Information and file protection for lawyers extended to notaries

The protection of information and files granted to lawyers by the European Court of Human Rights was also extended to notaries. Consequently, searches in a notary's office can only be carried out taking into account the specificities of the profession, limiting the discretion of national authorities to protect the activities of notaries. This was clarified by the European Court of Human Rights in its judgment Kavecansky v. Slovakia (Application No. 49617/22) filed on 29 April.

At the centre of the case was the appeal of a Slovakian notary, whose duties were similar to those of Italian notaries, who had had his home and notary's office searched, culminating in the seizure of electronic devices. The warrant had been approved by the prosecutor. Everything had started with the seizure, for a few hours, of the notary, who had been forced to pay a sum of money. In the meantime, after his release, the practitioner had asked for a leave of absence due to the stress he had suffered and the Notary Council had sent an inspection ascertaining certain irregularities in the management of the office. The trainee notary had been suspended and a criminal investigation for embezzlement had been opened. Searches had been carried out with seizure of documents and computers where there was evidence of the transfer of funds. The inspection had also taken place without waiting for the applicant's lawyer who had requested his presence. The appeals against the measures were all rejected by the national courts and the case then reached Strasbourg.

The European Court, having framed the appeal in the context of Article 8 of the Convention, which guarantees the right to respect for private and family life, found that there was an interference with that right precisely because of the search of the notary's office and the seizure of electronic devices. Admittedly, the interference was provided for by law in line with the provisions of Article 8(2), but domestic law must ensure that the individual is not subjected to arbitrary interference with the result that the manner and terms of such interference must be clearly stated.

But clear and detailed rules are not enough because it is also necessary toensure procedural protection that is strengthened in relation to certain categories of persons carrying out certain activities. The Court has already made it clear that particular protection must be addressed in order to protect the privilege of lawyers, by reason of their role in the administration of justice and, the same argument, for Strasbourg, must be extended to other legal professions involving the processing of client information covered by professional privilege. This is the case - the Court specifies - of notaries who perform functions similar to those provided for in the Slovak legal system, typical of civil law systems such as the Italian one. It is not enough - the Court observes - to provide a formal basis for admitting interference with the law because in the field of legal professions it is essential to put in place special safeguards both before the search and afterwards. In the absence of special safeguards, searches against notaries are contrary to the Convention.