Courts

Businessman challenges prosecution for alleged failure to provide passwords to gardaí

Dublin-based Yavor Poptoshev, a business associate of Michael Lynn, claims he did not provide access to devices due to fears he might incriminate himself

Yavor Poptoshev is a director of several companies, some of which are being investigated for alleged money laundering and deception, the High Court heard. Photograph: iStock
Aodhan O'Faolain
Thu Sept 05 2024 - 17:27

A Dublin-based businessman has brought a High Court challenge against his prosecution for allegedly failing to provide gardaí with the passwords to his laptop and two phones after the items were seized during a search of his apartment.

The action has been brought by Yavor Poptoshev, who is from Bulgaria but has been living in Ireland with his family in recent years.

The court heard he is a friend and long-time business associate of former solicitor and property developer Michael Lynn, who last February was convicted of the theft of €18 million from several financial institutions and subsequently jailed.

Mr Poptoshev assisted Lynn in reviewing documents generated by his trial and had large amounts of material relevant to the case in physical and digital form at his home. This material, he claims, may be subject to Legal Professional Privilege.

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He claims that on January 9th last gardaí entered his home and conducted a search. He said he was told the search was in relation to a third party for alleged social welfare fraud.

He claims one of the officers present directed him under the 2001 Criminal Justice (Theft and Fraud Offences) Act to provide passwords to allow them access computers and phones seized and said Mr Poptoshev could be imprisoned if he did not. He claims he did not do this due to fears that he may incriminate himself.

He told the gardaí he wished to get legal advice on the matter from a solicitor and was later conveyed to Dundrum Garda station. He claims he was given legal advice to the effect that he did not have to give gardaí the passwords under the Act.

Those charges are due to be considered by the District Court later this year.

The court also heard Mr Poptoshev is a director of several companies and works in the area of property development. Some of those companies are being investigated for alleged money laundering and deception.

Mr Poptoshev, with an address at Kilmacud Road Upper, Stillorgan, is represented by Mark Lynam SC with Paul Comiskey O’Keefe BL, instructed by solicitor Ciaran Mulholland, and claims the charges against him are unconstitutional.

He argues that the criminal charges, the power of arrest and impugned coercive power as contained in sections of the 2001 Act, amount to a disproportionate interference with his rights and his privilege against self-incrimination. No power exists within the 2001 Act to compel the disclosure of passwords of phones, it is claimed.

In judicial review proceedings against the Director of Public Prosecutions, the Garda Commissioner, Ireland and the Attorney General, Mr Poptoshev seeks various orders and declarations including that sections of the 2001 Act are unconstitutional and incompatible with the State’s obligations under the European Convention on Human Rights.

He also seeks orders from the court restraining his prosecution on charges brought against him under the 2001 Act as well damages.

The action is opposed and the respondents, represented by Remy Farrell SC, and Kieran Kelly BL, reject all claims that the sections of the act are unconstitutional or conflict with the convention.

The action came before Mr Justice Conleth Bradley, who after the conclusion of submissions from the parties, reserved his decision.