BANKING DATA, IRRESPECTIVE OF WHETHER IT CONTAINS SENSITIVE INFORMATION, IS PROTECTED UNDER THE CONVENTION

In today’s Chamber judgment in the case of M.N. and Others v. San Marino (application no. 28005/12) the European Court of Human Rights held, unanimously, that there had been: a violation of Article 8 (right to respect for private life and correspondence) of the European Convention on Human Rights in respect of one of the applicants, M.N.. The case concerned the search and seizure of documents relating to banking and fiduciary relationships. The applicants, four Italian nationals, notably complained about a decision by the San Marino judicial authorities ordering the seizure of banking documents related to them. The decision was made at the request of the Italian prosecution authorities in the context of an on-going criminal investigation – not involving the applicants – into money laundering in Italy. The Court underlined that there was no doubt that banking documents amounted to personal data concerning an individual, irrespective of whether or not they contained sensitive information, and irrespective of who was the owner of the medium on which the information was held. Such information was thus protected under Article 8’s notion of “private life”. Furthermore, the right to respect for correspondence under Article 8 was also engaged as the seizure order covered the exchange of letters and e-mails. The Court found that there had been a lack of procedural safeguards under San Marino law, in so far as M.N had not been able to contest the search and seizure decision in his regard, following its implementation. Given that M.N. had not been charged with any financial wrongdoing nor had he been the owner of the banking institutes searched, he had no standing to contest the seizure, copying and subsequent storage of information retrieved from his bank statements, cheques, fiduciary dispositions and e-mails. Indeed M.N., who was not an accused in the original criminal procedure, had been at a significant disadvantage as compared to the accused in those proceedings or to the possessor of the banking or fiduciary institute, all of whom were entitled to challenge the search and seizure decision. As a result, M.N. had not enjoyed the effective protection of national law.

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