NGOs under European Convention on Human Rights / Tymofeyeva

was declared admissible. Finding that there was an interference, which was prescribed by law and pursued a legitimate aim in the public interest of ensuring efficient inspection for tax assessment purposes, the Court assessed its ‘necessity in a democratic society’. The Court mentioned that there was no reason to call into doubt the Norwegian legislature’s view that the review of archives was a necessary means of ensuring efficient verification of information submitted to the tax authorities. It concluded that the tax authorities’ possibilities to act should not be limited by the fact that a taxpayer was using a ‘mixed archive’, even if that archive contained data belonging to other taxpayers. Moreover, there were adequate safeguards against abuse – namely, one of the applicant companies had been notified of the tax authorities’ intention to carry out a tax audit a year in advance. Additionally, the applicant companies were entitled to object to the measure and had done so. The backup copy of the server had been placed in a sealed envelope and deposited at the tax office pending a decision on their complaint. Further, under national law, the taxpayers had a right to be present when the seal was broken, and to receive a copy of the audit report and the return of irrelevant documents. In sum, the Court held that there had been no a breach of Article 8 of the Convention. Unlike in the above case, in the case of Wieser and Bicos Beteiligungen GmbH v. Austria , 725 the Court found a violation of the Convention in respect of both applicants. 726 Mr Gottfried Wieser, an Austrian national, and Bicos Beteiligungen GmbH, a limited liability company with its seat in Salzburg, lodged the application. The first applicant was a lawyer and the owner and general manager of the second applicant, a holding company. The second applicant was the sole owner of another company, Novamed. Both companies were based at the first applicant’s law office. Following a request for legal assistance from the Italian authorities in connection with a criminal investigation, a regional court issued a warrant to search the companies’ head offices. Having made a search, the authorities seized and sealed the documents belonging to the applicants. Relying on Article 8 of the Convention, the applicants complained of the search and seizure of electronic data. The Court employed its proportionality test in the present case and concluded that Article 8 was breached. 727 Let us have a look at the analysis made by the Court. It was clear that the seizure of electronic data constituted an interference with the applicants’ rights. Answering the question of whether the interference could be regarded as ‘in accordance with the law’, the Court observed that, although the Austrian Code of Criminal Procedure did not contain specific provisions for the search and seizure of electronic data, it did however contain detailed provisions for the seizure of objects and specific rules for the seizure of documents. An analysis of the Austrian practice showed that, according to the domestic courts’ practice, these provisions also applied to the search and seizure of electronic data. As to the 725 Wieser and Bicos Beteiligungen GmbH, cited above. 726 Professional secrecy of lawyers in Europe, Barreau de Bruxelles, New York : Cambridge University Press, 2013. 727 Rozhodnutí ESLP ve věci prohlídek v prostorách advokátních kanceláří (online). URL: accessed 20 July 2015.

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