(b) the communications covered by confidentiality?
Austria
None
Belgium
No changes needed, since all communications between the suspect, being deprived of his liberty or not, and his/her lawyer are covered by confidentiality. The Belgian lawyers are besides held by professional secrecy under criminal penalty in case of breach of this secrecy (see article 458 of the Belgian Criminal Code).
The only change could be perhaps a longer delay of this confidential previous meeting with the lawyer, because the Belgian law limits it to 30 minutes in case of a suspect deprived of liberty. It could be 1 hour. The Belgian Constitutional Court decides in that respect that this delay of 30 minutes was not mandatory and could this be extended according the necessities, for instance when the suspect deprived of liberty does not speak the language of the lawyer and needs a translator (C.const., 14 Feb. 2013).
Bulgaria
All types of communications between accused persons and their lawyer(s) are covered by confidentiality under Bulgarian law.
Croatia
No changes needed, see the previous answer.
Cyprus
The confidentiality of the communications between the arrested person and his/her lawyer is adequately safeguarded under Article 12 of the Rights of Persons Arrested and Detained into Custody Law of 2005.
The only exception to the confidentiality of communication between suspects or accused persons and their lawyer is Article 15 of the Rights of Persons Arrested and Detained into Custody Law of 2005 which provides that every detainee has the right to send and receive letters of correspondence to and from his/her lawyer without them being opened or read by any member of the Police or prison personnel except only in exceptional circumstances in which the person in charge of the detention centre has reason to believe that the envelope contains an illicit object and in that case the envelope is opened by a member of the Police or prison personnel in the presence of the detainee.
Czech Republic
See the previous answer.
Estonia
No changes need to be made -- all communications are covered by confidentiality.
Finland
See previous answer.
France
No specific observations on this point.
Germany
Greece
The communication in detention centres and prisons mostly includes telephone conversations (when glazed for security reasons). It would better if, at least the communication, was held in a better place and in a manner not raising issues of confidentiality violation.
Hungary
Such right is ensured.
Ireland
In principle all communications whether written or oral are covered by confidentiality.
Italy
Oral and written communications. If the accused is detained in prison, on the envelope of the communications coming from the lawyer, the defence counsel, in order to avoid the breach of confidentiality, must write that the communication is related to the defence in a criminal proceeding pointing out the number of the file, put his signature certified by the Bar Council.
Latvia
No changes needed, all communications are covered by confidentiality.
Lithuania
All the communications between the lawyer and the suspect or the accused are covered by confidentiality.
Later conversations during the proceedings (i.e. preparation of defence in prison, individual boxes are at disposal for such purpose)
Malta
Covered by legal privilege, adequately catered for
Poland
According to the Article 245 § 1 CCP, a detainee shall have ensured – on his or her demand – a contact (in an available form) with a lawyer (an advocate or a legal advisor). In practice, ‘an available form of a contact with a lawyer’ means each manner of communication possible in the venue where a detainee is placed, i.e. the contact by phone, fax, e-mail or by a traditional letter which should be delivered to a lawyer by a detaining authority or other institution or person. A detainee shall have also ensured a direct (personal) conversation with a lawyer.
According to the rule of the Article 73 § 1 CCP a suspect/an accused temporarily arrested may communicate with his or her defence lawyer in the absence of other persons or by correspondence. So it means that a suspect/an accused temporarily arrested is principally entitled to direct, personal contacts with his or her defence lawyer. Considering the regulation of the Article 73 § 1 CCP it seems that such contacts could be not only personal but they’re also possible by using other means of distant communication, especially a phone. However the contents of the Article 217c of the Polish Executive Criminal Code of 1997 and its interpretation could bring us to the conclusion that a temporarily arrested person is entitled to use in his or her contacts just a phone and no other means of wire or wireless communication. But in the light of existing opinions, the Article 73 § 1 CCP is a specific regulation (lex specialis) for the regulation of the Article 217c ECC. From the practical point of view, contacts with a defence lawyer by correspondence includes contacts by traditional mails but also by e-mails (limitations in this field can be rather a result of the lack of accessibility to computer devices and to Internet for a temporarily arrested person).
According to the Article 46 § 4 CPPO a detainee in proceedings on a petty offence shall have ensured – on his or her demand – a contact (in an available form) with a lawyer (an advocate or a legal advisor). In practice, ‘an available form of a contact with a lawyer’ means each manner of communication possible in the venue where a detainee is placed, i.e. the contact by phone, fax, e-mail or by a traditional letter which should be delivered to a lawyer by a detaining authority or other institution or person. It should be added that in the light of the Article 46 § 4 CPPO a detainee in proceedings on a petty offence shall have also ensured a direct (personal) conversation with a lawyer.
All these forms of communication are covered (principally) by confidentiality. (However the principle of confidentiality has its exceptions which emerge from reservations of entitled authorities letting them to limit the right to free communication in a certain way).
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None.
Romania
Slovakia
If the accused is apprehended, remanded in custody or serves an imprisonment sentence, he may speak with his counsel in the absence of a third person but this shall not apply to a telephone call of the accused with his counsel during serving custody. The conditions and mode whereof are set forth by Regulation No. 368/2008 of the Ministry of Justice of the Slovak Republic on the Procedure related to the execution of the imprison sentence and Act No. 221/2006 on the execution of the prison sentence
Slovenia
n/a
Spain
Every communication is covered, with an exception: communications in prison in relation to terrorism. This measure has to be ordered by a judge.
Sweden
When a public defence counsel is appointed, the right to confidentiality is unrestricted.
When a private defence counsel is appointed, limitations may apply concerning electronic communication and correspondence. Communication may be tapped. In case of tapping, the suspect and the private defence counsel shall be informed in advance. Correspondence may, in exceptional situations due to security reasons, be examined. An examination may only be carried out if it has been admitted by the suspect. Legislative amendments have been proposed stipulating an unrestricted right to confidentiality when the private defence counsel is an advocate.
The Netherlands
No changes need to be made - all communications (theoretically) are covered by confidentiality (article 50 sub 1 NCCP).
Question 4. Do you have experience in your Member State – covering either national law or national practice or both - of exceptions to confidentiality in criminal proceedings in accordance with Recital 34?
Austria
No experience.
Belgium
No, never experimented any exceptions to confidentiality nor heard about any case of exception to confidentiality.
Bulgaria
No, I am not aware of such exceptions.
Croatia
Under Articles 75/2 and 76/2 of the Croatian CPA, there are prescribed exceptions of the right of confidentiality of communication between the persons under detention and their defence lawyer if there is a danger that the communication between the above mentioned persons could help accused person to compound a crime, or that he will help the offender or felon, or if there is a danger that the person under detention could finish the crime. It is prescribed only for the very serious crimes (i.e. genocide, terrorism, murder, drug related crimes etc.)
Cyprus
Currently there are no exceptions to confidentiality in criminal proceedings in accordance with Recital 34.
Czech Republic
No.
Estonia
I do not have experience of Recital 34 exceptions. However, our regulations certainly do not preclude such possibility.
Finland
No experience.
France
Germany
Greece
Under Article 253A of the Greek Code of Criminal Procedures there are exceptions to confidentiality solely in order for very serious crimes to be detected (criminal organizations, terrorism, etc.). All operations must be decided by the Judicial Council, which fully justifies these actions and defines and the period of application of the exception. All these operations are supervised effectively by the competent Investigator and Prosecutor.
Hungary
No.
Ireland
As adverted to in reply to 3A, conversations between lawyers and clients have been eavesdropped. Solicitors have not in relation to police stations been advised as to whether their individual conversations have been listened to. This is being addressed by the Fennelly Commission. Prison phone calls were also recorded and solicitors whose calls were recorded have been advised by the Inspector of Prisons of this fact.
The report in respect of this matter is pending and a further reply will issue in due course.
Italy
Latvia
Yes, but information gathered this way is unusable as evidence.
Lithuania
There are no exceptions of the rule of confidentiality between the lawyer and the client in the Lithuanian law. Even if the information that is useful for the accusation of a person is being sought out of such communication (i.e. communication between the lawyer and the client) it can’t be used in criminal proceedings.
Luxembourg
No
Malta
No personal experience
Poland
No, I haven’t such experience. However the issue of surveillance of lawyers by competent authorities (national intelligence services) exists in Poland, also as the law-maker’s field of interests and legislative activity, and it’s widely discussed especially in mass media (Cf. e.g. E. Usowicz, Służby specjalne podsłuchują adwokatów, ‘Rzeczpospolita’, the 21st of July, 2015, http://www4.rp.pl/Opinie/307219956-Sluzby-specjalne-podsluchuja-adwokatow.html).
Portugal
Not to this moment.
Romania
Slovakia
In general, if in the course of lawful surveillance operation the accused is found to be in communication with his defence counsel, no information thus obtained may be used for the purposes of criminal proceedings, and any such information must be forthwith destroyed in a prescribed manner; this shall not apply to information relating to a case in which a lawyer does not represent the accused as his defence counsel
As laid down in Act No. 46/1993 on the Slovak Intelligence Agency, the Slovak Intelligence Agency may seek the disclosure of personal data from public information systems even without the consent of the data subject. State authorities are obliged to assist the Slovak Intelligence Agency in this respect, and provide it will all necessary information and documents. If the Slovak Intelligence Agency makes any record as a result of monitoring the area accessible to the public, this record may be used as evidence in criminal proceedings. Apart from the above, police investigation officer, prosecutor and court cannot use any information obtained by the Slovak Intelligence Agency as an evidence in criminal proceedings. This fully applies to the relationship between a lawyer and a client if their contact is not made in a public place.
Slovenia
I am not aware of any such exception under the Slovene law.
Spain
Yes. In 2012, the Supreme Tribunal sentence famous judge Baltasar Garzon for tapping conversations between the suspect and his lawyer in prison.
Sweden
Communication between the suspect and his or her lawyer may not be subject to secret surveillance (i e wiretapping and/or bugging). In 2012, a review was carried out on how the legislation was applied with (Säkerhets- och Integritetsskyddsnämnden Dnr 114-2011). In this connection the Swedish Bar emphasized that there is no insight into a case of tapping and that the lawyer is almost never informed of in which situations a conversation has been bugged/tapped or the measures taken in connection to this. The review pointed out that there was a lack of general routines within the police authorities ensuring a coherent practice in accordance with the legislation.
The Netherlands
Based on paragraph 3.3.2 of the Intelligence and Security Services Act 2002 the Dutch intelligence service (AIVD) have so-called special powers, also known as “special intelligence resources”. They may be used only when strictly necessary for the service to carry out the duties it has been entrusted with by law. And they cannot be used at all for two of those tasks: security screenings and safeguarding vital sectors. Moreover, no action likely to seriously infringe personal privacy may be taken without the express prior permission of the Minister of the Interior. However according to the AIVD these powers also under circumstances stretches out to the relationship between a lawyer and a client. In April 2014 a lawfirm whom had been wiretapped filed an complaint on behalf of Prakken d'Olivieira Lawyers, against the wiretapping of lawyers associated with the firm, by the Dutch Intelligence Service (AIVD). The court action was set against both the Minister of the Interior and the Minister of Defence (AIVD being a part of that), in order to introduce a prior judicial authorisation for each surveillance procedure involving lawyers. The court of appeal ruled in October 2015 the Dutch government to stop within six months all interception of communications between clients and their lawyers under the current regime. The Dutch State was given six months to adjust the policy of its security agencies regarding the surveillance of lawyers and to ensure that an independent body will exercise effective prior control. The court also ruled that information obtained from surveillance of lawyers may only be released to the public prosecutor if an independent body has examined if, and under what conditions, security agencies were allowed to conduct surveillance. The Court held that the current safeguards were inadequate in view of the case law of the European Court of Human Rights.
