
001-111890_a8_em49
ORG
NO_MASK
Bar Association
NOT_CONFIDENTIAL
insert
001-111890_a8_e35
001-111890_a8_em50
ORG
NO_MASK
Review Chamber
NOT_CONFIDENTIAL
check
001-111890_a8_e35
001-111890_a8_em51
ORG
NO_MASK
Review Chamber
NOT_CONFIDENTIAL
check
001-111890_a8_e21
001-111890_a8_em52
PERSON
QUASI
Mr R.
NOT_CONFIDENTIAL
check
001-111890_a8_e23
001-111890_a8_em53
PERSON
QUASI
Mr G.
NOT_CONFIDENTIAL
check
001-111890_a8_e7
001-111890_a8_em54
DEM
QUASI
lawyer
NOT_CONFIDENTIAL
check
001-111890_a8_e38
001-111890_a8_em55
DATETIME
QUASI
12 April 2006
NOT_CONFIDENTIAL
check
001-111890_a8_e39
001-111890_a8_em56
ORG
NO_MASK
Procurator General
NOT_CONFIDENTIAL
check
001-111890_a8_e29
001-111890_a8_em57
ORG
QUASI
Vienna Bar Association
NOT_CONFIDENTIAL
check
001-111890_a8_e40
001-111890_a8_em58
DATETIME
QUASI
14 May 2009
NOT_CONFIDENTIAL
check
001-111890_a8_e33
001-111890_a8_em59
ORG
QUASI
Vienna Regional Criminal Court
NOT_CONFIDENTIAL
check
001-111890_a8_e41
001-111890_a8_em60
DATETIME
QUASI
three years
NOT_CONFIDENTIAL
check
001-111890_a8_e42
001-111890_a8_em61
DATETIME
QUASI
22 December 2009
NOT_CONFIDENTIAL
check
001-111890_a8_e43
001-111890_a8_em62
ORG
NO_MASK
Supreme Court
NOT_CONFIDENTIAL
check
001-111890_a8_e44
001-111890_a8_em63
DATETIME
QUASI
10 March 2010
NOT_CONFIDENTIAL
check
001-111890_a8_e45
001-111890_a8_em64
ORG
QUASI
Vienna Court of Appeal
NOT_CONFIDENTIAL
insert
001-111890_a8_e33
001-111890_a8_em65
ORG
QUASI
Vienna Regional Criminal Court
NOT_CONFIDENTIAL
check
001-111890_a8_e46
001-111890_a8_em66
DATETIME
QUASI
15 March 2011
Heinz Robathin
AUT
CHAMBER
Task: Annotate the document to anonymise the following person: Heinz Robathin