An associate of jailed former solicitor and property developer Michael Lynn has issued High Court proceedings alleging he is being prosecuted under an unconstitutional law.
Yavor Poptoshev (48), a Bulgarian national and company director, is charged with three counts of failing to hand over passwords for devices seized during a search conducted by the Garda National Economic Crime Bureau on foot of a warrant. The search of his Dublin home early on January 9th last was part of a money laundering investigation, the High Court heard on Monday.
Mr Poptoshev’s action alleges the State’s power under the Criminal Justice (Theft and Fraud Offences) Act of 2001 to compel him to provide information to progress a Garda investigation in which he himself was a suspect was a “disproportionate interference” with his privilege against self-incrimination.
He claims this and a corresponding 2001 Act around powers to arrest and charge someone who refuses to provide a password are unconstitutional. The married father of two denies any wrongdoing and claims he has not committed a criminal offence.
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Mr Poptoshev, of Kilmacud Road Upper, Stillorgan, says he assisted Lynn, a business associate and “personal friend”, in reviewing large volumes of documents for his trial and retrial. Related materials were in physical and digital form at his home and some are the subject of legal professional privilege, it is argued.
Lynn was sentenced in February to 5½ years in prison for stealing some €17.9 million from six financial institutions 16 years ago by taking out multiple mortgages over the same properties. He had pleaded not guilty and is now seeking to appeal his conviction.
Mark Lynam, for Mr Poptoshev, told the High Court on Monday that the 2001 Act came into force before smartphones were around, so legislators would not have had a chance to consider how the Act would affect such devices. During the January search, his client declined to provide his passwords and asked to speak to his solicitor.
He was arrested and eventually spoke to his solicitor, who advised disclosure was not necessary, the court heard. Gardaí did not accept this and charged him using “disproportionate” 2001 Act powers, said Mr Lynam, with Paul Comiskey O’Keeffe.
The court heard gardaí declined the solicitor’s request for them to define the parameters of their intended search of the devices.
Mr Lynam, instructed by Mulholland Law, said some material for Lynn’s trials would have been present on his clients’ devices. Counsel added that he had a “legitimate reason” not to disclose the passwords and cannot be prosecuted for something that should not be an offence.
Ms Justice Niamh Hyland permitted Mr Poptoshev to pursue his challenge against the Director of Public Prosecutions (DPP), the Garda Commissioner, Ireland and the Attorney General. He has listed the Irish Human Rights and Equality Commission as a notice party to his action, which has been adjourned to next month.
In his legal documents, Mr Poptoshev says he moved to Ireland with his wife and children about 18 months ago and works in property development and as a director of several companies. He says he believes some of those companies are being investigated by gardaí in relation to alleged money laundering, deception and social welfare fraud (not regarding him) and Lynn’s possible involvement in certain transactions.
He says he has known Lynn for about 15 years, having worked with him on projects in Portugal, Slovakia, Hungary and elsewhere. He asserts that a coercive power requiring someone to provide a password to their device must be authorised first by a judge. This safeguard is necessary due to the gravity of the interference with the privacy of affected people, he claims.
He is asking the court to prohibit his prosecution for the three charges and to declare that aspects of the 2001 Act are unconstitutional and incompatible with the State’s obligations under the European Convention on Human Rights.
Mr Poptoshev appeared before Dún Laoghaire District Court on February 6th. The charges against him, for allegedly obstructing a garda by refusing to disclose the passwords for two mobile phones and a laptop, at an apartment at St Raphaela’s Road, Stillorgan, Dublin, come under section 49 (1) of the 2001 Act.
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