Question 3.
What changes need to be made in your Member State – covering both national law and national practice - with respect to confidentiality regarding:
(a) the right to confidentiality itself?
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Austria
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In principle, the communication with the lawyer is confidential. However, the communication may be supervised under certain conditions (§ 59(2) StPO):
- If the suspect is deprived of liberty also because of “danger of collusion”
- The prosecutor has to order the supervision in writing and with reasons.
- The supervision must be open.
- It is limited to a period of two months.
Even though there is the possibility to take remedies ex post (§ 106 StPO), the supervision is a threat to effective defence. From a defence point of view, the possibility of supervision makes it impossible to devise a defence strategy and to discuss the case freely for a period of up to two months without effective and quick remedies against such a supervision.
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Belgium
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No changes needed, since any suspect, being deprived of his liberty or not, has the right for confidential meeting with a lawyer of his choice before his first questioning according both the Belgian law and the national practice.
Besides, in all police station it is a specific room for the private meeting of the suspect deprived of liberty with the lawyer.
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Bulgaria
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The right to confidential communications between suspects or accused persons and their lawyer(s) is guaranteed by the Bulgarian Constitution. There are no restrictions whatsoever as to the duration or frequency of communications.
Some judges and academicians in my country rightly note that, under CPC and the Bar Act, the right to meetings in private is formulated as a right of the counsel for the defence only and not as a right of the accused person. This formal flaw does not practically affect the effective exercise of the right to meetings in private. Nevertheless, in order to reinforce the significance of the right to confidential communications between suspects or accused persons and their lawyer(s), it is proposed to amend CPC by an explicit provision granting the accused persons with the right to meet their lawyer(s) in private. I fully share this proposal.
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Croatia
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No changes are needed, as Croatian CPA prescribes the confidentiality of communication between suspects or accused persons and their defence lawyer. The right of confidentiality of communication between the persons under detention and their defence lawyer is prescribed in Articles 75, 76 and 108 of Croatian CPA.
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Cyprus
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The right of confidentiality is adequately safeguarded under Article 12 of the Rights of Persons Arrested and Detained into Custody Law of 2005
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Czech Republic
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No changes. The suspects or accused persons may speak with the defence lawyer without a third person being present also when they are in custody or prison (see Section 33(1), 76(5)(6), 179b(2) CCP).
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Estonia
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Confidentiality is already provided by our Bar Association Act. However, our laws covering surveillance and wire-tapping do not expressly provide for a ban to intervene with client-attorney communications, and in practice it is not uncommon that such communications are intercepted (generally justified by stating that the authorities had proper authorizations to intercept the communications of the suspect, and interception of communication of this suspect with his/her attorney is inevitable for technical reasons). The government believes that a ban to use such interceptions as evidence in criminal proceedings is sufficient to guarantee right to confidentiality. This position is not satisfactory, because (i) the right to confidentiality is breached by the mere possibility of interception, let alone the actual fact of interception, regardless of whether this information is used as evidence or not, and (ii) despite the ban to use such information as evidence, the government in fact has tried to circumvent the ban, and use intercepted client-attorney communications as evidence in criminal proceedings. With this in mind, I believe the state must improve protection of the right to confidentiality.
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Finland
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Generally speaking the right to confidentially in criminal proceedings is quite good. Since the Directive only concerns criminal proceedings, no specific issues arise here.
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France
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No specific observations on this point.
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Germany
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Greece
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The confidentiality of communication is regulated.
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Hungary
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Such right is ensured.
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Ireland
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In principal communications between lawyers and clients are strictly confidential in Ireland and not subject to any eavesdropping measure by the State.
However in point of fact it has emerged that there has for many years been the policy of recording all telephone conversations taking place between Garda Stations and members of the public. This came to light in controversial circumstances in early 2014. The controversy caused by the fact that these conversations were eavesdropped on, including potentially conversations between suspects and their lawyers caused such a political controversy that it led to the resignation of the Commissioner of An Garda Siochana, and subsequently the Minister for Justice. The Government have established a commission of enquiry under the chairmanship of Mr Justice Niall Fennelly to examine the issues that arise. One of the difficulties confronting the Fennelly Commission is that there are literally hundreds of thousands of hours of taped conversations to be reviewed.
It is claimed that the practice has been discontinued.
There is provision in national law for surveillance including wiretaps of phone conversations. It is claimed but defence lawyers are not convinced that this does not arise in relation to lawyer/ client conversations. There is nothing in the legislation, copy annexed, which immunises lawyers from eavesdropping.
There is clearly controversy between the guarantee of confidentiality in Article 4 and the references in Recitals 33 and 34. This controversy which is currently being ventilated before the Courts in the Netherlands and potentially before the Court of Justice of the European Union will be a source of difficulty in Ireland as in other jurisdictions.
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Italy
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No
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Latvia
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No changes needed, confidentiality is granted.
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Lithuania
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According to the Lithuanian law the lawyer has a right to communicate in private with the suspect or the accused that is under the arrest. In practise, confidentiality covers meetings, correspondence, telephone conversations and other forms of communication between the lawyer and the suspect or accused.
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Luxembourg
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The right to confidentiality is guaranteed at any stage of procedure.
A confidential conversation is possible at the police station between the lawyer and the person under proceedings as well as before the first hearing at the office of the investigation judge.
Usually this conversation lasts about 10 until 20 minutes but could be longer.
At later stages of the proceedings, confidentiality is also guaranteed.
A problem concerning the confidentiality could raise in case of linguistic problems between lawyer and person under proceedings, because the translator present at this confidential interview will also have to translate the declarations made by the person at the police station or at the hearing at the judge office.
This is a delicate situation
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Malta
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Covered by legal privilege, adequately catered for
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Poland
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In Poland, a detainee, a potentially suspected person or a suspect as well as an accused person have the right to confidentiality in contacts with a lawyer. It’s a principle which is affirmed by the constitutional standard (see the Article 42 section 2 in relation with the Article 31 section 3 of the Polish Constitution of the 2nd of April, 1997 – Journal of Laws of the 16th of July, 1997, No. 78, item 483 with subsequent amendments; see also the judgment of Polish Constitutional Tribunal of 11th of December 2012, K 37/2011, OTK-A 2012, No. 11, item 133). However there exist some exceptions from this principle which have been presented above (see the Articles: 73 §§ 1 - 3 CCP, 245 § 1 CCP and 46 § 4 CPPO). (This principle isn’t absolute - also if we take into account the EU standard in this matter). There is no need to change the general rule of free contacts (communication) between lawyers and their clients (the above mentioned figures of proceedings). It should be noted that the possible limitations of the principle of confidentiality in the field of contacts between lawyers and their clients (so the exceptions from the principle of confidentiality on the ground of reservations indicated in the Article 72 § 2 and § 3 CCP, the Article 245 § 1 CCP and the Article 46 § 4 CPPO) shall regard requirement which is provided for in the Article 8 (2) of the EU directive 2013/48. So, the decision of a competent authorities (a public prosecutor or a police official) concerning their presence during the communication between a lawyer and his or her client (a detainee/a potentially suspected person/a suspect) as well as a public prosecutor’s decision concerning the supervision of correspondence shall be challenged – by the entitled person – to the court. In the light of this remark it must be noted that both regulations of the Code of Criminal Proceedings (i.e. the Articles 72 and 245) and the regulation of the Code of Proceedings on Petty Offences (i.e. the Article 46) shall be properly amended.
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Portugal
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Confidentiality is granted in all cases so there is no need to change the proceedings in Portugal either in law or national practice.
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Romania
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Slovakia
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There are no limitations of free contact between the suspect and the counsel, including telephone calls, correspondence. Police and prosecutor cannot be present during meetings of the suspect with his counsel.
The lawyer´s duty of confidentiality is recognised entirely and without exceptions in the course of criminal proceeding when it concerns a lawyer as a defence counsel and it applies to confidential information received from the defendant and about the defendant while the defence counsel represents his client. It is reflected in legal rules governing the following areas: personal communication and contact with the defendant without the presence of any third parties, protection of confidentiality of information sent in a written form or in any other form, the monitoring, tracking and recording of meetings between defence counsels and defendants. If law enforcement bodies or courts do not respect these provisions, information obtained in this way cannot be used as evidence since it was received in breach of law.
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Slovenia
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No changes are needed. Confidentiality is granted.
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Spain
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Confidentiality is granted in theory. In practise, there are some situations where confidentiality is at risk, namely, in fishing expeditions (indiscriminate searches) in lawyers’ offices in relation with money laundering or tax crimes. Is not unusual that the authorities who conduct the search take dozens of files, regardless of whether the client is related to the crime or not. Even if the client is suspect, taking of evidence against him/her from the lawyers file is a breach of confidentiality.
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Sweden
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Existing legislation contains provisions ensuring the right to confidentiality itself.
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The Netherlands
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There are no changes necessary in national law. Existing legislation contains provisions ensuring the right to confidentiality itself (article 50 sub 1 NCCP). A confidential conversation is possible at the police station between the lawyer and the person under proceedings as well as before the first hearing at the office of the investigation judge. In all police station it is a specific room for the private meeting of the suspect deprived of liberty with the lawyer.
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