Rybolovlev-Bouvier case: ECHR decision could end years of litigation in Monaco
The European Court of Human Rights © Council of Europe
On Thursday, 6 June, the European Court of Human Rights (ECHR) issued a decision that could put an end to the ongoing procedure involving influence peddling and corruption in the Principality, known as «MonacoGate».
The ECHR unanimously ruled that investigating judge Edouard Levrault and other Monegasque authorities had acted illegally against Tetiana Bersheda, Dmitry Rybolovlev’s lawyer, by violating her rights protected by the European Convention on Human Rights.
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Recap to date
Nine years ago, a legal battle pitted Swiss art dealer Yves Bouvier against AS Monaco president Dmitry Rybolovlev. The Monaco-based billionaire accused his advisor of having swindled him out of a billion euros in sales of masterpieces. Rybolovlev then filed a complaint with the Monegasque police against Yves Bouvier and Tania Rappo, a mutual acquaintance of the two men. Rybolovlev accused her of having acted as an intermediary and of having taken advantage of that position for financial gain.
In this case, Dmitry Rybolovlev’s lawyer, Tetiana Bersheda, recorded a conversation on her mobile phone at a dinner in February 2015 with Tania Rappo, the Russian billionaire and herself, seeking to prove that Rappo was Bouvier’s accomplice.
When she learned of the secret recording, Tania Rappo filed a complaint for invasion of privacy against Bersheda, Rybolovlev and the then Monaco Attorney General, Jean-Pierre Dreno, citing the latter two as accomplices.
In 2017, Ms Bersheda, of her own accord, handed her phone, with the recording, over to the police for authentication. This is when the case starts to get complicated.
The investigating judge at the time, Edouard Levrault, who was in charge of the invasion of privacy case, had asked an IT professional to examine Bersheda’s phone. But according to the ECHR, the investigating judge decided “to commission a vast telecommunications report from a court-appointed expert, with no real limits as to dates or scope of inquiry, thereby authorising a ‘fishing expedition’” rather than simply authenticate the recording.
An additional case
Through this exploration, tens of thousands of text messages, images, iMessages and emails, as well as phone calls over a period of over three years, were extracted from Tetiana Bersheda’s phone, which she used for personal and professional purposes.
It is on the basis of the analysis report that another investigation was launched in Monaco, concerning influence peddling and corruption, in which, in addition to Rybolovlev and Bersheda were cited: Philippe Narmino, former Director of Judicial Services; Paul Masseron, former Minister of the Interior; Régis Asso, former head of the Police Department and Christophe Haget and Frédéric Fusari, two high-ranking Police Department employees.
All of them were indicted as they were mentioned in recordings and messages found on Tetiana Bersheda’s phone.
The investigation sparked a public outcry and was even dubbed «MonacoGate» when hundreds of messages from Bersheda’s phone, in breach of the investigation’s secrecy, found their way into the media’s possession. Although a verdict had not been pronounced, the media took up the case, which was damaging to Monaco’s reputation.
Arguing that the investigating judge had exceeded his remit with regard to the invasion of privacy case, Rybolovlev and Bersheda filed several motions in Monaco to challenge the investigation. However, all their claims were rejected, first by the Court of Appeal and then by the Court of Revision. Then, in July 2019, they appealed to the European Court of Human Rights.
“Relying on Article 8 (right to respect for private life), the applicants complained of the massive, indiscriminate and disproportionate collection of all “visible” – but also erased and therefore “invisible” – data. They submitted that these unjustified investigations had been conducted without protecting the professional privilege to which Ms Bersheda was entitled as a lawyer,’ explains the ECHR.
The result the claimants hoped for
The ECHR delivered its verdict on Thursday, June 6. The seven judges unanimously declared that there had been a violation of Article 8 of the Human Rights Convention. In its judgment, the Court found “the investigating judge had extended the scope of his investigation too broadly and that the supervisory judicial authorities had failed to redefine the bounds of the expert’s assignment and of the investigation.”
The Court also deplored the fact that “the investigating judge had not, from the outset, deployed a framework to protect legal professional privilege in the present case.”
The claimants reacted immediately. “The defence had claimed for years that the previous investigating judge, in order to indict Mr. Dmitry Rybolovlev, had no right to search indiscriminately through his lawyer’s phone to extract messages related to her legal activities. By doing so, he gravely breached attorney-client privilege,” Rybolovlev’s lawyers said in a statement.
Tetiana Bersheda’s lawyer, Sébastien Schapira, explains, “The Court indicated that the investigating judge did not have the right to search wildly in the lawyer’s phone to unearth messages relating to her legal activity and her private life. In doing so, he seriously infringed the lawyer’s professional secrecy and Article 8 of the ECHR [European Convention on Human Rights]. The Court thus recalled that it was imperative to strictly regulate such a measure, comparable to search and seizure operations in a law firm, the latter being auxiliaries of justice.”
Is this the end of “MonacoGate”?
The Monegasque proceedings resulting from the dispute between Rybolovlev and Bouvier are gradually winding down. Firstly, the original fraud charges have been dropped. Last November it was revealed that investigating judges Franck Vouaux and Ludovic Leclerc, who were in charge of the invasion of privacy case, had dismissed the proceedings against Dmitry Rybolovlev and Jean-Pierre Dreno. Tetiana Bersheda was acquitted by the court in March.
As for the influence peddling case, Martin Reynaud, Dmitry Rybolovlev’s lawyer, explains: “There is no basis to the proceedings, since the messages illegally recovered from Maître Bersheda’s laptop were the only evidence against my client”.
A source at Le Parisien newspaper, commenting on the prospects of the investigation into the case involving Rybolovlev and the former heads of the Principality’s law enforcement services, said “It is difficult to see how this decision could not be taken into account. The whole premise of the procedure is thrown out.”
Since the evidence in the influence peddling case has been declared illegal by the European Court of Human Rights, it is certain that there will be an umpteenth and probably final twist to the Rybolovlev case.