Lynn associate challenges his prosecution for not giving up passwords
Man refused to give device codes
A man charged in connection with a money-laundering investigation into the activities of rogue ex-solicitor and property developer Michael Lynn is taking a legal challenge against his prosecution.
Bulgarian national Yavor Poptoshev (48) was given leave by the High Court yesterday to bring judicial review proceedings against the Director of Public Prosecutions (DPP) and the Garda Commissioner.
He is challenging his prosecution for refusing to disclose the passwords to three electronic devices seized by gardaí during a raid on his home.
The High Court was told that lawyers for Mr Poptoshev will argue that the power to compel someone to disclose passwords during a search is a disproportionate interference with the privilege against self-incrimination.
Gardaí seized a Google Pixel 4 phone, a Google Pixel 6 phone and an Asus laptop during a search of Mr Poptoshev’s apartment at St Raphaela’s Road, Stillorgan, Dublin, on January 9.
He was subsequently charged with obstructing a garda by refusing to disclose the passwords for the devices, contrary to Section 49 (1) of the Criminal Justice (Theft and Fraud Offences) Act 2001.
Mr Poptoshev appeared before Dún Laoghaire District Court on February 6.
The summary offence is punishable by a fine and up to six months in prison.
An application for leave to bring judicial review proceedings, challenging the constitutionality of the offence and the power to compel the disclosure of device passwords, was granted on an ex parte basis (or one-side-only basis) by Ms Justice Niamh Hyland.
Mark Lynam SC, for Mr Poptoshev, told the court his client was a friend of Lynn and had assisted “in sifting through a vast volume of disclosure” in the recent criminal case against the struck-off ex-solicitor.
Lynn was jailed for five-and-a-half years in February for stealing €17.9m from six financial institutions by taking out multiple mortgages on the same property.
Mr Lynam, instructed by Mulholland Law, said gardaí had “burst” into the home of his client. Mr Poptoshev had no previous convictions, Mr Lynam said.
Mr Poptoshev declined to provide passwords at his home and asked to speak to a solicitor. Mr Lynam said Mr Poptoshev was arrested and spoke to his solicitor in the garda station.
The court was told the solicitor spoke to gardaí and asked that the “parameters” of what was being searched for be outlined before passwords were given. Gardaí declined to do so and charged Mr Poptoshev with non-disclosure.
“In my submission, the power to compel someone to do that during a search is a disproportionate interference with the privilege against self-incrimination,” said Mr Lynam.
“Mr Poptoshev is a suspect for offences being investigated by An Garda Síochána, which are set out in affidavit. It relates to a money-laundering investigation.”
Mr Lynam said his client had legitimate reasons not to hand over his passwords. He said there was legally privileged documentation on the devices.
The barrister said his client’s position was that the “purported criminal offence” was unconstitutional and disproportionate, and that case law from the European Court of Human Rights (ECHR) would support this.
“What those cases indicate is where a person is compelled to hand over documents which would tend to incriminate them, that is a breach of Article 6 of the convention,” he said.
“We say the ECHR case law is crystal clear. That is a breach of the convention. If it is a breach of the convention, it is almost certainly a breach of the Constitution, which provides a higher standard of protection than the minimum standards of the convention.”
Mr Lynam added: “We say the actual power itself was unconstitutional, the power of arrest is unconstitutional and the criminal charge arising was unconstitutional.
“We say that somebody shouldn’t be subjected to a prosecution for something which is not an offence.”
He said a further ground being advanced was that the legislation dated from 2001, before the advent of smartphones.
“The Oireachtas wouldn’t really have had the chance to consider the impact of interference with smartphones, which contain a lot of information,” he said.
“We say that if it is the case this law applies to smartphones, then it is invalid by being too vague because a person seeking legal advice couldn’t be sure what it was he had to hand over.”
As part of the proceedings, Mr Poptoshev is seeking a stay on his prosecution until his challenge is decided.
Ms Justice Hyland granted leave and made the case returnable to a date next month. No stay was placed on the prosecution.
In the civil action, Mr Poptoshev says he has lived in Ireland for 18 months but had known Lynn for 14 or 15 years and had worked with him on building projects in several countries.