(July 13, 2016) On June 16, 2016, the European Court of Human Rights (ECHR) issued a judgment validating the interception, transcription, and use by the French government of a wiretapped conversation between an attorney and her client. (Affaire Versini-Campinchi et Crasnianski c. France (Judgment), Application No. 49176/11 (June 16, 2016) (Judgment), HUDOC.)
This case originated in the early 2000’s, when a judicial investigation was initiated against a supplier subsidiary of Buffalo Grill, a French chain of steakhouse-style restaurants. The subsidiary, and by extension the chain, were suspected of breaching an embargo on the importation of beef from the United Kingdom. (Press Release, ECHR, No Violation of the Convention on Account of Transcription of Telephone Conversation Between a Lawyer and Her Client Giving Rise to the Presumption That the Lawyer Had Participated in an Offence (June 16, 2016), HUDOC (click on link to select English or French version).)
British beef was under embargo at the time because the country had been affected by a major outbreak of bovine spongiform encephalopathy, commonly known as “mad cow disease.” (Id.) The telephone line of Christian Picart, chairman of Buffalo Grill’s supervisory board and managing director of the subsidiary under investigation, was wiretapped under the instructions of the investigative judge in charge of the case. (Judgment, supra.)
Jean-Pierre Versini-Campinchi and Tania Crasnianski were attorneys for Picart, and telephone conversations between them and Picart were recorded in December 2002 and January 2003. (Id.) In the course of these telephone conversations, Crasnianski, acting under the instructions of Versini-Campinchi, shared information on the related cases of three other defendants that they were also representing. This constituted a breach of attorney-client confidentiality as defined by the Code of Criminal Procedure, and the prosecutor’s office informed the Paris Bar Association. (Code de procédure pénale (Code of Criminal Procedure) (version in force from Jan. 1, 2001, to Oct. 1, 2004), art. 63-4, LEGIFRANCE; Judgment, supra.) In France, it is a criminal offense for a person who receives confidential information by virtue of his/her profession, such as an attorney, to breach such confidentiality. (Code Penal (Penal Code)(version in force since Jan. 1, 2002), art. 226-13).
The Paris Bar initiated disciplinary proceedings against the two attorneys, which eventually led to professional sanctions being imposed on both of them. (Judgment, supra.) They challenged the Bar’s decision, based on the premise that it was illegal for the French government to make a transcription of their conversations with Picart as that was a violation of the freedom of communication between attorney and client. (Id.) The case made its way through the French judicial system and eventually ended up before the ECHR, where the petitioners argued that the recording of their telephone conversation was a violation of the right to privacy as defined by article 8 of the European Convention of Human Rights. (Convention for the Protection of Human Rights and Fundamental Freedoms (Nov. 4, 1950, as amended by Protocols), art. 8, COUNCIL OF EUROPE, EUROPEAN CONVENTION ON HUMAN RIGHTS, ECHR website (last visited July 11, 2016).)
In its decision, the ECHR found that the transcription of the conversation between Crasnianski and Picart was valid under the circumstances. (Judgment, supra.) While the interception and transcription of the telephone conversations constituted an infringement of the parties’ right to privacy, such a right is not absolute, and French law appropriately provides for exceptions that are “necessary in a democratic society in the interest of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedom of others.” (Convention for the Protection of Human Rights and Fundamental Freedoms, art. 8.)
The ECHR observed that the investigative judge had appropriately stricken from the record the transcripts of other telephone conversations between Picart and his attorneys, as such conversations were related to his right to a proper defense in criminal proceedings. (Judgment, supra.) The transcript of the telephone conversation at issue in this case, however, was kept in the record because it contained evidence of the attorneys’ participation in a criminal offense. The ECHR. ruled that this was a proper use of the transcript, thus confirming that attorney-client privilege does not preclude the transcription of exchanges that contain evidence that the attorney participated in a crime, as long as the exchanges are not used against the attorney’s client. (Id.)