The European Court of Human Rights held unanimously in the case of Bersheda and Rybolovlev v. Monaco on Thursday that the conduct of a judge failed to effectively limit the scope of the investigation into a lawyer who was accused of secretly recording a conversation.

In 2016, Tetiana Bershedawas was charged with invasion of privacy regarding recording private conversations for the purpose of collecting evidence. In 2017, she handed over her mobile phone used for both private and professional purposes that contained the recording in question to the police and indicated where the recording was stored. The judge investigating the case authorized an expert to analyze her mobile phone without effectively limiting the scope of the probe. The analysis included not only the data stored on the phone but also the data deleted by Bersheda before handing it over.

Article 8 of the European Convention on Human Rights stipulates that everyone has the right to respect for private and family life and that there shall be no interference by a public authority with the exercise of this right except as necessary in a democratic society. Furthermore, the confidentiality of exchanges between lawyers and their clients and legal professional privilege are protected.

The court found that the investigating judge had not explicitly limited the scope of the investigated data, which could bring risks of abuse and arbitrariness, and had not implemented the procedural framework to protect the applicant’s professional privilege as a lawyer. Therefore, the court concluded that the interference with the applicant’s right had not been proportionate to the legitimate aims pursued and had not been necessary in a democratic society, thereby violating Article 8 of the European Convention on Human Rights.