CASE OF WOLLAND v. NORWAY
No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for correspondence;Respect for home;Respect for private life)
André Potocki;Angelika Nußberger;Erik Møse;Mārtiņš Mits;Síofra O’Leary;Gabriele Kucsko-Stadlmayer
5. The applicant, Mr Steingrim Wolland, was born in 1961 and lives in Oslo, Norway. He ran a law firm in his own name in Oslo until his licence to practice was suspended as a result of the opening of bankruptcy proceedings against him personally in April 2009. 6. On 9 March 2010, the prosecuting authority (Økokrim – The National Authority for Investigation and Prosecution of Economic and Environmental Crime) issued charges (siktelse) against the applicant for aiding and abetting fraud in connection with art sales (kunstbedrageri), an application for a bank loan (lånebedrageri), and forgery of documents in connection with the latter. 7. On 10 March 2010 the Oslo City Court (tingrett), finding that there were reasonable grounds for suspicion (skjellig grunn til mistanke) in respect of the charges, decided at the request of the prosecuting authority to authorise that a search be carried out at the applicant’s premises, including his office. The applicant did not lodge an appeal against the City Court’s decision. 8. On 23 March 2010 the police were at the applicant’s premises – his home and office. In accordance with Article 205 § 3 of the Code of Criminal Procedure (see paragraph 37 below) a third party – a lawyer acquaintance of the applicant – was present. As there was a presumption that some material would be covered by the applicant’s statutory legal professional privilege as a lawyer, and therefore be exempt from seizure pursuant to Article 204 § 1 (ibid.), documents were put in sealed bags instead of being searched for evidence by the police. The police also collected a hard disk and a laptop. The third party had no objections as to how the police had proceeded. 9. Mirror copies (speilkopier) of the hard disk and laptop were taken; the hard disk and laptop were returned to the applicant two days later. 10. On 3 May 2010, at the prosecuting authority’s office, the applicant went through the paper documents that had been collected and sorted out those which he considered to be covered by legal professional privilege. This material was stored separately and placed under seal. 11. On 5 January 2011 the prosecuting authority applied to the City Court to examine the paper material that had been collected at the applicant’s premises and to have those documents that could lawfully be seized made available to it for search. As to the mirror copies, the prosecuting authority proposed that the City Court authorise a staff member at Økokrim’s computer department to acquaint him or herself with the material. The prosecution authority would thereafter return to the City Court with an application for a decision on whether specific documents would be exempt from seizure owing to legal professional privilege. The City Court accepted this procedure (see, however, paragraph 31 below). Subsequently, the prosecuting authority, upon discussions with the applicant as to which keywords (søkeord) should be used when looking for documents on the mirror copies, made keyword-searches which gave results in 2,309 files. 12. By a letter of 16 February 2011 the applicant’s lawyer disputed the lawfulness of what he categorised as the “seizure” (“beslag”), arguing that there had been no reasonable grounds for suspicion against the applicant and requested that the City Court quash the “seizure” decision and order that the collected material be returned to him. 13. On 6 May 2011 the prosecuting authority submitted the 2,309 files from the mirror copies to the City Court for examination. 14. In response to the letter from the applicant’s lawyer of 16 February 2011 (see paragraph 12 above), the City Court wrote a letter of 11 May 2011, pointing out that the procedure applicable to material allegedly covered by legal professional privilege had been set out by the Supreme Court (Høyesterett) in its decision of 3 March 2011, reported in Norsk Retstidende (Rt.) 2011 page 296 (see paragraphs 38-39 below). In line with that procedure, there were no grounds on which the City Court could at that time hold a court hearing devoted to the discontinuation of any “seizure” and return of the material. No seizure had been decided – the court was at the time carrying out the task of reviewing the material collected in order to decide on what should be made available to the prosecuting authority for it to search. The City Court would obtain the views of the parties in a hearing before making a formal decision as to whether to authorise the search of the prosecution. Its decision would be amenable to appeal. Since the handling of the case so far had taken considerable time, the City Court’s examination would be expedited. 15. The applicant and his lawyer disagreed with the City Court’s description of the procedure to be followed. After further exchanges between the parties, the City Court reiterated in a letter of 22 July 2011 – which was formally a judicial decision amenable to appeal (see paragraphs 16-24 below) – that a decision on seizure had not yet been taken. There was a presumption to the effect that documents and other materials in the office of a private lawyer were subject to legal professional privilege. In such cases the court would first go through the material in order to examine what could be made available to the prosecuting authority for it to search. The City Court also informed the parties that it was about to complete this task, having examined each document. It also reiterated its disagreement with the applicant’s view that before carrying out its perusal of the material it ought to consider anew whether there were reasonable grounds for suspicion against him, failing which its examination of the material would be unlawful, and that in the absence of such grounds it ought to return all the material to him with the seals intact. 16. On 19 August 2011 the applicant appealed against the City Court’s decision of 22 July 2011 not to examine the merits of his request to quash what was in his view a “seizure”, and to return the material. 17. On 9 November 2011 the Borgarting High Court (lagmannsrett) dismissed the appeal. 18. The High Court, as had the City Court, reiterated that the relevant procedure for the search and seizure of material allegedly subject to legal professional privilege had been thoroughly examined by the Supreme Court in Rt. 2011 page 296 (see paragraphs 14 above and 38-39 below). The City Court was at the time in the process of sorting out which documents could be lawfully searched by the prosecuting authority, and there had been no decisions on seizure taken. 19. From the above it was apparent, in the High Court’s view, that the applicant was not at that stage of the procedure entitled to have the question of whether to maintain the “seizure” in force (spørsmålet om opprettholdelse av beslaget) under Article 208 reviewed (see paragraph 37 below), and it could not see how him disputing the existence of reasonable grounds for suspicion in his case could lead to a different result. The Supreme Court’s decision contained no statements suggesting that the procedure should be different in such cases. Nor could the High Court find that there were other grounds, even if regard were had to Articles 6, 8, 10 and 13 of the Convention, as invoked by the applicant, suggesting that the accused had a wider right to judicial review in cases where he or she disputed the grounds for suspicion. 20. The High Court also noted that the Code of Criminal Procedure contained several provisions conferring on the accused a right to judicial review in respect of enforcement measures taken in the form of search and seizure, inter alia could a decision by a court to the effect that documents were to be handed over to the prosecution authorities after perusal of the documents in accordance with Article 204 (see paragraph 37 below) – which was what the City Court was doing at the time – be appealed against. The High Court considered that the Convention did not give the applicant any rights to have the legality of searches and seizures judicially reviewed beyond what followed from the Code of Criminal Procedure. The search had been authorised by the City Court on 10 March 2010, finding that there were reasonable grounds for suspicion against the applicant. The applicant had not filed any timely appeals against the decision and the search had been effectuated. 21. From the reasoning above it also followed that the applicant’s alternative submission that he ought to have a right to judicial review of whether there was a legal basis for an “ongoing search” (om det er grunnlag for en “pågående ransaking”) could not succeed. 22. It was also clear that the accused did not on a general basis have a right to judicial review of the reasons for the charges brought against him, whether there were reasonable grounds for suspicion or not, regardless of the use of any enforcement measures. The existence of such reasons could be examined again but then only in connection with, for instance, future investigative measures where the latter were required. The Convention provisions relied on could not lead to any different result. 23. Against this background, the High Court concluded that the City Court’s procedure had suffered from no defects. Its decision of 22 July 2011 had been based on a correct approach to the handling of the material gathered at the applicant’s premises. 24. On 20 December 2011 the Appeals Leave Committee of the Supreme Court (Høyesteretts ankeutvalg), whose jurisdiction was limited to reviewing the High Court’s procedure and interpretation of the law, rejected the applicant’s appeal in both respects. 25. On 25 January 2012 the City Court held a hearing (see paragraph 14 above) on the issue of which materials could be sent to the prosecuting authority for it to search. In the court records it was registered that the court had informed the parties that it was desirable if a decision could be reached as soon as possible and preferably within a month. In a decision of 11 May 2012, it ruled that 1,264 documents collected from the data carriers could be handed over. The applicant accepted the decision with respect to 858 of the documents, but appealed in respect of the remaining 406 and some of the paper documents. The prosecuting authority also appealed. 26. On 4 September 2012 the High Court dismissed the prosecuting authority’s appeal and rejected the applicant’s appeal except for one issue relating to a bank account transcript. 27. On 26 October 2012 the Supreme Court quashed the High Court’s decision in so far as it had rejected the applicant’s appeal (Rt. 2012 page 1639). It found, in essence, that the High Court had applied a too narrow understanding of what was lawyer’s work (egentlig advokatvirksomhet) that could bring legal professional privilege into play. 28. During its reconsideration of the case, the High Court, on 8 January 2013, concluded that thirty-six of the disputed 406 documents could be submitted to the prosecuting authority for it to search. On 22 May 2013 the Supreme Court rejected an appeal by the applicant against the High Court’s decision. 29. On 11 June 2012 the applicant applied to have some of the material, including the mirror copies, returned to him. The City Court, on 18 September 2012, refused his application in so far as it concerned the mirror copies, but granted the other parts thereof. 30. The applicant appealed against the decision to the High Court, which on 8 January 2013 ordered that the mirror copies were to be returned to the applicant unless the prosecuting authority promptly (relativt omgående) requested that the City Court examine them. It referred, inter alia, to the general obligation to ensure progress in investigations, as reflected in Article 226 of the Code of Criminal Procedure (see paragraph 37 below). 31. Upon an appeal by the prosecuting authority, the Supreme Court, on 27 June 2013 (Rt. 2013 page 968) agreed with the High Court that the prosecuting authority’s continued possession of and searches on the mirror copies (see paragraph 11 above) had been unlawful. The mirror copies should, like the paper documents, have been placed under seal and transferred to the City Court without the prosecution authority having accessed material on them through keyword-searches. Unlike the High Court, however, the Supreme Court did not for that reason find that the copies should necessarily be returned to the applicant. It quashed the High Court’s decision in order for that court to further assess the prosecuting authority’s submissions that the copies should instead be kept with the City Court, as the High Court had not sufficiently considered that possibility. 32. The prosecuting authority transferred the mirror copies to the City Court on 2 September 2013. 33. When, on 20 May 2014, the High Court contacted the prosecuting authority, its decision concerning the mirror copies having been quashed by the Supreme Court (see paragraph 31 above), the authority responded by informing the High Court of the developments in the criminal case against the applicant (see paragraph 35 below). It moreover stated that the seizure had been lifted on 28 May 2014 and requested that the case therefore be dismissed. The material could be deleted by the court or the data carrier could be handed over to the applicant. The applicant argued that the case should not be dismissed and requested that the High Court examine the merits of his application to have the mirror copies returned, in order for him to have a judicial review of whether his Convention rights had been violated. 34. In a letter of 25 June 2014 the High Court set out its views on the matter. It stated, inter alia, that the case concerned the applicant’s application to have the mirror copies returned. This request would be met if the copies were actually returned, which was what the prosecuting authority had proposed. This made it difficult to see why the applicant should have legal standing to require that the courts examine his application. Moreover, the court assumed that the applicant could obtain a review of his Convention claims in other ways. The case as concerned the mirror copies was ultimately dismissed on 22 August 2014. There is no information about the applicant having appealed against this decision. 35. On 10 January 2013 the City Court acquitted the applicant of having obtained credit by way of fraud (lånebedrageri) (see paragraph 6 above). On 12 June 2013 the High Court convicted him for having shown gross negligence in that respect. This judgment became final when the Supreme Court’s Appeal Committee refused leave to appeal on 18 October 2013. The charges concerning forgery of documents (ibid.) were dropped on 11 February 2013. Some of the charges concerning aiding and abetting art fraud (kunstbedrageri) (ibid.) were dropped on 16 February 2011 and the remainder on 21 August 2013.