The European Court of Human Rights condemns the uncontrolled and secret exploitation of bank data of a german criminal attorney.

Mr Sommer is a German attorney specialized in criminal cases. In 2009 his client was convicted. The convicted person’s fiancée paid the fees through her account.

Not much later the public prosecutor’s office (PPO) started a new investigation in which the abovementioned client was considered a suspect. He is defended again by Mr Sommer. During the investigation a transfer of 7.400 EURO was discovered to the bank account of the fiancée. The origin of this money was suspected to be illegal. In the subsequent investigation into the account of the fiancée the payment of the fees to Mr Sommer was noticed. Upon this, the PPO secretly contacted Mr Sommer’s bank requesting the entire (!) bank account history from Jan 1 2009 to March 1 2011. From these data, the enquirers selected 53 relevant transactions which were included as proof in the penal file, including the names of the clients and the paid amounts to Mr Sommer. On Jan 31 2012 Mr Sommer was finally granted perusal of the criminal file of his client and discovered – most probably to his astonishment – the measures of investigation regarding his own bank account. He asked for immediate destruction of all data and requested that the collected bank data would be handed over to him. The PPO as well as the court refused. Mr Sommer persisted and finally filed a complaint with the European Court of Human Rights (ECHR).

In practice the ECHR determined that the bank enquiry about Mr Sommers professional account was an intervention in his private life. The right of having one’s private life respected, is however not absolute, which means that under certain circumstances an intervention can be authorized. The ECHR therefore checks if the intervention in the private life is founded on a legal basis with a legitimate purpose and, if so, if the intervention is necessary and proportional.

The court judged that the legal basis is very generally stated while it is essential for a secret information gathering that the legislator sets detailed rules. In short, a law with an abovementioned purpose must include enough guarantees so that the data of the person concerned cannot become subject to abuse or arbitrariness.

Then the court checks on the necessity of the measure. The court repeats first that every intervention in someone’s private life requires sufficiently adapted guarantees so that any form of abuse is made impossible. Thus, the relationship of trust between a client and his attorney for example, requires special protection with specifically adapted procedural guarantees.

The PPO’s measure with respect to all transactions on Mr Sommer’s bank account was very general. Moreover, the selected information was included in the criminal file. The risk of abuse or arbitrariness could, according to the ECHR, have been mitigated by efficient procedural guarantees, but the court determines that the threshold for the implemented measure is relatively low and that no additional procedural guarantees are provided. The investigation and the presumptions which led to the demand of the attorney’s bank data were not founded on a concrete and specific cause. The court also comments that a judicial intervention was not yet engaged and that there was no procedural guarantee protecting the professional secrecy and the relationship of trust between the client and his attorney.

In criminal investigations where sensitive information protected by the professional secrecy, is secretly requested, the ECHR requires an effective judicial control. This requires in other terms that the person concerned is informed in advance of the measure so he can have the lawfulness checked by a judicial institution in time. The ECHR thus concludes that art. 8 of the ECHR was violated, as the intervention in the private life was not necessary and thus not proportional.

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