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Judgment II. ÚS 4071/19 of 14 October 2020 - Conflict of the Right to Defence with the Duty of Attorney-Client Privilege

Headnotes:

In the event that the attorney-at-law’s effective defence in criminal trial requires violating the legally enshrined attorney-client privilege, then the attorney’s right to defence pursuant to Art. 40 (3) of the Charter of Fundamental Rights and Freedoms (hereinafter “Charter”) shall prevail over the attorney-client privilege. However, even in such cases, the attorney shall respect the legitimate interests of their client and be exempted from the duty of confidentiality only to the extent necessary for their effective defence. In principle, the attorney is entitled to assess this extent on their own and is liable for breach of the attorney-client privilege only in case of manifest abuse of this right.

Summary:

I. By means of the Judgement of the Municipal Court in Brno, the Petitioner (attorney-in-law) was found guilty of committing criminal offence of abuse of power by an official in the form of aiding and abetting the offence and was sentenced to suspended prison sentence of twelve months with a probation period of three years and to the suspension of licence for the period of two and half years. Along with the Petitioner, the principal perpetrator, a judge of the Insolvency Section of the Regional Court in Brno, to whom the Petitioner’s instructions were to be directed, was also convicted of a completed criminal offence. The Court of Appeal reduced the Petitioner’s probation period for the suspended sentence to two years. Subsequently, the Petitioner’s application was dismissed as inadmissible by the Supreme Court. The conduct allegedly ascribed to the Petitioner was supposed to consist in the fact that the Petitioner, when performing his legal profession, submitted to the principal perpetrator, either on his own or through a third party, a late application of his client’s claim to the insolvency proceedings in order to ensure that the claim be admitted by the court as submitted in a due and timely manner and once the principal perpetrator attempted unsuccessfully to include retrospectively the application in the relevant file due to the disagreement of the filing office’s employee under the pretext that he had found it in another file where it was likely to have been included by mistake, and the application was returned to the Petitioner, the Petitioner allegedly submitted the application once again to the principal perpetrator who again unsuccessfully attempted to have it retrospectively included in the file by means of the administrative apparatus of the court so that it could be treated within the insolvency proceedings as filed in a due and timely manner, as otherwise, the claim of the Petitioner’s client could not be satisfied in the relevant insolvency proceedings.

In his constitutional complaint, the Petitioner alleged, in particular, that his defence was in principle hampered by the fact that, as an attorney, he was bound by the confidentiality duty towards his client.

II. In the case of criminal proceedings against an attorney conducted in association with him providing legal services, there is a conflict of the legitimate interests of the attorney and their client, in both cases protected on the level of fundamental human rights and freedoms, provided that the attorney’s effective defence requires disclosing facts covered by their attorney – client privilege. In its case law, the Constitutional Court has not yet addressed this conflict and owing to this, it could not dismiss the complaint as manifestly ill-founded but was required to rule on it by means of a judgment. It addressed in detail the general background for the conflict between the confidentiality duty and the right to defence, using its own case law, the case law of the European of Human Rights and commentary literature. Following their application to the present case, it concluded that the Petitioner’s objection was unfounded.

With respect to the proportionality principle, for the purposes of their own defence, it is highly desirable that an attorney first seeks to have the confidentiality duty waived by their client. If this is not possible or this effort is made in vain and if the attorney’s effective defence requires a breach of the attorney – client privilege pursuant to Section 21 (1) of Act No. 85/1996 Coll., on the Legal Profession, as amended, then the attorney’s right to defence under Art. 40 (3) of the Charter of Fundamental Rights and Freedoms shall prevail over this duty. However, the attorney shall ensure that the attorney – client privilege is maintained to the extent possible within the circumstances, i.e. that they do not disclose anything subject to the confidentiality duty which is not required by the interests of their effective defence. In principle, it is at the attorney’s discretion to assess, as a legal professional and in a qualified manner the defence possibilities and their effectiveness, and thus the extent to which the interests of their defence outweigh the interest in maintaining the confidentiality duty.

The Petitioner could not be a priori prevented from exercising his right to defence by disclosing facts which would be covered by the attorney – client privilege. In the present case, it was not even a matter of the law enforcement bodies preventing the Petitioner from exercising his right to a substantive defence by submitting facts or furnishing evidence subject to the confidentiality duty, or by raising any such facts against the Petitioner by any other public authority.

The Petitioner even failed to attempt to exercise his right to defence. However, the view that his right to defence took precedence over this obligation had already been articulated in the commentary literature and, in part, in the case law prior to issuing the first contested decision, and it could not have been unpredictable or unreliable for the Petitioner as an attorney and thus a legal professional to such an extent that he would completely renounce his defence in this manner. The fact that he did so may deemed as merely his own fault.

III. Jaroslav Fenyk served as the Judge Rapporteur in the instant case. None of the Judges submitted a dissenting opinion.