On 16 June 2016, the European Court of Human Rights (ECtHR) came to a unanimous decision in the case of Versini-Campinchi and Crasnianski v France. The case centred around conversations obtained via a phone-tap on a client’s phone, and the impact that their use would have on the applicants Article 8 rights (right to respect for private and family life). The court held unanimously that no violation of Article 8 had occurred.
A judicial investigation was being undertaken on a restaurant chain which was supplying meat in breach of the embargo on the importation of contaminated beef from the UK. The applicants were the lawyers defending the restaurant chain, whose client was the managing director and chairman. His phone was tapped upon instruction of the investigating judge and therefore all conversations between him and his lawyers were recorded. In subsequent disciplinary proceedings against the applicants, the Paris Bar Council used these phone transcripts as part of their evidence. The applicants challenged the legality of this on the grounds that it infringed their Article 8 privacy rights.
The ECtHR held that lawyer-client confidentiality is not absolute, and found that the conversation under investigation could be transcribed and used as evidence where the contents of that conversation could give rise to a presumption that the lawyer was participating in an offence. This served to justify the interference with the applicants’ privacy rights. The ECtHR also noted that it was foreseeable that the client’s phone could be tapped, and consequently that conversations between them may be monitored. It was further foreseeable that disclosing information covered by professional confidentiality would expose them to disciplinary proceedings before the Bar Council. Furthermore, the legal basis upon which the investigating judge authorised the phone tapping was the ‘prevention of disorder’, which could extend to the applicants in these circumstances.
It was held that “legal professional privilege… did not preclude the transcription of an exchange between a lawyer and his client in the context of lawful interception of the client’s telephone conversations where the contents of that exchange gave rise to a presumption that the lawyer himself was participating in an offence, and in so far as the transcription did not affect the client’s defence rights”. The crucial protection here is that the conversation in question did not affect the client’s defence rights. It was further held that the restrictive wording of this exception provided an adequate safeguard against abuse.
Essentially it was held that professional legal privilege is for the benefit of the client, not the lawyer and is not absolute. The fact that such a professional relationship existed here was not in itself enough to find a violation of Article 8. The ECtHR held that the interference in question was not disproportionate to the legitimate aim pursued (namely ‘prevention of disorder’), and could be regarded as ‘necessary in a democratic society’ – therefore there was no violation of Article 8.
For official press release from the court registrar, click here.