Attorney-client privilege and data privacy on the docket for the ECHR

The Strasbourg-based European Court of Human Rights (ECHR) has become a vital safeguard for the rule of law, issuing any number of landmark judgments since its founding in 1950. The court has at times buckled under the sheer number of applications it has received; though reforms implemented in recent years have helped the Strasbourg court better manage its workload, it still must be highly selective about the cases it takes on, focusing on issues of particular gravity or Europe-wide importance.

One of the latest cases which the ECHR has agreed to hear is set to shine an international spotlight on difficult questions concerning the right to private cell phone communications and the extent of attorney-client privilege. Recently, the ECHR informed Monaco’s justice ministry that it has agreed to take on a case brought by Russian billionaire Dmitry Rybolovlev and his lawyer, Tatiana Bersheda.

Over roughly the next year and a half, the average time that the ECHR takes to examine a case, the Strasbourg court will assess whether or not Monaco violated article 8 of the European Convention on Human Rights, which protects the right to personal correspondence and offers particular protection to exchanges between lawyers and their clients. Specifically, the ECHR will need to determine whether Édouard Levrault, a French investigative judge who was attached to Monaco until September 2019, went beyond his remit when seeking to obtain deleted data from Tatiana Bersheda’s phone.

The events at the heart of the case now before the Strasbourg court began on 23 February 2015, when Rybolovlev had Bersheda over at his Monaco apartment for dinner, along with Tania Rappo, the wife of Rybolovlev’s dentist and one of his long-time acquaintances. Most notably, Rappo had introduced Rybolovlev to the Swiss art dealer Yves Bouvier; over a twelve-year period, Bouvier helped Rybolovlev build his world-class art collection

According to Rybolovlev, he had believed that Bouvier was acting as his agent and, as per their agreement, was taking a 2% commission on the 38 works the Swiss helped him buy. By the February 2015 dinner, the billionaire had realised that not only was Bouvier reselling him the artworks at enormous markups, in some cases pocketing as much as 45 million Swiss francs of profit on a single painting, but that the Swiss dealer was paying substantial commissions to Rappo, as well. (Bouvier has admitted to tacking substantial markups onto the paintings he sold Rybolovlev, but maintains that this was a legitimate commercial strategy).

At the February 2015 dinner, Tatiana Bersheda used her mobile phone to record a ten-minute segment of Tania Rappo’s conversation, a transcript of which she then submitted to Monaco authorities who were investigating whether Bouvier had defrauded Rybolovlev by overcharging him for the paintings. After Rappo’s lawyers suggested that Bersheda had truncated the recording, Bersheda offered to let the authorities charged with investigating the case examine her iPhone to confirm that the recording had not been edited.

This examination, overseen by investigating judge Édouard Levrault, is at the heart of the case which the EHCR has now taken on. As a precaution, Bersheda had wiped her phone clean before handing it over to the authorities, leaving the recording of the February 2015 dinner as the only visible data on the device. Levrault verified that the recording had not been cut short, but he also took the initiative to search through Bersheda’s phone for seemingly unrelated files. The investigating judge brought in IT experts, who uncovered a huge amount of data—records of 363 calls, 153 audio messages and more than 20,000 texts and iMessages—all of which Bersheda believed had been deleted off her phone. Much of this data concerned Bersheda’s legal work for her client Rybolovlev.

This recovered data gave Levrault a detailed picture of the relationship between Rybolovlev, Bersheda and Monegasque authorities. For example, Bersheda had invited some policemen to have lunch with her, and had given others gifts such as a Russian samovar and courtesy passes for AS Monaco matches (Rybolovlev owns the football club).

Levrault opened up a corruption probe, but Rybolovlev’s lawyers maintain that the case is thoroughly tainted by the investigating judge’s apparent overreach in rifling through the deleted data on Bersheda’s mobile. “I’ve said it from the very beginning”, Rybolovlev’s lawyer Hervé Temime recently argued. “The investigating judge did not have the right to search through Mrs. Bersheda’s phone in order to recover the text messages. There was an irreversible breach of professional secrecy. The entire procedure is flawed”.

This question of whether Levrault’s broad search of Bersheda’s phone not only violated professional norms, but also infringed upon hers and Rybolovlev’s human rights by contravening their right to private communications and the confidentiality of their attorney-client relationship, will be central to the ECHR’s deliberations.

The Strasbourg court has previously interpreted the right to private and family life quite broadly and imposed restrictions on the collection of private electronic communications, in particular communications subject to attorney-client privilege. In R.E. v. the United Kingdom (2015), for example, the ECHR found that covert surveillance of prisoners’ phone conversations with their lawyers constituted a violation of article 8 of the ECHR and that stringent safeguards must be in place to protect lawyer-client communications. Privacy campaigners will undoubtedly be keeping a close eye on the Rybolovlev/Bersheda case to see if the ECHR calls for greater protections on private electronic communications, in particular those subject to attorney-client privilege.

This article does not necessarily reflect the opinions of the editors or the management of EconoTimes