Interception of communications between a corporate lawyer and his partner (client). Minimum level of protection that must be provided to a corporate lawyer in terms of confidentiality of communications.
This publication analyzes the judgment dated February 18, 2025, handed down by the European Court of Human Rights (hereinafter, “ECHR”) in the case of Romanchenko and Kharazishvili v. Georgia, which upheld a claim for violation of Article 8 (right to respect for private life) of the European Convention on Human Rights (hereinafter, the “Convention” or “ECHR”).
Ms. Ana Romanchenko and Mr. Nika Kharazishvili (first and second applicants, respectively) sued the state of Georgia for violating Articles 6 (right to a fair trial) and 8 of the ECHR. Specifically, they claimed that Article 143 of the Criminal Code of Georgia did not specify the rules for protecting communications between lawyers and clients and that the court order in question was not sufficiently justified.
The domestic criminal proceedings were initiated at the request of the Investigation Service of the Georgian Ministry of Finance, for the purpose of investigating the purchase and sale of 400,000 packs of cigarettes by the company NADERI LTD, which were exempt from excise duty. Ms. Romanchenko was a practicing lawyer, a member of the Georgian Bar Association, and the legal representative of that company. Mr. Kharazishvili was her husband.
On November 7, 2020, the Prosecutor General’s Office submitted a request to the Tbilisi Municipal Court to authorize the interception and recording of the telephone communications of eight individuals, including the two applicants (Ms. Ana Romanchenko and Mr. Nika Kharazishvili), for the period from November 9 to December 9, 2020.
The Tbilisi Municipal Court accepted this request and authorized the interception of communications. It considered this measure essential given that there were reasonable grounds to suspect that the eight individuals under investigation had committed a tax offense under Article 200 of the Georgian Criminal Code (production, possession, sale, or transport of goods subject to excise duty without the corresponding tax stamps), and deemed it necessary to protect the economic interests of the State.
Subsequently, on November 10 and December 24, 2021, the first and second applicants were notified, respectively, of the use of the covert measure against them. They received a copy of the corresponding court order and related material, as well as information about their right to challenge the legality of the measure before the courts.
Both applicants challenged the legality of the interception and recording of their telephone communications, requesting that the court order authorizing them be declared null and void.
Ms. Rmanchenko argued in her appeal that the interception had been authorized without taking into account her status as a practicing lawyer and legal representative of the company. The unlimited interception of all her communications for a month, including those protected by professional secrecy, had been illegal.
On December 29, 2021, the Tbilisi Court of Appeal rejected his appeal as unfounded. According to the Court, lawyers are not exempt from covert measures if the requirements of Article 143.2 of the Georgian Criminal Code are met.
This provision regulates the legality of covert measures when they are necessary in a democratic society and to achieve a legitimate end (national security, prevention of crime, protection of the economic interests of the State, and/or protection of the rights and freedoms of third parties), provided that they are proportionate to the end pursued and there is no other equally effective and less harmful means.
At the same time, Mr. Kharazishvili’s appeal was based on the argument that there was no reasonable suspicion against him and that the only basis for including him in the investigation was his status as Mrs. Romanchenko’s husband. In the same vein as the first applicant, the Tbilisi Court of Appeal dismissed his appeal on January 27, 2022. It was considered that reasonable doubts remained as to his involvement in the planning of the illegal sale of cigarettes and that the covert measure was the only means of achieving the desired purpose.
Given the dismissal of both appeals, the appellants decided to sue the Georgian State before the ECHR, again questioning the legality of the court order that authorized the interception of their communications.
In the resolution under analysis, the ECHR assesses whether the interference with the applicants’ right to privacy—which is undisputed—was carried out in accordance with the legal requirements in force and can be considered necessary, highlighting the following conclusions:
- The internal resolution did not include the necessary factual elements to establish reasonable suspicion regarding the defendants (paragraph 55).
- The trial judge limited himself to conducting a purely formal examination of the request, without carrying out a proportionality assessment of the communications interception measure that was sought, thereby violating Article 8 of the Convention (paragraphs 56-57).
Likewise, a single ruling was issued regarding the eight individuals under investigation, without individualizing the analysis or reasoning in relation to each of them (paragraph 57).
- The more detailed analysis subsequently carried out by the Court of Appeal cannot suffice to justify retrospectively the decision taken at first instance (paragraph 59).
- Finally, it should be noted that one of the eight individuals under investigation was a practicing lawyer, member of the Georgia Lawyers Association (paragraph 60). The Tbilisi Municipal Court erroneously failed to consider the importance of respecting professional secrecy. Lawyers enjoy special protection and, consequently, any communication intercepted between lawyer and client must be immediately separated and destroyed.
For all these reasons, the ECHR ordered the state of Georgia to indemnify each of the applicants €1,500 in compensation, plus the costs of the proceedings. However, it should be noted that the Court did not rule on the scope of professional secrecy in relation to in-house lawyers, despite the fact that the applicant was a lawyer and legal representative of the company under investigation.
In this context, it is necessary to mention the doctrine of the CJEU established in the AKZO case (CJEU judgment dated September 14, 2010), in which the extension of the privilege of confidentiality of attorney-client communications to in-house lawyers was denied. This was because it was understood that they do not enjoy sufficient independence and are linked to their employer through an employment relationship and the consequent hierarchical subordination.
In line with the above, the European Commission recently issued Competition Policy Brief 1/2025, insisting that only external lawyers will enjoy full confidentiality under professional secrecy, which reignites the debate and highlights the practical and legal relevance of this issue.
Finally, case C-796/2024 is still pending resolution, raising the issue again before the CJEU, which introduces a scene of interpretative uncertainty regarding the possible consolidation or revision of the doctrine in force to date, as well as its possible friction with Organic Law 5/2024 of November 11 on the right to defense.
Clara Tomàs
Internal Investigations Department – Molins Defensa Penal