Advocaсу privilege also applies to the client's device – ECHR

Special protection of advocate-client privilege in communications between advocates and clients would be meaningless if it did not extend to electronic communications stored on both the advocate's and the client's devices.

This was the conclusion reached by the European Court of Human Rights in the case of Černý and Others v. the Czech Republic (application no. 37514/20). The decision of 18 December 2025 can be viewed at this link.

During a search of the suspect in criminal case Z., law enforcement officers seized his smartphone and tablet. These devices contained correspondence with advocates and other materials related to the preparation of the defense. Later, the court initiated a forensic examination of the contents of the devices, with the seizure of all data, including deleted data.

The suspect objected, arguing that such an examination would inevitably reveal the confidential defense strategy to the prosecution and other participants in the proceedings. However, these objections were not taken into account. As a result, the contents of the devices (over 20,000 pages) were seized, added to the case file, and handed over to the prosecutor, as well as to the co-defendants and their defense attorneys.

When Z. requested that these materials be removed from the case, the court refused. Chairman K. explained that the mere fact that private or attorney correspondence was found in the seized data was irrelevant if the material was included in the case as evidence.

The defense also attempted to have attorney-client privilege removed from the case materials. One of the advocates, whose correspondence with his client was among these materials, appealed to the court to remove from the case everything that constituted «attorney-client» communication and related defense preparation materials.

At the same time, Z. raised the issue of the presiding judge's responsibility by asking the Ministry of Justice to start disciplinary proceedings; the Czech Bar Association made a similar request, saying that keeping this info in the case undermines the right to a fair trial.

The Ministry refused, explaining that the grounds for disciplinary proceedings against a judge are narrow and formalized, and directly acknowledged the gap: the law regulates the protection of advocate-client privilege with regard to intercepted communications, but does not provide a procedure for cases where «attorney-client» correspondence is discovered during the examination of seized electronic devices.

Z. attempted to challenge the judge's actions in criminal proceedings, but the prosecutor's office did not initiate proceedings, while agreeing that the actions described could constitute a disciplinary offense. Separately, the defense appealed to the higher court with a request to set a deadline by which the court of first instance should remove materials covered by attorney-client privilege. However, the court refused this request as well.

The defense attorneys and Z. then filed a constitutional complaint against «other interference» by a public authority. They insisted that the inclusion of materials covered by attorney-client privilege in the case violated, in particular, the right to respect for private life and correspondence.

In his objections, Judge K. argued that the provisions of the CPC on the inadmissibility of including intercepted «advocate-client» communications in the case could not be applied by analogy, since the seized devices belonged not to the advocate but to the client. He also pointed out that the court did not have the authority to review such data and select what could be evidence or decide on the removal of materials.

The Czech Bar Association joined the constitutional proceedings, emphasizing the importance of the case for guarantees of the right to defense in criminal proceedings in general. However, the Constitutional Court dismissed the complaint as manifestly unfounded, on the grounds that the privilege of confidentiality of communications between an advocate and a client is a right of the accused, not the advocate, and therefore cannot be considered a violation of the fundamental rights of the defense attorneys themselves.

The advocates also appealed to the Ministry of Justice demanding an apology and compensation for non-pecuniary damage for the court's unlawful official act, and subsequently filed a civil lawsuit. The court of first instance found the court's actions to be unlawful and awarded each of them partial compensation, but the appeal overturned the monetary payments and settled for written apologies for some of the applicants, denying others due to lack of proof of damage. The parties did not initiate a cassation review, so the Ministry of Justice limited itself to written apologies. At the same time, in a parallel dispute initiated by the client himself, the Supreme Court separately confirmed the illegality of adding privileged materials to the criminal case and emphasized that the court should have ensured that such data was stored separately and did not enter the case before any review of its content, and that the expert should have received appropriate instructions.

The advocates appealed to the European Court of Human Rights. They argued that the inclusion of their correspondence with the client in the criminal case file in court violated the right to respect for private life and correspondence, guaranteed by Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms.

The Government contested the admissibility of the complaint. First, it argued that the advocates had not exhausted domestic remedies: they had availed themselves of the compensation procedure under the State Liability Act, but had not appealed against the decisions of the domestic courts, which, in the Government's view, could have secured more adequate compensation. Secondly, the Government considered that, once the domestic courts had found that the privileged material had been unlawfully included in the case file, the advocates could have sought to have it removed again, by analogy with the provisions of the Code of Criminal Procedure on the destruction of intercepted lawyer-client communications. Separately, the Government insisted that some of the applicants had lost their status as «victims» because they had received an acknowledgment of the violation and a written apology, and that there had been no significant harm: the materials had not been used as evidence, they had not been made public, and access to them had been limited to a small number of persons bound by a duty of confidentiality. However, the European Court did not agree with these arguments and found the complaint admissible.

The Strasbourg court proceeded from the fact that the data seized from the client's devices contained privileged «advocate-client» communications, and this fact was not disputed between the parties. According to the established practice of the European Court, such communications enjoy special protection under Article 8 of the Convention, and their copying or examination constitutes a serious interference with the right to respect for private life and correspondence.

For the Court, it was fundamental that the defense lawyers did not lose this protection simply because the correspondence was stored on the client's electronic device. The hypothetical possibility of data being transferred to third parties or subsequently accessed by the authorities does not mean a waiver of privacy. On the contrary, the advocates had a reasonable expectation that the confidentiality of their communications would be preserved. «The special protection guaranteed to lawyer-client communications would be meaningless if it did not extend to electronic communications stored on both the advocate's and the client's devices», - the ECHR ruling states.

The Court then examined whether the interference was «in accordance with the law» within the meaning of Article 8 of the Convention. It recalled that this requirement means that there must be a basis in national law, but that «law» must be understood in a substantive sense: it must comply with the principle of the rule of law and be predictable in its effects, i.e., it must clearly define the circumstances and conditions under which the authorities may resort to such measures. In cases concerning the monitoring and recording of private communications, the Court has specifically emphasized the need for sufficient safeguards against arbitrariness and abuse, in particular special procedural guarantees to protect the confidentiality of communications between advocates and their clients.

As examples of the absence of such safeguards, the Court cited situations where national law does not establish a specific and predictable procedure for the examination of electronic media for the selection of evidence and the separation of privileged material, does not regulate potential disputes within such a procedure, and does not guarantee that privileged material will not become available to the investigating authorities before the courts can conduct a specific and detailed analysis.

In the case at hand, the Court concluded that the legal regulation of the extraction of data from electronic devices was neither sufficiently clear and predictable nor did it contain sufficient safeguards and procedural guarantees to protect the confidentiality of advocate-client communications.

The high judges noted that no provision of national law expressly and specifically prohibited the examination and use of privileged data on seized devices, and that national authorities and courts had reached opposite conclusions regarding the legality of their inclusion in the case file: some based their conclusions on general principles and analogies with the provisions of the Code of Criminal Procedure, while others, in particular the Constitutional Court, did not see such a prohibition.

Under these circumstances, it was not sufficiently clear whether there was a rule prohibiting the inspection of privileged data on a client's device and how it applied, nor was there a specific and predictable procedure for selecting and separating privileged material.

Therefore, the interference did not meet the criterion of «in accordance with the law», and the ECHR found a violation of Article 8 of the Convention.