The Right to Counsel and the Protection of Attorney-Client Privilege in Criminal Proceedings: A Comparative View [1st ed.] 9783030431228, 9783030431235

Table of contents :
Front Matter ....Pages i-vi
Introduction (Lorena Bachmaier Winter)....Pages 1-6
A Comparative View of the Right to Counsel and the Protection of Attorney-Client Communications (Lorena Bachmaier Winter, Stephen C. Thaman)....Pages 7-73
Attorney-Client Privilege in Mainland China’s Criminal Proceedings (Changyong Sun, Suhao Chen)....Pages 75-104
Confidentiality of Correspondence with Counsel as a Requirement of a Fair Trial: The Situation in Germany (Bettina Weisser)....Pages 105-132
Confidentiality of Correspondence with Counsel as a Requirement of a Fair Trial in Greece (Georgios Triantafyllou)....Pages 133-152
Confidentiality of Correspondence with Counsel as a Requirement of a Fair Trial in Italy (Massimo Ceresa-Gastaldo)....Pages 153-176
The Continuing Evolution of Right to Counsel and Confidentiality of Attorney-Client Communications in Japan (Hiroki Sasakura)....Pages 177-204
The Dutch Attorney and His Client (Joost S. Nan, Pieter A. M. Verrest)....Pages 205-233
Confidentiality of Correspondence with Counsel as a Requirement of a Fair Trial in Portugal (Vânia Costa Ramos, Carlos Pinto de Abreu, João Valente Cordeiro)....Pages 235-271
Confidentiality of Correspondence with Counsel as a Requirement of a Fair Trial in Spain (María Luisa Villamarín López)....Pages 273-291
Legal Privilege and Right to Counsel in Criminal Proceedings in Switzerland (Veronica Lynn, Wolfgang Wohlers)....Pages 293-325
Confidentiality of Correspondence with Counsel as a Requirement of a Fair Trial: Turkey—Quo vadis? (Öznur Sevdiren)....Pages 327-357
Confidentiality of Correspondence with Counsel as a Requirement of a Fair Trial in the United Kingdom (Richard Stone, Veronica Lynn)....Pages 359-393
Confidentiality of Attorney-Client Communications in the United States (Stephen C. Thaman)....Pages 395-440

Citation preview

Ius Comparatum – Global Studies in Comparative Law

Lorena Bachmaier Winter Stephen C. Thaman Veronica Lynn  Editors

The Right to Counsel and the Protection of Attorney-Client Privilege in Criminal Proceedings A Comparative View

Ius Comparatum – Global Studies in Comparative Law Volume 44

Series Editors Katharina Boele-Woelki, Bucerius Law School, Hamburg, Germany Diego P. Fernández Arroyo, Institut d’Études Politiques de Paris (Sciences Po), Paris, France Founding Series Editors Jürgen Basedow, Max Planck Institute for Comparative and International Private Law, Hamburg, Germany George A. Bermann, Columbia University, New York, USA Editorial Board Joost Blom, University of British Columbia, Vancouver, Canada Vivian Curran, University of Pittsburgh, USA Giuseppe Franco Ferrari, Università Bocconi, Milan, Italy Makane Moïse Mbengue, Universitè de Genève, Switzerland Marilda Rosado de Sá Ribeiro, Universidade do Estado do Rio de Janeiro, Brazil Ulrich Sieber, Max Planck Institute for Foreign and International Criminal Law, Freiburg, Germany Dan Wei, University of Macau, China

As globalization proceeds, the significance of the comparative approach in legal scholarship increases. The IACL / AIDC with almost 800 members is the major universal organization promoting comparative research in law and organizing congresses with hundreds of participants in all parts of the world. The results of those congresses should be disseminated and be available for legal scholars in a single book series which would make both the Academy and its contribution to comparative law more visible. The series aims to publish the scholarship emerging from the congresses of IACL / AIDC, including: 1. of the General Congresses of Comparative Law, which take place every 4 years (Brisbane 2002; Utrecht 2006, Washington 2010, Vienna 2014, Fukuoka 2018 etc.) and which generate (a) one volume of General Reports edited by the local organizers of the Congress; (b) up to 30 volumes of selected thematic reports dealing with the topics of the single sections of the congress and containing the General Report as well as the National Reports of that section; these volumes would be edited by the General Reporters of the respective sections; 2. the volumes containing selected contributions to the smaller (2-3 days) thematic congresses which take place between the International Congresses (Mexico 2008; Taipei 2012; Montevideo 2016 etc.); these congresses have a general theme such as “Codification” or “The Enforcement of Law” and will be edited by the local organizers of the respective Congress. All publications may contain contributions in English and French, the official languages of the Academy.

More information about this series at http://www.springer.com/series/11943 Académie Internationale de Droit Comparé International Academy of Comparative Law

Lorena Bachmaier Winter • Stephen C. Thaman • Veronica Lynn Editors

The Right to Counsel and the Protection of Attorney-Client Privilege in Criminal Proceedings A Comparative View

Editors Lorena Bachmaier Winter Complutense University of Madrid Madrid, Spain

Stephen C. Thaman Saint Louis University Law School St. Louis, MO, USA

Veronica Lynn Law Faculty University of Basel Basel, Switzerland

ISSN 2214-6881 ISSN 2214-689X (electronic) Ius Comparatum – Global Studies in Comparative Law ISBN 978-3-030-43122-8 ISBN 978-3-030-43123-5 (eBook) https://doi.org/10.1007/978-3-030-43123-5 © Springer Nature Switzerland AG 2020 This work is subject to copyright. All rights are reserved by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors, and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. This Springer imprint is published by the registered company Springer Nature Switzerland AG. The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland

Contents

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Lorena Bachmaier Winter

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A Comparative View of the Right to Counsel and the Protection of Attorney-Client Communications . . . . . . . . . . . . . . . . . . . . . . . . . . . . Lorena Bachmaier Winter and Stephen C. Thaman

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Attorney-Client Privilege in Mainland China’s Criminal Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Changyong Sun and Suhao Chen

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Confidentiality of Correspondence with Counsel as a Requirement of a Fair Trial: The Situation in Germany . . . . . . . . . . . . . . . . . . . . . . . 105 Bettina Weisser Confidentiality of Correspondence with Counsel as a Requirement of a Fair Trial in Greece . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133 Georgios Triantafyllou Confidentiality of Correspondence with Counsel as a Requirement of a Fair Trial in Italy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 153 Massimo Ceresa-Gastaldo The Continuing Evolution of Right to Counsel and Confidentiality of Attorney-Client Communications in Japan . . . . . . . . . . . . . . . . . . . . . 177 Hiroki Sasakura The Dutch Attorney and His Client . . . . . . . . . . . . . . . . . . . . . . . . . . . . 205 Joost S. Nan and Pieter A. M. Verrest Confidentiality of Correspondence with Counsel as a Requirement of a Fair Trial in Portugal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 235 Vânia Costa Ramos, Carlos Pinto de Abreu, and João Valente Cordeiro

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Contents

Confidentiality of Correspondence with Counsel as a Requirement of a Fair Trial in Spain . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 273 María Luisa Villamarín López Legal Privilege and Right to Counsel in Criminal Proceedings in Switzerland . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 293 Veronica Lynn and Wolfgang Wohlers Confidentiality of Correspondence with Counsel as a Requirement of a Fair Trial: Turkey—Quo vadis? . . . . . . . . . . . . . . . . . . . . . . . . . . . 327 Öznur Sevdiren Confidentiality of Correspondence with Counsel as a Requirement of a Fair Trial in the United Kingdom . . . . . . . . . . . . . . . . . . . . . . . . . . 359 Richard Stone and Veronica Lynn Confidentiality of Attorney-Client Communications in the United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 395 Stephen C. Thaman

Introduction Lorena Bachmaier Winter

Abstract Lawyer-client confidentiality is facing new challenges and risks, making it necessary to approach its study from a comparative point of view. Within these new challenges, two elements require special attention: first, the impact of the digital world coupled with more intrusive IT investigative measures in almost all criminal investigations; and second element, the increasing transnational character of criminal proceedings and criminal investigations. A third important challenge in relation to the protection of the lawyer-client privilege is linked to the implementation of compliance programmes. Keywords Criminal procedure · Comparative law · Right to counsel · Attorneyclient communications · Defense lawyer

The right to counsel in criminal proceedings would not be effective without the guarantee of the confidentiality of communications between lawyer and client. For lawyers to practice their profession effectively and properly, clients must have complete trust in their lawyers’ discretion. Without this trust clients, for fear of confidential information being disclosed to the prosecution or third parties, would not grant their lawyers insight into all the relevant information necessary for them to properly counsel or defend their client in court. On the other hand, if clients tell their lawyers of their guilt and disclose evidence, the lawyers’ knowledge, offices and files become a source of evidence the prosecution would like to gain access to. This indispensable trust is safeguarded by the rules on lawyer-client confidentiality and it follows that the right to counsel would not be effective without the guarantee of the confidentiality of the communications between lawyer and client. Given the importance of and the international recognition as fundamental rights necessary for the right to a fair trial, it could therefore be assumed that the right to

L. Bachmaier Winter (*) Universidad Complutense, Madrid, Spain e-mail: [email protected] © Springer Nature Switzerland AG 2020 L. Bachmaier Winter et al. (eds.), The Right to Counsel and the Protection of Attorney-Client Privilege in Criminal Proceedings, Ius Comparatum – Global Studies in Comparative Law 44, https://doi.org/10.1007/978-3-030-43123-5_1

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counsel and the confidentiality of the communications between lawyer and client would not need to be further discussed. However this assumption is not correct: despite the recognition of this fundamental right, as the rules and practice in the different countries included in this book show, the system to ensure the confidentiality of the communications between the defendant and his/her defence counsel are not only not homogeneous, but remains clearly unsatisfactory in many cases. In addition to the divergences in the regulation and implementation at the national level, it will be seen that the right to lawyer-client confidentiality at present is facing new challenges and risks, that makes it necessary to approach its study from a comparative point of view. Within these new challenges, two elements require special attention: first, the impact of the digital world coupled with more intrusive IT investigative measures in almost all criminal investigations; and the second element, which is closely linked to the digitalisation of our lives, is the increasing transnational character of criminal proceedings and criminal investigations. Regarding the impact of the digital data and e-evidence in criminal investigations, very few systems establish rules on how to carry out computer searches in order to prevent disclosing confidential communication between the lawyer and his client; and the existing ones do not provide for an adequate procedure of sifting and filtering the privileged files. The digitalisation has caused also the “transnationalisation” of the criminal proceedings, a new reality that also requires a new legal approach. Nowadays where the cross-border evidence plays an increasingly important role, it is not longer enough to provide for the protection of the procedural safeguards at the national level, because the data and the communications electronically stored may be used in a different jurisdiction where those communications took place. A simple example may serve to illustrate the problems that are to be faced: let us put that in country A the communications between defence counsel and defendant cannot be tapped (e.g. The Netherlands), but the Dutch authorities request the tapping of conversations of the suspect in country B (e.g. Spain). The requested country will carry out the interception of communications according to its own law, thus without applying a precise filter that would allow segregating the protected conversations. The recorded conversations—including the ones affecting the confidential lawyer-client relationship, will finally end up in the requesting state. This is just one example that shows that in the present transnational and digital scenario, the protection of confidentiality of communications between lawyer and client provided at the national level, are not sufficient, because the transfer of that data can ultimately cause the level of safeguards to be lowered or even disappear. It could be considered that the infringements of such safeguards in the collecting of evidence could be balanced by way of exclusionary rules of evidence: despite the infringement of the right to lawyer-client confidentiality in the gathering of transnational evidence, exclusionary rules of evidence should counterbalance the possible lowering of the safeguards at the stage of the collecting of evidence. However, as will be seen throughout the chapters of the book, this assumption is not correct either. Most legal systems do not have a consistent and comprehensive regulation on transnational criminal proceedings and rules on the applicable law or conflicts of law

Introduction

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rules are largely missing.1 With regard to evidence obtained abroad, the practice varies greatly. In some cases it is admitted without any further control, whilst on other occasions it is subject to exhaustive domestic filters in order to check its compliance with domestic legal principles and sometimes also with the statutory provisions of the executing state. The divergence and overlapping of rules, principles and practice increases the complexity of transnational justice and causes major uncertainty having a negative impact on the protection of fundamental rights, on the efficiency of the international judicial cooperation and on the admissibility of evidence at trial. These factors that are increasingly present in every criminal procedure, require to approach the rules on lawyer-client privilege from a comparative point of view. Even if the transnational dimension of the lawyer-client privilege has not been the direct objective of the study, it explains why a deep knowledge on the different legal systems from a comparative perspective is necessary. A third important challenge in relation to the protection of the lawyer-client privilege is represented by the mixed role that in-house lawyers play when it comes to the implementation of compliance programmes, the loyalty towards the investigated company and the protection of internal whistle-blowers, vis á vis their obligation to testify and to report possible crimes. The scope of the lawyer-client privilege in relation to crimes committed by corporations and corporate criminal liability proceedings is still unclear. In those countries where corporate criminal liability has been introduced, it is discussed whether the in-house lawyer deserves the same level of protection as independent lawyers and whether lawyer-client privilege is applicable to in-house lawyers in internal investigations. Despite the efforts of the European Court of Justice in the landmark case Akzo Nobel Chemicals Ltd and Akcros Chemicals Ltd v European Commission2—establishing that the lack of independence of the in-house lawyer prevented the application of the lawyer-client privilege in subsequent criminal proceedings––, the reasoning of this judgmnt is still very much debated. The Swiss law takes a different path, which shows also a very pragmatic approach, by providing at the same time for certainty: in-house corporate lawyers cannot act as defence lawyers for the company. Finally, another important challenge is illustrated by the apparent contradiction in the approach to the fundamental right of the lawyer-client confidentiality: while there is an increasing awareness of the importance to protect the lawyer-client confidentiality, at the same time rules have been adopted for fighting against money laundering and prevention of financing terrorism that point in the opposite direction, either reducing the safeguards and allowing the breach of the confidentiality or by establishing the obligation of the lawyer to report certain suspicious activities to the police or to the financial intelligence units. Furthermore, in some countries law enforcement authorities are demanding to limit the scope of the lawyer-client

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See Bachmaier (2013), pp. 126–148. ECJ Case C-550/07 P, Judgment of the Court (Grand Chamber) of 14 September 2010, Akzo Nobel Chemicals Ltd and Akcros Chemicals Ltd v European Commission, §§ 40 and 41. 2

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privilege as it seriously hinders the investigations into tax evasion and organised crime, especially in countries where the lawyer-client privilege extends to all documents held by the lawyer in connection with the lawyer’s professional capacity. In addition to the “traditional” problems regarding the protection of the lawyerclient confidentiality examined in this study—such as, authorities overhearing conversations between lawyer and client in detention centres, sanctions for the breach of the duty of confidentiality by the bar associations, the scope of the crime-fraud exception—the above mentioned new challenges create major risks with regards to the protection of the right lawyer-client confidentiality. In order to analyse these issues it is necessary to examine first the role the defence counsel plays in each legal system. While most systems champion the notion that defence counsels are entirely independent, abandoning the idea that the lawyer should cooperate with the justice system as a kind of “representative of justice” in the search for truth, there are still some systems where this notion has not been completed erased, as happens still in some courts in Japan. In situations where a lawyer’s duties might conflict with their role within the justice system most of the legal systems studied in this book clearly establish that defending the interests of the client prevail over any duty to cooperate with the administration of justice, as long as the defence of the client does not involve becoming an accomplice of the defendant. Still, the boundaries are not clearly defined, ranging from the obligation to report untrue statements of the defendant to supporting the client’s right to lie. To assess the meaning, scope and implementation of the right to communicate confidentially with the defence lawyer, it is first necessary to establish how the right to access a lawyer is guaranteed and at which procedural stage and in relation to what types of offences it is granted to the suspect or defendant. Hence, a good part of our comparative study, as well as the chapters addressing the lawyer-client confidentiality at the national level, deal first with the right to be assisted by a lawyer. Only once the context is clarified, the real extent and effectiveness of the right to lawyerclient confidentiality can be analysed. As will be seen throughout our study, the right to access to counsel has undergone a major harmonization within the European Union since the adoption of the EU Directive 2013/48, of 22 October 2013, nevertheless presenting noticeable differences as to the right to waive the assistance or cases where mandatory assistance of a lawyer is required, as well as the cases where legal aid is provided. Beyond the European landscape, however, the moment of access to a defence lawyer and the right to communicate with them privately, varies greatly: for example, in the U.S. the constitutional right to defence counsel is ensured only after the suspect has been charged; and in China it is granted for the detained person, but not necessarily during police interrogations of suspects. Depending at which stage the access to a lawyer is guaranteed, the conditions in which the lawyer-client communications occur also vary greatly and can have a negative impact upon the right to confidential communication. Regarding the protection of the lawyer-client communications in criminal proceedings the countries studied reveal that there are still many controversial aspects of

Introduction

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the attorney-client privilege, in particular regarding the extent of the protection against intrusions by the state, acting through judges, prosecutors, or investigative officials, interfering with the secrecy and confidentiality of lawyer-client communications in order to find incriminating evidence: e.g. attempts to compel lawyers to testify as to these communications, attempts to subpoena lawyers to turn over documentary evidence falling within the scope of the lawyer-client relationship, and finally, attempts to search lawyer’s offices or intercept lawyer-client’s communications, whether through wiretapping, bugging of offices, homes or jails, intercepting e-mail, or seizing written communications. As mentioned above, all these issues have been addressed using the comparative law methodology, where all of the national contributors provided answers to a comprehensive questionnaire. However in the final chapters collected in this volume, the contributors were allowed to depart from the rigid question-answer format, in order for them to analyse problems specific to their legal system in depth. The book presents twelve chapters examining the main questions related to the right of access to a lawyer and the protection of the lawyer-client confidentiality, all of them written by highly qualified academics and practitioners. I want to express our gratitude in preparing, first the national reports that made the comparative analysis possible; and later agreed to prepare the chapters the reader will find in this volume. The chapters represent a wide diversity of legal systems, including common law systems, Asian legal traditions and European legal systems. It will be interesting to see that continental European legal systems despite belonging to the same “legal tradition”, offer diverse realities that undoubtedly enrich the comparative analysis. A stark contrast remains between the so-called old democracies or sufficiently consolidated democratic systems, and those countries that could be defined as more vulnerable democratic systems among the European Union countries. And on the other hand, the Turkish legal system or the Swiss legal system, both within the geographical Europe, reveal enormous differences in culture, economics and history that are also reflected in their rules on access to a lawyer and the protection of lawyer-client confidentiality. The present study illustrates the process of slow convergence between common law and civil law systems in certain areas, as well as the process of approximation with regards to the understanding of human rights under the umbrella of the case law of international and supranational courts. A particular case is represented by the move towards a more decisive harmonisation of the right to access to lawyer within the EU. Such an approximation is also visible internationally, despite the richness of solutions and divergent levels of protection of the right and duty to confidentiality of the lawyer-client relationship. The panoply of problems detected show that the right is still poorly protected in many countries that have weaker safeguards in place or the ones they have adopted are not implemented. From the comparative law view, it does not seem to be useful to use the legal metaphors—transplant,3 translation4 or a legal implant—for analysing the

3 4

Watson (1993), p. 8 ff. Metaphor used by Langer (2004).

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fundamental right to communicate confidentially with the defence lawyer. It seems that this right is so intimately—and intrinsically—embedded in the right to defence and the right to legal counsel that an import or transfer from one system to another is not visible. However, what is visible is the clear expansion of the right of access to lawyer and the consequences in case of its violation. Notwithstanding the foregoing, in terms of protection of work product and the role of the in-house lawyers in relation to internal compliance systems, more reciprocal influences between the systems might be observed. If these influences can be called legal transplants—according to Watson5—or they should be labelled as implants, it may not be relevant in this context. In this comparative law study, our intention was not so much to define the relationships between legal systems, but rather to identify how the lawyer-client confidentiality in the criminal procedure process of the twenty-first century, dominated by a strong digitalization and internationalization is regulated and implemented. Our humble aim is to contribute to the understanding of, and not only on the academic level, the lawyer-client confidentiality relationship, in order to provide future guidance towards the strengthening of the defence rights in the criminal justice. A future that the legal scholarship has to travel hand in hand with comparative law to address the challenges of an increasingly global world.

References Bachmaier L (2013) Transnational criminal proceedings, witness evidence and confrontation: lessons from the ECtHR’s case law. Utrecht Law Rev, Special issue 9(4):126–148 Langer M (2004) From legal transplants to legal translations: the globalization of plea bargaining and the Americanization thesis in criminal procedure. Harv Int Law J 45(1) Watson A (1993) Legal transplants. An approach to comparative law, 2nd edn. The University of Georgia Press, Athens-London

Lorena Bachmaier Winter Full Professor Faculty of Law of the Complutense University of Madrid. Degree in Law from the Complutense University (1989) and also in Political Science, specialised in International Relations (1989). PhD in 1994 with award for the best thesis in public law, and in 2015 she was also awarded the prestigious Luis Portero Human Rights Award. Her research focuses mainly on comparative law, human rights and criminal procedure, and EU area of justice. She has also written extensively in the field of civil procedure and arbitration. She is author of more than 170 scientific publications in the legal field, published in more than 7 languages. She is Humboldt Foundation and also FRIAS (Freiburg Institute for Advanced Studies) fellow and has been visiting scholar and guest lecturer in numerous Universities and academic institutions worldwide, including Harvard, Berkeley or Stanford. She is member of the editorial board of numerous legal journals and of the most important academic associations. She has worked as an international expert for the Council of Europe and for the European Commission, in improving human rights standards and the rule of law in transitional democracies.

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Ibidem.

A Comparative View of the Right to Counsel and the Protection of Attorney-Client Communications Lorena Bachmaier Winter and Stephen C. Thaman

Abstract This chapter aims at providing a comparative overview on the protection of the fundamental right to counsel and the lawyer-client confidentiality in criminal proceedings. It will first explore the extent of the right to access to a lawyer, at which procedural stage and in relation to what types of offences it inures and what activities it entails. Before analysing the protection of the right to counsel and its content at the national level, the principles set out by the ECtHR will be addressed, as it shows the higher degree of harmonization achieved among the European countries. The impact of the EU Directive on the Right to Access to Lawyer, crucial to understanding the gradual approximation of the laws of the EU countries in this area, will also be mentioned. The chapter will then discuss the breadth of the attorney-client privilege and the related confidentiality of attorney-client communications: the types of communications to which it applies and the extent to which it derives from the constitutional right to counsel, or only from national legislation. Following this it will be discussed how the different national legal systems protect the lawyer against confidential attorney-client material being the subject of judicial subpoena, an office search, a search of a computer or stored digital files, or any kind of interception of attorneyclient communications. Finally, the consequences of the infringements of the right to counsel and the right to confidentiality of communications between lawyer and client will be analysed, going from exclusionary rules of evidence to sanctions to the lawyer breaching the duty of confidentiality. At the end, we have tried to draft certain conclusions with suggestions as to where improvements could be made in the protection of this fundamental right.

L. Bachmaier Winter (*) Universidad Complutense, Madrid, Spain e-mail: [email protected] S. C. Thaman Saint Louis University, St. Louis, MO, USA e-mail: [email protected] © Springer Nature Switzerland AG 2020 L. Bachmaier Winter et al. (eds.), The Right to Counsel and the Protection of Attorney-Client Privilege in Criminal Proceedings, Ius Comparatum – Global Studies in Comparative Law 44, https://doi.org/10.1007/978-3-030-43123-5_2

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Keywords Criminal procedure · Comparative law · Right to counsel · Attorneyclient communications · Defense lawyer

Abbreviations ABA ACHR CC CCBE CCP CH CN DAL DE DSCC ECHR ECtHR ES EU FISA GR ICCPR IT JP LSC NL NSA PACE PL PT RIPA TFEU TR U.K. U.N. U.S. USDOJ USSC

American Bar Association American Convention of Human Rights Criminal Code Council of the Bars and Law Societies of the European Union Code of Criminal Procedure Switzerland China Directive 2013/48/EU on the right to access to lawyer of 22 October 2013, the European Parliament and the Council Germany Defence Solicitor Call Centre European Convention of Human Rights European Court of Human Rights Spain European Union U.S. Foreign Intelligence Surveillance Act Greece International Covenant on Civil and Political Rights of the U.N. Italy Japan Legal Services Commission the Netherlands National Security Agency Police and Criminal Evidence Act England and Wales Poland Portugal The Regulation of Investigatory Powers Act 2000 Treaty on the Functioning of the European Union Turkey United Kingdom United Nations United States of America U.S. Department of Justice United States Supreme Court

A Comparative View of the Right to Counsel and the Protection of. . .

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1 Introduction Since its earliest articulations, what we call “criminal procedure” has been aimed at inducing suspects of criminal wrongs to admit their guilt. A person caught in flagrante or as to whom strong suspicions existed as to criminal transgressions, faced the accusing party and the pretrial organs, such as investigating magistrate or justice of the peace, alone and defenceless. The only help an accused might have had in early customary procedures, was the ability to hire a “champion” to act on his or her behalf in a trial by battle. These “champions”, available to suspects who were too weak or old to represent themselves, could be seen as precursors of criminal lawyers.1 In inquisitorial systems on the European continent and in Asia torture was legally permitted to compel confessions of guilt and continental European lawyers played no role in pretrial proceedings until after the case had already been investigated and the preliminary hearing dossier prepared. In the adversarial system in Great Britain, as well, the defendant confronted his or her accuser at trial without the aid of counsel, and was compelled to speak and, either by admitting guilt, showing remorse, or alleging mitigation, tried to get the jury to spare him the death penalty.2 Counsel in felony cases, where the death penalty was threatened, was only allowed in the eighteenth century, around the time the English courts began recognizing the right to silence.3 Today, criminal procedure still attempts to induce confessions of guilt through mechanisms such as pretrial detention, plea bargaining, confession-bargaining at trial, penal orders, and various methods of eliminating the full-blown criminal trial. The “trial”, where a lawyer was always considered to be the most necessary, is rapidly disappearing as the way of testing the prosecution’s case and determining guilt or innocence. Thorough criminal investigations, once more or less the norm, are only conducted today in a handful of serious cases. The right to defence counsel, which is now recognized as a human right and is included in all human rights conventions and all modern constitutions, is a right, without which the presumption of innocence and the right to remain silent would be of little value. Only counsel stands between the state and the criminal suspect and in order to effectively represent both the guilty and the innocent client, the defence lawyer must be trusted by the client not to reveal potentially incriminating admissions or evidence that the client entrusts to the lawyer. Thus the importance of the attorney-client privilege and the confidentiality of communications and interactions between criminal defence lawyer and criminal suspects or defendants. It has been said that, in the criminal context, confidentiality between attorney and client should be treated like the church confessional and that the relationship is so crucial to the administration of justice that a lawyer’s duty of confidentiality never ends. In a 1981 decision, the U.S. Supreme Court stated: “The attorney-client 1

Thaman (2010), pp. 303–304; Bachmaier Winter (2008), pp. 11 ff.; Vogler (2005), pp. 20 ff. Langbein (2003), pp. 11–40. 3 Ibid., at 106–174. 2

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privilege is the oldest of the privileges for confidential communications known to the common law. Its purpose is to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice [. . .].”4 The European Court of Human Rights (ECtHR) has recognized that professional secrecy is the basis of the relationship of confidence between lawyer and client,5 and: “this privilege encourages open and honest communication between clients and lawyers [. . .] confidential communication with one’s lawyer is protected by the Convention as an important safeguard of one’s right to defence. Indeed, if a lawyer were unable to confer with his client and receive confidential instructions from him without surveillance, his assistance would lose much of its usefulness [. . .]”.6 And in Viola v. Italy the ECtHR stated that “[. . .] the right, for the accused, to communicate with his lawyer without being heard by third parties is among the basic requirements of the equitable process in a democratic society and derives from article 6.3 c) of the Convention”.7 This chapter aims at providing a comparative overview on the protection of the fundamental right to counsel and the lawyer-client confidentiality in criminal proceedings.8 Although many of the general principles of the confidentiality duty are also mutatis mutandis applicable to the lawyer-client confidentiality in civil and administrative proceedings, the analysis is focused on the regulation, safeguards and implementation in criminal proceedings. This chapter will first explore the extent of the right to counsel, at which procedural stage and in relation to what types of offences it inures. Before analysing the protection of the right to counsel and its content at the national level, the principles set out by the ECtHR will be addressed, because the case law of the ECtHR explains the higher degree of harmonization of the right to counsel in the European countries. We will also mention the impact of the EU Directive on the Right to Access to Lawyer, crucial to understanding the gradual approximation of the laws of the EU countries in this area.

4 Upjohn Co. v. United States, 449 U.S. 383, 389 (1981). For a comprehensive approach on the lawyer-client privilege in the U.S., see generally Epstein (2017), pp. 1 ff. where throughout the two volumes all aspects of attorney-client privilege in the U.S. system are addressed. 5 André and Another v. France, Appl. no. 18603/03, of 24 July 2008, § 41; Xavier da Silveira v. France, Appl. no. 43757/05, of 21 January 2010, § 36. 6 Castravet v. Moldavia, Appl. no. 23393/05, of 13 June 2007, §§ 49–50. In the same sense, Sakhnovskiy v. Russia, Appl. no. 21272/03, of 2 November 2010, §§ 102 and 104; Foxley v. United Kingdom, Appl. no. 33274/96, of 20 June 2000. 7 Marcello Viola v. Italy, Appl. no. 45106/04, of 5 October 2006. If a lawyer could not meet his client without such supervision and receive confidential instructions from him, his assistance would lose much of its usefulness. In the same sense S. v. Switzerland, Appl. no. 12629/87 and 13965/88, of 2 November 1991; or Brennan v. United Kingdom, Appl. no. 39846/98, of 16 October 2001. 8 This comparative chapter is based on the general report prepared for the XXth Congress of the International Academy of Comparative Law, held in Fukuoka, Japan, 22–28 July 2018.

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Then it will discuss the breadth of the attorney-client privilege and the related confidentiality of attorney-client communications: the types of communications to which it applies and the extent to which it derives from the constitutional right to counsel, or only from national legislation. Following this will be a discussion of the extent to which national laws protect the lawyer against confidential attorney-client material being the subject of a government subpoena, an office search, a search of a computer or stored digital files, or an interception of attorney-client conversations or e-mail. Finally, it will be examined under what conditions will violations of the right to counsel and the right to confidentiality of communications between lawyer and client actually lead to excluding evidence from the trial or rendering the entirety of the proceeding a nullity. Thereafter will follow a conclusion as to the state of the law and practice in this area with suggestions as to where improvements could be made.

2 The Right to Counsel During the Criminal Process 2.1

The Right to Counsel in General

The right to counsel in criminal cases is guaranteed at the international level by Art. 14(2)(d) of the International Covenant on Civil and Political Rights of the U.N. (ICCPR) which guarantees the accused the right “(d) to be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it.”9 At regional level Art. 8(2)(d) and (e) of the American Convention of Human Rights (ACHR) similarly guarantees “(d) the right of the accused to defend himself personally or to be assisted by legal counsel of his own choosing, and to communicate freely and privately with his counsel” and “(e) the inalienable right to be assisted by counsel provided by the state, paid or not as the domestic law provides, if the accused does not defend himself personally or engage his own counsel within the time period established by law” and has been ratified by all countries in South and Central America. The right to counsel is recognized in all member states of the Council of Europe by virtue of Art. 6(3)(c) European Convention of Human Rights (ECHR), which guarantees a criminal defendant the right “to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require”. The ECtHR

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There are 171 state parties to the ICCPR. China and Cuba and a few small island states have signed the ICCPR but not ratified it. Another 20 states, among them Saudi Arabia, U.A.E., Malaysia, Myanmar and other small states have neither signed nor ratified.

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has also stated that “[. . .] while Article 6 (3)(c) confers on everyone charged with a criminal offence the right to ‘defend himself in person or through legal assistance [. . .]’, it does not specify the manner of exercising this right. It thus leaves to the Contracting States the choice of the means of ensuring that it is secured in their judicial systems, the Court’s task being only to ascertain whether the method they have chosen is consistent with the requirements of a fair trial”.10 The right to an effective remedy and to a fair trial is also guaranteed in Art. 47 of the EU Charter of Fundamental Rights, including the right to legal assistance: “Everyone shall have the possibility of being advised, defended and represented. Legal aid shall be made available to those who lack sufficient resources in so far as such aid is necessary to ensure effective access to justice.” The right to counsel is also explicitly recognized in most modern democratic constitutions and all democratic codes of criminal procedure (CCP) as well. Thus, we shall presume that there is a right to hire a lawyer of one’s choice in all countries11 at any stage of the criminal investigation, although some countries require that a lawyer be specially qualified as reliable to defend in cases involving state secrets.12 Furthermore, some countries will prevent gang members from freely hiring counsel of their choice if there is cause to believe that the lawyer may be involved in the criminal organization’s activities.13 There is also a system of providing appointed lawyers for those who cannot afford to hire a lawyer with their own funds. Where the systems differ, however, is with respect to the types of criminal cases where the suspect or defendant has a right to counsel, and thus to courtappointed counsel, and to the stage of the proceedings in which this right inures. But before discussing those issues, it is important to provide an overview of the supranational harmonization of the right to defence counsel within the European landscape.

2.2

The Increasing Harmonization on the Right to Counsel at the European Level

Within the European landscape the ECtHR has defined the content of the right to legal counsel under Art. 6 (3)(c) ECHR and its scope within criminal proceedings.

Quaranta v. Switzerland, Appl. no. 12744/87, of 24 May 1991, § 30; Öcalan v. Turkey, Appl. no. 46221/99, of 12 May 2005, § 135. 11 An exception may be China, where officials may use pressure to get an accused to not hire a lawyer who is seen as zealous and effective. See Sun and Chen in this volume. 12 This is true in the U.S. See Thaman, para. 4.2. 13 For Spain, see Villamarín López, para. 1, in relation to lawyers supposedly sympathetic to the Basque terrorist group ETA. See also Art. 138a and 138b German CCP, providing for exclusion in prosecutions involving national security or membership in a terrorist organization. 10

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For this comparative approach it is worth to briefly recall the content of this right as defined in the case law of the ECtHR.14 The Strasbourg Court has made clear, on numerous occasions, that one of the fundamental elements of the right to a fair trial consists in every accused’s right to be granted access to a lawyer, and that the state has to provide for its appointment in case this is required for the interests of justice and the defendant is not able to appoint one by himself.15 According to well-established case law of the ECtHR, this right of the suspect or accused, which is not absolute, exists from the time of arrest.16 However, only since the judgment Salduz v. Turkey in 200817 the ECtHR has explicitly recognized that statements made by the suspect during a police interrogation without being assisted by counsel cannot be used as evidence in trial. The right to access to a lawyer, is closely connected to the protection of the right to remain silent, but both rights are independent. Thus, even if the defendant remains silent, the ECtHR has found that “where laws systematically prevent persons charged with a criminal offence from accessing legal assistance in police custody, Article 6 ECHR is violated.”18 The right to counsel not only involves legal assistance to the accused in the preparation and development of the defence strategy, but it is also crucial for ensuring that all procedural safeguards are respected throughout the whole criminal process, including the pretrial stage.19 In addition, it requires that legal assistance is effective and not a mere formality,20 and therefore the state authorities must ensure that the defence lawyer receives all necessary information to provide an adequate defence21 and has due access to the record.22 The ECtHR, however, allows the defendant to waive his right to counsel as protected by Art. 6 (3)(c) ECHR, as far as such a waiver is done willingly and in an unequivocal fashion (explicitly or tacitly); 14

See generally the Handbook on European Law relating to access to justice, 2016. See, among others, Croissant v. Germany, Appl. no. 13611/88, of 25 September 1992; Poitrimol v. France, Appl. no. 14032/88, of 23 November 1993; Demebukov v. Bulgaria, Appl. no. 68020/01, of 26 February 2008; Karadag v. Turkey, Appl. no. 12976/05, of 29 June 2010. 16 See John Murray v. United Kingdom, Appl. no. 18731/91, of 8 February 1996; Magee v. United Kingdom, Appl. no. 28135/95, of 6 June 2000, among many others. 17 Salduz v. Turkey, Appl. no. 36391/02, of 27 November 2008. 18 Dayanan v. Turkey, Appl. no. 7377/03, of 13 October 2009, § 33: where the ECtHR found a violation of Art. 6 (3)(c) ECHR. 19 However, the manner in which Art. 6 (1) and (3)(c) ECHR are to be applied during the preliminary investigation depends on the special features of the proceedings involved and on the circumstances of the case. In order to determine whether the aim of Art. 6 ECHR—a fair trial—has been achieved, regard must be had to the entirety of the domestic proceedings conducted in the case (Imbrioscia v. Switzerland, Appl. no. 13972/88, of 24 November 1993, § 38; reiterated in Öcalan v. Turkey, Appl. no. 46221/99, of 12 May 2005, §135). 20 See Artico v. Italy, Appl. no. 6694/74, of 13 May 1980. 21 See Goddi v. Italy, Appl. no. 8966/80, of 9 April 1984; also, later Öcalan v. Turkey, Appl. no. 46221/99, of 12 May 2005. 22 See, among others, Miailhe v. France, Appl. no. 18978/91, of 26 September 1996; Natunen v. Finland, Appl. no. 21022/04, of 31 March 2009. 15

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indeed, the ECtHR has emphasized that appropriate precautions must be taken to verify that the defendant knows his rights and the consequences of his waiver, and does so completely free.23 As a rule, the right to appoint a lawyer of one’s own choice is only guaranteed to those who have sufficient resources to hire their own counsel.24 Moreover, the right to choose is not absolute, and the state may legitimately impose restrictions with respect to the people that can be appointed as defence lawyers, especially when it is done, allegedly, for the benefit of the accused.25 The Strasbourg case law has also deemed legitimate under Art. 6 (3)(c) ECHR to limit the number of lawyers that can represent the accused.26 According to Art. 6 (3)(c) ECHR, in case the suspect or the accused person do not have sufficient means to hire and pay legal assistance of their own choosing, they are entitled to have a duty lawyer appointed for free “when the interests of justice so require”. The ECtHR has held that it is for the national authorities to assess if free legal aid is justified on the ground of “the interests of justice”. As could be expected, there are remarkable differences among the legal systems of the Council of Europe’s member states about the interpretation of what the interests of justice require; and the European Court of Human Rights has often found such differences legitimate applying the doctrine of the national margin of appreciation. Nevertheless, the ECtHR itself has identified a number of aspects that must be weighed when deciding if free legal aid must be provided in the interests of justice. 23

See Kwiatotkowska v. Italy, Appl. no. 52868/99, of 30 November 2000; Sedjovic v. Italy, Appl. no. 56581/00, of 1 March 2006; Pavlenko v. Russia, Appl. no. 42371/02, of 1 April 2010. 24 See X v. Germany, Appl. no. 6946/75, of 6 July 1976; Campbell and Fell v. United Kingdom, Appl. no. 7819/77 and 7878/77, of 28 June 1984. 25 A clear example of this can be found in the judgment Mayzit v. Russia, Appl. no. 63378/00, of 20 January 2005. In this case, the accused had appointed his mother and his sister as defence counsel. The Moskovskiy District Court rejected the applicant’s request referring in particular to the fact that the case was complex and that therefore special legal knowledge and professional experience, which his mother and sister did not have, were required. The Strasbourg Court held that such restriction on the right to the free choice of counsel, as far as it was duly justified, and taking into account that the accused had been given the opportunity to appoint a lawyer, was not in violation of Art. 6 (3)(c) ECHR. We should keep in mind that in Russia, although in general it is necessary to have legal counsel for the defence in criminal proceedings, in cases of minor importance, the court may authorize that the defence is entrusted to people without legal qualification. 26 Thus, in Croissant v. Germany, Appl. no. 13611/88, of 25 September 1992, the Strasbourg Court ruled that the limitation on the number of lawyers foreseen by Art. 137 German CCP is compatible with the ECHR. Such limitation, however, was not directly at issue in this case. The ECtHR had to decide if it was legitimate that a court imposed a duty counsel for the accused Klaus Croissant, who was himself a lawyer and had already appointed five lawyers for his defence (moreover, the duty counsel in question was of a political party contrary to that of the defendant). An additional question was if it was possible to oblige the accused to pay the remuneration of the duty counsel appointed by the court against his wishes. The ECtHR held that the rules of the German procedural law were compatible with Art. 6 (3)(c) ECHR, with regard to the limitation of the number of lawyers as well as with regard to the appointment of an additional duty counsel to guarantee the adequate development of the process and to the obligation to assume the payment for his professional services.

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Among them are: the seriousness of the crime, which should be normally evaluated taking into account the applicable penalty; the importance of the interests at stake for the accused, which is of course susceptible of diverse interpretations, but usually related to the defendant’s personal and social situation; and the complexity of the facts of the case.27 All three factors should be considered, but they do not necessarily need to be added together; any of the three can justify granting legal aid.28 A few examples are illustrative of how the ECtHR has understood the notion of “interests of justice” in this context. In Monnell and Morris v. United Kingdom,29 the ECtHR ruled that refusal to grant free legal aid for appellate proceedings was compatible with the interests of justice because of the reduced possibility of success of the appeal. But in Pakelli v. Germany,30 which also involved a request for free legal aid on appeal, the ECtHR held that the complexity of the case justified the accused’s request under Art. 6 (3) (c) ECHR. In a similar vein, in Granger v. United Kingdom,31 the extreme difficulty and complexity of the case (which involved a defendant being sentenced for perjury) was considered by the ECtHR sufficient to find that refusing to provide free legal aid on appeal was in violation of Art. 6 ECHR, especially taking into account that such complexity had been recognized by the very decision that rejected the accused’s request. In Zdravko Stanev v. Bulgaria,32 after taking into account that the defendant was unemployed, could face prison sentence (although finally a fine was imposed), had no legal training and that despite the lack of complexity of the case there were several difficult procedural issues the ECtHR concluded that a qualified lawyer would undoubtedly have been in a position to plead the case with greater clarity and to counter the arguments raised by the prosecution more effectively. In view of these circumstances, the ECtHR ultimately found a violation of Art. 6 (3)(c) ECHR. With regard to lawyer’s fees and the costs of legal assistance the Strasbourg Court has normally avoided entering the territory of assessing what the concrete economic circumstances are that determine if a person has the right to obtain free legal aid. The ECtHR has consistently avoided defining what is to be considered “sufficient means” or to undertake the financial test, stating that such decision must be deferred to the competent national authorities. However, the ECtHR has made clear that the right to legal assistance is not incompatible with the fact that, once the accused has been sentenced, he is required by the state to pay for the fees of the duty counsel that 27 See Pakelli v. Germany, Appl. no. 8398/78, of 25 April 1983; Granger v. United Kingdom, Appl. no. 11932/86, of 28 March 1990. 28 Zdravko Stanev v. Bulgaria, Appl. no. 32238/04, of 6 November 2012. 29 Monnell and Morris v. United Kingdom, Appl. no. 9562/81, of 2 March 1987. This case was about an offence of burglary, for which the applicant received a 3 year sentence. When the court refused to give the applicant another solicitor for the appeal, it took into account the opinion expressed in writing by the counsel that had represented the accused (of his free choosing), indicating that “no prospect whatsoever exists of appealing the conviction successfully”. 30 Pakelli v. Germany, Appl. no. 8398/78, of 25 April 1983. 31 Granger v. United Kingdom, Appl. no. 11932/86, of 28 March 1990. 32 Zdravko Stanev v. Bulgaria, Appl. no. 32238/04, of 6 November 2012, § 40.

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he was provided.33 For the Strasbourg Court, the purpose of free legal aid is to adequately guarantee every person’s rights of defence; hence, once this aim has been achieved and the process ended with a sentence, claiming the payment of the lawyer’s fees is not contrary either to Art. 6(1) or (3) ECHR.34 In sum, according to the ECtHR’s case law, the common core of the right to legal assistance in criminal proceedings is that all states must regulate and guarantee every accused’s right to have a defence counsel during the criminal process, in its broadest meaning: i.e., such guarantee extends to each and every step of the process, from the pretrial stage to the end of the criminal proceedings. This right can be waived if the accused opts for self-defence, provided that the waiver is voluntary and unequivocal.35 In addition, other state obligations include: the protection of the confidentiality of communications as a general rule; the guarantee of the right to be informed of the right to appoint a lawyer; and the organization of a system of free legal assistance for those suspects or accused who lack sufficient means, “when the interests of justice so require”. Despite such harmonization, it is clear that each member state of the Council of Europe retains a broad margin to determine, among other things, in which cases it is mandatory to grant legal assistance, which are the specific actions that define an “effective defence” and under which circumstances “the interests of justice” require that an accused without sufficient means is provided a duty counsel free of charge. Undoubtedly, the case law of the ECtHR has played a significant role in setting minimum standards for the right to a legal defence within all the Council of Europe member states. However, Art. 6 (3)(c) ECHR does not detail the conditions for the exercise of this right, thus leaving a wide margin of discretion for each of the states to regulate the content and forms of exercising the right to legal assistance. Although the protection of the right to counsel has been clearly strengthened by way of the case law of the Strasbourg Court, the diversity found in the legal systems of the 47 member states to the Convention is enormous. Leaving aside the common core of

33

See Croissant v. Germany, Appl. no. 13611/88, of 25 September 1992; X v. Germany, Appl. no. 6946/75, of 6 July 1976. In similar terms, see also Luedicke, Belkacem and Koç v. Germany, Appl. nos. 6210/73, 6877/75 and 7132/75, of 28 November 1978, with respect to the three applicants’ obligation to pay for the expenses of the interpreter assisting them in the trial because they did not know the German language. The three convictions were for offences of different nature (road offence, traffic, robbery and injuries, respectively) but in all of them the same issue arose: whether it was legitimate to require the convicts to pay for interpretation costs ex post. 34 The Luedicke judgment would deserve to be analysed also in the light of the Directive EU 2010/ 64/UE of the European Parliament and of the Council, of 20 October 2010, on the right to interpretation and translation in criminal proceedings. This EU Directive raises the level of protection of the accused’s right to interpretation, which must be free of charge for every suspect or accused who does not understand the language of the proceedings. Art. 4 of the Directive (Costs of interpretation and translation) provides: “Member States shall meet the costs of interpretation and translation resulting from the application of Articles 2 [Right to interpretation] and 3 [Right to translation of essential documents], irrespective of the outcome of the proceedings.” 35 A.T. v. Luxembourg, Appl. no. 30460/13, of 9 April 2015, § 59; Pishchalnikov v. Russia, Appl. no. 7025/04, of 24 September 2009, §§ 77–78. The waiver can be also limited.

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the protection of the right to counsel, national laws show a broad panoply of solutions in providing the right to legal assistance to the defendants. Not only do the legal frameworks present many differences, but empirical studies also show that the regulation is applied and interpreted in many different ways in practice,36 sometimes even in a very questionable manner.37 At the end, the function of the Strasbourg Court is to verify whether the way in which that right has been protected in each specific case is in accordance with the requirements of the right to a fair trial, taking into account the proceedings as a whole and the legitimacy, necessity and proportionality of the restrictions on that right. By stating that “the rights of the defence will be irretrievably prejudiced when incriminating statements made during the police interrogation without access to a lawyer are used for a conviction”,38 the Salduz case represented a milestone in safeguarding the suspect’s rights in criminal proceedings at the European level. This caused various European countries to react almost immediately by amending their legislation and practice in this field. This was the case of France and its garde à vue system, or Scotland, where the suspect could be detained without having access to a lawyer for 6 h.39 However, out of this ruling, it was not perfectly clear what were the legal reforms to be adopted by the member states of the Council of Europe in order to adjust their system to the Salduz doctrine. One of the issues discussed was whether the right to legal assistance should be guaranteed only in the case of the police interrogation of the detainee—which was the specific situation in which Yusuf Salduz was—or if it should also be guaranteed when the suspect was summoned to testify and appeared voluntarily to answer the questions of the police. In this judgment the ECtHR did not address—and it was not its task—other important questions related to the right to counsel either, for example what was to be understood as “compelling reasons” that could justify an exceptional suspension of the right to counsel, or whether the right to legal aid also applied during police and pretrial interrogation of the suspect. Representing a major advance in the protection of suspects and ensuring their right to counsel, Salduz did not provide for a harmonized standard within the European landscape.40 Within the EU, several Directives adopted on the right to defence and the protection of the procedural safeguards of suspects and accused persons in criminal

36

Cape et al. (2007), pp. 10 ff. Before the adoption of the EU Directive different studies showed significant shortcomings in the protection of the right to access to lawyer and other procedural safeguards in practice, for example the EU project carried out by Spronken et al. (2009), and in particular on the right to counsel, pp. 21 ff. Interesting empirical data regarding the right to access to lawyer (until 2011) is summarised in Schumann et al. (2012a), pp. 31–48. This article is a summary of the broader study on right to access to lawyer in practice in four countries (Austria, Germany, Slovenia and Croatia) published in the book by Schumann et al. (2012b). 38 Salduz v. Turkey, Appl. no. 36391/02, of 27 November 2008, § 55. 39 Cras (2014), p. 33. 40 In the same sense, Spronken (2012), p. 99. 37

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proceedings also have a significant impact on the right to counsel. Art. 82.2 b) of the Treaty on the Functioning of the European Union (TFEU) confers legislative competence on the Union to establish by means of directives minimum rules in order to “facilitate mutual recognition of judgments and judicial decisions and police and judicial cooperation in criminal matters with cross-border dimension”. In exercise of that competence, on 22 October 2013, the European Parliament and the Council adopted Directive 2013/48/EU on the right to access to lawyer (DAL).41 Suspects or accused persons shall have access to lawyer without undue delay “from the time when they are made aware by the competent authorities of a Member State, by official notification or otherwise, that they are suspected or accused of having committed a criminal offence” (Art. 2.1 DAL). To prevent that delays in such notifications may also cause in practice the denial to access to lawyer, the Directive also establishes that in any event the right to counsel shall be granted—with or without such notification—when the person is subject to one of the situations contemplated under Art. 3 DAL, and so ensuring also the right to counsel before being questioned by the police or by another law enforcement or judicial authority. The conditions, time and duration of communications between suspect and lawyer are left to the member states, but national laws shall ensure that the suspect and accused person have access to a lawyer “in such time and in such a manner so as to allow the persons concerned to exercise their rights of defence practically and effectively” (Art. 3.1 DAL).42 The understanding of what an effective defence requires at every stage of the proceedings is interpreted in a diverse way in the different legal systems as will be seen later, and it is not unusual that a minimum time for the meeting with the counsel is not regulated, neither is foreseen whether the interrogation can be interrupted to communicate privately with the lawyer. The EU Directive also applies to persons who, in the course of being questioned by the police or by another law enforcement authority, become suspects or accused persons. Therefore, although the Directive is not of general application to witnesses, in accordance with the ECtHR case law43 Art. 2.3 of the Directive provides that, from the moment a witness is considered a suspect or accused, the right to counsel

41

Directive 2013/48/EU of the European Parliament and of the Council of 22 October 2013 on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings, and on the right to have a third party informed upon deprivation of liberty and to communicate with third persons and with consular authorities while deprived of liberty. 42 Restriction on the number and length of the meetings with his lawyers—two one hour visits per week—was one of the factors that according to the Strasbourg Court in the Öcalan case “made the preparation of his defence difficult”, Öcalan v. Turkey, Appl. no. 46221/99, of 12 May 2005, § 137. 43 Shabelnik v. Ukraine, Appl. no. 16404/03, of 19 February 2009. In this case, the sentence of conviction was based on Shabelnik’s confession made to the police regarding a homicide. The interrogation took place without informing him of his rights as a suspect, although the police already considered him as such: the fact that after his statements he ordered a reconstruction of the facts at the scene of the crime, in particular, confirms that he was considered a suspect, so his right to legal assistance had to be guaranteed. See also Brusco v. France, Appl. no. 1466/07, of 14 October 2010.

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shall be granted. The Directive does not apply to proceedings on criminal misdemeanours. Finally, the Directive also regulates the right of the suspect or accused in criminal proceedings—and those persons subject to European arrest warrant proceedings—to have a third person informed of their deprivation of liberty. It also provides for the right to communicate with third persons—be it a relative, consular authorities or any other person you trust—while deprived from liberty. This Directive on access to lawyer has further strengthened—and harmonized—the right to counsel of suspects and accused persons in criminal proceedings. One of the problems that became manifest during the negotiations on the Directive was the absence of a common notion of what the right of access to a lawyer implies. Therefore the EU legislator opted to provide rules differentiating two situations: on the one hand the situation where the suspect or defendant being interrogated is not detained and, on the other hand, when he is deprived of liberty. In the first case, the EU member states are obliged to offer the suspect or accused all the necessary information to facilitate the access to a lawyer. But, as explained in recital 27, the member states are not obliged to take active measures so that the suspect or accused to be interrogated is effectively assisted by a lawyer. This is left to be decided by the suspect or accused that is not detained, who shall undertake the necessary arrangements to be represented by lawyer, if he wishes to. In the second case, the level of protection is raised and the authorities will have to actively contribute to the detainee being assisted by a lawyer and, where appropriate, free of charge, unless he waives this right. As can be seen, the right of access to a lawyer guaranteed in the Directive basically implies that the state will not prevent the presence and intervention of a lawyer in certain procedural acts if the accused wishes to be assisted by lawyer; and in the case of detention, a higher level of protection is granted, the states being obliged to take active measures to provide access to legal assistance to the detainee. The content of the right to be assisted by a lawyer is regulated mainly in the lengthy Art. 3 of the Directive, complemented by the rules on confidentiality (Art. 4 DAL), exceptions and waivers of the right (Art. 8 and 9 DAL), and by specific rules concerning the proceedings of the European arrest warrant (Art. 10 DAL). The European Union legislator, aware of the crucial role of attorneys to ensure full respect of the rights of the suspect or the accused, as well as to prevent situations of abuse during detention, focuses mainly on safeguarding those rights at the pretrial stage. Accordingly, Art. 3.3 DAL requires the member states to ensure that the suspect or accused person can meet and communicate privately with the lawyer who represents him, even before police or judicial interrogation. This right must be guaranteed “without undue delay” after deprivation of liberty or when performing certain procedural acts during the investigation phase, and specifically the right to

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meet privately with an attorney before the suspect or accused is questioned by the police or by another law enforcement or judicial authority.44 The Directive not only recognizes the right of counsel to be present during the interrogation of the suspect or defendant, but also to participate “effectively” when they are questioned: “such participation shall be in accordance with procedures under national law, provided that such procedures do not prejudice the effective exercise and essence of the right concerned” (Art. 3.3 (b) DAL). Presence and participation during investigative acts shall be ensured at least during identity parades; confrontations and reconstructions of the scene of a crime, but only where “those acts are provided for under national law and if the suspect or accused person is required or permitted to attend the act concerned” (Art. 3.3 (c) DAL). The EU Directive seeks to ensure the standards already set out by the ECtHR in the cases Mehmet Serif Öner v. Turkey (identity parades)45 and Shabelnik v. Ukraine (reconstruction of the scene of a crime),46 adding the right to have counsel present during confrontation. The Directive requires the member states to respect the confidentiality of the communications between the suspect or accused and the lawyer, “in the exercise of the right of access to a lawyer provided for under this Directive (Art. 4 DAL). Lawyer-client confidentiality shall extend at least to “meetings, correspondence, telephone conversations and other forms of communication permitted under national law” without derogation.47 However the crime-fraud exception is regarded as any 44 Art. 3.2 DAL: Suspects or accused persons shall have access to a lawyer without undue delay. In any event, suspects or accused persons shall have access to a lawyer from whichever of the following points in time is the earliest:

(a) before they are questioned by the police or by another law enforcement or judicial authority; (b) upon the carrying out by investigating or other competent authorities of an investigative or other evidence-gathering act in accordance with point (c) of paragraph 3; (c) without undue delay after deprivation of liberty; (d) where they have been summoned to appear before a court having jurisdiction in criminal matters, in due time before they appear before that court. 45 Mehmet Serif Öner v. Turkey, Appl. no. 50356/08, of 13 September 2011, §§ 21 and 22. The facts in this case are very similar to the ones in Salduz, as the detainee was also denied access to a lawyer during the police interrogation, but the ECtHR further underlines that in the case at hand the line-up was carried out without the presence of counsel and that the conviction was mainly based upon such identification measure. The ECtHR, after recalling the principles set out in Salduz, states: “In this regard, the Court observes that when the applicant was in police custody, he took part in an identification parade and was identified by the intervening parties as the person who had taken part in the respective armed robberies which had occurred in 1993. The Court further notes that in convicting the applicant the trial court relied heavily on the result of this identification parade. (. . .) Having regard to the foregoing and bearing in mind that the restriction imposed on the applicant was systematic according to the domestic legislation in force at the time, the Court finds no particular circumstances which would require it to depart from its findings in the aforementioned Salduz judgment. There has therefore been a violation of Article 6 § 3 (c) of the Convention in conjunction with Article 6 § 1 in the present case.” 46 Shabelnik v. Ukraine, Appl. no. 16404/03, of 19 February 2009, § 57. 47 Recital 33 Explanatory Memorandum DAL.

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criminal activity of a lawyer and thus should not be considered to be legitimate assistance to suspects or accused persons within the framework of this Directive.48 Rights mentioned under Art. 3.3 DAL may temporarily be derogated in exceptional circumstances and only at the pretrial stage upon compelling reasons, which are: (a) where there is an urgent need to avert serious adverse consequences for the life, liberty or physical integrity of a person; or (b) where immediate action by the investigating authorities is imperative to prevent substantial jeopardy to criminal proceedings (Art. 3.6 DAL). The suspect or defendant’s waiver of his rights shall be possible only after enough information is provided and shall only be valid if given voluntarily and knowingly. Waiver of the right to access to lawyer as envisaged by the Directive shall be possible without prejudice to national law requiring mandatory presence of lawyer (Art. 9 DAL). At the EU level, the right to have a lawyer is also safeguarded by ensuring that the suspect or accused will be informed about this right. Directive 2012/13/EU on the right to information in criminal proceedings requires that the suspect or accused person is informed promptly, among other rights, on the right to access to a lawyer.49 This information is to be given in a simple language so that the suspect or accused really understands what his rights are, and how he shall proceed to appoint a lawyer (Art. 3 Directive 2012/13/EU). The provisions on the right to a lawyer are complemented by Directive 2016/1919/EU on legal aid.50 This Directive requires the member states to provide legal aid in criminal proceedings in conformity to the Directive on access to lawyer. Legal aid shall be subject to a financial and merit test, according to national law. Although leaving a wide margin to the national laws to establish under which conditions legal aid will be provided, at least it includes the elements to take into account when undertaking the financial and means test. Following Art. 4 of Directive 2016/1919/EU: 1. Member States shall ensure that suspects and accused persons who lack sufficient resources to pay for the assistance of a lawyer have the right to legal aid when the interests of justice so require. 2. Member States may apply a means test, a merits test, or both to determine whether legal aid is to be granted in accordance with paragraph 1. 3. Where a Member State applies a means test, it shall take into account all relevant and objective factors, such as the income, capital and family situation of the person concerned, as well as the costs of the assistance of a lawyer and the standard of living in that Member State, in order to determine whether, in accordance with the applicable criteria in that Member State, a suspect or an accused person lacks sufficient resources to pay for the assistance of a lawyer.

48

Ibidem. Directive 2012/13/EU of the European Parliament and of the Council of 22 May 2012 on the right to information in criminal proceedings. 50 Directive 2016/1919/EU of the European Parliament and of the Council of 26 October 2016 on legal aid for suspects and accused persons in criminal proceedings and for requested persons in European arrest warrant proceedings. 49

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L. Bachmaier Winter and S. C. Thaman 4. Where a Member State applies a merits test, it shall take into account the seriousness of the criminal offence, the complexity of the case and the severity of the sanction at stake, in order to determine whether the interests of justice require legal aid to be granted. In any event, the merits test shall be deemed to have been met in the following situations: (a) where a suspect or an accused person is brought before a competent court or judge in order to decide on detention at any stage of the proceedings within the scope of this Directive; and (b) during detention.

2.3

The Appointment of Counsel for the Indigent

Of utmost importance for the integrity of the criminal justice system is that appointed lawyers will defend their clients with the same vigour as a lawyer paid by the suspect or accused would, that he will be completely independent from law enforcement organs such as criminal investigators, police, prosecutors or the courts, and will abide by the same standards of confidentiality as a paid lawyer would. Even in EU legal systems where, as seen above, there is a Directive establishing common minimum rules concerning the right to legal aid, it does still leave a wide margin for the EU member states to design the system and scope for granting legal aid. The EU Directive does not affect the provisions of national law concerning the mandatory presence of a lawyer but determines that the competent authority making the decision about legal aid “should be an independent authority that is competent to take decisions regarding the granting of legal aid, or a court, including a judge sitting alone. In urgent situations the temporary involvement of the police and the prosecution should, however, also be possible in so far as this is necessary for granting legal aid in a timely manner”.51 Again, here, despite a certain harmonisation at the EU level, the comparative analysis precisely shows the existing divergences in the system for appointing legal aid lawyer in the countries studied. It is sometimes the official in charge of the procedural stage at which counsel is required who is responsible for getting counsel appointed to those who qualify, whether due to indigence or because defence counsel is mandatory.52 In most democratic countries, however, the prosecutor, judge or investigative official must turn to local bar associations, which then, following their procedures, select a lawyer to represent that particular person.53 In Greece, the presiding judge of the court will make the decision on legal aid, and proceed to appoint the legal aid lawyer from a list provided by the bar, following the alphabetical order.54

51

See Recital 24 of the Explanatory Memorandum of the EU Directive 2016/1919/EU. See for instance, Art. 130 and 132(1)(b) CH-CCP, Lynn and Wohlers, para. 1.2. 53 See Art. 767 ES-CCP. In Switzerland, the appointment procedure differs from canton to canton with most cantons having on-call lawyers organized by the local bar associations (Lynn and Wohlers, para. 1.2). 54 See Triantafyllou, para. 5.2. 52

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Some systems limit such appointments to lawyers who have signed up for criminal defence appointments and might have some experience in this field,55 whereas others might just pick lawyers from the general roster of licensed practitioners,56 or lists provided by local bar associations. Although the ECtHR has stated that there is no absolute right to choose one’s own court-appointed legal aid lawyer,57 in some countries, an indigent can request that a particular lawyer be named, subject, of course, to that lawyer’s availability and willingness to take the case,58 yet in most countries the indigent suspect or accused has no choice in this respect. Some systems have a special method of securing lawyers to provide assistance in jails and police stations shortly after arrest, called stationhouse lawyers in the U.S. or, in the UK, “duty solicitors.” We will discuss such jailhouse lawyers in the next section. In Russia, and other post-Soviet countries, this required independence has been undermined by so-called “pocket lawyers” who are named by investigative officials and actually work for them rather than in the interests of the suspect.59 Most democratic countries law enforcement agencies may not suggest that particular lawyers be appointed to represent criminal suspects, and they may be subject to disciplinary punishment if they do so.60 In Switzerland, however, where the prosecutor appoints counsel for suspects (“his own enemy”) during the preliminary investigation, there has been criticism of a tendency to appoint counsel with whom they have a good relation.61 There still may exist an informal tendency in some countries, like the U.S. and Germany, for judges to appoint lawyers they know will be easy for them to work with62 and appointed solicitors in the U.K. are often seen as passive and tending to aid the police rather than their clients.63 A second method of providing defence for the indigent are public defender offices. These were first pioneered in Brazil and have since been instituted in many Latin American countries. They were first introduced in the early twentieth century in California in the U.S., and now exist in the federal system of courts, in most states and in nearly all metropolitan areas where crime-rates are high. In California, typically, large metropolitan counties have public defender offices, whereas smaller rural counties use a court-appointment system similar to what one finds in Europe. In San Diego County, on the other hand, private lawyers bid to represent all indigents, and if their bid is accepted, they form a kind of private public

55

Such as in Portugal, see Costa Ramos et al., para. 1.3. Such as in Italy, see Ceresa-Gastaldo, para 1.2.1. 57 Lagerblom v. Sweden, Appl. no. 26891/95, of 14 January 2003. 58 This is true in Germany and Switzerland. See Weisser, para. 1.4; Lynn and Wohlers, para. 1.2. 59 Thaman (2008b), p. 103. 60 This is true in Germany and Italy. See Weisser, para. 1.4; Ceresa-Gastaldo, para. 1.2. 61 Lynn and Wohlers, para. 1.2. 62 Weisser, para. 1.4. On the “cozy” relations between some judges and appointed lawyers in death penalty cases which “keep the system running,” see Thaman (2000), p. 1020. 63 Stone and Lynn, para. 3.2. 56

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defender office. Missouri, on the contrary, has a state-wide public defender office with offices in the big metropolitan counties, and smaller offices representing several smaller rural counties. Some countries have “legal aid” offices which provide state-paid lawyers for criminal and sometimes also civil cases. Some of these offices do not necessarily specialize in criminal defence, however, as do public defender offices.64 Since 2003, China has a legal aid system under the tutelage of the Ministry of Justice which is charged with providing lawyers for indigent defendants and cases where mandatory defence is required. Unfortunately, not enough lawyers have been recruited to this agency and, in fact, less than half of those who are appointed to represent indigent defendants have a law degree. The agency hires private counsel to handle the bulk of appointments, with legal aid staff handling only around 23% of the cases. The legal aid office also rejects around 85% of all requests, claiming the required level of indigency has not been established. In the end, defendants have lawyers in only 30% or less of criminal cases.65 In Turkey, although a financial means test does not seem to apply, and there is no test to check the claims of insufficient means, in practice the defendants using the services of a duty appointed lawyer for free appears to be very low (around a 3% of all the suspects or accused persons).66 The quality of appointed counsel, whether private, or public defender, of course, depends on the budget allotted for criminal defence. The Strasbourg Court has repeatedly stated that the legal assistance has to be effective and a legal aid lawyer’s manifest failure to mount a practical and effective defence may violate Art. 6 ECHR.67 Although the state cannot be held responsible for every shortcoming on the part of a lawyer appointed for legal aid purposes, they have to provide the adequate legal framework and financial means to provide for an effective legal aid system. Within the EU, Art. 7 EU Directive 2016/1919 on legal aid, includes a provision regarding the quality of the legal aid services requiring member states to “take necessary measures, including with regard to funding, to ensure that: (a) there is an effective legal aid system that is of an adequate quality; and (b) legal aid services are of a quality adequate to safeguard the fairness of the proceedings, with due respect for the independence of the legal profession.” In general, budgets for criminal defence are usually not sufficient to provide high quality legal assistance to indigent defendants. In the U.S., budgets have been slashed at all levels and the quality of defence has suffered.68 In many systems, as in most U.S. states, defendants who accepted appointed counsel may be required to repay the government for these services if they are later deemed to have sufficient funds to do so.69

64

For Japan, Sasakura, para. 2.4, and for the Netherlands, Verrest and Nan, para. 2. See Sun and Chen, para. 2. 66 Sevdiren, para. 2.3. 67 Czekalla v. Portugal, Appl. no. 38830/97, of 10 October 2002, §§ 63–66. 68 See Thaman, para. 1.2. 69 Such as in the Netherlands: Verrest and Nan, para. 2. 65

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Mandatory Appointment of Counsel and Self-Representation

The right to self-representation is proclaimed in Art. 6 (3)(c) ECHR, Art. 8 (2) (d) ACHR and 14 (2)(d) ICCPR. The U.S. Supreme Court has also held that the 6th Amendment of the U.S. Constitution guarantees the right to self-representation.70 Therefore, in general, a criminal suspect or accused who otherwise could hire counsel or be eligible for appointed counsel, can waive the right and represent herself.71 Italy may be an outlier here, where even a lawyer may not represent himself, this a reaction to self-representation during the trials of the “red brigade” terrorists in the 1980s.72 In Spain, the assistance of a lawyer may only be waived with respect to traffic offences and misdemeanours with insignificant punishments, though the defendant has a right to be appointed counsel also in such cases.73 The mandatory representation by counsel in all criminal cases—save the petty offences mentioned—has raised the question whether the right to self-representation was not being infringed.74 This mandatory representation by lawyer seeks to prevent any kind of risk that defendants—especially those in detention—are induced to waive their right to legal assistance. In the past this was quite often, and is still the case in many countries.75 Many systems only extend a right to appointed counsel if the charged crime is of some gravity.76 In China, a “State Supervision Law” separate from the CCP has set up a special “supervision committee” to investigate bribery. It is not entirely sure whether suspects involved in bribery investigations will now have a right to counsel.77 Sometimes this is achieved by making counsel mandatory in upper level trial courts which handle only serious cases.78 However, in a minority of countries, including Portugal, all charged with crimes are eligible for a state-paid lawyer.79 In the U.S. and in France, the right to counsel only inures if one faces the possibility of jail or prison, even if it be for only 1 day.80 70

Faretta v. California, 422 U.S. 806, 835–36 (1975). This is also true in China, see Sun and Chen, para. 1. 72 Ceresa-Gastaldo, para. 1.2.1. 73 Villamarín López, para. 1. 74 Spanish Constitutional Court judgment 11/1997, of 27 January 1997. 75 In Turkey it seems that waivers of the right to counsel are quite common in police stations, Sevdiren, para. 2.3. 76 1 year or more (Art. 140(1)(2) DE-CCP; Art. 130 CH-CCP); 3 years or longer (Art. 289 JP-CCP); 12 years or more in the Netherlands (Nan and Verrest, para. 2). 77 See Sun and Chen, para. 2.1. 78 Such as the French cour d’assises, § 317 FR-CCP France or the German Landesgericht or Oberlandesgericht, Art. 140(1)(1) DE-CCP. 79 Costa Ramos et al., paras. 1.1 and 1.3. 80 Argersinger v. Hamlin, 407 U.S. 25, 37 (1972); §61(3)(1) FR-CCP. 71

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Finally, many CCPs in civil law countries often include a list of types of cases where the appointment of a defence counsel is mandatory and may not be waived such as where the suspect-accused is unable to conduct a defence due to a disability, mental illness, or being a juvenile.81 Occasionally one finds provisions for mandatory counsel in particularly complicated cases.82 In some countries, it is within the discretion of the judge to decide whether a mentally impaired defendant may represent himself.83 Mandatory counsel is also often required if the defendant is detained.84 Some procedural reasons for mandatory counsel also exist, such as where the case is subject to plea-bargaining or other modes of consensual, abbreviated or expedited procedures,85 or where the victim is acting as private prosecutor and is represented by counsel.86 In Poland, in cases not subject to mandatory appointment of counsel, or where the defendant is, due to indigence, appointed counsel, defendants usually represent themselves due to the high cost of lawyers. Provisions for mandatory counsel do not exist in many common law countries, such as the U.S. and the U.K.87

2.5 2.5.1

The Pretrial Right to Counsel The Importance of Custody and Charging

Some countries guarantee the right to appointed counsel only after the suspect or accused has been charged, or an investigation has been officially initiated against him. The 6th Amendment of the U.S. Constitution guarantees the right to counsel “in all criminal prosecutions” and the U.S. Supreme Court has interpreted this to mean only after charge. In Japan, the courts and legislator were originally reluctant to enforce the pre-charge right to counsel due to the costs this would entail, and justified this by the fact that very few Japanese defendants are held in pretrial detention.88 Since 2004, however, those subject to pretrial detention are provided appointed counsel if they cannot afford to hire a lawyer.89 81 For instance, Art. 34 and 267 CN-CCP; Art. 140(1) DE-CCP; Art. 79 PL-CCP; Art. 61(1) (d) PT-CCP. For Turkey, see also Sevdiren, para. 2.1. If the defendant is “vulnerable”, counsel will also be mandatory in the Netherlands, Nan and Verrest, para. 2. 82 Art. 140(2) DE-CCP; Art. 132(2) CH-CCP. 83 For Japan, see Sasakura, para. 3.2.3. See also Indiana v. Edwards, 554 U.S. 164, 177–78 (2008). 84 For Japan, see Sasakura, para. 2.5. See also Art. 140(1) DE-CCP. 85 Art. 397, 495-9 FR-CCP. As to Switzerland, see Lynn and Wohlers, para. 1.3. 86 Art. 142(1)(9) DE-CCP. 87 See Stone and Lynn, paras. 1 and 2.1. 88 Sasakura, para. 2.2. This is likely due to the fact that a confession of guilt to the police during interrogation nearly always leads to release from pretrial custody. 89 Sasakura, para. 2.4.2.

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Nonetheless, the period following arrest and before one is brought to court and charged has been recognized as being such an important stage of criminal proceedings that the right to counsel must be recognized. Even though Art. 6 (3) (c) ECHR specifically guarantees the right to counsel to “everyone charged with a criminal offense,” the Grand Chamber of the ECtHR decided in Salduz v. Turkey,90 that the right applies to arrestees during the preliminary investigation of criminal cases, and especially before the first interrogation by the police, that is, even to those who have not already been officially served with a complaint or other form of accusatory pleading or indictment. As seen above, the trend in Europe, pushed forward by the Salduz decision, recognizes the right to counsel as soon as one is arrested or charged.91 The mode of this representation during the police interrogation will be discussed, infra. For instance, the Polish Constitutional Court decided in 2007, that it is not the act of charging that triggers the right to counsel, but the first act of officials in pursuing a suspect, such as an arrest or search warrant.

2.5.2

Ability of Counsel to Confer with Clients Who Are in Pretrial Custody

It is important here, to distinguish between meetings between lawyer and suspect in jails, before they are interrogated, and those allowed after charging when the accused might be in pretrial detention. This is exemplified in China, where lawyers never meet with their clients in police stations before the interrogation but are given quite free access to their lawyers after they have been charged (and after they have confessed) and are in pretrial detention.92 Naturally, for an arrestee or detainee to have effective assistance of counsel they must be able to meet with counsel in the detention facility to discuss issues which might need to be investigated, whether or not to speak to the police etc. Most democratic countries grant relatively unhindered ability of lawyers to confer with their clients,93 subject to the constraints inherent in running a prison or jail. In some countries, limits are placed on the time of in-custody meetings,94 or on the time before a meeting can be arranged.95

90

Salduz v. Turkey, Appl. no. 36391/02, of 27 November 2008. See also Aras v. Turkey, Appl. no. 15065/07, of 18 November 2014. 91 Art. 3 DAL, see supra 2.2. 92 Sun and Chen, para. 4.1. 93 In Portugal, lawyers may contact clients in the 48 h before arraignment “at any time, day or night and in confidence” (Costa Ramos et al., para. 3.1.1). In Switzerland, there are no time limits, but police or jail officials try sometimes to intimidate lawyers to make their visits as short as (Lynn and Wohlers, para. 3.2). See also Art. 149.3 TR-CCP, Sevdiren, para. 4.1. 94 Such as 30 min in § 63-4(2) FR-CCP or 60 min in Poland. 95 3 hours (Art. 520(5) ES-CCP); 48 h in China (Sun and Chen, para. 4.1.2).

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Some countries allow the meeting with counsel to be delayed due to concerns with collusion, threats against witnesses, destruction of evidence etc.96 Due to being condemned by the ECtHR for violations of Art. 6 ECHR based on delay in allowing a suspect to confer with counsel, however, such delays are seldom requested today in England and Wales.97 Art. 3(2) Directive 2013/48/EU, which requires access to a lawyer “without undue delay after deprivation of liberty” has tended to call these statutory delays into question. Special statutes in many countries provide, as well, for delays in meeting with a lawyer, in cases dealing with national security, terrorism, organized crime or homicide.98 Most countries also guarantee that these meetings will not be audio-recorded, secretly or openly, or listened in by prison officials. In Turkey, several emergency decrees have introduced further restrictions to the right to communicate privately with the detainee for reasons of public security.99 Exchange of documents is allowed as well in many jurisdictions and most countries guarantee the confidentiality of written communications by mail between lawyer and client. But lawyers are not necessarily free to use any mode of communication they like. Thus, while the confidentiality of electronic communications (e-mail) or of telephone conversations may be guaranteed, there may be restrictions on using these forms of communication,100 and if they are nonetheless used, the communications may be recorded or listened to.101 Some jurisdictions provide for lawyer-client teleconferencing or video-links especially if there are long distances between detention facility and the lawyer’s office.102 Special regimes for terrorism and organized crime cases also exist in some countries which allow for monitoring of communications between lawyer and client. Some of these are open, i.e., by placing an official in the room during the communication,103 or by simply announcing that communications are not confidential. The

96 Delays are allowed for up to 6 h in the Netherlands (Nan and Verrest, para. 4.1); up to 36 h in England and Wales per § 54 of the Police and Criminal Evidence Act (PACE); and from 5 to 10 days, although with duty appointed lawyer and under control of judicial authority; Art. 509 and 527 ES-CCP. Chinese law also provides for exceptions in all listed situations. 97 John Murray v. United Kingdom, Appl. no. 18731/91, of 8 February 1996; Averill v. United Kingdom, Appl. no. 36408/97, of 6 June 2000; Magee v. United Kingdom. Appl. no. 28235/95, of 6 June 2000. 98 See Art. 51(3-bis, 3-quater) IT-CCP; Art. 706-88(6,7) FR-CCP; and the U.K. Terrorism Act 2000. 99 Sevdiren, para. 4.2. 100 Such as in Switzerland, see Lynn and Wohlers, para. 3.1. 101 See Doerga v. Netherlands, Appl. no. 50210/99, of 27 April 2004, finding a violation of Art. 8 ECHR in this respect. 102 See, for instance, Art. 520.2(c) ES-CCP. 103 The public prosecutor may be present during attorney-client conversations in the first 14 days in particular serious cases in Poland. A law enforcement officer unrelated to the investigation may listen in to lawyer-client conversations in terrorism cases under certain circumstances in England and Wales.

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best example of such a regime is found in the “Special Administrative Measures” included in the U.S. Federal Bureau of Prisons Rules, where inmates and their lawyers are told that any conversations may be monitored.104

2.5.3

Right to Counsel Upon Arrest and Before Any Police Interrogation

Until fairly recently, police in all systems, whether with accusatorial or inquisitorial roots, have allowed police to interrogate criminal suspects in an unhampered fashion before they have a chance to consult with a lawyer. It appears that Japan still adheres to this old arrangement, in that the CCP gives the police 72 h alone with the defendant to obtain a confession, or 48 h when the arrest is conducted by the prosecutor.105 China has also not recognized a right to counsel until the commencement of the formal preliminary investigation, that is, after the first interrogation.106 In some countries, however there is an emergency exception which allows police to interrogate a suspect without having a chance to talk to a lawyer if there is a risk of harm to person or property, loss of evidence etc.107 This situation has radically changed, however, due to two landmark decisions: that of the U.S. Supreme Court in Miranda v. Arizona108 in 1966, and that of the ECtHR Grand Chamber in Salduz v. Turkey in 2008. Although the Miranda decision influenced change around the world, and especially in Europe,109 it took the Salduz decision to change the most intransigent European regimes so as to allow consultations with counsel upon arrest and before the first police interrogation.110 Specific provisions guaranteeing the right to counsel upon arrest or detention are now commonplace in Europe and elsewhere.111 Most countries also have adopted admonitions similar to those found in Miranda, requiring police or prosecutor to advise the defendant, upon arrest, or at the time of questioning, of the right to counsel, the right to remain silent, and the right to appoint counsel.

104

For a detailed discussion of these rules, see Thaman, para. 5. Sasakura, para. 2.4.2. In China, where there is theoretically a right to counsel during interrogations in § 33 CN-CCP, nearly all suspects, in practice, have confessed before their first meeting with counsel, Sun and Chen, paras. 2.3.2 and 4.1.1. 106 Sun and Chen, para. 3. 107 See for example, Article 23e NL-CCP. The USSC has recognized an “emergency exception” to the need to administer Miranda warnings, as well, in United States v. Quarles, 467 U.S. 649 (1984). Such exceptions have been allowed by Art. 3.6 Directive 2013/48/EU as seen supra. 108 384 U.S. 436 (1966). 109 See Thaman (2001), p. 581. 110 In 2009, the Netherlands, reacting to Salduz, allowed a 30 min consultation with a lawyer before the first interrogation. The meeting may be extended to 1 h (Art. 28c NL-CCP). France now also requires advice as to the right to counsel upon arrest (Art. 63-1 FR-CCP). 111 It is guaranteed by Art. 5 (XVII) of the Brazilian Constitution. 105

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At the EU level, however, following the EU Directive 2012/13/EU on the right to information in criminal proceedings, EU member states are obliged to ensure that every suspect is informed about his rights,112 which means that at the EU all Miranda rights are to be respected. Art. 3 of the 2012/13/EU Directive provides that all suspects or accused persons are to be informed promptly in simple and accessible language of at least the following procedural rights: (a) the right of access to a lawyer; (b) any entitlement to free legal advice and the conditions for obtaining such advice; (c) the right to be informed of the criminal act they are suspected or accused of having committed; (d) the right to interpretation and translation; and (e) the right to remain silent. In most countries, the right to speak to counsel before interrogation, or to have counsel present during the interrogation, can be waived.113 Miranda did not require that a suspect see a lawyer before waiving the right to counsel, and a later decision even allowed police to induce a waiver at a time a lawyer hired by the suspect’s family was in the jail looking for him.114 In Europe, the ECtHR in the Salduz case also allows waiver of the right to counsel before the accused has consulted with her. Some jurisdictions, however, will not allow a waiver of the right to counsel until the suspect has spoken to a lawyer.115 Since Miranda recognized that police custody itself is coercive, thus making the admonitions necessary, police are also adept using this coercive atmosphere to induce waivers of the right to counsel from suspects in custody.116 In the U.S., pursuant to the Miranda decision, the warnings need only be given if the suspect is in police custody, but this is not the case in many other countries. For instance, in Germany, a person interviewed out of custody as a witness, must be given the Miranda warnings as soon as it appears to the questioner that there is probable cause that the person is involved in the crime.117 In Switzerland, the law is not clear as to whether the right to a lawyer inures only in the police station, when a formal interrogation is contemplated, or also at the scene of the crime, when police question suspects and witnesses and take notes, in order to determine what happened.118 Although admonitions of the right to silence and counsel must be given prior to interrogation of in-custody and out-of-custody suspects in the U.K., the admonition diverts from that prescribed by Miranda, in that, suspects are told, that they do not

112

Art. 2 and 3. See supra 2.2. An exception to this is Spain, where this right cannot be waived and police cannot question the detainee until the lawyer is present. Bachmaier Winter and Del Moral (2020), p. 319. 114 Moran v. Burbine, 475 U.S. 412, 431 (1986). 115 This is true in New York: People v. Samuels, 400 N.E.2d 1344, 1346–47 (N.Y. 1980). 116 Justice White, dissenting in Miranda, noted that a “voluntary” waiver given in a situation which is “inherently coercive” is a contradiction in terms. Miranda v. Arizona, 384 U.S. 436 (1966), p. 536. 117 Weisser, para. 1.1. A similar rule exists in Portugal, §§ 59, 250(8) PT-CCP. 118 Lynn and Wohlers, para. 1.1. 113

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have to say anything, but that if they fail to state something which they later rely on in evidence it could harm their defence, and failure to talk to the police can be interpreted as evidence of guilt.119 As seen above, European Union law provides for the obligation to ensure access to a lawyer to suspects and defendants in criminal proceedings, including very detailed provisions when it comes to ensuring this right during the pretrial stage. Member States of the EU had to implement the provisions by 15 May 2019, which include provision of lawyers to arrestees, based either on indigency, the serious or complicated nature of the case, or for the purpose of representing the suspects during various pretrial procedures, such as line-ups, confrontations etc.120 In some countries, however there is an emergency exception which allows police to interrogate a suspect without requiring them to advise the suspect of the right to silence or to counsel, if there is a risk of harm to person or property, loss of evidence etc.121 Miranda warnings have still not gained footing in some countries. In Japan, for instance, no warnings are given, but if an in-custody suspect tells police he does not want to talk, they can still ask him questions, hoping to induce him to finally give in.122 In some countries lawyers are required to be on duty in the jails so that advice immediately after arrest and before interrogation is available. In Portugal lawyers are on 24 h duty and are also placed in jails in the mornings and afternoons.123 In Spain lawyers join a shift (turno de oficio) which provides round-the-clock consulting service at the jails.124 The Japanese bars have provided duty lawyers free of cost since 1990, but the costs led to the system’s near demise by 2000. However, new legislation has attempted to correct this problem.125 A duty-lawyer system was also introduced in China in 2017 and is functioning in around 88% of jails.126 England and Wales have long had a system of “duty solicitors” present in the jails. Where a detainee is seeking publicly funded advice, he is allowed to call a publicly-funded Defence Solicitor Call Centre (DSCC) authorized by the Legal Services Commission (LSC). The DSCC will determine whether legal advice should be limited to telephone advice, or whether a solicitor should attend. Telephone advice will be appropriate if the detainee is being held in relation to a non-imprisonable offence. The regular use of telephone advice, as is now

119

Stone and Lynn, para. 3.2. Similar admonitions were in principle approved by the ECtHR in John Murray v. United Kingdom, Appl. no. 18731/91, of 8 February 1996. 120 See supra 2.2. 121 In the U.S., the “emergency exception” was recognized in United States v. Quarles, 467 U.S. 649 (1984). See also § 23e NL-CCP. This is also true in the U.K. (Stone and Lynn, para. 4.2). Such exceptions have been allowed by § 3(6) Directive 2013/48/EU. 122 Sasakura, para. 3.2. 123 Costa Ramos et al., para. 1.4. 124 Villamarín López, para. 1. 125 On the problems with this system, however, see Sasakura, para. 2.2. 126 Sun and Chen, para. 2.4.

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encouraged, increases the risk that the confidentiality of the discussions between solicitor and client will be compromised.127 In Miranda v. Arizona, however, the USSC specifically stated that a system of “stationhouse” lawyers was not required by its decision.128 Once a suspect in the U.S. has been charged, then the rules change a bit, however.129

2.5.4

Right to Counsel During Investigative Measures Carried Out with the Participation of the Suspect or Accused

(a) In General Although it is generally accepted that the most critical investigative measure carried out with the participation of the suspect or accused is the interrogation by police, prosecutor or investigating magistrate, many jurisdictions grant a basic right to counsel during all investigative measures carried out with the participation of the defendant.130 In some countries, participation of counsel during such investigative measures is mandatory.131 As already mentioned, Directive 2013/48/EU on access to lawyer calls for member states to establish the lawyer’s right to be present as a minimum during identification procedures, confrontations and reconstructions of crime scenes (Art. 3.3 (c)(i)-(iii) DAL). Historically, of course, counsel was not allowed during these procedures and this is still the case in some countries.132 We will discuss interrogations first, then look at confrontations, investigative experiments, identification procedures etc. (b) Interrogation by Police, Prosecutor or Judge The right to consult with counsel before police interrogation, imposed in Europe by Salduz, does not necessarily mean that counsel may be present during the interrogation.133 Many countries, however, explicitly guarantee the right for counsel to be present during interrogations.134 Directive 2013/48/EU on access to lawyer gives the suspect or accused the right to be assisted by a lawyer during police

127

Stone and Lynn, para. 4.1. Miranda v. Arizona, 384 U.S. 436 (1966), p. 474. 129 See Thaman, para. 1.3.3.1. 130 Art. 137 DE-CCP; Art. 364 IT-CCP; Art. 61(1)(f) PT-CCP. For Spain, see Villamarín López, para. 3.2. For Turkey, see Sevdiren, para. 4.3. 131 Art. 350(1-4) IT-CCP (interrogations, confrontations carried out by the judicial police). 132 Such as in Japan, Sasakura, para. 2.4.2, and China, see Sun and Chen, para. 4.2. 133 Art. 185(5) CCP of Brazil guarantees a right to talk to a lawyer before interrogation, but not necessarily to be present. 134 For example, see Art. 350(1,3) IT-CCP; Art. 28d NL-CCP; Art. 64(1) (a-c) PT-CCP; Art. 520(6) (b,c) ES-CCP; or Art. 159(1) CH-CCP. 128

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interrogation,135 The Directive guarantees not only the right to have the counsel present, but also that counsel actively takes part in defending his client during the interrogation.136 In response to this Directive, the Netherlands recognized the right for a lawyer to be present during the interrogation in December of 2015.137 On September 6, 2017, German law finally recognized the right of a lawyer to be present, also in response to the Directive.138 The UK Supreme Court139 in a decision in 2011 involving Scottish practices denying a right to counsel before interrogations, held that the right to consult with counsel applies from the moment a suspect is being questioned, whether he or she is in or out of custody.140 The right to be present does not necessarily mean that the lawyer may ask questions or intervene in the interrogation. In some jurisdictions, however, after the interrogation is complete, the defence lawyer may ask the judge, prosecutor, or even the police, if supplementary questions may be posed.141 In a dissent to the Miranda decision, Justice White suggested that video-taping interrogations would prevent police coercion and trickery used to induce confessions and thus, make the warnings as to the right to silence and the right to counsel unnecessary. Some countries, and a number of U.S. states, have required the videoand audio-taping of interrogations, which certainly does provide an added guarantee, though cannot, in our opinion, replace the assistance of counsel during the interrogation.142 In systems with an investigating magistrate, like France and Spain, but also in those where the investigation is conducted by the prosecutor under the scrutiny of a pretrial, or control judge, interrogations by judges or prosecutors usually guarantee the right for counsel to be present. Now, with the influence of Salduz and the European Directive, the treatment of police interrogations is beginning to resemble more the regulation of interrogations by judges or prosecutors. Still, defence counsel’s effective participation is often made easier during questioning by a judge or prosecutor. Thus in France, the lawyer is given 5 days notice before judicial interrogations and has access to the complete file 4 days before the date of

135

Art. 3.3. DAL, see supra 2.2. In conformity with the ECtHR case law. See for example Aras v. Turkey, Appl. no. 15065/07, of 18 November 2014, where the Court found violation of Art. 6 ECHR because the defendant was not allowed to consult lawyer and defend his client, even if counsel was present during the questioning before the investigating judge (§ 39). 137 Nan and Verrest, para. 2. 138 Art. 163a (4) and 168c(1,5) DE-CCP. 139 Ambrose v. Harris [2011] UKSC 43, [2011] 1 WLR 2435. 140 See Stone and Lynn, para. 2.1. 141 For Germany, see Weisser, para. 1.2. See also §§ 141(6), 143(2), 144 PT-CCP. Whether questioning will be during or after the interrogation is within the discretion of the interrogator in Switzerland. See Lynn and Wohlers, para. 3.2. 142 In China, interrogations are taped but counsel is not allowed to be present, see Art. 121 CN-CCP. 136

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interrogation. Although the investigating magistrate controls the questioning, defence counsel (and prosecutor) may pose questions and make brief observations.143 (c) Line-Ups, Confrontations and Other Investigative Acts Since the Salduz decision, most European countries routinely guarantee a right to counsel during line-ups (identification parades) or other identification procedures involving the suspect-defendant.144 As seen earlier, the EU Directive on access to lawyer also guarantees this right, as far as the national law provides for those acts and the presence of the suspect is foreseen (Art. 3.3 (c) DAL).145 In many countries, however, counsel is not mandatory during these procedures, but can be waived by the suspect.146 According to the U.S. Supreme Court, only a charged defendant has a 6th Amendment right to a lawyer during identification procedures, such as line-ups, due to the high error rate in identifications and the possibility of manipulation by the police.147 Some countries, such as the Netherlands, even allow defence counsels to be present during photographic identifications which take place without the presence of the defendant.148 Confrontations between suspect or accused and a witness can take the form of identification procedures, or of confronting each other about versions of the events attributed to the suspect-accused. But, as with line-ups, European law and national law in Europe routinely guarantee the right of defence counsel to be present during confrontations. Many CCPs provide for investigative measures such as re-enactment of the crime, or investigative experiments, which involve participation of the suspect or accused and can lead to potentially incriminating acts or statements by the accused. Thus, most European countries allow counsel to be present during the conduct of such measures. Some countries, such as Poland, even allow counsel to be present when the defendant is physically examined, or blood or other specimens are taken from him. In the U.S. there is no 6th Amendment right to counsel during the taking of fingerprints or handwriting samples, or even more intrusive procedures such as

143

Art. 114 and 120 FR-CCP. See e.g. Art. 61a(1)(c) NL-CCP; Art. 61(1)(f) PT-CCP. 145 See supra 2.2. 146 In Spain, although the presence of counsel in line-ups is not specifically required under Art. 369 ES-CCP, it has become mandatory in practice, as otherwise it will not have any evidentiary value. See Bachmaier Winter and Del Moral (2020), p. 265. 147 United States v. Wade, 388 U.S. 218 (1967). The USSC refused to extend the right to pre-charge line-ups, however, even though the same problems exist, and nearly all line-ups are conducted before a suspect is charged, Kirby v. Illinois, 406 U.S. 682 (1972). 148 Nan and Verrest, para. 4.3. The USSC, however, does not require this. United States v. Ash, 413 U.S. 300, 317–18 (1973). In Spain counsel is allowed to be present, but it is not mandatory, as this investigative act will not have evidentiary value. Bachmaier Winter and Del Moral (2020), p. 266. 144

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taking blood or physical samples from a suspect, though such procedures may require a court order.149 There is also no right for a target of an investigation by a grand jury to have counsel present during his or her questioning, as the person has not been charged yet. Nevertheless, most prosecutors allow a suspect to have a lawyer outside the grand jury chambers for consultation purposes.150 As regards to interviews with witnesses and experts many European countries notify counsel when a witness is going to be questioned during the preliminary investigation and give counsel the opportunity to be present.151 Some jurisdictions restrict the right to counsel when the interview is in the form of a deposition to preserve testimony in case the witness, due to age, death, or other reason may not be able to testify at trial,152 while in other systems it is precisely in such circumstances when the presence of counsel is to be ensured: when the witness will not be available to be cross-examined at trial, in order to preserve the evidentiary value of such statement, the defence counsel has to be notified for being able to attend.153 Finally, with regard to searches the ECtHR has extended the holding of Salduz to this measure, when the suspect and his or her lawyer are available and where the search could be crucial to the resolution of the charge.154 In the U.S. there is no right for the suspect or accused or defence lawyer to be present when one’s home or automobile is being searched, even if one is charged, in custody, and able to be brought to the site of the search.

2.6 2.6.1

The Right to Counsel in the Trial and Appeals Courts Scope of the Right

The right to counsel post-charge, hearings on bail or pretrial detention, hearings dedicated to exploring consensual resolution of cases in the form of pleabargaining,155 or, of course, at trial and appeal, is usually recognized unless the

149

United States v. Wade, 388 U.S. 218, pp. 227–228 (1967). Connecticut v. Gabbert, 526 U.S. 286, 292–93 (1999). 151 This is the case, for example in Switzerland, see Lynn and Wohlers, para. 3.2. Contrary, in Germany where the defendant and his counsel can attend any investigative act except the interrogation of witness, see Weisser, para 1.4. 152 Costa Ramos et al., para. 4.1. 153 This is the case for Spain, see Bachmaier Winter and Del Moral (2020), p. 320. 154 Lisica v. Croatia , Appl. no. 20100/06, of 25 February 2010. See also Leotsakos v. Greece, Appl. no. 30958/13, of 4 October 2018, regarding the search of a lawyer’s office where he was the suspect and could not attend to the search that lasted 12 days. 155 Although Japan officially claims it does not have plea bargaining, lawyer’s negotiate with prosecutors to get charges dropped, to agree to admit guilt in exchange for being released from custody, and to apply summary procedures, leading to a 60% rate of pretrial dismissals. Those who go to trial are nearly all convicted (99.8%), see Sasakura, para. 2.2. 150

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charged crime is so petty that a right to appointed counsel is not guaranteed. In China’s new pilot plea-bargaining project, defendants may not consult with a lawyer until after the agreement is made between suspect and prosecutor, but before it is executed.156

2.6.2

Right to Communicate Freely During Trial

The right to counsel at trial of all but the most trivial cases is granted in all countries. However, the ability of counsel to communicate with the defendant and discuss trial strategy can be limited by the courtroom arrangement. In many countries, like the U.S., the defendant sits next to defence counsel at the counsel table, which is on the same level as the prosecution table, though usually on the side of the courtroom furthest from the jury. Sometimes the proximity of the defence table to the prosecution table makes confidential communications difficult,157 as does the close proximity of security personnel to in-custody defendants, for example in Japan in cases without lay participation.158 However in other countries, the defendant sits alone, in a “dock”, separated from counsel.159 In some countries, among them Russia and other post-Soviet republics, detained defendants will often sit in a cage. In Spain, in terrorist cases, the defendants are often in bullet-proof glass compartments in the courtroom, completely separated from counsel.160 In such situations, communications may only take place in recesses of the trial, or at the end of a session in the court holding cell or back in the detention centre where the defendant is housed.161 The use of cages, boxes or glassed-in containers for in-custody defendants has been criticized as violating the presumption of innocence, and as being an affront to the dignity of the defendant, along with the fact that they impair effective communication during the trial. The ECtHR has found the use of cages “inhuman and degrading” under Art. 3 ECHR and has noted its undermining of the presumption of innocence and its portrayal of defendants as potentially very dangerous, but has not issued a per se prohibition of their use.162

156

Sun and Chen, 4.1.4. For Germany, Weisser, para. 6; Portugal, Costa Ramos et al., para. 6, and Switzerland, Lynn and Wohlers, para. 6. 158 Sasakura, para. 4.4. 159 For example in the U.K. In some countries, the defendant is not in a dock or cage, but sometimes sits separately from counsel making consultation difficult. This is the case, for example, in Spain or Turkey. 160 This is also true for organized crime cases in Poland. 161 For Portugal, see Costa Ramos et al., para. 6. Although in China it is very difficult for lawyers to get a chance to speak with their clients in the absence of custodial officials, see Sun and Chen, para. 7. 162 See Svinarenko and Slyadnev v. Russia, Appl. nos. 32541/08, 43441/08, of 17 July 2014, §§ 122–138, condemning the wide-spread use of cages in Russia, in the context of a jury trial; 157

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In some systems, communications with defence lawyer are prevented during the time the defendant is testifying as well.163 Although the ECtHR has stated that the defendant’s participation in the proceedings by videoconference is not as such contrary to the Convention as long as it serves a legitimate aim and the necessary technical arrangements are in place,164 the increasing use of virtual appearances by defendants via audio-visual links in hearings has raised concerns. Defence lawyers recognize that despite the technical improvements, those systems can never replace personal immediate consultations.165

3 Attorney-Client Privilege and the Lawyer’s Duty of Confidentiality 3.1

The Role of the Defence Attorney Between the Duties Towards the Administration of Justice and the Defence of the Client’s Interests

Lawyers have to perform a balancing act between the attorney-client privilege and competing duties: on one side the duty of confidentiality and loyalty to his client and, on the other side the duty as an independent legal professional to cooperate with the justice system. It will be seen that depending on the positions of the lawyer in a certain legal system and the role attributed to him, the exceptions of the duty of confidentiality will be broader or more limited. Those systems where the lawyer has the sole duty to defend the interests of the defendant and no duty to cooperate with the administration of justice can conflict with his role as representative of the client, are more prone to refuse any breach of the lawyer-client confidentiality. The regulation of the countries included in this book demonstrate that while the two-fold position of lawyers is still present in several of them, the trend seems to go in the direction of favouring the role of the lawyer as representative of the party, not of the justice administration. The German system has traditionally considered that the defence lawyer is an independent organ of the administration of justice obliged to act in the best interest of his client, but also under a duty to support an efficient

Ramishvili and Kokhreidze v. Georgia, Appl. no. 1704/06, of 26 January 2009, §§ 92–102; Vorontsov & Others v. Russia, Appl. no. 59655/14, of 31 January 2017, § 31; Mariya Alekhina and Others v. Russia, Appl. no. 38004/12, of 17 July 2018, §§ 144–150. 163 While the judge may prevent the defendant from conferring with counsel while he is testifying during a short trial break, Perry v. Leake, 499 U.S. 272 (1989), this may not be done during an overnight break between his direct and cross-examination. Geders v. United States, 425 U.S. 80 (1976)(US-10). 164 Marcello Viola v. Italy, Appl. no. 45106/04, of 5 October 2006, § 67. 165 See, for instance, Italy, Ceresa-Gastaldo, para. 6.

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administration of justice.166 This twofold approach, based on the Organtheorie is found also in Greece,167 Turkey168 or Japan,169 and with a different approach also in the U.K.170 Despite the role as an independent body of the justice administration, in all these countries it is acknowledged that such a role can be conflicting with the contractual duties to act in the best interest of the client. In most countries when in front of conflicting situations the defence lawyer should act primarily representing the interests of the client, thus the conflict would be solved in favour of the Vertretungstheorie. Although this twofold role of the lawyers, is still present in several systems, the general trend is that it should be balanced in favour of primarily defending the interests of the client.171 Countries like Italy, Spain, the Netherlands or Portugal have clearly established that the defence lawyer has the duty to act exclusively in the interests of the client and thus have overcome the concept of the twofold role of the defence lawyer. Switzerland also took this stance after making clear in 2011 that supporting his client and representing his interests is the sole duty of the defence counsel.172 In criminal cases this is even considered to be the primary professional and ethical rule for lawyers. While these systems are based on the notion of the independence of the legal profession, they refuse that the lawyer might act as a “representative of justice” with a duty to cooperate with the judicial authorities, and the duty to cooperate in providing justice or promoting the public interest is seen as something linked to the Soviet ideology. The collaborative role of the defence is even labelled as an “unacceptable ethical” concept.173 However, the defence counsel has to defend his client while abiding by the law and respecting the ethical rules of the legal profession: legal counsel is not allowed to act against the law, nor to use unlawful means of evidence or pose obstacles to the correct application of the law. In that sense it could be said that while the lawyer does not have to cooperate with the administration of justice, his role as representative of the client does not permit him to take active steps in misleading the authorities about the facts, obstruct investigative acts, and in general interfere with the authorities’ activity in searching for the truth. In this context, Japan can be defined as an example of “cooperation model”, within a traditional context of seeking cooperation with establishing the truth as a

166

Weisser, para. 2. Tirantafyllou, para. 2. 168 Sevdiren, para. 3.2. 169 Sasakura, para. 3.2. 170 Stone and Lynn, para. 3.2. 171 This does not seem to always be the case in the U.K. where in case the duty to the court administration and the duty to act in the interest of the client and to keep the affairs of each client confidential conflict, the former could prevail, see Stone and Lynn, para. 3.2. 172 See Lynn and Wohlers, para. 2.2. 173 See Ceresa-Gastaldo, para. 1.2. 167

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way towards obtaining a more lenient judgment from the court (confession is still seen by certain courts as a form of repentance and thus a first step to rehabilitation). The U.K. code of practice for the bar of England and Wales also states that the lawyer must observe the duty “to the court in the administration of justice” and when this duty enters into conflict with acting in the best interest of the client, the first should prevail. This means that the lawyer shall never knowingly or recklessly mislead the court.174 China presents a different approach, as the community and social interest in searching for the truth traditionally used to prevail over individual defence rights. While the CCP of 2015 recognises the defence attorneys’ freedom to perform their professional duties, and therefore they are entitled to keep information obtained from the client confidential to a large extent, the defence lawyer is still not the pure advocate of the defendant, but also plays the role of “social promoter of justice” and contributes to the right implementation of the laws, acting independently from the defendant’s will and thus has to act frankly towards the court. Even more zealous advocacy in criminal cases is seen as uncooperative in China and may result in reprisal.175 This role is however changing slowly from the role of the lawyer as legal official towards a legal service provider who is not supposed to help finding the truth at the expense of the defendants interests.176 Depending on how the competing interests are balanced in each legal system, a more or less strict character is conferred on the obligation of confidentiality. In those systems where the duty of the lawyer is exclusively to act in the interest of the defendant, he will not be allowed to breach such confidentiality, even when this may run counter to the sound administration of justice. Whereas, on the contrary, if the lawyer is considered to assist his client, but within the duty to cooperate with the courts, law provides for a breach of such confidentiality when there is a serious conflict, as will be seen with regard to perjury cases. Related to the independent position of the lawyer is the question of whether the lawyer may take any position or support any theory of the case that contradicts the one adopted by the client. For example, whether it is possible for the lawyer who believes the client’s position is weak to adopt a different position he thinks will lead to acquittal or a better resolution of the case. In some countries it is categorically prohibited for a lawyer to take a position different than that adopted by the defendant.177 In the U.S. there are cases where the lawyer, without the consent of the client, concedes the client’s guilt, hoping that it will lead to mitigation in punishment. This is sometimes accepted by the court, but other times is condemned as ineffective assistance of counsel. In Japan, in a case where the defence lawyer presented a closing argument opposed to the instructions of the client-defendant as to the defence strategy, the Japanese Supreme Court found no breach of the duty

174

Stone and Lynn, para. 3.2. Sun and Chen, para. 3.2. 176 Ibidem. 177 E.g. Nan and Verrest, para. 3.3. 175

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because it considered that it was done in the best interest of the client: the opinion of the lawyer against the position of the client only would constitute breach of the duty of loyalty in “extreme cases”.178 This debate, however, has almost no relevance in Europe, because even in those countries where the lawyer could act independently and theoretically adopt a defence strategy against the client’s will, in practice a lawyer will make sure to avoid such conflicting situations. It is generally accepted that the defence counsel’s position is bound by the client’s instructions, and in case of conflict where an agreement on the position to be followed is not reached, then the lawyer should withdraw from representing him.179

3.2

Basic Parameters of the Attorney-Client Privilege

It has been generally recognized in both common law and civil law systems that all communications between criminal suspects and accused persons with their lawyers are confidential, and that the attorney-client privilege enables the lawyer to refuse to reveal any information given to him by the client. Without this guarantee, criminal suspects or accused would not trust intimate, and often incriminating information to their lawyers that would help in defending criminal charges, and that the right to counsel would be greatly impaired as a result.180 The privilege and confidentiality are also linked to the guarantee of effective assistance of counsel and, in the end, the right to a fair trial.181 An outlier in this respect is Japan, where the attorney-client privilege is not recognized and the lack of adversarial culture among lawyers, their passivity in exercising their defence, has hindered the development of strong rules in this area: the idea that “if you did nothing wrong you have nothing to hide” is still very much present and that confession is a sign of remorse and the first step for rehabilitation, still permeates the whole criminal procedure as well as the attitude of defence lawyers seeking more leniency in sentencing than effectively promoting defence rights.182 The parameters of the attorney-client privilege and the duty of confidentiality are found in criminal procedure codes and codes of ethics of bar associations, the latter of which often impose duties which go beyond those required by general law, and include disciplinary panels to punish lawyers who violate their duties. The strongest

178

Sasakura, para. 3.2.3. This is the case in Germany, the Netherlands, Portugal or Spain. 180 See Campbell v. United Kingdom, Appl. no. 13590/88, § 46, recognizing the importance of the attorney-client privilege. 181 Khodorkosvkiy v. Russia, Appl. no. 5829/04, § 232; Castravet v. Moldava, Appl. no. 23393/05, § 49. 182 Sasakura, para. 5.1. 179

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protections for lawyers can usually be found in those countries where the national, regional or local bar associations are completely independent and self-governing. There was a time in many countries when lawyers were not independent, but were regulated and subject to discipline by the executive branch of government, usually in the form of the Ministry of Justice,183 though such arrangements are gradually becoming less common. In most countries, the duty of confidentiality of a lawyer goes beyond just the information conveyed to them “in confidence,” that is, in the absence of third parties other than members of the defence team.184 It goes to all information, facts etc., they obtain as a result of their work as defence counsel, including what might be called “work product” in the U.S. “Work product” consists, more or less, of the contents of the lawyer’s file, at least in relation to the lawyer’s work done on behalf of the client. It includes “interviews, statements, memoranda, correspondence, briefs, mental impressions, personal beliefs” put to paper by the lawyer.185 In the U.S. this information did not, traditionally, have to be turned over to the prosecutor as a part of pretrial discovery, but the protection of “work product” has been more recently limited.186 Thus many countries separate information transmitted to counsel as either “privileged” or “non-privileged.”187 This separation is more clearly defined in common law countries than in European continental countries, where historically the work-product privilege had no bearing. The British have created three categories of “protected” material: “privileged” material, which falls directly under the attorney-client privilege and may not be seized, “excluded” material and “special procedure” material, which are not as assiduously protected.188 Although counsel is under a professional obligation not to reveal “confidential” information that is not “privileged”, the non-privileged information can be obtained in some countries through subpoenaing the lawyer to testify, searches of law offices, interception of communications etc. We will discuss these in more detail in the next section. Many countries see the duty of confidentiality to be eternal, meaning that it prevails even

183

This was typical for the Soviet Union and many of the post-Soviet republics, and still exists in China. See Sun and Chen, para 3.4. 184 See Thaman, para. 2.1.2, for the classic formulation of the narrower “privilege”, which only applies to conversations without third parties present. 185 Hickman v. Taylor, 329 U.S. 495, 511 (1947). 186 In California, it is limited to writings reflecting an attorney’s impression, opinions, and theories. See Thaman, para. 2.1.4.1. 187 In the U.S. the terminology varies. Under ABA Code § 4-101(A) “confidential” information falls under the privilege, and “secret” information does not. In Texas, “confidential” information is separated into “privileged” and “non-privileged.”(US-13). 188 “Excluded” and “special procedure” material might include physical evidence, such as blood samples or other tissue samples used to prepare the case, or client’s records etc.; see Stone and Lynn, para. 5.2.

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after the attorney-client relationship or the case which was the basis thereof has ended.189 The owner of the privilege is the client,190 and the client may waive it and allow the lawyer to disclose certain information.191 Any incriminating statements made by the client to his lawyer in relation to the case for which the lawyer has been retained or appointed by the court may not be revealed by the lawyer without his client’s permission. This also usually is the case, when the client reveals the hiding place of stolen property or where the body of a homicide victim is buried etc. But the privilege usually ends when the client (and sometimes the lawyer) are using their relationship to commit civil or criminal wrongs, what is called the “crimefraud” exception in the U.S. Different countries handle these situations differently, and they will be discussed in the next section. In some countries, the lawyer is relieved of the duty of confidentiality if the client brings a lawsuit against her, or charges her with malpractice or incompetence during post-trial procedures. Thus, the default position in most countries is that a lawyer has a right (and duty) to refuse to testify or reveal during an interrogation both “privileged” and “nonprivileged” information which he acquires as a result of defending the client. The state can try to compel testimony about “non-privileged” information, especially if it can allege the “crime-fraud” exception, which leaves the lawyer with the choice of refusing to testify, and perhaps facing contempt or other criminal charges, or complying.

3.3

Dealing with Client’s Untrue Testimony and Perjury

Lawyers in most systems are bound by duties not to knowingly or recklessly mislead the court, whether in the presentation of legal authority, or in the presentation of evidence he knows to be false. When the client mislead the court with untrue testimony the lawyer sometimes faces having to make some difficult decisions. In Germany the defence counsel is not obliged to say everything he knows—but everything he says must be true and he is not allowed to advise his client to lie in court.192 Defendants in criminal cases facing death penalties and sometimes very long prison sentences will sometimes testify falsely, denying or minimizing their guilt.

189

This is the case, for example, in Italy. However, the client has no such privilege in Japan. The privilege is that of the lawyer and he may even prevent law enforcement officials from interrogating the clients to find out the contents of their communications with the lawyers. See Sasakura, para. 4.1. 191 Even in such a situation, the lawyer must still get permission from the bar to reveal the information in Portugal, see Costa Ramos et al., para. 2.3.1. 192 See Weisser, para. 2.2. The same applies to Greece, see Tirantafyllou, para. 2; and Switzerland, see Lynn and Wohlers, para. 2.2.2. 190

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This is to be expected and most civil law countries take this into consideration by not making the defendant take an oath before he testifies, and thus do not subject defendants to possible prosecution for perjury. It can be said, in recognition of this arrangement, that the defendant “has a right to lie” and thus, that there is no duty to prevent such lies.193 Defence counsels may even inform the defendant that he may not be prosecuted for perjury.194 In some countries, a lawyer may even encourage the defendant to lie if it will help his case,195 while this would be treated as misleading in others.196 Of course, when a client recounts to a defence lawyer his version of the events, the defence lawyer may find the defendant’s version unlikely, but, being the defendant’s advocate, it is completely ethical to allow the defendant to present this version in court, for the counsel does not know if the testimony is false. On the other hand, if the defendant initially admits guilt, and then tells his defence counsel that he wants to present an alibi defence, or plead not guilty, the lawyer is in a more complicated position. In Japan, the defence counsel should not simply accept it, but rather persuade the defendant not to lie, and if they fail to persuade the client, they should withdraw from the case.197 In the U.S., there are several approaches to dealing with this situation. The lawyer can seek to prevent the defendant from testifying perjuriously, and then, if unsuccessful, withdraw from the case,198 but this might disrupt a long trial and be counter-productive for the administration of criminal justice. In some countries, the lawyer must in such a situation not present defence evidence, such as an alibi, that contradicts the defendant’s earlier confession.199 Most systems, however, would allow the lawyer to argue the insufficiency of the prosecution’s evidence of guilt, the reliability of the evidence presented by the prosecution etc., and to ask for an acquittal.200 In China, lawyers may be prosecuted for suborning perjury if they encourage or permit the defendant to testify that his confession to the police was the result of torture or other coercion, and that, in reality he is innocent of the charge. This puts the lawyer in a very difficult position and may lead to lawyers deserting clients who

193

This is the case, for example, in Germany, Italy, the Netherlands, Portugal, Spain or Switzerland. See Weisser, para. 1.1; Lynn and Wohlers, para. 2.2.2. 195 See for the Netherlands, Nan and Verrest, para. 3.3. 196 In Germany, Weisser, para. 2.2; or in Switzerland, para. 2.2.2. 197 See Sasakura, para. 2.2. In any event the lawyer would not be allowed to report to the court about the intention of the defendant to commit perjury. 198 See Thaman, para. 2.3.1. This is the preferred approach in Japan, see Sasakura, para. 3.2.1. 199 See, for example, Lynn and Wohlers, para. 2.2.2. 200 Most of the EU civil law countries recognize the defendant’s right to lie either implicitly or explicitly. 194

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make such claims in court.201 This approach is outrageous, since it is well documented that Chinese police routinely engage in torture.202

3.4

Handling of Incriminating Evidence or Revealing Its Whereabouts

Occasionally, an accused will turn over incriminating evidence, whether in the form of documents, the instruments of crime, such as a murder weapon, or perhaps the fruits of a crime, such as stolen goods. Such evidence is usually not protected by the attorney-client privilege as it does not constitute communication, and thus it can be lawfully seized in a search of a lawyer’s office or via a subpoena. It is clear that the lawyer may not destroy or hide this evidence, for this could potentially be prosecuted as obstruction of justice or tampering with evidence etc. Laws or codes of ethics in some jurisdictions say a lawyer should not accept physical evidence or incriminating documents, or should return them to the defendant.203 In some jurisdictions, documentary evidence which may be incriminating should be copied by the lawyer and then returned to the client.204 Furthermore, possession of the evidence could constitute a crime.205 In the U.S., a lawyer must normally turn the evidence over to the prosecution, though the act of turning it over is considered privileged, thus breaking the chain of custody from client-lawyer to police. If the prosecutor reveals where he got the evidence he has violated the attorney-client privilege.206 Statutes and codes of legal and attorney’s ethics, however, sometimes have differing approaches as to what the lawyer should or should not affirmatively do, when he comes into possession of such evidence. It is a common axiom, that a defendant may not prevent the seizure of incriminating evidence from him (through a search for instance) by just giving it to his lawyer.207 However, in many

201

Sun and Chen, para. 3.2. In a similar vein, it has been found to be a reversible error for a defendant to claim his confession was the fruit of torture in Russian jury cases. Russia is another country with a well-known record of using torture and other coercion to induce confessions. Thaman (2007), pp. 375–377. 203 For China, see Sun and Chen, para. 3.3; for Portugal, Costa Ramos et al., para. 2.2. This is also the preferred choice in Switzerland, Lynn and Wohlers, para. 2.2. 204 Lynn and Wohlers, para. 2.2. 205 Such as being an accessory to the crime the client is charged with, see Stone and Lynn, para. 3.2. On Chinese lawyers’ justified fears of prosecution if they were to hold incriminating evidence, see Sun and Chen, p. 10. 206 The lawyer may, however, subject the evidence to testing (fingerprints etc.) before turning it over, see Thaman, para. 2.3.2. 207 See Sasakura, para. 3.1.3. 202

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jurisdictions the lawyer has no duty to tell the prosecution or court that he is in possession of incriminating evidence or to turn it over.208 Another common occurrence is when the client tells the lawyer where he has hidden the murder weapon, where a victim of kidnapping may be held, or where the body of victim of a homicide has been buried or hidden. In this latter situation, the general ethical rule for lawyers is that they may not reveal the whereabouts of the physical evidence nor even the whereabouts of the victim’s body without the permission of the client, because this would be equivalent to revealing a confession of guilt.209 Some jurisdictions, however, require the lawyer to at least reveal the whereabouts of a living victim of kidnapping,210 and perhaps also a victim’s body, though in a manner so as not to establish the chain of evidence linking the defendant to the location of the body.

3.5

Special Disclosure Rules in Relation to White-Collar Crime, Money Laundering and Terrorist Financing

A number of countries have fashioned exceptions to the general duty not to disclose information relating to crime acquired during the attorney-client relationship in the areas of economic crimes, money laundering and terrorist financing. Lawyers licensed before the Securities and Exchange Commission are required to be whistle-blowers in the U.S. yet, once the lawyer is hired to defend the corporation during a criminal investigation or enforcement action, the reporting rules do not apply.211 Within the EU, European Union Law has provided for a harmonised approach at the EU level in the field of fighting money laundering. Since 2001, a series of professionals—including independent lawyers—are obliged to identify clients and to report suspicious transactions.212 The Directive 2015/849 on the prevention of money laundering or terrorist financing213 has followed the same line, and specifies 208

For Germany, see Weisser, para. 2.2; for the Netherlands, see Nan and Verrest, para. 3.3; for Turkey, Sevdiren, para. 3.5. 209 This is the case in China, the Netherlands, Portugal, Switzerland, U.K. or the U.S. 210 The lawyer is given the discretion to reveal this information in the U.S. (see Thaman, para. 2.3.2). In most EU jurisdictions this situation of a living kidnapped person would fall within the obligation of the lawyer to report in order to prevent future crimes or dangers for persons—despite not being strictly a future crime, but an on-going commission of a crime—and thus, would be considered as an exception of the lawyer-client confidentiality duty. 211 See Thaman, para. 2.2. 212 Mainly Directives 2001/97/EC of 4 December 2001 and 2005/60/EC of 26 October 2005. 213 Directive (EU) 2015/849 of the European Parliament and of the Council of 20 May 2015 on the prevention of the use of the financial system for the purposes of money laundering or terrorist financing, amending Regulation (EU) No. 648/2012 of the European Parliament and of the Council, and repealing Directive 2005/60/EC of the European Parliament and of the Council and Commission Directive 2006/70/EC.

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the precise cases with regard to which they are under the obligation to report suspicious activities.214 It states that there “should, however, be exemptions from any obligation to report to the financial intelligence units information obtained before, during or after judicial proceedings, or in the course of ascertaining the legal position of a client. Therefore, legal advice should remain subject to the obligation of professional secrecy, except where the legal professional is taking part in money laundering or terrorist financing, the legal advice is provided for the purposes of money laundering or terrorist financing, or the legal professional knows that the client is seeking legal advice for the purposes of money laundering or terrorist financing.”215 In compliance with EU law, the member states have implemented those Directives into their national legal framework. In France, lawyers are, since 2004, subject to customer due diligence laws imposed on banks to combat money laundering and terrorist financing, which include reporting and disclosure requirements. However this technically only applies when the lawyer is acting, not as criminal defence lawyer, but is assisting clients in financial or real estate transactions, or acting as a trustee. The rules, in accordance with EU law, do not apply when the lawyer is engaged in defending suspected money launderers or terrorist financers against criminal charges. Similar duties to report in money laundering and financing of terrorism cases exist in all EU countries.216 In Spain, since 2010, lawyers who advise businesses relating to financial or real estate transactions are obliged by legislation aimed at combatting money laundering and terrorist financing to report any operation that could relate to those crimes to the financial intelligence agency (Commission for the Prevention of Money Laundering and Monetary Infractions). If the lawyers come across this information while acting as defence counsel in an on-going investigation or case however, then there is no duty to report. This duty to report has been widely criticised by lawyers,217 considering it not only interfere with the lawyer-client confidentiality, but also difficult to apply. They

214

Art. 2.1. (3) (b) Directive 2015/849:“where they participate, whether by acting on behalf of and for their client in any financial or real estate transaction, or by assisting in the planning or carrying out of transactions for their client concerning the: (i) buying and selling of real property or business entities; (ii) managing of client money, securities or other assets; (iii) opening or management of bank, savings or securities accounts; (iv) organisation of contributions necessary for the creation, operation or management of companies; (v) creation, operation or management of trusts, companies, foundations, or similar structures.” 215 Explanatory Memorandum (9) of the Directive 2015/849. 216 For the U.K., see Art. 330 Proceeds of Crime Act (2002) and § 21A Terrorism Act (2000). 217 See the Council of the Bars and Law Societies of the European Union (CCBE) Position on the requirements on a lawyer to report suspicions of money laundering of November 2004, arguing that the EU Directives infringe upon the principles of independence and professional secrecy of lawyers, available at https://www.ccbe.eu/fileadmin/speciality_distribution/public/documents/ANTI_ MONEY_LAUNDERING/AML_Position_papers/EN_AML_20041104_CCBE_position_on_ the_requirements_on_a_lawyer_to_report_suspicions_of_money_laundering_and_on_ the_European_Commission_Proposal_for_a_Third_EU_Directive_on.pdf.

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claim that in practice it is not easy to identify which transactions are covered by the obligation to report, what is the due diligence required in order to assess the existence of a suspicious activity, and what is the level of suspicion that should trigger the alert to the financial intelligence unit. Despite those concerns, in 2007, the European Court of Justice in the case of Ordre des barreaux francophones218 already decided that such obligation did not violate the right to a fair trial as guaranteed under Art. 6 ECHR. Later, in the benchmark judgment Michaud v. France,219 the ECtHR held that such interference in the legal professional privilege was legitimate, necessary, not disproportionate and did not violate either Art. 8 of the Convention, as the obligation to report under the EU Directive does not “go to the very essence of the lawyer’s defence role which forms the very basis of legal professional privilege”.220

3.6

The “Crime-Fraud” Exception to the Privilege

The “crime-fraud” exception to the privilege is understood to be the situation where the attorney-client relationship is being used to commit a crime or fraud, or to conceal the commission of a crime or fraud. Professional secrecy or the privilege will not protect documents or property from a subpoena or search if they constitute the corpus delicti of an offence or establish the lawyer’s participation therein. However, the boundaries between a zealous exercise of the legal profession, acting in the best interest of the client and the aiding and abetting conducts that might turn the lawyer criminally liable, are not always clear. The limits of the proper performance of the attorney’s duties and criminal conducts cannot always be defined in abstract but need to be assessed on a case by case basis. While all the legal systems studied in this book acknowledge as a clear exception to the attorney-client privilege when the lawyer himself is participant to the criminal offence,221 there are no clear limits generally applicable. On the other hand there also is the risk that in practice the lawyer is considered a suspect in order to seize privileged documents or be able to intercept the communications with the client. The USSC has stated that “the purpose of the crime-fraud exception to the

218

ECJ C-305/05 (Grand Chamber) Ordre des barreaux francophones et germanophone and Others v. Conseil des ministres, of 26 June 2007. 219 Michaud v. France, Appl. no. 12323/11, of 6 December 2012. 220 Michaud v. France, Appl. no. 12323/11, of 6 December 2012, § 128. The ECtHR took into account that the obligation to report is legally restricted to a few precise transactions and it is excluded when the information received is connected to judicial proceedings (§ 127). 221 As expressed in the EU Directive on access to lawyer: Confidentiality of communication between suspects or accused persons and their lawyer is key to ensuring the effective exercise of the rights of the defence and is an essential part of the right to a fair trial, but “Any criminal activity on the part of a lawyer should not be considered to be legitimate assistance to suspects or accused persons within the framework of this Directive” (Recital 33 DAL).

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attorney-client privilege (is) to assure that the ‘seal of secrecy’ [. . .] between lawyer and client does not extend to communications ‘made for the purpose of getting advice for the commission of a fraud’ or a crime.”222 In England and Wales, documents given to a lawyer are not privileged, if the client was pursuing a criminal purpose in turning over the documents, even though the lawyer was not aware of this purpose.223 In some jurisdictions the “crime-fraud” exception encompasses frauds on the court. A lawyer’s duty to the court usually prevents the knowledge of introduction of fabricated or false evidence.224 However, in others, a conflict may arise between the fraud on the court and the duty of confidentiality. Thus there are lawyers in Spain who believe the duty of confidentiality would prevent the lawyer from revealing the falsity of evidence or testimony produced by defence witnesses. If the damage done by the fraud would be flagrant, however, the lawyer should turn to the head of the bar in which he is a member for advice.225

3.7

Duty to Reveal Information from the Client Concerning Future Crimes or Civil Wrongs

Although the lawyer must definitely not reveal information about past crimes committed by the client or others conveyed to the lawyer in confidence by the client,226 this is not necessarily the case when it comes to information about future crimes or civil wrongs, or impending harm or damage which he receives as a result of legal representation of the client. This was the situation in the case VersiniCampinchi and Crasnianski v. France, where the ECtHR found that the lawyer’s disclosure of information received from the client relating to the cow-disease while representing the director of a company suspected of breaching the embargo, was not in violation of Art. 8 ECHR.227 If the knowledge is of future crimes, for instance, that the client or his associates plan to commit, then this is usually not considered to be privileged information as it does not relate to the past crime for which the lawyer is representing the client. In many countries there even is the obligation to report such acts to prevent the future crime to be committed and the lawyer who does not seek to prevent the commission of the crime would be subject to criminal liability,228 although the lawyer may have a

222

United States v. Zolin, 491 U.S. 544, 574–75 (1989). See Stone and Lynn, para. 5.2.2. 224 See Ceresa-Gastaldo, para 2.2. 225 See Villamarín López, para. 2.3. 226 Art. 344-bis IT-CCP; or Art. 160 NL-CCP (even serious crimes like murder). 227 See Versini-Campinchi and Crasnianski v. France, Appl. no. 49176/11, of 16 June 2016. 228 Art. 138 CC of Germany (serious crimes); Art. 371.4 GR-CCP. See also, for Italy, CeresaGastaldo, para. 2.1; Nan and Verrest, on the Dutch system, para. 3.1; Costa Ramos et al. on 223

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defence if he or she tries to persuade the client not to commit the crime.229 In other countries, in relation to crimes which do not necessarily portend a risk to life or serious injury the lawyer can choose to maintain silence. In the case of knowledge of an impending risk to life or limb, the lawyer must, in some jurisdictions, report the information, as protection of life trumps the duty of confidence.230 In others, such as Portugal and the U.S., the lawyer must balance the duty of confidentiality against the interest of protecting life and health, but is subject to no penalties if he decides not to disclose the information. In Portugal, the lawyer should try to reveal the information in a way that would not, if possible, hurt the client, such as by revealing the information to the bar, which would then convey it to police or prosecutor.231 If, nonetheless, evidence ends up being derived from this act that damages the client in the case, it would be admissible under the justification of “lesser evils” or perhaps excludable, if the lawyer’s act was deemed to be excusable. Similarly in other countries, such as in the U.S., the lawyer must balance the duty of confidentiality against the interest of protecting life and health, and if the lawyer decides to reveal the information, he should do so in a way that the information cannot be directly traced back to the client.232

3.8

Lawyers for Corporate Clients

In the U.S., where corporations are subject to criminal liability, there was once a real discussion as to whether legal entities actually may benefit from the attorney-client privilege, inasmuch as the legal entity, as such, cannot itself communicate in private. In the meantime, however, the USSC has clearly sided with those who would grant corporations such a privilege.233 Some courts have applied the so-called “control group” test, which recognizes corporate communications as privileged if the person making the communication to the lawyer was in a position to control or play a Portugal, paras. 2.1–2.2; or Villamarín López for Spain, para. 2.5. In the Netherlands it is required that the lawyer reports in breach of the confidentiality for preventing the future crime, but has to do it in a manner that minimizes the obligation of secrecy (Nan and Verrest, paras. 3.1 and 3.3). In Portugal the reporting should be done without disclosing where the evidence came from, see Costa Ramos et al., para. 2.2. 229 In Germany, see Weisser, para. 2.1, but only if the crime is not murder, genocide or otherwise very serious. 230 For China, Sun and Chen, para. 3.1–3.2; for Germany, Weisser, para. 2.1; for Italy, CeresaGastaldo, para. 2.1. This is also true in the state of New Jersey, where the duty extends to crimes which might lead to “substantial injury to the financial interest or property of another or might perpetrate a fraud on a tribunal. See Thaman, para. 2.2. 231 Costa Ramos et al., para. 2.2. In Spain, a lawyer could plead the “lesser crime” of exposure of secrets to defend against the crime of omission to prevent a crime. 232 The Netherlands, Nan and Verrest, para. 3.1; for the U.S., see American Bar Association (ABA) Rule 1.6(b)(1), Thaman, para. 2.2. 233 Upjohn Co. v. United States, 449 U.S. 383, 389 (1981).

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substantial role in an action subject to the lawyer’s advice or is an authorized member of the control group capable of “personifying” the corporation. Others apply the so-called “subject matter test,” pursuant to which the privilege would cover some communications with counsel by employees outside the control group when they are authorized by corporate leaders to make the communication and it deals with the subject matter upon which the lawyer’s advice is sought.234 The U.S. Department of Justice (USDOJ) has adopted guidelines that encourage corporate lawyers to waive the attorney-client and work product privileges, so that the corporation will qualify as “cooperative”, and be eligible for significant mitigation of punishment under the U.S. Sentencing Guidelines. The inducement of such privilege waivers is controversial, but nevertheless the waivers have become the norm.235 Similarly, in Japan, the Japan Fair Trade Commission has opined that it would be inappropriate to recognize the attorney-client privilege in the anti-monopoly area, as it would be detrimental to its enforcement efforts. Corporate lawyers argued that this would hamstring communication in companies and impair internal investigations aimed at compliance monitoring.236 Since the new leniency program went into effect in 2019, a kind of plea-bargaining system, new issues may arise similar to those which corporate lawyers deal with in manoeuvring through the U.S. Sentencing Guidelines.237 In China, information a corporate counsel may obtain in his day-to-day work as corporate counsel may not be protected by the privilege, making it unwise to hire that lawyer to defend in a criminal case, where the privilege would otherwise apply.238 In Switzerland, attorney-client privilege does not apply to in-house corporate counsels because they lack the necessary independence and may not act as defence counsel of the company in a criminal case.239 The Court of Justice of the European Union has also declared that in-house counsels are not sufficiently independent from the firm they work for, to make communications with them and other employees privileged. In its judgment of 14 September 2010—although a competition law case—the Court, following its ruling in AM & S Europe v Commission,240 held that “the confidentiality of written communications between lawyers and clients should be protected at Community level, however such protection is subject to two cumulative conditions: “first, that the exchange with the lawyer must be connected to ‘the client’s rights of defence’ 234

Thaman, para. 2.1.2.1. Thaman, para. 3.1. 236 Sasakura, para. 4.1.4. 237 Sasakura, para. 5.2. 238 Sun and Chen, para. 3.3. 239 Lynn and Wohlers, para. 2.3. In Turkey, where there are no specific rules for in-house lawyers, it is considered that the general protections for independent lawyers apply, see Sevdiren, para. 4.5. 240 ECJ Case 155/79, Judgment of the Court of 18 May 1982, AM & S Europe Limited v Commission of the European Communities. For comments on this ruling from the U.S. perspective and how the disparate approach can affect multinational litigation cases, see Mackintosh and Angus (2004), pp. 37 ff. 235

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and, second, that the exchange must emanate from ‘independent lawyers’, that is to say ‘lawyers who are not bound to the client by a relationship of employment’.”241 Nevertheless there are many voices that claim that, when acting as defence lawyer, the in-house lawyer, regardless of his condition as employee of the corporation, should also be privileged. Doubts have been also expressed as to the information held by the compliance officer who is also the in-house lawyer, when carrying out internal investigations following the internal reporting obligation established in the corporate compliance officer.242 Experience in corporate criminal liability in European countries is quite recent and thus the protection of workproduct within the corporations is hardly developed.

3.9

Sanctions for a Lawyer’s Breach of the Duty of Confidentiality

If a lawyer violates the duty of confidentiality to his or her client, the lawyer could be subject to disciplinary, civil, or criminal sanctions. In most countries studied, all three are possible, depending on the seriousness of the violation.243 The local or national bar association could initiate disciplinary procedures against the lawyer, which could result in reprimands, fines, suspensions, or at worst expulsion from the bar and thus a ban to further practice of law in the jurisdiction.244 The lawyer will also be civilly liable for disclosing lawyer-client confidential information in all countries studied, although this rarely happens in practice: claiming damages is more a theoretical possibility than an actual one, because proofing the intent or recklessness and the causal link between the financial loss or moral damages and the infringement of the lawyer’s duty to secrecy will in most cases be impossible to substantiate.245 The most extreme sanction, of course, is criminal prosecution, which is provided for in most jurisdictions, although in several countries only upon private

241

ECJ Case C-550/07 P, Judgment of the Court (Grand Chamber) of 14 September 2010, Akzo Nobel Chemicals Ltd and Akcros Chemicals Ltd v European Commission, §§ 40 and 41. 242 See Nieto (2013), p. 6. The Spanish Bar (Consejo General de la Abogacía de España) in its report 4/2018 has officially recommended that the corporations do not appoint the in-house lawyer as compliance officer, but preferably chose an external lawyer to fulfil those tasks. 243 All European countries have to provide a sanctioning system, following the Council of Europe Recommendation (2000)21 of 25 October 2000, which under III.2 reads “Professional secrecy should be respected by lawyers in accordance with their internal laws, regulations and professional standards. Any violation of this secrecy, without the consent of the client, should be subject to appropriate sanctions”. In the countries studied in this book this is the case, for example in Germany, Italy, Portugal, Spain, Turkey and U.K. 244 This is the case in all countries studied in this book. 245 See Nan and Verrest, para. 3.1, for the Netherlands; and Weisser for Germany, para. 2.1.

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complaint.246 Penalties for the criminal offence of “violation of a duty to secrecy” range from 1 year—this is the maximum penalty foreseen in the majority of the countries studied in this book—up to 7 years prison.247 As to the procedural consequences of the infringement by the lawyer of the duty of confidentiality, such breach may have an impact upon the admissibility of evidence. Several countries include a strong protection of the right to confidentiality by excluding the evidentiary value of the testimony given by the lawyer in breach of this duty;248 while other systems would not render such evidence inadmissible, as long as the disclosure was not compelled by public authorities.249 In the Netherlands it is claimed that statements of the defence counsel should not be used as evidence, even if there is no rule in the CCP providing its exclusion.250

4 State Intrusion into the Confidentiality of Attorney-Client Communications 4.1

Subpoenaing the Attorney to Testify Against the Client

As was stated above, in principle, lawyers have a right to refuse to testify, if subpoenaed by a court or agency, or declare, during an interview or interrogation, with respect to privileged information they have received as a result of their representation of a suspect or accused in a criminal case. Testifying would constitute a breach of the privilege and be subject to criminal or disciplinary action, as was noted in Sect. 3.9, supra. If the information sought by the authorities is not “privileged”, however, and only subject to a duty of confidentiality recognized in a code of ethics, or other law, then the lawyer must decide whether to refuse to testify or declare, and perhaps to face the

246

See Ceresa-Gastaldo, para. 2.6 or Lynn and Wohlers, para. 2.5. Art. 203(1)(3) CC of Germany; Art. 371.1 CC of Greece (up to 1 year prison); Art. 622 CC of Italy (up to 1 year prison); Art. 134 CC of Japan (up to 6 months prison); Art. 272 CC of the Netherlands; Art. 195 and 196 CC of Portugal (punishing violation of secrecy, and exploitation of information gathered in violation of a pledge of secrecy with up to 1 year prison); Art. 199 CC of Spain (up to 4 years prison); Art. 321 CC of Switzerland (up to 3 years prison); Art. 257 CC of Turkey. China provides for a harsh criminal punishment of up to 7 years prison for breaching the confidentiality and disclosing commercial or state secrets, see Sun and Chen, para. 3.6. 248 See Costa Ramos et al., para. 2.4; Villamarín López, para. 4.1. In Greece, the violation of the prohibition to testify and reveal confidential information by the lawyer will cause a relative nullity of the proceedings, upon being invoked by the defendant or the prosecution, see Triantafyllou, para. 7. 249 This would be the case, for example, in Italy, Germany and U.K. 250 Nan and Verrest, para. 3.1. 247

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consequences if he decides to withhold testimony.251 In Portugal, if the court thinks the information is not privileged, the question will be forwarded to the bar for an opinion, which is, however, not binding for the court. If the court seeks to compel testimony, then the lawyer might have a justification defence based on the choice of a lesser evil.252 In the majority of the countries studied in this book, a lawyer may not even be subpoenaed or summoned to testify in a case against his client, nor arrested in order to be interrogated for that purpose unless, of course, the lawyer is a suspect in the same crime.253 Then the lawyer would, of course, have his own right to remain silent. There is again the problematic issue with regard to the in-house lawyer in cases where the company is indicted, but no case law on this issue has been reported within the European landscape. A quite different situation is to be found in the U.S., where a lawyer may be subpoenaed to testify and then may, however, assert the attorney-client privilege on behalf of his client. The court, may however, order the lawyer to testify. The attorney can move to quash the subpoena, but subpoenas of attorneys are quite common, especially in the federal system in drug and white-collar crime cases. By requiring a lawyer to testify before a grand jury, the prosecutor can ensure that this lawyer will be disqualified to serve as the suspect’s trial attorney, as the testimony will create an ethical conflict. If the lawyer refuses to testify, he can be held in contempt and jailed.254

4.2

Subpoenaing Documentary or Physical Evidence from an Attorney

If the client has entrusted physical evidence or documents255 to the lawyer which fall within the attorney-client privilege, meaning they do not constitute corpus delicti of a criminal offence, i.e. instruments or fruits of crime, then the lawyer can rely on the privilege to refuse to turn over the evidence when subpoenaed. Although lawyers’ files contain privileged material as well as non-privileged “work product” or other information gathered in investigating the case, most jurisdictions protect the contents of a lawyer’s file from attempts to access it to the 251

In Poland, the court can seek to compel testimony about non-privileged information subject to confidentiality rules. The bar recommends, however, against the opinion of judges and prosecutors, that lawyers refuse to testify, and this refusal may not be prosecuted. 252 See Costa Ramos et al., para. 4.1. 253 See, for example, Art. 153(1)(3) DE-CCP; Art. 149 JP-CCP; Art. 218 NL-CCP; Art. 178 PL-CCP; or Art. 171 CH-CCP. 254 See Thaman, para. 3.2. 255 The USSC has ruled that documents given by a client to her lawyer for the purpose of getting legal advice are privileged and may not be subpoenaed from the lawyer if they could not have been subpoenaed from the client herself. Fisher v. United States, 425 U.S. 391, 403–05 (1976).

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detriment of the client.256 In some jurisdictions, however, non-privileged, but otherwise confidential material in the hands of a lawyer, which is not corpus delicti etc., may be subject to subpoena upon a showing that it will be useful to the prosecution.257 If the lawyer is a suspect in crime, however, then in most countries he or she would be subject to giving up non-privileged material whether by subpoena or search warrant. A lawyer may attempt to quash a subpoena, whether or not she is a suspect, for being too broad, if the lawyer felt it targeted privileged information, or confidential communications of other clients, not linked to the crime of which the lawyer is a suspect.258 In some jurisdictions, as in Portugal, a court must ask for cooperation of the bar in deciding which documents are privileged, and therefore not subject to a subpoena, and those which are not.259 In the U.S., a lawyer could challenge a subpoena of his records based on the 5th Amendment privilege against self-incrimination, based on the compelled act of production which would show his possession of the records, their authenticity and that they are the documents requested in the subpoena.260 However, unlike an individual criminal defendant, a corporation has no 5th Amendment privilege against self-incrimination. Even a closely-held corporation owned by one person, or a small law office partnership would have no 5th Amendment right to resist a subpoena as a legal entity.261

4.3

Searches of Lawyer’s Offices

It is pretty much accepted in international law that all searches of homes and other private places, like law offices,262 must be authorized by a judge263 based on probable cause or sufficiently grounded suspicion that a crime has been committed and that evidence relating to that crime can be found in the place searched. To be valid, a search warrant should particularly describe the place to be searched, and the

256

See, for example, Art. 97 DE-CCP; or Art. 98 NL-CCP. This is true for the U.K., see Stone and Lynn, para. 5.2. 258 See for example, Ceresa-Gastaldo, para. 4.2. 259 See Costa Ramos et al., para. 2.3.1. 260 Fisher v. United States, 425 U.S. 391, 410 (1976); United States v. Doe, 465 U.S. 605 (1984); United States v. Hubbell, 530 U.S. 27 (2000). 261 See Thaman, para. 4.2. In general, in the U.S., subpoenas are preferred by federal U.S. prosecutors, because they are less intrusive than search warrants, and may be used, for instance, to access a law firm’s e-mail records or telecommunications metadata (Thaman, para. 3.3). 262 In Niemietz v. Germany, Appl. no. 13710/88, of 16 December 1992, §§ 29–33, the ECtHR held that a lawyer’s office deserved the same protection under Art. 8 ECHR as the “home”. 263 In the Soviet Union and other socialist countries following its model, prosecutors could authorize searches. This is still the case in Poland where a prosecutor could authorize a search of a lawyer’s office; and in China, see Sun and Chen, para. 5.2.2: Art. 244 CH-CCP, which appears to allow the prosecutor to order a search of a law office. 257

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things, or persons which are the object of the search. Judicial authorization could be omitted in cases of emergency, or exigent circumstances (danger in delay) if delay would cause evidence to be destroyed or suspects to escape etc. In most European countries, a judge would then be asked to retroactively verify the legitimacy of the warrantless search within 1–3 days.264 It is, of course, extremely important that the lawyer, whose office is searched, is present during the search. In most countries the person whose premises are searched have a right to be present, though this is not the case in the U.S.265 Who, after all, is more able to tell the officers conducting the search which documents fall within the warrant, which are privileged, and which are not? Criminal defence attorney offices are, of course, goldmines for potential evidence in criminal cases, whether the target of the investigation is one of the lawyer’s clients, or the lawyer himself. When the target is the client and the lawyer is not suspected to be in collusion with the client, then the lawyer is an innocent third party, which may be in possession of useful information. Some countries apply special rules when a search is aimed at a neutral third party, rather than at the suspect proper.266 In a few U.S. states, searches of non-suspect lawyer’s offices for evidence against their clients are prohibited.267 General requirements for the search of lawyer’s offices are set out in the ECtHR’s case law. According to the ECtHR’s case law, the search of a lawyer’s office, amounts to an interference with his “private life”, “home” and “correspondence” and such interference gives rise to a breach of Art. 8 ECHR unless it can be shown that it was in accordance with the law, legitimate and necessary. With regard to the searches in lawyers’ offices, in addition to general criteria for assessment of the proportionality of the measure, the judicial warrant has to be based on reasonable suspicion and the scope of the search has to be reasonably limited. “The Court must also review the manner in which the search has been executed, and—where a lawyer’s office is concerned—whether it has been carried out in the presence of an independent observer to ensure that material subject to legal professional privilege is not removed. The Court must finally take into account the extent of the possible repercussions on the work and the reputation of the persons affected by the search”.268 The ECtHR has also ruled that there must be “compelling reasons” to

264

See in general, Thaman (2008a), pp. 56–59. Ibid., at 59–60. 266 See Art. 103 DE-CCP, requiring more particularity as to the items to be seized. Spain does not foresee different requirements to those provided for any other search and seizure, and in practice every document that does not fall out of the scope of the judicial warrant, can be seized. In fact, all documents related to the crime can be seized, not filtering at that stage those that may be confidential or privileged, see Villamarín López, para. 4.2. 267 By statute in Oregon, and by court decision in Minnesota. See O’Connor v. Johnson, 287 N. W.2d 400, 400–05 (Minn. 1979), finding a violation of attorney-client privilege and the 6th Amendment right to counsel. 268 Golovan v. Ukraine, Appl. no. 41716/06, of 5 July 2012, §§ 52, 53; Iliya Stefanov v. Bulgaria, Appl. no. 65755/01, of 22 May 2008, § 38; Wieser and Bicos Beteiligungen GmbH v. Austria, Appl. 265

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search non-suspect lawyer’s offices,269 and that the seizure of a client’s documents from a lawyer’s office can also violate the privilege against self-incrimination.270 However, when the aim pursued is legitimate and there are adequate safeguards attached to the search procedure—such as the existence of a judicial warrant, the lawyer being present to supervise the search and identify which documents where covered by legal privilege, the elements seized were not disproportionate, etc. —in some cases the ECtHR has found no violation of Art. 8 ECHR.271 Searches of law offices are much more intrusive than subpoenas, as police, prosecutors etc. have the possibility to rummage through a huge amount of information contained in filing cabinets, and computers, only a tiny part, if any of which may be within the scope of the warrant. Thus in many countries the requirement of particularity of lawyer’s office searches is looked at in a more rigorous fashion.272 In Portugal, if the authorities seek to search the law office of a lawyer as a suspect, they must first charge the lawyer with the criminal offence, so as to prevent using such a search as a pretext to look for client material.273 Search warrants must specifically designate, as clearly as is possible, which types of records or files, or other evidence it is seeking, so that the searching officers do not rummage through unrelated matter, thus revealing confidential material relating to non-targeted clients.274 Special attention merits the search of computers and the seizure of electronic files, often found to be disproportionate. In Robathin v. Austria,275 the ECtHR found a violation of Art. 8 ECHR in relation to a warrant for the search of a lawyer-suspect’s law office because it was excessively broad allowing the seizure and preliminarily search of all personal computers and disks of the lawyer, instead of narrowing in on files as to which there was a suspicion.276 Despite the case law of the ECtHR setting standards regarding the searches in

no. 74336/01, of 16 October 2007, § 57; Société Colas Est and Others v. France, Appl. no. 37971/ 97, of 16 April 2002. 269 Khodorkovskiy and Lebedev v. Russia, Appl. no. 11082/06, 13772/05, of 31 May 2011. 270 In André & Others v. France, Appl. no. 18606/03, of 27 July 2008, § 41. 271 See Tamosius v. United Kingdom, Appl. no. 62002/00, of 19 September 2002, inadmissibility decision, a case dealing with the investigation of a tax fraud. See also Brito Ferrinho Bexiga VilaNova v. Portugal, Appl. no. 69436/10, of 1 December 2005. 272 Thus the “reasonable suspicion” needed to search in Switzerland is examined more assiduously in cases of lawyer’s offices (Lynn and Wohlers, para. 4.2). 273 See Costa Ramos et al., para. 4.2.1. 274 In Niemietz v. Germany, Appl. no. 13710/88, of 16 December 1992, § 37, the court found the search warrant, which sought “documents” was too broadly formulated, and additionally found a violation of the Art. 6 ECHR right to a fair trial due to its effect on counsel’s ability to defend the client. In Andresen v. Maryland, 427 U.S. 463, 479–82 (1976), the USSC discussed this problem in the context of a law office search. 275 Robathin v. Austria, Appl. no. 30457/06, of 3 July 2012, §§ 47, 51, 52. 276 This was the situation also in Iliya Stefanov v. Bulgaria, Appl. no. 65755/01, of 22 May 2008, where the excessive breadth of the warrant and the way it was executed (the police removing the lawyer’s applicant’s entire computer, including its peripherals, as well as all floppy disks which they found in his office) was considered disproportionate and in violation of the Convention, § 42. See also Leotsakos v. Greece, Appl. no. 30958/13, of 4 October 2018, §§ 43, 52 (confiscation of the

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lawyer’s offices, in practice electronic searches in law offices is a matter of great concern, as most countries do not provide for specific rules on how these searches are to be executed. The judicial warrant may specify the type of documents that are to be searched and can be seized, but still not the keywords that are to be used to filter the targeted files. Further, while on-site searches should be the rule, this cannot always be done, and the officers proceed to seize the whole computer, carrying out the search of the files needed later off-site.277 The ECtHR case Sérvulo & Associados v. Portugal278 is illustrative of the need to establish adequate standards for and protections of the lawyer-client confidentiality. Upon a feeble suspicion of the lawyer’s implication in corruption acquisition of prohibited interests and money laundering in connection with the purchase of two submarines by the Portuguese Government from a German consortium, the court ordered the search of the lawyer’s office. Using 35 keywords (such as “counterpart”, “swap” or “financial contribution”)279 89.000 electronic files and 29.000 e-mails were seized from the lawyer’s office. After complaints filed by the suspect’s lawyers for infringement of the lawyer-client confidentiality and the disproportionate amount of documents seized, 850 files were eliminated from the investigative file. The Court found that the seizure of computer records in the offices of the law firm had been compensated for by procedural safeguards to prevent abuse and arbitrariness and to protect legal professional secrecy: the existence of a judicial warrant; the presence of the lawyers; the Head of the Bar as an independent observer; the fact that the search was carried out by the Investigating Judge; the procedure to suppress files held before the court at an oral hearing. Also interesting is the dissenting opinion to this judgment written by a Portuguese ad hoc judge.280 In the U.K. there is a special procedure for searches of law offices when the target is protected material, such as “excluded” or “special procedure” material. In these cases, there is a preference to proceed by subpoena, similar to the preference one finds in the U.S. federal prosecutor’s guidelines.281 Thus, only in emergency circumstances, or where the lawyer refuses to turn over the requested items or is otherwise not available, circumstances usually associated with the lawyer’s own possible collusion in the client’s criminal acts, would a search warrant of the

computers and hundreds of documents including client files). In the same sense, more recently, Kruglov and Others v. Russia, Appl. no. 11264/04 (and 15 others), of 4 February 2020. 277 On electronic searches in lawyer’s offices see the ECtHR cases Petri Sallinen and others v. Finland, Appl. no. 50882/99, of 27 September 2005; Wieser and Bicos Beteiligungen GmbH v. Austria, Appl. no. 74336/01, of 16 October 2007, Kruglov and Others v. Russia, Appl. no. 11264/ 04 (and 15 others), of 4 February 2020. 278 Sérvulo & Associados - Sociedade de Advogados, Rl v. Portugal, Appl. no. 27013/10, of 3 September 2015. 279 Ibidem, §§ 83 and 103. 280 Ad hoc judge Paulo Jorge Saragoça da Matta, dissenting on the necessity and proportionality assessment done by the Court in the case at hand, and the elements taken into account to substantiate the suspicions upon the lawyers. 281 See for the U.K., Stone and Lynn, paras. 5.2.4 and 5.2.6; and for the U.S. Thaman, para. 3.4.2.

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lawyer’s office be sought. And even then, the searching officials must first ask the lawyer to turn over the requested material before the search may commence. Where the client is the target, all of the client’s file may be covered by the duty of confidentiality, and much of it may fall within the privilege. The privileged material should be beyond the reach of the searching officials in all jurisdictions, the non-privileged confidential material, perhaps not.282 Naturally, physical non-documentary evidence, the corpus delicti of crime, or evidence falling within the “crime-fraud” exception would normally not be protected. Where the lawyer is the suspect, or one of the suspects, then the search is in many ways no different than any other search, other than the lawyer still has the duty to protect the confidentiality of the privileged material and “work product” in his clients’ files. In many systems special procedures must be followed in the search of lawyer’s offices so as to protect privileged, and sometimes other confidential information from being read by searching officers while they are looking for the evidence described in the search warrant. In some countries, however, searches of lawyer’s offices are no different from any other search and the searching officers may seize and read documents to determine whether they are those designated in the search warrant.283 In some countries, a judge carries out the search in the presence of a representative of the local bar, who gives advice. In some systems, the head of the bar association, or a specially designated lawyer unrelated to the case, must be called in to be present and monitor the search, if not actually carry out the search and determine which files are seizable and which are not. This is the case, for example in Italy, Portugal or the Netherlands.284 The decision on seizure or not is usually made by the judge.285 If the bar representative objects and claims the item is privileged, some systems will send the question for review to a neutral judge.286

As in Germany, Italy or Portugal. In the U.K., “privileged” material may not be the subject of a subpoena or search, but the other two protected types of confidential material, “excluded” and “special procedure” material, may be seized but not pursuant to a normal search warrant, see Stone and Lynn, para. 5.2. 283 Sasakura, para. 4.2. This is also the case in Spain, were the limits are set in the judicial warrant, but in executing the warrant, police may go through non-targeted files and documents. 284 In Italy, searches during the preliminary investigation are carried out by prosecutors, and by judges after charging. In both cases, a representative of the bar must be present, see CeresaGastaldo, para. 4.1. 285 For example in Portugal. The California Bar (see Cal. Penal Code § 1524(c) requires to name a lawyer as “special master” to actually conduct the search of a non-suspect lawyer’s office. Courts in some other states will appoint such special masters, as well, who may be lawyers or judicial officials, see Thaman, para. 3.4.2. 286 See for Portugal Costa Ramos et al., para. 4.2.1 (President of the Court of Appeal). See also André and Another v. France, Appl. no. 18603/03, of 24 July 2008: the case relates to a search of lawyer’s office in France—who was not a suspect himself—where the Court found the search in violation of the Convention taking into account that the investigating magistrate was not present during the search, and that the objections made by the President of the Bar Association had been 282

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Sometimes this procedure is not regulated by statute, but is just considered good practice and is encouraged by the courts.287 The absence of the representative of the bar association as a third observer when this is required under national law or not being able to properly supervise the search, are factors that have been taken into account by the ECtHR in assessing the interference with Art. 8 ECHR related to searches of lawyer’s offices.288 Presumably, in most systems, the lawyer whose office is being searched will be present. In other systems, the investigating judge,289 or a pretrial judge will look through the material, sometimes at the scene of the search, sometimes after its seizure, to determine what is seizable, and what not. In the Netherlands, the investigating judge must investigate each piece of evidence, document, or computer file,290 ask the opinion of the lawyer whose office is being searched, and then decide, on the scene or later in her office, whether the evidence may be seized or must be returned to the lawyer. The opinion of the lawyer that a document is privileged is usually respected, though the judge may reject that conclusion.291 If there is an objection by a lawyer as to whether the material is privileged, many systems provide for packaging of the suspected files, or suspected computer harddrives (or copies thereof) and their submission to a judge without inspecting them first, so as to preserve the confidentiality of the possibly privileged material.292 In other systems, the safeguard is deemed to be that the prosecutor conducts the search, rather than the (judicial) police, as in Italy; or the police must turn over any documents to the prosecutor, who would then review them, as in Germany. The prosecutor’s office may itself do the screening, but may use a team of prosecutors unrelated to the investigation so as to prevent direct influence on those prosecuting

completely disregarded and had not prevented the police officers from looking at all documents in the office and seizing them. 287 In Spain, the Supreme Court is divided on whether the presence of the Head of the Bar should be mandatory or not, although in his absence the evidence will not be considered as unlawfully obtained, see Villamarín López, para. 4.2; see also for the U.K., Stone and Lynn, para. 5.2. 288 Wieser and Bicos Beteiligungen GmbH v. Austria, Appl. no. 74336/01, of 16 October 2007; Sérvulo & Associados - Sociedade de Advogados, Rl v. Portugal, Appl. no. 27013/10, of 3 September 2015. In Niemietz v. Germany, Appl. no. 13710/88, of 16 December 1992, § 37, the court saw the absence of a member of the bar during the search as an inadequacy of German procedure at the time. At the same time, in Jacquier v. France, Appl. no. 45827/07, of 1 September 2009, the Court found the presence of the Dean of the local bar association as a factor which made the search of a lawyer’s office not violate Art. 8 ECHR. 289 In the Netherlands, according to Art. 97 and 110 NL-CCP, only the investigating judge may authorize and conduct such a search, unless there are exigent circumstances. 290 In Italy, the law forbids seizing an entire hard drive or copying it for examination later, though prosecutors continue to ignore the law, see Ceresa-Gastaldo, para. 4.4.1. 291 The lawyer may even appeal the decision and the controversial item will remain unread until the appeal has been heard, see Nan and Verrest, para. 5.2. 292 This is the case, for example in Poland, Turkey or Switzerland, as well as in some states of the U.S. Also in Norway, see Wolland v. Norway, Appl. no. 39731/2, of 17 May 2018.

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the case.293 In our opinion, this system lacks the guarantees that are present when the bar itself, or a judge is the arbiter as to what may or may not be seized. In England and Wales, the police themselves conduct searches of lawyer’s offices, but special “seize and sift” rules apply when they come upon a computer hard-drive, or a trove of documents, where it is not readily clear whether they include privileged non-seizable material. The police may then seize the file, or hard-drive for the purposes of subjecting it to a later search to see if it contains seizable material.294 If searching officers come across something, such as a letter from lawyer to client, which would fall under privileged material, then many jurisdictions impose a prohibition on seizing, or of course, reading the item (for example the Netherlands). Although the logical place to find lawyer-client communications protected by the privilege is in the lawyer’s office or on the lawyer’s computer, it is also possible, that the client’s home or home computer also contain correspondence from the lawyer which would be subject to the privilege. In the case of Smirnov v. Russia, the ECtHR found that the search of the lawyer’s flat and the seizure of the central unit of his computer with a view of getting access to this client’s files, was disproportionate whatever aim was pursued, and thus in violation of Art. 8 ECHR.295

4.4 4.4.1

Interception of Confidential Communications Between Lawyer and Client Interception of Communications by Mail

In all systems, postal correspondence between lawyer and out-of-custody client is protected not only by the attorney-client privilege, but also by the general constitutional right to privacy in communications. A specific protection to the lawyer-client’s communications is provided, for instance, in Switzerland, where written messages from the accused to his defence counsel or from the defence counsel to the accused may not be seized by the criminal justice authorities.296 Some countries protect those communications as lawyer-client privilege only when in the possession of the lawyer, but not when the defendant is holding them, as is the case in Japan or Greece.297 When the client is in custody, however, in-and-outgoing mail between client and lawyer may be controlled to make sure envelopes or packages do not contain illegal

In the U.S. federal system, the separate prosecutorial filter team is called a “taint team” or “Chinese wall”. See Thaman, para. 3.4.2. 294 See Stone and Lynn, para. 5.2. 295 Smirnov v. Russia, Appl. no. 71362/01, of 7 June 2007. 296 See Art. 264(1)(a) CH-CCP. 297 See Sasakura, para. 4.1; Triantafyllou, para. 6. 293

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items, yet there is still almost always298 a prohibition on prison, or other law enforcement authorities reading the contents of correspondence. In some countries, however, there is an exception for prisoners charged with terrorist offences.299 In some countries, it is possible that a judge could authorize a search of the cell of a prisoner for the purpose of seizing correspondence with his lawyer, though the issue is controversial.300 The ECtHR has held that “Article 8 of the ECHR (right to respect for private and family life, home and correspondence) may be violated if legal correspondence is read, save in exceptional circumstances—for example, where there is reasonable cause to believe that the letter’s contents could endanger prison security or the safety of others”.301 The situation addressed in the case Laurent v. France,302 is worth mentioning here. In that case the defendant, who was in the lobby of the court escorted by two police officers, received from his lawyer—in full view of the officers—a folded sheet of paper where the lawyer had written a message. Police officers intercepted and opened the pieces of paper containing the message. The Court held that such action amounted to an interception of correspondence and found violation of Art. 8 ECHR, as such lawyer-client correspondence fell within the protection of professional legal confidentiality.

4.4.2

Use of Informants to Overhear Privileged Conversations

There is hardly any experience with regard to the use of informants to overhear and perhaps record otherwise privileged conversations in European countries, and the reports in Asia do not mention it either, although this type of intrusion should be condemned for violating the right to counsel, not to speak of the attorney-client privilege and perhaps the right to silence. In the U.S. there is contradictory case law in this area. In a seminal decision, the USSC held, in a case where an undercover agent was arrested along with the defendant for anti-Vietnam-war vandalism and maintained his cover during the trial by participating in attorney-client discussions, that a 6th Amendment violation would only occur if the defendant could prove that privileged information actually contributed to the defendant’s conviction.303

298

A glaring exception is China, where prison officials routinely read prisoner-lawyer correspondence, which, as a result, seldom takes place, see Sun and Chen, para. 5.3. 299 Monitoring of correspondence is possible with a court order if the defendant is charged with belonging to or forming a terrorist organization, in many countries, such as Germany, Spain, Turkey or the U.S. 300 A Japanese court found such a search illegal but refused to categorically rule out the practice. See Sasakura, para. 4.2. 301 Piechowicz v. Poland, Appl. no. 20071/07, of 17 April 2012, §§ 239–40. 302 Laurent v. France, Appl. no. 28798/13, of 24 May 2018. 303 Weatherford v. Bursey, 429 U.S. 545, 557–58 (1977). In California, however, the mere use of such an informant to overhear privileged communications and report them to the police can constitute a violation of the 6th Amendment and the California right to counsel and the remedy is dismissal of the case (Barber v. Superior Court, 598 P.2d 818 (Cal. 1979). See Thaman, para. 3.5.2.

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Some countries, however, allow for exceptions for cases involving terrorism, national security, or other serious crimes, as long as a warrant has been obtained.304 However a “Catch 22” factor exists here, in relation to the attorney-client privilege in some jurisdictions, for if the undercover informant was not a member of the defence team, then the overheard conversation may not be privileged, as it was not conducted in private.305

4.4.3

Wiretapping, Bugging, Intercepting Electronic Communications or Communications Metadata

Wiretapping, acoustic eavesdropping (bugging), and intercepting electronic communications or e-mail are all considered to be serious invasions of privacy which may only be authorized by a judge306 in the investigation of serious crimes and which must be based on probable cause, that the conversations targeted relate to the commission or preparation of such crimes, or will help prove guilt thereof. The rules governing wiretapping and bugging are usually more demanding than those related to a normal search warrant, and may be requested only by a prosecutor and usually require approval by a higher-level judge.307 Most statutes also require swift notification to those whose conversations were intercepted or recorded, that the measure was taken, so they can inspect the content of the conversations and take other legal action. When these measures are aimed at attorney-client conversations, then considerations related to the attorney-client privilege and, of course, the right to counsel arise,308 along with the usual privacy concerns. In most of the countries studied it is absolutely prohibited to intercept or listen into attorney-client conversations, even if they will reveal evidence that could lead to the conviction of the client of the crime for which he has sought representation.309 To that end, intercepting the lawyer’s telephone is usually prohibited, even if communications held are not all covered by the attorney-client privilege, as was already highlighted in the ECtHR case of Kopp

The Regulation of Investigatory Powers Act 2000 in the UK allows “intrusive surveillance” to listen and record otherwise protected conversations based on a decision of the Secretary of State and approval by a Judicial Commissioner, see Stone and Lynn, para. 5.6. 305 See Thaman, para. 3.5.2. 306 Again with the exception of China, where there appears to be no hindrance to wiretapping or bugging attorney-client communications, see Sun and Chen, para. 5.3. 307 In general, see Thaman (2008a), pp. 61–68. After England and Wales, for years, had a system permitting police officials to bug with only retroactive review by a commission composed of judges, the Investigative Powers Act 2016, which applies to the whole U.K., now clearly requires judicial authorization before the measure goes into effect, see Stone and Lynn, paras. 5.5.1–5.5.2. 308 In the U.S. it is normally considered to be a serious violation of the right to counsel if the prosecutor wiretaps or otherwise listens in to conversations of a suspect or accused with his lawyer, see Thaman, para. 3.5.3.2. 309 As for example, in Italy or Japan. 304

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v. Switzerland310—dealing with the monitoring of the law firm’s telephone—the law often does not clearly state how and under what conditions the distinction between the conversations covered by the lawyer-client should be segregated from those relating to other activities of the lawyer, falling out of his professional duties. The problem in practice is not so much the interception of the lawyer’s telephone or e-mails, but that those confidential conversations are tapped by chance when intercepting the suspect’s or defendant’s phone or computer.311 Usually it is recognised that there is hardly any possibility to avoid that such conversations are finally intercepted or even recorded. In particular if the conversations are in another language or the interlocutors do not identify themselves, it may not be possible to know at the moment of the recording of the conversation that the privileged lawyerclient relationship is affected. In such cases, the interception will continue and the critical conversations likely be recorded. Most systems will not avoid listening to those conversations even if this is unlawful and thus will not be able to be presented as evidence in court. In Spain, after the amendment of the CCP in 2015, it is provided that when confidential conversations or communications have been captured or intervened with during the execution of any interception measure (phone or computer), “the court shall order the removal of the recording or delivery to the recipient of the detained correspondence, noting this circumstance in the proceedings”.312 But it is difficult to make sure that such communications are not used to lead to other relevant information for the investigation. A very protective solution has been implemented in the Dutch system. Since 2011, Dutch lawyers may designate up to 4 telephone numbers which may not be tapped.313 Furthermore, while other phone numbers are tapped, if they connect to one of the numbers registered as excluded, the intercepting system will automatically impede the interception. Some countries will allow prosecutors to ask a judge to allow bugging or listening into conversations conducted between lawyer and client in jails and pretrial detention facilities in cases of terrorism or other serious crimes, if there is a suspicion of collusion between the two.314 Otherwise, the confidentiality of such conversations, which are clearly covered by the privilege, may not be violated.315 In the notorious Gürtel case, the Spanish Supreme Court condemned interceptions of attorney-client

310

Kopp v. Switzerland, Appl. no. 13/1997/797/1000, of 25 March 1998. See Bachmaier Winter (2004), pp. 50 ff. 312 See Bachmaier Winter (2016), pp. 700–701. 313 See Nan and Verrest, para. 5.4. 314 See Council of Europe Recommendation Rec(2006)2, of the Committee of Ministers to member states on the European Prison Rules of 11 January 2006, “§ 23.4: Consultations and other communications including correspondence about legal matters between prisoners and their legal advisers shall be confidential. §23.5: A judicial authority may in exceptional circumstances authorise restrictions on such confidentiality to prevent serious crime or major breaches of prison safety and security”. See also in Spain, Art. 51 of the Organic Law on the Penitentiary Regime and Art. 579 ES-CCP (only with judicial authorization). 315 A prosecutor who secretly listened to prisoner-lawyer conversations in Indiana was suspended from the bar for 4 years for misconduct, see Thaman, para. 3.5.3.2. 311

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communications ordered by former investigating judge Balthazar Garzón of the National Court and commented how such illegal actions undermine the presumption of innocence and the privilege against self-incrimination.316 The ECtHR has also spoken against any type of interception of conversations between detained suspects or accused and their lawyers, for even the possibility of being overheard will chill the protections of the attorney-client privilege.317 Where the lawyer is suspected of colluding with the client, thus triggering the “crime-fraud” exception, then wiretapping is often allowed.318 In the U.K., since 2016, warrants to intercept may be obtained by high police officials from the Home Secretary, who must get authorization from a judicial official. This is only allowed in cases involving terrorism, national security, or “serious crime” and there must be “exceptional and compelling circumstances” which make the intervention proportional, that is, outweigh the interest in the confidentiality of attorney-client conversations.319 Many countries, as well, have a separate, often less rigorous arrangement for intercepting conversations in terrorism or organized crime cases, or cases which otherwise are a threat to national security. Here, judicial authorization is often not required, nor must there be classical “probable cause” that a crime is being committed or prepared. Also, notification may often be indefinitely withheld if it would jeopardize the investigation.320 Most statutes require a process of “minimization” so that conversations not related to the probable cause which justified the warrant are not listened to and recorded. This is the equivalent of non-rummaging dictates in the area of searches. In the case of lawyer-client conversations, the listener should immediately turn off the listening device, stop listening and recording any conversations that appear to fall within the attorney-client privilege. Unlike with searches, one seldom finds provisions where judges or presidents of the bar are called upon to make the decisions about which conversations are protected by privilege and which are not. Thus challenges to the seizure of an arguably privileged call must be made ex post facto after the interception has been made. Once challenges are made, however, it may ultimately be a judge who decides whether particular conversations are covered by the privilege and may not be turned over to the prosecution. In the U.S., prosecutors try to police themselves by having,

316

Decision of the Spanish Supreme Court of 19 October 2010. See on this issue extensively, Manso (2012), pp. 39 ff. As a consequence of this severe infringement, the investigating judge was dismissed from the judiciary. 317 See for example, Brennan v. United Kingdom, Appl. no. 39846/98, of 16 January 2001; Zagaria v. Italy, Appl. no. 58295/00, of 27 November 2007; Castravet v. Moldava, Appl. no. 23393/05, of 13 March 2007; Sakhnovskiy v. Russia, Appl. no. 21272/03, of 2 November 2010. 318 For example, the Netherlands, Spain or Switzerland. 319 See Stone and Lynn, para. 5.6. 320 On the U.S. Foreign Intelligence Surveillance Act (FISA) and the revelations of the programs of the U.S. National Security Agency, see Thaman, para. 3.5.3.2.

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as with searches, “taint teams” of prosecutors not directly involved in the investigation, to sift through intercepted conversations and filter out those between client and lawyer which may be privileged.321 Investigators can also use devices to record, in real time, ingoing and outgoing calls from a particular telephone number, which are called “pen registers” or “trap and trace devices” in the U.S. Although these devices do not access the content of conversations, they could ascertain when and whether a suspect contacted a lawyer, which is itself privileged material in many legal systems. Judicial authorization is required for these measures in some, but not all countries.322 Some countries have enacted new legislation which also allows law enforcement agents, with judicial authorization, to hack into computers and actually capture electronic communications as they take place. It is worrisome that there are still many countries which do not have special rules relating to law-firm computers or special safeguards for protecting the discussions between lawyer and client. Finally, many lawyers communicate with clients by e-mail and, thus, privileged conversations are often archived and stored by telecommunications service providers. In some countries, these stored communications enjoy the same protection as do attorney-client conversations in real time.323 This is not true in the U.S., where federal prisoners are specifically told that their e-mail communications are not private.324 In many jurisdictions, law enforcement officials have an easier time gaining access to stored e-mail conversations, than they do in getting a warrant to intercept conversations in real time.325 Naturally, service providers also store archived telecommunications metadata which indicate who called whom on what day and at what time, as well as who exchanged e-mails with whom. This is also sometimes quite easy to access.

321

See Thaman, para. 3.5.3.2. Such teams have not, however, been used in relation to cases where under FISA, or the NSA program, conversations between indicted foreign clients and lawyers have been intercepted. 322 Italy and Germany would require judicial authorization, but not the U.S.; see Thaman (2008a), pp. 69–71. 323 Nevertheless the frequent practice of mirroring the whole computer in physical as well as when a remote search of computer is carried out, will cause the unavoidable seizure of the privileged communications. See Bachmaier Winter (2017), pp. 10 ff. 324 Thaman, para. 3.5.3.2. 325 In Japan they may be accessed with judicial authorization, though the lawyer may make a claim of privilege, see Sasakura, para. 4.3. Also for China, Sun and Chen, para. 5.3.

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5 Exclusionary Rules Related to Violations of the Attorney-Client Privilege and the Right to Counsel If a criminal defendant is completely denied the right to counsel at trial, then in most countries326 we have a fundamental jurisdictional flaw in the proceedings and no judgment emanating from the trial will be valid.327 In civil law jurisdictions one sometimes talks of an “absolute nullity”.328 However, despite the egregiousness of such violations, there may actually be no evidence to exclude from the trial. These are examples of fundamental violations of due process which cannot be purged, or declared harmless.329 A step below complete denial of counsel, would be egregious violations of the right to attorney-client confidentiality, examples of which have been discussed in the previous section, such as secretly wiretapping or listening in on such conversations, using informants to crash the defence team, or searches of lawyers’ offices in violation of the special rules established for such searches to protect attorney-client privilege. Some jurisdictions have strong exclusionary rules for such violations.330 In other systems, as in the Netherlands, serious breach of the attorney-client privilege could result in the case being dismissed. Naturally, the attorney-client privilege may be violated where law enforcement accesses electronic communications stored in the “cloud” by internet service providers. In many countries, this, as with a wiretap or bug, will inexorably lead to exclusion. In the U.S., however, stored communications are accessible with a simple search warrant, rather than the more demanding wiretap order of the Omnibus Crime Control and Safe Streets Act, Title III (also known as the wiretap statute). In the U.S., a non-suspect lawyer, whose office is searched in violation of the 4th Amendment, can enjoin the use of the evidence to protect the attorney-client privilege and lawyer confidentiality and seek to compel its return, but cannot move to suppress the evidence due to a violation of the 4th Amendment, because she is not a defendant and has no standing to move to suppress the evidence.331 Equally strong rules exist for violations of the right to counsel in the form of compelling the lawyer to testify or make declarations regarding confidential 326

Again, China is an outlier here, see Sun and Chen, para. 6. Art. 439(1)(10) PL-CCP, when provisions for mandatory counsel are violated. 328 Art. 158(2) CH-CCP makes any evidence inadmissible if the defendant was not advised of the right to counsel. On “absolute” and “relative” nullities, see Thaman (2013), pp. 410–412. 329 They are called “plain error” in the U.S. Unites States v. Olano, 507 U.S. 725 (1993). 330 Art. 160(a) DE-CCP; Art. 359a NL-CCP; Art. 126(3) PT-CCP (a violation would also be grounds for not recognizing an European arrest warrant, a kind of inter-European extradition order). See also Ceresa-Gastaldo, para. 5; Sasakura, para. 4; Lynn and Wohlers, para. 5.1 (though the CCP is not clear on this, the case law has clearly recognized inadmissibility of evidence gathered in violation of the right to counsel). The State of Oregon excludes all evidence gained in violation of its law regulating law office searches, see Thaman, para. 4.3. On the exclusionary rules of evidence in Spain, see Bachmaier Winter (2013), pp. 209–234. 331 Thaman, para. 4.3. 327

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communications. On the other hand, if the lawyer violates the privilege and testifies against the wishes of his or her client, such testimony may be used in court. Although nearly all countries provide for exclusion of conversations intercepted in violation of the country’s legislation regulating wiretapping, bugging and interception of electronic conversations,332 and the constitutional right to privacy in one’s communications, the interception of a lawyer-client conversation may not have violated such constitutional or legal prohibitions, as it may have been authorized by a judge and based on probable cause. The same is true with a search of a law office. In the U.S., a search of a law office may not violate the 4th Amendment, but the evidence may not be usable due to the attorney-client privilege. The courts are split, however, as to whether the prosecutor could make derivative use of the information, such as in furthering the investigation. The exclusionary rule in U.S. Title III, however, normally only applies to core violations, such as a lack of a warrant or probable cause, and not necessarily to violations in the “minimization” requirement. However, when the failure to minimize relates to attorney-client conversations, most courts will suppress all the monitored conversations between attorney and client.333 Even if the interception violated the wiretap and bugging laws, as well as the constitution, the rules of many systems permit the use of physical, or corpus delicti evidence which may have been gathered as derivative evidence indirectly related to the violation.334 Although many countries do not recognize the doctrine of the “fruit of the poisonous tree”,335 when it comes to fruits of unlawful wiretaps or other privacy violations,336 this is not necessarily the case when the core violation is that of the right to counsel and violation of the attorney-client privilege. Finally, of utmost importance are the violations of the right to counsel in relation to interrogations. In Europe, the Salduz decision has reinforced a strong right to counsel during the pretrial stages, and especially before and during interrogation, and has even declared a violation of the Art. 6 ECHR right to a fair trial if the right to counsel has been denied. This is tantamount to creating an exclusionary rule in the event of a Salduz violation and most European countries see it this way. Still, the reluctance of many countries to extend the prohibition on use to physical evidence which is “fruit of the poisonous tree” renders these exclusionary rules at time chimerical.

332

An exception may be England and Wales, where conversations intercepted in conformity with the law are not usable as evidence, but only for intelligence purposes. Stone and Lynn, para. 6. Statutory exclusionary rules in the U.S. triggered by violation of the wiretap laws extend explicitly to fruits of the poisonous tree. Fruits of illegal wiretaps may also not be used to impeach a testifying defendant, as may the fruits of a search made in violation of the 4th Amendment; Thaman, para. 4.3. 333 Thaman, para. 4.4. 334 In general, see Thaman (2013), p. 439. 335 For more detail on the derivative application of exclusionary rules, see Thaman (2013), pp. 432–435. 336 Ibid., p. 435.

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Of course, before any interrogation it is pretty much accepted that a suspect or accused must be advised of the right to consult with counsel, and the right to silence before being questioned.337 If there has been no such admonition, subsequent statements are usually excluded. Yet most countries allow for the suspect to waive the right to counsel, after having been advised thereof. Only a few countries have held that any statement given by a suspect or accused during an interrogation without counsel (even if counsel was waived) may not be used if the defendant has retracted the statement at trial.338 Interrogations in the absence of counsel in violation of the Miranda-type rules, do not, even in the U.S., normally lead to exclusion of derivative evidence.339 The rules in the U.S. are somewhat stricter after a person has been charged, and the 6th Amendment right to counsel goes into effect. For instance, violations at this stage could lead to exclusion of derivative physical evidence.340 In these cases, of course, attorney-client privilege is already in force and such interrogations have also been seen to violate the rule that a lawyer for one side (the prosecutor) may not seek to question the party on the other side (the defendant) without the consent of the other party’s lawyer.341 The majority of countries do not have categorical exclusionary rules but use various balancing or proportionality tests which are set out either in statutes, constitutions or in case law.342 The importance of the right breached is usually a crucial factor. Here, violation of the right to counsel should be considered to be among the most serious because it undermines the procedural position of the defendant throughout the proceedings. Many countries, which treat the right to privacy as being of lesser importance, and therefore seldom exclude derivative physical evidence, may treat the right to counsel as being more important. The importance of the right breached is then balanced against the gravity of the violation, i.e., did the officer act in good faith, thinking he was following the law, as well as the importance of the evidence in proving the case, and the seriousness of the case. These last two factors are questionable, as it is only probative, material evidence that a defendant would ever want to exclude, and it is in serious cases, with the harshest of punishments, that due process should be stronger, than in trivial ones. Yet, these last two exceptions open doors wide up in some jurisdictions, which will virtually never exclude evidence which makes up corpus delicti, or probative physical evidence. And the “serious case exception”,343 a key element of the German balancing test, will even open the door to the use of evidence which is gathered in

337

Thaman (2013), p. 422. This rule can be found in Art. 75 CCP of Russia and a few other countries. Thaman (2013), pp. 429–430. 339 Only in four states will such derivative evidence be suppressed. Thaman, para. 4.1. 340 See Thaman, para. 4.1. 341 Ibid. 342 See Thaman (2013), pp. 426–430. 343 Ibid, pp. 439–440. 338

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violation of core areas of privacy and the development of the personality, against the gathering of which there exists an absolute prohibition. Some systems characterize their balancing regimes in the terms of the right to a fair trial, which is the approach taken by the ECtHR. This is true in England and Wales where § 78 PACE allows exclusion “if (. . .) it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it”.344 Other systems will only exclude if introduction of the evidence would bring the court into disrepute.345 In these systems, violations of the right to counsel are also treated more seriously than violations of the right to privacy and often lead to exclusion.346 The idea of “core areas” of privacy and personality protection which will not admit of violation, such as one finds in Germany, does not exist in perhaps most countries. Normally everything is accessible with judicial authorization and probable cause. However, there are voices who feel the violation of the attorney-client privilege, in the sense of listening in to actually privileged conversations, should be recognized as a “core area” where the defendant should have a “reasonable expectation of privacy” as long as conversations are limited to discussing the preparation of the case for which representation has been sought.347

6 Conclusion Criminal procedure has historically—and to this day still in many countries—tried to induce criminal suspects to admit guilt, initially as a result of more or less coercive interrogation techniques, but now through systems of inducing guilty pleas or waivers of the right to trial as early as possible during the criminal process. American plea bargaining was the pioneer in this area, and now has eliminated 95% or more of full criminal trials. Other countries are rapidly expanding the use of conditional dismissals, penal orders, stipulations to the charges with or without statutory discounts, confession bargaining at trial, cooperation agreements with the authorities, etc.348 Once criminal justice no longer consists in litigation, but in administrative-like negotiations, then the attorney-client privilege is also at risk, for, at least in the U.S., the prosecutor may offer a favourable deal in return for waiver of important rights, such as the right to appeal or the attorney-client privilege. Thus, an effective right to counsel at arrest and before the first interrogation is essential both to ensure suspects do not confess under pressure in the police station,

344

Ibid, pp. 427–428. Ibid, pp. 428–429. 346 Under § 78 PACE in England and Wales. See Stone and Lynn, para. 6. 347 Simon (2015), p. 349. 348 In general, see Thaman (2010), pp. 331–336. 345

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in the arraignment court, during the preliminary investigation, or at trial. Europe has taken big strides here in the wake of the Salduz decision, and the EU rules have also spoken in favour of a categorical protection of attorney-client consultations in jails and detention centres, before interrogations or cooperation or consensual procedures take place. The U.S., once a pioneer in this area with the Miranda decision, has fallen behind and still clings to the notion that the right to counsel only inures upon charging. Thus, it is important to have an effective and zealous system of stationhouse lawyers with whom arrested suspects may immediately confer. Some countries have such a system, or provide for swift arrival of lawyers to jails upon an arrest, but in other countries there are insufficient lawyers to fulfil this need. Interrogations, like plea-bargaining negotiations, should only take place with counsel being present. However, this step has been taken in only a few countries. In fact, the funding of public defenders and court-appointed lawyer systems in the U.S. and elsewhere349 has been slashed, case-load has skyrocketed, and the quality of appointed representation has plummeted (at least in the U.S.). Lawyers are trained to deal cases instead of trying them in order to save money, and the coercive system of plea-bargaining makes it very perilous for the defendant to refuse a “good” offer. When it comes to the protection of the confidentiality of attorney-client communications, most of the countries which have presented reports in this book have quite solid legislation which prohibits interceptions of these communications especially with non-suspect lawyers and render inadmissible as evidence any communications unlawfully accessed. Nevertheless, there are still important problems to be addressed. One of these problems comes with the “crime-fraud” exception, or, more clearly, the cases where the lawyer is suspected of colluding in the criminal schemes of the client. Fears have been expressed that police and prosecutors use trumped-up suspicions of attorney collusion to get warrants to overhear attorney-client communications, as a pretext for monitoring self-incriminatory statements of the client.350 Many countries have protective procedures for searches of law offices (of suspect-, and non-suspect lawyers), which provide for neutral third parties (bar officers, judges) to decide which materials are privileged and which are not. There is a desire to extend this type of protection to wiretaps, though, naturally, this is more complicated, though not impossible, to effectuate. As seen above, the Dutch rules are a good example on how to prevent any intrusion in telephone conversations of lawyers. Searches of computers and the sifting of privileged and non-privileged materials, is still a challenge in most countries, lacking precise rules on how to carry out such electronic searches. Another danger is the gradual switch in the paradigm of law enforcement from repression of past crimes, to prevention of future crimes.351 Certain jurisdictions

349

For the Netherlands, see Nan and Verrest, para. 2. As seems to be the case in Portugal, see Costa Ramos et al., para 7. 351 See in general, Ashworth and Zedner (2014); Ross (2016), pp. 494–497; Hirsch Ballin (2012), pp. 10 ff.; Bachmaier Winter (2018), pp. 171–191. 350

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allow for exceptions to allowing suspects to meet with their clients, or allowing them to confer in secrecy, where the client is suspected of terrorism, organized crime or other serious offences. In a sense, there is a pretext at work in this situation, as well, that is, that the lawyer is in cahoots with the terrorist suspect. Fortunately in some jurisdictions, this must be alleged in a reasoned affidavit before judicial authorization may be granted. There is a related preventive measure gaining in popularity, of requiring lawyers who represent corporate and non-corporate clients to report on signs of money laundering or terrorist financing, thus turning lawyers into quasi-government agents. Although the national studies do not show significant problems in defence counsels being compelled to testify in breach of their legal privilege—exception made of the U.S.—it still has to be encouraged that lawyers in any event must refuse to testify, even at the expense of being held in contempt, if they believe the soughtafter testimony falls within the privilege. They must move to quash subpoenas of protected material and vigorously oppose seizure of privileged files during searches. In this respect, the classic adversarial posture of common law systems dovetails better with the privilege than the old inquisitorial criminal proceedings, but the progressive legislation in the European landscape to ensure the lawyer-client privilege has shown to be in some areas an example of protection of this right. Still the measures to be taken regarding the protection of work-product and electronic files and communications are to be strengthened in all countries studied. Strong, independent bar associations are indispensable to the functioning of the attorney-client privilege and its protection against overzealous legislators and law-enforcement cadre.352 In this context the Council of Europe Recommendation 2121 (2018) “The case for drafting a European convention on the profession of lawyer”, of 24 January 2018 is to be welcomed: by this recommendation the Assembly calls on the Committee of Ministers to draft a Convention to reinforce the legal status of the profession of lawyer as defined in Rec (2000)21, and among others “ensure that guarantees in relation to fundamental issues such as access to a lawyer and lawyers’ access to their clients, legal professional privilege, civil and criminal immunity for statements made in the course of their professional duties and the confidentiality of lawyer-client communications are reinforced as necessary in order to respond to developments in the surrounding legal and regulatory context, including measures introduced to counter corruption, money laundering and terrorism”.353

352

In this sense, the Council of Europe Recommendation R (2000) 21, on the freedom of exercise of the profession of lawyer, of 25 October 2000, requiring that the bar is completely independent. For a long time the trend has been to remove the bar from under the tutelage of ministries of justice. 353 This shall be done by translating the provisions of the previous Recommendation No. R (2000) 21 on the freedom of exercise of the profession of lawyer into a legally binding convention, with an effective control mechanism. See Rec (2121) 2018, available at http://assembly.coe.int/nw/xml/ XRef/Xref-XML2HTML-EN.asp?fileid¼24466&lang¼en.

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References Ashworth A, Zedner L (eds) (2014) Preventive justice. Oxford University Press, Oxford Bachmaier Winter L (2004) Intervenciones telefónicas y derechos de terceros en el proceso penal. La necesidad de una regulación legal del secreto professional y de otras relaciones de confianza. Revista de Derecho Procesal 1(3):41–82 Bachmaier Winter L (ed) (2008) Proceso penal y sistemas acusatorios. Marcial Pons, Madrid Bachmaier Winter L (2013) Spain: the constitutional court’s move from categorical exclusion to limited balancing. In: Thaman S (ed) Exclusionary rules in comparative law. Springer, New York-Heidelberg, pp 209–234 Bachmaier Winter L (2016) Access to telecommunication data in criminal justice: Spain. In: Sieber U, von zur Mühlen N (eds) Access to telecommunication data in criminal justice. Duncker & Humblot, Berlin, pp 647–704 Bachmaier Winter L (2017) Remote computer searches under the new 2015 Spanish Law: the proportionality principle and the protection of privacy. ZStW 129(1):1–27 Bachmaier Winter L (2018) Countering terrorism: suspects without suspicion and pre-suspects under surveillance. In: Sieber U, Mitsilegas V, Billis E, Mylonopolus C, Knust N (eds) Alternative systems of crime control. Duncker & Humblot, Berlin, pp 171–191 Bachmaier Winter L, Del Moral A (2020) Criminal law in Spain. Wolters Kluwer, The Netherlands Cape E, Hodgson J, Prakken T, Spronken T (2007) Procedural rights at the investigative stage: towards a real commitment to minimum standards. In: Cape E, Hodgson J, Prakken T (eds) Suspects in Europe. Procedural rights at the investigative stage of the criminal process in Europe. Intersentia, Antwerp, pp 1–28 Cras S (2014) The directive on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings. EUCRIM 2014(1):32–44 Epstein ES (2017) The attorney-client privilege and the work-product doctrine. ABA Publishing, Chicago Handbook on European Law relating to access to justice, 2016, by the Council of Europe, the European Court of Human Rights and the Fundamental Rights Agency, published by the FRA 2016. https://fra.europa.eu/en/publication/2016/handbook-european-law-relating-access-jus tice. Accessed 31 Oct 2019 Hirsch Ballin MFH (2012) Terrorism causing a shifting responsibility in criminal pre-trial investigation: from repression to prevention. In: Hirsch Ballin et al. (eds) Shifting responsibilities in criminal justice. Critical portrayals of the changing role and content of a fragmented globalizing law domain. Eleven International Publishing, The Hague, pp 9–29 Langbein JH (2003) The origins of adversary criminal trial. Oxford University Press, Oxford–New York Mackintosh JT, Angus KM (2004) Conflict in confidentiality: how E.U. laws leave in-house counsel outside the privilege. Int Lawyer 38(1):35–54 Manso T (2012) Las escuchas telefónicas entre abogado defensor y cliente en una comparación internacional. Estudios Penales y Criminológicos XXXII:39–95 Nieto A (2013) Investigaciones internas, whistleblowing y cooperación: la lucha por la información en el proceso penal. Diario La Ley 8120:1–17 Ross JE (2016) The emergence of foreign intelligence investigations as alternatives to the criminal process: a view of American counterterrorism surveillance through German lenses. In: Ross JE, Thaman SC (eds) Comparative criminal procedure. Elgar, Cheltenham Schumann S, Bruckmüller K, Soyer R (2012a) Assessing pre-trial access to legal advice-results of a comparative legal and empirical study. New J EU Crim Law 3(1):31–48 Schumann S, Bruckmüller K, Soyer R (eds) (2012b) Pre-trial emergency defence. NWV Verlag, Vienna Simon R (2015) The criminal defense lawyer exception to the fourth amendment. Seton Hall Law Rev 45:347–382

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Spronken T (2012) Effective defence. The letter of rights and the Salduz Directive. In: Vermeulen G (ed) Defence rights. International and European Developments. Intersentia, Antwerpen, pp 81–104 Spronken T, Vermeulen G, De Vocht V, Van Puyenbroek L (2009) EU procedural rights in criminal proceedings. Maklu, Antwerp 2009. Available at http://www.law.ugent.be/ircp/sweetlemon/ sites/default/files/pdf/EU_Procedural_Rights_in_Criminal_Proceedings.pdf. Accessed 31 Oct 2019 Thaman SC (2000) Is America a systematic violator of human rights in the administration of criminal justice? St. Louis Univ Law J 44:999 Thaman SC (2001) Miranda in comparative law. St. Louis Univ Law J 45:581 Thaman SC (2007) The nullification of the Russian jury: lessons for jury-inspired reform in Eurasia and beyond. Cornell Int Law J 40:355–428 Thaman SC (2008a) Comparative criminal procedure: a casebook approach, 2nd edn. Carolina Academic Press, Durham Thaman SC (2008b) The two faces of justice in the post-soviet legal sphere: adversarial procedures, jury trial, plea-bargaining and the inquisitorial legacy. In: Jackson J, Langer M, Tillers P (eds) Crime, procedure and evidence in comparative and international context: essays in honour of Mirjan Damaska. Hart, Oxford, Portland, pp 99–118 Thaman SC (2010) A typology of consensual criminal procedures: an historical and comparative perspective on the theory and practice of avoiding the full criminal trial. In: Thaman SC (ed) World plea bargaining: consensual procedures and the avoidance of the full criminal trial. Carolina Academic Press, Durham, pp 297–396 Thaman SC (2013) Balancing truth against human rights: a theory of modern exclusionary rules. In: Thaman S (ed) Exclusionary rules in comparative law. Springer, New York-Heidelberg, pp 403–446 Vogler R (2005) A world view of criminal justice. Ashgate, Aldershot

Lorena Bachmaier Winter Full Professor Faculty of Law of the Complutense University of Madrid. Degree in Law from the Complutense University (1989) and also in Political Science, specialised in International Relations (1989). PhD in 1994 with award for the best thesis in public law, and in 2015 she was also awarded the prestigious Luis Portero Human Rights Award. Her research focuses mainly on comparative law, human rights and criminal procedure, and EU area of justice. She has also written extensively in the field of civil procedure and arbitration. She has widely written in the legal field and published in more than 7 languages. She is Humboldt Foundation and also FRIAS (Freiburg Institute for Advanced Studies) fellow and has been visiting scholar and guest lecturer in numerous Universities and academic institutions worldwide, including Harvard, Berkeley or Stanford. She is member of the editorial board of numerous legal journals and of the most important academic associations. She has worked as an international expert for the Council of Europe and for the European Commission, in improving human rights standards and the rule of law in transitional democracies. Stephen C. Thaman (J.D., University of California, Berkeley; Dr. iur., University of Freiburg, Germany) is Professor of Law Emeritus at Saint Louis University, USA. He is the author of “Comparative Criminal Procedure: A Casebook Approach” (Carolina Acad. Press, 2nd edn. 2008), editor of “World Plea Bargaining” (Carolina Acad. Press, 2010) and “Exclusionary Rules in Comparative Perspective” (Springer, 2013), and co-editor of “Comparative Criminal Procedure” (Elgar, 2016). He was an Assistant Public Defender in Alameda County, California, from 1976 to 1987.

Attorney-Client Privilege in Mainland China’s Criminal Proceedings Changyong Sun and Suhao Chen

Abstract In criminal proceedings of mainland China, less than 30% of suspects and defendants are represented by lawyers and around 60% of them are held in pretrial detention. With regard to attorney-client communications, the norm is that lawyers go to jails to meet their clients at a later stage of the procedure. Suspects have not been granted the right to consult a lawyer before the first interrogation or to be accompanied by a lawyer during interrogations. Most suspects do not have any access to a lawyer in the preliminary stage of criminal proceedings, not to mention privileged communications. The protection of the confidentiality of attorney-client meetings in jails have complied with international standards while other communicative methods are not privileged. Lawyers have been granted the right not to testify under certain circumstances, but violations of the attorney-client privilege will not result in the exclusion of relevant evidence directly. Although there are several loopholes, the issue of the attorney-client privilege has not raised much attention. Under recent reforms such as the duty lawyer scheme, lawyers will get involved in criminal proceedings earlier and more frequently, and the significance of the attorney-client privilege will come into play accordingly. Keywords Access to lawyer · Attorney-client communications · Attorney-client privilege · Confidentiality · Criminal defence · Duty lawyer · Duty lawyer scheme · Exclusionary rules · Legal aid · Legal privilege · Mandatory counsel · Right not to testify · Right to counsel · Search of lawyer’s offices

Abbreviations ACLA CAPEL

All China Lawyers’ Association Confession and Acceptance of Punishment in Exchange of Leniency

C. Sun Southwest University of Political Science and Law, Chongqing, China S. Chen (*) School of Law, Nanjing Audit University, Nanjing, China © Springer Nature Switzerland AG 2020 L. Bachmaier Winter et al. (eds.), The Right to Counsel and the Protection of Attorney-Client Privilege in Criminal Proceedings, Ius Comparatum – Global Studies in Comparative Law 44, https://doi.org/10.1007/978-3-030-43123-5_3

75

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CCP LAI PSD RCDR RCLA RGLR RLA RMB RPC RPSD SSC SSL

C. Sun and S. Chen

Code of Criminal Procedure Legal Aid Institution Public Security Department Rules for Criminal Defence Representation Rules on Criminal Legal Aid Regulations on Guaranteeing Lawyers’ Right to Practice by Law Regulation of Legal Aid Renminbi Rules on Professional Conduct Procedural Regulations for the Public Security Departments to Handle Criminal Cases State Supervision Commission State Supervision Law

1 Introduction Unlike the western judicial system under the principle of separation of powers, Chinese courts are responsible to the bodies of state power (the People’s Congress at appropriate levels) which create them, and so are the procuratorates, which are state bodies for legal supervision rather than divisions of the administrative branch.1 Thus, it is not surprising that they are officially known as the People’s Courts and the People’s Procuratorates respectively. Similarly, the public security department (PSD), the equivalent of police in Chinese criminal process, which investigate most criminal cases, is also called the People’s PSD. The “people” label is a reflection of the traditional ideology deeply rooted in the criminal justice system which value collective interests over individual rights.2 As Bo Yin and many others have pointed out, the doctrine of historical materialism creates a strong emphasis on discovering the objective truth in criminal proceedings.3 Substantive correctness may be pursued at the expense of procedural safeguards.4 An extreme example is that all concluded cases can be remanded for a retrial as long as competent courts think there have been errors in ascertaining facts or applications of law in the judgments no matter whether it is to the benefit of the accused or not.5 How can one expect a lawyer to zealously defend the accused who is investigated, prosecuted and tried under the name of “people” while the ultimate goal of the whole process is

1

See Art. 128, 133, 134, 138 of the Constitution of the People’s Republic of China. Art. 1 of the Criminal Code of Procedure (CCP) uses “guarantee the rightful implementation of penal law, punish crimes, protect people, safeguard public safety and maintain socialist public order” to describe the legislative goals of this law. 3 See Yin and Duff (2010), p. 1117. 4 See Lan (2010), p. 153. 5 See Art. 254 CCP. 2

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to find the truth? Thus, dancing with shackles might be an appropriate metaphor to illustrate China’s defence lawyers’ role in criminal proceedings. Professor Jerome A. Cohen was right in saying that Chinese defence lawyers were in the plight, subjected to obstacles in entering a case, limited procedural rights and potential retaliations for professional acts.6 But it is also undeniable that China has been reinforcing lawyers’ rights toward providing more effective criminal defence to the accused, especially since the second amendment of the Criminal Code of Procedure (CCP, promulgated in 1979 and first amended in 1996) in 2012. In the recent 2018 amendment, the duty lawyer scheme which was intended to provide legal aid to all unrepresented suspects and defendants was written into law.7 Although it will take time to put the law on the paper into practice, the reforming trend is consistent and positive. In September 2015, the Supreme People’s Court, the Supreme People’s Procuratorate, the Ministry of Public Security, the Ministry of State Security and the Ministry of Justice jointly promulgated Regulations on Guaranteeing Lawyers’ Right to Practice by Law (RGLR), emphasizing relevant authorities’ obligations to ensure that defence attorneys’ freedom to perform their professional duties under the law. Combined with other high-profile regulations and documents,8 it suggests that defence lawyers have been recognized by the authorities as indispensable participants in the process of fulfilling the constitutional commitment to build a country under the rule of law.9 Under the current CCP, attorney-client meetings in jails are free from audio monitoring and defence lawyers are granted the right not to testify under certain circumstances. These are basic safeguards of the attorney-client privilege that have been established in China. Additionally, drafters of the CCP share the same rationale to protect the confidentiality of attorney-client communications as their foreign counterparts: the accused’s candour and frankness in disclosing information is essential for the lawyer to provide informed legal advice. However, as this article

6

See Cohen (2003), pp. 231–247. It has to be noted that after the amendments of the CCP, even article numbers of those unchanged clauses were changed since new clauses might be inserted before them. The article numbers of the CCP cited here are based on the version after the 2018 amendment. 8 It has to be noted that judicial explanations issued by the Supreme People’s Court and the Supreme People’s Procuratorate as well as documents jointly issued by relevant departments are also authoritative sources in legal proceedings in addition to formal legislation. Other documents on the right to counsel include, inter alia, Opinions on Deepening the Reform on the Lawyer System, Notice on Formulating and Completing Fast Response Mechanism to Safeguard Lawyers’ Right to Practice, Notice on Further Improving the Work to Guarantee Lawyers’ Right to Practice. See State Council Information Office of the Peoples’ Republic of China (2017). 9 Art. 5 of the Constitution stipulates: “The People’s Republic of China governs the country according to law and makes it a socialist country under the rule of law. The State upholds the uniformity and dignity of the socialist legal system. No laws or administrative or local regulations may contravene the Constitution. All State’s organs, the armed forces, all political parties and public organizations and all enterprises and institutions must abide by the Constitution and other laws. All acts in violation of the Constitution or other laws must be investigated. No organization or individual may enjoy the privilege of being above the Constitution and the law.” 7

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will show, there are still several loopholes that may undermine such a privilege. The issue of the attorney-client privilege has not attracted enough attention among practitioners, even though relevant safeguards fall behind international standards. This article will examine relevant legislation and practice regarding the confidentiality of the accused’s communications with defence attorneys in mainland China. The second part will introduce general information and new developments of the right to counsel. The third part will explore the practice of the attorney-client privilege, especially the internal conflict between the lawyers’ confidentiality duty and assistance in finding the truth. The fourth part will focus on the suspects’ communications with lawyers in the preliminary stage of pretrial investigations, which are often limited for the sake of securing investigative results. The fifth part will evaluate the state’s interference with the above-mentioned confidentiality, with the sixth and seventh parts discussing relevant remedies and communications with lawyers at trial. In the end, we will summarize the main challenges concerning the attorney-client privilege and try to explain the reason why this issue has been marginalized so far.

2 General Information About the Right to Counsel in China According to Art. 130 of the Constitution of the People’s Republic of China, everyone charged with a criminal offence is granted the constitutional right to defence. Like other countries, accused persons can defend themselves or be assisted by lawyers, and enjoy free legal aid under certain circumstances.10 However, only 30% of defendants or less are represented by lawyers in the first instances of criminal trials and the situation is even worse in the pretrial stage.11 Admittedly, criminal suspects and defendants have quite limited access to counsel in China.

2.1

The Starting Point of the Right to Counsel

The Chinese criminal proceedings can be divided into three stages: the pretrial investigation, the indictment and the trial. According to Art. 34 CCP, suspects have the right to entrust lawyers from the day when they are interrogated for the

10

Under Art. 33 CCP, a qualified person who is the guardian or relative of the accused or is recommended by the social organization or the department that the accused is affiliated with can also represent the accused as a defender. But this is not quite common in practice and beyond the scope of this article. 11 Although there are no official statistics, this estimation has been verified in several empirical studies. See Yongzhong and Xiao (2013), pp. 494–498.

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first time or compulsory measures are imposed.12 This means that suspects are granted the right to counsel from the preliminary stage of pretrial investigations, but not before the first interrogation or upon arrest. Actually, it took more than 30 years to finally allow lawyers to participate in pretrial investigations as defenders. Under Art. 110 of the 1979 CCP, the accused was not allowed to entrust a lawyer until the trial stage. Later, Art. 33 of the 1996 CCP moved a little further to the indictment stage, when the case was transferred to the procuratorate for review after the investigation had concluded.13 In essence, conservatism in the legislation process reflects the authorities’ reluctance to have lawyers involved in the periphery of criminal investigations (interrogations, arrests, etc.). A new change in corruption-related crime investigations has to be noted. Since the beginning of 2018 the State Supervision Commission (SSC), a super powerful new anti-corruption organization, was established nationwide from county up to central government level. The anti-corruption branches and related pretrial investigation functions of procuratorates were integrated into the SSC. As a state agency working together with the CPC Commission for Discipline Inspection, the SSC is defined as a political institution that combines functions of prevention, discipline and punishment of all corruptions and abuse of powers by all public officials. Accordingly, investigations conducted by the SSC are distinguished from regular criminal investigations and not regulated by the CCP. In March 2018, the National People’s Congress of China passed a constitutional amendment and the State Supervision Law (SSL), to provide legal foundation for the SSC. According to the SSL, the SSC is in charge of investigating 88 kinds of crimes regarding corruption and abuse of power. During the investigations, SSC may interview or interrogate the targeted subject, search places and people, check or seal or seize assets or freeze security accounts, order to conduct scientific identification or take technical investigation measures or border controls, detain suspects for up to 3 months with possible extension of 3 months. Unfortunately, although the SSC enjoys much more investigative powers than the procuratorate, all investigations conducted by the SSC are decided by itself and not regulated by the CCP, not to mention any judicial review or external supervision. As a result, the subject under the SSC investigation does not have any right to consult a lawyer until the case is transferred to the procuratorate for indictment.

12

Under Chapter 6 of the CCP, compulsory measures are measures used by the qualified authority against the accused to restrict their freedom to different extent, with the aim of preventing them from escaping, interfering with the process of justice or endangering the society. If suspects are arrested ( ju liu) or detained (dai bu), they will be held in jails, facing temporary deprivation of freedom. 13 Under Art. 96 of the 1996 CCP, suspects were also entitled to entrust a lawyer after the first interrogation or since the day compulsory methods were imposed, but the lawyer was not recognized as a defender like the later stages. It indicates that lawyers were supposed to act passively in the pretrial investigation stage under the 1996 CCP.

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Mandatory Counsel Provisions

It can be debated whether mandatory counsel provisions even exist in the CCP. According to Art. 35 and 278 CCP, when an unrepresented suspect or defendant is a minor, blind, deaf, mute, insane but has not lost criminal capacity, or may be sentenced to life imprisonment or death penalty, the court, the procuratorate or the police shall notify a legal aid institution (LAI) to appoint a defence lawyer for him or her. As one has seen, the language of these clauses is soft rather than mandatory. They do not say that the case cannot be proceeded without a counsel assisting the accused. From this perspective, legal aid upon official notice may be a more accurate term to describe Art. 35 and 278 CCP. In practice, these provisions are quasi-mandatory at least in the trial stage for three reasons. First, there is no reported case that any court fails in notifying LAIs in these situations or LAIs refuse to appoint a lawyer to the accused upon receiving the notice. Second, defendants have very limited choice in whether to be represented by a certain lawyer (or even by a lawyer). When the accused refuses the appointed lawyer to represent him or her, the court can only allow the refusal for good reasons. Under such circumstances, the accused has two choices: one is to retain a private lawyer on his or her own, the other is to accept the defence service provided by another lawyer appointed by the LAI upon notice of the court. If the defendant rejects the newly-appointed lawyer again, the trial will proceed regardless (with the defendant being represented by the lawyer he or she does not like).14 Third, violations will result in procedural sanctions. The general understanding is that failure in appointing a lawyer to the defendant who meets requirements of Art. 35 and 278 CCP suffices for a deprivation of legal procedural right which will undermine a fair trial. Upon an appeal, the case will be remanded for a retrial under Art. 238 para. 3 CCP.

2.3 2.3.1

Providing Counsel for the Indigent Accused Legal Aid System

According to Art. 35 and 278 CCP, the accused will be provided with a lawyer free of charge under two circumstances, namely legal aid upon official notice and legal aid upon application. The latter is usually based on indigent status of the accused. There is a national public defender system in China, but LAIs have not attained enough public lawyers. Therefore, private lawyers who are appointed by LAIs are the major criminal legal assistance providers. The criminal legal aid system is governed by the Regulation of Legal Aid (RLA), an administrative instrument promulgated by the State Council in 2003. Art. 3, 4 and 5 RLA stipulate that legal 14

See Art. 45 and 254 of the Supreme Court’s Explanations of the CCP.

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aid is the governments’ obligation and LAIs are established and regulated by local governments above the county level. There are LAIs affiliated to provincial, city and county (or the district within a city) governments.15 Generally, local departments of justice are responsible for managing these institutions. According to Art. 21 RLA, the LAI can assign a criminal case to its qualified employee or appoint a private lawyer to represent the accused. In 2013, private lawyers handled 77.3% of the criminal cases in the legal aid system.16 Art. 13 and 17 RLA authorize the provincial government (or same level) to make the specific standards of “indigence” and require the accused to submit evidence to prove indigent status when applying for legal aid.17 This means test restricts the number of people qualified for criminal legal aid. In 2013 and 2014, the criminal legal aid cases in which suspects and defendants’ applications based on indigent status were approved only accounted for 15.26% and 15.97% of the total criminal legal aid cases, indicating that legal aid upon official notice (quasi-mandatory counsel) was the predominant reason to provide counsel assistance at the expense of state.18

2.3.2

Appointing Lawyers in the Pretrial Investigation Stage

In some countries, there are reports that lawyers summoned by law enforcement officials collaborate with the police or encourage their clients to confess, even if it might not be in their best interests.19 Up until now, there have not been any similar incidents reported in China. This is probably because Chinese lawyers can only participate at a later stage of pretrial investigations. They usually meet suspects in jails for the first time rather than at police stations, only to find their clients have already given full confessions in most cases. Police officials are not allowed to appoint a lawyer for suspects directly. Instead, all appointments are made by LAIs. Accordingly, independence of lawyers who provide legal aid can be secured to certain extent, while the immediate access to counsel is still a myth. When suspects are indigent but do not meet the requirements of official notice under Art. 35 and 278 CCP, the police are not responsible for calling a lawyer.

15 By the end of 2014, there were 474 legal aid regulatory agencies, 3623 legal aid institutions, employing 14,533 people, 6450 of whom were qualified to practice law. See Legal Aid Center of the Ministry of Justice (2015), p. 207. 16 See Legal Aid Center of the Ministry of Justice (2014), p. 204. 17 Thresholds of indigence are subject to local variations. For example, the threshold is two times of the lowest family income in Beijing, while it is two times of the basic cost of living allowances in Chongqing, despite the discrepancy in economy of the two cities. 18 There were 222,200 and 240,480 criminal legal aid cases in 2013 and 2014 respectively, among which only 33,917 and 38,393 were initiated simply because the accused was indigent. See Legal Aid Center of the Ministry of Justice (2014), p. 202, Legal Aid Center of the Ministry of Justice (2015), p. 208. 19 See United Nations Office on Drugs and Crime (2014), p.70, note 133.

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Alternatively, they only need to assist suspects in applying for legal aid. In 2013, the Supreme People’s Court, the Supreme People’s Procuratorate, the Ministry of Public Security, the Ministry of Justice jointly promogulated Rules on Criminal Legal Aid (RCLA), stipulating specific working mechanisms for providing legal aid in criminal proceedings. It requires the police to inform suspects of the right to entrust a lawyer or apply for legal aid upon interrogating for the first time or making any arrests.20 If suspects meet the requirements of official notice, the police shall notify a LAI within 3 days of learning this fact.21 If a detained suspect applies for legal aid on the basis of indigent status, the police shall extend this application to a LAI within 24 h. They also need to notify the suspect’s legal guardians, immediate relatives or other people entrusted by him or her within 3 days and tell them to assist in providing supporting materials to the LAI. In addition to applying for legal aid, suspects can also hire private lawyers. Obviously, it is not an easy job for a detained suspect whose freedom and communications are rigidly restricted in the jail. According to official statistics, the rates of defendants held in pretrial detention were 62.23%, 58.48%, 63.41% in 2015, 2016 and 2017 respectively.22 As a consequence, these people were unavoidably isolated from the social support system. Those who have the luck to attain access to a private lawyer are usually assisted by their family members or friends. Another obstacle is that there are usually no duty lawyers posted or books including contact information of lawyers they can call from inside jails until recently.

2.4

New Developments in Mechanisms to Guarantee the Right to Counsel

As mentioned above, the lawyer representation rate in China’s criminal proceedings is quite low partly due to the high threshold of indigence related to legal aid applications.23 In this regard, two new reforms, namely the duty lawyer scheme and the full coverage of lawyer defence in criminal cases will no doubt bring a huge breakthrough. In August 2017, the Supreme People’s Court, the Supreme People’s Procuratorate, the Ministry of Public Security, the Ministry of State Security and the Ministry of Justice jointly promulgated Opinions on Promoting the Duty Lawyer 20

See Art. 5 RCLA. See Art. 9 RCLA. 22 The rates are calculated by the following equation: R ¼ D/P (R represents the rate of defendants held in pretrial detention; D represents the total number of people who are put in pretrial detention in a given year; P represents the total number of people who are prosecuted in a given year.) The statistics of D and P come from the National Bureau of Statistics of China at http://data.stats.gov.cn/ easyquery.htm?cn¼C01. 23 In a survey on criminal defendants and lawyers, more than 50% of the interviewees said the lack of money was the main reason not to hire a lawyer. See Jinghua (2011), pp. 129–131. 21

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Scheme. It requires LAIs to establish duty lawyer offices in all courts and jails, providing legal assistance to unrepresented suspects and defendants no matter whether they were indigent or not. By September 2017, 2300 of such offices had been established in 88% of jails.24 The on-site working method without means test will help the accused to attain timely and unlimited access to counsel. In the recent amendment, the duty lawyer scheme was incorporated into Art. 36 CCP. It stipulates that the court, the procuratorate and the jail shall notify suspects or defendants that they have the right to make an appointment to consult a duty lawyer and shall provide conveniences and facilities for relevant communications. But duty lawyers are only expected to provide limited consulting assistance and will not represent the accused at trial. The legal assistance includes but is not limited to providing legal advice, counselling on choice of the trial procedure, applying for alternatives of pretrial detention, submitting opinions on the case disposal. In October 2017, the Supreme People’s Court and the Ministry of Justice jointly promulgated Measures on the Pilot Work to Apply Lawyer Defence to All Criminal Cases. It requires 8 provinces and municipalities in the pilot program to provide free counsel for all unrepresented defendants in the trial stage.25 But the way that lawyers provide assistance differs according to procedures. In the case of first instance which is tried with a regular procedure, second instance or retrial after a post-conviction review, the court shall notify a LAI to appoint a lawyer to represent the defendant. But, in the summary or fast-track procedure, the court only needs to ask a duty lawyer to provide legal assistance for the defendant. It seems defendants will have access to full representation in full-blown procedures, but only limited legal assistance in the abbreviated ones under this scheme. The most highlighted progress can be found in Art. 11 of the above-mentioned Measures. It stipulates the court’s failure in fulfilling its notifying duty that causes the defendant to be unrepresented in the first instance of the trial constitutes a procedural error under Art. 238 para. 3 CCP, and the case shall then be remanded for a retrial upon an appeal. This reform has been extended nationwide since 2019. Hopefully, accessibility to counsel in criminal proceedings will be increased tremendously by the above-mentioned reforms. Thus, it will become more important to make sure that the assistance provided by lawyers is practical and effective. In this regard, the confidentiality of the accused’s communications with the lawyer is an essential issue which needs to be given further attention.

24

See the Ministry of Justice (2017). Trials for the first and second instance, death penalty review proceedings and re-trials of criminal cases upon post-conviction reviews are all within the definition of trial stage in this context. 25

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3 Attorney-Client Privilege The general information introduced above is a good starting point to understand the attorney-client privilege in criminal proceedings in China. In the context of China’s criminal justice system, the attorney-client privilege is a relatively strange concept, with relevant rules either missing or needing improvements.

3.1

General Legal Requirements and Protections

Defence lawyers’ legal duties and protections with regard to the confidentiality of attorney-client communications are primarily regulated by relevant clauses of the Lawyer Law and the CCP. In addition, Rules on Professional Conduct (RPC), Rules for Criminal Defence Representation (RCDR) promulgated by All China Lawyers’ Association (ACLA) are also important sources. Legal duties of defence lawyers are described by Art. 37 CCP as “to present materials and opinions regarding the innocence, lower-grade, mitigation, and exemption from criminal responsibility of suspects and defendants, to protect procedural rights and other legal rights of suspects and defendants”. Compared with the clause under the 1996 CCP, there are two major revisions. First, it deletes the phrase “to prove” which was after “present”, indicating that the defence does not bear the burden of proof. Second, it adds “procedural rights” which are distinct from “other legal rights”, emphasizing that lawyers are supposed to protect both procedural and substantive rights of the accused. In terms of the defence lawyers’ duties, Art. 31 Lawyer Law echoes the above-mentioned clause. Furthermore, Art. 38 CCP lists specific duties of defence lawyers in the pretrial investigation stage. Under this rule, defence lawyers should provide legal assistance for suspects, file petitions and complaints on behalf of suspects, apply for alternatives of pretrial detention, inquire the charges and relevant information and submit opinions about the case. In terms of defence lawyers’ confidentiality duty, the Lawyer Law precedes the CCP. Art. 38 Lawyer Law provides that lawyers shall keep certain information they have learned during legal practice in confidence, such as state secrets, commercial secrets, and information that clients and other people do not want to be disclosed, and shall not disclose clients’ privacy, except facts and information that clients or other people attempt to commit or are committing a crime that threatens state security, public security, or may cause serious damage to other people’s safety. There were no similar provisions in the 1996 CCP. Not until 2012 was Art. 48 added to the CCP. Under this new clause, defence lawyers are generally entitled to keep the information regarding clients obtained during legal practice in confidence. But if lawyers learn that clients or other people attempt to commit or are committing a crime that threatens state security, public security, or may cause serious damage to other people’s safety, they shall report it to the law enforcement department. Although not stated directly, this is intended to

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give defence lawyers a privilege not to testify or report information they learn during representations. In the views of drafters of the CCP, keeping relevant information in confidence is important for lawyers to gain trust from clients and society.26 Art. 9 RPC takes after Art. 38 Lawyer Law, while Art. 6 RCDR which was newly amended in 2017 has added the phrase “from any organizations or persons” after “keep in confidence” on the basis of Art. 48 CCP. This extra rhetoric is an accurate understanding of the CCP drafters’ intention, making the ambiguous language of the CCP clearer. As for other protections of the confidentiality, Art. 39 para. 4 CCP states that lawyers’ meetings with the accused shall not be audibly monitored. It incorporates the relevant contents of the Lawyer Law and alters the situation that investigators were allowed to be present during such meetings under Art. 96 of the 1996 CCP. The drafters point out that the investigative authority’s hearing of lawyer-client communications would have chilling effects on the accused and undermine the accused’s frankness to the counsel. In order to enable the accused to fully exercise his defence rights, communications with the counsel shall be done in confidence and the contents shall not be learned by a third party.27 It is clear that China has accepted the international standard in this regard which has been stated in Art. 8 of the Basic Principles on the Role of Lawyers. However, the accused’s privileged communication method with the lawyer is basically limited to the face-face meeting. Under Art. 39 CCP, lawyers can also write mail to detained suspects and defendants. But correspondence is relatively inefficient and may be subject to routine censorship. Additionally, there is no telephone access for pretrial detainees held in jails. Considering the fact that around 60% of suspects and defendants are detained in jails until the end of the procedure, this limited choice of privileged communication methods has been widely criticized by defence lawyers.28

3.2

Defence Lawyers’ Candour Toward the Court

It is commonly accepted that the defence lawyer is not the pure advocate of the accused who can accomplish the goal by any means. From the perspective of promoting social justice, lawyers shall also be candid toward the court. In other words, defence lawyers are also administers of justice. Undoubtedly, it is quite

26

See the Criminal Division of the Legislative Affairs Commission of the Standing Committee of the National People’s Congress (2012), p. 36. 27 See the Criminal Division of the Legislative Affairs Commission of the Standing Committee of the National People’s Congress (2012), p. 27. 28 In August 2018, a Beijing lawyer was photographed when he was crossing the water as high as his waist to reach the jail to meet his client after a heavy rain because the next available meeting date was over 10 days later. This photo was circulated via social media and raised complaints and discussions among defence lawyers on the limited communicative methods with their clients in jails.

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challenging for lawyers to choose a priority between being candid toward the court and advocating for the client’s interests. In China, lawyers’ role has been transformed from state legal officials to legal service providers, indicating that lawyers are not supposed to help the court find the truth at the expense of clients’ interests, at least in most cases.29 Current legislation has not imposed a positive obligation to seek for the truth on defence lawyers. The baseline is that lawyers shall not impede the truth-finding process by destroying, falsifying evidence or suborning witnesses. First of all, Art. 2 Lawyer Law requires lawyers to promote the rightful implementation of laws, social fairness and justice while advocating clients’ interests. More specifically, Art. 44 para. 1 CCP states that defence lawyers and any other people shall not assist the accused to conceal, destroy, falsify evidence or collude with others, or threaten, suborn a witness to give false testimony, or get involved in other activities that interfere with the procedure. Compared with the 1996 CCP, two revisions need to be highlighted. First, it extends the subject from defence lawyers to all persons involved in the procedure in order to avoid discriminating defence lawyers. Second, it deletes the phrase “change testimony” because it is legitimate to change false testimony into truthful testimony. However, zealous advocacy in criminal cases may be taken as being uncooperative by the authority and result in reprisal. The situation is worsened by the threat of potential criminal prosecution under Art. 306 Criminal Law, the Sword of Damocles for Chinese lawyers.30 According to this clause, defence lawyers who destroy, falsify evidence, or assist the accused to destroy, falsify evidence, or suborn witnesses to change their testimony against fact or give false testimony may face up to 7 years imprisonment. But presenting false testimony or evidence that is not intentionally falsified will not constitute falsifying evidence under this clause. Another issue related to defence lawyers’ candour toward the court is the independence of defence lawyers. Under Art. 5 of the former RCDR (1998), lawyers should participate in the procedure independently, regardless of their clients’ will. In other words, lawyers may express their own opinions against defendants’. In practice, there have been cases in which defendants claimed to be innocent while their lawyers argued that they were only guilty of a lower-grade of crime, or the former admitted guilt while the latter insisted on innocence defence.31 The theory of independent defence overemphasizes lawyers’ duty to promote the rightful

29 At the beginning of the Reform and Opening, the Interim Regulation of Lawyer promulgated by the Standing Committee of the National People’s Congress defined lawyers as state legal officials. Not until 1993 lawyers were redefined as professionals who provided legal service to the society in Measures on Deepening Lawyer System Reform by the Ministry of Justice. Later, this expression was incorporated into the first Lawyer Law promulgated in 1996, Art. 2 of which stipulated that the lawyer was the practitioner who was legally licensed to provide legal service to the society. The change of lawyers’ role suggests that they are distinct from police and other judicial officials, only bearing the obligation to find the truth to a very limited extent. 30 See Cohen (2003), pp. 244–245. 31 See Xu (2010), pp. 143–144.

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implementation of laws and to assist in truth finding, making them bear the professional ethics of judicial adjudicators. Obviously, this theory fails in meeting requirements to develop a modern legal profession. Thus, Art. 5 of the current RCDR (2017) provides that defence lawyers should respect clients’ opinions on the basis of fact and law while they perform defence independently according to law. It further requires lawyers not to provide defence opinions to the disadvantage of clients against their will. In the context of China’s criminal justice system, the same ethical issues are treated differently from how they are in the U.S. or other jurisdictions. Under Rule 3.3(a) of the American Bar Association Model Rules of Professional Conduct, a lawyer shall not offer evidence that he or she knows to be false. It is further explained in the comments that the lawyer must refuse to offer the evidence if he or she knows the client intends to testify falsely and persuasion is ineffective except the law stipulates otherwise in that jurisdiction.32 However, under Art. 191 CCP, after the indictment is read, the defendant may make a statement about the indictment, and both the prosecutor and the judge may interrogate the defendant. Thus, Chinese defence lawyers cannot prevent defendants from testifying at trial like their American counterparts, even if they know the testimony would be false. Another distinction is that almost all defendants have already given full confessions in the pretrial stage in China’s criminal proceedings, so withdrawing confessions at trial means denying investigative conclusions, which is a clear sign of uncooperativeness. For defence lawyers, this could sometimes pose a grave threat to personal security. In one widely reported case, the defendant who disavowed his confession at trial and accused police officials of torturing him then claimed that he had been coached by his lawyer (Li Zhuang) to do so. The lawyer was finally convicted for suborning perjury under Art. 306 Criminal Law.33 Consequently, although the client’s engagement in giving false confession is not an exception for confidentiality and the lawyer is not obligated to report to the authority, the potential risk of being prosecuted may compel some lawyers to terminate the representation according to Art. 32 Lawyer Law and Art.12 RCDR on the basis that the client conceals substantial facts, if persuasion is not effective. When interviewed for the purpose of this research, almost every lawyer stated that they would advise the defendant to withdraw former confessions based on evidence and facts and to talk to the defendant in advance to avoid unexpected repudiation.34 One lawyer said: “I am not in a good position to judge whether the defendant’s trial testimony is false or not.

32

See American Bar Association Model Rules for Professional Conduct, comment 6 and 7 of Rule 3.3, available at https://www.americanbar.org/groups/professional_responsibility/publications/ model_rules_of_professional_conduct/rule_3_3_candor_toward_the_tribunal/. 33 The weird part of the case is that all the meetings were monitored by police, so there seemed to be no chance for the lawyer to coach his client. Nevertheless, he was accused of doing so by blinking and whispering. In addition, he was also accused of inducing other witnesses to give false testimony. See Enshen (2010), pp. 134–138. 34 For the purpose of this research, the authors interviewed ten lawyers from Wuhan (4), Nanjing (2) and Chongqing (4) who were experienced in criminal defence.

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For the sake of the defendant’s interests, it is not appropriate to terminate the representation directly. I will keep representing the defendant and submitting defence opinions from other perspectives.” Similarly, lawyers are not obliged to hand over material evidence or report case information as to the where a body has been buried to the police or the judicial authority, but this is not sufficient to protect them from other pressures. In fear of the prosecution under Art. 306 Criminal Law, no lawyer will accept material evidence that is to the disadvantage of the accused or give advice on disposal. Under Art. 42 CCP, lawyers have to disclose certain exonerating evidence. If the concerned material evidence can be used as an alibi or can prove the accused is under the minimum age of criminal responsibility or does not have criminal capacity, the lawyer shall disclose it to the police and public prosecutors. Moreover, though the spot where the victim’s body is buried is key information for solving a serious case and ascertain the truth, lawyers are allowed to keep it in confidence under valid laws. Undoubtedly, if the lawyer decides to do so, he or she will face tremendous moral pressure. It would be a hard choice to make. Interestingly, almost every lawyer interviewed for the purpose of this research claimed that they would not disclose such information based on their professional duties.

3.3

Defence Lawyers’ Right Not to Testify

Based on Art. 62 and 110 CCP, citizens are not allowed to refuse to testify in criminal cases. Actually, they have a positive obligation to report crimes. As mentioned before, Art. 48 CCP has entitled defence lawyers not to testify on certain information they have obtained from clients. However, an obvious flaw of this clause is that it fails in covering paralegals who also have access to confidential information due to professional acts. Furthermore, it is also doubtful whether duty lawyers and lawyers providing legal advice before a formal attorney-client relationship is established enjoy the same right. Art. 48 CCP should be interpreted in combination with Art. 38 Lawyer Law to extend such a right to the above-mentioned legal professionals. Under Art. 48 CCP, exceptions of lawyers’ right not to testify overlap situations in which lawyers have a positive obligation to report crimes. This will occur when the lawyer learns that the client or other people attempt to commit or are committing a crime that threatens state security, public security, or may cause serious damage to other people’s safety. It is worth noting that these exceptions of confidentiality do not apply to any crime that has been committed, no matter how serious it is. With regard to the case of corporate criminal liability, it is important to distinguish representation activities from other activities, especially when the defence lawyer is the same corporate in-house lawyer, an employee of the corporate defendant. The information this lawyer has obtained in daily management, rather than during the defence representation may not be protected by Art. 48 CCP. Thus, it is

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wiser for the corporate defendant to hire an independent defence lawyer in the criminal process.

3.4

Restrictions on the Choice of Lawyer

In China, defendants have the right to choose their own lawyers if the expense is borne by themselves. There are no legal restrictions even in terrorism cases or other cases which might involve state secrets. But the authority will impose indirect pressure on the defendant or the lawyer if it does not want a certain lawyer to take the case, especially when the lawyer is famous for a zealous defence and has much influence via social media which he or she might take advantage of.35 One of the techniques is to persuade the defendant to terminate the representation and find an alternative. At the same time, local departments of justice or other relevant authorities may ask lawyers to report about representations of sensitive cases and tell them to act within the law.36 In China, lawyers have not received full professional autonomy yet. They are mainly regulated by departments of justice rather than bar associations. Local departments of justice can refuse to provide annual-registrations of lawyers’ licenses and even have the power the revoke their licenses. In both situations, the lawyer will be barred from practice. Also, under Art. 199 CCP, the court may evict a lawyer who disrupts court order from the courtroom. In several cases, defence lawyers were evicted while the trials were in session and there have been sporadic reports on incidents as such.37 Considering these factors, the “indirect pressure” may become real and direct, lending the authority the power to exclude certain lawyers. In a recent case concerning the killing of a government official by a farmer, the court refused a famous lawyer to appear in court on the basis that she had not inspected the dossier or met the defendant before she showed up on the trial date.38 It seems the rationale behind the court’s decision was that the lawyer’s unprepared representation might not have been in the interests of the defendant. But it is not clear whether the judge asked the defendant for his opinion before rejecting the lawyer’s appearance in court.

They are usually called “Diehard Lawyers” (Si ke pai). See Xiangde (2013), pp. 79–80. See Whitfort (2007), pp.148–149. 37 See Xu (2013), pp. 44–49. 38 This court posted an official statement on its website: http://gzzy.chinacourt.org/article/detail/ 2017/11/id/3081025.shtml. 35 36

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Defence Lawyers as Criminal Suspects

In China, there is no equivalent of crime-fraud exception embodied in current statutes. Literally applying the law, even if the attorney-client communications are used to further a current or planned crime or fraud which is not included by the exceptions in Art. 48 CCP, the confidentiality of such communications will still be protected by the same clause. In terms of professional ethics, the Lawyer Law, CCP or RCDR are also silent on whether lawyers are allowed to disclose confidential information to defend themselves in criminal investigations against them. These are all examples of inadequacy of current legislation related to the attorney-client privilege. According to Art. 120 CCP, a suspect shall answer the police’s questions candidly. Sometimes, the information a lawyer has obtained from the client during the defence representation is relevant to the crime the lawyer is suspected of. Thus, it may be to the detriment of the lawyer who is under criminal investigation to keep the information confidential since he or she will lose the chance to explain the case if the lawyer is actually innocent, or the benefit to be punished leniently for confession if the lawyer is finally convicted. As a reasonable person, the lawyer might decide to disclose relevant information under such circumstances, though there is no clearcut rule.

3.6

Consequences of Violations Concerning Confidentiality Duty

Although the phrase used in Art. 48 CCP is “entitled to keep in confidence”, confidentiality is also a professional duty of lawyers if read with Art. 38 Lawyer Law. Violations of such a duty will have negative consequences for lawyers. Under Art. 56 CCP, evidence will not be excluded simply on the basis that the lawyer breaches the duty of confidentiality to the client. The client can bring a civil litigation against the lawyer and claim damages caused by the relevant disclosure. In addition, if the confidential information is a part of state secrets, commercial secrets or personal privacy, the lawyer may face disciplinary, administrative or even criminal liabilities for undue disclosure depending on its severity. Under Art. 24, 25 and 26 of the ACLA Disciplinary Rules for Members, the lawyer’s association can admonish, circulate a notice of criticism, and make public censure if its member discloses commercial secrets or personal privacy. It can debar the lawyer who discloses state secrets. According to Art. 48 and 49 Lawyer Law, the lawyer who discloses commercial secrets or personal privacy may face a fine up to 10,000 RMB, confiscation of illegal income or suspension from practice for 3 to 6 months, while who discloses state secrets may face a fine up to 50,000 RMB, suspension from practice for 6 to 12 months or revocation of license. The lawyer who discloses

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commercial or state secrets can be prosecuted under Art. 398 and 219 Criminal Law respectively, facing up to 7 years imprisonment.

4 The Pretrial Right to Counsel During the Preliminary Investigation Suspects and defendants can only have access to effective legal assistance when their communications with attorneys are undisrupted. When suspects are detained in jails, they can only enjoy confidential communications with lawyers via face-to-face meetings during which lawyers can provide both legal assistance and psychological support. This limited choice of privileged communication methods may not suffice for the requirements of effective defence.

4.1 4.1.1

Conditions for Counsel Meetings with Detained Clients Delayed Meetings with Arrestees

Although Art. 34 CCP states that suspects have the right to entrust a lawyer from the day when they are interrogated for the first time or compulsory measures are imposed, this clause has not entitled suspects to secure legal advice from a lawyer before the first interrogation. Considering arrestees’ freedom and communications with the outside world are heavily restricted, it is extremely difficult for them to contact a lawyer. Consequently, it generally takes more than a couple of days to just attain a lawyer either by one’s own appointment or through legal aid appointment. Although duty lawyer offices have been established in nearly 90% of jails, detainees are not allowed to consult a duty lawyer immediately after admissions, except under certain circumstances such as when the accused is going to sign a recognizance in the consensual procedure or files an accusation against torture or other illegal acts of gathering evidence.39 Obviously, the ambitious duty lawyer reform has only partly addressed the issue of delayed access to counsel in practice. With the 2018 amendment of the CCP, detained suspects and defendants now have the legally recognized right to make an appointment to consult a duty lawyer. The situations may be changed in the near future. Undeniably, the counsel meeting in the preliminary stage of pretrial investigations is critical, because most confessions which will determine final results of the cases are obtained during this period, and people who have no knowledge of 39 For the purpose of this research, we visited six jails in four provinces from December 2017 to January 2018. Although there were duty lawyer offices in five of six visited jails, duty lawyers would be in offices for only one or two days every week. Detainees did not have unlimited access to these lawyers for seeking legal advice.

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criminal justice system are the most vulnerable in the early days of being in custody. However, the preliminary stage of pretrial investigations is a forbidden space for Chinese criminal defence lawyers. Entering a case timely is extremely hard. Therefore, most suspects have already given full confessions before their first meetings with lawyers.40

4.1.2

Jails as Meeting Places

As mentioned before, suspects are not granted timely access to counsel in the preliminary stage of pretrial investigations. In most cases, defence lawyers will meet their clients in jails because they are arrested or detained. Under Art. 39 para. 2 CCP, defence lawyers can meet with detained clients as long as they show the practice license, certificate letter issued by the firm and power of attorney (or official legal aid appointment document). The jail shall arrange such a meeting within 48 h. Compared with the former scheme under which meetings had to be approved by the police during the whole pretrial investigation stage, this is a huge progress.41 According to Art. 2 and 5 of the Jail Regulation, jails are established and managed by local PSDs and responsible for holding detainees on remand and convicted inmates whose remaining imprisonment time is less than 1 year.42 Since the PSD is responsible for investigating most criminal cases, there have always been considerable concerns about the impartiality of jails, even though confidential attorneydetainee meetings have been guaranteed since the 2012 amendment of the CCP. Actually, online appointment systems have been available recently, at least in some cities of China, which enables lawyers to make appointments to visit detained clients with more conveniences and flexibilities.43 This will be a new norm in the future. Attorney-detainee meetings are generally conducted in meeting rooms designed for this purpose. The lawyer is usually separated from the detainee by a physical partition and not generally allowed to hand over documents to the client. Lawyers are entitled to verify evidence from the beginning of the indictment stage under Art. 39 para. 4 CCP. Obviously, passing copies of case files to the accused will promote such verification activities. When interviewed for the purpose of this research, lawyers in Nanjing said they indeed passed certain documents to their clients and

40

When interviewed for the purpose of this research, lawyers said most of their clients had confessed before their first meetings in jails. 41 Under Art. 96 of the 1996 CCP, when a state secret is concerned, lawyers should receive approval from the investigative authority before meeting suspects in the pretrial investigation stage. But the case information itself was explained broadly as state secret, making the approval process a norm rather than an exception. Thus, meeting suspects in the pretrial investigation stage was extremely hard at that time. 42 After 2012, this has been reduced to 3 months. It means those with remaining imprisonment longer than 3 months will be transferred to prisons. 43 See Changyong and Zhaohua (2015), pp. 457–459.

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found no opposition from jail guards, while their counterparts in Wuhan claimed they were not allowed to do so. The meeting room resembles the interrogation room except there shall be no audio surveillance equipment. In some jails, lawyers may use a police interrogation room to meet detained clients when all meeting rooms are occupied at the moment, provided that they make a voluntary consent and the recording system thereto is turned off. With the simplification of the meeting procedure, many jails are facing a shortage of meeting rooms due to an increased number of lawyers who come to visit their clients. For example, in one jail whose capacity is 6000, there are only twelve meeting rooms, two of which are reserved for legal aid lawyers.44

4.1.3

No Time-Limit on Attorney-Client Meetings

In some countries, the legislation places time limits on the attorney-client meeting before the first interrogation so as not to unduly impede the investigation. Two examples are Art. 63-4 of the French CCP and Art. 28c of the Dutch CCP, both of which stipulate that the attorney-arrestee meeting before the first interrogation shall not last for longer than 30 min. The Dutch CCP allows for an extension of another 30 min. In contrast, there is no strong demand on time limits with regard to the attorneyclient meetings in China, since lawyers can only meet suspects for the first time in jails rather than at police stations when suspects are just taken into custody. Thus, Chinese police officials who have obtained confessions are less inclined to limit the length of attorney-client communications. On the other hand, Art. 7 RGLR emphasizes that jails shall guarantee the meeting frequency and length of time needed to perform lawyers’ duties. A possible time limit is that lawyers can only meet detainees during working hours, usually Monday to Friday, from 9 AM to 5 PM. For the convenience of the defence, more and more jails allow lawyers to meet detainees on weekends.

4.1.4

Confidentiality of Attorney-Client Meetings

As mentioned before, Art. 39 para. 4 CCP stipulates that attorney-client meetings shall not be audibly monitored. Empirical studies show that this regime has been effectively implemented. Meeting rooms are only facilitated with video cameras which do not have the capacity of audio surveillance. Although lawyers and detainees are not monitored during meetings, guards may walk around meeting rooms for safety purposes.45 It is fair to say that attorney-client meetings in jails

44 45

See Weidong and Lei (2014), pp. 3–5. See Weidong and Lei (2014), pp. 3–5.

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are out of hearing range but may be in the sight of investigative officials and jail guards. However, the confidentiality of meetings with lawyers might be undermined in the duty lawyer scheme in some cases. For example, guards may be present when detained suspects meet a duty lawyer for legal advice in order to avoid potential collusion in Henan Province, where the duty lawyer scheme was first initiated back in 2006.46 The rationale to impose surveillance may be that duty lawyers have not established a formal attorney-client relationship with detainees and their communications are not covered by Art. 39 CCP. It is true that the exact phrase in Art. 39 CCP is “defence lawyer” who has established a formal relationship with the accused on the basis of a power of attorney or an equivalent. But this cannot justify the practice to give less protection on confidentiality to duty lawyers while they have almost the same function as defence lawyers in providing legal advice. The lack of privileged communications with lawyers is more problematic in the confession and acceptance of punishment in exchange of leniency (CAPEL), the consensual criminal procedure which was just added into the CCP in 2018. In the CAPEL cases, the accused shall have access to a defence lawyer or a duty lawyer before signing the recognizance document in which he or she admits guilt for the crime charged and accept the penalty proposed by the prosecutor. As a norm, the court is expected to accept the prosecuted facts and recommended sentence included in the recognizance. Thus, the recognizance, a form of confession, will have decisive influence on the final judgment, making the CAPEL very similar with the guilty plea process.47 Suspects without legal representation are not granted the right to talk to a duty lawyer in private before they reach a quasi-plea-agreement with prosecutors under the CCP, though there are different local rules in several pioneering places such as Fuzhou or Guangzhou. In many cases, lawyers can only explain the consequence of entering into recognizance and provide other legal advice in the presence of prosecutors. It is questionable that defendants’ decisions to accept the recognizance are voluntary and informed when they are not given a chance to talk to a lawyer in private to seek for informed legal advice. The newly inserted Art. 173 CCP does impose an obligation on public prosecutors to provide necessary conveniences and facilities for the duty lawyer to get to know relevant information before hearing from the accused on the case, but whether that obligation means public prosecutors should allow or even arrange a duty lawyer to make privileged meetings with an unrepresented suspect detained in the jail is unclear.

46

See Linyuan (2017). See Art. 174, 190, 201 CCP. Before being written into the CCP, the CAPEL went through an approximately 4 year-long pilot under the authorization of the Standing Committee of the National People’s Congress. The details are beyond this article and will not be discussed here. 47

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Restrictions on Attorney-Client Communications in Certain Categories of Cases

Art. 39 para. 3 CCP constitutes the exception to unrestricted meetings, stipulating that in cases involving state security and terrorism, lawyers shall apply for the approval from the investigative authority to meet detained suspects in the pretrial investigation stage. More specific criteria of meeting approval can be found in Procedural Regulations for the Public Security Departments to Handle Criminal Cases (RPSD). Under Art. 49 RPSD, the meeting application in state security and terrorism cases shall be approved unless such a meeting will obstruct the investigation or leak a state secret. A written notice shall be issued if the application is rejected. When the danger of obstructing investigations or leaking state secrets disappears, the meeting application shall be granted. Dangers of obstructing investigations are also listed as follows: may destroy, falsify evidence, threaten the witness or collude; may result in the suspect’s self-harm, suicide or escape; may assist the accomplice to obstruct the investigation; the suspect’s relatives are associated with the crime. Obviously, the RPSD is intended to list specific circumstances to avoid abusive restrictions on attorney-client meetings. In all these cases, there is no mechanism like meeting under surveillance or consulting an independent lawyer as an alternative to rejecting meeting applications. This incommunicado situation will deprive the suspect of access to counsel in the pretrial investigation stage which may last for several months. Before the investigative power of corruption-related cases was handed over to the SSC, defence lawyers also had to get the meeting approval from the investigative procuratorate in exceptionally significant briberies cases. But the lawyer would be allowed to meet the suspect at least once before the investigation was concluded.48 As mentioned before, investigations conducted by the SSC are not covered by the CCP. Subjects under such investigations will not have the right to counsel until the case is transferred to the procuratorate for indictment review. Consequently, these subjects’ communications with any lawyers are completely impossible. This is an obvious retrogression compared to the procuratorate-dominated investigations, at least in terms of the right to counsel, although 24-hour video surveillance has been adopted in the SSC detention facilities in order to prevent illegal interrogations.

“Exceptionally significant briberies” are ones which concern bribery amounts bigger than 500,000 RMB, or have a significant social impact, or concern substantial state interests. See Art. 45 of the Criminal Procedure Norms of the People’s Procuratorates.

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The Right to Counsel During Investigative Acts Carried on with the Participation of the Accused

Regrettably, Chinese defence lawyers have no access to interrogations, confrontations, re-enactments of crimes or identification procedures, thus there are no communications with lawyers of any significance during these investigative acts. The audio-video recording of interrogations has been incorporated into Art. 123 CCP, but not the presence of a lawyer during interrogations.49 Since Chinese police officials rely heavily upon confessions of suspects to resolve criminal cases, it is understandable that they are reluctant to have lawyers actively involved in pretrial investigations. As long as the so-called confession-centred doctrine has not been abandoned, there is no realistic prospect of legislative recognizance of the right to have a lawyer present during police interrogations.50 Alternatively, lawyers can only submit their opinions on the legitimacy of investigative acts afterwards. Art. 38 CCP allows lawyers to file a petition or an accusation on behalf of suspects against illegal investigative acts. Art. 161 CCP requires the police to consider defence lawyers’ opinions before concluding the investigation. But the effectiveness of this mechanism has been undermined by the lack of information, because lawyers are not granted access to the case file until the indictment stage. With only limited understanding of the case before inspecting the dossier, the lawyer can hardly provide substantial opinions.

5 State Intrusion Into the Confidentiality of Attorney-Client Communications The confidentiality of attorney-client communications is not absolute and may be subject to interference of the state in order to balance competing interests in the criminal justice system. In China, relevant laws are inadequate in placing enough judicial control on such interference.

49

By the time this article is completed, all investigative interrogations by the prosecutors have been audio-video recorded, and the Ministry of Public Security is trying to apply it to all criminal cases handled by PSDs. 50 In an empirical study conducted by the authors, several investigative officials complained that some lawyers induced suspects to keep silent or not to collaborate with the investigative authority, smuggled contrabands, notes or medicine into jails. They further complained that numerous suspects withdrew former confessions after they were visited by lawyers. Obviously, some investigative officials blame lawyers for inducing suspects to withdraw confessions, suggesting that they were reluctant to have lawyers involved in the investigation. See Changyong and Zhaohua (2015), pp. 457–459.

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The Lawyer as a Witness Against the Client Conditions to Compel Lawyers to Reveal Information

As mentioned before, Art. 48 CCP entitles defence lawyers not to testify regarding information they have obtained from clients during representations.51 Thus, it is not allowed to compel defence lawyers to reveal any information conveyed to them by clients. There is no exception in the trial against a third party, though revealing relevant information may not cause direct harm to the client. But when lawyers learn that their clients or other people attempt to commit or are committing a crime that threatens state security, public security, or may cause serious damage to other people’s safety, they can no longer refuse to reveal relevant information. Actually, the lawyer shall report to the judicial authority. In such a case, lawyers may be treated as normal witnesses. Both the investigative authority and the court can require them to testify, but only the latter reserves the power to compel them to do so.52

5.1.2

Conditions to Arrest and Interrogate Lawyers

In China, the investigative authority cannot arrest an uncooperative witness just to elicit information. Thus, even under exceptions of confidentiality, the police are not allowed to arrest lawyers to interrogate them about what they know about their clients’ cases. However, if lawyers are suspected of committing a crime, the police can arrest and interrogate them about information related to the crime, including what they know about their clients’ cases. Although the investigative authority is not supposed to use information obtained here as evidence against the lawyer’s client, incidents as such might occur due to the lack of exclusionary rules on evidence gathered in violation of the attorney-client privilege. Lawyers can refuse to answer questions about their clients’ cases, but it may not be in their best interests to do so. The case in which the lawyer was convicted under Art. 306 Criminal Law for suborning his client to give false testimony obviously has chilling effects on defence lawyers. Art. 44 para. 2 CCP stipulates that the investigation under Art. 306 Criminal Law against the lawyer shall be carried out by another investigative agency than the one handling the case where the lawyer is the representative of the client. This is designed to avoid conflict of interests. In addition, the investigative authority shall notify the firm and bar association of the lawyer. The scope of the similar obligation to notify is wider under Art. 37 para. 3 Lawyer Law, extending to cases in which lawyers are suspected to be involved in a crime during their participations in the

51 There is no equivalent of grand jury in China. Testifying means revealing information to the police, prosecutors or judges. 52 See Art. 124–127 and 192–193 CCP.

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judicial procedure. Apart from these superficial notices, there is no other special requirement for arresting and interrogating lawyers.

5.2 5.2.1

Searches of Lawyers’ Offices Conditions to Issue a Search Warrant

In China, a search warrant is not issued by an independent magistrate or a judge but by the investigative authority itself. Without direct judicial control, the power of the search is administratively regulated by a “double-lock” system. First, the police can only carry out searches after a criminal case is officially opened under Art. 109–114 CCP. Although there is just a minimum evidential threshold for opening a criminal case, the police are very careful because the clearance rate is a significant element for the annual evaluation of their work. They are generally deterred from opening criminal cases that have no sufficient evidence and cannot be solved within a reasonable length of time. Thus, the power of the search of the police is restricted accordingly. Second, according to Art. 138 CCP, the police can only search a place without a warrant under emergent circumstances while they are arresting or detaining suspects. Otherwise, the police need a warrant issued by the head of the PSD under the condition that the suspect or criminal evidence may be found in the concerned places. It indicates that only minimum administrative restraints on the power of the search are in place after a criminal case is opened. Obviously, the search procedure which is basically self-regulated may not provide enough safeguards for individual rights in any case, not to mention any privilege of legal profession. Lawyers’ offices may be subject to search as long as there is a possibility of finding criminal evidence. Moreover, according to the literal text of the CCP, even documents related to the client whom the lawyer is representing can be searched and seized. The confidentiality of attorney-client communications will be severely undermined if the CCP gives lawyers the right not to testify under Art. 48 CCP but fails to protect their offices and work products from arbitrary searches.

5.2.2

Execution of Searches

Under Art. 139 and 140 CCP, the police shall execute the search in the presence of the subject’s relatives or other witnesses and keep a record. Apart from these general requirements, there are no special rules when lawyers’ offices are being searched.

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Interception of Attorney-Client Communications

Interception is a kind of technical investigative act regulated by Art. 150–154 CCP which are written in very broad and abstract terms. More detailed regulations can be found in the RPSD. Although the interception has to be authorized by the head of a superior investigative authority and can only be used in the case of serious crimes after the investigation is officially opened, no judicial review is provided. The CCP is not clear on whose communications can be intercepted. But Art. 255 para. 2 RPSD confines it to the accused and anyone related to the crime. It seems possible to wiretap communications between attorneys and their clients or to bug lawyers’ offices or other places where lawyers meet suspects, no matter whether lawyers are suspected of committing a crime or not. However, it is unconceivable that attorney-client communications outside jails may be subject to interception while their meetings in jails cannot be heard. By the time this article was completed, there has been no report showing that such interceptions have ever taken place. As for searches of e-mail servers used by lawyers, stored e-mails or stored phone messages, the same requirements under Art. 138 CCP should be applied at the very least. However, they are also categorized as electronic data under Art. 50 CCP, which will be covered by a new regulation, the Rules on Collecting and Examining Electronic Data in Handling Criminal Cases (2017). Under Art. 3 of this regulation, the police can ask any person or organization to submit electronic evidence without going through the internal process of applying for a search warrant. Furthermore, Art. 6 of this regulation stipulates that electronic data obtained before a criminal investigation is opened can also be admitted as evidence at trial. This suggests that even the minimum safeguards restraining power of the search will be omitted when it comes to e-mail servers, stored e-mails or stored phone messages. More problematically, attorney-detainee mails are routinely censored by jails. Under Art. 31 of the Jail Regulation, jail guards can inspect and read detainees’ letters, no matter whether they are legal letters or not. The RGLR which is aimed at eliminating obstacles for lawyers to provide effective criminal defence also fails in addressing this loophole. Under Art. 13 RGLR, letters between defence lawyers and their detained clients are regularly checked by jail guards, who may pass suspicious ones to the investigative authority under exceptional circumstances when state security, public security are involved. Not surprisingly, almost no lawyer will try to write a letter to the client in jail.

6 Exclusionary Rules and Nullities Art. 56 and 60 were added to the CCP in 2012, establishing exclusionary rules in China for the first time in the legislation. Art. 56 CCP provides two models of exclusion depending upon evidence categories. While confessions obtained by torture or other illegal methods, or witness testimony gathered by brutality, threat

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or other illegal methods shall be mandatorily excluded, material or documentary evidence collected in violation of legal procedures which may seriously undermine judicial fairness shall be discretionarily excluded when such violations cannot be remedied or reasonably explained. The intention of the legislation is clear enough that material or documentary evidence shall not be excluded as easily as testimonial evidence, which demonstrates once again the Chinese law’s priority of substantive accuracy over due process. An empirical research which analysed 1459 cases concerning evidence exclusion showed that only 2.81% of exclusion motions were related to material, documentary and electronic evidence.53 Not surprisingly, it is extremely rare for the court to exclude evidence (information) unlawfully intercepted or unlawfully seized during the search of a lawyer’s office. This is due to the self-regulated search and interception powers which are not subject to detailed procedural constraints, as well as exclusionary rules that have been turned into inclusion rules with great discretion when material and documentary evidence are concerned. Accordingly, there is no space to apply the fruit of the poisonous tree doctrine to exclude indirect evidence while most direct evidence is included. Moreover, there is no nullity process or abuse of process doctrine in China. Under no circumstances will a case be dismissed, with prejudice or not, simply due to a serious violation of the right to counsel. However, using procedural sanctions as a deterrent has been accepted to a certain extent. With regard to the right to counsel, a good example is that the court’s failure in fulfilling its notifying duty that causes the defendant to be unrepresented in the trial of the first instance constitutes a procedural error and the case will be remanded for a retrial upon an appeal.

7 Attorney-Client Communications at Trial Attorney-client communications at trial are essential to coordinating defence strategies between lawyers and defendants. Thus, Art. 33 RGLR provides that lawyers can talk to defendants upon the presiding judge’s approval when defendants withdraw their pretrial confession or want to terminate their lawyer’s representation. However, this sort of communication may be difficult due to the settings of China’s criminal court. In a typical criminal court, the prosecutor and the defence lawyer are seated on two sides of the bench respectively, with the defendant being seated in a confined dock in the middle of the courtroom, facing the bench. The distance between the defendant and the lawyer makes whispering impossible when the trial is in session. Thus, a recess may be the best choice for free communications between the lawyer and the defendant. But there are no clear criteria for the judge to decide whether to call a recess. A recess for the purpose of attorney-client

53

See Yanyou (2016), p. 147.

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communications seems unappealing since it will interrupt the trial process. But simply rejecting such a request for recess may put the defence at a disadvantage. Generally, the defendant on remand detention will be held in a separate room located in the court building when the trial is pending. When interviewed for the purpose of this research, a lawyer said he talked with his client in such a room during the recess with the sheriff being present. In any case, confidential communication seems very difficult, if not impossible in such an interim holding room. Lawyers are allowed to meet detained defendants in jails between court days after the trial has begun, where lawyers can speak with defendants freely and confidentially. But such meetings may be impractical if the case is tried in court for several consecutive days, because the defendant is sent back to the jail after the trial session for a day, and it will be usually out of business hours of jail reception at that time. The defendants not held in pretrial detention can choose an appropriate way and place that they think is confidential to speak with their lawyers during recesses or between court days.

8 Criticism and Future Reform In conclusion, the protection of the attorney-client privilege is inadequate in mainland China. This is supported by several facts. Firstly, although the drafters of the CCP intended to give lawyers the right not to testify about certain information, the CCP does not provide such a right in a clear way, pushing the ACLA to add the phrase “from any person or organization” in the similar article of the RCDR to reclaim it. Secondly, while attorney-client meetings in jails are free from audio surveillance and lawyers are actually given the right not to testify about information they have obtained from clients during defence representations, lawyers’ offices, work products and correspondence are not protected to the same extent. It will undermine the confidentiality of attorney-client communications which the drafters of the CCP deem important for achieving an effective defence. Thirdly, except for cases when a state secret or commercial secret is leaked, breaches of confidentiality duties will not result in substantial sanctions and it is impossible to exclude evidence retained by breaches of the attorney-client privilege. The attorney-client privilege with broad rules, limited range and remedies will impede defendants’ access to effective criminal defence. Currently, there are a couple of serious and urgent challenges. First, most suspects do not have any access to a lawyer in the preliminary stage of criminal proceedings, not to mention any privileged attorney-client communications. The situation is worse in certain categories of cases mentioned in Sect. 4.1.5. Some criminal suspects (or subjects under the SSC investigations) may be put under incommunicado detention for several months, with no access to a lawyer at all. Second, considering the fact that around 60% of accused persons are held in pretrial detention, the limited choices of privileged communication methods impedes effective criminal defence. In extreme cases, lawyers who do not have privileged access to detainees through

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telephone or mail have to make an appointment 1 month earlier in order to meet their clients detained in jails. These two challenges have become more urgent with the development of consensual criminal procedure. The CAPEL procedure is expected to dispose of most criminal cases without full-blown trials, making the pretrial stage more decisive for the final results. Accordingly, timely and effective access to counsel will become more significant, which cannot be accomplished without addressing the abovementioned two challenges. Thus, the most urgent reform we need is to increase accessibility to counsel with broader privileged communication methods in detention facilities. Even in the most sensitive cases, suspects shall be granted access to an independent lawyer in the pretrial investigation stage. Also, telephone and videovisitation with defence lawyers shall be made available. Interestingly, even if the loopholes in the protection of the attorney-client privilege are quite obvious, no interviewed lawyer showed any worries about the danger of arbitrary searches of lawyers’ offices or abusive interceptions of lawyers’ communications. It seems lawyers are generally satisfied with the attorney-client privilege they have enjoyed in criminal proceedings so far. The issue of the attorneyclient privilege has not received enough attention from legal professionals and scholars. We would attribute this situation to the fact that nearly 60% of suspects and defendants have to wait for their trials in jails and most of them are not represented by defence lawyers. The norm for attorney-client communications is face-to-face meetings in jails at a later stage of the procedure. Such delayed communications which barely influence suspects’ decisions on whether to confess are always privileged. Thus, lawyers who have no urgent need to meet their clients immediately will not have much to complain about as long as such meetings are arranged after a reasonable waiting time. In the long term, under a series of reforms like the duty lawyer scheme and the pilot program aimed at providing access to counsel for all unrepresented defendants, lawyers will get involved in the criminal process earlier and the rate of representation will jump to a higher level. Accordingly, the significance of the attorney-client privilege will come into play. The legislature will have to address more controversial issues such as exceptions of defence lawyers’ confidentiality duty, expansion of the confidentiality coverage, exclusionary rules and liabilities related to violations of the confidentiality of attorney-client communications. However, changes could be very hard and slow in the system with a priority to find the truth. A good example is that investigators have begun to blame lawyers for suborning suspects to withdraw confessions during confidential attorney-client meetings. Another example is that the court is reluctant to exclude material and documentary evidence. It will take the collective efforts and common agreements among practitioners and the general public to make real headway in the future.

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References Changyong S, Zhaohua Y (2015) A report on the implementation of the new criminal procedure law. In: Changyong S (ed) Criminal justice review (Volume 3) [Xing shi si fa lun cong di san juan]. Law Press [Fa lv chu ban she], Beijing, pp 449–556 Cohen JA (2003) The plight of China’s criminal defence lawyers. Hong Kong Law J 33:231–247 Enshen L (2010) The Li Zhuang case: examining the challenges facing criminal defense lawyers in China. Columbia J Asian Law 24:129–169 Jinghua M (2011) Criminal defence representation rate and its formulation [Xing shi bian hu lv ji qi xing cheng ji zhi yan jiu: yi xing shi yi shen wei zhong xin]. J Sichuan Univ (Philosophy and Social Science Edition) [Si chuan da xue xue bao (zhe xue she hui ke xue ban)] 6:124–133 Lan R (2010) A false promise of fair trials: a case study of China’s malleable criminal procedure law. Pac Basin Law J 27:153–212 Legal Aid Center of the Ministry of Justice (2014, 2015) Yearbook of legal aid in China [Zhong guo fa lv yuan zhu nian jian]. China Democracy and Law Press [Zhong guo min zhu yu fa zhi chu ban she], Beijing Linyuan W (2017) The duty lawyer scheme has matured in Henan [He nan zhi ban lv shi zhi du xing cheng ti xi]. http://www.pkulaw.cn/fulltext_form.aspx? Db¼news&EncodingName& Gid¼84429&Search_Mode&keyword. Accessed 3 Sept 2018 State Council Information Office of the People’s Republic of China (2017) New progress in the legal protection of human rights in China. http://www.scio.gov.cn/zfbps/32832/Document/ 1613604/1613604.htm. Accessed 3 Sept 2018 The Criminal Division of the Legislative Affairs Commission of the Standing Committee of the National People’s Congress (2012) Annotations and application of the decision to amend the criminal procedure law [Guan yu xiu gai xing shi su song fa de jue ding li jie yu shi yong]. People’s Court Press [Ren min fa yuan chu ban she], Beijing The Ministry of Justice (2017) An introduction of China’s duty lawyer scheme [Wo guo fa lv yuan zhu zhi ban lv shi you guan qing kuang jie shao]. http://www.moj.gov.cn/2017/0928/8682.html. Accessed 3 Sept 2018 United Nations Office on Drugs and Crime (2014) Early access to legal aid in criminal justice processes: a handbook for policymakers and practitioners. http://www.unodc.org/documents/ justice-and-prison-reform/eBook-early_access_to_legal_aid.pdf. Accessed 3 Sept 2018 Weidong C, Lei C (2014) An empirical report on the implementation of the new criminal procedure law in jails [Kan shou suo shi shi xin xing shi su song fa shi zheng yan jiu bao gao]. J Polit Sci Law [Zheng fa lun cong] 4:3–12 Whitfort A (2007) The right to a fair trial: the criminal procedure law of 1996. Chin Law Policy Rev 2:141–151 Xiangde J (2013) Why do lawyers diehard? [Lv shi yuan he si ke]. Just China [Zhong guo si fa] 9:79–80 Xu H (2010) The defence conflict between the accused and his attorney and its solution [Bei Gao ren yu lv shi zhi jian de bian hu chong tu ji qi jie jue ji zhi]. Chin J Law [Fa xue yan jiu] 6:143–160 Xu H (2013) Procedural problems on the eviction of lawyers from court room [Bian hu lv shi bei qu zhu chu ting de cheng xu fa li si kao]. J Zhengzhou Univ [Zheng zhou da xue xue bao zhe xue she hui ke xue ban] 1:44–49 Yanyou Y (2016) The Chinese paradigm of exclusionary rule of illegally-obtained evidence [Fei fa zheng ju pai chu gui ze de zhong guo fan shi]. Soc Sci China [Zhong guo she hui ke xue] 1:140–162 Yin B, Duff P (2010) Criminal procedure in contemporary China: socialist, civilian or traditional? Int Comp Law Q 59:1099–1127 Yongzhong G, Xiao C (2013) A research report on the development of the system of criminal legal aid in China (1949–2011). In: Yongzhong G (ed), Research on criminal legal aid of China’s practice and international vision [Xing shi fa lv yuan zhu de zhong guo shi jian yu guo ji shi ye]. Peking University Press [Bei jing da xue chu ban she], Beijing, pp 476–516

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Changyong Sun is Professor of Law at the Southwest University of Political Science and Law (China), and Vice Chairman of the China Association of Criminal Procedure Law. He served as a Vice Chancellor of SWUPL from August 2009 to March 2017. He has made scholastic visits to countries such as USA, Belgium, UK, France, Germany, Russia, Demark, Sweden, Canada, Italy, Switzerland and Japan. From January 1995 to August 1996, he was a senior visiting scholar to the Columbia University School of Law (USA). Suhao Chen is Lecturer at the Nanjing Audit University School of Law (China) and received his degrees in Law from the Southwest University of Political Science and Law (Bachelor 2012; Master 2015) as well as his PhD in law from the same university (2018). He was a visiting scholar at the Washington University School of Law (USA) from 2016 to 2017. His current research interests lie in the influence of international standards on domestic criminal proceedings and the pretrial right to counsel.

Confidentiality of Correspondence with Counsel as a Requirement of a Fair Trial: The Situation in Germany Bettina Weisser

Abstract The article deals with the legal framework of the right to counsel in German criminal procedure. The regulations are analysed against the backdrop of European Union Law (for example the EU-directive on access to a lawyer or the EU-directive on legal aid for suspects and accused persons in criminal proceedings and for requested persons in European arrest warrant proceedings) and the jurisprudence of the European Court of Human Rights. Special attention is paid to specific regulations on the confidentiality requirement of defendant-counsel communication in criminal proceedings of terrorist crimes. Strengths and weaknesses of the German procedural law on access to and confidentiality of correspondence with a lawyer are assessed and the article concludes with a few recommendations for future enhancements of the confidentiality requirement as a precondition of fairness in criminal proceedings. Keywords Access to lawyer · Attorney-client communications · Attorney-client privilege · Confidentiality · Criminal defence · Criminal procedure · Exclusionary rules · Fair trial · Legal aid · Legal privilege · Mandatory counsel · Right of defence · Right to counsel · Search of lawyer’s offices

Abbreviations BGBl CCP ECHR EGGVG EU-D PC

Bundesgesetzblatt Code of Criminal Procedure European Convention on Human Rights Introductory Statute to the Judicial System Act (Einführungsgesetz zum Gerichtsverfassungsgesetz) European Union Directive German Penal Code

B. Weisser (*) University of Cologne, Faculty of Law, Institute for Foreign and International Criminal Law, Cologne, Germany e-mail: [email protected] © Springer Nature Switzerland AG 2020 L. Bachmaier Winter et al. (eds.), The Right to Counsel and the Protection of Attorney-Client Privilege in Criminal Proceedings, Ius Comparatum – Global Studies in Comparative Law 44, https://doi.org/10.1007/978-3-030-43123-5_4

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RiStBV

General guidelines for criminal proceedings and proceedings on the prosecution of regulatory offences (Richtlinien für das Strafverfahren und das Bussgeldverfahren)

1 Preliminary Information About the Right to Counsel 1.1

Scope of the Right to Counsel

In Germany, sec. 137 of the Code of Criminal Procedure1 (CCP) grants every suspect or person accused of a criminal offence the right to counsel at any stage of the criminal proceedings. The provision specifies the general right of access to counsel pursuant to Art. 6 subsec. 3 European Convention on Human Rights2 (ECHR) on the national level. The suspect must be informed about his right to counsel prior to his or her first interrogation. He3 must be advised that he has a right

1

Sec. 137 CCP: Defence Counsel (1) The accused may have the assistance of defence counsel at any stage of the proceedings. [. . .] The translations of the CCP and the German Penal Code are taken from the official website of the German Ministry of Justice, at: https://www.gesetze-im-internet.de/englisch_stpo/englisch_stpo. html (last accessed on 23 March 2020). Since the translation on the official website of the German Ministry of Justice is not entirely up to date, translation is provided by the author where necessary. 2 Art. 6 ECHR: Right to a fair trial 1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice. 2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law. 3. Everyone charged with a criminal offence has the following minimum rights: (a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him; (b) to have adequate time and facilities for the preparation of his defence; (c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; (d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; (e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court. 3

For reasons of simplicity, only the masculine form will be used.

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to silence and to counsel even before the first interrogation takes place.4 The suspect can demand to consult with a defence lawyer of his own choice even before he decides whether he is willing to answer any question at all. However, in some cases the status of an interrogated person shifts from a witness to a suspect in the course of a criminal investigation. In this case, it is very possible that a person who is questioned as a witness is (naturally) not informed about a right to counsel, let alone a right to silence, prior to the interrogation. Since witnesses are neither granted a right to counsel before interrogation nor a right to silence,5 this would not amount to a violation of procedural rights. German case law has established the rule that law enforcement authorities must treat a former witness as a suspect (rendering him all the rights to an effective defence) as soon as the authorities suspect that he might be a perpetrator.6 In this case, the lack of counsel prior to or during the first interrogation (as a supposed witness) cannot be remedied subsequently. It is then up to the court to decide whether any statements given in the absence of counsel by a suspect treated as a witness are admissible in the subsequent criminal proceedings against the suspect.

1.2

Counsel’s Right to Be Present and to Effectively Participate in the Proceedings

In general, sec. 137 subsec. 1 CCP stipulates that the suspect/accused person may demand access to counsel at any stage of the proceedings. Along with the suspect’s right to counsel comes the lawyer’s right to be present during the proceedings. Until recently, the defence lawyer was explicitly accorded a right to be present during interrogations of the suspect in the investigative stage only if interrogations were led by a prosecutor or a judge (sec. 168c CCP). There was no explicit right for the defence counsel to be present during police interrogations. Such right could only indirectly be drawn from sec. 137 CCP in conjunction with the general principle of the rule of law and the guarantee of a fair trial in Art. 6 subsec. 1, 3 ECHR (in particular the right to a fair hearing and an effective defence in criminal

4

Sec. 136 CCP: Choice of Defence Counsel

(1) At the commencement of the first examination, the accused shall be informed of the offence with which he is charged and of the applicable criminal law provisions. He shall be advised that the law grants him the right to respond to the charges, or not to make any statement on the charges, and the right, at any stage, even prior to his examination, to consult defence counsel of his choice. [. . .] 5

Unless a personal/professional privilege applies. Federal Court of Appeals (Bundesgerichtshof), decision of 18 July 2007, in: NStZ 2008, p. 48; Federal Court of Appeals, decision of 19 October 2011, in: NStZ-RR 2012, p. 49; see also Regional Court of Hannover, decision of 23 January 2017, in: StV 2018, p. 155. 6

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proceedings).7 Since police interrogations are of major importance for the whole procedure, the lack of an explicit right for the defence counsel to be present during police interrogations was strongly criticized by scholars.8 Finally, in October 2013, the European Union Directive on the right of access to a lawyer (hereinafter: EU-D on access to a lawyer [2013])9 entered into force. The Directive calls for a right of access to a lawyer at the earliest point in time of a suspect’s involvement in criminal proceedings.10 In addition, the Directive explicitly 7 Cp. Wohlers and Albrecht, in: Systematischer Kommentar zur Strafprozessordnung mit GVG und EMRK, Vol. III, 5th edn. 2016, § 163a, mn. 60 (including further references). 8 Schmitt, in: Meyer-Gossner/Schmitt – Strafprozessordnung, 62nd edn. 2018 (hereinafter: “Schmitt, Meyer-Gossner/Schmitt-StPO 2018”), § 163, mn. 16; Roxin and Schünemann (2017), § 19, mn. 65; Thomas and Kämpfer, in: Münchener Kommentar zur Strafprozessordnung, Vol. 1, 2014 (hereinafter: “Thomas and Kämpfer, MK-StPO 2014”), §137, mn. 18 (including further references). 9 EU Directive on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings, and on the right to have a third party informed upon deprivation of liberty and to communicate with third persons and with consular authorities while deprived of liberty 2013/48/ EU of 22 October 2013, OJ L 294 of November 6, 2013, 1 ff. 10 Art. 3 EU-D on the right of access to a lawyer, 2013 reads:

1. Member States shall ensure that suspects and accused persons have the right of access to a lawyer in such time and in such manner so as to allow the persons concerned to exercise their rights of defence practically and effectively. 2. Suspects or accused persons shall have access to a lawyer without undue delay. In any event, suspects or accused persons shall have access to a lawyer from whichever of the following points in time is the earliest: (a) before they are questioned by the police or by another law enforcement or judicial authority; (b) upon the carrying out by investigating or other competent authorities of an investigative or other evidence-gathering act [. . .]; (c) without undue delay after deprivation of liberty; (d) where they have been summoned to appear before a court having jurisdiction in criminal matters, in due time before they appear before that court. 3. The right of access to a lawyer shall entail the following: (a) Member States shall ensure that suspects or accused persons have the right to meet in private and communicate with the lawyer representing them, including prior to questioning by the police or by another law enforcement or judicial authority; (b) Member States shall ensure that suspects or accused persons have the right for their lawyer to be present and participate effectively when questioned. Such participation shall be in accordance with procedures under national law, provided that such procedures do not prejudice the effective exercise and essence of the right concerned. Where a lawyer participates during questioning, the fact that such participation has taken place shall be noted using the recording procedure in accordance with the law of the Member State concerned; (c) Member States shall ensure that suspects or accused persons shall have, as a minimum, the right for their lawyer to attend the following investigative or evidence-gathering acts where those acts are provided for under national law and if the suspect or accused person is required or permitted to attend the act concerned: (i) identity parades; (ii) confrontations; (iii) reconstructions of the scene of a crime.

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calls for a right to meet a lawyer in private before a police interrogation is conducted, and it requires Member States to guarantee the defence counsel’s presence at and effective participation in questioning the suspect, Art. 3 subsec. 3 (b) 1 EU-D on access to a lawyer (2013).11 The Member States were required to transpose the Directive into their national legal orders by November 27, 2016.12 In Germany, the second law on strengthening procedural rights of suspected or accused persons in criminal proceedings is meant to meet the Directive’s demands on the national level. It entered into force on 6 September 2017.13 The legislator extended the defence counsel’s right to be present to police interrogations (sec. 163a subsec. 4 in conjunction with sec. 168c subsec. 1, 5 CCP).14

4. Member States shall endeavour to make general information available to facilitate the obtaining of a lawyer by suspects or accused persons. Notwithstanding provisions of national law concerning the mandatory presence of a lawyer, Member States shall make the necessary arrangements to ensure that suspects or accused persons who are deprived of liberty are in a position to exercise effectively their right of access to a lawyer, unless they have waived that right [. . .] 5. In exceptional circumstances and only at the pre-trial stage, Member States may temporarily derogate from the application of point (c) of paragraph 2 where the geographical remoteness of a suspect or accused person makes it impossible to ensure the right of access to a lawyer without undue delay after deprivation of liberty. 6. In exceptional circumstances and only at the pre-trial stage, Member States may temporarily derogate from the application of the rights provided for in paragraph 3 to the extent justified in the light of the particular circumstances of the case, on the basis of one of the following compelling reasons: (a) where there is an urgent need to avert serious adverse consequences for life, liberty or physical integrity of a person; (b) where immediate action by the investigating authorities is imperative to prevent substantial jeopardy to criminal proceedings. 11

See supra note 9. On December 22, 2016 the Council of the European Union stated that only 12 Member States had notified the Commission of implementation measures referring to the Directive, 12 of which were only partial implementations. The Commission “underlined that it would not refrain from taking appropriate measures [. . .] in case of persistent non-notification”, Document no. 15714/16 of the Council of the European Union (22.12.2016, available at https://db.eurocrim.org/db/en/doc/2656. pdf [last accessed on 23 March 2020]). Seeing that some of the Directive’s provisions are very specific, it would have been conceivable that suspects in criminal proceedings would invoke them even in the absence of a formal implementation into the German CCP (after the deadline for implementation had expired on 27 November 2016). This might serve as an explanation for the legislator’s activity in this field—apart from the general adherence to Member State obligations. 13 Zweites Gesetz zur Stärkung der Verfahrensrechte von Beschuldigten im Strafverfahren und zur Änderung des Schöffenrechts, 27.8.2017, BGBl. I, 3295 ff. 14 Sec. 168c subsec. 1 (1) CCP reads: (1) The public prosecutor and defence counsel shall be permitted to be present during the judicial examination of the accused. Sec. 163a subsec. 4 relates to police led interrogations, and subsec. 4 (3) of that provision reads “Section 168c (1) and (5) shall apply accordingly to defence counsel”. 12

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The Directive’s call for an effective participation of counsel in interrogations is reflected in sec. 163a subsec. 4 (3) in conjunction with sec. 168c subsec. 1 CCP: The provision stipulates defence counsel’s right to comment and to ask questions after the interrogation. This of course is not as effective as a right to actively take part during an interrogation. Nevertheless, it can be argued that the Directive leaves the details of effective participation to the national legislator’s margin of appreciation and that therefore, the new German regulation meets the Directive’s demands. Furthermore, the EU-D on access to a lawyer (2013) calls for Member States to establish the lawyer’s right to be present if certain investigative measures are conducted: According to Art. 3 subsec. 3 (c) (i)–(iii) of the EU-D on access to a lawyer, the defence counsel shall be accorded a right to support his client at identity parades, confrontations and reconstructions of crime scenes.15 The German CCP meets these requirements of the EU-D on access to a lawyer (2013) since sec. 137 CCP grants the suspect a right to demand support by his lawyer at any stage of the proceedings. Additionally, the aforementioned law on strengthening procedural rights of suspected or accused persons in criminal proceedings has introduced a new provision in sec. 58 subsec. 2 (2) CCP that explicitly allows the defence lawyer to be present at confrontations of the suspect with witnesses. This right applies not only for identity parades (Identifizierungsgegenüberstellung) but also for confrontations in case of a disagreement between witnesses/victims and the accused about certain circumstances of the alleged criminal incident (Vernehmungsgegenüberstellung). The defence counsel’s right to be present during the enforcement of investigative measures as, for example, the search of the suspect’s premises and confrontations of the suspect with alleged victims was already acknowledged before the new provisions entered in force, but used to be based on the general provision of sec. 137 CCP and on case law only.16 Thus, the new provision does not entail additional rights for the accused, but it explicitly spells them out in the CCP for specific investigative measures for the first time. Defence counsel’s right to be present at any stage of the proceedings according to sec. 137 CCP and more specifically in sec. 58 subsec. 2 (2) and sec. 163a subsec. 4 in conjunction with sec. 168c subsec. 1, 5 CCP implies the right to be taken into account when appointments are made. However, it does not amount to a procedural defect if a hearing takes place despite the fact that the defence counsel is not available at the time set.17 The defence counsel does not have a right to a postponement of appointments on his account. This general rule is explicitly established for judicial examinations in sec. 168c subsec. 5 (3) CCP18 but also applies for every kind of appointment a defence lawyer may attend in the investigation stage.

15

Cp. Art. 3 subsec. 3 (c) (i)–(iii) EU-D on access to a lawyer (2013), see supra note 9, recital 26. Federal Court of Appeals, decision of 21 July 2009, in: NStZ 2010, pp. 53 ff., at 54. 17 Federal Constitutional Court, decision of 14 December 1983, in NJW 1984, p. 862. 18 Sec. 168c (Presence during judicial examination) subsec. 5 CCP. The persons entitled to be present shall be given prior notice of the dates set down for the hearings. Notification shall be dispensed with if it would endanger the success of the investigation. 16

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Naturally, the defence counsel has a right to be present during the trial. In cases where defence representation is mandatory, counsel is even obliged to appear in court and hearings must not take place in the absence of the defence counsel.

1.3

Mandatory Counsel

Sec. 140 subsec. 1 CCP19 lists nine situations that call for mandatory representation. Mandatory representation applies: • no. 1: if the trial takes place at the Higher Regional Court or at the Regional Court • no. 2: in case of a felony indictment—felonies carry a minimum punishment of 1 year of imprisonment • no. 3: if an occupational ban is at stake for the defendant • nos. 4–7: if the defendant is subjected to pretrial detention or has been sent or might be sent to an institution for mentally ill people (for various reasons, e.g.,

Persons entitled to be present shall not have the right to request a change of the date set down for a hearing if they are prevented from being present. 19 Sec. 140 CCP: Mandatory Defence (1) The participation of defence counsel shall be mandatory if 1. 2. 3. 4. 5.

6. 7. 8. 9.

the main hearing at first instance is held at the higher regional court or at the regional court; the accused is charged with a serious criminal offence; the proceedings may result in an order prohibiting the exercise of a profession; remand detention under section 112 or 112a or provisional placement under section 126a or section 275a (6) is enforced against an accused; the accused has been in an institution for at least three months based on judicial order or with the approval of the judge and will not be released from such institution at least two weeks prior to commencement of the main hearing; placement of the accused pursuant to section 81 is being considered for the purpose of preparing an opinion on his mental condition; proceedings for preventive detention are conducted; the previous defence counsel is excluded from participating in the proceedings by a decision; a lawyer has been assigned to the aggrieved person pursuant to section 397a and section 406h (3) and (4).

(2) In all other cases, the presiding judge shall appoint defence counsel upon application or ex officio if the assistance of defence counsel appears necessary due to the severity of the offence, due to the difficult factual or legal situation, or if it is evident that the accused cannot defend himself. Applications filed by accused persons with a speech or hearing impairment shall be granted. (3) The appointment of defence counsel pursuant to subsection (1), no. 5, may be revoked if the accused is released from the institution at least two weeks prior to commencement of the main hearing. The appointment of defence counsel pursuant to subsection (1), no. 4, shall remain effective for the further proceedings under the conditions of subsection (1), no. 5, unless another defence counsel is appointed.

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because he is suspected of having committed an offence due to a mental disorder or because he is considered a risk for himself or others due to mental illness etc.) • no. 8: if the former defence lawyer has been excluded from the proceedings (which might happen, for instance, if the defence lawyer is suspected of being involved in the criminal incident, see infra Sect. 4.2.3) • no. 9: if the alleged victim takes part in the trial on the side of the prosecution and has been assigned an attorney (here, mandatory counsel is supposed to provide equality of arms between the defendant and the then “doubled” prosecuting parties). Moreover, subsec. 2 of sec. 140 CCP stipulates that in general, defence representation is mandated for difficult cases. A case is not only difficult if the legal assessment is extraordinarily complex—for example, because the correct interpretation of a certain provision is under contention –, but also if the gathering and scrutiny of evidence is of considerable complexity. Apart from this, mandatory representation is also in order if the suspect/defendant is unable to properly defend himself—due to a lack of education or a mental or physical disorder (e.g. blindness20 or other). Legal counsel can also be mandatory if the defendant does not have sufficient language skills to defend himself—although this is not mentioned explicitly in sec. 140 CCP. It is debated, however, whether in some cases the mere assignment of an interpreter can make up for the defendant’s lack of language knowledge. In cases of mandatory representation pursuant to sec. 140 CCP, the presiding judge appoints the defence lawyer—either ex officio or on application by the prosecution or the defendant. According to sec. 138 CCP, any lawyer who is admitted to the bar in German courts can appear as defence counsel. The same is true for law professors who are qualified for the judiciary. The suspect can choose the lawyer to be appointed by the court—even if the lawyer will be paid by the state (see infra Sect. 1.4). In Germany, there are no duty lawyers posted at jails. If the accused person does not know any lawyers, he must be provided with a list of qualified defence lawyers. However, the right to a free choice of the defence counsel does not help much if the accused has no information about the persons on that list and no further source of information. Therefore, the recently enacted second law on strengthening procedural rights of accused persons in criminal proceedings21 has introduced a provision in sec. 136 CCP that obliges courts to provide the suspect with adequate information about defence counsels who are qualified (and willing) to represent defendants in criminal proceedings. Such obligation is not unfamiliar in criminal proceedings: Sec. 106 of the “General guidelines for criminal proceedings and proceedings on the prosecution of regulatory offences” (Richtlinien für das Strafverfahren und das Bussgeldverfahren, RiStBV) contained the same obligation before, albeit not as part of a formal statute. According to sec.

20 21

Cp. Wohlers (2016), § 140, mn. 50. See supra note 13.

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106 RiStBV, the list shall be organized in alphabetical order. The provision explicitly forbids law enforcement agents to recommend a specific lawyer. Nevertheless, members of the law enforcement agencies were allowed to provide a “neutral proposal”22 for a defence counsel. It is very likely that these rules will also be respected in the practical implementation of the newly introduced provision in sec. 136 CCP. Moreover, sec. 136 CCP stipulates that the suspect shall be advised of available on-call lawyer-services. Law enforcement agencies strive to establish on-call lawyer-services nationwide. Still, so far, such services are available mainly in bigger cities.23 Against this backdrop, it is obvious that in most of the cases the suspect will finally turn to members of the judicial administration to get advice on whom to retain as (mandatory) counsel. As a rule, it is up to the presiding judge to appoint mandatory defence counsels— be it on the accused’s choice or not. There are no specific regulations on how mandatory defence counsels are chosen by courts. This of course raises the question as to whether judges tend to appoint defence counsels whom they know personally and with whom they have experienced smooth cooperation before. Linked to this is the question of informal mutual obligations or at least goodwill between the court and a potential mandatory defence counsel. A more regulated approach in this area would avoid the suspicion that courtappointed defence counsels might act more in the interest of future relations with the court than in the interest of their clients. Still, the shortcomings of the German regulations on the choice of counsel are limited to the risk of undisclosed informal mutual obligations between lawyer and court—there are no known cases of so-called “pocket lawyers” who actively pressure suspects into cooperating with law enforcement agencies.

1.4

Legal Aid

German procedural law does not contain an explicit provision on legal aid for accused persons. However, sec. 140 CCP declares defence counsel as mandatory in certain situations (for instance, if the defendant is charged with a felony, see supra Sect. 1.3). In such cases, the authorities are bound to ensure the accused’s representation by a defence counsel if he cannot afford legal counsel. This entails the state’s duty to provide the defence counsel’s payment. If during the investigative stage it turns out that a case of sec. 140 CCP might arise, the investigative officers are obliged to advise the defendant that he has a right to a free defence counsel if he is

22

Federal Court of Appeals, decision of 27 June 2013, in: NJW 2013, 2769. The guidelines are available at http://www.verwaltungsvorschriften-im-internet.de/bsvwvbund_ 01011977_420821R5902002.htm (last accessed on 23 March 2020). 23

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indigent.24 Also, the prosecution is bound to request the appointment of a defence counsel in such cases, sec. 141 subsec. 3 CCP.25 In most cases, however, it is debatable at what stage of the proceedings a sufficient possibility of charges under sec. 140 CCP occurred. Since it is obvious that lay persons are not able to properly represent themselves in criminal proceedings, scholars have called for the introduction of specific provisions on legal aid for criminal proceedings outside the scope of sec. 140 CCP, too.26 It is contended that the defendant’s right to a fair trial entails a right to access to counsel no matter what his financial background might be. This reflects the constitutional guarantee of equality—everybody shall receive a fair trial whether he can afford to pay for a defence counsel or not. In general, it is up to the court to assess the preconditions of mandatory counsel and legal aid pursuant to sec. 140 CCP on a case by case basis. The question as to whether the defendant himself has the right to demand a free defence counsel has not been answered. Some commentators argue that the defendant must be granted such right in order to effectuate sec. 140 CCP.27 There is however case law suggesting otherwise.28 This view is mainly based on the fact that it is the court’s duty to ensure a fair trial—that requires the defendant to be represented properly in the course of the proceedings. If the court fails to appoint a defence counsel at the earliest possible point in time of the proceedings or if the prosecution fails to request the appointment of a defence counsel, this can amount to a violation of the defendant’s rights to an effective defence. The consequences of this violation depend on the circumstances of the case. In most of the cases the court will appoint a defence counsel as soon as the mistake becomes obvious. If investigative measures have already been conducted by that time, the court will have to consider whether gathered evidence is still admissible. There is case law suggesting that in such cases the procedural mistake can be remedied by an extremely careful “consideration” of the evidence29—meaning that the evidence is not given the same weight as it would have been given had the defence counsel been appointed at the right time.

24

Federal Court of Appeals, decision of 18 October 2005, in: NStZ 2006, p. 236. Sec. 141 subsec. 3 CCP reads: Defence counsel may also be appointed in the course of the preliminary investigation. The public prosecution office shall request such appointment if, in its opinion, the assistance of defence counsel will be necessary pursuant to section 140 (1) or (2). [. . .] 26 Beulke (2010), p. 447; Schünemann (2002), p. 50; Thomas and Kämpfer (2014), § 140, mn. 3. 27 Thomas and Kämpfer (2014), § 141, mn. 21; Wohlers (2016), § 141, mn. 6. 28 Federal Court of Appeals, judgment of 25 July 2000, in: NStZ 2001, p. 212; Federal Court of Appeals, judgment of 22 November 2001, in: NJW 2002, p. 75; Federal Court of Appeals, decision of 9 September 2015, in: StV 2016, pp. 133 ff., at 134; Regional Court of Limburg, order of 27 November 2012, in: NStZ-RR 2013, p. 87. 29 Federal Constitutional Court, decision of 5 July 2006, in: NJW 2007, p. 204; Federal Court of Appeals, judgment of 25 July 2000, in: NStZ 2001, p. 212; Federal Court of Appeals, decision of 10 October 2007, in: NStZ-RR 2008, p. 49; Federal Court of Appeals, decision of 6 February 2018, in: NStZ 2018, p. 671. 25

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It is not unlikely that the German legislature might introduce explicit provisions on legal aid in criminal proceedings in the future: The European Union adopted a Directive on legal aid for suspects and accused persons in criminal proceedings and for requested persons in European arrest warrant proceedings on 26 October 2016 (hereinafter: EU-D on legal aid [2016]).30 The Directive refers to the aforementioned EU-D on access to a lawyer (2013) and calls for legal aid in all the cases laid down in that Directive as requiring the suspect’s access to a lawyer. In particular, EU-D on legal aid (2016) requires the Member States to provide legal aid to suspects according to EU-D on access to a lawyer (2013) who are (a) deprived of liberty; (b) required to be assisted by a lawyer in accordance with Union or national law; or (c) required or permitted to attend an investigative or evidence-gathering act, including as a minimum the following: (i) identity parades; (ii) confrontations; (iii) reconstructions of the scene of a crime. The Member States are free to choose whether they accord suspected persons a right to legal aid based on a means test (assessing whether the suspect has sufficient financial means to afford a lawyer)31 or referring to a merits test (assessing whether the circumstances of the case make legal counsel indispensable).32 Apart from this, Art. 5 EU-D on legal aid (2016) requires the Member States to provide legal aid to persons who are subject to a European arrest warrant. The Member States are required to transpose the Directive on the national level by 25 May 2019. The German legislator will have to introduce new regulations on legal aid. Since the German procedural law does not entail a means test but accords legal aid in case of mandatory counsel pursuant to sec. 140 CCP and also on a case by case basis if the court holds that the administration of justice requires legal counsel (both of them amounting to a merits test), the legislature should clarify the criteria for legal aid in a comprehensive provision.

30

Directive (EU) 2016/1919 of the European Parliament and of the Council of 26 October 2016 on legal aid for suspects and accused persons in criminal proceedings and for requested persons in European arrest warrant proceedings, OJ of 4.11.2016, L 297, 1 ff. 31 According to Art. 4 subsec. 3 EU-D on legal aid (2016) a means test shall take into account “all relevant and objective factors, such as the income, capital and family situation of the person concerned, as well as the costs of the assistance of a lawyer and the standard of living in that Member State, in order to determine whether [. . .] a suspect [. . .] lacks sufficient resources to pay for the assistance of a lawyer”. 32 According to Art. 4 subsec. 4 EU-D on legal aid (2016), a merits test shall take into account “the seriousness of the criminal offence, the complexity of the case and the severity of the sanction at stake, [. . .]”.

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The German Ministry of Justice has already drafted new provisions in order to meet the Directive’s demands.33 The draft legislation sticks to the system of legal aid in cases of mandatory counsel and considers this in line with the requirements of the EU-D on legal aid (2016), since it allows for a merits test.34 However, the draft also grants the defendant a right to demand legal aid himself—and he must be informed about this right by the authorities.35

2 Attorney-Client Privilege According to sec. 1 of the Federal Lawyer’s Act (Bundesrechtsanwaltsordnung), the defence counsel is an independent organ of the administration of justice. At the same time, he owes a duty of loyalty to his client. The defence counsel’s role in criminal proceedings is much debated in the German literature. According to the prevailing view in academia and judiciary, the counsel’s role in the proceedings is defined in a twofold manner: Not only is he obliged to act in the best interest of his client, but he is also under a duty to support an efficient administration of justice—this is the so-called “organ theory” (Organtheorie).36 Seeing that this can lead to conflicting duties for the counsel, other commentators prefer the so-called “stakeholder theory” (Parteiinteressenvertretung/ Vertragstheorie).37 They emphasize the counsel’s duty to represent his client in the proceedings. This duty is based on an underlying contract and—so they contend—cannot easily be squared with an additional duty to support a proper administration of justice at the same time. A proper administration of justice can in some cases consist of an expeditious conviction of the defendant. If the defence counsel were to facilitate this outcome, this duty would diametrically contravene the interests of his client. Therefore, according to the stakeholder theory, the counsel’s role should be limited to a proper representation of the defendant’s interests in the proceedings. However, the practical consequences of this rather theoretical controversy are very limited, for the actual duties of the defence counsel are set out rather specifically

Draft legislation on legal aid, “Referentenentwurf: Gesetz zur Neuregelung des Rechts der notwendigen Verteidigung”, 11 October 2018, https://www.bmjv.de/SharedDocs/ Gesetzgebungsverfahren/DE/notwendige_Verteidigung.html, last accessed 23 March 2020. Please note that after submission of this manuscript, the described draft legislation entered into force, see Gesetz zur Neuregelung der notwendigen Verteidigung, 10.12.2019, BGBl. I 2128. 34 Ibid, p. 2. 35 Ibid, pp. 2 ff. 36 German Constitutional Court, decision of 7 March 2012, in: StraFo 2012, pp. 129 ff., at 131; Federal Court of Appeals, decision of 24 May 2006, in: NStZ 2006, p. 510; Beulke and Swoboda (2018), § 9 mn. 150; for an overview see Roxin and Schünemann (2017), § 19, mn. 3 ff. 37 Bernsmann (1999), p. 226; in a similar vein Lüderssen and Jahn (2007), § 137, mn. 33, 106. 33

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in German case law. It is a characteristic feature of the defence counsel’s position that despite his contractual obligation towards his client, he is considered independent. Therefore, it is conceivable that he might choose procedural actions even against the will of his client. Nevertheless, due to the interest in an undisturbed attorney-client relationship, the attorney will avoid acting against the will of his client. The duties of defence counsel can be categorized as specific duties towards the client on the one hand and general professional duties on the other hand.

2.1

Specific Duties Towards the Client

• Confidentiality of communication/secrecy of information To build trust between the client and his attorney, confidentiality of all communication is of paramount importance. Therefore, defence counsel must ensure the confidentiality of every piece of information he has gained in his professional capacity. The duty to confidentiality is valid at every stage of the proceedings; it extends from the first conversation (which will in most cases take place before the defence counsel is formally mandated for the proceedings) throughout the whole proceedings and does not end with the mandate. Since the confidentiality requirement is considered as the core prerequisite of an effective defence and thereby of a fair trial itself,38 several regulations aim at the protection of the client’s trust in his defence counsel. – Sec. 53 subsec. 1 no. 3 CCP39 provides the defence attorney with a right to refuse to testify against his client on professional grounds. Sec. 53 subsec. 1 no. 2 CCP grants the defendant’s representative the same right. Since no. 3 is dedicated specifically to defence attorneys, no. 2 will apply for defence counsels who are not attorneys—mostly professors of law who are qualified to act as defence counsels in front of a court of law.

38 39

Federal Constitutional Court, judgment of 30 March 2004, in: NJW 2004, pp. 1305 ff., at 1308. Sec. 53 CCP: Right to Refuse Testimony on Professional Grounds

(1) The following persons may [. . .] refuse to testify: [. . .] 2. defence counsel of the accused, concerning the information which was confided to them or which became known to them in this capacity; 3. lawyers, [. . .], concerning that information which was confided to them or which became known to them in this capacity; [. . .] (2) The persons designated in subsection (1), sentence 1 nos. 2 to 3b, may not refuse to testify if they have been released from their obligation of secrecy. [. . .]

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– Pursuant to sec. 97 CCP,40 all objects containing communication between client and defence counsel/attorney are excluded from seizure. – It amounts to a criminal offence under sec. 203 subsec. 1 no. 3 of the German Penal Code41 (PC), if the defence counsel violates his duty to secrecy. Only the client can waive his right to confidentiality. If the client waives his right to the attorney-client privilege, however, the defence counsel loses his right to refuse to testify. Instead, a duty to testify under sec. 53 subsec. 2 CCP arises.42 Sec. 138 PC43 entails an exception to the attorney-client privilege: The provision criminalizes the omission to warn the authorities of planned serious offences.

40

Sec. 97 CCP: Prohibition of seizure

(1) The following objects shall not be subject to seizure: 1. written correspondence between the accused and the persons who, under section 52 or section 53 (1) sentence 1 nos. 1 to 3b may refuse to testify; 2. notes made by the persons specified in Section 53 subsection (1), sentence 1 nos. 1 to 3b, concerning confidential information confided to them by the accused or concerning other circumstances covered by the right of refusal to testify; 3. other objects, including the findings of medical examinations, which are covered by the right of the persons referred to in section 53 (1) sentence 1 nos. 1 to 3b, to refuse to testify. 41

Sec. 203 PC: Violation of Private Secrets (1) Whosoever unlawfully discloses another’s secret, in particular a secret relating to that person’s personal sphere of life or to a business or trade secret which was revealed or otherwise made known to them in their capacity as [. . .] 3. A lawyer, non-lawyer provider of legal services who has been admitted to a Bar Association, patent attorney, notary, defence counsel in statutorily regulated proceedings, [. . .]; Incurs a penalty of imprisonment for a term not exceeding one year or a fine. 42 See supra note 39. 43 Sec. 138 PC: Failure to report planned offences (1) Whoever has credible information about the planning or the commission of 1. 2. 3. 4.

(repealed); high treason [. . .]; treason or endangering external security [. . .], counterfeiting money or securities [. . .] or counterfeiting guaranteed payment cards and blank Eurocheques [. . .]; 5. murder under specific aggravating circumstances [. . .] or murder [. . .] or genocide [. . .] or a crime against humanity [. . .] or a war crime [. . .] or a crime of aggression [. . .] 6. an offence against personal liberty [. . .], 7. robbery or extortion with use of force or threat of force [. . .] or 8. offences constituting a public danger [. . .] at a time when the commission or result can still be prevented, and fails to report it in time to the public authorities or to the person threatened incurs a penalty of imprisonment for a term not exceeding five years or a fine. (2) Whoever credibly learns 1. of the commission of an offence under section 89a or

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However, sec. 139 subsec. 3 PC44 excludes defence counsel from criminal liability if they have sincerely tried to convince the client not to commit the planned offence. Nevertheless, according to sec. 139 subsec. 3 PC, this exception does not apply in case of very serious offences, such as murder or genocide. If the client plans one of the exclusively listed offences, the general offence of omitting to notify the authorities of the planned crimes is applicable for defence counsel despite the attorneyclient privilege. If the defence attorney testifies in breach of his duty to secrecy towards the client, his submissions are admissible in the proceedings. At the same time the defence counsel may incur criminal liability pursuant to sec. 203 subsec. 1, no. 3 PC (violation of private secrets in his professional capacity).45 This does not affect the validity of his submissions in the proceedings against the client, however. Moreover, the client does not have any procedural claim to prevent the testimony of his defence counsel against him. Civil liability for the breach of secrecy is conceivable but not very likely. Such liability would presuppose that the client suffered financial loss due to a violation of the counsel’s contractual duties. Since it is the court’s duty to comprehensively determine all the facts of an alleged criminal incident in the German inquisitorial procedure, it is not very likely that it can be proven that it was particularly the breach

2. of the planning or commission of an offence under section 129a, also in conjunction with section 129b (1), sentences 1 and 2 (¼ preparatory terrorist offences, added by the author), at a time when the commission can still be prevented, and fails to report it without delay to the public authorities, incurs the same penalty. [. . .] (3) Whoever recklessly fails to make a report although they have credible information about the planning or the commission of an unlawful act incurs a penalty of imprisonment for a term not exceeding one year or a fine. 44

Sec. 139 PC: Exemption from punishment for failure to report planned crimes

(1) If, in the cases under section 138, the offence was not attempted, the court may dispense with imposing a penalty. [. . .] (2) Whoever fails to report an offence, which they would be required to make against a relative is exempt from punishment if they made earnest efforts to dissuade the relative from committing the offence or to prevent the result, except in the case of 1. murder [. . .]; 2. genocide [. . .], a crime against humanity [. . .], or a war crime [. . .]; 3. abduction for the purpose of extortion [. . .], hostage-taking [. . .] or an attack on air or maritime traffic [. . .] by a terrorist organisation .. [. . .] Under the same conditions a lawyer, defence counsel, [. . .] is not obliged to report what was confided to them in their professional capacity. [. . .] (3) Whoever prevents the commission or the result of the offence other than by reporting is exempt from punishment. If the commission or result of the offence does not take place without any action on the part of the person obliged to report, then that person’s earnest efforts to prevent the result suffice for exemption from punishment. 45

See supra note 41.

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of the counsel’s duty to secrecy that caused the outcome of the proceedings—and that therefore the client’s financial loss occurred due to the specific judgment. Consequently, it will in most of the cases be impossible to sufficiently substantiate a claim of financial compensation. • Duty to inform and advise the client The defence counsel must inform the accused comprehensively about his rights and must give him proper advice on how to make use of them.46 • Duty to conduct an effective defence A defence attorney must conduct an effective defence in the client’s best interest. He must fulfil his professional duties faithfully, lawfully and attentively.47

2.2

Other Professional Duties of the Defence Counsel

Apart from this, the defence counsel is not obliged to actively promote an efficient administration of justice by law enforcement agencies. Since the counsel is bound to professional secrecy, he is not obliged to provide any information about the investigated incident before the court. If however he chooses to provide information in his professional capacity, he is under an obligation to tell the truth. This two-faceted duty boils down to the rule that the defence counsel is not obliged to say everything he knows—but everything he says must be true. The rule that the defence counsel is not allowed to advise his client to lie in a court of law is similar. However, the law does provide that the defendant does not commit a crime if he testifies falsely. Thus, a defence attorney may provide this information to the defendant as part of providing comprehensive advice about the defendant’s position in the case.48 It is also part of the attorney-client privilege that the defence counsel is not obliged to hand over objects of physical evidence to law enforcement authorities nor is he obliged to share information about the existence of such evidence with the authorities. It is not entirely clear if in-house company lawyers benefit from the same privileges as defence counsels if they represent the company in a criminal process. Some commentators and also rare case law49 suggest that in-house company lawyers should have a right to refuse to testify.

Roxin and Schünemann (2017), § 19, mn. 61; Wohlers (2016), § 137, mn. 68. Wohlers (2016), § 137, mn. 68. 48 For details see Roxin and Schünemann (2017), § 19, mn. 61. 49 Percic (2014), vol. 1, § 53, mn. 19; Regional Court of Berlin, decision of 30 November 2005, in: NStZ 2006, p. 470. 46 47

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Apart from this, it should be borne in mind that no criminal liability of companies exists in Germany. Consequently, criminal proceedings will not be conducted against companies. Criminal prosecution will always target individuals. Therefore, the ordinary rules on the attorney-client privilege apply.

2.3

Special Rules in Terrorist Cases

If the client is charged with forming a terrorist organization or being a member of it (sec. 129a, 129b PC), the defence counsel can be excluded from the proceedings if there is a substantiated suspicion that he is in some way involved in the terrorist activities, sec. 138a CCP.50 The same is true if the accused is charged with certain crimes endangering the state (for instance treason or treasonous espionage): The defence counsel is excluded from the proceedings if his participation is considered to endanger the security of the state, sec. 138b51 CCP.52 The exclusion is valid for the proceedings as a whole—the defence counsel may not appear for another defendant in the same proceedings either. The exclusion is revoked if its prerequisites no longer exist, that is, if the defence counsel is acquitted of the suspected criminal activities or if the charges against the 50

Section 138a Exclusion of defence counsel

(1) Defence counsel shall be excluded from participating in proceedings if he is strongly suspected or suspected to a degree justifying the opening of the main proceedings 1. of being involved in the offence which constitutes the subject of investigation, 2. of abusing communications with an accused who is not at liberty for the purpose of committing offences or seriously endangering the security of a penal institution or 3. of having committed an act which, in the event of the accused’s conviction, would constitute handling stolen data, aiding after the fact, obstruction of prosecution or punishment, or handling stolen goods. (2) Defence counsel shall also be excluded from participating in proceedings the subject of which is an offence under section 129a, also in conjunction with section 129b (1), of the Criminal Code if certain facts give rise to the suspicion that he has committed or is committing one of the acts designated in subsection (1) nos. 1 and 2. 51

Section 138b CCP: Exclusion of defence counsel in case of danger to national security Defence counsel shall also be excluded from participating in proceedings the subject of which is one of the offences designated in section 74a (1) no. 3 and section 120 (1) no. 3 of the Courts Constitution Act or breach of the duties under section 138 of the Criminal Code concerning the offences of high treason or endangering external security under sections 94 to 96, 97a and 100 of the Criminal Code if, in view of certain facts, there is reason to believe that his participation would endanger the security of the Federal Republic of Germany. Section 138a (3) sentence 1 no. 1 shall apply accordingly. 52 Apart from this, the defence counsel will also be excluded from the proceedings if he is no longer qualified to hold public office in general pursuant to sec. 45 PC (“A person who has been sentenced for a felony to a term of imprisonment of not less than one year shall, for a period of five years, lose the ability to hold public office and be elected in public elections”).

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accused are dropped. Decisions on the exclusion of defence counsels pursuant to sec. 138a and 138b CCP are taken by the Higher Regional Courts (they have jurisdiction for offences against the security of the state). A different chamber than the court conducting the proceedings as a whole renders the decision on the exclusion of the defence lawyer. If the General Public Prosecutor at the Federal Court of Justice (Generalbundesanwalt beim Bundesgerichtshof) leads the investigation (e.g. in case of serious terrorist offences or certain offences against the security of the state as a whole), the Federal Court of Justice (Bundesgerichtshof) decides about the exclusion of the defence lawyer. Apart from this, in case of pretrial detention of a person suspected of terrorist offences according to sec. 129a, 129b PC (forming of and membership in a terrorist organization), the authorities can decide to hold the suspect in incommunicado detention—meaning that he cannot communicate at all—either with fellow prisoners or with persons outside the detention facility.53 The measure can only be justified if otherwise an imminent risk for the life, bodily integrity or freedom of a person would arise. Incommunicado detention used to include the prevention of communication with the defence counsel. However, the aforementioned second law on strengthening procedural rights of suspected or accused persons in criminal proceedings54 has abandoned this part of the provision and stipulates instead that communication with the defence counsel is allowed according to the general rules mentioned above.

3 The Pretrial Right to Counsel During the Preliminary Investigation 3.1

Pretrial Rights to Counsel in General

The counsel’s right to be present during an interrogation used to depend on who runs the interrogation. Until recently, in the case of a judge or prosecution-led interrogation, the counsel had a right to be present pursuant to sec. 163a subsec. 3 in conjunction with sec. 168c subsec. 1 former version CCP.55 The second law on strengthening procedural rights of suspected or accused persons in criminal 53 The regulation in § 31 EGGVG (Introductory Statute to the Judicial System Act) was introduced in the year 1977 when the proceedings against members of the Rote Armee Fraktion were conducted (see Paeffgen [2016], § 31 EGGVG, mn. 1 ff.). Since the extension of incommunicado detention to the defence lawyer amounts to a serious encroachment on the suspect’s fundamental procedural rights, law enforcement authorities refrained from using it altogether after the conclusion of the proceedings against the members of the Rote Armee Fraktion (Paeffgen [2016], § 31 EGGVG, mn. 15). 54 See supra note 13. 55 Sec. 168c CCP former version: Right to be present during judicial examination

(1) The public prosecutor and defence counsel shall be permitted to be present during the judicial examination of the accused. Following the examination, they shall be given the opportunity to

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proceedings (2017),56 extended the counsel’s right to be present during police interrogations. The new provision in sec. 168c subsec. 1 (2) CCP stipulates that (no matter who leads the interrogation) the defence counsel (as well as the prosecutor) can comment on the interrogation or ask the accused questions after the interrogation. It is debatable whether the right to subsequently comment or ask questions suffices to ensure an effective defence. Apart from this, there is no written rule about the defendant’s right to consult with his defence counsel during interrogations. There is no explicit rule preventing communication between the accused and his counsel. However, since the counsel is only allowed to comment on the interrogation subsequently and since it might not be recommended to consult with the defence counsel in the presence of others, the defence counsel might ask for a break if he feels the need to consult with his client during the hearing. The same rules apply to confrontation or identification procedures. They are considered part of the interrogation. For an outline of the defence counsel’s right to be present during interrogations in the pretrial stage see supra Sect. 1.2.

3.2

Pretrial Right to Counsel in Case of Pretrial Detention

In case of pretrial detention, the accused has a right to counsel from the very outset of the enforcement of detention. The authorities must inform the detainee of his rights without delay. Likewise, the defence counsel is to be appointed without delay right after the commencement of the pretrial detention. The accused has a right to consult with his defence counsel at any time—even before the first interrogation (see supra Sect. 1.1). There are no exceptions to the right to immediately and at any time meet with the defence counsel referring to the quality of the charged offences—the rights are applicable for suspected terrorists in the same manner as for other suspected offenders (see supra Sect. 2.3). Meetings of the defence counsel and his incarcerated client take place in the detention facility. The detention facility can determine certain visiting hours for such meetings, but there are no time limits for meetings with the defence counsel. Hence,

comment or to ask the accused questions. Questions or statements which are inappropriate or of no relevance to the matter may be rejected. (2) The public prosecutor, the accused and the defence counsel shall be permitted to be present during the judicial examination of a witness or an expert. Cp. sec. 168c CCP (2017): Right to be present during judicial examination (1) The public prosecutor and defence counsel shall be permitted to be present during the judicial examination of the accused. Following the examination, they shall be given the opportunity to comment or to ask the accused questions. Questions or statements which are inappropriate or of no relevance to the matter may be rejected. 56

See supra note 13.

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if special circumstances require meetings outside the visiting hours, the detention facility must allow them. According to the law governing pretrial detention, meetings of the accused with his defence counsel must not be monitored.

4 State Intrusions Into the Confidentiality of Attorney-Client Communications 4.1

The Attorney as a Witness Against the Client

Since defence counsels have a duty to offer confidentiality of all information they have gained through counsel-client communications (see supra Sect. 2.1), it is not conceivable that a defence counsel may be subpoenaed to reveal any information (for a very limited exception see supra Sect. 2.1 on sec. 138 PC). Neither is it conceivable that he would be arrested and interrogated about the client’s case. Yet the defence counsel is bound to testify if the defendant waived his right to confidentiality, sec. 53 subsec. 2 CCP.57

4.2 4.2.1

Searches of Lawyers’ Offices General Procedural Requirements of Search and Seizure

As a rule, it is up to the judge to issue search warrants. Prosecutors or even police officers are only competent to do so in cases of imminent danger.58 The law distinguishes searches of the accused from searches of third persons who are not themselves suspected of being involved in a criminal offence. According to sec. 103 CCP, searches of non-suspects’ premises can only be legitimized if certain facts support the presumption that the accused himself or certain traces or objects linked to an offence are located there.59

57 58

See supra note 39. Section 105 CCP: Procedure for searches

(1) Searches may be ordered only by the judge and, in exigent circumstances, also by the public prosecution office and its investigators (section 152 of the Courts Constitution Act). Searches pursuant to section 103 (1) sentence 2 shall be ordered by the judge; in exigent circumstances, the public prosecution office shall be authorised to order such searches. 59

Sec. 103 CCP: Search of other persons’ premises (who are not suspected of being involved in an offence, added by the author) (1) Searches in respect of other persons shall be admissible only for the purpose of apprehending the accused or to follow up the traces of an offence or to seize certain objects and only if certain facts support the conclusion that the person, trace or object sought is located on the premises to

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The search warrant must specify the wanted objects to some extent. The list of objects sought need not be very detailed—it suffices if the wanted objects are described in a general manner. Still, it is not sufficient if the description is so vague that it is impossible to conclude what objects are targeted. Objects that are outside the categorization in the arrest warrant must not be seized. Apart from this, the law offers no other effective mechanisms to prevent rummaging searches. On the contrary, sec. 108 CCP even allows for the seizure of coincidentally obtained evidence pointing to another offence under certain conditions.60 However, the Federal Constitutional Court pointed out in a decision of the year 200561 that the “rummaging” through items that are of no relevance for the actual investigation must be avoided as far as possible. According to the general regulations on search and seizure, there is no specific need for a judge or a prosecutor to be present during the search. Still, if neither a judge nor a prosecutor is present during the enforcement of the search, the presence of a witness is necessary according to sec. 105 subsec. 2 CCP.62 The police are not competent to examine documents that are produced during the search. They are obliged to give all obtained documents unread and sealed to the prosecutor.

be searched. For the purposes of apprehending an accused who is strongly suspected of having committed an offence under section 89a or section 89c (1) to (4) of the Criminal Code or under section 129a, also in conjunction with section 129b (1) of the Criminal Code, or one of the offences designated in such provision, a search of private and other premises shall also be admissible if they are located in a building in which it may be assumed, on the basis of certain facts, that the accused is located. (2) The restrictions of subsection (1) sentence 1 shall not apply to premises where the accused was apprehended or which he entered during the pursuit. 60

Sec. 108 CCP: Seizure of Other Objects

(1) If objects which indicate that another offence has been committed are found during a search, they shall be provisionally seized even though they are not connected with the ongoing investigation. The public prosecution office shall be informed thereof. Sentence 1 shall not apply to searches carried out pursuant to section 103 (1) sentence 2. 61 62

Federal Constitutional Court, decision of 12 April 2005, in: NJW 2005, p. 1917. Sec. 105 CCP: Procedure for searches [. . .]

(2) If private premises, business premises or enclosed property are to be searched in the absence of the judge or public prosecutor, a municipal official or two members of the community in the district in which the search is carried out shall be called in, if possible, to assist. The persons called in as members of the community may not be police officers or the public prosecution office’s investigators.

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Search of a Lawyer’s Office if He Is Not Suspected of Being Involved in the Criminal Incident

The prerequisites of a warrant to search a lawyer’s office depend on whether the lawyer himself is suspected of being engaged in a criminal incident or not. If the lawyer is not himself suspected of being involved in an offence, the general requirements of a search warrant as they are laid down in sec. 103 CCP apply. The provision allows for searches of persons who are not themselves suspected of being involved in a criminal offence “only for the purpose of apprehending the accused or to follow up the traces of a criminal offence or to seize certain objects, and only if certain facts support the conclusion that the person, trace, or object sought is located on the premises to be searched” (sec. 103 subsec. 1 CCP). However, sec. 160a subsec. 1 CCP excludes search warrants against lawyers if the search would undermine the lawyer’s professional privilege under sec. 53 subsec. 1, no. 2, 3 CCP.63 The decision about the legitimacy of a search warrant against a defence counsel depends on the authority’s assessment of the expected result: If it is likely that a search would produce privileged information under sec. 53 CCP, there is no ground for the issuance of a search warrant. In other words, the authorities are not allowed to search an attorney’s office to gain privileged information about his client.64 Any information that is obtained by such unlawful search is inadmissible in court.65 But there is a debate about the standard of proof required to exclude a search of the lawyer’s office. Some commentators suggest that, as a rule, sec. 103 CCP should apply, and the search should be excluded only under exceptional circumstances.66 If this were true, the authorities would have to specifically justify the decision to abstain from a search of the lawyer’s office. On the contrary: Since investigative measures need to be justified, good reasons are needed to justify the search of the defence counsel’s premises. As a rule, investigative measures against defence counsels are deemed illegal under sec. 160a CCP. The right to an effective defence is deeply entrenched in the protection of the defendant’s dignity. He must not be treated as a mere object of the investigation and must be afforded the right to conduct an active defence. Therefore, the 63

See supra note 39 for sec. 53 CCP. Cp. Federal Constitutional Court, decision of 18 March 2009, in: NJW 2009, p. 2518. 65 Sec. 160a CCP: Measures directed at persons entitled to refuse testimony on professional grounds 64

(1) An investigation measure directed at a person designated in section 53 (1) sentence 1 no. 1, 2 or 4, a lawyer or a non-lawyer provider of legal services who has been admitted to a bar association shall be inadmissible if it is expected to produce information in respect of which such person would have the right to refuse to testify. Any information which is obtained nonetheless may not be used. Any recording of such information is to be deleted without delay. The fact that the information was obtained and deleted shall be included in the records. If information about a person referred to in sentence 1 is obtained through an investigation measure which is not aimed at such person and in respect of which such person may refuse to testify, sentences 2 to 4 shall apply accordingly. 66

See for this position Griesbaum (2019), § 160a, mn. 6.

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attorney-client privilege is of paramount importance. This calls for a strict application of the prohibition laid down in sec. 160a CCP.67 Moreover, sec. 97 CCP prohibits the seizure of any object containing communication or information that is covered by the counsel’s professional privilege.68 Nevertheless, the restriction on seizure does not apply “where the objects concerned have been obtained by means of a criminal offence or have been used or are intended for use in perpetrating a criminal offence, or where they emanate from a criminal offence”. Yet this exception does not have any practical relevance when the object is located in the lawyer’s office since sec. 160a CCP prohibits the issuance of search warrants (or any other investigative measures) against the defence counsel.

4.2.3

Search of a Lawyer’s Office If He Is Suspected of Being Involved in the Crime

If the lawyer himself is suspected of being involved in a crime, the usual requirements for search warrants pursuant to sec. 103 CCP apply. Still, there is case law suggesting that in case of a search of the lawyers’ office, the proportionality test gains particular importance since there is a risk that unrelated information of clients might be obtained.69 This is all the more true, if the lawyer works in a law firm and it cannot be excluded that the clients of his colleagues might also be affected by the search. Likewise, the aforementioned restriction on seizure does not apply “if certain facts substantiate the suspicion that the person entitled to refuse to testify participated in the criminal offence, or in handling stolen data, accessoryship after the fact, obstruction of justice or handling stolen goods”, sec. 97 subsec. 2 (3) CCP.

4.3

Interception of Confidential Communications Between Lawyer and Client

Sec. 148 CCP70 provides the accused with a right to communicate freely with his defence counsel, both orally and in writing. This applies to written as well as spoken communication and it is true for detained suspects as well.

67 This view is shared by Wolter and Greco (2016), § 160a, mn. 20 ff.; in a similar vein, but not as strict Schmitt (2018), §160a, mn. 3a. 68 See supra note 40. 69 Federal Constitutional Court, decision of 6 May 2008, in: NJW 2008, p. 1937; decision of 12 April 2005, in: NJW 2005, pp. 1917 ff., at 1918. 70 Sec. 148 CCP: Accused’s communication with defence counsel

(1) The accused shall be entitled to communicate with defence counsel in writing as well as orally even when he is not at liberty.

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There are no provisions that allow for any interception of confidential communications between the defence counsel and his client under German procedural law. The absolute preclusion of investigative measures against the defence counsel as it is laid down in sec. 160a CCP is applicable to every kind of communication between defence counsel and client—be it by phone, e-mail or other media. Furthermore, written communication between the defence counsel and his client is excluded from seizure under sec. 97 subsec. 1, no. 1 CCP.71 There is however one exception to this privilege stipulated in sec. 148 subsec. 2 CCP:72 If the accused is detained because he is strongly suspected of having committed the offence of forming a terrorist organization (consisting of membership or support of the organization), sec. 148 subsec. 2 CCP allows for the monitoring of written communications. The monitoring needs to be based on a court order and is to be done by a judge who is not himself involved in the investigation, sec. 148a CCP. He must keep secret any knowledge obtained during the monitoring.

5 Exclusionary Rules and Nullities Evidence that was obtained in breach of the prohibition of investigative measures against the defence counsel is inadmissible in court, sec. 160a CCP.73 This is also true for information that might trigger further investigations. Hence, every piece of evidence that is covered by the attorney-client privilege can neither be used as evidence itself nor can it serve as a starting point for further investigations. Since the fruit of the poisonous tree doctrine is highly controversial in Germany and in

71

Sec. 97 CCP: Prohibition of seizure

(1) The following objects shall not be subject to seizure: 1. written correspondence between the accused and the persons who, under section 52 or section 53 (1) sentence 1 nos. 1 to 3b may refuse to testify; (this applies for defence counsels, see supra note 39, added by the author) [. . .] 72

Sec. 148 CCP: Accused’s communication with defence counsel [. . .]

(2) If an accused who is not at liberty is strongly suspected of having committed an offence under section 129a, also in conjunction with section 129b (1), of the Criminal Code, the court shall order that in communications with defence counsel any papers or other items shall be rejected if the sender does not agree to their being first submitted to the court competent pursuant to section 148a. If no warrant of arrest has been issued for an offence under section 129a, also in conjunction with section 129b (1), of the Criminal Code, the decision shall be given by the court which would be competent to issue a warrant of arrest. If the written correspondence referred to in sentence 1 is subject to surveillance, devices which rule out the possibility of handing over papers and other items shall be put in place in respect of conversations with defence counsel. 73

Federal Court of Appeals, decision of 18 February 2014, in: StV 2014, p. 388.

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particular not supported by the judiciary,74 sec. 160a CCP explicitly states this absolute exclusion of privileged information. Apart from this, it is part of the accused’s right to a fair trial, including the right to an effective defence, that the authorities do not interfere with any communication between the accused and his defence counsel related to the engagement of an effective defence strategy. Apart from the inadmissibility of unlawfully obtained evidence in court, there are no further consequences derived from violations of the attorney-client privilege. Nullities of proceedings are not recognized in German procedural law. Only in exceptional cases has the possibility of a nullity of proceedings been taken into account by scholars. This was contended for cases where a criminal offence was illegally instigated by an agent provocateur (entrapment) or in case of excessive durations of the proceedings.75 Both suggestions are influenced by case law of the European Court of Human Rights.76 Nevertheless, the idea has not found any support in the judiciary to date.

6 Attorney-Client Communications at Trial The defence counsel and his client usually sit next to each other at the trial. They can speak to each other but will prefer not to do so in order to avoid the attention of the judge or the prosecutor. The defence counsel can ask the judge for a break of the hearing to confer with his client in private. Apart from the trial, the defence counsel has a right to visit and otherwise communicate with his client at all stages of the proceedings (see supra Sect. 3).

7 Criticism & Reform As mentioned above, scholars and defence lawyers used to demand a right of defence counsels to be present during police interrogations. Such right is of paramount importance since the investigative stage gains more and more relevance for the outcome of the whole procedure due to an increasing number of cases that never go to trial but are closed by plea agreements or other kinds of abbreviated proceedings (see for instance sec. 153—non-prosecution of petty offences—and sec. 74 Federal Court of Appeals, judgment of 24 August 1983, in: NJW 1984, p. 2772; Federal Constitutional Court, decision of 30 June 2005, in: NStZ 2006, p. 46; Federal Court of Appeals, decision of 7 March 2006, in: NJW 2006, p. 1361. 75 Roxin and Schünemann (2017), § 37, mn. 7 and § 16, mn. 8 ff. 76 König v. Germany, Appl. no. 6232/73, of 10 March 1980, §17; Eckle v. Germany, Appl. no. 8130/ 78, of 15 July 1982, § 80; Teixeira de Castro v. Portugal, Appl. no. 25829/94, of 9 June 1998, §§ 37 ff.; Uhl v.Germany, Appl. no. 64387/01, of 10 February 2005, §§ 30 ff.; Ramanaskaus v. Lithuania, Appl. no. 74420/01, of 5 February 2008, § 73.

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153a CCP on provisional dispensing with court action under certain conditions and instructions). Since these abbreviated proceedings draw exclusively on the outcomes of the investigation stage, the requirements laid down in the EU-D on access to a lawyer (2013)77 exerted a very welcome impact on the German procedural system. Apart from this, EU-D on legal aid (2016)78 creates further obligations for the German legislator that are perfectly in line with the demands scholars have expressed for a long time: They call for the legislator to introduce explicit provisions on the right to legal aid in order to gain more clarity on accused’s rights to free legal counsel.79 In July 2014, the German Ministry of Justice entrusted an expert committee with the task to develop suggestions for a more effective criminal procedure (Expertenkommission zur effektiveren und praxistauglicheren Ausgestaltung des allgemeinen Strafverfahrens und des jugendgerichtlichen Verfahrens). The commission delivered a report in October 2015.80 It contained some suggestions related to the defence counsel’s role in criminal proceedings. According to the commission’s report: • the defence counsel should have a right to be present during police interrogations and to ask questions;81 • the suspect should have a right to request the appointment of a mandatory defence counsel already in the preliminary stage of the investigation; the judge in charge of the investigation should be competent to decide on the request;82 • communications between the suspect and his future defence attorney should be subject to the privilege under sec. 148 CCP even before the defence counsel is officially retained by his client.83

77

See supra note 9. See supra note 30. 79 Thomas and Kämpfer (2014), § 140, mn. 3; Beulke (2010), p. 447; Schünemann (2002), p. 50. 80 Bericht der Expertenkommission zur effektiveren und praxistauglicheren Ausgestaltung des allgemeinen Strafverfahrens und des jugendgerichtlichen Verfahrens, available at https://www. bmjv.de/SharedDocs/Downloads/DE/PDF/Abschlussbericht_Reform_StPO_Kommission.pdf?__ blob¼publicationFile&v¼2 (last accessed on 23 March 2020). 81 Bericht der Expertenkommission zur effektiveren und praxistauglicheren Ausgestaltung des allgemeinen Strafverfahrens und des jugendgerichtlichen Verfahrens, see supra note 81, 22 ff. 82 Bericht der Expertenkommission zur effektiveren und praxistauglicheren Ausgestaltung des allgemeinen Strafverfahrens und des jugendgerichtlichen Verfahrens, see supra note 81, 43 ff. 83 Bericht der Expertenkommission zur effektiveren und praxistauglicheren Ausgestaltung des allgemeinen Strafverfahrens und des jugendgerichtlichen Verfahrens, see supra note 81, 47 seq; see also Esser (2017), p. 179 (available at http://kripoz.de/wp-content/uploads/2017/05/esserstellungnahme-zur-geplanten-aenderung-der-beschuldigtenrechte.pdf). 78

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On 24 August 2017 the law on a more effective criminal procedure entered into force.84 Neither the commission’s recommendations nor the scholarly demands were included in the new law. Yet on 6 September 2017, the second law on strengthening procedural rights of suspected or accused persons in criminal proceedings85 entered into force to meet the demands of the EU-D on access to a lawyer (2013). Since then, the defence counsel is allowed to attend police interrogations, see supra Sect. 1.2. Nevertheless, the new provisions accord the defence lawyer only limited influence on the actual interrogation—since he is only allowed to comment on the interrogation or ask questions after the interrogation is over. It is obvious that the German legislature literally adheres to the European approach of establishing “common minimum rules”. Apparently, the legislature is much more interested in effectuating law enforcement than in promoting the accused’s right to an effective defence by further strengthening the right of access to a defence counsel. It remains to be seen whether the legislature will transpose the requirements of the EU-D on legal aid (2016) into the German regime on legal aid in a way that significantly strengthens the position of suspected or accused persons in criminal proceedings. It is about time to do so.86

References Bader M (2019) § 53 StPO. In: Hannich R (ed) Karlsruher Kommentar – Strafprozessordnung, 8th edn. C.H. Beck, München Bernsmann K (1999) Zur Stellung des Strafverteidigers im deutschen Strafverfahren. StraFo 226–230 Beulke W (2010) Gesamtreform der StPO-Vorschriften über “Verteidigung” – notwendig und wünschenswert? StV 442–451 Beulke W, Swoboda S (2018) Strafprozessrecht, 14th edn. C.F. Müller, Heidelberg Esser R (2017) Entwurf eines Zweiten Gesetzes zur Stärkung der Verfahrensrechte von Beschuldigten im Strafverfahren und zur Änderung des Schöffenrechts. Kriminalpolitische Zeitschrift 3:167–179. http://kripoz.de/wp-content/uploads/2017/05/esser-stellungnahme-zurgeplanten-aenderung-der-beschuldigtenrechte.pdf. Accessed 23 Mar 2020 Griesbaum R (2019) § 160a StPO. In: Hannich R (ed) Karlsruher Kommentar – Strafprozessordnung, 8th edn. C.H. Beck, München Lüderssen K, Jahn M (2007) Vor § 137 StPO. In: Erb V, Esser R, Franke U, Graalmann-Scheerer K, Hilger H, Ignor A (eds) Löwe-Rosenberg – Die Strafprozessordnung und das Gerichtsverfassungsgesetz, vol 4, 26th edn. De Gruyter Recht, Berlin Paeffgen HU (2016) § 31 EGGVG. In: Wolter J (ed) Systematischer Kommentar zur Strafprozessordnung mit GVG und EMRK, vol IX, 5th edn. Carl Heymanns Verlag, Köln

84 Gesetz zur effektiveren und praxistauglicheren Ausgestaltung des Strafverfahrens, BT-Drucks. 18/11277, available www.bgbl.de. 85 See supra note 13. 86 Please note that after submission of this manuscript, the German legislator amended the Code of Criminal Procedure in order to meet the requirements of the EU-D on legal aid (2016) as drafted in October 2018, see supra Sect. 1.4. and fn. 33.

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Percic M (2014) § 53 StPO. In: Kudlich H (ed) Münchener Kommentar zur Strafprozessordnung, vol 1. C.H. Beck, München Roxin C, Schünemann B (2017) Strafverfahrensrecht, 29th edn. C.H. Beck, München Schmitt B (2018) § 160a StPO, § 163 StPO. In: Schmitt B (ed) Meyer-Gossner/Schmitt – Strafprozessordnung, 61st edn. C.H. Beck, München Schünemann B (2002) Wohin treibt der deutsche Strafprozess? ZStW 114:1–62 Thomas S, Kämpfer S (2014) § 137 StPO, § 140 StPO, § 141 StPO. In: Kudlich H (ed) Münchener Kommentar zur Strafprozessordnung, vol 1. C.H. Beck, München Wohlers W (2016) Vor § 137 StPO, § 140 StPO, § 141 StPO. In: Systematischer Kommentar zur Strafprozessordnung, Mit GVG und EMRK, vol III, 5th edn. Carl Heymanns Verlag, Köln Wohlers W, Albrecht AH (2016) § 163 a StPO. In: Systematischer Kommentar zur Strafprozessordnung, Mit GVG und EMRK, vol III, 5th edn. Carl Heymanns Verlag, Köln Wolter J, Greco L (2016) § 160 a StPO. In: Systematischer Kommentar zur Strafprozessordnung, Mit GVG und EMRK, vol III, 5th edn. Carl Heymanns Verlag, Köln

Bettina Weisser is the Director of the Institute for Foreign and International Criminal Law at the University of Cologne. She received her Degree in Law from the University of Konstanz in 1993 and doctorate 1995 (summa cum laude) on causation, omission and participation in business contexts. She did her legal clerkship 1995–2000 in Konstanz (1996–1998 and 2000–2002 child care leave) and her postdoctoral thesis in 2010 in Cologne—a comparative study on participation in crime for six legal systems with a view to a European participation model. She became Full Professor at the University of Muenster in 2011 and was called to the Chair for German and European Criminal Law and Criminal Procedure at the University of Konstanz (rejected) in 2013. Since 2017 she holds the Chair for Criminal Law and Criminal Procedure at the University of Cologne. She chairs the criminal law section of the German Association of Comparative Law and is member of certain European and international research networks on Comparative Criminal Law. Since 2016 she is an ordinary member of the European Academy of Sciences and Arts (Class V, Social Sciences, Law & Economics).

Confidentiality of Correspondence with Counsel as a Requirement of a Fair Trial in Greece Georgios Triantafyllou

Abstract Defendants’ and suspects’ right to counsel is adequately protected in both the Greek Constitution and Code of Criminal Procedure. International and European law transposed in the domestic legal order provide additional safeguards to specific aspects of this right. This contribution presents the specific provisions in law which protect this right in the different procedural stages, such as the preliminary investigation, the police investigation, the judicial investigation and trial proceedings. Furthermore, the role of the defence lawyer is examined with regard to several procedural acts, such as the arrest and the interrogation of the defendant. This contribution also analyses the legal status of the defence lawyer, as it is enshrined in law and conceived in legal theory. The contribution is focused on some specific defence rights and safeguards of the legal profession, such as the right of the defendant to communicate with his lawyer and the attorney-client privilege. Keywords Access to lawyer · Attorney-client communications · Attorney-client privilege · Confidentiality · Criminal defence · Criminal procedure · Defence lawyers · Exclusionary rules · Fair trial · Legal aid · Legal privilege · Mandatory counsel · Right of defence · Right to counsel · Search of lawyer’s offices

Abbreviations CCP EAW ECHR ECtHR FIU PC

Greek Code of Criminal Procedure European Arrest Warrant European Convention on Human Rights European Court of Human Rights Financial Intelligence Unit Penal Code

G. Triantafyllou (*) University of Athens, Athens, Greece e-mail: [email protected] © Springer Nature Switzerland AG 2020 L. Bachmaier Winter et al. (eds.), The Right to Counsel and the Protection of Attorney-Client Privilege in Criminal Proceedings, Ius Comparatum – Global Studies in Comparative Law 44, https://doi.org/10.1007/978-3-030-43123-5_5

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1 Introduction The Greek Code of Criminal Procedure (CCP) establishes the defendants’ and suspects’ right to counsel in all phases of criminal proceedings lato sensu.1 This right is also protected in the Constitution of 1975, as part of the constitutional right to be heard, as well as in the international and supranational law, which binds Greece as a member of the European Union or as a signatory party of multilateral conventions. In domestic law, Art. 96 para. 1 CCP is the general and basic provision in the CCP establishing the right to counsel. More specifically, it guarantees the right of the parties to be represented or assisted by no more than two attorneys in the pretrial stage and no more than three in the trial stage of the criminal proceedings. Although the provision is formulated more as a restriction of the right, in the sense that it limits the number of lawyers who may represent or assist the accused and not as a positive guarantee thereof, it is unanimously conceived as the basis of a general procedural right which is granted in all stages of criminal proceedings. According to Art. 96 para. 2 CCP, the appointment of the lawyer may be done either orally during the party’s interrogation (lit. a) or by a written statement (lit. b). The law does not include any restrictions of this right for specific cases, such as terrorism or other cases which involve state secrets. Any accused person is free to choose his lawyer and the state may not interfere at all in the exercise of this right. Apart from the right to counsel itself, suspects and defendants have a right to be informed thereof. This ancillary right is guaranteed in Art. 99A para. 1 CCP, added by Law 4236/2014, which transposed the Directive 2012/13/EU of the European Parliament and of the Council “on the right to information in criminal proceedings”. The right to counsel is generally viewed as part of other general rights, which are protected on either a constitutional or a supranational level. Thus it is held to have a constitutional basis in Art. 20 para. 1 of the Constitution, which establishes the right of judicial hearing, i.e. everybody’s right to present his views regarding his rights and interests to the court. This constitutional right of judicial hearing comprises, as a prerequisite and essential part, the right to a defence lawyer in criminal proceedings.2 It further comprises some other specific rights connected to it, such as the defendant’s right to communicate with his lawyer. Consequently and due to the supremacy of the Constitution over the simple law, the legislative may not abolish or even restrict the right to counsel beyond the limits set by the Constitution. Similarly, it may not restrict its ancillary rights, such as the right to communication with the defence lawyer. Any law trespassing these limits would infringe on the The term “criminal proceedings lato sensu” indicates all phases of criminal investigation, as well as the trial phase of criminal proceedings. Thereunder fall investigating phases which precede the raise of public action by the public prosecutor, namely preliminary investigation and police investigation, as well as ordinary pre-investigation and judicial investigation, two phases which follow the raise of public action, namely the formal initiation of public prosecution. “Criminal proceedings stricto sensu” comprise the part of the proceedings which follows the public prosecution. 2 See Karras (1989), pp. 64 ff. 1

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constitutional provisions, thus being invalid. The legislative only has the power to specify the content of the constitutional right and harmonize its protection with that of other constitutional rights.3 From an international law perspective, Art. 6 para. 3a European Convention on Human Rights (ECHR) guarantees the right of a person charged with a criminal offence to “defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require”. This guarantee, as interpreted by the European Court of Human Rights (ECtHR), serves as an additional international safeguard of the right to counsel as established in domestic law. It not only binds the legislative but also restricts the power of the judiciary to interpret and apply domestic provisions in a way that would violate the limits of the right. The significance of the ECHR in this respect is obvious in the court’s jurisprudence in cases regarding Greece. On EU level, the right to counsel is protected in Art. 48 para. 1 of the Charter of Fundamental Rights, which guarantees the respect of the rights of defence. Of major practical importance is the secondary EU law, particularly the Directive 2012/13/EU of the European Parliament and of the Council “on the right to information in criminal proceedings”, which has already been transposed into national law, as well as the Directive EU 2016/1919/EU of the European Parliament and of the Council “on legal aid for suspects and accused persons in criminal proceedings and for requested persons in European arrest warrant proceedings”, which is also going to be transposed into national law soon. Apart from a procedural right with a constitutional status, assistance by a defence lawyer is also part of a general principle, namely the fundamental procedural principle of defence or, from a constitutional perspective, the constitutional principle of judicial hearing. This principle binds judicial authorities, which are obliged to facilitate the exercise of the right to counsel.4 The fundamental character of the right to defence, including the right to counsel as its essential part, is also reflected in the consequences of its violation. Infringements of this right are handled the same way any infringement of the fundamental principles of the procedure would be handled. Art. 171 para. 1 lit. d CCP attaches absolute nullity of the proceedings to any violation of the provisions regarding the rights of defence and representation of the defendant. The absolute character of the nullity means that it is applied ex officio, also by the Supreme Court, even if the defendant does not invoke it. This nullity leads to the annulment of the conviction.

3 4

Karras (1989), pp. 15 ff. Karras (1989), pp. 4 ff.

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2 The Legal Status of the Defence Lawyer The legal status of the defence lawyer in Greek law is controversial. It is generally accepted that this status is strongly influenced by the character of the Greek procedural system and the role of the public prosecutor in criminal proceedings.5 These proceedings have not been shaped on the basis of a pure adversarial model. Under the present regime, the public prosecutor is not considered to be a party to the proceedings, nor is he obliged to seek the conviction of the accused. As a judicial authority and an organ of criminal justice, he is obliged to search for the truth and is free to plead either for the acquittal or for the conviction of the accused based on his personal belief as it derives from the examination of evidence. The neutrality of the public prosecutor also reflects the legal status of the defence lawyer who is not considered to be a pure representative or assistant of the accused. Based on the public prosecutor’s role in the proceedings, defence attorneys are considered to be independent from their clients when exercising their defence duties. Consequently, the defence lawyer is regarded by some scholars to be, along with the judge and the public prosecutor, one of the three organs of criminal justice.6 However, this “organ theory”, which also prevails in German doctrine, is criticized by some scholars on the grounds that the defence lawyer is always obliged to act in favour of his client. Whatever the restrictions of that obligation may be, his one-sided role is incompatible with the usual function of an organ of justice.7 Despite the controversy on the legal status per se, both views agree on the duties and rights of defence lawyers. Thus it is unanimously held that the defence lawyer is bound by a limited duty of truth. The implications of that duty are not quite clear. For example, it is held that defence lawyers are not allowed to manipulate evidence, e.g. induce witnesses to give false testimonies, in order to achieve the acquittal of a defendant, although they already know he is guilty. Such violation of that limited duty of truth may implicate criminal liability for the attorney, i.a. for concealment of a crime, a misdemeanour punished in Art. 231 of the Penal Code (PC) or instigation to perjury etc. Consequently, if the client gives his attorney the murder weapon and the attorney takes it in order to hide it, the attorney may be prosecuted for concealment of a crime. The same rule applies for any type of material physical evidence handed over to the attorney by his client with the intent to hide or get rid of it. This limited duty of truth ceases where two other duties begin, namely those of advocacy for the accused and of confidentiality. The duty of advocacy obliges defence lawyers to assist their clients and point out any doubts as to their guilt. Therefore, defence lawyers are obliged to refrain from any act which would harm their client’s interests during the trial. For example, if they believe that the accused is guilty, they may not tell this to the court. In general, they may not contribute to the conviction of the accused in any way. Confidentiality, to which we will refer again 5

See Androulakis (2007), p. 76 f. See Androulakis (2007), para. 106 ff.; Magakis (1992), pp. 18 ff. 7 See Karras (2011), para. 452 ff. 6

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later, does not allow the attorney to reveal any incriminating information entrusted to him by the accused, such as the place of the burial of the victim. Independency of the defence lawyer’s profession is explicitly prescribed by the law. According to the Code of Lawyers (Law No. 4194/2013) any lawyer, including defence lawyers, has to be independent in the exercise of his profession. Art. 5 lit. d of the Code of Lawyers stipulates that any lawyer is bound by the content of his client’s orders with the exception of those acts which would violate his duties. Art. 5 lit. e of the Code of Lawyers grants any lawyer a freedom as to the handling of the case, stressing that he is not bound to instructions and orders which would be contrary to law and his client’s interests. Regarding defence lawyers, independency should be read in the context of the aforementioned duties of truth, advocacy and confidentiality. Defence lawyers are obliged to act in favour of their client not having the right to actively manipulate evidence. However, they are not obliged to follow specific orders as to the handling of the case. The aforementioned principles also apply to in-house lawyers, when they act as defence lawyers. As corporate liability is not acknowledged in law, in-house lawyers do not have to act as defence lawyers of the corporation as such. Furthermore, given that in Greece in-house lawyers are not obliged to exclusively handle cases of their employers, they may take over the defence of employees of their corporation as well as of any other defendant. In all these cases their work is governed by the aforementioned rules and principles.

3 Right to Counsel in the Pretrial Stage 3.1

Pretrial Stages

The pretrial investigation of a criminal case consists of four different stages, which are regulated in different chapters of the CCP. However, the law does not require that each criminal investigation goes through all of these stages. Some of them are necessary for specific cases, namely in felony proceedings, while others occur in urgent cases. For minor offences criminal proceedings may not have a pretrial stage at all, while on some occasions it is the public prosecutor who decides whether a specific stage, namely that of the preliminary investigation, is necessary or not. Regardless of slight differences, the defendants’ and suspects’ right to counsel is adequately protected in all four stages.

3.1.1

Preliminary Investigation

Preliminary investigation is the most common pretrial investigation phase of criminal proceedings. It is mandatory in felony cases and optional in misdemeanour cases

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(Art. 43 para. 1 CCP).8 With regard to felonies, it may be skipped if investigative acts have taken place during a police investigation or an administrative inquiry. The preliminary investigation is characterized by a lack of urgency and is conducted by the police and justices of peace or special investigating officers, always upon a prosecutorial order. The public prosecutor also has the power to personally carry out some investigative acts or the whole pretrial stage himself. In this procedural stage the person to whom a criminal offence is attributed is considered to be a suspect and not an accused or defendant. Although suspects are not considered to be accused and therefore do not have the latter’s full set of procedural rights, they are nevertheless granted the basic defence rights.9 Thus, Art. 31 para. 2 CCP grants the suspect who is summoned to “give explanations”, i.a. the right to be assisted or represented by a lawyer of his own choosing. Given that in almost all criminal cases the suspect’s explanations consist in the filing of a memo containing his legal and substantial arguments, the role of the counsel during this preliminary investigation phase consists in the preparation of this memo. Nevertheless, he may also assist or represent the suspect in all procedural acts of investigation based on the general provision of Art. 97 CCP, which also applies in preliminary investigations. For example, he may file motions to lift freezing orders of the suspect’s accounts etc. On rare occasions, when the public prosecutor summons a suspect to personally interrogate him, the suspect may be assisted by his lawyer during the interrogation. Notwithstanding these rights, restriction of other defence rights in this stage also have an impact on the effectiveness of the defence lawyer’s assistance. For example, the law does not explicitly provide suspects the right to be informed about the appointment of experts, thus preventing them from appointing technical consultants and generally having the experts’ work controlled by their attorneys.

3.1.2

Extraordinary or Police Investigation: Arrest of the Defendant

This investigative stage is regulated in Art. 243 para. 2 CCP for urgent cases, namely where any delay may endanger the aims of the proceedings or, principally, in the case of a flagrant felony or misdemeanour.10

8

Felonies are the gravest offences which are punishable by incarceration, namely the severest custodial sentence, which includes life sentence as well as temporary incarceration which normally lasts from 5 up to 20 years. Misdemeanours are medium offences which form the bulk of criminal acts provided in law. They are punishable by imprisonment lasting from 10 days up to 5 years. 9 A defence right not granted to suspects is that of the full and clear description of the charges, which is granted to the defendant in Art. 273 para. 2 CCP. See Hellenic Supreme Court Judgment No. 1161/2016, Poinika Chronika Law Review (2018), pp. 118 ff. 10 A crime is considered to be flagrant from the moment it has been committed until the end of the following day (Art. 242 para. 1 CCP). Within these time limits, additional conditions are required, namely a high degree of certainty as to the commission of the crime for the latter to be regarded as flagrant. Such requirements aim at the restriction of excessive police powers to cases in which a

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The police investigation resembles the preliminary investigation in that it also precedes the formal initiation of public prosecution, thus forming part of the so-called “criminal proceedings lato sensu”. Furthermore, both investigative phases are assigned mainly to the general or special investigating officers and not to an investigating magistrate. Nevertheless, police investigation differs from the preliminary investigation in that it is performed by the investigating officers, mainly police officers, without a prior order by the public prosecutor, who must simply be notified as soon as possible. Historically, this stage, dominated by the police and evading close judicial control, has been marked by the violation of defence rights including the right to counsel. In order to circumvent these rights police used to systematically interrogate suspects as witnesses, who are not parties to the proceedings and do not have any procedural rights, specifically not the right to be assisted by a lawyer or communicate with him before their interrogation. This practice of “witness-making” resulted in confessions the credibility of which has been strongly contested by the doctrine. Constant criticism as well as the influence of ECtHR case-law on the right not to incriminate oneself have contributed to the abolition of this widespread police method by Law No. 2408/1996. Since then police investigation, despite some incidents or rumours of illicit police methods of interrogation, is generally regarded to comply with modern fair trial standards. The arrest of the suspect, which gives him the capacity of a defendant, and thereupon his pretrial interrogation are the most common acts of this extraordinary urgent stage. Art. 6 para. 1 of the Constitution and Art. 275 para. 1 CCP foresee that, within the time limits of the flagrant crime, the accused may be arrested by investigating officers without a prior judicial arrest warrant. Searches of vehicles and premises along with seizures are also common during the police investigation. The significance and necessity of a defence lawyer’s assistance during this phase, which in fact has a decisive role for the whole proceedings, is self-evident. Referring especially to the defendant’s interrogation during the police investigation, the law foresees that he always has the right to be assisted by a defence lawyer (Art. 105 para.1 CCP). Additionally, Art. 96 para. 1 CCP also applies in the police investigation phase. This means that the arrested person, who is considered as an accused person and not merely a suspect by the law,11 has the right to appoint a defence lawyer in order to represent or assist him in the course of the investigation. The law has no specific provision regarding the appointment of a defence lawyer for arrested persons. Police authorities are not obliged to such an appointment ex officio, nor does the accused have a specific right to counsel because of his arrest.

high probability for the commission of a crime exists. However, in practice, investigating officers tend to handle any offence which seems to have been committed in the aforementioned time limits, without concern for any other requirement. 11 In the title of the pertinent chapter of the CCP, as well as in several articles of the CCP, such as Art. 277 para. 2 CCP, the person who is arrested is described as “defendant”.

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This means that arrested persons may stay without legal assistance not only until their first interrogation but also when interrogated. Although mandatory counsel is not prescribed for arrested persons, the law establishes in Art. 99A para. 3 CCP the arrested person’s right to be informed about his defence rights. This provision was added to the CCP by Law No. 4236/ 2014, which has transposed the Directive 2012/13/EU of the European Parliament and of the Council “on the right to information in criminal proceedings”. Arrested persons must be informed with a document, immediately upon their arrest, of their procedural rights including their right to be assisted by a lawyer (Art. 99A para. 3 lit a CCP). Nevertheless, that information per se does not lead to the establishment of a new right of arrested persons to a legal counsel.

3.1.3

Ordinary Pre-investigation

The ordinary pre-investigation, once the most common stage of investigation in misdemeanour cases, has nowadays been almost completely replaced by the preliminary investigation. It rarely takes place and does not raise any particular issues regarding the defendant’s right to counsel. The latter is fully protected without any exceptions.

3.1.4

Main or Judicial Investigation

The phase of the main or judicial investigation, which has been modelled after the “enquête judiciaire” of the French “code d’instruction criminelle” of 1808, is provided for felonies and—exceptionally—for misdemeanours, for which a pretrial detention of the defendant is allowed. It is always conducted by a judge. In this aspect it is different from all other investigating proceedings which are controlled more or less by the public prosecutor or—regarding the extraordinary or police investigation—by the police. The investigating magistrate may take compulsory measures, the most serious of them being pretrial detention of the defendant. It is for that reason that the law grants the defendant a complete set of defence rights refraining from any kind of restriction. The right of the accused to be assisted by a lawyer during his interrogation is explicitly provided for in Art. 100 para. 1 CCP. This right is also granted for confrontations with other co-accused or witnesses. Despite the harshness and the severity of the measures allowed in this phase, the defendant is not required to have a counsel during his interrogation. Nonetheless, upon his request, the investigating magistrate is obliged to appoint a defence lawyer from a list which is prepared by the local bar association. The appointment is made based on alphabetical order and the accused does not have the right to choose a specific lawyer from that list. The right to a state-appointed lawyer does not depend on any condition other than the defendant’s explicit request, particularly not on the lack of resources for the appointment of a lawyer of his choosing. Thus this specific provision of mandatory counsel is not

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part of a legal aid system. The reason behind this right to a state-appointed lawyer is the severity of the coercive measures that may follow the defendant’s interrogation.

3.2

Investigative Acts in Which Assistance of Defence Lawyers Is Allowed

Having examined the pretrial stages in which the right to counsel is acknowledged as such, we may now examine the specific investigative acts to which it applies. Most of these acts may be conducted in all procedural pretrial stages, although the most urgent ones are typical to the police investigation phase. Art. 97 CCP provides that the parties, including defendants, assisted by their lawyers, may attend any investigative act except for the interrogation of witnesses and (co-)defendants. Therefore, they are summoned to attend them personally, assisted by their lawyers or to be represented by them. Nevertheless, Art. 98 CCP allows for the performance of any investigative act without the presence of the parties, if that is impossible, which may often be the case, especially with regards to urgent acts such as searches and seizures. Pursuant to Art. 99 CCP defendants who are present during the investigative act, as well as their defence lawyers, may ask questions and submit remarks which are recorded upon their request. Apart from the general provisions of Art. 97 CCP and Art. 99 CCP, which define the acts for which attendance of defendants together with their defence lawyers is allowed, other specific provisions further specify or restrict this right with regard to some investigative acts. Most of these provisions are of little practical importance with regard to the effectiveness of the right, since they do not establish additional powers compared to those of Art. 97 CCP and Art. 99 CCP. Thus Art. 100 para. 1 CCP establishes the right of the defendant to be assisted by a lawyer during his interrogation or his confrontation with witnesses or other defendants, whereas Art. 101 para. 1 CCP guarantees the right of the defendant and his attorney to study the indictment and the entire file in the stage of the judicial investigation. The same rights also apply in the stage of the police investigation (Art. 104–105 CCP), whereas Art. 31 para. 2 CCP establishes the same rights for the suspect who is summoned to “give explanations” in the preliminary investigation. All of these rights contribute to the adversarial character of the pretrial proceedings, allowing the defendants to influence and check the investigation as well as to counterbalance the prevalence of the prosecutor’s powers. On the other hand, some recent amendments of the CCP have restricted the adversarial character of the pretrial proceedings curtailing defence rights along with the effectiveness of the counsel’s work. Thus Art. 101 para. 3 CCP added by the Law No. 4236/2014, which transposed into national law the Directive 2012/13/ EU of the European Parliament and of the Council of 22 May 2012 “on the right to information in criminal proceedings”, allows for the prohibition of access to part of the file in all stages of the pretrial investigation, when special circumstances occur.

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Specifically, access to the file may be denied to the defendant and his lawyer by the investigative authorities, when it could endanger the life or fundamental rights of another person or when it is absolutely necessary in order to protect essential public interests, such as the investigation or public safety. Such a denial is not allowed when it would harm the right to a fair trial. These provisions reflect the restrictions provided for in Art. 7 of the Directive. This new provision attracted fierce criticism regarding not only the proportionality of the restriction of the defence rights as such, but also its conformity with the EU Directive, which has served as its basis. Art. 10 of the Directive stipulates that its provisions may not be conceived in a way that would affect domestic guarantees that establish a higher degree of protection. Thus the domestic law which transposed the Directive might not affect the right of access to the file, as it was formerly guaranteed in the CCP. The fact is also stressed that Art. 7 para. 4 of the Directive allows restrictions of the pertinent right only for defendants who are not detained, whereas it does not allow them with regard to defendants held in custody. Despite the Directive’s distinction, the new provision of the CCP allows denial of access to both categories of defendants. Based on these arguments scholars hold that this provision is invalid.12 Greek law has no provision regarding lawyers posted in jails in order to assist imprisoned persons. The latter have the rights granted by the law for accused persons and suspects, as discussed above.

4 Right to Counsel in Trial Proceedings The right to counsel in trial proceedings is guaranteed in the general provision of Art. 96 CCP, which, as mentioned, grants the defendant the right to be assisted or represented by up to three lawyers in court. In this procedural stage the defendant appoints his defence lawyer(s) principally by an oral statement, which is recorded in the minutes of the trial (Art. 96 para. 2 lit. b CCP). This type of appointment applies when the defendant is present in court. In case he has decided to be represented by a defence lawyer, he has to appoint him by a power of attorney (Art. 96 para. 2 lit a CCP). The defendant is free to appoint any lawyer of his choice, even if the latter is co-accused in the same trial. Refusal of the court to accept such a lawyer ensues the absolute nullity of the proceedings.13 The trial proceedings are modelled after the adversarial system, which to a great extent is based on the principle of equality of arms between the public prosecutor and the defence lawyer. This means that the defence lawyer is granted a full set of

12

See Anagnostopoulos (2017), pp. 166 ff. See Hellenic Supreme Court Judgment No. 287/2014, Poinika Chronika Law Review (2015), pp. 276 ff., which reversed the defendant’s conviction because the court had refused him the right to be represented in trial by a co-accused lawyer. 13

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procedural rights, such as the right to examine witnesses, experts and technical consultants, the right to plea and to file applications, motions and objections (Art. 333 para. 1 CCP, Art. 369 para. 1 CCP). The law grants him the right to have the last word (Art. 333 para. 2 CCP, Art. 369 para. 3 CCP).

5 Appointment of a Defence Lawyer Ex Officio: Mandatory Counsel Provisions—Legal Aid Regime 5.1

Mandatory Counsel in Serious Cases

According to the law, in some proceedings duty appointed counsel will be provided for the defendant who does no avail of a lawyer of his choosing. This is the case for trial proceedings in felony cases. If the defendant does not have a lawyer of his choosing, the presiding judge is obliged to appoint a mandatory lawyer to assist him in trial. This obligation also exists for juvenile defendants who are accused for offences which normally would constitute a felony.14 The appointment of the lawyer does not require a lack of resources or an inability of the defendant to find a lawyer of his choosing. It is mandatory even if the defendant cannot find one because of the nature of his offence or he just wants to save the legal fees.15 Hence this appointment is not justified by a lack of resources, and therefore it is not foreseen within the legal aid system. The lawyers are appointed from a list, which is compiled yearly by the local bar associations. Eligibility for that list does not require any particular skills or experience of the lawyers in criminal cases. The defendant is not entitled to choose a lawyer from that list. If the defendant denies the appointed lawyer, he is tried without one (Art. 340 para. 1 CCP). Legal fees are covered by the state. Failure of the court to appoint a defence lawyer in felony trials is a grounds of absolute nullity of the proceedings.16 Pursuant to a recent amendment of the pertinent provision of mandatory counsel in felony cases, the trial proceeds without the presence of the state-appointed defence lawyer, if the latter fails to attend the hearing or resigns. This provision seems to contradict the guarantee of legal aid counsel, as guaranteed in Art. 6 para. 3c ECHR. According to ECtHR case law a member state may be held liable when the legal-aid

14

Acts committed by juveniles, which are punishable by detention in juveniles’ detention prisons, are qualified as misdemeanours, even if generally, i.e. when committed by adults, they constitute felonies (Art. 18 PC). Under the general provision of Art. 340 para. 1 CCP, which initially applied only to felony cases, counsel would not be mandatory for juvenile offenders, even when their act would normally be a felony. It was for that reason that Art. 340 para. 1 CCP was amended in 2010 (Law No. 3860/2010) in order to establish the mandatory counsel rule for juveniles. 15 See Voulgaris (2016), p. 568. 16 See Hellenic Supreme Court Judgment No. 1792/2016, Poinika Chronika Law Review (2018), pp. 97 ff.

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lawyer it has appointed fails to act for the accused.17 This case law does not apply directly to the mandatory counsel of Art. 340 para. 1 CCP, since the state-appointed defence attorney is not a legal aid counsel. Still, in practice, this provision applies to defendants in felony cases who do not have the means to afford a lawyer of their choosing. Consequently, it is evident that mandatory counsel in felony cases is a legal aid counsel in practice. His failure to fulfil his duties must be attributed to the state which has to be held responsible. Resignation or lack to appear in court amounts to no appointment at all and thus to a violation of the safeguard of Art. 340 para. 1 CCP. Part of the mandatory counsel system also is the obligation of the investigating magistrate to appoint a lawyer to the defendant in order to assist him in his interrogation. A specific provision for mandatory counsel is found in Art. 200 CCP, which establishes the procedure for the determination of the insanity of the accused. The article allows the detention of the defendant in a psychiatric hospital in order to undergo a psychiatric observation by experts. The detention may be ordered by the investigating magistrate who has to hear the defendant’s lawyer beforehand. If there is no lawyer present, the magistrate has to ex officio appoint a lawyer for the defendant. The latter is entitled to appeal against the detention order. This provision is also not part of the legal aid regime, since the appointment of the lawyer is mandatory even for non-indigent defendants.

5.2

Legal Aid

Legal aid is regulated by Law No. 3226/2004.18 It is also guaranteed in Art. 6 para. 3c ECHR, while in the EU law, it is foreseen in Art. 47 para. 3 of the Charter of Fundamental Rights.19 Recently, an act has been prepared to amend the domestic law according to the terms of the Directive No. 2016/1919 of the European Parliament and the Council of 26 October 2016 “on legal aid for suspects and accused persons in criminal proceedings and for requested persons in European arrest warrants proceedings”.

17

Artico v. Italy, Appl. no. 6694/74, of 13 May 1980; Vamvakas v. Greece (No. 2), Appl. no. 2870/ 11, of 9 April 2015. 18 For a detailed presentation and commentary of this law see Voulgaris (2016), pp. 572 ff. The author notes that legal aid provisions in criminal cases were introduced and amended following two convictions of Greece by the ECtHR. In its decision Twalib v. Greece, Appl. no. 24294/94, of 9 June 1998, the Court convicted Greece for a violation of Art. 6 para. 3c ECHR on account of the refusal of Greek judicial authorities to appoint a defence lawyer for an indigent appellant in the Supreme Court proceedings. Two years later, in its decision Biba v. Greece, Appl. no. 33170/96, of 26 September 2000, the Court held Greece responsible for a similar violation of the same defence right. 19 See a comparison of these provisions by Voulgaris (2016), pp. 569 ff.

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Under the present regime, a legal aid counsel is provided for indigent defendants who are citizens of an EU state. Citizens of a third state, who do not have sufficient funds,20 are entitled to legal aid as well, provided that they reside in Greece. Other reasons, such as no knowledge of the Greek language or mental illness do not suffice for the appointment of a legal aid lawyer. Regarding felonies, legal aid may be granted for both the judicial investigation and the trial hearing at first instance. It may also be granted in the first instance trial hearing of misdemeanours which are punishable with imprisonment of at least 6 months.21 Regarding the second instance, legal aid is granted for felonies and misdemeanours, if the appellant has been convicted to imprisonment of at least 6 months. It may also be granted for Supreme Court proceedings in cases where the defendant has been convicted to imprisonment of at least 1 year. Furthermore, a defendant who has been finally convicted to imprisonment of at least 6 months, may apply for a legal aid counsel in post-conviction remedies procedures. Under the present regime, the accused seems not to be entitled to a state-appointed lawyer in the case of his arrest or pretrial interrogation other than that of the judicial investigation. An appointment is only made upon request by the interested person which has to be filed 15 days before the first hearing. Competent authority for the appointment is the presiding judge of the court where the case is pending. Legal aid lawyers are appointed in alphabetical order from a list which is prepared by the local bar association for the criminal cases of each month. Thus the defendant has to accept the appointed lawyer and is not entitled to ask for the appointment of a specific attorney who is not included on that list or to choose a specific lawyer from the list.22 However, the entire system does not seem to be efficient. A suitability test of the lawyers who are included on the list is not provided for in law, nor are they evaluated regarding the quality of their services. The new act, which will transpose the Directive EU/2016/1919 of the European Parliament and of the Council of 26 October 2016 “on legal aid for suspects and accused persons in criminal proceedings and for requested persons in European arrest warrants proceedings” into national law, seems to improve the present system by expanding the guarantee of legal aid to more stages of the proceedings. In alignment with the Directive, the act grants legal aid to persons who lack sufficient resources which is determined by both a means and merits test. Under this

20

Currently the law requires a yearly income of no more than 6597 Euro for a defendant to be entitled to legal aid. The provision of a certain amount is criticized for being quite inflexible. In complicated cases and lengthy proceedings that amount should be higher. See Voulgaris (2016), p. 573. 21 This limit is facing criticism, because it exempts defendants accused of serious misdemeanours, such as fraud, theft etc., from legal aid. According to some scholars it violates Art. 20 para. 1 of the Constitution and Art. 6 para. 3c ECHR thus being invalid. See Androulakis (2007), p. 442; Voulgaris (2016), p. 573. 22 Voulgaris (2016), p. 574.

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regime persons whose individual or family income does not exceed 6000 or 10,000 Euro respectively are entitled to legal aid. Regarding the merits test, the draft law extends the right to legal aid in order to cover the preliminary investigation and the police investigation, namely phases which precede the pressing of charges. The right is granted depending on the seriousness of the offence, namely when the offence under investigation is punished with imprisonment the maximum of which is at least 1 year and the suspect or accused is summoned to give explanations or to be interrogated. The same right is also provided for acts of investigation, where the suspect or accused has the right to attend, such as identity parades, confrontations and reconstructions of the scene of the crime. During the first instance hearing, the right to legal aid is acknowledged for offences the maximum penalty of which is imprisonment of at least 1 year. Regarding legal remedies proceedings, it is granted in cases where the defendant has been sentenced to a custodial sentence or has been found not guilty and the public prosecutor has filed a legal remedy. In compliance with the Directive, the act also establishes a legal aid right within the European Arrest Warrant (EAW) proceedings and for extradition requests. The act does not require the lawyers who apply to be listed to be very experienced. The applicant must have acted as defence lawyer in at least ten criminal cases. Those who are interested to be appointed in urgent cases, namely those at the police investigation stage or for assistance in urgent acts of investigation or in EAW or extradition procedures, are asked to declare it in their application. Each local bar association with more than 50 members has to prepare separate lists for first or second instance courts, as well as one for the Supreme Court. The state does not interfere at all in the preparation of the lists. Thus legal aid attorneys are completely independent from all authorities involved in the prosecution, investigation and adjudication of criminal cases. The appointment by alphabetical order is an additional safeguard against any effort to appoint lawyers who might facilitate confessions. Up to date there have not been any reports about legal aid lawyers encouraging defendants to plead guilty or act against their own best interests. The act still requires an application by the accused in order for the competent organ to appoint a defence lawyer. The application must be filed within 48 hours after being informed about this right or, in cases of trial proceedings, 1 month before the hearing. If the defendant has been arrested during the police investigation and all requirements of legal aid are fulfilled, he may immediately apply for the appointment of a lawyer.

6 Communication of Defendants with Their Lawyers Referring to judicial investigation, the law stipulates that communication between the defendant and his defence lawyer may not be impeded on any occasion (Art. 100 para. 4 CCP). Pursuant to specific provisions, this general provision also applies

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in the police investigation phase (Art. 104 para. 2 CCP and Art. 105 CCP). Although there is no special provision in Art. 31 para. 2 CCP as to the suspect’s right to communicate with his lawyer during the preliminary investigation, there is no doubt that this right also exists in this phase. Obviously such communication is important with regard to imprisoned defendants. In practice, prison authorities facilitate the exercise of this right by allowing free and uncontrolled communication. Glass screens between lawyers and their clients or the provision of certain visiting hours do not pose any problems thereto. Communication with his lawyer in pretrial proceedings is regarded to be a right inherent to the defendant’s right to be assisted and defended by a lawyer during his interrogation. Such assistance may only be effective if the defendant can communicate with his lawyer beforehand. Thus the right to communicate is regarded to consist more specifically in the right to communication in order to prepare the defendant’s interrogation.23 Additionally, the right of communication complements the attorney-client privilege which is based on the trust between defendants and their lawyers. This trust would vanish, if the judicial authorities had access to the communication of the defendant with his lawyer. Apart from a right of the defendant, communication between him and his lawyer is also regarded to be part of the right of the latter to defend his client.24 Besides the protection in the pretrial phase, Art. 366 para. 3 CCP explicitly guarantees the defendant’s right to consult with his lawyer during the trial phase. The defendant’s right to have access to his lawyer is also guaranteed in Art. 6 para. 3b ECHR, which guarantees a person charged with a crime adequate time and facilities for the preparation of his defence. Communication with his attorney is regarded as a basic facility to that purpose.25 An exception to the right of the defendant to communicate with his lawyer was provided in Art. 10 para. 2 lit. b of Law No. 1916/1990 “For the Protection of Society from Organized Crime”. The provision allowed the investigating officers, upon prior permission by the prosecutor of the Supreme Court, to prohibit a defendant access to his lawyer in organized crime cases, including terrorism cases. This exceptional provision was faced with fierce criticism for violation of the right to judicial hearing and the safeguards of Art. 6 para. 3 ECHR.26 Subsequently, the entire law was repealed 2 years after entering into force. It is unanimously acknowledged by the doctrine that the right of communication of defendants, imprisoned or not, may be exercised either orally or in writing and that nobody may control or gain knowledge of its content. According to Art. 366 para. 3 CCP, which refers to the trial proceedings, the right to consult a lawyer may not be exercised in order to prepare an answer to a specific question posed to the

23

See Androulakis (2007), para. 562. Konstantinidis (1992), p. 230. 25 Androulakis (2007), para. 563; Kostopoulou (2013), Art. para. 3, para. 214; Dionysopoulou (2009), pp. 112 ff. 26 See Konstantinidis (1992), pp. 231 ff. 24

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defendant. This limitation applies mutatis mutandis for pretrial interrogations. Furthermore, it is held in doctrine that privacy of the communication between lawyers and their clients may not be lifted even in the case of crimes, for which the law allows wiretapping or other means of interception as investigative acts. Recordings of communications between them may not be used even when they have been obtained by a lawful surveillance of the defendant’s telecommunications.27 Exceptionally, interception of the defence lawyer’s communication with his client is permitted when the latter is accused (not just suspected) for participation in the investigated crime. Recordings of that communication may be used in the pending proceedings against them. On the contrary, when a lawyer’s communication is intercepted for the needs of a trial pending against him, evidence collected regarding other clients of his are not admissible in the proceedings against them.28 The protection of a defendant’s communication with his lawyer also covers correspondence between them which is in possession of the defendant. Although correspondence in the possession of the defendant is not covered by the attorney-client privilege, which only protects privileged material in the possession of the defence lawyer (see infra, Sect. 7), the right to communication includes correspondence as such, even if it is in possession of the defendant. Therefore the latter is not subject to searches aiming at the seizure of such material.29

7 Attorney-Client Privilege Confidentiality is considered a fundamental principle of the legal profession, including of course defence lawyers, which may not be violated to the detriment of the client’s interests. It covers information entrusted to the lawyer by the client as well as any other information the lawyer has obtained during the exercise of his duties. This principle is guaranteed in Art. 5 lit. a and 8 of the Code of Lawyers (Law No. 4194/ 2013). The general principle of confidentiality is the basis of some specific obligations, prohibitions and privileges established in law. The first one is the prohibition imposed on any defence lawyer, who has been summoned to testify as a witness in criminal proceedings, to reveal information entrusted to him by his clients, even if the mandate has ended. Until recently, this prohibition was prescribed in Art. 212 lit. b CCP. Recently, the Code of Lawyers established the same obligation for all lawyers in Art. 39 para. 4 of the Code of Lawyers. This article stipulates that lawyers have the discretion to reveal such facts to the court in exceptional circumstances, having weighed their general obligation

27 See Karras (2011), para. 438; Konstantinidis (1992), pp. 230, 232; Dionysopoulou (2009), pp. 113 ff. 28 Dionysopoulou (2009), pp. 118 ff. 29 See Dionysopoulou (2009), pp. 42 ff.

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not to testify. Given that the rule of Art. 212 lit. b CCP has not been repealed, it is unclear whether this discretion is also granted to defence lawyers. In my opinion, the rule of said article, in its capacity as a special rule, remains still in force pursuant to the principle lex posterior generalis non derogat lege anteriori speciali. Violation of the prohibition to testify causes a relative nullity of the proceedings. This nullity is not examined ex officio but has to be evoked by the defendant or the public prosecutor before a final decision is delivered (Art. 173 para. 1 CCP). The existing law in force distinguishes between information entrusted to defence lawyers by their clients and other facts which have come to their knowledge during the exercise of their duties. As to the latter, Art. 212 lit. b CCP establishes a genuine privilege, leaving the defence lawyer the option to decide whether to testify or not. Violation of the professional confidentiality by a defence attorney is punishable by fine or imprisonment of up to 1 year (Art. 371 para. 1 PC). A violation of professional confidentiality which only constitutes a misdemeanour may be prosecuted only upon a complaint filed by the client (Art. 371 para. 3 PC). Consequently, if the defendant allows his lawyer to testify about information he has entrusted to him, the latter does not incur any risk of criminal liability. Thus, confidentiality is rather a privilege than a strict obligation. Other interests may prevail over confidentiality. Art. 371 para. 4 PC stipulates that a breach of confidentiality is justified when it aims at the fulfilment of a duty or the obtainment of a legal or otherwise legitimate and essential interest, either official or private, which cannot be obtained otherwise. This justification harmonizes the duty of confidentiality with other duties, prescribed in criminal law. Such a duty, which prevails over confidentiality, lies in the obligation to report to the authorities a felony which is in the stage of preparation or attempt. Art. 232 PC punishes such failure with imprisonment of up to 3 years. Potential perpetrators of this crime also are defence lawyers, who have information that their client plans or attempts to commit a felony. The duty of confidentiality is not a defence.30 On the other hand, when a defence lawyer does not reveal to the court whether his client is guilty or not, he may not be held responsible for concealment of a crime (Art. 231 CP). The duty of confidentiality prevails over any duty to help the court to find the truth.31 Breach of the confidentiality also causes civil liability of the attorney, since any criminal act which causes damage is also a civil tort. Disciplinary sanctions are also provided in Art. 140 para. 2 lit. d of the Code of Lawyers. Another ancillary prohibition aiming at the protection of the attorney-client privilege is the prohibition of searches of and seizures in defence lawyers’ offices. This prohibition has two legal bases. The first of them is Art. 39 para. 1 of the Code of lawyers, which prohibits searches in lawyers’ offices, which aim at the discovery of documents or other evidence or relevant electronic data as well as seizures thereof, as long as they are in possession of a lawyer who handles a case. This general prohibition applies to all lawyers and not only to defence lawyers. Although no

30 31

See i.a. Filippides (1952), pp. 99 ff.; Symeonidi-Kastanidi (1983), pp. 119 ff. See Androulakis (2007), pp. 77 ff.

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explicit exception to this prohibition exists in law, it is unanimously acknowledged that searches are allowed when the lawyer is a participant of the crime in question. Additionally, prohibition of search and seizure in lawyers’ offices does not apply to the objects or instruments of the crime.32 This general prohibition is accompanied by a special one referring to the search and seizure in defence lawyers’ offices. Art. 261 CCP provides that defence lawyers as well as any other professionals who may not testify as a witness are generally obliged to hand over any document or object they possess because of their profession to investigating officers except if they declare in writing that it contains privileged information. According to Art. 262 para. 3 CCP, if the investigating officer considers this declaration not to be true, he seals or otherwise secures the document or object and asks the competent bar association to decide whether the document contains privileged information. In case of a negative answer, he proceeds with the seizure of the document. It is inferred from that provision that seizure of privileged documents is generally prohibited.33 Privileged information, which has been seized during a search in a lawyer’s office, is regarded to be inadmissible evidence.34 According to Greek law, lawyers’ offices are regarded to be domiciles, in the sense of Art. 9 para. 1 of the Constitution. Consequently, the safeguard of the presence of a judge during the search, which is prescribed for any search of a domicile, applies also to lawyers’ offices. Issuance of a search warrant by a judge or a public prosecutor is not provided at all for searches in domiciles, since the presence of the judge seems to partly substitute the need for a judicial control of the legality of the search before its execution. For this type of search other general principles apply, such as the principle of proportionality, guaranteed in Art. 25 para. 1 of the Constitution. The law does not prescribe any other formalities for searches and seizures in lawyers’ offices, such as the presence of a member of the bar or the approval of the local bar association. Although the ECtHR requires certain formalities for searches to be applied alternatively for searches in attorneys’ offices,35 Greece has not been held responsible so far for any violation of the ECHR in this respect. The absolute character of the attorney-client privilege is further underlined by some other provisions in law, such as Art. 7B of Law No. 3691/2008, which has abrogated all privileges towards the Financial Intelligence Unit (FIU) with the exception of those mentioned in Art. 212, 261 and 262 CCP, including the defence lawyer’s privilege. Notwithstanding this, the protection of the attorney-client privilege has been recently challenged by the provisions of Art. 17 para. 8 of Law No. 2523/1997 and Art. 2 para. 5 of Law No. 4022/2011, as these were amended by Law No. 3943/

32

Triantafyllou (1993), p. 301; Dionysopoulou (2009), pp. 44 ff. See Triantafyllou (1993), p. 307. 34 Konstantinidis (1995), p. 878; Dionysopoulou (2009), p. 40. 35 See Niemietz v. Germany, Appl. no. 13710/88, of 16 December 1992. 33

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2011 and Law No. 4205/2013 respectively. The first of these provisions gives the prosecutors of financial crimes the power to access any information or evidence useful to their investigation, without limitation by any privilege provided by law. The second one extends this power to the investigation magistrates of corruption cases. The aforementioned prosecutors and investigating magistrates have interpreted these exceptional provisions so as to include the attorney-client privilege. Some searches of and seizures in lawyers’ offices have taken place in few cases based on these provisions, while lawyers’ invocation of the attorney-client privilege when summoned to testify, has been rebutted on the same basis. After having been faced with fierce criticism by scholars and the bar, this practice seems not to have been followed since. The main argument against the abolition of the attorney-client privilege in a wide range of cases, falling into the competency of financial crime prosecutors and investigating magistrates in corruption cases, is the protection granted thereto by constitutional and international law. Such an abolition would violate the right to a fair trial guaranteed in Art. 6 para. 1 ECHR. Searches of lawyers’ offices may not infringe on the attorney-client privilege and have to comply with the principle of proportionality. They are only permitted when specific procedural safeguards are met, such as the presence of a representative of the local bar association. Such safeguards are not stipulated in the aforementioned provisions, with regard to searches of lawyers’ offices. In general, unrestricted intrusion of confidential material violates the right to counsel and the principle of proportionality.

References Anagnostopoulos I (2017) Defence rights in the EU. Law and Economy – PN Sakkoulas, Athens Androulakis N (2007) Fundamental concepts of criminal proceedings, 3rd edn. Law and Economy – PN Sakkoulas, Athens Dionysopoulou A (2009) The evaluation of incidentally obtained evidence in criminal proceedings. AN Sakkoulas, Athens Filippides T (1952) The violation of professional secrecy. Poinika Chronika Law Rev 2:99–114 Karras A (1989) The principle of judicial hearing in criminal proceedings. AN Sakkoulas, Athens Karras A (2011) Criminal procedure law. Nomiki Bibliothiki, Athens Konstantinidis A (1992) The position of the defence lawyer in criminal proceedings. AN Sakkoulas, Athens Konstantinidis A (1995) Searches and confiscations in legal offices. Poinika Chronika Law Rev 45:865–881 Kostopoulou MA (2013) Rights of defendants (article 6 para. 3 ECHR). In: Sisilianos LA (ed) European Convention on Human Rights. Nomiki Bibliothiki, Athens Magakis G (1992) The defence lawyer, 2nd edn. AN Sakkoulas, Athens Symeonidi-Kastanidi E (1983) The violation of professional secrecy by lawyers. Law Polit Rev 7:119–128 Triantafyllou G (1993) Regulation and function of searches in the Code of Criminal Procedure. AN Sakkoulas, Athens Voulgaris D (2016) The institution of legal aid in Greek and European Union’s legal order. Poinika Chronika Law Rev 56:567–579

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Georgios Triantafyllou is an assistant professor for criminal law and criminal procedure at the Faculty of Law of the National and Kapodistrian University of Athens. He is author of several books and articles in Greek and English on matters of domestic and international criminal law and procedure, such as searches in criminal procedure, harm to self, evidence, international judicial assistance in criminal investigations, extradition and EAW, money laundering, anti-trust criminal law, presumption of innocence, terrorism etc. He has been a member of many legislative commissions in the Greek Ministry of Justice and practices criminal law in the fields of corporate and banking criminal law, anti-trust law, money laundering, corruption, tax fraud, personal data protection, medical liability as well as in the area of international legal assistance. He has been a member of the Board of the Hellenic Association of Criminal Law.

Confidentiality of Correspondence with Counsel as a Requirement of a Fair Trial in Italy Massimo Ceresa-Gastaldo

Abstract The paper explores issues regarding the protection of the confidentiality of the attorney-client relationship in the Italian criminal procedural system. The author begins by analysing the constitutional reference framework, highlighting, in the first place, the constitutional principle of inviolability of the right of defence. He then examines, on the one hand, the legal professional privilege, with its complex procedural implications and, on the other, the right to counsel during the preliminary investigation and throughout the trial. In the second part, the author addresses the guarantees provided against state intrusion into privileged attorney-client communications, with particular focus on inspections, searches and seizures in law firms, as well as on the interception of conversations and communications of defence counsels, private investigators and expert witnesses. Keywords Access to lawyer · Attorney-client communications · Attorney-client privilege · Confidentiality · Criminal defence · Criminal procedure · Exclusionary rules · Legal privilege · Right of defence · Right to counsel · Fair trial · Search of lawyer’s offices

Abbreviations CCass CCL CConst CCP DirAL PC PL

Court of cassation Code of Conduct for Lawyers Constitutional court Code of Criminal Procedure Directive on the right of access to a lawyer in criminal proceedings Penal Code Prison administration law

M. Ceresa-Gastaldo (*) Bocconi University, Department of Legal Studies, Law School, Milano, Italy e-mail: [email protected] © Springer Nature Switzerland AG 2020 L. Bachmaier Winter et al. (eds.), The Right to Counsel and the Protection of Attorney-Client Privilege in Criminal Proceedings, Ius Comparatum – Global Studies in Comparative Law 44, https://doi.org/10.1007/978-3-030-43123-5_6

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RCDI RICCP RIPL

Rules of Conduct in Defence Investigation, Italian Chamber Union Rules Implementing the Code of Criminal Procedure Rules Implementing the Prison administration law

Criminal

1 Inviolability of the Right of Defence Art. 24(2) of the Italian Constitution proclaims that the right of defence is an “inviolable right at any phase or instance of legal proceedings”. The formula, which is poorly worded,1 fails to specify the content of the enforceable right and must necessarily be construed jointly with other constitutional provisions that enhance its meaning and reveal the twofold significance of the defence function as both a defendant’s individual right and an objective guarantee ensuring a correct judicial assessment: primarily, with Art. 3 of the Constitution, establishing the principle of equality between prosecution and defence; Art. 101(2) of the Constitution, stating the impartiality of the judge and requiring the separation of the investigative and judicial functions; Art. 27(2) of the Constitution, on the one hand, prohibiting the application of any penalty prior to a final judgment of conviction, by establishing a presumption of innocence for the defendant, and, on the other, providing that the prosecution must bear the risk of failure to prove guilt; and finally, Art. 111 of the Constitution, outlining the characteristics of a fair trial. In consideration of the above provisions, the right of defence is primarily the defendant’s right to the most favourable judicial ruling based on the legal and factual situation in the specific case; with respect to this latter final right, of significant value2 are “all the rights, powers and discretions which have been demonstrated by experience to be indispensable or even only useful to a defendant for the purpose of being acknowledged the aforementioned final right”.3 This includes both the right of self-defence, or personal defence, and the right of technical defence.

1.1

Self-Defence

With respect to the first aspect, of specific importance is the right of the person concerned to be promptly informed of the nature of and reasons for the charges, in a language known to that person, and to have the time and facilities necessary to

1 Ferrua (1988), p. 29; analogous, Voena (1989), p. 6, who emphasizes the abstract nature of the provision. 2 This was already recognized by the CConst, 175/1971. 3 Scaparone (2017), p. 54; Scaparone (1981), p. 83.

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prepare his or her defence, as well as to participate in person in the proceedings acts, starting with evidentiary acts, thereby contributing to the “dialectic development of the trial”.4 This framework certainly includes the right to remain silent, understood as the right to refuse cooperation with the authorities during criminal proceedings5 (except for the obligation to provide personal details):6 forcing a defendant to contribute to the assessment of a fact7 to their detriment would represent a clear violation of the right of defence—as well as an open denial of the presumption of innocence.8 This tool is aimed at protecting an individual in his or her relationship with the authorities, which necessarily applies also at a time prior to the commencement of the proceedings. The right to refuse cooperation also extends to the right to make false statements,9 within the limits represented by criminal liability for false allegations, false selfincrimination, and simulation of a crime, and by the risk of a negative assessment by the courts upon determination of the penalty (Art. 133 PC).10

1.2

Technical Defence

In the second respect, of specific importance is the defendant’s right to obtain technical assistance from a defence counsel, who must in turn have the information, time and facilities necessary to defend his or her client. Above all, counsel must have full freedom and independence in order to perform his or her tasks in the exclusive interest of the client, without any influence arising out of being considered a “representative of justice”—as was the case during the period of effect of the abrogated code of criminal procedure, above all in its original version of 1930—or rather a party to the proceedings under an obligation to cooperate with the judicial authorities in the ascertainment of the truth.11 Having overcome this unacceptable ethical and collaborative concept of the defence, the defence function fully maintains its public law characteristic, in the sense that “by unilaterally supporting his/her client’s arguments and, therefore, by guaranteeing the adversarial process for the defendant (it is the prosecution’s task at

4

CConst, 99/1975. See CConst, 267/1994; CConst, 291/2002. 6 CConst, 108/1976. 7 Studies by Vittorio Grevi, are fundamental in this regard: Grevi (1972) and, more recently, Grevi (2000), p. 206. See also Patanè (2006). 8 Ubertis (2008), p. 196. 9 CConst, 179/1994: “The defendant not only enjoys the right not to reply, he/she does not even have an obligation to tell the truth”. 10 Scaparone (2017), p. 54. 11 De Marsico (1936), p. 146. 5

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the opposite pole), counsel also serves the interest of the community in trials being properly conducted; whilst he/she would betray that interest if, without withdrawing from representation, he/she sacrificed the specific interests of the defendant to aid the affirmation of general or supra-individual values (search for the truth, conviction of the guilty etc.)”.12 An essential accompaniment to the principle of freedom and independence of the defence—which also guarantees the right of self-defence for the defendant—is the prohibition of arbitrary intrusions by the authorities, both with respect to any information obtained by counsel in performance of his or her representation agreement and to any attorney-client communications (correspondence and interviews). The freedom and privilege of the latter, in particular, are fundamental, on the one hand, for the purpose of enabling the correct performance of the defence function and, on the other hand, in order to avoid an abusive evasion of the right of a defendant not to cooperate. The Italian criminal law and criminal procedure systems recognize, alongside the attorney-client privilege (which persists with respect to the extra-procedural interest in the protection of the attorney-client relationship), a specific defence privilege (distinct from the former, since it is intended to protect the inner-procedural interests of the counsel-client relationship in criminal proceedings, which is pitted against that of the prosecution).13

1.2.1

Private Lawyer and Court-Appointed Lawyer

In Italian criminal proceedings, a defendant must necessarily be assisted by counsel. Even if the person concerned is professionally qualified, he or she must appoint a professional enrolled with the bar association. The defendant is entitled to appoint no more than two lawyers of his or her choosing (Art. 96(1) CCP); any appointment of additional defence counsels does not come into effect until removal of those previously appointed (Art. 24 RICCP). The appointment is made by way of a declaration given to the prosecuting authority or delivered by counsel or sent by registered mail (Art. 96(2) CCP). The appointment of a lawyer chosen by a person deprived of their liberty (taken into custody, arrested or subject to pretrial detention) can be made by a close relative if the person concerned has not personally made that appointment (Art. 96(3) CCP). Judicial police agents and officials and all employees of correction facilities and prisons are prohibited from giving any advice on the choice of counsel; violation of said prohibition constitutes a serious disciplinary offence (Art. 25 RICCP). When the defendant has not appointed counsel, or is without counsel, counsel shall, on a subsidiary basis, be appointed by the court (Art. 97 CCP) and is under an

12 13

See Ferrua (1988), p. 17, referring to Coppi (1985), p. 20. In relation to this distinction and for further analysis of this matter see Grifantini (2001), p. 5.

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obligation to provide assistance, can be replaced only for good reason and ceases to act as counsel when the person concerned appoints an attorney of their choosing. The rule encapsulates the irrevocable nature of technical assistance during criminal proceedings: a defendant cannot refuse counsel and opt exclusively for selfdefence (or waive the right to defence altogether). The option—essentially reproducing the option under the code previously in force, in respect of which, during the dramatic years involving trials against the Brigate Rosse terrorists, the Constitutional Court made repeated interventions14—is testimony to the understanding of counsel as an essential party to the proceedings for the actual fulfilment of the adversarial process with the prosecution: “Counsel’s recognized active participation in the formation of evidence means that counsel cannot be considered a mere ‘guarantor’ and requires the presence of counsel even against the wishes of the defendant.”15 A court-appointed lawyer is identified from those enrolled in the specific national register (Art. 97(2) CCP),16 on the basis of an “automatic” mechanism of notice to the judicial authority, managed on a territorial basis. In order to facilitate the prompt appointment of counsel for those under investigation and for defendants held in custody, there is a special shift with a daily rota and on-call requirements (Art. 29 RICCP). When an act must be carried out that requires the assistance of counsel and the suspect or defendant has no counsel, the judge, the public prosecutor and the judicial police shall request counsel from the specific centralized office of the Bar Council of each Court of Appeal district, and shall give notice of this act to the counsel appointed in this way17 (Art. 97(2) CCP). The name of counsel is notified to the defendant, who is informed that he or she may appoint his or her own attorney at any time; the notice is accompanied, upon penalty of invalidity, by detailed information on the right to counsel (Art. 369-bis CCP and Art. 28 RICCP). During the preliminary investigation, the need to appoint counsel arises when it is necessary to carry out a so-called guaranteed act, or rather an act which allows or requires the presence of a technical defence: this primarily relates to questioning of the defendant, as well as any inspection, identification of persons or confrontation that the defendant must participate in (Art. 364 CCP), searches and seizures ordered by the public prosecutor (Art. 365 CCP), technical assessments that cannot be

14 Declaring that pleas regarding the unconstitutionality of provisions requiring the assistance of counsel are unfounded: CConst, 125/1979; CConst, 188/1980. CConst, 421/1997 declared that the issue of constitutional legitimacy, raised with reference to Art. 10 and 24 of the Constitution, was without grounds, in the part in which they require the necessary presence of qualified counsel and do not allow the defendant to defend himself personally. 15 Presutti (1997), p. 236; analogous, Frigo (1989), p. 605; in criticism see Ferrua (1988), p. 20; Maiorca (1980), p. 1360; Zagrebelsky (1979), p. 863. 16 The formation and revision of lists by the Bar Council is governed by Art. 29 RICCP. 17 Dalia and Cimadomo (1999), p. 507, observe that, “also with regard to court-appointed attorneys, the legislator defines appointment as the formal act for the allocation of the defence function, but it would be preferable to speak of nomination since, as stated, appointment is a fiduciary act”.

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repeated (Art. 360 CCP), deposition by a suspect to the police (Art. 350 CCP) and evidentiary hearings (Art. 392 and 410 CCP). Appointment of counsel is also mandatory in the case of enforcement of rulings ordering precautionary measures on personal freedom (Art. 293 CCP) and in the event of arrest and custody (Art. 386(2) CCP). The assistance of counsel is also always necessary (such that, if the defendant is not assisted by an attorney of his or her choosing, the court will appoint one) during the entire trial phase, as a result of criminal action by the public prosecutor. An attorney appointed by the defendant or by the court who is required to be present and who is unavailable, has failed to appear or has withdrawn from representation, will be replaced by the court18 with another immediately available attorney (Art. 97(4) CCP) who exercises the rights and undertakes the duties of counsel (Art. 102(2) CCP). The public prosecutor and judicial police, in the same circumstances, will request another name from the Bar Council office; in case of urgency, another immediately available attorney may be designated (subject to adoption of a ruling indicating the reasons for urgency).

1.3

Legal Aid for Indigents

Art. 24(3) of the Constitution requires the establishment of specific arrangements for the purpose of ensuring legal aid for those who cannot afford legal representation also in criminal proceedings as well. Presidential Decree No. 115, 30 May 2002, governs this matter, establishing the conditions and procedures for admission to legal aid for an indigent citizen (including foreigners and stateless persons residing in Italy) under investigation, indicted, convicted, harmed by an offence or who has incurred damage and intends to bring civil proceedings, is civilly liable or has a civil law obligation to pay financial penalties. The party meeting the necessary requirements can apply for legal aid, by documenting fulfilment of said requirements, to the court before which the proceedings are pending (during the investigation, the judge for the preliminary investigation has jurisdiction): the court will issue an immediate reasoned ruling. Fees and costs are settled directly in a ruling from the judicial authority. There is no provision for any interference in the choice of counsel or for a public defender system: the party concerned is entitled to make recourse to the services of his or her own attorney;19 the only limit is that of registration of the lawyer in the

18 During proceedings only a defence attorney registered in the specific list of court lawyers can be appointed in replacement (Art. 97(4) CCP). 19 Art. 27(4) CCL (approved by way of resolution by the National Bar Council, 31 January 2014) provides that “where the conditions are met, upon confirmation of the appointment, the attorney must inform the client of the possibility of applying for legal aid”.

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specific register established with any Bar Council.20 The appointment shall comply with ordinary procedures.

2 Attorney-Client Privilege The attorney-client privilege in relation to information obtained during performance of the professional activity (information, data, documents etc.) constitutes both a client’s right—that client can therefore rely on the privilege of any communications exchanged with, and any information obtained by, counsel—and a right/duty for the practitioner, who is under an obligation to comply with privilege in the interest of the client and is exempt from any obligation to disclose, by testifying during proceedings or by delivering documents, any information obtained by reason of a representation agreement. The legal system guarantees protection of the attorney-client privilege in order to safeguard the freedom that necessarily characterizes certain relationships, such as those between client and attorney; freedom “which would be seriously prejudiced if, in consideration of the delicate nature of those relationships, the law failed to intervene for the purposes of securing that freedom, to the extent possible, by means of criminal sanctions, in case the proper development of those relationships is prevented or put at risk by any person; this could in fact occur, generally but not always, as a result of a violation of the confidence and privilege that characterizes these relationships”.21

2.1

Legal Professional Privilege and the Attorney’s Duty of Confidentiality

The rules of professional conduct for law practitioners state that lawyers are bound by privilege and confidentiality, setting forth (Art. 13 CCL—Codice deontologico forense) that, “a lawyer shall ensure, in the interest of his/her client and represented party, strict compliance with the attorney-client privilege and utmost discretion on the facts and circumstances brought to his/her knowledge while providing judicial legal assistance and representation or out-of-court legal advice and assistance, or, in any case, by reason of his/her profession”.

20

CConst, 394/2000 declared the issue of constitutionality of the previously effective rule to be ungrounded (Art. 9 Law No. 217, 30 July 1990), in the part in which it required indigent defendants to choose their counsel from amongst professionals enrolled in registers held by the Court of Appeal district for the Judge before which the proceedings are pending; the rule now allows the lawyer to be chosen from the register of a district other than the one in which the trial is being held. 21 Dubolino and Vigna (1989), p. 1062.

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Art. 28 CCL points out that, “it is a lawyer’s primary and fundamental duty, other than right, to ensure privilege and utmost discretion on the services carried out and on all the information provided by a client and represented party, as well as on the information brought to the lawyer’s knowledge by reason of representation” (paragraph 1); furthermore, “the attorney-client privilege shall be binding even after the representation agreement has been fulfilled, or otherwise terminated, withdrawn or not accepted” (paragraph 2); and “a lawyer shall also make sure that the privilege and confidence be maintained by his/her employees, trainees, consultants and professional partners, including occasional collaborators, with reference to the facts and circumstances brought to their knowledge in their capacity as lawyers or by reason of their professional activity” (paragraph 3). Any exceptions to the attorney-client privilege are admitted solely “when the disclosure of information obtained is required (. . .) to fulfil the representation agreement” or for the purpose of “preventing the commission of a particularly serious criminal offence”; a lawyer may also disclose confidential information when necessary in the context of a dispute between the lawyer and his or her client or represented party, or in respect of disciplinary actions (Art. 28 (3) CCL). Any disclosure, in the cases strictly provided by law, shall in any case “be limited to what is strictly necessary to the protected goal” (Art. 28(4) CCL).

2.2

Duty of Truth

By acknowledging their independence and autonomy, the law protects lawyers from any influence from the public authorities that may force them to pursue the superior interest of the administration of justice rather than the sole interest of their clients; it does not however authorize lawyers to introduce false evidence in proceedings, nor does it make them exempt from the liability arising out of aiding and abetting clients to elude an investigation or the authorities pursuant to Art. 378 PC.

2.2.1

Introducing False Evidence in Proceedings

Lawyers—as clearly set forth by the applicable rules of professional conduct—are bound by a duty of truth: “A lawyer is prohibited from introducing into trial evidence or documents that he/she knows to be false” (Art. 50(1) CCL); and he/she is not authorized to “use in the course of proceedings any evidence, elements of proof or documents produced or provided by the represented party which the lawyer knows or discovers to be false” (paragraph 2); should a lawyer “discover, even at a later stage, that false evidence, elements of proof or documents provided by the represented party have been introduced in the proceedings, he/she shall not use any such evidence or shall withdraw from representation” (paragraph 3). Furthermore, “in the context of proceedings lawyers shall not give any false statements on the existence or non-existence of facts of which they have direct knowledge and that

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may be used as the basis for a ruling by the court” (paragraph 5). Any lawyer who gives false testimony shall be liable for perjury (Art. 372 PC). Introducing false documents in proceedings is also punishable under criminal law. It should be noted that, according to case law, defence counsels—who, in the performance of their functions, are generally classified under criminal law as persons providing an essential public service (this is how the law defines “private individuals who practice law” according to Art. 359 PC)—are, on the other hand, classified as public officials in the act of documenting the statements taken in the course of criminal defence investigations (Art. 391-bis CCP). Thus, in this particular circumstance, any untruthful recording of facts (including the mere leaving out of statements given by the witness)22 qualifies, according to the Supreme Court of Cassation,23 as a false statement of fact by a public official in a public deed (and not as the less serious crime described in Art. 481 PC). A breach of the duty of truth is subject to disciplinary sanctions under the abovementioned Art. 50 CCL, which sets forth the suspension from the practice of law from one to three years (paragraph 7).

2.2.2

Assistance of Counsel: Aiding and Abetting and the Breach of Duty to the Client

It is not always easy to set the boundary between defence activities (lawful, and due, in order to properly fulfil a representation agreement) and aiding and abetting conducts (Art. 378 PC).24 Clearly this issue arises not so much in relation to typical defence activities, which certainly do not fall under the framework of punishable post-offence aiding conducts, but with regards to the more unusual ones, which are more difficult to classify as defence duties and are often the subject of conflicting judgments by the Supreme Court. In light of the general, long-standing statement pursuant to which “criminal defence, considered an inviolable right, has nothing to do with disloyal and criminal activities—thus even counsel who crosses certain limits may be charged with aiding and abetting”25—it was impossible not to acknowledge that the “dividing lines between the proper performance of counsel’s duties, the overstepping of legal limits imposed by rules of professional conduct and, lastly, criminal misconducts, cannot be defined rigidly on the basis of absolute standards, but must be identified on a case by case basis, strictly in relation to the intentions of the specific acting party, as a

This conduct qualifies as a violation of Art. 55(10) CCL: “Counsel shall record in full the information stated”; the obligation to record statements in full is also pointed out in Art. 13 (1) RCDI. 23 CCass, Schera. This decision was, quite rightly, criticized by scholars: see, for all, Tonini (2017), p. 648. 24 See Calamanti (1987), pp. 14 ff. 25 CCass, 11 November 1980, Auricchio. Strong criticism by Corso (1982), p. 944. 22

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concrete and actual expression of an “abnormal solidarity” with the defendant, which clearly goes beyond the lawyer’s institutional duty”.26 The key guideline for drawing the line between counsel’s lawful and criminal conducts, is establishing “whether the activity carried out comprises advice and techniques capable of misleading or delaying proceedings – conducts which are in any case immune from any sort of sanctions (criminal or disciplinary) – or whether the activity performed qualifies as an active engagement by the author in actions diverting the proceedings from their course and falling outside the framework of the representation agreement”.27 In this light, it was held that disclosure by a lawyer of confidential information obtained by virtue of a representation agreement with a client, to third parties that are not represented by said lawyer, for the purpose of helping them elude on-going investigations, is punishable under criminal law;28 likewise, if counsel, who unlawfully obtains the news of a precautionary measure issued against a client, informs the latter—thereby allowing that client to elude the measure and the authorities—he or she is punishable under criminal law for aiding and abetting under Art. 378 PC;29 on the other hand, if counsel informs a client of an imminent precautionary measure issued against the latter, he or she shall not be liable under criminal law when that information was obtained pursuant to procedural rules,30 or accidentally.31 In addition, a lawyer who engages in conducts aiming to pressure the individual reporting a crime or the victim of a crime into changing their statements,32 or a third party into refraining from reporting a crime,33 or a suspect not represented by said lawyer into not disclosing certain relations with connected persons, shall be held liable under criminal law.34

2.3

The Right Not to Testify

Two specific provisions under criminal procedure law, respectively referring to testimony and the delivery of documents, secure legal professional privilege in criminal proceedings.

26

CCass, 29 March 2000, Fasano; see, formerly, CCass, 27 May 1986, Sartori. In this sense, see CCass, 7 February 1986, Catanoso; see, if deemed appropriate, comment by Ceresa-Gastaldo (1988), p. 1429. On this topic see above all Pulitanò (1984), pp. 10 ff. 28 CCass, 18 June 2014, A.M. et al. 29 CCass, 18 June 2013, Arena. 30 CCass, 29 March 2000, Fasano. 31 CCass, 18 June 2013, Arena; analogous, CCass, 18 May 2010, Valentino. 32 CCass, 27 May 1986, Sartori; more recently, CCass, 20 January 2011, P.M. in proc. Ringressi; analogous, CCass, 5 April 2017, S.M. 33 CCass, 21 March 2013, F.L. 34 CCass, 18 October 1994, Berruti. 27

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Art. 200(1) CCP sets forth that, “attorneys, authorized private investigators, expert witnesses and notary publics have the right not to testify as to the information obtained by reason of their office or profession, except when the reporting of said information to the judicial authorities is required by law: (. . .)”. This is an exception to the general witness duty (Art. 198 CCP and 372 PC), which grants the above-mentioned professionals the right not to reveal any information protected by privilege.35 The exemption from witness duty is, however, subject to exception: “Should the judge have reason to believe that the statement given by said parties to invoke their right not to testify is without grounds, the judge may perform the necessary enquires. If the statement is unfounded, the judge shall compel the witness to testify” (Art. 200(2) CCP). Similarly, Art. 265 CCP regarding the delivery to the authorities of papers, documents, data, information, software and anything else held by an attorney by reason of their office sets forth that: the attorney may raise the objection (in this case in writing) that these elements are protected by the attorney-client privilege, and may therefore refuse to produce them and prevent them from being seized. If, however, the judicial authorities question the grounds for the statement and deem it impossible to proceed without such elements, they shall carry out the necessary enquiries and, should the statement be unfounded, they shall order the seizure (Art. 256(2) CCP).

2.3.1

Incompatibility of Counsel as Witness

The foregoing regards legal practitioners in general, while attorneys acting as defence counsels enjoy a further, more stringent guarantee. Despite the absence of an express provision in Art. 197 CCP,36 there is no doubt as to the applicability to counsel of the incompatibility rule to act as a witness,37 as it is undeniable that the same rule also applies to defendants, albeit their absence from

Art. 51 CCL sets forth that, “a lawyer shall refrain, except in exceptional cases, from testifying, as a person of interest or witness, on circumstances of which he/she has gained knowledge of in the performance of his/her professional activity and in relation to said activity” (paragraph 1); furthermore, “a lawyer shall in any case refrain from testifying on the content of what he/she has gained knowledge of during confidential meetings with colleagues, as well as on the content of confidential correspondence exchanged with the latter” (paragraph 2); and provides that, “if a lawyer intends to appear as a witness or a person of interest, he/she shall not undertake representation and, if already undertaken, he/she shall withdraw from said representation and refrain from resuming it in the future” (paragraph 3). Breach of these duties gives rise to the application of censure as disciplinary sanction (paragraph 4). 36 Or, rather, in light of a merely partial reference: paragraph 2(d) now mentions—subsequent to the interpolation by Law No. 397, 7 December 2000, which governs defence investigations in criminal proceedings—among the persons that are incompatible with the role of witness only “the defence counsel that has conducted defence investigations and the persons that have prepared the documentation relating to the statements and information taken under Art. 391-ter CCP”. 37 As stated in CConst, 215/1997, this is “a sort of alternative incompatibility between the role of witness and the role of counsel”, which means the two roles cannot coexist in the same person in the same proceedings. 35

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the list: these circumstances have been described as “situations regarding roles whose respective unique legal characteristics and incompatibility are so inherent in the system that a statutory provision would be superfluous”.38 Thus, counsel cannot testify in the same proceedings being held against his or her client: this rule serves as a proper exclusionary rule on evidence, pursuant to which the witness evidence in this case is inadmissible (and, where improperly admitted, cannot in any case be used).

2.3.2

Exemption from (and Exclusion of) Reporting Obligations

Inasmuch as counsel does not qualify as a public official or public service provider, counsel is not subject to the reporting obligation under Art. 331 CCP. In addition, Art. 334-bis CCP (introduced by Law No. 397, 7 December 2000, regarding criminal defence investigations) sets forth that “counsel and the persons indicated in Art. 391-bis shall not be subject to the reporting obligation even with regards to those crimes of which he/she has gained knowledge of in the course of the investigation activities conducted by him/her”. The foregoing provision is rather ambiguous as it suggests that, at least in the circumstance mentioned, counsel would—without this express exclusion—in effect be subject to the reporting obligation.39

2.4

State Secrets and Restrictions on the Choice of Counsel

The Italian legal system does not provide for any special rules that restrict the defendant’s choice of counsel in cases of terrorism or in other cases that may involve state secrets.

2.5

Legal Professional Privilege and Personal Privilege

The provisions governing the duty of confidentiality are aimed at fully securing the right of defence in all its aspects, and not at granting a personal privilege to law practitioners.40

38

In these terms, Di Bitonto (2015), p. 777, referring to Bargis (2008), p. 1099; Di Martino (1991), p. 5; Grifantini (2001), p. 95. On this topic, see the detailed analysis by Camon (2004), pp. 1 ff. 39 The Supreme Court used, inter alia, this rule as the basis for reaching its above-mentioned conclusion that the defence counsel recording statements in the context of defence investigations qualifies as public official: see footnote 22 above. 40 CConst, 87/1997.

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For this reason, the legal system does not provide for any special rules that an attorney, as such, may invoke for his or her own benefit when he or she is the suspect or accused in a criminal case.

2.6

Breach of Attorney-Client Privilege

Art. 622 PC sets forth that, upon complaint of the victim, “whoever, having gained knowledge of a secret, by reason (. . .) of his/her profession (. . .), reveals such secret, without just cause, or uses it for his/her own benefit or for the benefit of others, when such revelation may cause damage” is punishable by imprisonment up to one year or by fine from 30 to 516 Euro. In this way the law punishes the breach of counsel’s fiduciary duty,41 even before his or her loyalty duty,42 to the client.43 The unlawful disclosure of confidences by a lawyer also entails disciplinary consequences under Art. 28 CCL, which sets forth the suspension from the practice of law from one to three years. Said misconduct may also give rise to the lawyer’s civil liability, as a result of the damage caused by the unlawful disclosure of information.

2.6.1

Procedural Consequences

With regard to procedural consequences arising out of the disclosure of confidences by a lawyer who—not having enforced the right to refusal set forth in Art. 200 CCP—testifies about circumstances brought to his or her knowledge by reason of representation, or who—not having invoked the attorney-client privilege under Art. 256 CCP—delivers confidential documents to the judicial authorities, it should be noted that the procedural provisions mentioned merely prohibit the coercive obtainment of confidential information; in other words, they grant the practitioner a power without setting an absolute ban on the element protected by privilege. Thus, whatever the practitioner spontaneously reports or delivers, even in breach of the attorney-client privilege (thereby committing a criminal offence under Art. 622 PC and a disciplinary offence under Art. 28 CCL), may still fully be adduced as evidence in trial. Art. 10 CCL states that “a lawyer shall faithfully represent his/her client, performing his/her activity in the interest of the represented party and in compliance with the constitutional and social significance of the defence”. 42 According to Art. 9(1) CCL, “a lawyer shall perform his/her professional activity with independence, loyalty, fairness, honesty, dignity, honour, diligence and competence, having regard to the constitutional and social significance of the defence and in compliance with fair and loyal competition principles”. 43 Dubolino and Vigna (1989), p. 1062; and, formerly, Crespi (1952), p. 50. 41

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The exclusion of evidence (Art. 191 CCP) would apply only if the judge compelled the witness to testify (other than in the cases in which the invocation of the attorney-client privilege was deemed without grounds), or if the authorities seized the documents despite the statement (without previously ascertaining the grounds therefor: Art. 200(2) CCP), since this is the exclusionary rule set forth by the provision.44 In our legal system, exclusionary rules on evidence are set forth by procedural law; evidence obtained in compliance with procedural rules, even if unlawful, may be adduced in trial unless a specific provision states otherwise.45 On the other hand, a lawyer testifying in the same proceedings in which he or she acts as counsel is a different issue: as previously mentioned, the status of counsel is incompatible with the role of witness in the same proceedings, and bars the possibility to admit the related witness evidence, regardless of its content.

3 The Pretrial Right to Counsel During the Preliminary Investigation The right to counsel during the preliminary investigation46 is recognized to different extents depending on the type of investigative act to be performed and the authority performing it. For certain measures, the law provides the right to have counsel present, without the right to prior notice of the measure to be taken: this is the case of “surprise” or non-deferrable investigative acts performed by the public prosecutor or judicial police: searches, urgent enquiries regarding persons, places or things, urgent opening of document envelopes, urgent inspections. Then there are cases in which the law recognizes both the right to the assistance of counsel and the right to prior notice. This is the case for the acts performed by the public prosecutor (Art. 364 CCP): interrogations, inspections, identification of persons or confrontations in which the person under investigation must take part, technical assessments that cannot be repeated (Art. 360 CCP).

44 Cordero (2012), p. 690; this is the predominant opinion among scholars, seconded by the courts; the opposite opinion was also expressed: Nobili (1989), p. 156. For an overview of the topic see Panzavolta (2015), p. 798. 45 Cordero (2012), p. 690. 46 With the implementation of DirAL by Legislative Decree No. 184, 15 September 2016, the legislator made no more than some minor adjustments to the procedural rules already in force. In particular, by interpolating Art. 264(1) and (5) CCP, in order to extend the right to assistance of counsel to identification procedures, and Art. 29(4)(c) RICCP, to extend the provision regarding special shifts for court-appointed counsels to suspects and defendants arrested abroad in compliance with a European arrest warrant. For comments and critical observations, see Morelli (2017), p. 2.

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If the act involving the person under investigation is performed by the judicial police, the presence of counsel is, on the other hand, mandatory47: this is provided in the event of questioning or confrontation with a suspect (upon instruction by the public prosecutor) and deposition by a suspect to the police (Art. 350(1–4) CCP). The assistance of counsel is also required when the judge performs custodial interrogations of a person subject to a precautionary measure under Art. 294 CCP, and in hearings to confirm arrest and custody.

3.1

Interrogations

The procedures for conducting interrogations are narrowly regulated by the CCP. First of all, in order to avoid any influence that may arise from the suspect being subject to physical restraint measures, the CCP sets forth in Art. 64(1) CCP that a suspect, even if in custody, shall attend the interrogation freely without any physical restraint (without prejudice to the measures necessary to avoid the risk of flight or violence); furthermore, the use of “methods or techniques directed at undermining freedom of self-determination or the ability to recall and assess facts” (Art. 64 (2) CCP) is prohibited, even with the consent of the person being questioned; lastly, Art. 64(3) CCP requires that the person under interrogation be cautioned that his or her statements may be used against him or her, that he or she has the right to remain silent, but that the proceedings shall in any case follow their course and that, should he or she give statements on facts regarding the liability of others, he or she shall be called to testify in regards to said facts (without prejudice to the cases of incompatibility). The judicial authorities are required to clearly and accurately inform the suspect of the charges and evidence against him or her, and to state their sources of information, when this causes no damage to the investigation (Art. 65(1) CCP); once the suspect has been informed of the charges, he or she is invited to report any information deemed useful to his or her defence, and to ask questions (Art. 65 (2) CCP). If the suspect invokes the right to remain silent, it is recorded in the investigator’s report (Art. 65(3) CCP). Interrogations are conducted unilaterally by the prosecuting authority (by the judge, the public prosecutor or the judicial police, as the case may be); the law does not provide for interrogations in the form of a dialogue, with questions asked directly by counsel; counsel may however intervene, especially for the purpose of raising issues as to the way the interrogation is conducted, and may request a recess at any time to consult with his or her client.

47

A majority of scholars criticize the legislator’s decision not to provide the assistance of counsel in interrogations performed by the public prosecutor as mandatory (but merely as optional, without prejudice to the right to notice): see, for all, Mazza (2004), p. 184.

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The Absence of Guarantees of the Right to Counsel During “Spontaneous Statements” by a Suspect to the Police

It should be noted that, while in the case of depositions (and interrogations), judicial police officers are required to apply “the procedures set forth in Art. 64”, “with the necessary assistance of counsel” who “is under an obligation to be present during the act being performed” (Art. 350(1) and (3) CCP), there is a consensus that no guarantee of the right to counsel applies when the suspect gives “volunteered statements” to the police (Art. 350(7) CCP). The foregoing is a rather dangerous practice, as it is potentially capable of eluding the right to counsel: considering how hard it is to distinguish “volunteered” statements from “elicited” statements,48 there is a high risk of masking actual interrogations, conducted in the absence of counsel and perhaps even without all the due cautions.49

3.3

Counsel Meetings with Incarcerated Clients

When a person is arrested or taken into custody, he or she has the right to confer with counsel right after the arrest or custody. The same applies, from the first moment the measure is executed, to suspects or defendants in pretrial detention (Art. 104(1) and (2) CCP). If the person does not speak Italian, he or she has the right to the free assistance of an interpreter in order to confer with counsel (Art. 104(4-bis) CCP). The right to meet with counsel cannot be undermined or affected by the fact of being detained50: counsel has the right to access the place of custody to confer with his or her client (Art. 36 RICCP); meetings take place in private, and may neither be monitored by custody officers (Art. 18 PL), nor recorded by the judicial authorities or correctional staff; counsel meetings take place in specific designated rooms inside the correction facility (Art. 37(6) RIPL).

3.3.1

Deferral of Counsel Meetings

Nonetheless, in the course of the preliminary investigation, with reference to the criminal offenses indicated in Art. 51(3-bis) and (3-quarter) CCP (conspiracy, aimed at committing a number of serious crimes or organized crime offenses, and

48

See, for instance, CCass, 3 April 2017, D.A.N. For firm criticism against this rule, see, as deemed appropriate, Ceresa-Gastaldo (2002), p. 129 ff. 50 CConst, 212/1997. 49

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terrorism), in the presence of “specific and exceptional precautionary needs”, the judge, upon the public prosecutor’s request (or the public prosecutor himself or herself, in the event of arrest or custody, before the person is made available to the judge) may postpone, by reasoned decree, the exercise of the right to confer with counsel, for a period of time not exceeding five days (Art. 104(3) and (4) CCP). This provision was recently subject to statutory amendments (Law No. 103, 23 June 2017), which reduced the cases of deferral of counsel meetings (previously admitted for any type of crime),51 with the intention to adjust the rule to the provisions of the cited DirAL. In fact, a few doubts may still be raised as to the full compatibility of these provisions with the indications set forth by the supranational authority, considering that any exceptions to the right to access a lawyer “without undue delay after deprivation of liberty” (Art. 3(2) DirAL) are admitted only in exceptional cases, when immediate access to a lawyer is not possible due to geographical remoteness, and cannot solely be based—as is, on the other hand, provided by Art. 104 CCP—on the type or seriousness of the offence (Art. 3(5) and 8(1) DirAL).

4 State Intrusion into the Confidentiality of Attorney-Client Communications In addition to the above guarantees with regards to privilege, the Code protects criminal defence activities from the undue interference of the public authorities, also by setting forth special restrictions and precautions for inspections, searches and seizures in lawyers’ offices, as well as the prohibition to wiretap private conversations and communications between an attorney, his or her collaborators and a client.

4.1

Inspections, Searches and Seizures in Law Firms

Inspections and searches in the offices of defence counsels are admitted in two cases only: when the attorney (or collaborators thereof who regularly work in the firm) is a defendant, solely for the purpose of ascertaining the alleged offence; or to inspect for traces or other material effects of a crime, or to search for specifically predetermined items or persons. “Papers or documents regarding the subject-matter of the defence” (Art. 103(1) and (2) CCP) cannot be seized in the office of counsels, private investigators or expert witnesses, unless said items constitute the corpus delicti.

51

Affirming the unconstitutionality of the restriction, Dalia and Cimadomo (1999), p. 509. On this topic see Adorno (2017), p. 141.

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This provision has a wide scope of application, having a functional nature,52 as it applies not only in the context of proceedings in which the attorney has undertaken representation, but also with reference to all the activities somehow connected to the client’s defence.53 In the cases permitted, the law provides that the judicial authorities, about to perform an inspection, a search or a seizure in counsel’s office, shall, under penalty of nullity, give prior notice to the local Bar Council so that the chairman, or a delegated member, may be present during the act. The act is personally carried out by the judge or, during the preliminary investigation phase, by the public prosecutor by virtue of a warrant issued by the judge and stating the grounds therefor. This provision does not admit any derogations; it sets forth special rules in addition to the provisions governing searches and seizures, and thus must be construed in the sense that searches on the initiative of the judicial police in lawyers’ offices are not admissible (Art. 352 CCP).54 Furthermore, it should also be interpreted in the sense that the procedure ensured (prior notice to the Bar Council and presence of a member thereof) must always be applied in law firms, including, therefore, when the investigative activities are ordered in the context of proceedings in which the attorney is a suspect: a conclusion, on the other hand, rejected by case law.55 The law in any case bans the generalized and indiscriminate taking of a law firm’s entire hardcopy or electronic archive in order to select and return documents after the seizure has been performed, since the restrictive measure is required to comply with the requirements of proportionality and strict necessity;56 and it also prohibits to withhold copies of seized documents (including electronic documents) after their release has been ordered.57 In this regard, it should be noted that, despite the Supreme Court of Cassation’s recent decisions, there are still many violations of this rule by public prosecutors, who often order the taking of an entire computer or hard drive, or even the complete cloning thereof. Lastly, an express prohibition is imposed on the seizure and on any form of inspection of attorney-client correspondence, except when the judicial authorities have reasonable grounds to believe it may be the corpus delicti (Art. 103(6) CCP).

CConst, 229/1998; on the prohibition to seize defence documents even outside the law firm, see CCass, 30 March 2017, B.L. 53 CCass, 3 April 2014, Trotta; in line with CCass, 12 November 1993, De Gasperini and CCass, 12 November 1993, Grollino. 54 In this sense, see the (shared) opinion of Frigo (1989), p. 663. 55 See CCass, 19 January 2017, L.G. 56 CCass, 24 February 2015, Rizzo; analogous, on the proportionality requirement for seizures, see, among others, CCass, 10 November 2016, Z.D.; CCass, 15 April 2014, M.C. et al.; CCass, 9 December 2011, M.A.M. 57 CCass, 20 July 2017, Andreucci. 52

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171

Interception of Conversations and Communications of Defence Counsels, Private Investigators and Expert Witnesses

Pursuant to Art. 103(5) CCP, “the interception of conversations or communications of defence counsels, private investigators appointed in relation to proceedings, expert witnesses and collaborators thereof, is prohibited, as is the interception of conversations and communications between the foregoing parties and their clients”. This provision refers to any conversation (whether in person or by telephone) and communication (whether paper or electronic)58 between the persons indicated. Although the rule has a wide scope of application and states no exceptions (as, on the contrary, is the case for inspections and searches), it is not deemed applicable when the attorney is an alleged offender or when the communications are unrelated to defence purposes.59

5 Exclusionary Rules and Nullity The findings of inspections, searches and seizures unlawfully ordered cannot be used as evidence in trial. In the event of failure to give prior notice to the local Bar Council, the act is deemed null and void. Even the findings of any interceptions unlawfully performed in violation of the related prohibition shall be deemed inadmissible. This rule is also pointed out in Art. 103(7) CCP (partially overlapping Art. 271(2) CCP), which, following the recent statutory amendments (Legislative Decree No. 216, 29 December 2017), has added that “without prejudice to the prohibition on their use as described in the first sentence, when the communications and conversations have however been wiretapped, their content may not be transcribed, not even in a summary manner, and the relevant report shall merely indicate, date, time and device on which the recording was made”. This last provision refers to any communications captured, including those accidentally picked-up while carrying out lawful interceptions, and aims—by banning even the mere annotation of their content in the rough book kept by the officers in charge of listening—to strengthen the prohibition on any intrusion into confidential attorney-client communications (and to reduce the risk of any unlawful disclosure thereof); any traces of said confidential conversations are stored merely for the

58

According to a case law’s recent line of reasoning, even the obtainment of e-mail messages stored on a computer constitutes interception: CCass, 28 June 2016, Grassi et al. 59 In this sense, among others, CCass, 12 February 2003, Graviano.

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purpose of their subsequent destruction, as set forth by the CCP for inadmissible interceptions.

5.1

Derived Exclusion

Bearing in mind that Art. 103(7) CCP refers to the findings of unlawful searches and interceptions, there seems to be no doubt that the violation of the prohibition to carry out inspections, searches or interceptions also reaches the evidence thereby collected:60 in this case, “it must therefore be deemed that the invalidity of the acts performed in breach of the defence privilege also entails the invalidity of the evidence thereby obtained”,61 and thus said evidence cannot in turn be used without equally affecting any consequent acts arising therefrom (for example an interception warrant whose reasonable grounds for issue were the attorney’s unlawfully pickedup telephone conversation; or a voice recognition procedure performed by using that same phone call, and so on).62 Nor, clearly, can the prohibition be sidestepped by recourse to means aimed at surreptitiously reintroducing elements that cannot be admitted in trial (such as the testimony of the officer who was present at the unlawful search or telephone conversation protected by privilege). The effects of this evidentiary disease on the judgment naturally depend on the importance of the element considered by the judge: if the evidence unlawfully used was decisive, the appellate court will reverse the judgment of conviction that based the decision on such evidence, thereby acquitting the defendant. In this case, as in general, once acquittal is final, it bars the possibility of prosecuting the same person twice for the same facts, even if said facts were to be classified differently in terms of type, degree or circumstances (Art. 649 CCP). Review of a final judgment is admitted, in the cases described in Art. 630 CCP, only in case of conviction.

6 Attorney-Client Communications at Trial Defence communications during proceedings must take place freely, on a constant and confidential basis both during hearings and during any periods of suspension of trial. 60

Pursuant to case law, this principle would however be scaled back in case of discovery of the corpus delicti or of items relating to the crime, as in this case the seizure would constitute a “necessary measure” and it would be the “procedural system itself to consider as completely irrelevant the means leading to the seizure”: CCass, 27 March 1996, Sala; for a critical opinion see, among others, Grifantini (2001), p. 290. 61 Grifantini (2001), p. 289. 62 Also see Grifantini (2001), p. 291.

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Normally the defendant sits next to counsel in the courtroom; if the defendant is incarcerated, he or she shall participate at the trial free of physical restraint, without prejudice to the measures necessary to avoid the risk of flight or violence (Art. 474 CCP); said measures, in many courtrooms, (especially where summary proceedings are held), consist of permanent cages often hosting several defendants in a tiny crowded space; such a situation obviously being contrary to a principle of human dignity, and a significant obstacle to the defendant’s actual aware participation in his or her own trial and effective communication with counsel. Practical difficulties also arise from the defendant’s remote participation in hearings (Art. 146-bis CCP). The relevant rules were subject to amendments in 2017 (Law No. 103, 2017), which significantly increased the cases in which the use of audio-visual links is admitted; while “the presence of counsel or substitute thereof in the place where the defendant appears is always admitted”, and while “counsel or the substitute thereof present in the courtroom where the hearing is being held and the defendant have the right to communicate in confidence” (Art. 164-bis(4) CCP), it is undeniable that, on the one hand, as refined as the “suitable technological means” may be, remote communication will never be as effective as communicating in person and, on the other, that the assistance of a substitute is (in addition to a cost for the defendant) merely optional, such that in the event of non-attendance of counsel or of his or her substitute, for good reason, the judge is not required to adjourn the hearing.63

7 Prospects Although the Italian legislator has recently intervened both in order to adjust the domestic statutory framework to the supranational rules and regulations and to attempt solving some of the issues relating to the right of defence, it cannot be said, despite appearances, that all issues have been answered. However, at present, no further statutory interventions are expected in the near future.

References Adorno R (2015) Art. 474 c.p.p. In: Conso G, Illuminati G (eds) Commentario breve al codice di procedura penale, 2nd edn. Cedam, Padova, pp 2186–2193 Adorno R (2017) Diritto del difensore dell’imputato in vinculis e procedimento cautelare. In: Negri D, Renon P (eds) Nuovi orizzonti del diritto alla difesa tecnica, Un itinerario tra questioni attuali e aperture del quadro normativo. Giappichelli, Torino, pp 133–182

63

Adorno (2015), p. 2189.

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Bargis M (2008) Testimonianza (diritto processuale penale). In: Enciclopedia del diritto, Annali, vol II (1). Giuffrè, Milano, pp 1097–1134 Calamanti A (1987) Il diritto di difesa tra favoreggiamento e patrocinio infedele. Giuffrè, Milano Camon A (2004) L’incompatibilità tra difensore e testimone. Giappichelli, Torino Ceresa-Gastaldo M (1988) A proposito del confine fra atto defensionale atipico e reato di favoreggiamento. Cassazione penale 1429–1433 Ceresa-Gastaldo M (2002) Le dichiarazioni spontanee dell’indagato alla polizia giudiziaria. Giappichelli, Torino Coppi F (1985) Difesa d’ufficio e autodifesa. Temi romana 1:1–20 Cordero F (2012) Procedura penale, 9th edn. Giuffrè, Milano Corso PM (1982) Sulla configurabilità di un obbligo del difensore di “concorrere a creare le condizioni di una sentenza giusta”. Cassazione penale 943–947 Crespi A (1952) La tutela penale del segreto. Pirulla editore, Palermo Dalia AA, Cimadomo D (1999) Difensore (diritto processuale penale). In: Enciclopedia del diritto, Agg., vol III. Giuffrè, Milano, pp 501–511 De Marsico A (1936) Lezioni di diritto processuale penale. Jovene, Napoli Di Bitonto ML (2015) Art. 197 c.p.p. In: Conso G, Illuminati G (eds) Commentario breve al codice di procedura penale. Cedam, Padova, pp 776–784 Di Martino C (1991) Prova testimoniale. II Diritto processuale penale. In: Enciclopedia giuridica Treccani, vol XXV. Istituto della Enciclopedia Italiana, Roma, pp 1–23 Dubolino P, Vigna PL (1989) Segreto (reati in materia di). In: Enciclopedia del diritto, vol XLI. Giuffrè, Milano, pp 1037–1098 Ferrua P (1988) La difesa nel processo penale. U.T.E.T., Torino Frigo G (1989) Difensore. In: Amodio E, Dominioni O (eds) Commentario del nuovo codice di procedura penale. Giuffrè, Milano, pp 605–663 Grevi V (1972) Nemo tenetur se detegere, Interrogatorio dell’imputato e diritto al silenzio nel processo penale italiano. Giuffrè, Milano Grevi V (2000) Diritto al silenzio dell’imputato sul fatto proprio e sul fatto altrui. In: Grevi V (ed) Alla ricerca di un processo penale «giusto», Itinerari e prospettive. Giuffrè, Milano, pp 203–233 Grifantini FM (2001) Il segreto difensivo nel processo penale. Giappichelli, Torino Maiorca CE (1980) Una occasione mancata: la sentenza della Corte costituzionale sul «rifiuto di difesa». Rivista italiana di diritto e procedura penale 188:1358–1374 Mazza O (2004) L’interrogatorio e l’esame dell’imputato nel suo procedimento. Giuffrè, Milano Morelli F (2017) Profili problematici del diritto di partecipazione del difensore nella fase delle indagini preliminari: dalle dichiarazioni dell’indagato alla prova scientifica. In: Negri D, Renon P (eds) Nuovi orizzonti del diritto alla difesa tecnica, Un itinerario tra questioni attuali e aperture del quadro normativo. Giappichelli, Torino, pp 1–33 Nobili M (1989) La nuova procedura penale, Lezioni agli studenti. CLUEB, Bologna Panzavolta M (2015) Art. 200 c.p.p. In: Conso G, Illuminati G (eds) Commentario breve al codice di procedura penale, 2nd edn. Cedam, Padova, pp 796–807 Patanè V (2006) Il diritto al silenzio dell’imputato. Giappichelli, Torino Presutti A (1997) Autodifesa giudiziaria. In: Enciclopedia del diritto, Agg., vol I. Giuffrè, Milano, pp 234–242 Pulitanò D (1984) Il favoreggiamento personale tra diritto e processo penale. Giuffrè, Milano Scaparone M (1981) Art. 24, comma 2 Cost. In: Branca G (ed) Commentario della Costituzione, Rapporti civili (Art. 24–26). Zanichelli, Bologna-Roma, pp 82–118 Scaparone M (2017) Procedura penale, 5th edn. Giappichelli, Torino Tonini P (2017) Manuale di procedura penale, 18th edn. Giuffrè, Milano Ubertis G (2008) Giusto processo (dir. proc. pen.). In: Enciclopedia del diritto, Annali, vol II (1). Giuffrè, Milano, pp 419–447 Voena GP (1989) Difesa, III Difesa penale. In: Enciclopedia giuridica Treccani, vol X. Istituto della Enciclopedia Italiana, Roma, pp 1–18 Zagrebelsky G (1979) L’autodifesa di fronte alla Corte costituzionale. Giurisprudenza costituzionale 24(1):855–869

Confidentiality of Correspondence with Counsel as a Requirement of a Fair Trial. . .

Case-Law Constitutional Court Judgment of 5 July 1971 No. 175 Judgment of 29 April 1975 No. 99 Judgment of 6 May 1976 No. 108 Judgment of 10 October 1979 No. 125 Judgment of 22 December 1980 No. 188 Judgment of 16 May 1994 No. 179 Judgment of 30 June 1994 No. 267 Judgment of 8 April 1997 No. 87 Judgment of 17 June 1997 No. 212 Judgment of 19 June 1997 No. 215 Decision of 18 December 1997 No. 421 Judgment of 19 June 1998 No. 229 Judgment of 28 July 2000 No. 394 Decision of 26 June 2002 No. 291

Court of Cassation A.M. et al., 3rd Section, 18 June 2014, www.DeJure.it Andreucci, Joint sessions, 20 July 2017, www.DeJure.it Arena, 6th Section, 18 June 2013, Cassazione penale (2014), p. 2118 Auricchio, 1th Section, 11 November 1980, Cassazione penale (1982), p. 940 Berruti, 6th Section, 18 October 1994, Rivista Polizia (1996), p. 443 B.L., 2nd Section, 30 March 2017, Diritto & Giustizia 26 April 2017 Catanoso, 5th Section V, 7 February 1986, Cassazione penale (1988), p. 1427 D.A.N., 2nd Section, 3 April 2017, Guida al Diritto (2017) (29), p. 93 De Gasperini, Joint sessions, 12 November 1993, Cassazione penale (1994), p. 2020 Fasano, 6th Section, 29 March 2000, Cassazione penale (2001), p. 1791 F.L., 6th Section, 21 March 2013, Cassazione penale (2014), p. 2509 Grassi et al., 4th Section IV, 28 June 2016, CED 26822801 Graviano, 5th Section V, 12 February 2003, Cassazione penale (2004), p. 907 Grollino, Joint sessions, 12 November 1993, Cassazione penale (1994), p. 2020 L.G., 3rd Section, 19 January 2017, Guida al Diritto (2017) (27), p. 50 M.A.M., 2nd Section, 9 December 2011, Cassazione penale (2012), p. 2999 M.C. et al., 6th Section, 15 April 2014, Cassazione penale (2015), p. 226 P.M. in proc. Ringressi, 6th Section, 20 January 2011, CED 249465 Rizzo, 6th Section VI, 24 February 2015, www.DeJure.it Schera, Joint Sections, 27 June 2006, Cassazione penale (2006), p. 3985 Sala, Joint sessions, 27 March 1996, Cassazione penale (1996), p. 3268 Sartori, 6th Section, 27 May 1986, Cassazione penale (1987), p. 301 S.M., 6th Section, No. 38516, 5 April 2007, Cassazione penale (2008), p. 3311 Trotta, 4th Section IV, 3 April 2014, Guida al Diritto (2014) (28), p. 82 Valentino, 6th Section, 18 May 2010, CED 247349 Z.D., 3rd Section, 10 November 2016, Diritto & Giustizia 14 marzo 2017

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Massimo Ceresa-Gastaldo is full professor of Criminal Procedure at Bocconi University of Milan. He teaches “Criminal Procedure” and “Criminal Proceedings and Corporate Liability”. He is a member of the Board of Directors of the Legal Professions Postgraduate School of the University of Pavia and Bocconi University. He has published extensively in the field of criminal procedure, focusing especially on the defendant’s personal freedom, rights and safeguards of the accused person, precautionary measures on property, criminal prosecution, appellate remedies, enforcement. One of the themes at the centre of his research activity is also the criminal trial on corporate responsibility. He is a member of the editorial boards of some prestigious scientific journals of criminal law and criminal procedural law. In 2016, he was a member of the ministerial commission for the reform of the legislation on corporate liability.

The Continuing Evolution of Right to Counsel and Confidentiality of Attorney-Client Communications in Japan Hiroki Sasakura

Abstract Japan was at the forefront in guaranteeing the right of defence when it enacted the current Constitution in 1946 and the Code of Criminal Procedure in 1948, achieving at least as a matter of law almost what today’s international standards require. The constitution and the CCP in its original version, however, lacked explicit guarantee of indigent suspects’ right to appointed counsel, and the protection of attorney-client correspondence in possession of clients. As other nations have caught up with Japan in 70 years since then, these flaws began to stand out, and the legislators eliminated the first flaw in the last 15 years. While the second flaw still remained, the law has been developing rapidly now, awaiting the promulgation of a new rule to implement the attorney-client privilege in a limited manner but the first ever in the history to address the second point. In this paper I will explain the current Japanese law on the right to counsel and illustrate the on-going development of the law regarding the protection of confidential communications with counsel. To help readers understand the Japanese law in a broad perspective, I will discuss in detail cultural and societal features that I believe have determined the Japanese way of criminal justice, and thus the long stagnation and the recent rapid development in the law and the practice of defence rights. Keywords Access to lawyer · Attorney-client communications · Attorney-client privilege · Confidentiality · Criminal defence · Criminal procedure · Exclusionary rules · Fair trial · Mandatory counsel · Public defender · Right of defence · Right to counsel · Search and seizure · Search of lawyer’s offices

Abbreviations CCP JFTC

Code of Criminal Procedure Japan Fair Trade Commission

H. Sasakura (*) Keio University Law School, Tokyo, Japan e-mail: [email protected] © Springer Nature Switzerland AG 2020 L. Bachmaier Winter et al. (eds.), The Right to Counsel and the Protection of Attorney-Client Privilege in Criminal Proceedings, Ius Comparatum – Global Studies in Comparative Law 44, https://doi.org/10.1007/978-3-030-43123-5_7

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1 Introduction Fair trial and the confidentiality of correspondence with counsel are core components of modern criminal procedure in civilized nations. National culture, however, understandably plays a role in the development of a country’s privilege law.1 This paper will describe the current Japanese law on the right to counsel and the protection of correspondence, with a brief description of the Japanese way of criminal justice, which I believe is an important determining factor in the development and the (seeming) retardation of the law. Japan took the lead in guaranteeing the right to counsel when it enacted the current Constitution in 1946 and the current Code of Criminal Procedure (CCP) in 1948 under the Allied Occupation after the defeat in World War II. The Allied Occupation sought to foster a vigorous adversary system and demanded basic changes in numerous aspects of Japan’s criminal justice system through the establishment of a broad set of constitutional protections as well as statutory revisions. As a result, all suspects and defendants enjoy the right to counsel, and all indigent defendants are entitled to have state-appointed and state-funded counsel. Anyone in custody has the right to meet with counsel (or prospective counsel) in person and in secrecy, and to exchange documents without government interference. Attorneys’ professional obligation of secrecy protects against state intrusion in criminal procedure almost all information and evidence entrusted to and retained by attorneys. The constitution and the CCP in its original version, however, lacked explicit guarantee of indigent suspects’ right to appointed counsel, and the protection of correspondence in possession of clients. The legislators eliminated the first flaw in recent years, while the latter remained as before. Only quite recently, however, expert panels of the government discussed the lack of the law on the latter point, and courts, legal scholarship, and legislators began to tackle the issue, which, in the end, though in a limited manner, has made the government decide to implement the attorney-client privilege. In the following chapters, I will explain the current Japanese law on the right to counsel and illustrate the on-going development in the protection of confidentiality of correspondence with counsel.

2 Right to Counsel in Japan: Overview 2.1

Right to Counsel

The Constitution of Japan provides that “[n]o person shall be arrested or detained (. . .) without the immediate privilege of counsel” (Art. 34 of the Constitution); “[a]t

1

Imwinkelried (2017), § 12.2.

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all times the [defendant]2 shall have the assistance of competent counsel” (Art. 37 para. 3 of the Constitution), and the CCP guarantees all suspects and defendants in custody the right to retain counsel at any time (Art. 30 para. 1 CCP). An indigent defendant also enjoys the constitutional right to “have the assistance of competent counsel who shall (. . .) be assigned to his use [and be financed] by the State” (Art. 37 para. 3 of the Constitution). The trial court appoints defence counsel on the request by the defendant.

2.2

Suspects in Custody

Indigent suspects in custody had not been entitled to the same right to appointed counsel as indigent defendants until 2004. Since it was not an explicit constitutional mandate and required huge funding, the legislators had been reluctant to implement such a right. This indifference might also be attributed to the fact that approximately two-thirds of identified felony suspects are never arrested or detained during investigation,3 not because the police were wrong in identifying the suspect, but because the detention was unnecessary.4 Although there were indeed a few aggressive lawyers who utilized as many legal weapons as possible to challenge investigations or incarceration, the major role of defence lawyers has been persuading public prosecutors, who have wide discretion in charging decision (Art. 248 CCP),5 to drop a charge or to seek summary procedure,6 pointing to such mitigating factors as

2 The English text of the provision, which derives from the first draft prepared by the Allied Occupation, mentions the right of “the accused”, whereas the Japanese text uses the word hikokunin, which undoubtedly means only the accused after indictment. The Supreme Court rejected the interpretation that the constitutional right to appointed counsel attaches before indictment, a reading asserted by some commentators and lawyers on the ground of the English text. Anzai v. Japan, Saikō Saibansho [Supreme Court], judgment, Mar. 24, 1999, Saikō Saibansho Minji Hanreishū [Minshū] 53:514 (Grand Bench). 3 When the police identified suspects and concluded investigation, they shall in principle refer every case to prosecutors regardless of the suspect’s guilt (Art. 246 CCP), and among the suspects who allegedly committed Penal Code offences and referred to prosecutors, only 36.5% were arrested (excluding cases involving negligence causing death or bodily injury by traffic accident). Hōmu Sōgō Kenkyūsho (2018), fig. 2-2-2-1. 4 The power of pretrial arrests and detentions can be exercized only upon probable cause for the alleged crime, and only to prevent either suspects’ fleeing or destroying, concealing or tampering evidence. This means even when the police or prosecutors can establish probable cause, the judge should reject arrest warrants or order the release of suspects unless the risk of flight or evidence tampering substantially outweighs the individual’s interests at stake. Note that investigators may ask suspects including those not arrested or detained to appear voluntarily in their offices and interview them anytime when necessary. Art. 198 para. 1 CCP. This “voluntary interview” is quite often utilized by investigators. 5 “Where prosecution is deemed unnecessary owing to the character, age, environment, gravity of the offence, circumstances or situation after the offence, prosecution need not be instituted.” 6 Summary courts can impose a fine of up to 1,000,000 yen without holding trial for offences falling in their jurisdiction. Art. 461 CCP.

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their clients’ reflection or remorse, or compensation to and forgiveness by the victims. This way of criminal defence lawyering which puts much importance on pleas for clemency is quite different from the one the Occupation intended 70 years ago. Some readers might not see this as a task appropriate for the legal profession. Indeed, in the past, criminal lawyering was the least popular area for practicing attorneys. It was quite natural, however, to forecast high potential demand for appointed counsel in the investigative stage, since approximately two-thirds of defendants in trial were represented by appointed counsel. There are of course cases that might require lawyers’ confrontational assistance to rebut the allegation or to challenge illegal or inappropriate investigations. Furthermore, more than 60% of all the cases were (and are) dropped by exercise of the public prosecutors’ wide discretion mentioned above,7 even though the prosecutors have substantial evidence that would secure conviction, whereas once prosecuted, 99.8% of defendants are found guilty.8 This means that the best defence strategy is to persuade prosecutors to drop the charge. To win the drop, attorneys’ commitment is crucial to devote time outside of just counselling the client in detention and to find or create persuasive mitigating factors. The potential demand caused all 52 local bars nationwide to implement a system of tōban bengoshi (attorneys on the duty roaster) around 1990, which enabled suspects in custody to consult with attorneys only one time, but free of charge.9 While this project turned out to be a success, with increasing numbers of consultations, it brought a funding crunch upon the local bars, which covered all the cost of the system without government funding. The tōban bengoshi system was on the edge of a cliff around the turn of the century. The deadlock was quickly broken. The overhaul of the judicial system in the first decade of the twenty-first century, although initiated by political pressure from economic leaders seeking a more business-friendly legal system in the age of globalization, resulted in many changes in almost all major areas of law. There were drastic changes in criminal justice including implementation of quasi-jury (saiban-in) in criminal trials. Taking this opportunity, criminal lawyers and human rights advocates managed to add the solution to the long overdue issue of suspects’ right to appointed counsel in the revision of the CCP. In justification for the suspects’ right to appointed counsel, the Judicial Reform Council, an expert panel commissioned by the parliament to design the reform, invoked the necessity for the defence

7

Hōmu Sōgō Kenkyūsho (2018), material 2-3. In 2016, 64.3% of the cases for which prosecutors have substantial evidence that would secure conviction were dropped by discretion. Id. 8 Saikō Saibansho Jimu Sōkyoku Keiji Kyoku (2018), p. 523 (fig. 99). Note that this figure includes non-contested cases; Japan has no arraignment system, thus all cases must go through adjudication, either by trials or by summary procedure. See Art. 319 para. 3 CCP (requiring corroboration evidence to convict defendants even when they plead guilty or confess in the courtroom). The acquittal rate rises to 3.5% when one limits the parameter to contested cases. Id. 9 When suspects wished to retain counsel after the meeting with a duty lawyer, they were able to apply for private legal aid, but most suspects chose not to do so.

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counsel to familiarize themselves with the accused’s case and the evidence well in advance of the trial, that is, in the investigation stage; otherwise attorneys would not be able to generate an effective defence in jury trials to be held on consecutive days, in contrast to a bench trial whose sessions used to be (and still are) scheduled every 2 weeks or a month or more apart.10 The new law giving indigent suspects the right to appointed counsel took effect in October 2006, and the scope of the right, first limited to suspects detained on the charge of offences punishable with minimum imprisonment of 1 year or more, was later expanded to suspects detained with offences punishable with maximum imprisonment of 3 years or more. The scope was expanded again on June 1, 2018 to cover all detained suspects (Art. 37-2 CCP). Suspects under pretrial arrest, which must be authorized by a judicial warrant unless falling under the constitutional exception for the apprehention of flagrant offenders (Art. 33 of the Constitution), and precedes pretrial detention and enables investigators to keep the suspect in custody for at most 72 h (arrest by the police) or 48 h (arrest by public prosecutors), are not entitled to appointed counsel. Although one can argue for the need of appointed counsel at this stage, the government takes the position that it is not feasible to assure all arrested suspects to have appointed counsel during the limited time of arrest, considering the time and steps necessary to screen the application and secure lawyers.11 Lawyers’ advice at this early stage might, nonetheless, be crucial. In order to fill this gap in the law, the local bars maintain tōban-bengoshi to meet the needs of suspects during arrest.

10

Shihō Seido Kaikaku Shingikai (2001), pp. 42–48. In fact, the saiban-in serves as “the linchpin that holds together a set of interrelated criminal justice reforms”. The council called for realization of “concentrated trials” (held on consecutive days), realization of the principles of “directness” and “orality”, and invigoration of the defence counsel. Introduction of the saiban-in system will necessitate concentrated trials; the participation of lay members will entail much greater reliance on live, in-court testimony than in the past, thereby presumably breaking the pattern of heavy reliance on written statements by witnesses, prepared by investigators or prosecutors. In turn, achieving concentrated trials with live testimony will require advance preparation by defence counsel as well as prosecutors, and courts’ enhanced ability of case management to facilitate preparation by the parties. Expanded pretrial discovery is important for facilitating advance preparation, and invigoration of the criminal defence system is vital to the success of the reforms. Foote (2007), p. xxxii. 11 Arrested suspects should go through booking procedure and be immediately given notice as to the nature of the charge and an opportunity to rebut it or explain their views (Art. 203 para. 1 CCP), a constitutional mandate to meet the due process requirement of notice and hearing (Art. 31 and 34 of the Constitution). The police then must decide whether to release or refer a suspect with evidence to the prosecutors within 48 h after arrest. The prosecutors then shall repeat the notice and hearing and have another 24 h within which to decide whether to release the suspect or go to court to seek a warrant for the suspect’s detention (Art. 205 para. 1 CCP). The government sees it difficult to fit the appointment process in this time frame. Note, however, that during this timeframe suspects can exercise their right to retain and meet with counsel.

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Appointment of State-Funded Counsel

For detained suspects a single judge who ordered the pretrial detention appoints defence counsel on application by the suspect just as, for defendants who have been charged, the trial court does so. Investigators shall notify the suspect of the right to appointed counsel immediately after arrest (Art. 203 para. 3 CCP), and the suspect can apply for appointed counsel pending the judge’s decision on public prosecutors’ motion for detention (Art. 37-2 para. 2 CCP). The judge selects and appoints counsel from the pool consisting of staff attorneys of, and outside attorneys retained on contracts by the Japan Legal Support Center, a government-funded agency established by a special legislation, one of whose main missions is to secure the pool of attorneys for such appointments. Detained suspects or defendants who wish to have appointed counsel should submit a report of their financial resources, a simple form easily filled in, to show that the amount they can afford falls below the limit set by the Cabinet order, i.e. 500,000 yen. If the amount exceeds the limit, suspects or defendants should first make a request to the local bar association to arrange defence counsel for them, and when such request fails, the judge or the court appoints counsel for them (Art. 37-3 para. 3 CCP). To ensure in-custody suspects’ exercise of the right to retained or appointed counsel, the police are obliged to inform them of the right immediately after the arrest. For defendants, the court serves a written notice of defendants’ right and an application form for appointed counsel together with a copy of the charging instrument.

2.4 2.4.1

Pretrial Right to Counsel During Preliminary Investigation The Law

Pursuant to Art. 39 para. 1 CCP, suspects in custody have the right to meet and consult with their attorneys without any investigating or jail officers being present. Each police station and detention centre12 is equipped with interview rooms

12

Detention centres are administered by the Ministry of Justice’s Correction Bureau. In practice, most suspects are detained in police cells, and when prosecuted, they are usually transferred to detention centres. Detention in police jails was once strongly criticized by criminal lawyers. Detectives could pull suspects out from the jail anytime they wanted to, which enabled harsh interrogations and brutality. In the mid-1980s, addressing this criticism, the police transferred cell keys from detectives to administration staff of police stations. The institutional separation of investigations and cell control worked well, and later became a legal mandate. Art. 16 para. 3 of the Act on Penal Detention Facilities and the Treatment of I. Act on Penal Detention Facilities and the Treatment of Inmates and Detainees.

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specially designed to accommodate suspects and lawyers alone, i.e. without any surveillance, while preventing fleeing, destroying or concealing of evidence or hindering custody.

2.4.2

The Right to Meet in Practice

The Supreme Court in Anzai v. Japan, a 2000 unanimous decision en banc, elaborated on the purpose and nature of this right as follows: “The purpose of the constitutional right to counsel [provided in the Article 34 of the Constitution] is to enable suspects in custody to receive such aid from attorneys in order to protect their freedom and rights as clearing themselves of suspicion with which they are charged, or taking measures to free themselves from custody. The [aforementioned] constitutional provision shall, therefore, be construed not only as forbidding the authorities from interfering [with] defendants’ hiring attorneys, but also guaranteeing suspects to have opportunity to appoint, consult with, receive advice and other aid [so that they can benefit from] substantial assistance by their attorneys. In this sense Article 39, paragraph 1 of the CCP [which guarantees the right to meet] derives from the constitutional guarantee of the right to counsel.” The CCP, however, provides that investigating authorities “may, when it is necessary for investigation, designate the date, place and time of the interview or exchange of documents or articles (. . .) only prior to the institution of prosecution; provided, however, that such designation shall not unduly restrict the rights of the suspect to prepare for defence” (Art. 39 para. 3 CCP). According to Anzai, the power of designation is a constitutionally reasonable compromise in a case where investigators and defence attorneys compete in gaining access to a suspect’s person. While the constitution recognizes the right to counsel, it also presupposes the state’s power to punish offenders and to conduct criminal investigations, including suspects interviews. Although the right to meet derives from the constitutional guarantee of the right to counsel, they are not absolute rights which always override the state’s power of criminal investigation. A reasonable balance should be struck between the right to meet and the need to investigate. Investigating authorities, accordingly, should in principle allow attorneys to meet their (potential) client anytime they wish, and investigators may exercise their designation power only in exceptional cases, that is, “when investigation is significantly hindered by such causes as interruption of custodial interviews [or such other investigations as requiring the suspects’ presence].” The Court went on to say that significant hindrance of investigation exists, for example, when investigators are conducting a suspect interview or a view of the scene with the attendance of a suspect at the time defence counsel requests the meeting, or when investigators have already finalized their schedule to conduct a suspect interview or other investigations in such a short time that rescheduling seems practically difficult. The court also stressed the need for investigators to confer with the attorney to arrange the meeting “as soon as possible” so that the suspects can exercise “the right to prepare for defence”.

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While in current practice, defence lawyers have usually been allowed to meet their clients anytime, in the past there were indeed some litigated cases where the police or public prosecutors substantially restricted the meeting, and it is once said that the meeting duration usually allowed was only 15 or 30 min. But the Supreme Court showed a clear stance for allowing freedom to meet, and now the designation power is exercised only in few cases. Defence counsel is almost always free to see their clients. The increasing number of appointed counsel representing suspects, and the trends towards more active defence lawyering than before are now causing “lawyers congestion” in urban areas’ detention centres, due to the shortage of facilities. In practice, however, defence attorneys are usually not allowed to be present in suspect interviews, confrontations, re-enactments or identification procedures. Although referring to the United Supreme Court’s ruling in Miranda v. Arizona,13 legal scholars and defence attorneys have argued for presence of counsel during suspect interviews,14 investigating authorities unanimously have rejected their cry. Moreover, investigating authorities construed the CCP as obliging suspects to endure interview even when the suspects assert their right to remain silent. In Anzai, the plaintiff argued that the investigative practice relying on this construction violates the constitutional privilege against self-incrimination, and thus the police should stop the interview once the suspects so requests, which renders the designation power unconstitutional. The Supreme Court ruled against this argument, holding that obliging suspects to appear to and stay in an interview room does not necessarily infringe upon the right to remain silent. According to the Court, unconstitutionally forcing suspects to confess and obliging them to endure an interview are different things, although the Court said nothing as to whether the CCP could be actually construed as imposing such obligation on the suspects in custody. Meanwhile attorneys shifted their assertion from demanding to be the present during suspect interviews and instead argued for audio and video recording of the interview. This change may look strange, but it makes sense because the attorneys’ assertion on the need to be present was primarily intended to prevent coercive interrogation, and not much focused on representation during interview. Prevention of coercive interrogation can be realized by recording. Public prosecutors began audio and video recording of custodial interviews in 2004 in their discretion, and the police soon followed. In 2016, the CCP was amended to legally mandate audio and video recording of custodial interview in cases to be tried by quasi-jury and in cases where investigation has been initiated by prosecuting attorneys. This amendment took effect on June 1, 2019.

13 14

Miranda v. Arizona, 384 U.S. 436 (1966). See, e.g., Nihon Bengoshi Rengōkai (2018).

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Interpretation and application of the right to meet with an attorney, and the attorney’s presence (or lack thereof) during suspect interview, offer a good illustration of how Japanese criminal justice relies on suspect interview and written statement procured thereby. We will return to this point later.

2.5

Mandatory Counsel

In addition, in cases punishable with maximum imprisonment of 3 years or more, the trial may not be convened without the attendance of counsel, and “[i]f the counsel has not appeared at court or is no longer present in court, or counsel has not been appointed, the presiding judge shall appoint counsel ex officio” (Art. 289 para.1 and 2 CCP). The purpose of mandatory counsel is not only to protect the defendants’ interests, but also to guarantee the fairness of the trial and thus the fair exercise of the state’s power to punish offenders. Defendants, therefore, are not able to waive the requirement for attendance of counsel, while the court can exceptionally hold the trial without the counsel in such extreme cases as where the court takes every effort to hold the trial with the counsel’s presence, yet it is still extremely difficult to secure the attendance due to the defendant’s intimidation or the counsel’s sabotage.15 The Supreme Court saw the ground for the exception not as the defendant’s waiver of the right, but as an inherent limitation of the mandatory representation by counsel. Mandatory counsel applies only to defendants pending trial. Judges may, however, on their discretion, appoint and require participation by counsel for detained suspects when they find it necessary as in the case of suspects who have difficulty in judging whether or not they need counsel due to mental disability or any other grounds (Art. 37-4 CCP).

3 Protection of Communications Between the Suspects or Defendants and Attorneys, and the Attorneys’ Professional Secrecy 3.1

The Law

3.1.1

Overview

As mentioned above, the protection given in current Japanese law is a combination of the protection of professional secrecy of attorneys, applicable against any

15

Nakagai v. Japan, Saikō Saibansho [Supreme Court], decision, Mar. 27, 1995, Saikō Saibansho Keiji Hanreishū [Keishū] 49:525 (2nd Petty Bench).

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intrusion by the government, and the right of counsel and clients to meet, guaranteed specifically in criminal procedure. The former derives from French and German law, two major models for Japanese law before World War II. The latter was strongly prompted by the Occupation to foster a vigorous adversary system, departing from the pre-war inquisitorial system, and is construed as a right bestowed to both attorneys and clients. This fusion of two sorts of protection deriving from different legal systems has left a gap in protection. Any products of attorney-client communications that are retained by clients have been left outside the scope of protection.16

3.1.2

Right of Suspects and Defendants in Custody to Meet and Consult with Counsel

“The defendant or the suspect in custody may, without any official being present, have an interview with, or send to or receive documents or articles from counsel or prospective counsel who wishes to be appointed by those who are entitled so to do” (Art. 39 para. 1 CCP). Although this provision looks like guaranteeing the right only to suspects and defendants, it is universally construed as giving the same privilege to defence attorneys as their koyû-ken or “inherent” right.

3.1.3

Professional Secrecy

The Attorney Act provides that “[u]nless otherwise provided by law, attorneys or former attorneys shall have the right and bear the duty to maintain the confidentiality of any facts which they have learned in the course of performing their duties” (Art. 23 Attorney Act). Breach of confidentiality is not only a ground for disciplinary proceedings by the bar, but also an offence punishable by up to 6-month imprisonment pursuant to the Penal Code (Art. 134 Penal Code), as is common in civil law countries. To enable attorneys to fully satisfy the duty of secrecy, the CCP provides that “attorneys (. . .) or any other person who was formerly engaged in (. . .) the profession (. . .) may refuse to give testimony on matters pertaining to the confidential information of others which they came to know through entrusted professional conduct” (Art. 149 CCP), and “may refuse the seizure of articles containing the confidential information of others which they have been entrusted with and retain or possess in the course of their duties” (Art. 105 CCP).17 Readers familiar with French or German law might find a fallacy in this explanation. Indeed, the gap in protection is not a necessary consequence of adopting a continental European concept of professional secrecy, and it should be easy to fill the gap by interpreting liberally either of the two mechanisms. 17 The Code of Civil Procedure has equivalent provisions (Art. 197 para. 1 no. 2; Art. 220 no. 4 (c)), and the code applies mutatis mutandis to administrative litigation (Art. 7 Administrative Case 16

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These protections, however, do not apply (a) “when the holder of the secret has given consent, or (b) “when the refusal is deemed to be an abuse of rights wholly for the interests of the accused (unless the person is the accused)” (Art. 134 and 139 CCP). While (a) looks quite natural as a ground of exemption, some scholars doubt (b), which excludes the cases where the accused is the holder of the secret, arguing that this exemption allows suspects or defendants to conceal evidence just by entrusting it to their attorneys, whereas the evidence would be seizable if in the possession of the suspects or defendants. Most commentators, however, accept this seemingly unfair consequence, noticing practical difficulty distinguishing reasonable expectation of secrecy and unreasonable exemption from criminal prosecution. Regardless of the position on the exemption (b), attorneys cannot assert the privilege when they themselves are suspects or defendants, while they still enjoy the protection as to evidence and documents bestowed by their clients. Unlike some other jurisdictions, no exceptions apply even to such cases as child abuse or terrorism.18 Japanese law equally gives the same protection to corporate or in-house lawyers as outside lawyers. Japanese law thus universally protects both communication in the process and the products thereof as long as they are retained by attorneys. Lacking in the current law is the explicit protection of contents of communication in the possession of clients, which has been a hot issue in recent years in lower court cases and legal literature. We will explore this issue later in this paper.

Litigation Act). Thus, the protection of professional secrecy can be invoked against any intrusion in civil litigation, administrative litigation, and criminal investigation and litigation. In administrative investigation, however, there are no explicit provisions guaranteeing the same right, although administrative agencies are said to consider the need of protection in practice. This gap in protection is only a part of the problem: Statutory strains on administrative investigation are surprisingly loose and vague, when compared with those on criminal investigation. 18 The government once considered obliging practicing attorneys to report suspected money laundering, but facing strong opposition from the bar, the government gave up the proposal. The law thus explicitly exempts attorneys from record-keeping and reporting requirement of suspicious transactions, deferring the implementation and application of necessary measures to the Japan Federation of Bar Associations. See Art. 4 para. 1, Art. 8 para. 1 and Art. 12 Act on Prevention of Transfer of Criminal Proceeds. The bar’s rule imposes the obligation of verifying their clients’ identity and keeping records of transaction with them, but no obligation to file a report to the authority. The rule instead requires attorneys not to assist or help money laundering. When suspecting money laundering by prospective clients, attorneys should refrain from being retained, and when detecting suspicious transactions after being retained, they should try to “persuade” their clients not to continue the attempt. If persuasion fails in the latter case, the rule instructs attorneys to resign.

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Lawyers’ Duty to Ascertainment of the Truth and of Loyalty to Their Clients Classical Views

According to the traditional view, defence attorneys have two obligations: the duty of loyalty to their clients, and the duty to ascertainment of the truth. A classic example of the conflict between the two obligations discussed for a long time is the case where defendants confess their guilt to the defence counsel but ask them to argue for acquittal. A typical answer, although leaving much to be discussed, is that defence counsel still can and should seek acquittal by such tactics as arguing insufficiency of the prosecution’s case or filing a motion to suppress illegally obtained evidence. No one admits the obligation to report of clients’ guilt to the court or investigating authorities. Such disclosure is universally deemed as against the attorney’s duty of secrecy. The duty to ascertainment of the truth thus forbids only intentional impediment of fact finding (passive obligation to the ascertainment of the truth19). If the defendant proposes to give admittedly perjurious testimony, defence counsel should not simply accept it, but rather persuade him not to do so, although attorneys should keep the secrecy to the court. When attorneys’ persuasion fails, they should resign.

3.2.2

The Theory of an Ellipse

Masao Ōno, a prominent defence lawyer working from late 1950s to early 1980s, who later served as an associate justice of the Supreme Court, explains this with his “theory of an ellipse”.20 He argues that the sphere of legitimate defence lawyering is not a round circle drawn around client’s will and interests at the centre, but rather an ellipse with two focal points: one is the trust between counsel and their clients, and the other is the responsibility as an “independent organ of the judiciary”.21 The ellipse drawn from these two focal points shapes the roles and ethics of defence counsel. Defence lawyers should bear in mind that the two focal points determine defence lawyering; otherwise attorneys will lose their foundation of existence as a profession. They are thus allowed when necessary to deviate from the focal point of loyalty and to lean toward the duty to ascertainment of the truth, although it does not mean they should reveal the false claim of their clients to the court. Criticizing the typical explanation, some commentators contend that attorneys should be “hired guns” of their clients, thus bear no obligation to ascertainment of

19

Art. 75 Bengoshi Shokumu Kihon Kitei [Japan Federation of Bar Associations, Basic Rules on the Duties of Practicing Attorneys]. 20 Ōno (1972), p. 52. 21 As some readers may easily guess, this concept derives from German law. See, e.g., Roxin and Schünemann (2014), pp. 114–119.

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the truth. According to this theory, defence attorneys may choose whatsoever defence tactics their clients themselves could employ, as long as they are not illegal. The “hired gun” theory is gaining substantial support among defence lawyers.

3.2.3

Case Law

As to the attorney’s duty of loyalty to his client, a 2008 case is illustrative, in which the defence attorney expressed in the closing argument his own opinion, different from the position of the client-defendant. The defendant, charged with three counts of kidnapping, murder, and abandoning victim’s corpse, from the beginning through the fifth day of the trial, maintained his admission as to the first and the third counts, while denying the intent of murder as to the second count. He changed his assertion, however, on the sixth day when the closing arguments had been planned, and denied partly his involvement to the kidnapping, and completely denied his involvement to the murder and the corpse abandonment. Having questioned the defendant on his new assertion on the seventh day, the defence attorney, in the closing argument on the eighth day, admitted the flaw of the defendants’ new assertion, maintained his initial defence case, and told the court that he believed altering the defence strategy at this stage in accordance with the client’s new assertion would amount to delinquency of his duty. The Supreme Court found no breach of the duty, acknowledging that the attorney sought the most favourable and reasonable explanation of the case in the light of the whole development of the trial and evidence presented. Justice Toyozō Ueda wrote in his concurring opinion that the court should defer to the attorney’s judgment on what will be of the defendants’ interest in view of the delicacy and difficulty thereof, and that expressing opinion against the clients’ position constitutes violation of the duty of loyalty only in extreme cases where it contradicts the basic role of the counsel as a participant in an adversarial trial, such as an assertion solely to condemn the client. Some commentators oppose Justice Ueda’s view, contending that the defendants’ position and the attorney’s arguments in this case were too distant to ignore. They fail to note, however, that the court should inevitably look into the “internal relationship protected by the duty of secrecy” and the right to secret communication to find out if the attorney’s assertion breaches the duty of loyalty. To avoid this grave infringement upon the cornerstone of the right to counsel and the adversary system, one should limit the breach to such clear and apparent cases as the one Justice Ueda mentioned. Another case showing the nature of the duty of confidentiality is a 2003 case,22 that dealt with disclosure of a patient’s secret by a physician. Since physicians and attorneys are obliged to the same duty of confidentiality under the Penal Code and are entitled to the right to refuse testimony based upon the same provision of the

22

Shimagata v. Japan, Saikō Saibansho [Supreme Court], decision, July 19, 2005, Keishū 59:600 (3rd Petty Bench).

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CCP, the ruling should also apply to attorneys. In this case, an ER physician informed the police of the fact that suspecting possible self-mutilation he analysed the patient’s urine sample and detected an illegal stimulant. The police seized the urine pursuant to a judicial warrant issued by a judge based on the information from the physician. The Supreme Court held that the doctor did not breach the duty of secrecy in providing information to the police. Thus, attorneys can and should choose of their own accord between handing incriminatory evidence and information to the police, or invoking their right to refuse seizure or testimony. This is because the right to refuse seizure or testimony is not of clients, but of attorneys, that is, although there are dissenting views, the purpose of the right of secrecy entitled to attorneys (and physicians) by the CCP is not to protect a particular client’s interests in a particular case, but to protect the profession and clients as a mass. On the other hand, French and German law, sharing the concept of professional secrecy, now protect correspondence retained by clients, and thus the Japanese interpretation is not the only logical consequence from the concept of professional secrecy. While most commentators had supported a per se rule deferring to attorneys’ decision to disclose, the Supreme Court’s ruling seems to take the position that whether the disclosure can be justified should be determined by balancing competing interests in light of all of the individualized circumstances of each case.

4 State Intrusion into the Confidentiality of Attorney-Client Communications 4.1 4.1.1

The Privilege Overview

As already noted, attorneys enjoy the right to refuse revealing any information conveyed by their clients. In addition, communication in the process is protected against state intrusion. Not explicitly guaranteed is the protection of the contents or products of communication that are in the possession of clients. Since the lack of the protection is not unique to criminal procedure, and is common with civil procedure and administrative procedure, discussion regarding privilege can be found not only in criminal procedure, but in other areas of the law. Indeed, the privilege has been most vigorously debated in competition law.

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Criminal Procedure

In the notorious Shibushi election violation case, where 13 defendants were prosecuted for attempting purchase votes, and all acquitted, a public prosecutor interrogated suspects and managed to extract from them the content of the communication during their meetings with counsel and recorded it in the form of written statement. Kagoshima District Court held that the right to meet with counsel “without any official being” does not only forbid investigators’ presence during the meeting, but also guaranteed the attorney’s inherent right to keep confidentiality of the communication after the meeting, and thus it was illegal for the prosecutor to extract the contents of the communication, because such an act entails a chilling effect on free communication.23 Osaka High Court took a different position in a case where investigators searched the cell of a detained defendant pursuant to a judicial warrant, and seized unsent drafts of letters addressed to his counsel.24 The court concluded that the seizure was illegal, but rejected the plaintiff’s argument that it was per se illegal to seize correspondence between suspects or defendants and counsel. According to the court’s holding, courts should strike the balance between the need of the seizure and the clients’ interests when deciding whether to allow the seizure, considering such circumstances as the nature and degree of the offence, evidentiary value and importance of the item seized, possible loss of the item, and degree of the cost suffered by the client. The criteria employed here was established by a celebrated Supreme Court decision in 1960s, applying the principle of proportionality in regulating search and seizure.25 Although the criteria have been generally supported in legal literature and practice, it is a general rule applicable to all sorts of searches and seizures, thus it is not specifically tailored to acknowledge the constitutional status of the right of defence. The difference in the Kagoshima and Osaka decisions might be attributed to whether one can find a text supporting per se prohibition of intrusion in the CCP. While it looks relatively easy to derive the protection of attorney-client conversation from the right to communicate without any officials present, the protection of tangible letters might look difficult to draw from the text simply guaranteeing the right to send or receive documents or articles. In the light of the purpose of the protection, however, one can hardly find any justification for distinguishing the two. While there may be technical difficulties sorting out those communications protected and those not, it is an issue that should be addressed squarely and the technical difficulties should not be utilized as a ground to reject a per se rule.

23

Kagoshima Chihō Saibansho [Kagoshima District Court], judgement, Mar. 24, 2008, Hanrei Jihō [Hanji] 2008:3. 24 Ōsaka Kōtō Saibansho [Osaka High Court], judgement, Apr. 22, 2016, Hanji 2315:61. 25 Saikō Saibansho [Supreme Court], decision, Mar. 18, 1969, Keishū 23:13 (3rd Petty Bench).

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Civil Procedure

The Code of Civil Procedure provides almost the same safeguards as the CCP, lacking explicit protection for attorney-client communications. Some commentators, however, construe the current civil procedure code as allowing a client possessing the document containing attorney-client communication to invoke the attorney’s right to professional secrecy.26 They note that the language of the relevant provision can be read as exempting such documents regardless of who possesses them.27 While the interpretation sounds plausible, it has not attracted much support. In February 2016, the Japan Federation of Bar Associations issued a proposal to amend the Code of Civil Procedure to adopt the attorney-client privilege.28 Although the proposal is based on thorough survey on the law and practice in foreign jurisdictions and detailed discussion on pros and cons of the privilege, it has received little attention so far.

4.1.4

Competition Law

The debate in competition law dates back to around 2005, just after the leniency program was introduced to encourage undertakings to cooperate with the competition authority. Since then the discussion had continued till recently, and most notable was the final report of an expert panel convened in 2014 by the Minister of State in charge of economic strategies to discuss appropriate measures to ensure sufficient rights of defence in anti-trust investigation by the Japan Fair Trade Commission (JFTC), an entity responsible for enforcement of the Antimonopoly Act. Its final report, published in December 2014, boasting itself as the first detailed contribution to the issue, concluded that “it is not appropriate to introduce the attorney-client privilege at the present stage, since the justification and scope of the privilege are neither clear nor could it dispel concerns that the fact-finding ability of the JFTC would be impeded by the privilege”.29 Business lawyers on the panel argued for the privilege asserting that it would enable a company to candidly consult with its attorney, which would lead to more sound legal advice and greater compliance with the law; the privilege would facilitate a company’s ability to conduct effective internal investigations, which would contribute to early detection of violations and greater self-reporting to the 26

Itō (2000), pp. 426–427. Article 220 (i)(a) of the Code of Civil Procedure exempts documents containing fact covered by the duty of secrecy from the general obligation to submit documents on the motion of the adverse party, and the provision does not mention who the possessor of the document should be. 28 Nihon Bengoshi Rengōkai (2016), https://www.nichibenren.or.jp/library/ja/committee/list/data/ attorney-client_privilege/final_report.pdf. 29 Advisory Panel on Administrative Investigation Procedures under the Anti-Monopoly Act (2014), pp. 22–23. 27

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competition authority; denying the privilege in Japan might deprive undertakings of the protection that they could otherwise assert in other jurisdictions, which would discourage their self-reporting to and cooperation with the Japanese authority. The majority members of the panel, however, opposed or at least were reluctant to introduce the privilege, contending that the attorney-client privilege would be abused since the competition authority lacked the discretionary sanctioning powers necessary to encourage cooperation and to dissuade undertakings from unfairly impeding the JFTC’s fact-finding process, and there was no evidence showing the privilege would yield greater compliance. In addition, some members insisted that unlike in the United States and Europe, Japan lacked cultural background supporting the belief that a societal interest exists in respecting the attorneyclient privilege. In sum, while business lawyers in the panel strongly argued for the attorney-client privilege, and the panel admits the merit of their argument,30 they could not defeat a simple but powerful notion, represented by an assertion of consumer rights advocates, that the privilege only serves to conceal wrongdoings. Simply put, a sort of “if you did nothing wrong, you have nothing to hide” argument dominated the discussion.31 Meanwhile, just before the 2014 panel was convened, courts addressed the issue for the first time in JASRAC v. JFTC. The JFTC obtained in its administrative investigation many documents containing legal opinions of attorneys retained by JASRAC, the largest music copyright collective in Japan. Another licensing authority, competing with JASRAC, then filed a petition to the JFTC requesting copies of the documents for use in a possible civil litigation against JASRAC, and the JFTC granted the petition. Opposing the grant, JASRAC filed a suit in the Tokyo District Court, and sought to vacate the grant, arguing the disclosure would violate the attorney-client privilege. In its 2013 judgement, the Tokyo District Court rejected the claim, holding that privilege was not recognized by the current positive law, nor was recognized as a conventional right supported by the consensus of the people.32 The Tokyo High Court upheld the ruling.33

30

For a concise overview of the panel’s discussion, see Yabuki and Hammond (2015), pp. 114–117. Yabuki, a leading competition lawyer and a member of the panel, expresses his “disappointment” with the panel’s decision. 31 A member representing a national consumer organization explicitly put forward this argument. Kōno (2014), pp. 1–2. Although other members taking negative attitudes toward the privilege, most of whom were legal scholars allying themselves with the competition authority, were not so straightforward and rather showed some hesitation or reservation, they apparently shared her views. 32 JASRAC v. JFTC, Tokyō Chihō Saibansho [Tokyo District Court], judgement, Jan. 31, 2013, Shōmu Geppō 60:546. 33 JASRAC v. JFTC, Tokyō Chihō Saibansho [Tokyo District Court], judgement, Sep.12, 2013, Shōmu Geppō 60:613, appeal dismissed and petition for acceptance of appeal denied, Saikō Saibansho [Supreme Court], decision, Apr. 28, 2015, Kosei torihiki iinkai shinketsushū 62:453 (3rd Petty Bench).

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Some readers might see in the discussion so far a sort of primitiveness and backwardness of Japanese law, but one should note that it is difficult to introduce the privilege only in the competition law. A single anti-trust case may conceivably lead to an administrative litigation between the JFTC and the undertaking, a civil lawsuit seeking compensation for consumers or competitors suffering damage by the violation, or criminal prosecution for the violation. If the protection differs depending on the area of law, many confusions will inevitably arise. The privilege should, in its nature, be a principle that could be asserted against all sorts of disclosure pursuant to the law. This sort of revision affecting the whole legal system naturally requires detailed and deliberate consideration and is beyond the agenda of the panel commissioned to review the JFTC’s administrative procedure. The debate resurged when the competition authority begun considering implementation of a new leniency program, that would allow for discretionary sanctioning power to impose flexible administrative fines on competition law violators depending on the degree of their cooperation. A new panel, convened by the competition authority revisited the issue. According to its report published in April 2017, the panel found no evidence showing that undertakings had actually refrained from consulting attorneys in the fear of unintended disclosure of the communication or suffered from disadvantages in discovery in foreign jurisdictions.34 The panel, nevertheless, expected increasing demand for consultation with attorneys under the new leniency program, and went on to say that to encourage undertakings to apply for leniency, it was appropriate for the JFTC to “take care” of the confidentiality of the correspondence as far as whose contents related to the use of the new leniency program, as long as the fact-finding ability of the JFTC should not be impeded. This time, however, not only competition lawyers, but also some members of the National Diet showed their support for the privilege, demanding that the privilege should be included in the new law. Succumbing to the pressure from those legislators, the competition authority, unwilling to adopt the privilege as a right, forwent the submission of the bill to the Parliament, but in the end, yielded to the legislators. The parliament passed the bill on the flexible leniency program in June 2019, on the understanding that the fair trade commission would promulgate a new rule and a guideline guaranteeing the privilege for the first time ever in the history of Japanese law, although the government deliberately avoids using the word of “privilege” and instead refers to it as “the so-called attorney-client privilege,” or “the system to protect certain attorney-client communications.” This phrasing implies the government’s position that the protection to be afforded is not a legal right but only a consequence of the competition authority’s self-restraint in exercising its powers. The competition authority will release a draft rule and guideline to invite public comments. While their drafting is reportedly taking longer than expected and their provisions are not yet made available to the public as of the time of this article’s

34

Dokusen Kinshi Hō Kenkyūkai (2017), pp. 50–52.

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completion (August 2019), the authority has announced the gist of the rule as follows35: a) The commission will establish a “system” where investigators will not access documents containing confidential communications between enterprises and attorneys as long as they relate to legal advice on unreasonable restraint of trade, “if certain conditions are confirmed to be met pursuant to prescribed procedures”. b) The privilege is designed to enhance voluntary reporting by enterprises under the new leniency program, and will accordingly be applicable only to communications discussing possible violation against the restriction of unreasonable restraint of trade. The privilege can be invoked only in “administrative investigation procedures regarding cases involving unreasonable restraint of trade”; criminal investigations “are out of scope”. c) The privilege will protect documents containing confidential communications between an enterprise and its attorney regarding legal advice on unreasonable restraint of trade and exchanged between the enterprise and the attorney, reports stating the legal advice based on the internal investigation performed by the attorney, and minutes of internal discussion with the attorney on legal advice at an internal meeting attended by such attorneys. d) The enterprise cannot invoke the privilege to shield “[p]rimary materials or fact finding materials”, that is, “documents indicating facts forming the basis of confidential communications”. In addition, “documents stating legal advice not related to unreasonable restraint of trade are not protected”. e) The enterprise should assert the privilege when ordered by the commission to submit documents. To be protected the documents must have been adequately treated by the enterprise, which treatment shall be evidenced by the title of the document, place of storage, and maintenance of confidence. The enterprise shall submit to the commission in a timely manner the list stating the creation date and time, preparer, sharers, attributes and the summary of each document. f) Upon the assertion of the privilege, field investigators will envelope and seal the documents and refer them to a “determination officer”, who does not belong to the administrative investigation department of the commission. The determination officer shall confirm whether the object satisfies the conditions for inclusion within the scope of this system. g) The privilege can be invoked only against the order of document submission; it is not applicable to compulsory (rarely used in practice) or voluntary interviews. The commission will, nevertheless, provide in the guideline that investigators shall not put questions regarding contents of the protected documents. h) Abuse of the privilege will be punished pursuant to the existing provisions prohibiting interference of the commission’s investigations.

35

Japan Fair Trade Commission (2019), attachment 2, pp. 1–4.

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i) While screening by the determination officer cannot be litigated, the enterprise can file a motion to the commission to quash or a legal suit with the court to revoke the order of submission. j) The “system” will cover in-house lawyers as long as it is evident that they left the chain of their employer-enterprise’s command once they realised a possible violation and since then have been working independently on the case.

4.2

Protection Against “Rummaging” Search

No specific rules exist as to the search of attorneys’ offices, but several safeguards applicable to search and seizure in general work effectively against rummaging searches of law offices. The constitutional requirement of judicial warrant particularly describing the place to be searched and things to be seized works as a restraint against rummaging searches (Art. 35 of the Constitution,36 Art. 219 para. 1 CCP). The provision is the same as the Fourth Amendment of the United States Constitution, after which it was modelled, and its primary purpose is to prevent a broad “fishing expedition” type of search. A search extending beyond the scope necessary to find the things named as targets of search in the warrant is illegal. Investigators must show a judicial warrant to the attorney whose office they wish to search. The attorney can thereby learn which items are sought and for what offence the search will be conducted and can assert the privilege to render the search illegal as far as the evidence falling within the privilege is concerned. In addition, Japanese law does not adopt the “plain view” doctrine used in the United States, or the exception of finding by coincidence (Zufallsfunde) as in Germany. The lack of these exceptions makes it difficult for investigators to use a legitimate search as a pretext to rummage. Those affected by the seizure can move to the court to quash the seizure and seek the return of the seized evidence (Art. 430 CCP).37 Article 35 of the Constitution provides that “[T]he right of all persons to be secure in their homes, papers and effects against entries, searches and seizures shall not be impaired except upon warrant issued [in advance] for adequate cause and particularly describing the place to be searched and things to be seized, or except as provided by Article 33” (para. 1); “Each search or seizure shall be made upon separate warrant issued by a competent judicial officer” (para. 2). This “warrant requirement” obviously derives from the Fourth Amendment of the United States Constitution, but is more stringent than the original. 37 Japanese law lacks, however, legal tools regulating the examination and use of the seized evidence. Once investigating authorities acquire evidence, they can examine and utilize it for any investigative purpose as long as the use afterwards conforms with the principle of proportionality and loose restriction imposed by the general personal data protection law. In other words, while Japanese law rejects the plain view exception at the stage of securing evidence, the equivalent applies once investigators seized the evidence. This lack of “use restriction” might cause serious problems, especially to electronic devices which can contain huge amounts of irrelevant or privileged information. The legislators tried to address the issue and established a new subpoena36

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One notable thing is that one can find no reported cases as to the search of a lawyer’s office, and hence one can find only few discussions in legal scholarship. This does not mean, however, that the police or public prosecutors have never searched law offices.38 What this means will be explored in the last chapter.

4.3

Interception of Confidential Communications Between Lawyer and Client

The Act on Interception of Telecommunications in Criminal Investigations explicitly forbids wiretapping conversations between clients and their attorneys over the phone or via the internet so long as they relate to entrusted professional conduct. There is no legislation explicitly allowing “bugging” in general, and when one reads a recent Supreme Court ruling negating the police use of a GPS monitoring device without explicit authorization by parliamentary law and without a judicial warrant,39 it is natural to conclude that any bugging of conversations in private dwellings or private offices by the police is illegal. E-mail servers used by lawyers, or other stored e-mail or phone messages, may be searched pursuant to judicial warrant, but lawyers can assert the non-seizure privilege to hinder or limit the scope of the search.

4.4

Attorney-Client Communications at Trial

Detained defendants and their counsel are able to communicate freely and confidentially with each other anytime after the institution of public prosecution (investigating authorities’ designation power, discussed above, applies only to the pretrial investigation stage, Art. 39 para. 3 CCP). Lawyers can speak freely and confidentially with defendants before the trial, during court sessions and recesses, and between court days. One practical obstacle to free communication during court sessions was seating in the courtroom. At trial, prosecuting attorneys and defence counsel sit before the judges’ bench along either side of the courtroom, facing each other, and in a

like method that enables investigators to access only relevant information sorted out by the custodian of the computer system (Art. 218 para. 2 CCP). 38 Quite recently, in a high-profile price-fixing case, prosecutors raided a construction company, searched the company’s legal section, and seized conversation memos prepared by its defence attorneys and PCs the company’s in-house lawyers used. Attorneys for the company were reported to submit a protest note to the prosecutors, which was such an unusual, confrontational posture that attracted people’s attention to the issue, probably for the first time in Japan. Murayama (2018). 39 Iwakiri v. Japan, Saikō Saibansho [Supreme Court], judgement, Mar. 15, 2017, Keishū 71:13 (Grand Bench).

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traditional practice, defendants sat on a seat located just near the bar with their backs to the spectators, or just in front of the counsel’s table. Jail officers sit on both sides of the defendant. These ways of seating, especially the latter (with the defendant in front of the counsel’s table), may hinder free and timely communication between attorneys and defendants. The situation has recently changed. When the quasi jury was implemented, the defence bar urged the court to change seating customs, for the following two reasons. First, the seating hinders timely communications, and, second, the latter way of seating might cause lay participants, sitting on the bench together with professional judges, to look down upon the defendant, which might cause a feeling of conducting inquisition similar to pre-modern criminal procedure. Most courts agreed with the bar’s claim, and now defendants usually sit just next to their attorneys at the same table.

4.5

Exclusionary Rules and Nullities

Although no disputed case has been reported as to the admissibility of privileged information of attorneys and clients, and there is no literature discussing the issue in detail, a widely accepted view is that evidence gathered against the proper assertion of the privilege is per se inadmissible. This conclusion is based on the nature of the protection as an evidentiary privilege, and thus not on the theory of nullity as in some civil law jurisdictions. Besides that, the exclusionary rule of illegally obtained evidence, and the fruits of the poisonous tree doctrine also apply. The exclusionary rule, however, excludes only evidence “gathered in a manner with such grave illegality as tantamount to ignoring the spirit of the warrant requirement”, and “when it is improper to admit such evidence in view of deterring similar illegal conducts in the future”.40 No disputed case involving infringement of attorney's privilege has reached the Supreme Court yet, and thus it is not clear whether its violation constitutes such grave illegality that requires the exclusion of the evidence. Infringement of the privilege will not lead to the dismissal of the case. The case law is generally reluctant to dismiss the case on the grounds of illegal investigation or abuse of the prosecution power.41 The same should be true as to the infringement of the privilege, although the possibility of dismissal still remains as to grave illegality that is tantamount to deprivation of the right to defence or the right to counsel. 40

Hashimoto v. Japan, Saikō Saibansho [Supreme Court], judgement, Sep. 7, 1978, Keishū 32:1672 (1st Petty Bench). 41 The Supreme Court once suggested that abuse of prosecutorial power might result in dismissal in only such extreme cases where the abuse in itself would constitute an offence, which is a virtual impossibility in practice. Japan v. Kawamoto, Saikō Saibansho [Supreme Court], decision, Dec. 17, 1980, Keishū 34:672 (1st Petty Bench).

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5 Why Was There No Privilege in Japan for a Long Time, and Why Has the Law Begun to Change? 5.1

Three Determiners

Historically, the attorney-client privilege in Anglo-American law has developed as a counterweight to the expansion of discovery and disclosure. Although the Japanese civil procedure code now has a somewhat similar system, its use has been far less and its scope is more limited than Anglo-American discovery. Thus, the absence of the broad discovery provides a rationale for the negation of the privilege under current Japanese law, but only in part. Since criminal investigators have extensive tools to gather evidence, and administrative agencies including the competition authority have powers to question and inspect documents and premises, the privilege should have been reasonably developed and recognized, setting aside exactly how far it should have gone. What helps to fill the gap in explanation is, I believe, Japanese lawyers’ attitude when facing the government. Ryūichi Hirano, a prominent criminal law scholar, once described the Japanese way of criminal justice and the usual stance of defence counsel as “relying and depending on information and evidence gathered and presented by the government, and only complaining about them on the premise that the government must be perfect”.42 In this sort of “judicial culture” lacking adversarial or confrontational mentality on the side of counsel, one can hardly expect commitment of defence counsel to the expansion of defence rights. The second and perhaps the most powerful determinant is the feature of the Japanese criminal justice, described as seimitsu shihō or “minute justice” in a treatise published in 1979 by Kōya Matsuo, another leading criminal law scholar with rich knowledge of history and broad perspective of comparative law.43 As he illustrates, criminal investigations are conducted far more thoroughly and exhaustively than in other jurisdicitons. Custodial interviews are carried out to the maximum as far as it is not clearly inconsistent with fairness of the process. Public prosecutors usually institute prosecutions based on as much evidence as possible to gather, and only when they are confident of defendants’ guilt. In criminal trials, written statements made during investigations are quite often admitted either on the consent of the defence, or on the ground of witnesses’ loss of memory or inconsistency between in-court testimony and written statements. These features may well be described as “minute justice”. For better or worse, Japanese criminal procedure boasts and sticks to precision and meticulousness. While the conviction rate of 98% astonishes foreign observers, it is indeed a proof of accuracy and precision of Japanese criminal justice, one of whose essential pillars is zealous pursuit of the whole truth by all the parties and persons involved. Even

42 43

Hirano (2005), p. 199. Matsuo (1999), pp. 15–16.

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defendants sometimes do not hesitate to express their preference to “minute justice”, recollecting their satisfaction out of thorough inquiry into the facts by the court, or demanding joint trials with accomplices insisting on finding “the whole and single truth”. In this way of criminal justice, obtaining a confession signifies more than just getting the suspect to admit to having committed the crime. It entails obtaining a thorough account of all relevant details of the crime and the personal background and circumstances of the suspect, including possible involvement in other crimes. The Anzai case illustrates how heavily Japanese criminal justice relies on the interviews of suspects. Investigators can make attorneys wait outside the interview room while the interview continues, although investigators have to accommodate a meeting as soon as practicable so as not to unduly restrict the rights of the suspect to prepare for defence. One can easily find a residue of this thought in the discussion of the experts’ panel over the “attorney-client privilege”. Assertion of the privilege which may hinder the ascertainment of the truth is against the virtues shared by all participants in criminal justice. Although the privilege against self-incrimination and other evidentiary privileges, and the warrant requirement surely curb investigation, they are all recognized by the positive law, that no one can ignore. Protection of the attorneyclient correspondence, as far as it falls outside the protection of professional secrecy and the right to meet, tends to be regarded as a problem of policy, and thus it is not easy to overcome the primitive but strong “nothing to hide if you did nothing wrong” argument. Matsuo concedes that there is a risk entailed by the minute justice, that is, natural tendency of the “minute justice” to lean toward the “ascertainment of the truth”, and moving away from the “fairness of the process”. He stressed the need to counterbalance this tendency. His caution holds true still today, 30 years after its first appearance. The third factor is the “benevolent paternalism” of the Japanese criminal justice.44 The Japanese criminal justice is usually benign to offenders. Almost two-thirds of identified felony suspects are never arrested pending investigation and adjudication; public prosecutors, exercising their wide discretion, drop charges against two-thirds of the felony suspects whose guilt they believe could be established in court, and the reflection or remorse of offenders are among key factors in charging decisions. Sentencing is also benign; it tends to accumulate to the lower half of the wide statutory range. In addition, courts suspend more than half of the imprisonment. Prison practice sticks to the rehabilitation model; military style discipline and prison labour are sometimes criticized as barbarian or uncivilized by foreign observers, but they are intended to foster offenders’ self-discipline, enhance their motivation to work, and to help their rehabilitation and reintegration. One can attribute heavy reliance on confessions to this point, along with the aforementioned emphasis on the “truth”. Obtaining a confession also means getting offenders 44

Foote (1992).

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to accept moral responsibility, which has long been deemed by the police and prosecutors (and by the general public) to be the first step towards resocialization of offenders. In this way of justice, a “win at all costs” mentality does not prevail; rather, the usual stance of defence counsel naturally tends to be cooperative, constructive, and conciliatory. The primary duty of defence counsel in Japan has been to obtain the most lenient treatment possible for a client. Asserting defence rights vigorously might hinder achieving this aim. There have been, of course, lawyers who have taken aggressive and confrontational tactics, but they are exceptions and sometimes motivated by ideological beliefs that have made the defence even hostile to the courts and prosecutors. Such examples have made the courts and prosecutors fear that the expansion of rights to defence might disturb the existing balance.

5.2

Changing Practice

The minute, benevolent, and paternalistic criminal justice has, however, occasionally caused undue investigations, and harsh interrogations. Some notorious cases of harsh interrogations ending with acquittal triggered the criminal justice reform in 2016, resulting in legal mandate of the audio-visual recording of suspect interviews. As evidenced in this legislation, the current system lacks transparency because it depends on broad discretion vested to authorities. In addition, the benevolent justice will not work as expected when suspects or defendants refuse paternalistic treatment, which cases are increasing as even in relatively homogeneous Japan the people’s values are diversifying and their awareness of rights are expanding. One should also not overlook the fact that the benevolent or paternalistic feature means nothing to innocent suspects or defendants. At the turn of the century, the expert panel of the cabinet, when proposing in its final report the overhaul of the judiciary, including lay participation via the quasi jury, stressed that the people in their mind should outgrow the premise of being governed objects, instead should regard themselves and act as governing subjects, so that they bear social responsibility to commit themselves to building a free and fair society. Now Japanese lawyers, especially younger generations, are moving away from the old way of defence lawyering, and do not hesitate to use legal weapons they have, and to take confrontational tactics as far as doing so is necessary and will be in their clients’ interest. Courts and prosecutors have also begun to accept such tactics. Indeed, the gradual shift in the attitude of the traditionally conservative courts towards the liberal side is shown in the decreasing pretrial detention rate, increasing bail rate, and courts’ increasing preference for in-court statements as evidence instead of written statements secured by investigators. In fact, reported cases regarding the protection of correspondence mentioned above show that now defence attorneys are fighting for defence rights, and courts have begun to accept their arguments at least in part.

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Furthermore, Japan is now witnessing a change that might influence the way of criminal justice. As mentioned earlier, the competition law introduced leniency program, a kind of bargain justice, in 2004. This was a breakthrough in Japanese law, because lawyers and the public had long been generally reluctant to adopt “bargaining” in law enforcement by the government. Indeed, in the high-profile Lockheed bribery case, the Supreme Court45 excluded testimonies of alleged bribers taken under a grant of immunity, holding that it touched upon the people’s sense of fairness, and thus required explicit authorization by parliamentary law to adopt.46 At the turn of the century, the judicial reform council, while proposing many changes including the introduction of the quasi jury, refrained from putting forward grants of immunity. Thus, only 10 years ago, the leniency program in competition law was an anomaly. The grant of immunity and plea bargaining, however, was finally implemented in criminal procedure in June 2018 for white-collar crimes, along with the audio-visual recording of suspects interviews, that became a legal mandate in June 2019. This means people’s attitude toward bargaining has changed in just two decades. The concept of leniency in return of cooperation with the authority has now gained legitimacy. This change also implies the possibility of a shift in Japanese lawyers’ preference from cooperative, constructive, and conciliatory defence lawyering seeking informal, paternalistic, and benevolent treatment by discretion to adversarial lawyering seeking formal and transparent solutions, utilizing legal weapons on deliberate calculation of gains and losses, and resorting to clear and explicit rules. This might transform at least some of the factors mentioned earlier that cause the negation of the attorney-client privilege. And when that happens, the attorney-client privilege can overcome the “nothing to hide if you did nothing wrong” argument. In sum, the privilege is a touchstone of the Japanese way of criminal justice.

References Advisory Panel on Administrative Investigation Procedures under the Anti-Monopoly Act (2014) Report issued by the Advisory Panel on administrative investigation procedures under the AntiMonopoly Act. https://www8.cao.go.jp/chosei/dokkin/finalreport.html (translation by the Cabinet Office). Accessed 30 Aug 2019 Dokusen Kinshi Hō Kenkyūkai [Study Panel on The Anti-Monopoly Law] (2017) Dokusen Kinshi Hō Kenkyūkai hōkokusho [Report issued by the Study Panel on the Anti-Monopoly Law]. https://www.jftc.go.jp/houdou/pressrelease/h29/apr/170425_1.html. Accessed 30 Aug 2019 Foote DH (1992) The benevolent paternalism of Japanese criminal justice. Calif Law Rev 80:317–390

45 Enomoto v. Japan, Saikō Saibansho [Supreme Court], judgement, Feb. 22, 1995, Keishū 49:1 (Grand Bench). 46 Inouye (2002), p. 173.

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Foote DH (2007) Japanese law at a turning point. In: Foote DH (ed) Law in Japan: a turning point. University of Washington Press, Seattle, pp xix–xxxix Hirano R (2005) Sanshin Seido saiyō no teishō, [A proposal for introducing a mixed panel consisting of lay and professional judges in criminal trial]. In: Hirano R (ed) Keiji hō kenkyū saishū kan [Studies in criminal law: final remarks]. Yūhikaku, Tokyo, pp 191–208 Hōmu Sōgō Kenkyūsho [Ministry of Justice Research and Training Institute] (2018) Hanzai Hakuso Heisei 30 nen ban [White paper on crime 2018]. http://hakusyo1.moj.go.jp/jp/65/nfm/ mokuji.html. Accessed 30 Aug 2019 Imwinkelried EJ (2017) The new wigmore – a treatise on evidence: evidentiary privileges, 3rd edn. Aspen Publishers, New York Inouye M (2002) Witness immunity and bargain justice: a look at the Japanese concept of the adversary system. In: Feeley MM, Miyazawa S (eds) The Japanese adversary system in context: controversies and comparisons. Palgrave Macmillan, New York, pp 173–192 Itō M (2000) Jiko shiyō bunsho toshiteno soshō tō junbi shomen to bunsho teishutsu gimu [Documents prepared in anticipation of litigation as exempted documents exclusively for personal use and the general obligation to submit documents]. In: Sasaki Yoshio Sensei Tsuitō Ronshū Kankō Iinkai (ed) Sasaki Yoshio sensei tsuitō ronshū: Minji funsō no kaiketsu to tetsuzuki [Essays in memory of the late professor Yoshio Sasaki: resolution of and procedure for civil disputes]. Shinzansha, Tokyo, pp 415–429 Japan Fair Trade Commission (2019) Press release: Cabinet decision on the Antimonopoly Act Amendment Bill. https://www.jftc.go.jp/en/pressreleases/yearly-2019/March/190312.html (translation by the Commission). Accessed 30 Aug 2019 Kōno Y (2014) Dokusen Kinshiho Shinsa Tetsuzuki ni tsuite no Kondankai (dai 11 kai) ni okeru iken [Letter to the chair of the panel: opinion to be submitted to the 11th meeting of the Advisory Panel on Administrative Investigation Procedures under the Anti-Monopoly Act]. https:// www8.cao.go.jp/chosei/dokkin/kaisaijokyo/mtng_11th/program_11th.html. Accessed 30 Aug 2019 Matsuo K (1999) Keiji soshō hō [Criminal procedure], vol 1. Kōbundō, Tokyo Murayama O (2018) Taisei Kensetsu sōsaku de “bengoshi hitoku tokken” no kinesn ni fureta shihō torihiki zenya no garapagosu Nippon [Dawn raid to Taisei Corporation: on the eve of the enactment of the plea-bargaining legislation, Japan in Galápagos syndrome now realizes the sensitiveness of the attorney-client privilege], Asahi Shimbun: Asahi Judiciary: Hō to Keizai no Jānaru, Mar. 5, 2018. http://judiciary.asahi.com/jiken/2018030400001.html. Accessed 30 Aug 2019 Nihon Bengoshi Rengōkai [Japan Federation of Bar Associations] (2016) Bengoshi to iraisha no tsūshin himitsu hogo seido ni kansuru saishū hōkoku [Final report on the protection of correspondence between attorneys and clients]. https://www.nichibenren.or.jp/library/ja/com mittee/list/data/attorney-client_privilege/final_report.pdf. Accessed 30 Aug 2019 Nihon Bengoshi Rengōkai (2018) [Japan Federation of Bar Associations], Bengonin wo torishirabe ni tachiawaseru Kenri no meitei wo motomeru ikensho [Statement of opinion calling for explicit recognition by the law of suspects’ right to have counsel present during interview by investigators]. https://www.nichibenren.or.jp/activity/document/opinion/year/2018/180413.html. Accessed 30 Aug 2019 Ōno M (1972) Bengoshi Jichi to Genzai no Mondai [The professional autonomy of the bar and current issues]. Jiyū to Seigi 29(11):51–55 Roxin C, Schünemann B (2014) Strafverfahrensrecht, 24th edn. C.H. Beck, Munich Saikō Saibansho Jimu Sōkyoku Keiji Kyoku [Criminal Bureau, General Secretariat, Supreme Court] (2018) Heisei 28 nen ni okeru keiji jiken no gaikyo (jō) [Criminal Procedure in 2016: General survey, part 1]. Hōsō Jihō 70:443–622 Shihō Seido Kaikaku Shingikai [Judicial Reform Council] (2001) Shihō Seido Kaikaku Shingikai ikensho: 21 seiki no Nippon wo sasaeru shihō seido [Recommendations of the judicial reform council: for a judicial system to support japan in the 21st century]. https://japan.kantei.go.jp/ policy/sihou/singikai/index_e.html (translation by the Council). Accessed 30 Aug 2019 Yabuki K, Hammond SD (2015) Introducing legal privilege in Japan. Compet Law Int 11:113–139

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Hiroki Sasakura is a Professor of Law at Keio University Law School, Tokyo. After graduating from the University of Tokyo Faculty of Law, he served as research associate and assistant professor at the University of Tokyo (1999–2004), and associate professor at Chiba University (2004–2011). He also studied at Harvard Law School (East Asian Legal Studies program) as a visiting scholar (2007–2009) for which he received the Fulbright research grant. He joined the Keio law faculty in 2011. His academic interest lies in the broad field of criminal procedure and evidence, where his work ranges from practical problems of criminal investigation and adjudication to institutional design, with a focus on issues related to the right of privacy and legal principles governing surveillance techniques, the interplay of civil/administrative and criminal law and information sharing, and such facets that makes criminal law distinct from other fields of law.

The Dutch Attorney and His Client Joost S. Nan and Pieter A. M. Verrest

Abstract There can be no doubt that access to a lawyer is a crucial right for any defendant in a criminal case. It will endorse the defendant’s right to a fair trial and it will help to secure that the defendant is not ill-treated while in custody. Of course, the attorney-client or legal privilege has to be respected to make the assistance of a lawyer practical and effective. In this respect, Dutch criminal procedural law provides for the assistance of a lawyer from a very early stage of the pretrial investigation, and secrecy is generally warranted. However, legal privilege is regarded by some as a nuisance, standing in the way of effective criminal investigations. This is why in the drafting process of the new Dutch Criminal Procedural Code, the drafting of provisions dedicated to the legal privilege have to be followed with scrutiny. The legislator is actually trying to codify the full scope of the legal privilege, including exceptions that justify breaching it. In general, only very rarely should other interests, such as discovering the truth in a criminal investigation, outweigh the interest of respecting the legal privilege. A detailed and balanced legal framework is necessary. Keywords Access to lawyer · Attorney-client communications · Attorney-client privilege · Confidentiality · Criminal defence · Criminal procedure · Exclusionary rules · Fair trial · Legal aid · Legal Aid Council · Legal privilege · Mandatory legal assistance · Right of defence · Right to counsel · Search and seizure · Search of lawyer’s offices

Abbreviations CC CCP ECHR

Criminal Code Code of Criminal Procedure European Convention on Human Rights

J. S. Nan (*) · P. A. M. Verrest Erasmus School of Law, Erasmus University Rotterdam, Rotterdam, The Netherlands e-mail: [email protected]; [email protected] © Springer Nature Switzerland AG 2020 L. Bachmaier Winter et al. (eds.), The Right to Counsel and the Protection of Attorney-Client Privilege in Criminal Proceedings, Ius Comparatum – Global Studies in Comparative Law 44, https://doi.org/10.1007/978-3-030-43123-5_8

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European Court of Human Rights Financial Action Task Force on Money Laundering International Academy of Comparative Law Information and Communication Technology International Monetary Fund Organisation for Economic Co-operation and Development

1 Introduction The presence of a lawyer1 assisting a suspect or an accused person in criminal proceedings is one of the cornerstones of modern criminal procedure and plays a key role in guaranteeing the suspect’s right to a fair trial. It requires that the lawyer has the means to assure a proper defence—in the sense of both legal powers as well as sufficient time and facilities. Another key element is the protection of the confidentiality of the relationship of a lawyer and his client, which is based on mutual trust and secrecy. This confidentiality should be assured by the law—notably by the legal privilege for the lawyer to refrain from testimony and in case of searches and seizures. Yet the assistance of the criminal defence lawyer tends to suffer from all kinds of potential threats. They vary from important budgetary cuts in the public financing of legal aid to calls to postpone the access to a lawyer upon arrest and during the first interrogation of a suspect in case of serious crimes. Also the confidentiality of the communication between a lawyer and his client is challenged, notably because this would obstruct an effective investigation of financial and organized crime. In this contribution for the Criminal Procedure Section of the XXth International Academy of Comparative Law (IACL) Congress, we will analyse the position of the criminal defence lawyer under Dutch law, with a special focus on the confidentiality of the communication between the lawyer and his client.2 This legally protected secrecy of the professional relation between a lawyer and his client is a recurrent topic in public debate in the Netherlands. For about a decade, the Public Prosecution Service and other government authorities in the Netherlands have been demanding a revision of the legal privilege. They claim that it seriously hinders investigations into tax evasion, money laundering and organized crime.3 The Financial Action Task Force echoed these concerns in its 2011 mutual evaluation report on the Netherlands, stating that “When conducting investigations on money

The terms “lawyer”, “attorney”, “advocate” and “counsel” are all used interchangeably to refer to the attorney-at-law that provides legal assistance to the defendant in criminal cases. 2 Research for this contribution was first done until 1 October 2017. We have updated this later version in August 2019, specifically to keep up with some recent developments in the upcoming new legislation. 3 Recent examples include Mooijen (2013), Leenders (2014) and Altena and Mooijen (2015). 1

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laundering and underlying predicate offences, competent authorities should be able to obtain from lawyers, notaries, and tax accountants, documents and information for use in those investigations, and in prosecutions and related actions. The assessment team considers that the current framework on legal privilege in the Netherlands limits the authorities’ powers unreasonably”.4 More generally spoken, the fear exists amongst authorities and for instance members of parliament that sometimes lawyers are included in correspondence or involved in other matters (i.e. keeping the administration of a client stored in their offices) just to shield the contents off from authorities. After minor changes5 triggered by the cited public debate—notably the time frame for the court proceedings on the applicability of a legal privilege during the pretrial phase has been limited—the legal privilege of lawyers will be subject of an all new legislation in the framework of the revision of the Code of Criminal Procedure (CCP), currently prepared in the Netherlands.6 Although the new regulation of the legal privilege has triggered a lot of attention and contributions from both legal practitioners and scholars, a comparative study into the confidentiality of the communication between lawyer and client in other countries is missing. Hence, in our view, the work of the IACL in this area is of great importance and the law-making process in the Netherlands could benefit from it. This article wants to contribute to the IACL’s work by examining relevant Dutch law and the legal practice concerning the relationship between lawyer and client from a comparative perspective. It will point out the singularity of Dutch law and some interesting achievements in this regard. We will conclude with some recommendations on how these achievements could—and rather should—be maintained in the new Dutch CCP.

2 The (First) Right to Counsel In the Netherlands, following the Salduz case of the European Court of Human Rights (ECtHR)7 in 2009 a general right for arrested persons suspected of an offence to consult a lawyer before any police interview has been introduced.8 The suspect was given the possibility to consult a lawyer for a maximum of 30 min, before being interviewed by the police. This right to consult was guaranteed by a binding

4

FATF/OECD and IMF (2011), p. 116. On the lack of critical assessment of collected information by evaluation teams during this and other evaluations, see Halliday et al. (2014), p. 24. 5 Kamerstukken II 2013/14, 33685, 2, amending Art. 98, Art. 552a and Art. 552d CCP. 6 A draft of the first two books of the new CCP was made public for consultation on 7 February 2017. 7 Salduz v. Turkey, Appl. no. 36391/02, of 27 November 2008. 8 Hoge Raad 30 June 2009, ECLI:NL:HR:2009:BH3079, NJ 2009/349.

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Instruction from the Public Prosecution Service.9 In the meantime, the Directive 2013/48/EU on the right of access to a lawyer in criminal proceedings was adopted in the European Union, which grants the right to be assisted by a lawyer during a police interview. Two legislative proposals introducing the right to consult a lawyer in the Code of Criminal Procedure, which included the right to be assisted during interrogations, encountered fierce criticism from the Dutch police during the law-making process. This was strange in a sense due to the fact that a 2-year experiment with consultation and assistance during police interviews in cases of serious offences had pointed out advantages for the defence of the suspect, while police interrogations were not influenced negatively.10 Confronted with the reluctance of the legislator to confront this criticism, in December 2015 the Supreme Court ordered the government to take immediate action and decided that the right of assistance of a lawyer during interrogations existed from then on and should be effectively implemented in practice on 1 March 2016 at the latest.11 This was achieved again by issuing a binding Instruction from the Public Prosecution Service. Now both the right to consult a lawyer before a police interview (Art. 28c CCP) and the right to be assisted by a lawyer during a police interview (Art. 28d CCP) are included in the CCP (Bills of 17 November 2016).12 Art. 28d CCP explains that the lawyer cannot only assist his client during a police interview, but he can also “take part” in the interview. This means that the lawyer can make remarks, ask questions and request clarifications if needed.13 The lawyer may also demand the interview to be interrupted temporarily in order to consult his client. Detailed rules have been laid down in a governmental decree, while the Dutch Bar Association has established a protocol and a guideline concerning the role of the defence lawyer assisting during a police interview. This doesn’t mean, however, that a lawyer can interfere with every question asked and advise his client (not) to answer.14 Whether or not he has been arrested, the suspect of an offence is informed about his right to receive the assistance of a lawyer before any police hearing (Art. 27 para. 2 and 3 CCP). After having been informed about his right to assistance, the suspect can ask for the assistance of a lawyer. In general, suspects can also waive their right to assistance (Art. 28a CCP), minors cannot, however, waive their right to consult a lawyer prior to a police interrogation (Art. 489 CCP). If the suspect indicates that he wants the assistance of a lawyer, he will be facilitated to contact one by phone. The suspect can choose his own lawyer or is handed a list of lawyers to choose from. 9

Aanwijzing rechtsbijstand politieverhoor, Stcrt. 2010, 4003. See Stevens and Verhoeven (2010), pp. 147–156. It should be noted however that in a protocol regulating the experiment, the bar association had agreed that the lawyer should not interfere during the police interview. This would not be the case under the legislative proposal, which since has entered into force. See for an update on the practice of the assistance of a lawyer during interrogation, Langetermijnmonitor Raadsman bij politieverhoor, WODC-Cahier 2018-16. 11 Hoge Raad 22 December 2015, ECLI:NL:HR:2015:3608. 12 Stb. 2016, 475 and 476. Both bills entered into force on 1 March 2017. 13 Kamerstukken II 2014/15, 34157, 3, p. 28. 14 Hoge Raad 13 September 2016, ECLI:NL:HR:2016:2068. 10

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Sometimes lawyers are also on-call in police stations, for example during events in big cities. At a later stage the suspect will once again be informed about this right to get assistance, namely before he is put in police custody15 and when his remand custody16 is demanded by the public prosecutor. The suspect is also informed about the right to assistance of a lawyer when he is summoned to appear in court. In principle, it is left to the discretion of the suspect to choose a lawyer to represent him or to continue without professional legal assistance. However, the police immediately has to inform the Legal Aid Council about the police custody of a vulnerable suspect or of a suspect of a serious crime which can be punished with a maximum imprisonment term of at least 12 years. These suspects will get a lawyer appointed by the Council. The Council also allocates a lawyer to a suspect in police custody suspected of an offence that can be punished with at least 4 years imprisonment, in case that suspect has indicated that he wants a lawyer to assist him. Finally, the Legal Aid Council will be informed of a suspect who is subject of a demand for remand custody without a lawyer. In that situation the Legal Aid Council will also allocate a lawyer (Art. 40 and 41 CCP). The main rule is that the suspect, when he is (eventually) financially capable to do so, has to pay for the assistance of a lawyer; both in cases where the lawyer is or is not provided for by the Legal Aid Council. The Act on Legal Aid (Wet op de rechtsbijstand) sets out the forms of assistance (following certain investigative acts and deprivation of liberty) that are to be subsidized by the Legal Aid Council, as well as the (income) criteria that determine what amount the suspect must contribute. The governmental decree based on this Act also determines the wages of lawyers who are willing to provide legal aid within the framework of the Legal Aid Council.17 Recently a rule concerning paying back state-subsidized legal assistance, that was dormant for a very long time, was activated. If the suspect is in police custody, the state-subsidized assistance of a lawyer is still always free (no matter what his financial situation might be). But when the state provides him with a lawyer after his remand custody is granted, the situation changes. If the suspect is convicted and it turns out that at the end he would not have been eligible for legal aid assistance, he has to pay back the wages of his lawyer (except for the phase in cassation). In the Netherlands, there is a large group of lawyers—nearly all criminal defence lawyers—dedicated to take on the assistance of suspects in the framework of the Legal Aid Council. This means that suspects will benefit in general from good quality legal assistance. A comparative study into police hearings, conducted several years ago, mentions with regards to the Netherlands that lawyers sometimes counsel their clients rather poorly prior to a police interview. This was concluded because of

15

Police custody (max. 3 days, with one possibility to prolong for another 3 days) follows up on arrest (max. 9 h). 16 Remand custody, to be ordered by the investigative judge, is the first phase of pretrial detention, and lasts for a maximum of 14 days. 17 Besluit vergoedingen rechtsbijstand 2000. The wages are fairly modest.

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the fact that in most observed cases, lawyers used only about 15 min of the permitted maximum 30 min for consultation.18

3 Legal Privilege 3.1

Confidentiality

It goes without saying that the obligation of secrecy of a defence counsel is a very important aspect of the right to access to a lawyer.19 For a long time, however, the obligation of secrecy was only written down in the rules drafted by the Dutch Bar Association in the Code of Conduct.20 See rule 6 para. 1 of the Code of Conduct: “The lawyer is obliged to secrecy; he must be silent on the particulars of the cases he has worked on, the person of his client and the nature and extent of his interests.” But even without a legal basis in Dutch law, the obligation of secrecy was always taken very seriously by defence counsels. In the explanatory notes of the Code of Conduct it is emphasized that lawyers need to be very careful not to break this rule. In 2003, the Dutch Union of Defence Counsels (Nederlandse Vereniging van Strafrechtadvocaten) drafted statutes concerning the position of defence counsels. Art. 17 of these statutes firmly establishes the obligation of secrecy.21 There is also a Code of Conduct for European Lawyers, in which the importance of confidentiality is stressed (Art. 2.3 Code of Conduct). It was not until recent years that the Lawyers’ Act (Advocatenwet), the most general and important act concerning attorneys-at-law, was supplemented with a similar provision. When this act was revised to codify the core aspects of an attorney and later to restyle the oversight to this profession, the obligation of secrecy was added along the way.22 Art. 11a para. 1 of the Lawyers’ Act, which came into effect on 1 January 2015,23 reads: “If not otherwise determined by law or regulation by the Board of Delegates, the lawyer is bound to secrecy for all that he takes notice of under his professional practice. The same obligation applies to employees and staff of the lawyer, as well as other people who are involved in his professional practice.”24 The discussion then was—and still is—not so much about 18

Blackstock et al. (2014), p. 313. See also Wefers Bettink and Hoekstra (2012) and Perez and Heinerman (2016). 20 The latest version dates from 1992. They are currently under revision, but no real changes are expected as to the obligation of secrecy. 21 It reads: “Insofar as not otherwise provided by law or regulation by the Board of Delegates, the lawyer is obliged to secrecy for all that he takes notice of under his professional practice. The same obligation is required for employees and members of staff of the lawyer, as well as other people who are involved in his professional practice.” 22 Kamerstukken II 2011/12, 32382, 10. 23 Stb. 2014/354 and Stb. 2014/429. 24 In para. 2 it states that this obligation continues to exist even after the professional practice has ended. 19

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whether attorneys were bound by secrecy and could avail themselves of giving out privileged information, but more about what services were considered typical for their profession to entitle them to this privilege. For instance, is advising companies on mergers and creating tax short cuts really something that needs to be cloaked when a lawyer is involved? Is a lawyer still acting in that capacity when he is on the board of directors of a company?25 This does not concern the services of defence counsel in criminal matters.26 Those are classic activities of a lawyer. The Dutch Bar Association had some difficulties with this provision, as it states that the law can determine otherwise, creating the danger that the provision turns out to be illusionary.27 Breaking the obligation of secrecy can result in both disciplinary sanctions (see Art. 46 of the Lawyers’ Act) as criminal prosecution (Art. 272 of the Dutch Criminal Code (CC)). Civil liability for damages incurred by others, such as his client for a breach of contract, is also possible. This all rarely happens though. It is not possible to use the statement of the defence counsel as evidence against the defendant(s), even though there is no rule in the CCP to exclude it. The statement is not regarded by the Supreme Court as a piece of evidence according to the law.28 This would contradict with the position of the defence counsel and the trust that his client can and did confide in him. The foregoing principles apply to all sorts of crimes the client (who can either be a natural person or a corporate entity) is suspected of, including terrorist activities. It also applies to all lawyers who are registered attorneys. Only when the attorney-client privilege is being abused, things could be different, for instance when the client informs his counsel of a crime which has yet to take place. In that case, the defence counsel could feel the need to inform the authorities in some way. Alerting the authorities should be done in such a way that the obligation of secrecy is breached as minimal as possible.

3.2

Attorney-Client Privilege

Usually, when the obligation of secrecy is mentioned, the attorney-client privilege is attached to it to secure it.29 In fact, it has always been accepted that for the general interest of society, anyone should feel free to entrust, amongst others, a lawyer with This point was raised in the explanation of the concept of the first book of the new CCP, p. 132. Relevant to note is when acting as defence counsel in criminal matters, a lawyer is not bound by the rules regarding the prevention of money laundering and financing terrorism. Those rules order a lawyer to inform authorities of unusual transactions of his client. 27 Kamerstukken II 2012/13, 32382, 15, annex. 28 See Hoge Raad 22 November 2016, ECLI:NL:HR:2016:2649 and Hoge Raad 5 March 2019, ECLI:NL:HR:2019:295. 29 During the French rule of the Netherlands (1811–1813), the privilege was derived from the substantive stipulation on penalizing a breach of the obligation of secrecy (Art. 378 Code pénal). A formal counterpart was not deemed necessary, see Chauveau and Hélie (1863), pp. 225–226. 25 26

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information, without it being exposed.30 This is a matter of general interest, as the Dutch Supreme Court has stated in a landmark case: the privilege concerning certain professions finds its basis in “a general principle of law in force in the Netherlands that implies that for certain confidants the public interest to have the truth come to light must yield to the public interest that everyone has to be able to turn to them for assistance and advice freely and without fear of disclosure of what has been discussed”.31 This is especially the case for the “classic four” professions that demand secrecy: notaries public, lawyers, doctors and the clergy. With regard to lawyers the Supreme Court has stated that there is a “major interest that everyone has the possibility to consult a lawyer freely and without fear of disclosure of what has been confided to the lawyer in his capacity as such.”32 That is why a defence counsel can avail himself of testifying that which is entrusted to him as a lawyer. Art. 218 CCP states: “For giving evidence or answering certain questions, also they who are obliged to secrecy by virtue of their position, their profession or their duties can request to be excused, although solely for those facts which have been entrusted to them as such.” The privilege includes an obligation for the investigative authorities to refrain from making any kind of infraction on the communication and correspondence between a suspect and his attorney. As a general rule, no investigative measures can be directed against the attorney, not even if he himself is a suspect. This could be different for a limited number of reasons, such as in case of very extraordinary circumstances.33 We will elaborate on this in Sects. 5 and 6 (including upcoming changes in legislation codifying this exception). The legal privilege is also recognised in European law. The ECtHR has ruled that it “is clearly in the general interest that any person who wishes to consult a lawyer should be free to do so under conditions which favour full and uninhibited discussion. It is for this reason that the lawyer-client relationship is, in principle, privileged”.34 The ECtHR in Strasbourg has also linked this privilege to effective legal assistance and therefore a fair trial as guaranteed by Art. 6 ECHR.35 In Niemietz

30 Although some changes are expected (see later on), this starting-point will be upheld by the legislator as an important part of our legal system (explanation of the concept of the first book of the new CCP, pp. 129 and 132). See also Sluysman and de Graaff (2016) on the general acceptance of the thought that anyone should feel free to turn to a lawyer (and doctor etc.). 31 Hoge Raad 1 March 1985, ECLI:1985:AC9066, NJ 1986/173. The case concerned a notary public. For earlier case law, see Hoge Raad 21 April 1913, NJ 1913;W9484. 32 Hoge Raad 29 March 1994, ECLI:NL:HR:1994:ZC9693, NJ 1994/552 and Hoge Raad 10 November 2015, ECLI:NL:HR:2015:3258. It concerned the seizure of documents from advocates, see more on that in Sect. 5. 33 There is an instruction on these matters drafted by the Public Prosecution Service, Aanwijzing toepassing opsporingsbevoegdheden en dwangmiddelen tegen advocaten (Stcrt. 2011, 4981). 34 Campbell v. UK, Appl. no. 13590/88, of 25 March 1992, para. 46. 35 See, amongst others, Khodorkosvkiy v. Russia, Appl. no. 5829/04, of 31 May 2011, para. 232; Castravet v. Moldava, Appl. no. 23393/05, of 13 March 2007, para. 49. See more on this in Sect. 4 of this article.

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v. Germany36 the office of a lawyer had been searched. The ECtHR considered the procedure for such searches not to be detailed enough. This led to a disproportionate infringement of Art. 8 ECHR (private life). Additionally, the ECtHR found that the breach of Art. 8 ECHR had also influenced the functioning of the lawyer and his important position in respect of the fairness of the criminal proceeding. For that reason the search constituted a breach of Art. 6 ECHR. In André v. France the ECtHR added that a search of a lawyer’s office and the subsequent violation of the confidentiality of the communication between lawyer and client also infringed the principle of nemo tenetur also protected by Art. 6 ECHR.37 In this case the ECtHR emphasized that the consideration of the proportionality of search and seizure of documents could be different if a lawyer is a suspect in a criminal case. In yet another case, the ECtHR ruled that the searching of a lawyer’s office can be considered proportionate if the lawyer is not suspected of a criminal offence, on the conditions that it is carefully conducted with a clear objective. It is not without significance that the Dean of the local bar association was present during the search and had not objected against the seizure.38 But in Khodorkovskiy and Lebedev v. Russia the ECtHR made it clear that if a lawyer is not a suspect, “compelling reasons” are needed for the violation of the confidentiality of the relation with his client.39 The EU Court of Justice has stated many years ago that “Community law (. . .) must take into account the principles and concepts common to the laws of those States concerning the observance of confidentiality, in particular regarding certain communications between lawyer and client. That confidentiality serves the requirements, the importance of which is recognized in all of the Member States, that any person must be able, without constraint, to consult a lawyer whose profession entails the giving of independent legal advice to all those in need of it”.40 Although case law of the ECtHR and the EU Court of Justice confirms the legal privilege and urges to establish a procedure for the search of lawyers’ offices, it does not clarify what the content of such a procedure should be. Nor does it prescribe what would be the—preferably limited—compelling reasons to motivate a breach of the confidentiality of communication between the lawyer and his client.

36

Niemietz v. Germany, Appl. no. 13710/88, of 16 December 1992. André v. France, Appl. no. 18603/03, of 24 July 2008. 38 Jacquier v. France, Appl. no. 45827/07, of 1 September 2002. 39 Khodorkovskiy and Lebedev v. Russia, Appl. nos. 11082/06 and 13772/05, of 25 July 2013. 40 Judgement of the Court AM & S Europe limited v. Commission, Appl. no. C-155/79, of 18 May 1982, para. 18. 37

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Partiality

The defence counsel is biased, for only the legitimate interest of his client may concern him.41 He is therefore under no obligation to testify against his client, hand over potential evidence, inform the investigative authorities etc. This does not mean, of course, that defence counsel can hide the murder weapon or other evidence, influence witnesses or experts, or fabricate fake evidence on behalf of his client, nor can his client force him to do so. The defence counsel is independent of both the authorities and his client. He is dominus litis. Unlike other citizens, counsel is not obliged to report knowledge of serious crimes such as murder to the police (see Art. 160 CCP). Also, even when he knows his client will give a false testimony or any false statement, counsel is in no position to either stop his client or alert the investigative authorities, even if he wanted to. He could actually advice his client to tell one or more lies if he deems that suitable as a defence strategy. This is because a suspect cannot be forced to make any sort of statement and cannot commit the crime of perjury, since he cannot be interrogated as a witness in his own case, not even when he is interrogated by a judge. A suspect is free to determine his own line of defence in any stage of proceedings and his counsel is only there to advise him. The latter cannot go against the former’s wishes and interests, even if he does not agree with the course of action preferred by his client. If a difference of opinion leads to a lack of trust or solid foundation for further collaboration, counsel must refrain and possibly excuse himself from the case. So when a suspect wishes to make a statement (true or false), counsel can only inform him of the legal consequences of his actions. Only when a suspect is being interrogated by a judge as a witness in someone else’s case, is he bound to speak and to speak truthfully (but as a co-defendant he does not have to incriminate himself). In that case counsel cannot in any way take part in perjury or failure to testify.

4 Access to a Lawyer 4.1

Conditions for Meetings

As mentioned in Sect. 2, any suspect that is incarcerated has the right to access to a lawyer from the start. As soon as a suspect is being held, a defence counsel on standby or a preferred counsel can visit his client. Usually this is at the police station, but in some cases it can also be in a hospital or prison (for instance when the suspect is already incarcerated). Before the first interrogation, the defence counsel and his client can meet for half an hour (see Art. 28c CCP). If need be, this period can be extended to an hour. This time standard of half an hour originated from a pilot started before the right to counsel in case of an interrogation of an incarcerated suspect came 41

See Art. 10 para. 1 under b. of the Lawyers’ Act and Rule 5 of the Code of Conduct.

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into effect after the Salduz case of the ECtHR. It could very well be that half an hour or an hour is not enough for a thorough meeting to inform a suspect of his rights, obligations and of his position and his options regarding his defence strategy in the given case. Depending on the severity of the crime(s) of which he is suspected, the complexity of the factual situation or his condition or status, (much) more time is needed—especially when the assistance of an interpreter is called for. In practice, more time is given and as a last resort the suspect can always remain silent until he has met with his defence counsel adequately to engage in the interrogation.42 Most police stations are equipped with rooms for a suspect and counsel to meet in private. The same goes for jails, in case of (pretrial) detention.43 Confidentiality is of the utmost importance. Rightfully so, confidentiality is mandatory given Art. 4 of the Directive 2013/48/EU. The ECtHR has also stressed the importance of communications between a suspect (in custody) and his counsel, which are, as a rule, not to be intercepted in any way (whereby the mere possibility of an interception taking place could be enough to limit the effectiveness of the assistance a lawyer could provide).44 This means that conversations are not to be overheard and that there also should be no fear that they are. According to Art. 27cb CCP, interrogations need to take place in suitable locations as much as possible. There will be no one present but them, except maybe an interpreter. These meetings are, in Dutch law and practice not (to be) recorded in any way. One of the authors of this article has had to meet with suspects with police officers present for his own safety, given that the suspect was either unpredictable or not willing to meet with him in the first place (in which case he had to make sure that the suspect indeed waived his right to counsel). Sometimes, for example in cases concerning terrorism, the meetings mandatorily take place with a glass wall between counsel and his client (usually for the former’s safety, but also to avoid the possibility that objects are transferred). This of course hinders counsel in gaining his client’s trust, and lawyers have tried to meet their clients without it.45 Now that a suspect in custody has access to a lawyer earlier than prior to Salduz (see Sect. 2), more meetings between attorneys and clients take place at several police stations. This has led to a practice that a lawyer on-call is stationed at one police station, while his client is detained at another. The consult prior to the first 42

Safe for the household rules (Huishoudelijk Reglement) and the number of meeting cells, more generally spoken, any meeting other than mentioned in Art. 28e CCP, can take place as long and as many times as the defence wants. Compare and contrast Öcalan v. Turkey (GC), Appl. nos. 24069/ 03, 197/04, 6201/06 and 10464/07, of 18 March 2014, para. 135. 43 It should be noted that the telephone conversations of a prisoner could be monitored (see in general Doerga v. The Netherlands, Appl. no. 50210/99, of 27 April 2004). This is why normally no details of a case are discussed over the telephone by a prisoner and his lawyer, although the conversation is of course privileged. 44 S. v. Switzerland, Appl. nos. 12629/87, 13965/88, of 28 November 1991, para. 48; Brennan v. United Kingdom, Appl. no. 39846/98, of 16 October 2001, para. 58; Zagaria v. Italy, Appl. no. 58295/00, 27 November 2007, para. 35–36; Castravet v. Moldava, Appl. no. 23393/05, of 13 March 2007, para. 51; Sakhnovskiy v. Russia (GC), Appl. no. 21272/03, of 2 November 2010, para. 97 and Khodorkosvkiy v. Russia, Appl. no. 5829/04, of 31 May 2011, para. 232. 45 See for instance Rechtbank Den Haag 2 October 2006, ECLI:NL:RBSGR:2006:AY9232.

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interrogation then takes place via video link. The problem of gaining the client’s trust is even more onerous. Not having their lawyer in the same room also leads certain suspects to believe the person they see on the screen is in cahoots with the police. The simple act of handing the suspect a business card for future reference is impossible. Some suspects therefore have no clue who their lawyer is afterwards and who to call or call for. All of this can create a lack of connection in the tandem suspect-counsel and can leave the suspect confused and not adequately informed of the situation he is in, of his rights and of his obligations.46

4.2

Withholding (Specific) Counsel

In extraordinary cases, counsel can be refused to meet with his client. A suspect can be interrogated without having met with counsel or without his counsel present if there is a pressing need to do so to prevent either serious negative consequences for a person’s life, freedom or physical health, or considerable damage to the investigation (see Art. 28e CCP). This is a general and temporary, very short-term measure, for instance in case of a kidnapping situation or terrorist threat.47 It is the district attorney who has to order this. He can also forbid contact between a suspect and specific counsel more generally for up to 6 days, when there is a serious suspicion that contact between them is being misused to give the suspect information of which he needs to be unaware of or to obstruct the investigation. Other counsel is then assigned.48 Here counsel is colluding with the defendant beyond the borders of his task to advise, inform and assist him, or at least is feared to be. If that suspicion turns out to be correct, disciplinary measures could be instigated, for instance by a complaint filed by the public prosecutor.

4.3

Investigative Acts

In general, the defence counsel can be present during all interrogations of the suspect, whether this is being done by the police, someone from the Public Prosecution Service or an (investigative) judge. This also applies to a suspect who is not deprived of his liberty (is not under arrest). Normally, there is room to confer in private during interrogations, all within reason of course. For instance, it is stipulated that during a police interrogation of a suspect counsel can be present and participate,

46

Compare Sakhnovskiy v. Russia (GC), Appl. no. 21272/03, of 2 November 2010, para. 98, about participating during trial. 47 Compare Art. 3 para. 6 of the Directive 2013/48/EU. See also Brennan v. United Kingdom, Appl. no. 39846/98, of 16 October 2001, para. 58. 48 See Art. 46 and 47 CCP.

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while both can also ask for a recess to meet in private. This has to be allowed, unless this would disturb the order or the progress of the interrogation (see Art. 28d para. 1 CCP). With regards to the specific investigative acts mentioned in Art. 3 para. 3 sub. 3 of the Directive 2013/48/EU,49 (1) identity parades, (2) confrontations and (3) reconstructions of the scene of a crime, the Dutch situation is as follows: An identity parade, or line-up (what we would call a confrontation), can be held with only the suspect (a single confrontation) or with more persons (a plural confrontation), being confronted with a witness (such as the victim). Counsel can be present and can make observations about the line-up used in plural confrontations, which are written down in the report about the confrontation.50 These observations usually concern the lack of persons who fit the description given by witnesses or who look similar to the suspect; this makes the suspect stick out like a sore thumb. Confrontations in person are held very rarely, though. More often a photo confrontation is held, using just pictures of the suspect and other persons, without the suspect being present. Even though the Supreme Court has ruled on many occasions that the rules to the confrontation in person do not apply,51 in practice the rules are followed by analogy. Counsel can be present and in case of a plural photo confrontation, he can make observations about the line-up, which are recorded in the report. There are no rules on the possibility of counsel and the suspect to talk in private during the confrontation (if the suspect is present at all), but the Directive does not make that necessary. There are no rules that forbid that kind of one on one contact either and as long as the confrontation is not obstructed by it, it should be (made) possible. A suspect is sometimes confronted with a victim or witness during the investigation itself, mainly for identification purposes: does the police have the right suspect?52 What also could take place is a re-enactment of the crime or a visit to the crime scene. The law states that during the investigation the public prosecutor and also the investigative judge can visit a place. If at all possible, both the defendant and counsel can be present. They can ask to be allowed to give directions, give information or make observations for the minutes.53 Again, nothing about the two of them meeting in private is regulated, but there seems to be no good reason refusing any request that is reasonable. During the trial, the trial judges can choose to move the trial to any place outside the court room (Art. 318 CCP). During that hearing, the normal rules apply, so both the defendant and counsel can be present and request for a (short) recess to confer confidentially if necessary. Anything they say for the record can and normally will be recorded in the minutes of the hearing, as long as it is

49

See also preamble 26. See Art. 61a para. 1 sub. c CCP and Art. 9 Besluit toepassing maatregelen in het belang van het onderzoek. 51 Hoge Raad 11 January 2011, ECLI:NL:HR:2011:BO4056 and Hoge Raad 9 February 2010, ECLI:NL:HR:2010:BK6146. 52 They will not discuss the accusation etc., at least not that we know of (no arrangement in law exists). Mediation could also take place between victims and suspects, but that is a different matter. 53 See Art. 151 and 193 CCP. 50

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relevant for the case. Recently, a trial hearing was moved to the crime scene, where a re-enactment took place in a case concerning a fatal traffic accident during a police chase, when two robbers tried to flee after a failed armed robbery attempt. The two defendants, their counsel and two police officers all gave directions at the location of the accident. Beforehand, arrangements had been made for the defendants to deliberate with their own counsel.54

5 Infringement of Confidentiality Between an Attorney and His Client 5.1

The Attorney as a Witness Against His/Her Client

On the basis of their obligation to secrecy, lawyers benefit from the legal privilege by not having to testify. They can also refrain from answering questions on anything conveyed to them by a client in the exercise of their profession (Art. 218 CCP). This legal privilege can also be invoked in case of compelling investigative acts (Art. 96a para. 3 CCP) and seizure of documents (Art. 98 CCP). Case law of the Supreme Court clarifies that it is always at the discretion of the lawyer to determine if answering a question would infringe on his obligation to secrecy, and that as a result he should invoke the legal privilege. As explained above, in principle, the decision to invoke legal privilege has to be respected. It may only be ignored when there cannot be any reasonable doubt that invoking the privilege is incorrect. It should be mentioned, that this legal privilege has existed in Dutch criminal procedural law for at least two centuries.55 It is likely to have been developed on the basis of French criminal procedure that was applicable in the Netherlands from 1811 to 1838.56 However, legal privilege is not absolute. Some exceptions are formulated in the CCP, while others have been admitted in the case law of the Supreme Court. Together, they put forward two kinds of exceptions to the legal privilege. Firstly, the seizure of documents which are the corpus or instrument of an offence (e.g. falsified documents in a fraud case). When a lawyer invokes his legal privilege with regard to these documents, this may be ignored when there cannot be any reasonable doubt that invoking the legal privilege is incorrect.57 Secondly, other documents may be seized in case of “very extraordinary circumstances”, which on their turn notably consist of a suspicion that the lawyer himself committed a serious

Hof ’s-Hertogenbosch 20 June 2016, ECLI:NL:GHSHE:2016:2428. Extra information was given to us by Mr. Henk Peters, district attorney on the second appeal (advocate-general) in that case. 55 Blok and Besier (1925), pp. 313–317 and 540–544. 56 Hélie (1866), pp. 413–414. 57 Hoge Raad 12 February 2002, ECLI:NL:HR:AD9162, NJ 2002/439. 54

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offence or participated in the commission of serious offences.58 The legal privilege is then overturned. It should be acknowledged that the different situations where the legal privilege is likely to be violated also play a role: our analysis of the legal privilege therefore distinguishes between the searching of lawyers’ offices, the seizure of confidential documents elsewhere and the interception of communication in which the lawyer takes part.

5.2

Searches of Lawyers’ Offices

A lawyer’s office may normally only be searched by the investigative judge (Art. 110 CCP). As an exception, in case of extreme urgency—where the presence of the investigative judge cannot be awaited—a lawyer’s office can also be searched by the public prosecutor or a senior police officer, but only after the investigative judge has authorized the search (Art. 97 CCP). The CPP does not limit the searching of a lawyer’s offices to investigations into very serious crimes.59 In practice, however, searches of lawyers’ offices are rare. When they take place, the Instruction on the use of investigative acts and coercive measures in respect of lawyers of the Public Prosecution Service is applicable: the Aanwijzing toepassing opsporingsbevoegdheden en dwangmiddelen tegen advocaten.60 This Instruction prescribes a careful preparation of the search, with the purpose of interfering with the work of the lawyer as little as possible and preventing a violation of the secrecy of files concerning other clients. The instruction also prescribes the presence of the local Dean of the Dutch Bar Association during the search. While the reasons for the search may differ, searches of lawyers’ offices typically will be conducted with the aim to seize documents establishing the commission of an offence. One could think of falsified official documents. The actual searching will take place in presence of the investigative judge who will be leading the search. The judge will indicate where the police is allowed to search and which documents can be seized. The investigative judge alone has the power to look into documents in order to determine if they are liable to seizure.61 In current practice, searching often includes files in a digital infrastructure. This can be effectuated in different ways: for example the investigative judge and the lawyer can agree to make certain queries to single out documents that fall within the interest of the investigation in a computer network search.

58

Hoge Raad 2 March 2010, ECLI:NL:HR:2010:BJ9262, NJ 2010/144. Art. 110 CCP may be used to the discretion of the investigative judge, Art. 97 CCP requires an offence for which pretrial detention can be ordered (in general, any offence with a legal imprisonment term of 4 years or more). 60 Stcrt. 2011, 4981. 61 Hoge Raad 1 July 2014, ECLI:NL:HR:2014:1566. 59

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Before the investigative judge can seize any document or temporarily take it with him to his cabinet in order to take a formal decision about seizure at a later moment, he has to demand the opinion of the lawyer on whether the document falls under the professional secrecy and thus invokes his legal privilege. The investigative judge can subsequently ask the Dean about his view on the possible seizure; this is not mandatory, but is considered to have added value.62 The investigative judge has to go through this process for every document individually: he cannot confine to taking one decision on a stack of documents.63 He should proceed step by step, and substantiate his decision. As stated above, the opinion of the lawyer on the legal privilege is leading and can only be overturned on the grounds that the opinion of the lawyer is either ill-founded because the document subject to seizure constitutes a corpus or an instrument of an offence, or when very exceptional circumstances are at stake.64 Documents which are the corpus or instrument of an offence, include for example antedated documents, blackmail letters, documents promising an illegal gift in the framework of corruption. Very exceptional circumstances can be admitted in case a lawyer himself is suspected of a serious offence, such as participation in a criminal organization with his clients.65 The suspicion of a criminal offence that cannot be deemed a serious offence is not sufficient to overturn the legal privilege. However, the degree of suspicion is not important; a mere suspicion of a serious offence is enough. A confirmed or endorsed suspicion is not required.66 The decision of the investigative judge to seize a document is subject to appeal before the District Court (Art. 98 and 552a CCP).67 In practice, the investigative judge will ask the lawyer explicitly if he will appeal the decision. If so, the investigative judge will retain the document in his cabinet and will not hand it over to the Public Prosecution Service to peruse its content until the final decision on the admissibility of the seizure is made. This comprises the possibility for appeal in cassation before the Supreme Court against the decision made by the District Court (Art. 552d CCP). By doing so, the investigative judge does not only protect the secrecy of the documents, he also prevents possible legal effects of a seizure which is later on considered to be unlawful (see below). In 2015, the duration of proceedings

62

Hoge Raad 28 June 2016, ECLI:NL:HR:2016:1324. Hoge Raad 2 July 2013, ECLI:NL:HR:2013:CA0434. 64 The Supreme Court has ruled time and again (recently Hoge Raad 28 June 2016, ECLI:NL: HR:2016:1324): “When the professional entitled to privilege argues that it concerns letters or documents that are not objects that were part of the criminal offence nor have they served to commit the criminal offence, and that their examination will lead to the breach of their professional duty of confidentiality, this point of view needs to be respected by the police and judicial authorities, unless there are no doubts in reason that this point of view is incorrect.” 65 Hoge Raad 12 February 2002, ECLI:NL:HR:2002:AD9162, NJ 2002/439. 66 Hoge Raad 10 December 2013, ECLI:NL:HR:2013:1740, NJ 2014/93. 67 The Supreme Court has specified that the District Court should scrutinize the decision taken by the investigative judge and give its own opinion on the content. For that reason, the District Court could have full access to all relevant documents if that is necessary. See Hoge Raad 28 June 2016, ECLI:NL:HR:2016:1324. 63

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for the appeal and the appeal in cassation have been limited. The District court has to rule within 30 days after receiving the complaint and the Supreme Court within 90 days after receiving the complaint. Previously, both police and Public Prosecution Service, as well as lawyers and clients concerned, complained about the duration of the proceedings, which could take more than a year.

5.3

Seizure of Confidential Documents Elsewhere

Documents relating to the attorney-client privilege can also be found outside the lawyer’s office, for example in the house or office of the client. Under Dutch law, searches of a house require the presence (or in case of the exception of the urgency of authorization) of the investigative judge. Office buildings, however, can be searched by the public prosecutor. This means that the guarantee of the presence of a judge is absent, but confidentiality has to be respected. In 2014, because of this situation, the legislator has laid down the rule “that on the matter of seizure (of documents which could fall under the legal privilege), the investigative judge is the competent authority” in Art. 98 para. 1 CCP. In practice, this means that during a search in an office, documents which could possibly fall under the legal privilege cannot be seized, but may only be placed in a sealed envelope and taken to the investigative judge.68 The investigative judge will subsequently decide on seizure, by proceeding along the same lines as described in case of seizure in a lawyer’s office. A potential danger for the confidentiality of the communication between lawyer and client, is that the procedure implies a preliminary selection during the search made by the police and public prosecutor. To that effect, they will be—like the investigative judge during the search of a lawyer’s office—formulating queries to specifically aim the search at documents which could be of interest for the investigations while singling out all documents liable to fall within the attorney-client privilege, and perform a “check at first glance” if those documents really consist of communication between client and lawyer. To prevent any idea of abuse, police and Public Prosecution Service are inclined to call on police officers and public prosecutors who do not themselves take part in the investigation of the criminal case in question, to perform the preliminary selection.69 But this does not convince everyone and will be explicitly ruled out by the upcoming legislation which we will discuss later on.

It is illegal for the public prosecutor and investigators from the fiscal police to take notice of the content of these documents as they should be sent immediately to the investigative judge: Hoge Raad 2 March 2010, ECLI:NL:HR:2010:BJ9262, NJ 2010/144. 69 Mooijen (2017), pp. 6–9. 68

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Interception of Communication

Compared to the seizure of documents, the possibilities to secure the secrecy of communication between lawyer and client by telephone are limited.70 Wiretapping—which in all circumstances has to be authorized by the investigative judge and requires a serious offence—of a lawyer is not forbidden by law (the rationale behind this being that in cases where the lawyer himself is a suspect, tapping should be possible.) However Art. 126aa para. 2 CCP rules that if recorded conversations are likely to fall under Art. 218 CCP (the lawyer could invoke the legal privilege when asked about the content of the conversation), they should be destroyed immediately. The latter is the responsibility of the public prosecutor: the investigative judge is not involved in monitoring the application of wiretaps, nor does he have any role in the analysis of the obtained conversations. In practice, problems arose in cases in which it was not the lawyer whose telephone was targeted by an interception measure, but rather that of his client. Via the interception of the client’s telephone, conversations between him and his lawyer were recorded. Following Art. 126aa para. 2 CCP those recordings should be destroyed as well. Mistakenly, however, this was not the case in several big criminal investigations: possibly as a result of the large number of interceptions these conversations remained unnoticed or forgotten when they should have been destroyed. After years of discussion, in June 2011 a system of automatic number recognition was introduced in the police telecom interception facilities. Lawyers may register certain telephone numbers (up to four) and a fax number, which will not be tapped. We would argue that this system should mutatis mutandis be applicable to historical data on the use of the telephone number in question. However, this is not the case: the Governmental decree which has arranged for number protection explicitly states that historical data may be registered.71 This is motivated by referring to the fact that historical data does not comprise “anything which has been entrusted by the client to his counsel”.72 There are no special protective rules for lawyers regarding the police recording of private conversations by means of bugging a place. The use of this investigative power, which also in any case requires a foregoing authorization by the investigative judge, is again not excluded. However, the results should be dealt with according to Art. 126aa para. 2 CCP, meaning that conversations that could be considered falling under the legal privilege, should be destroyed immediately. This narrows the possible use of this measure accordingly—we do not know of any examples in practice.

70

Lintz and Verloop (2009), p. 1057. Art. 4a Besluit bewaren en vernietigen niet-gevoegde stukken and the appendix. 72 Kamerstukken II 2001/02, 28059, 3, p. 20. 71

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Legal Effects of Infringement of the Attorney-Client Privilege

We have previously discussed the procedure of a search of and seizure in a lawyer’s office, as well as intercepting any form of communication between a suspect and his lawyer. From Art. 98 and 126aa CCP it can be derived that all confidential correspondence and documents, when intercepted or seized, must normally be excluded from the case file. Any result may not be used as evidence against the suspect (there is no discussion on this).73 This also applies to evidence collected as fruits of the poisonous tree. The Supreme Court does require, however, that “that other evidence can always be considered as the exclusive and direct consequence of evidence that has been prior received and excluded afterwards”.74 For instance, when a conversation in which the suspect tells his counsel where the murder weapon is hidden is illegally intercepted, that information cannot be used in the investigation. If the police were to find the murder weapon unlawfully, it will be excluded as evidence. An exception is only possible under extraordinary circumstances. For example, in the previous instance, if the police also receives an (anonymous) tip about the weapon which then leads to the discovery, it could very well be that the finding will not be excluded. Another example would be the use of privileged communications to be able to arrest the suspect.75 If a confession were to follow after all regulations concerning Salduz were respected, the confession would not be considered as a forbidden fruit. Breaches of the regulations protecting the attorney-client privilege during an investigation into the criminal charge against the suspect are settled on the basis of Art. 359a CCP, which regulates all “technicalities” in that phase. The most far reaching legal effect of a serious breach of confidentiality between a suspect and his attorney is the inadmissibility of the public prosecutor in the prosecution. This sanction is applied only in extraordinary situations: “Only if the procedural rules are breached because the officers entrusted with the investigation or prosecution have grossly violated the principles of due process of law, deliberately or by intentional disregard of the interests of the defendant compromising his right to a fair trial.”76 The court will then dismiss the case, not giving a ruling on the substance of the charge. The public prosecutor can appeal this decision and try to get the verdict overthrown, but the case cannot be tried again by initiating another prosecution (res judicata). An important case is the so-called “Hell’s Angels” case (about defendants’ participation in a criminal organization), concerning the illegal interference between several suspects and their counsel. It turned out that police investigators had access 73 This is in line with the jurisprudence of the ECtHR, see Khodorkosvkiy v. Russia, Appl. no. 5829/ 04, of 31 May 2011, para. 198. 74 Hoge Raad 16 September 2014, ECLI:NL:HR:2014:2670, accentuation by the authors. 75 This has happened, Hoge Raad 16 June 2009, ECLI:NL:HR:2009:BH2678. 76 Hoge Raad 30 March 2004, ECLI:NL:HR:2004:AM2533, NJ 2004/376.

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to over a hundred privileged conversations. It took years before the recordings of those conversations were destroyed (although it was never cleared up if this had been done adequately). Some of these conversations were actually submitted into the case file. During the trial, it turned out that documented privileged conversations still existed and were used to request permission for investigative measures. The Amsterdam District court was all but pleased about this and declared the case inadmissible for all of the 22 defendants: “The serious, extensive and repeated breaches of the regulations that should safeguard the attorney-client privilege by the Public Prosecution Service that were discovered, undermine the trust that the member of public has in that what he discusses in confidence with a lawyer remains confidential. The lack of accountability in this respect by the Public Prosecution Service reinforces this breach of trust. The issue exceeds the breach of a suspect’s individual legal interests in concrete criminal proceedings, and affects the trust in the administration of justice as a whole. With this in mind, the court considers a bar to the prosecution of the suspects to be the only appropriate sanction. The court has also considered the severity of the submitted accusations against the suspects to be tried, such as engaging in a criminal organization of a long period of time. The court however considers the importance of the prosecution and trial of these serious suspicions for society to be subordinate to the aforementioned legal interests.”77 An appeal against this decision was instigated but has been retracted. Case law from a later date however, shows that the inadmissibility of the case because of violations of the attorney-client privilege is certainly not a given.78 In fact, more often than not, the public prosecutor can still try the case despite infractions being ascertained. The contents of any correspondence will have to be excluded as evidence and disregarded altogether at trial, but—as we have just seen in the previous paragraph—a case will only have to be thrown out when the defendant cannot have a fair trial because of the infraction(s). The mere fact that privileged conversations were not destroyed immediately (and maybe even added to the file), will in general not be enough. In the example where the infraction on privileged communications leads to the arrest of the suspect, the Court of Appeal had declared the case inadmissible because the privileged information was used in the operation to apprehend the defendant. The Supreme Court overturned that decision with the following reasoning: “(...) without more detailed reasons or failure to state reasons, it is not understandable that the fact that police has wrongfully used information on the location of the suspect in order to arrest him compels the ‘conclusion that in this particular case the interests of the suspect during the preliminary investigation have been neglected grossly in such a way that there is a significant chance that – if the Public Prosecution Service bar the prosecution of the suspect – the right of the suspect on a fair trial would be weakened’.”79

77 See for one verdict Rechtbank Amsterdam 20 December 2007, ECLI:NL:RBAMS:2007: BC0685. 78 See Noorduyn and Groendijk (2011), pp. 31–38. 79 Hoge Raad 16 June 2009, ECLI:NL:HR:2009:BH2678.

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6 Access to a Lawyer During Trial Although the layout of a court room can differ between court houses, counsel normally sits next to or behind the defendant.80 They are free to communicate (quietly and privately) during the events of the trial. They could also ask for a short recess to confer. This is not regulated, because during the trial the law only allows for short interruptions for—put shortly—the long duration of proceedings (for instance in case of several court days),81 or longer recess in the interest of the investigation.82 Breaks could of course nevertheless be called for, given certain (unexpected) events during the trial. These are normally granted. Only when the defendant is incarcerated or when problems are expected, officers will be present to keep order (parketpolitie, tribunal police). But even then the defendant can move freely and speak to his counsel. Officers can be seated close to the defendant, but will normally not be able to hear what is said quietly between them.83 During recess it will be possible for counsel to speak confidentially with a defendant that is incarcerated, somewhere in the court room, court house or in jail (in case of more than one court day). If the defendant is not incarcerated, the defence can find a quiet place inside or outside the court house to confer. When the breaks last longer, they could also meet at the office of the advocate. This topic rarely gives cause for problems, as far as we know.

7 Challenges Ahead: Codifying the Attorney-Client Privilege 7.1

Introduction

It follows from the previous chapters that the attorney-client privilege and the obligation of secrecy are firmly established in Dutch theory and practice. The CCP, case law and Code(s) of Conduct provide an adequate protection of legal privilege, for it can only be breached for a limited amount of reasons. The system is 80

The defendant is free to wear the clothes he wants (no orange jumpsuits) and is not handcuffed or shackled in any way, nor is he placed in a cage of some sort. 81 Art. 277 para. 2 CCP. 82 Art. 281 CCP. One statutory exception is a (short) break in case the charges get altered on request of the public prosecutor and proceedings cannot continue straight away. Depending on the nature of the alteration, the trial is then suspended for either a certain period or at least interrupted for a couple of moments. See Art. 314 para. 2 CCP. 83 One of the authors had the opportunity to confer confidentially in the court room via an interpreter with a client who was in custody, with only the officers present at a distance. Both the judge and the clerk, as well as the public prosecutor actually left the court room. Compare and contrast Khodorkosvkiy v. Russia, Appl. no. 5829/04, of 31 May 2011, para. 231. Recently a defendant even had the opportunity to assault a judge.

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aimed at respecting the legal privilege as much as possible, either when counsel and client communicate in person or otherwise, or when privileged information is stumbled upon in any other way. The opinion of the lawyer on whether legal privilege is applicable always comes first. His opinion has to be respected. As explained in Sect. 5, exceptions are only allowed in very special circumstances and—we find this very important—only after a step-by-step procedure. Does the professional entitled to legal privilege give his consent? When the legal privilege is invoked, law enforcement can only access the information after permission from the investigative judge (and possibly an objection procedure). In particular, this procedure is a guarantee for securing the legal privilege against pressure from police services and others to obtain and use confidential information too soon. It should be noted that such a procedure is not required by for example the ECtHR, but rather that this is an achievement of Dutch law. This achievement is not applauded by everyone. We already have referred to attempts of public prosecutors to get the legal privilege reduced and the critical views from the FATF, amongst others. And indeed, in the current phase of preparation of a new Dutch CCP calls for a more lenient procedure and a reduction of the legal privilege have been brought forward. Therefore, the new provisions dedicated to the legal privilege should be scrutinized carefully.

7.2

The Proposal for a New CCP

The first and second books of the new Code of Criminal Procedure that—in concept—were made public in February 2017, contain two provisions which are particularly interesting for our discussion. The first one is Art. 1.6.2.2.2 (as a replacement of the current Art. 218 CCP): Witnesses, who in the exercise of their duties, profession or position are obliged to secrecy implying that the interest of establishing the truth has to give way to the public interest that everyone must be able to come to them for advice and assistance freely and without fear of disclosure, can claim exemption from answering certain questions. They can only claim exemption of knowledge on that which is directly connected to this specific performance of duties.

Compared to the current Art. 218 CCP, the legislator wants to codify the rationale behind the attorney-client privilege. The choice of words make it abundantly clear that the legal privilege is of general interest, rather than merely in the interest of a single criminal case. What will also be different is that a lawyer can no longer refuse to testify altogether, as is the case under the current provision. The lawyer must appear when summoned by a judge. This does occur in practice, although very rarely.84 Under the new legislation an attorney is still obliged to appear but can only

84 In 2007, a well-known lawyer had to appear before an investigative judge to testify about a client who was supposedly also his friend. The public prosecutor and the investigative judge were of the

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excuse himself of answering a question when it concerns his knowledge about something that is directly connected to his professional practice. In practice, this will not result in any (significant) changes, because the privilege not to testify at all or deny answering certain questions can now too only be invoked when it concerns “that of which the knowledge has been entrusted to them as such” (Art. 218 CCP, cited in full in para. 3). The second provision—in concept—that is of importance is Art. 2.7.6.2.2.2, which is meant to replace the current Art. 98 CCP85: (. . .) data or information derived from objects that are considered privileged cannot be taken note of, unless: a. the professional entitled to privilege gives permission for this; b. the objects or data of the object are part of the criminal offence or have been part of committing a criminal offence; or c. because of very exceptional circumstances the importance of establishing the truth outweighs the public interest in some cases, as specified in Art. 1.6.2.2.2.86

In sub a., the current phrasing in Art. 98 para. 1 CCP that “from persons who are entitled to invoke the legal privilege, unless with their permission, are not seized any documents, to which their obligation to secrecy extends”, is reformulated. One could argue whether the proposed sub a. is stating the same. Art. 98 CCP actually implies/ states that the lawyer can invoke the legal privilege on the ground that a document is connected to his obligation to professional secrecy. Permission can be given to seize a document, if the lawyer considers that there is no reason to invoke the legal privilege. Sub a., however, suggests that a lawyer could give his permission to seizure even when there is reason to invoke the legal privilege. This would clearly be a different situation, one in which one can wonder if the lawyer is not violating professional rules/the rules of his profession and if the general character of the legal privilege is sufficiently recognized (if a lawyer could decide to provide confidential information just like that, would people still feel free to entrust a lawyer with information?). A first recommendation would be to redraft sub a. to bring it in line with Art. 98 para. 1 CCP. We move our attention to sub c., the very exceptional circumstances in which case the privilege can be overturned (besides in case of permission from the privileged person, sub a. or in case of documents that are corpora or instrumenta opinion that some information was not privileged. Nevertheless, the lawyer refused to answer questions on that matter and was backed by the local Dean of Amsterdam. The magistrates left it at that. See for a short recap of the affair, Bannier (2007). One of the authors knows from his own experience of a case in 2008, where a lawyer witnessed the manslaughter of the opposing party committed by his client at the time a civil law suit between them was pending (the manslaughter actually happened when they ran into each other on the street). When summoned by the investigative judge, the lawyer had to testify about the incident and was supported by the local Dean of Dordrecht. It was not an incident of which he could exclude himself as a witness. 85 Largely based on parts of Art. 98 CCP. 86 When the investigative judge has to decide whether the information that is seized is privileged, he and appointed employees can peruse it. See Art. 2.7.6.2.2.3 para. 5 CCP (in concept). The contents cannot be disclosed, however.

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delicta, sub b.). Beyond any doubt this part meant to codify the criterion used by the Supreme Court to consider if the legal privilege should be overturned. The problem is that, even if this is explicitly confirmed in the explanatory memorandum, as a new piece of law, it could give rise to thoughts that this criterion, as every other wording chosen in legislative proposals, could be subject to change for any other reason. Indeed, amendment in Parliament could be something to expect. In the end, this codification could prove to be a slippery slope. Breaching of legal privilege could become too common. More and more situations could qualify as being very extraordinary to legitimize a breach. This concern has already been voiced, and we would like to endorse it.87 A clear asset of the new CCP is that it comprises a draft regulation on seizure of correspondence between a lawyer and his client not in the lawyer’s office, but elsewhere, for example in the offices of a company. In Sect. 5.3 we examined how this is dealt with in a suboptimal way under the current legislation. Art. 2.7.6.2.3.1 reads: 1. When during the searching of premises of a person not being an attorney-at-law, there arises a reasonable suspicion that any document about to be seized would be covered by the legal privilege, police officers refrain from taking note of its content. 2. The content of the said documents can only be taking note of after the investigative judge has given his permission, following to Art. 2.7.6.2.2.2. 3. Before rendering a decision the investigative judge (. . .) invites the attorney involved to give his opinion on whether the document falls within the scope of the legal privilege. He also collects the opinion of the Dean of the Bar association.

However, in practice, implementing the proposed procedure may be difficult. This has to do with the way searches are performed in our digital society. Think of an inquiry into a complex fraud case, where the suspect is a big company. A search into the data files of the suspected company will likely be conducted not by entering computer data on-site. Nor will computers be seized physically. The police will rather make a digital copy of information to be found on the computer servers of the company (a kind of provisional seizure) and search it afterwards by making use of queries. In a lot of cases, the copied data of the company will contain some correspondence with lawyers (on whatever matter). These documents have to be identified and subsequently it has to be determined whether they are covered by legal privilege. How to handle this situation? The draft Art. 2.7.6.2.3.1 seems to suggest that in those cases, the entire data files should be sent over to the investigative judge, before any seizure may take place. But the investigative judge does clearly not have the technical means nor the time to perform a careful search of big data by himself. An alternative solution would be to rely on instructions of the investigative judge on how to “filter out” documents that are possibly covered by the legal privilege, that could be executed, under his supervision, by law enforcement officers. This could turn out to be the way forward, because new digital technology is capable of screening big quantities of information very rapidly. And if artificial intelligence is

87

See Brouwer (2017); Nan (2017), para 3.

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used, the same software tool could be able to recognize correspondence falling within the scope of the legal privilege and single it out from seizure. In case law enforcement asks for it, the investigative judge may decide on the eventual access of the content of the singled out documents (applying the procedure set out in Art. 2.7.6.2.3.1 al. 2 and 3). As a matter of fact, in 2019 the Dutch Ministry of Justice has organized a challenge for ICT-start up companies where they were asked if they could develop such a software tool.88

7.3

Some Recommendations

We would argue that the legislator, in the process of codifying the attorney-client privilege, starts with analysing and recognizing as such, what we consider to be the core of that privilege under Dutch law. It has always been put forward that it is a matter of the general (public) interest that interfering with the privilege does not happen too soon and not too often. It could scare off people, preventing them from seeking legal advice, exercising a fundamental right. All participants of the legal system need to feel the urgency to uphold the privilege as much as they can. It should only be possibly breached as a last resort to solve a case (according to the principle of subsidiarity), and as seldom as possible (according to the principle of proportionality).89 Any new regulation of the attorney-client privilege should contain enough guarantees in order to materialize this. In our view, a convincing way to endorse the legal privilege is the step-by-step procedure, always starting with asking the lawyer concerned if the wanted documents (or wiretapped conversations) are subject to the attorney-client privilege. This should be adopted into and highlighted in the new legislation. The decision on seizure should be the exclusive competence of the investigative judge; this is envisaged for the proposed new legislation. This brings us to a second recommendation. The investigative judge, who has a controlling function in the framework of Dutch criminal procedure (not directing the investigation in a criminal case, but monitoring the investigation conducted by the public prosecutor and performing investigative acts upon request by either the public prosecutor or the defence), should play a firmer role in preventing breaches of the legal privilege in the area of the interception of telecommunication. Three different provisions could be amended to this effect. Firstly, we would plead for a provision which endorses the current Governmental decree providing that the communication on registered telephone numbers cannot be intercepted. A possibility is to add a

As part of the so-called program “Start up in Residence II”: https://startupinresidence.com/ ministry-of-security-and-justice/socialissue/filter-info-uit-de-bulk (accessed 16 August 2019). 89 Those general principles will be codified as well in Art. 2.1.2.2 (in concept). That authorities need to be careful is acknowledged in the Aanwijzing toepassing opsporingsbevoegdheden en dwangmiddelen tegen advocaten (Stcrt. 2011, 4981). 88

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procedure for an exception, with the same criterion of very exceptional circumstances, to be decided by the investigative judge. Secondly, the investigative judge should also be positioned likewise in terms of wiretapped conversations on suspects’ communication, including confidential communication with a lawyer. Art. 2.8.1.4.1 (in concept), drafted the same as the current Art. 126aa para. 2 CCP, will regulate this more generally in case of special investigative measures that generate privileged data. Para. 1 and 2 read: As far as data is obtained concerning communications by or to a person who is able to request to be excused [to testify] if he were to have been asked about the contents of these statements as a witness, this data will be destroyed. As far as data contain statements other than those according to the first sentence made by or to a person as is described in that sentence, they are not added to the official reports until after prior authorization by an investigative judge (. . .).

We would strongly advise to consider if the role of the investigative judge again should not be exactly the same as in case of a seizure of data or information derived from objects. This would mean: not taking any notice of the content before the investigative judge has given permission, again on the criterion of very exceptional circumstances. Unlike the regulations concerning the seizure of documents, these suggested provisions do not forbid taking note of the information. Also, we would argue that the legislator should reconsider if the collection of historical data of the telephone of a lawyer should not be the subject of a special permission by the investigative judge. We agree that historical data does not directly concern the content of the communication between lawyer and client, but it is clear that in some cases the possibility (the right of access) to seek legal assistance from a lawyer could suffer from police surveillance (for example in the case of a person wanted by the police who would like to be informed on his legal position by his counsel). And also, the mere fact that there has been contact between a person and his lawyer could provide law enforcement with some sort of information. Finally, the proposed criterion of “very exceptional circumstances where the importance of establishing the truth outweighs the public interest” should be examined thoroughly. We would suggest that this criterion applies first and foremost to abuse: situations where the privilege is being used unlawfully by both the client and/or the attorney. For example, when counsel is only being (ab)used by a client to shield his illegal activities, or when counsel himself is suspected of being involved in serious crimes, privilege can and should be overturned.90 When privilege is used improperly to shield the forbidden contents of documents and conversations/deliberations, there simply is no professional secrecy that needs to be respected in the first

90

Once in a while lawyers are suspected themselves, possibly warranting search and seizures. For two recent examples see Hoge Raad 1 July 2014, ECLI:NL:HR:2014:1565, NJ 2014/475 and Hoge Raad 31 May 2016, ECLI:NL:HR:2016:1006 (more information on the case can be found in the advice of the advocate-general, Parket bij de Hoge Raad 16 February 2016, ECLI:NL: PHR:2016:402).

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place. Sending an attorney correspondence or including him in correspondence with others should not be a possibility to escape scrutiny, nor does “hiding” one’s administration in the office of the attorney.91 This approach can also be seen in the case law of our Supreme Court: “Correspondence between others than the professional entitled to privilege and the person that has consulted them, is not a letter or document [that is privileged] (...). If a copy of that correspondence is sent to the civillaw notary – as opposed to what the plea claims – it cannot be stated that therefore its contents can be considered knowledge that has been entrusted to the civil-law notary in connection with his legal services.”92 In those cases, there is no privilege because it does not involve his status as lawyer as such. Therefore, there will be no objection to the interference of the correspondence between the parties involved. The problem is solved by means of the last part included in Art. 1.6.2.2.2 (“They can only request to be excused on the knowledge of that which is directly connected to this specific performance of duties.”), read together with Art. 2.7.6.2.2.2 (both in concept). The same goes for intercepted (telephone) conversations etc. that the investigators came across during the course of the investigation when special investigative measures were deployed, both now as well as in the future. Even when, analysing case law of the Supreme Court, abuse seems the predominant “very exceptional circumstance”, the criterion opens the door widely to all kind of other “very exceptional circumstances” because of its wording. Although we would not like to exclude that—at least in theory—there can be an absolute need to overturn the legal privilege for reasons other than abuse, that really is totally “exceptional”. So, why not mentioning primarily and explicitly abuse as a reason, instead of the very open criterion of “very exceptional circumstances”. This would be a better point of reference in practice and provide a clear lead.

8 Conclusion In the Netherlands, the confidentiality of the communication between the lawyer and his client is relatively well protected. In our analysis we have come across what we consider to be the specific achievements of Dutch law, but we also have pointed out possible improvements. While many legal practitioners cherish the attorney-client privilege, others including police, some public prosecutors, politicians from several political parties or international bodies like the FATF criticize it. The perspective of codifying the legal privilege in the framework of the new Dutch CCP serves as an

These are thoughts of our legislator, see the explanation of the concept of the first book of the new CCP. 92 Hoge Raad 26 January 2016, ECLI:NL:HR:2016:110. Notary public can easily be replaced by lawyer, see Hoge Raad 10 November 2015, ECLI:NL:HR:2015:3258. 91

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inspiration for both sides to reiterate their arguments. Sometimes virulently. In this contribution, we have tried to provide some solid grounds for the legislative process. An interesting new element is the possible contribution that new digital technology could provide to secure legal privilege.

References Altena AP, Mooijen J (2015) Enkele vragen rondom het professioneel verschoningsrecht in fraudezaken. TPWS 11:16 Bannier FAW (2007) Het verschoningsrecht en de ‘affaire Meijering’. NJB 19:1159–1163 Blackstock J, Cape E, Hodgson J, Ogordova A, Spronken T (2014) Inside police custody: an empirical account of suspects’ rights in four jurisdictions. Intersentia, Cambridge Blok AJ, Besier LCH (1925) Het Nederlandsche strafproces, vol 1. Tjeenk Willink, Haarlem Brouwer DVA (2017) Modernisering van het Wetboek van Strafvordering: poging tot een tussenbalans. Strafblad 1:99–106 Chauveau A, Hélie F (1863) Théorie du Code pénal. Bruylant-Christophe et compagnie volume II, Brussels FATF/OECD, IMF (2011) Mutual evaluation report Netherlands. www.fatf-gafi.org. Accessed 18 Sept 2017 Halliday T, Levi M, Reuter P (2014) Global surveillance of dirty money: assessing assessments of regimes to control money-laundering and combat the finance of terrorism. Center on Law & Globalization, Illinois. http://orca.cf.ac.uk/88168/1/Report_Global%20Surveillance%20of%20 Dirty%20Money%201.30.2014.pdf Hélie F (1866) Traité de l’instruction criminelle, vol 4. Plon, Paris Leenders V (2014) Beperk voor advocaten het verschoningsrecht. https://www.nrc.nl/nieuws/2014/ 03/08/beperk-voor-advocaten-het-verschoningsrecht-1352554-a657000. Accessed 5 Sept 2017 Lintz JM, Verloop PC (2009) Het professioneel verschoningsrecht: soms zijn er grotere belangen dan de waarheidsvinding in strafzaken. Delikt & Delinkwent 10:1039–1066 Mooijen J (2013) David en Goliath: zin en onzin van het verschoningsrecht in de commerciële praktijk. Het Financieele Dagblad May 18, 2013:6 Mooijen J (2017) Geheimhoudersstukken in een kantooradministratie. Tijdschrift voor Sanctierecht & Onderneming 1:5–12 Nan JS (2017) Kroniek van het straf(proces)recht. NJB 35:1012–1026 Noorduyn CW, Groendijk FBW (2011) Het niet-vernietigen van geheimhoudersgesprekken: de balans opgemaakt. Strafblad 3:31–38 Perez E, Heinerman S (2016) Netherlands. Getting the Deal Through – Legal Privilege & Professional Secrecy 2016:40–44 Sluysman JAMA, de Graaff RL (2016) Het avontuurlijke verschoningsrecht. NJB 31:2245–2252 Stevens L, Verhoeven WJ (2010) Raadsman bij het politieverhoor. BJu, The Hague Wefers Bettink HW, Hoekstra TP (2012) Legal privilege and confidentiality in the Netherlands. In: Greenwald D, Russenberger M (eds) Privilege and confidentiality: an international handbook, 2nd edn. Bloomsbury Professional, Croydon, pp 209–222

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Joost S. Nan (1977), graduated from Leiden University in 2003. He started out in a general law practice with Gilhuis Advocaten (Dordrecht), specializing in criminal cases. He also started writing his dissertation on the lex certa principle, which he finished in 2011 at Tilburg University, under the supervision of Prof. De Roos and Prof. Kooijmans. He has been with the Erasmus University Rotterdam since 2013 and is now an associate professor. He writes mostly about criminal procedural law. At Wladimiroff advocaten he still handles criminal cases pending before the Supreme Court in the Hague. Pieter A. M. Verrest is full professor of criminal law and procedure, especially European and international criminal law at Erasmus Law School Rotterdam. His research focuses mainly on comparative law as a means to gather new insights for the development of national and European criminal law and procedure. In parallel Prof. Dr. Verrest is working in the Criminal law section of the Netherlands Ministry of Justice, where he is responsible for new legislation in the area of criminal procedural law. He also represents the Netherlands government in the negotiation of international instruments on criminal law and judicial cooperation. In 2018, he was appointed managing director for the drafting of the new Dutch Code of Criminal Procedure.

Confidentiality of Correspondence with Counsel as a Requirement of a Fair Trial in Portugal Vânia Costa Ramos, Carlos Pinto de Abreu, and João Valente Cordeiro

Abstract The article offers a practical perspective on the right to legal assistance based on the authors’ experience in criminal defence. It is written by practising lawyers, but could and should be subject to scrutiny and discussion by other judicial actors and lawyers in general. It begins by presenting the general legal framework of the right to counsel in Portugal, and in particular in criminal cases. It focuses on the legal duties of the defence counsel, the attorney-client privilege, its exceptions and the consequences of its infringement. Then, aspects of the pretrial right to counsel during the preliminary investigation in criminal cases are outlined, followed by the topics of state intrusion into the confidentiality of attorney-client communications and a brief presentation of related exclusionary rules and nullities. The article ends with a section dedicated to a critical analysis and suggestions of reform. The importance of this article from an international perspective lies in highlighting how the Portuguese legal system establishes the right to defence in criminal cases as an absolute right, standing out internationally in the field of protecting the confidentiality of attorney-client relations, with its wide protection of the prerogatives of the criminal defence mandate, at least on the legislative level. Keywords Access to lawyer · Attorney-client communications · Attorney-client privilege · Confidentiality · Criminal defence · Criminal procedure · Duty defence lawyer · Exclusionary rules · Legal aid · Legal privilege · Mandatory counsel ·

V. Costa Ramos (*) Research Centre for Criminal Law and Criminal Sciences, University of Lisbon, Faculty of Law, Lisbon, Portugal e-mail: [email protected] C. Pinto de Abreu Carlos Pinto de Abreu e Associados, SP RL, Lisbon, Portugal e-mail: [email protected] J. Valente Cordeiro National School of Public Health, Nova University, Lisbon, Portugal e-mail: [email protected] © Springer Nature Switzerland AG 2020 L. Bachmaier Winter et al. (eds.), The Right to Counsel and the Protection of Attorney-Client Privilege in Criminal Proceedings, Ius Comparatum – Global Studies in Comparative Law 44, https://doi.org/10.1007/978-3-030-43123-5_9

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Mandatory legal assistance · Right of defence · Right to counsel · Fair trial · Search of lawyer’s offices

Abbreviations CCBE CCP ECHR ECtHR PBA PC PConst REPS SINOA SIR SPBA

Code of Conduct for European Lawyers of the Council of Bars and Law Societies of Europe Code of Criminal Procedure European Convention on Human Rights European Court of Human Rights Portuguese Bar Association Penal Code Portuguese Constitution Regulation of Exemption from Professional Secrecy of the Portuguese Bar Association Information System of the Portuguese Bar Association Statement of Identity and Residence Statute of the Portuguese Bar Association

1 Preliminary Information About the Right to Counsel 1.1

General Legal Framework of the Right to Counsel in Portugal

The right to counsel1 is a well-established right in the Portuguese legal system that enjoys constitutional status in the democratic 1976 Constitution. Article 20 Portuguese Constitution (PConst), inspired by Art. 6 of the European Convention on Human Rights (ECHR), lays down the right to a fair trial, to a legal remedy and to legal assistance, under the title “access to law and to effective judicial protection”. The right to legal assistance is guaranteed in §2 of this constitutional provision which states that “[s]ubject to the terms of the law, everyone has the right to legal information and advice, to legal counsel and to be accompanied by a lawyer before any authority”. As a consequence, every person has a right to legal assistance before any authority,2 which evidently encompasses authorities conducting or assisting in

1 For a more detailed analysis of the right to counsel in Portuguese criminal proceedings, also regarding victims, see Costa Ramos and Churro (2019), pp. 305 ff. on which we have drawn for the explanations on the general framework of the right to legal assistance and the definition of suspect and of accused. See also Abreu (2008) and Silva (2014a). 2 For further details on this right, see Silva (2001).

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criminal proceedings, irrespective of their status (defendant, witness, expert). Within criminal proceedings the right of the accused to legal assistance is moreover explicitly recognised in Article 32§3 PConst. The role of the lawyers is constitutionally recognised as essential to the administration of justice. Art. 208 PConst,3 added in 1997, states that “[t]he law shall ensure that lawyers enjoy the immunities needed to exercise their mandates and shall regulate legal representation as an element that is essential to the administration of justice”.4 This fundamental provision is a source for the legal protection of the privileges and immunities applicable to lawyers discharging their professional duties. The Law on Organization of the Judiciary5 and the Law on the Portuguese Law Bar Association6 implement the constitutional mandate.7 Lawyers may not be prevented from exercising their role and enjoy all privileges and immunities needed to do it in an unbiased, independent and responsible manner, namely those of: (1) protection of professional secrecy (attorney-client privilege); (2) the right to exercise legal assistance freely and not to be sanctioned for the exercise of any acts in conformity with the professional rules; (3) the right to special protection of the communications with the client and to the protection of secrecy of any documents concerning the exercise of the rights of defence (attorney-client privilege); (4) the right to special regulations concerning sealing, listing and searches conducted in their professional premises, as well as concerning seizure of documents.8 Except for criminal prosecution against the defence lawyer herself, the attorneyclient privilege concerning the defence counsel in criminal proceedings is, in our view, in principle, almost absolute—there are very limited exceptions to the confidentiality of communications between defence lawyer and client.9 At most, there may be extreme and exceptional situations in which the proportional breach of such a duty may be justified or excused by a state of necessity.

3

Available in English at http://www.en.parlamento.pt/Legislation/CRP/Constitution7th.pdf. For more details about this constitutional provision, see Miranda and Medeiros (2007), annotation to Article 208, pp. 98 ff. 5 Law 62/2013, of August 26, 2013, available in Portuguese at http://www.pgdlisboa.pt/leis/lei_ mostra_articulado.php?nid¼1974&tabela¼leis. 6 Law 145/2015, of September 9, 2015, available in Portuguese at http://www.pgdlisboa.pt/leis/lei_ mostra_articulado.php?nid¼2440&tabela¼leis&so_miolo. 7 The privileges and immunities of lawyers were already established in statutory law before 1997. 8 Art. 13 Law 62/2013, of August 26, 2013, and Articles 66(3), 69, 72, 75, 76, 77, 78, 79, 80, 88, 89, 92 and 113 Law 145/2015, of September 9, 2015. 9 See Art. 179(2) and 187(5) CCP. See, however, the references below in Sect. 4. 4

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Right to Counsel for Witnesses

The Code of Criminal Procedure (CCP)10 reflects these constitutional provisions. In what concerns witnesses, Article 132(4) CCP states that witnesses may have the assistance of a lawyer when questioned. The lawyer’s role is limited to advising the witness on her rights without interfering in the questioning (e.g. the lawyer may advise the witness: not to answer a certain question, if that would incriminate the witness; on the exercise of testimonial privilege; on requesting to be declared an accused, etc.). The defence lawyer of an accused may not represent a witness in the proceedings (Art. 132(5) CCP).11 Although there is no provision for the information about this right, courts and prosecution services often include the information about the right to legal assistance in the witnesses’ summons. We believe that there should be a clear legal provision to this sense, since legal assistance is crucial for the witness to exercise her rights, in particular, if appropriate, the right to ask to become an accused, as explained below.

1.3

Right to Counsel for the Suspect (suspeito) and Accused (arguido)

The CCP distinguishes between the “suspect” (suspeito) and the “accused” (arguido). A “suspect” is defined by Art. 1(e) CCP as a “person related to whom there is evidence that she has committed or is preparing to commit a criminal offence, or took part in that commitment or is preparing to take part in it”. Although the CCP does not contain a definition of “accused”,12 its definition may be discovered by examining the provisions underlying the status of the accused, i.e. his/her rights and duties within the criminal proceedings (Art. 60 and 61 CCP),13 and the requirements for the formal acquisition of that status (Art. 57, 58 and 59 CCP).14 As for suspects, the right to counsel applies in the same terms as for witnesses. It should be highlighted that, if during the questioning of or the request for information 10

The CCP is available in Portuguese at http://www.pgdlisboa.pt/leis/lei_mostra_articulado.php? nid¼199&tabela¼leis&nversao. There is a partial translation available at http://gddc. ministeriopublico.pt/sites/default/files/documentos/pdf/code_of_criminal_procedure_english.pdf. 11 Whether the witness can be represented by a lawyer of the same law firm as the defendant should be considered, in our view, according to the criteria established by provisions regarding conflict of interests of the Statute of the Portuguese Bar Association (SPBA). In the course of a secret investigation, this situation could possibly clash with procedural interests concerning the protection of the investigation or the danger of compromise or disruption to the acquisition of evidence. 12 See Caeiro and Costa (2013), pp. 550–551. 13 A non-official translation of these provisions is available in English at http://gddc. ministeriopublico.pt/sites/default/files/documentos/pdf/code_of_criminal_procedure_english.pdf. 14 A non-official translation of these provisions is available in English at http://gddc. ministeriopublico.pt/sites/default/files/documentos/pdf/code_of_criminal_procedure_english.pdf.

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from a person a well-founded suspicion of the commission of a crime arises, this person must be immediately and necessarily placed formally as an accused, as outlined below.15 The accused has a full right to legal assistance from the moment s/he is declared as such (Art. 60 and 61(1)(e) CCP). At this moment, the accused also receives oral and written information about her right to counsel (Art. 58 CCP) and a “letter of rights and duties” (termo de constituição de arguido). At the latest, the declaration of a person as formally accused must be communicated when an indictment is made (Art. 57(1) CCP). However, this is the exception rather than the rule—it only happens in practice if the accused has not been located during the investigations, since the CCP states that whenever a criminal investigation against an identifiable person is pending, this person must be interrogated at the latest before the decision on whether to bring an indictment.16 Therefore, the formal acquisition of the status of accused (constituição de arguido) normally happens before that. It is mandatory as soon as17: (1) a person makes statements before any judicial authority or criminal police body during an inquiry started against him/her, where there are reasonable grounds to suspect that such a person has committed a criminal offence; (2) a coercive or patrimonial guarantee measure must be imposed on a specific person; (3) a suspect is arrested under the terms and for the purposes of Art. 254–261 CCP; (4) a police report has been drawn up identifying a person as an alleged offender and such person has been informed on the contents thereof, unless the report is manifestly ill-founded. Furthermore, the CCP requires that where in the course of an interview with someone other than an accused person a reasonable suspicion that such a person committed a criminal offence arises, the authority conducting the interview shall immediately suspend it and declare that person an accused person. This may also occur upon request of such a person whenever investigations for purposes of confirming a suspicion are conducted that personally affect him/her.18 For these purposes, as stated above, it is important that a witness may be assisted by counsel. The violation of the provisions on the formal acquisition of the status of suspect triggers the application of an exclusionary rule (normally referred to as a “prohibition of valuation of the evidence”) concerning, at the very least, the statements made by that person (as well as any secondary evidence causally linked thereto).19 Once a defence lawyer has been instructed, or appointed by the state, s/ he will remain active throughout criminal proceedings, unless replaced by another defence lawyer.

15

Art. 250(8) and 59(1) CCP. Art. 272(1) CCP. See Caeiro and Costa (2013), p. 554. 17 Although legal entities may also be held liable for criminal conduct, provided that such responsibility is explicitly established in a statute, there are no specific procedural rules for legal entities in their capacity of accused persons. On this particular topic see Silva (2009, 2014b). 18 Art. 59 and 250(8) CCP. 19 Art. 58(5) and 122 CCP. 16

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The combination of these rules and the rules on mandatory legal assistance, which will be outlined below, mean that normally a person who is formally an accused not only has the right to assistance of counsel but is de facto assisted by counsel when arrested and before any interrogation. The practical execution of this right is however not always ideal, since the defence lawyer will often, sometimes due to lack of experience or due to the inadequate remuneration of the fees paid for urgent assistance in the legal aid scheme, but also when it comes to privately instructed lawyers, not visit the person in detention, but only meet her shortly before the interview takes place. This happens because authorities usually only appoint a defence lawyer at the moment when the accused requests it—typically before the interview starts and not at the outset of detention. This is the reason why we believe that there should be a defence lawyer in prison establishments, premises of the judicial police and other police stations. Although the person has a right to ask for a defence lawyer at any time (Art. 62 CCP), she does not always ask for one and the authorities will only appoint one ex officio before the interview, if the person does not instruct a defence lawyer privately, since mandatory assistance only applies “at the interviews of detained persons” (Art. 61(1)(a) CCP, emphasis added). In this framework, the role of the defence lawyer as a safeguard to the prevention of ill-treatment is weakened as it should imply the presence of the lawyer since detention and not just at the moment of interrogation.20 Also there might be shortcomings in the preparation of the interview, due to the short time that the defence lawyer has before being summoned for the interview and the start of the latter (the law determines that the person is to be brought before a judge 48 h after detention at the latest).

1.4

Right to Counsel for Indigent Persons and Appointment of Legal Aid Lawyers

Financial legal aid is available for the accused in any criminal case, irrespective of the severity of the offences she has been charged with. There is a means test

20

See in this regard European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (2011), available at https://rm.coe.int/16806ccd25 (accessed 12 August 2019). The ECtHR also recognizes this function (see, for example, Salduz v. Turkey, Appl. no. 36391/02, of 27 November 2008, §54; Nechiporuk and Yonkalo v. Ukraine, Appl. no. 42310/ 04, of 21 April 2011, §263). Within the European Union, it was also explicitly recognised in Directive 2013/48/EU of the European Parliament and of the Council of 22 October 2013 on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings, and on the right to have a third party informed upon deprivation of liberty and to communicate with third persons and with consular authorities while deprived of liberty (see recitals 28, 29 and Art. 3(2)(c)).

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established in the Law on Access to Law and to Courts,21 and further legal aid regulations. In practice, the accused always enjoys the benefit of legal assistance by a defence lawyer appointed ex officio, if a private defence lawyer has not been instructed. This defence lawyer is paid for by the state and the accused will only bear the respective costs if convicted.22 Lawyers working on legal aid are private lawyers that choose to participate in the legal aid system. When registering for legal aid, lawyers may choose the areas in which they want to work, one of them being “criminal law”. This applies to any qualified lawyer, irrespective of her experience and specialization in criminal law.23 The system for the appointment of legal aid lawyers operates in an automated manner. The bar is responsible for opening a call for legal aid registration each year. Thereafter lists of legal aid lawyers are drafted and distributed per judicial areas. The bar has a computer system (SINOA), which administers the appointment of lawyers. Each time the presence of a legal aid lawyer is requested, the responsible authority will make a request to SINOA and a name will be randomly drawn. The system is designed in order to guarantee that it is not possible to choose a specific lawyer and that lawyers receive an equal amount of cases (in order to avoid “pocket lawyers” and corrupt practices experienced in the past). The bar also organizes lists of duty defence lawyers. Lawyers in the legal aid system may also choose whether they want to participate in “duty service” (escalas). If so, each month the lawyer receives an e-mail from the bar indicating on which days s/he has prevention duty service (24 h availability to be called by telephone and attend a court or police station) and presence duty (physical presence in a determined court or police station during a morning or afternoon). For the prevention service, the appointment works as explained above—the authorities make a request to the system and a lawyer’s name is drawn. Lawyers are called pursuant to the sequence provided by the bar through its random automated system. For the presence service, the lawyers present are called in order of arrival to the premises of the court/police. Whenever a legal aid lawyer represents the accused, the latter is not free to choose her own defence lawyer. One will always be randomly drawn from the rosters by the computer system managed by the Portuguese Bar Association (PBA) from any name registered under “criminal law”. The impossibility of choosing the defence lawyer is clearly a violation of the principle of equality and minimum guarantees of defence, particularly in cases of high complexity or specialization of the matter, or even in

21

Law 34/2004, of July 29. The fees legal aid lawyers receive are established by a decree and are very modest in comparison to the fees of private lawyers. 23 To this date there is only one specialist lawyer in criminal law. Specialization has been introduced in late 2016. 22

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cases where the defendant does not speak Portuguese and intends to be defended by a defence lawyer with whom s/he can communicate directly.24

1.5

Mandatory Counsel Provisions

The Constitution states that the accused has the right to the assistance of counsel of her choice and specifies that the law shall determine in which cases and stages such assistance is mandatory (Art. 32§3 PConst). Mandatory assistance is based on the acknowledgment that the accused finds him/herself in a vulnerable position, either on procedural or on personal grounds. Accordingly, the CCP mandates legal assistance in the following situations—notwithstanding any other provisions mandating legal assistance—considered as “procedural vulnerability”: (1) interrogation of an accused who is deprived of her liberty; (2) interrogations conducted by judicial authorities; (3) in the pretrial hearing and in the trial hearing; (4) in the appeal stages; (5) where witness statements that may later be used in court (“statements for future memory”) are gathered; (6) in the trial hearings taking place in absence of the accused.25 In addition to those, due to the “personal vulnerability” of certain persons, the CCP mandates legal assistance in all procedural acts other than the formal declaration as accused (constituição de arguido), whenever the accused person has any visual, hearing or speech impairment or is illiterate, cannot speak or understand the Portuguese language, is under 21 years old, or where doubts concerning her mental capacity to stand trial are raised.26 In practice, there are few instances in which the accused is interviewed in criminal proceedings without the assistance of a defence lawyer—mainly where police authorities question the accused without having her arrested27 and during some evidence gathering acts if the accused speaks Portuguese and is above 21 years of age. Evidently, if the person has not been accused, interviews will mostly take place without the presence of a lawyer. The same could happen in certain instances of other investigative acts, as outlined below.

24 The law guarantees assistance by an interpreter and different from that of the court for confidential conversations with the defender. Nonetheless, such assistance is not identical and does not replace the possibility of communicating with the defence lawyer directly and without barriers. Also, there are practical barriers regarding the holding of meetings with a client with the assistance of an interpreter, as shown by the facts behind the Judgment of the Court of Appeals of Porto of 30.09.2015, case no. 347/10.8PJPRT-E.P1, Rapporteur Maria Luísa Arantes, available at http://www.dgsi.pt/jtrp.nsf/ 56a6e7121657f91e80257cda00381fdf/1d5953dbe1d6f4cf80257ee3002dae56?. 25 Art. 64(1)(a) to (c) and (e) to (g) CCP. 26 Art. 64(1)(d) CCP. 27 In this case the accused may oppose to his/her statements being used in a later stage—Art. 357 CCP.

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The Portuguese regime of mandatory assistance has been challenged at international level. Until 2006, it had been deemed in line with international law, namely the ECHR. But in 2006, the United Nations’ Human Rights Committee decided that there had been a violation of Art. 14 paragraph 3 (d) of the International Covenant on Civil and Political Rights since Portuguese criminal proceedings allowed no exceptions to mandatory legal assistance, irrespective of the severity of the charges and the complexity of the case and of the characteristics of the accused.28 The European Court of Human Rights (ECtHR) has nonetheless recently upheld the conformity of the system with the ECHR.29

2 Attorney-Client Privilege 2.1

Attorney-Client Privilege, Loyalty and Legal Duties of Defence Counsel

As indicated above, Art. 208 PConst affirms that legal representation is an essential element of the administration of justice. Consequently, the law ensures that lawyers in Portugal have a set of duties, prerogatives and immunities, which are necessary for the effective and full exercise of their mandate. Legal requirements imposed on lawyers in Portugal are specifically regulated in the SPBA,30 which is a binding statutory law. Rules contained in this document apply to all Portuguese lawyers including criminal defence lawyers. In general terms, Portuguese lawyers must advocate with respect to principles such as honesty, probity, loyalty, honesty, integrity and independence (Art. 88 and 89 SPBA). Among the duties inherent to the profession, professional secrecy and the duty of confidentiality (attorney-client privilege) assume vital significance. The attorney-client privilege is explicitly regulated in Art. 92 SPBA.31 In general terms, lawyers have a duty to keep every fact that comes to their knowledge as a result of professional practice secret. The scope of the attorney-client privilege encompasses: (1) facts that the client tells the lawyer directly or orders others to transmit to her; (2) facts that have come to the knowledge of the lawyer as a result of a position held in the Portuguese Bar Association; (3) facts relating to professional matters communicated by a lawyer with whom the lawyer is associated or with

28

Correia de Matos v. Portugal, Comm. 1123/2002, U.N. Doc. A/61/40, Vol. II, at 175 (HRC 2006). Correia de Matos v. Portugal, Appl. no. 56402/12, of 4 April 2018. Several judges issued dissenting opinions. 30 Law 145/2015, of September 9, available in Portuguese at http://www.pgdlisboa.pt/leis/lei_ mostra_articulado.php?nid¼2440&tabela¼leis&so_miolo. See also the Code of Conduct for European Lawyers of the Council of Bars and Law Societies of Europe (CCBE). 31 See also Section 2.3 of the CCBE. 29

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whom she cooperates; (4) facts communicated by a co-plaintiff, co-defendant or other interested party or its representative; (5) facts which have been brought to the attention of the lawyer by the opposing party or its representatives during negotiations to terminate a dispute; (6) facts which the lawyer has come to know in the course of any failed oral or written negotiations in which she has intervened (Art. 92 (1) SPBA). Importantly, according to Art. 92(2) SPBA the obligation of the attorney-client privilege exists irrespective of the service requested or committed to the lawyer involving judicial or extrajudicial representation, remuneration, or whether the lawyer has or has not come to accept and perform the representation or service, the same applying to all lawyers who, directly or indirectly, have any intervention in the service. Furthermore, professional secrecy also includes documents, letters or other objects, which relate, directly or indirectly, to the facts subject to secrecy (Art. 92(3) SPBA). Nonetheless, although unquestionably fundamental and essential for the exercise of legal assistance, professional secrecy or the duty of confidentiality or the attorneyclient privilege are not of absolute value and could be balanced with other competing legal interests colliding in certain highly limited cases (see below Sects. 2.2 and 2.4).

2.2

The Conflict Between the Lawyer’s Duties and Truth Seeking

According to the SPBA, Portuguese lawyers have a set of duties towards the community and towards the Portuguese Bar Association (Art. 90 and 91 SPBA, respectively). Among the latter, the regime of impediments and incompatibilities (Art. 81–87 SPBA) assumes distinctive significance, as it is intimately connected with the principle of independence, which is a cornerstone of the profession. According to the principle of independence (Art. 89 SPBA)32 Portuguese lawyers should act free from pressures of any nature, especially those arising from individual interests or external influence, while abstaining from neglecting professional deontology with the purpose of favouring the client, colleagues, courts or third-parties. Among the duties of lawyers towards the community, the defence of the good administration of justice is paramount. Portuguese lawyers should therefore not advocate against the law, use unlawful means or contrivances, unnecessarily delay or stall proceedings or pose obstacles to the correct application of the law and the ascertainment of the truth. Mutual trust between the lawyer and the client is also an essential value guiding the legal profession (Art. 97(1) SPBA). If there is no agreement between lawyer and client about the strategy to follow in a case, then there is no mutual trust and the lawyer should stop representing the client while ensuring that she is able to find 32

See also Section 2.1.1 of the CCBE.

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another lawyer in a timely manner (Art. 97(1) and 100(2) SPBA). Therefore, in principle the lawyer will not express an opinion different of that of the client in court.33 Yet, the duties towards the client do not override or exclude the application of the law. According to Art. 97(2) SPBA the lawyer has the duty to act in a way that defends the legitimate interests of the client, while abiding by the applicable legal and deontology rules. In any event, the duty of the lawyer not to act unlawfully or hinder the administration of justice does not oblige the lawyer, especially when acting as defence counsel, to aid in truth-seeking. In criminal cases the accused never speaks under oath and is not liable to commit perjury. In fact there was a scholarly dispute on whether the accused had a right to lie and it seems that presently it is accepted that the accused does have such a right to hinder truth seeking. If the accused would, however, seek the lawyer’s help to prevent truth-seeking by hiding relevant evidence, for example asking the lawyer to hide the murder weapon or handing over other relevant, material physical evidence to the lawyer, the lawyer’s duty, in our view, is to refuse to receive such evidence. This is clear concerning the murder weapon or other material physical evidence. The situation might be more complex concerning documents, since it is not always clear whether documents are evidence of an offence or not. Furthermore, the client might have provided documents to her lawyer in order for the latter to analyse their content and to advise her regarding possible criminal liability or as supporting documents to the explanations given to the lawyer about possible criminal suspicion. In those cases the lawyer should keep the documents and make sure that they are not destroyed or return the documents to the client after having analysed them. We believe that destruction of evidence by the lawyer, or aiding with such a purpose, is not acceptable from the deontological perspective, and could make the lawyer criminally liable. There is no duty for the lawyer to report any evidence s/he becomes aware of or where evidence is located, if the client has revealed it to the lawyer. The only situation where there might be obligations for the lawyer to act would be if the information given by the client reveals that there are persons at life risk, or there is a risk of severe bodily harm or serious infringements of their liberty. In such cases the lawyer should find a way to balance the two competing legal interests—protection of life or essential physical integrity or liberty and protection of legal privilege—and preferably find a way to report the whereabouts of the victim without disclosing from where or whom the evidence came from, for example by reporting it to the Dean of the Portuguese Bar Association who would then in turn report it to the authorities.34 In such cases, should that evidence lead to a discovery of evidence against the lawyer’s client, it could be disputed whether the evidence acquired could be used

33 This could occur in unexpected situations and the lawyer may consider whether mutual trust is still in place and, if not, remove herself from the case. 34 This is the system in place for reporting under money laundering regulations.

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against the lawyer’s client or not. This will in principle depend on whether the lawyer’s action of reporting is considered unlawful but excusable, or whether it is covered by a ground of justification, which would make the gathering of the evidence lawful (or if one of the exceptions to the fruit of the poisonous tree doctrine applies). We tend to consider the latter to be the correct interpretation. But we believe that there is no unanimous opinion and we do not know of any cases in which that has actually happened, as these would be extreme cases that are absolutely exceptional (for example the client or prospective client revealing that s/he has kidnapped a child who is still alive but will die within hours if there is no intervention).

2.3

Exceptions to Attorney-Client Privilege

The attorney-client privilege and exceptions thereto apply in the same way to all lawyers, trainee or admitted to the bar, in-house or independent, part-time or fulltime, paid or pro-bono. Portuguese law has no limitations in this regard for certain crimes, such as terrorism or organized crime. There are two main ways by which the attorney-client privilege may give way: the exemption from professional secrecy and the breach of professional secrecy. Both cases are of key importance and deserve special mention.

2.3.1

Exemption from Attorney-Client Privilege (dispensa de sigilo)

Exemption of professional secrecy must be requested on the initiative of the lawyer. The authorisation of a client given to the lawyer to reveal facts covered by the attorney-client privilege is not sufficient for the lawyer to be able to testify or disclose any facts or documents covered by the privilege. First and foremost, it should be noted that this mechanism is of extraordinary nature, i.e. it is only permitted in cases where it is unequivocally necessary for the defence of the dignity, rights and legitimate interests of the lawyer, her clients or their representatives. This is explicitly stated in Art. 92(4) SPBA and Art. 4(1) and (2) of the Regulation of Exemption from Professional Secrecy of the Portuguese Bar Association (REPS).35 In terms of procedure, the lawyer must submit a sustained application for exemption to the President of the Regional Council of the Portuguese Bar Association with jurisdiction over the geographical area covering the professional domicile of the lawyer.

35

Regulation 94/2006 PBA, of 25 May.

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After freely and independently assessing the elements of the process, the President will authorise or reject the request, based on an assessment on whether the revelation of the evidence subject to privilege is essential, present, exclusive and indispensable, or not (Art. 2(1) and (2); 3 (3) and 4 (3)e REPS). In case of rejection of the application (but not in the case of acceptance36), the lawyer can appeal directly to the Dean of the Portuguese Bar Association (Art. 6(1) and 7(1) REPS). Should the Dean uphold the rejection, the lawyer must fully respect professional secrecy or face consequences (see below Sect. 2.4). This procedure also applies to all areas covered by legal privilege, including the documents held by the lawyer that are related to the discharge of the lawyer’s functions.

2.3.2

Breach of Attorney-Client Privilege (quebra de sigilo)

It should be noted that the lawyer is not obliged to testify against her client and is not obliged to ask for exemption of the attorney-client privilege, if summoned to appear as a witness. Typically the lawyer would ask for exemption in order to protect her client’s interests, or the lawyer’s dignity, rights and interests, if harmed by the client. Accordingly, Art. 135(1) CCP, establishes that lawyers37 may excuse themselves from testifying on facts covered by privilege. In such cases the presiding authority will assess the legitimacy of the excuse (are the facts covered by secrecy?) and its justification. In case the judicial authority before which the excuse has been invoked has wellfounded doubts as to the legitimacy of the excuse, it should first conduct the necessary investigations, which includes seeking the opinion of the Portuguese Bar Association (Articles 135(2) and (4) CCP, Art. 92 SPBA). The decision on the legitimacy of the exemption to testify has a formal nature (i.e. it deals merely with the fulfilment of formal statutory requirements). If the judicial authority concludes that the exemption is illegitimate (i.e. that the facts are not covered by privilege), it shall order, or (where the presiding authority is a prosecutor) apply for the court to order that testimony is given. On the contrary, if the facts are covered by privilege, the decision about the justification for the breach is in turn a material decision, which must obey the criteria of the “prevailing interest considering, in particular, the need for evidence in order to

36 The favourable decision of exemption from professional secrecy is unappealable (Art. 5 REPS). However, in respect of the principle of independence (Art. 81(1) and 89 SPBA) the lawyer can still reassess the situation and choose to respect professional secrecy. 37 As well as the religion or religious confession ministers, doctors, journalists, members of credit institutions and all other persons to whom the law allows or imposes secrecy.

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ascertain the truth, the severity of the crime38 and the need to protect legal interests”39 (Art. 135(3) CCP). This decision may only be made40 by a higher jurisdiction than the court in front of which the exemption has been invoked41 or the plenary of criminal sections in case the exemption has been argued before the Supreme Court of Justice, after having asked an opinion from the Portuguese Bar Association (Art. 135(3) and (4) CCP). The dominant case law is of the view that the opinion of the Portuguese Bar Association is not binding for the court, although it is mandatory to seek it prior to the decision of the court.42 Should the higher court decide that the breach of privilege is not justified, all acts performed by the attorney in violation of privilege may not be used as evidence (Art. 92(5) SPBA). Here, again, the authorisation of a client given to the lawyer to reveal facts covered by the attorney-client privilege is not sufficient for the breach of privilege to be ordered. This procedure also applies to all areas covered by legal privilege, including a subpoena to obtain the documents held by the lawyer that are related to the discharge of the lawyer’s functions (Art. 182(1) and (2) CCP).43

38

Legal doctrine has drawn an analogy with the requisites defined in Art. 187(1) CCP regarding the interception and tape-recording of telephone conversations or communications during the investigation, which is only authorised regarding the following criminal offences: (a) criminal offences to which a custodial sentence with a maximum limit over 3 years applies; (b) drug-related offences; (c) possession of a prohibited weapon and illicit trafficking in weapons; (d) smuggling offences; (e) insult, threat, coercion, disclosure of private life and disturbance of the peace and quiet, whenever committed by means of a telephone device; (f) threat with the commission of a criminal offence or abuse and simulation of danger signals; or (g) escape from justice, whenever the defendant has been sentenced for a criminal offence of the preceding sub-paragraphs. 39 I.e. the protection of such assets is a pressing social need, similarly to what is referred to as “necessary in a democratic society” in Art. 8/2 ECHR. 40 Intervention is ordered by the judge, ex officio or upon request. 41 See Ac. de fixação de jurisprudência 2/2008 of the Supreme Court of Justice, date 13.02.2008, Proc. 894/07. Although dealing directly with banking secrecy the conclusions apply to other types of secrecy including the professional secrecy of the lawyer. 42 See Ac. of the Supreme Court of Justice of 21.04.2005 and AC. TRG of 05.11.2007 [Ac. TRG de 5-11-2007, CJ, 2007, T5, pág. 288], dealing with cases where the Bar Association did not authorise the testimony but the court ordered it still, citing Art. 2, 20, 32§1 and 203 of the PConst. 43 The Cybercrime Law seems to have a different regulation in this regard, since it states that no subpoena may be issued to obtain data from a computer system used for the lawyer’s profession. However, it also states that rules concerning exemption and breach of privilege apply to persons invoking professional secrecy (Art. 14(6) and (7) Law 109/2009). Therefore some authors state that the regime for subpoena established in Art. 182 CCP in this regard is also applicable and that the differentiation only implies that the authority that may order the subpoena must be the higher court, as established in Art. 135 CCP—see Albuquerque (2011), annotation to Article 182, §2. It should be stated that, if the authorities seek to obtain documents that are not covered by privilege at all, but are located in a law firm, or concerning which they believe the lawyer would be willing to ask for exemption of privilege, it is certainly preferable, also in regard to the principle of proportionality and the safeguard of privilege concerning the documents held in the lawyer’s premises to subpoena a lawyer for handing over the documents than ordering a search and placing the lawyer in the role of a suspect.

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Consequences of the Infringement of Attorney-Client Privilege by the Lawyer

If the lawyer breaches the attorney-client privilege she may be held disciplinarily, civilly and criminally liable. According to Art. 115(1) SPBA, if such an infringement is committed with intent or negligence, the lawyer commits a disciplinary infringement, which will be dealt with exclusively by the competent bodies of the PBA, following disciplinary proceedings (Art. 114 ff. SPBA). Since the infringement of the attorney-client privilege is an unlawful act, civil liability could also be a consequence if the intent or negligence, the damages and the causal link between the infringement and the damages are proven in a civil court.44 Furthermore, the lawyer who violates the attorney-client privilege may be liable for committing the crime of violation of secrecy (punished with a prison sentence of up to 1 year or a penalty of up to 240 days by Art. 195 PC45). Moreover, the lawyer who takes advantage of confidential information and causes damages to another person or the state may also be liable for committing the crime of “improper exploitation of secrecy” (punished with a prison sentence of up to 1 year or penalty of up to 240 days by Art. 196 PC). Finally, all information that results from an infringement of the attorney-client privilege is considered null and void and cannot be used as evidence (Art. 92 (5) SPBA and Art. 126(3) CCP). As will be outlined below, this also applies where violations of the attorney-client privilege result from the actions of authorities.

3 The Pretrial Right to Counsel During the Preliminary Investigation 3.1

Conditions for Counsel Meeting with Incarcerated Clients

3.1.1

Right of Counsel to Meet with an In-Custody Arrestee Before Any Interrogation

The accused who has been arrested (detido) has the right to be assisted by a defence lawyer in any procedural acts where she takes part and to consult in confidence with such lawyer including while in detention (Art. 61(1)(f) CCP). Before the

44 The contractual (Art. 790 ff. Civil Code) or tort (Art. 483 ff. Civil Code) nature of the civil responsibility in such cases remains controversial. 45 Sanction limits can be aggravated by up to one third if the crime is committed to gain a personal advantage, to the benefit of a third party or to cause a damage to a third person or the State, or if the crime is committed through the media (see Art. 197 PC).

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arraignment (up to 48 h) the accused has the right to contact her defence lawyer “at any time, day or night” (Art. 124(2) Law 115/2009, of 12 October46). In addition to that right, the defence counsel also has a right to communicate, in person and in confidence, with her clients while the latter are in detention (Art. 78 Law 145/2015, of September 9). In practice, counsel has the right to meet with the in-custody arrestee at any time and before any interrogation takes place. Since legal assistance in interrogations of detained persons is mandatory, the defence counsel will always have the chance, at the latest, to consult with the client right before the questioning. The defence counsel may ask for time to consult with the client. While we find that the proper conduct of a criminal defence requires a consultation to take place before any interview, we know that it does not always happen in practice, if the client does not explicitly ask for such consultation. We find that, irrespective of the client asking for such a meeting, the defence counsel’s duty is to be proactive and seek to see her client. Mandatory defence is imposed precisely because the client finds himself in a vulnerable position and does not have either the discernment or the technical knowledge required to be able to make a judgment and to decide on whether it is relevant or appropriate to consult her defence lawyer. The place of the meeting depends on the available infrastructure, on one hand, and on the evaluation of the risk of flight or danger to other persons concerning a certain arrested person, on the other hand. Accordingly, these meetings may take place in detention facilities, sometimes within the detention area itself (especially in police or court premises), others in the lawyers’ room (if the client is being held in a prison). Finally, they may also take place in the room where the interrogation will be held, or in another room arranged by the court for that purpose, in the absence of the authorities. The law does not stipulate any time limits for these meetings, therefore they are established by the court or interviewing authority (e.g. the police) on a case-by-case basis and bearing also in mind the defence lawyer’s submissions in this regard, depending on the complexity of the case and also—when access to case files is given, which should be the rule—on the amount of evidence that has to be analysed. While there will commonly not be much time to consult with the client before the questioning in police interviews—especially because the arrested person will have to be brought before a judge within 48 h—in complex white-collar crime cases, much more time (hours) is given. The investigation judges have interpreted the law that obliges the arraignment to take place within 48 h from the arrest as permitting that the interrogation itself takes place after that deadline. This also allows the court to give the defence more time to prepare for the interrogation. The defence counsel is responsible for seeking that appropriate time is given and, if not, to make sure that

46

Code of Execution of Sanctions and Measures depriving persons of their liberty, available in Portuguese at http://www.pgdlisboa.pt/leis/lei_mostra_articulado.php?nid¼1147&so_miolo¼& tabela¼leis&nversao.

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the impossibility to prepare the interrogation in an adequate manner is recorded in the minutes. During these meetings defence counsel and client are always alone. Generally, the meetings are not supervised. While there is an exception in the CCP, allowing for the meeting to take place in sight of an officer, on grounds of security, it must always be ensured that such officer is not able to hear the content of the conversation (Art. 61(2) CCP). The practice in the overwhelming majority of criminal cases is that the meeting takes place in private, out of sight of officers. We do not know of any premises for lawyers’ consultation where there are cameras or recording devices installed (while we admit that they might exist). However due to logistical constraints it could occur that the meeting takes place in a room which is designed for other purposes (e.g. interrogation, waiting room in a police station) equipped with such devices. The defence lawyer should make sure that another appropriate room is arranged, or, if not possible at all, make sure such devices are not operating. If the conditions for confidential consultation are not met, the defence lawyer should not have confidential conversations with the client.

3.1.2

The Right to Legal Assistance in Portugal as an Absolute Right, Not Subject to Derogations

The right to legal assistance is an absolute right in Portugal. There are no derogations to this right, even in cases of terrorism, organized crime etc. The first legislative draft of the CCP in 1986 had a provision derogating from the right to access to a lawyer in cases of terrorism, violent or highly organized crime, which would allow the public prosecutor to prevent the communication of the detained person with his/her defence lawyer before the arraignment. The Constitutional Court ruled that this provision was incompatible with the constitutional right to legal assistance laid down in Art. 32§3 PConst. For the court, the right to legal “assistance” encompasses not only the right of the accused to the presence of a lawyer, but also the right of the accused to communicate with her defence lawyer.47 In its ruling the court quoted Figueiredo Dias who argued that there would be a contradiction if the law would establish mandatory legal assistance for the interrogation of the arrested accused, on one hand, but would then deprive such an assistance of any real effectiveness by determining that the accused is held incommunicado before his/her arraignment, on the other hand, preventing her to consult with her defence lawyer. This was a consequence of the understanding of the role of the defence lawyer not only as a deterrent or impediment to ill-treatment during interrogation, in which case the mere presence of a defence lawyer could suffice, but also as a guarantor that the rights of defence may be exercised effectively

47 Constitutional Court Judgment No. 7/87 of January 1, 1987, available on http://www. tribunalconstitucional.pt/tc/acordaos/19870007.html.

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throughout criminal proceedings at a later stage, by avoiding statements made due to “misunderstanding, confusion, fear or ignorance”.48 This liberal approach to the right to legal assistance dates back to 1972, where a reform of the criminal procedure that already followed the tenets of democratic states and rule of law took place, thereby ending the possibility to have an accused incommunicado in relation to her lawyer.

3.2

Right to Counsel During Investigative Acts Carried on with the Participation of the Defendant (Interrogations, Confrontations, Re-enactments of Crimes, Identification Procedures)

In Portugal, the defence counsel has the right to attend all interrogations of her client with no exceptions. In many cases legal assistance is even mandatory, as outlined above. As for confrontations, re-enactments of the crime and line-ups, the accused has the right to be assisted by a defence lawyer under the general provisions of Art. 61(1) (f) CCP. However, legal assistance is not mandatory, unless the accused has any visual, hearing or speech impairment or is illiterate, cannot speak or understand the Portuguese language, is under 21 years old, or where doubts concerning his/her mental capacity to stand trial are raised.49 The Constitutional Court has already ruled that the lack of mandatory legal assistance in line-up cases does not violate the Constitution.50 There is no legal provision establishing an explicit obligation to inform the accused who is summoned for such acts that she may be assisted by a defence lawyer (in addition to the information already given at the time of the formal declaration of a person as an accused). The interpretation of the legal provisions of Art. 61(1)(f) CCP in conformity with Art. 3(1), (2)(b) and (3)(c) in connection with Art. 9 Directive 2013/48/EU51 could impose that when the accused is summoned for such evidence-gathering acts, s/he must be informed on his/her right to legal assistance and on the possible consequences of a waiver and that any waiver to such right is voluntary and unequivocal and is duly noted, as well as the

Figueiredo Dias (1974) § 14, IV, 5, apud Constitutional Court Judgment No. 7/87 of January 1, 1987, available on http://www.tribunalconstitucional.pt/tc/acordaos/19870007.html. 49 Art. 64(1)(d) CCP. 50 See Constitutional Court Judgment No. 532/06, DR II-Série, n. 217, of 10/11/2006. 51 Directive 2013/48/EU of the European Parliament and of the Council of 22 October 2013 on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings, and on the right to have a third party informed upon deprivation of liberty and to communicate with third persons and with consular authorities while deprived of liberty. 48

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circumstances under which it was given. In fact, an interpretation of the right to legal assistance in conformity with Art. 32§§1 and 3 PConst could lead to the same result, in our opinion. But we are not aware of any court decisions in this regard. In practice, there are cases where such information is given. However it is a mere information, without additional explanations about the consequences of the waiver (for example, that the evidence may be used and that the lack of legal assistance may not be invoked as a procedural error if it was not a case of mandatory legal assistance). And the waiver is usually recorded only by writing down that the accused waived the presence of a defence counsel. It should also be noted that where the accused has already instructed a defence counsel, or one has already been appointed ex officio at an earlier stage, counsel will be summoned for procedural acts where her client is due to attend. It is also worth to mention that the defence lawyer is usually not able to be present in witness interviews during the investigation, unless they are made for “future memory”.52 The defence lawyer is not informed of the place and time of the interviews and some authorities consider that there is no right to attend such interviews. In our view, this is incompatible with the right to “intervene in the investigation”—Art. 61(1)(g) CCP whenever the criminal proceedings are public, which is the rule since 2007 (Art. 86 CCP). The CCP does not regulate participation in such procedural acts. However, we find that this gap is more accidental—when the legislator, in 2007, adopted public investigations as a rule, it did not adequately adapt all provisions of the CCP. This interpretation seems to find support in the interpretation of the provisions concerning statements for “future memory”: in these acts legal assistance is mandatory. This could be interpreted as implying that in other witness interviews legal assistance is not mandatory, but it is possible and not prohibited. In our opinion, to be able to consult the case files and read the minutes of a witness interview a posteriori is not an “intervention” in the investigation, since it does not allow the defence counsel to have direct and personal contact with the witness, being able to perceive his or her oral and bodily expression, an essential element to assess his or her credibility, or to ask questions, even if by means of indirect requests for clarification addressed to the authority presiding over the interview. To deny this difference is to refuse the value of the adversarial gathering of the evidence, a value that is legally and even constitutionally recognised. Moreover, when the minutes are prepared as a summary, rather than as a verbatim transcript, this deprives the defence counsel of knowing whether the witness conveyed other information which was considered irrelevant by the authority presiding over the

52

This applies when it is foreseeable that the witness will not be able to attend trial, or for victims of certain offences, such as sexual offences and human trafficking—see Caeiro and Costa (2013), p. 555.

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interview, but which, from the perspective of the defence (often with knowledge of facts not accessible to the investigating authorities), would be relevant. As a result, and not infrequently, the testimony given by the witness at the trial stage may, without the witness lying, lead to very different conclusions from those resulting from the investigation stage. Finally, with the widening of the susceptibility of the valuation of such minutes of interviews at the trial stage, it becomes essential to allow the participation of the defence during the investigation from the outset in cases where there are no reasons to make the investigations secret.

3.2.1

The Content of the Right to Counsel During Interrogations and Other Investigative Measures

In Portugal, the defence counsel has the right to attend all interrogations of her client with no exceptions. In many cases legal assistance is even mandatory, as outlined above. During the investigation, the defence counsel may not intervene in the interrogation. This does not prejudice the right of the defence lawyer to intervene with the intent to argue a nullity. The defence lawyer may also ask for a recess to consult with the client in private during the interrogation, however this must be done only in exceptional circumstances, otherwise it could be considered as undue interference with the interrogation (normally the defence lawyer would do this if she sees that the accused is undermining her defence to such an extent that she considers the possibility to advise the client not to make further statements). This practical constraint highlights the importance of preparing for the interrogation beforehand. At the end of the questioning by the investigative judge, the defence lawyer may ask the judge to pose additional questions to the accused. The investigative judge will decide whether this application is to be made in presence of the accused, or not, and on whether the questions are relevant. In the affirmative, the investigative judge will pose the questions to the accused (Art. 141(6) CCP). The same rules apply in questioning conducted by the public prosecutor and by the police (Art. 143(2) and 144 CCP). As for other investigative measures, the defence counsel is usually allowed to intervene by arguing nullities or other procedural flaws and also by suggesting questions (or actions, for example in a re-enactment of a crime) to the presiding authority.

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4 State Intrusion into the Confidentiality of Attorney-Client Communications in Criminal Cases 4.1

The Defence Counsel as a Witness Against Her Client

Lawyers can testify as witnesses in their client’s case only under the abovementioned circumstances (see Sect. 2 above)—if they ask for exemption of the attorney-client privilege, or if breach of the attorney-client privilege is ordered. These rules also apply to defence lawyers. However, in practice, we are not aware of cases in which a defence lawyer has been obliged to testify against her client concerning information disclosed to her by the client during a pretrial investigation or a trial. In a recent high profile case, the judge has refused to summon the prior defence counsel of an accused, finding that there was an impediment for him to be heard as a witness, since he would be bound to duties towards the client, which are not compatible with the regime of witness testimony. Such an obligation would impinge upon the core of the right to legal assistance and of the attorney-client privilege. Hence we believe that it is not possible to order that a defence lawyer testifies because of a breach of the attorney-client privilege in these cases. There might be exceptional instances where, on her initiative, the lawyer may ask the bar for an exemption of the attorney-client privilege in respect of communications or documents related to the exercise of legal assistance as a privately instructed or state-appointed defence lawyer, if her deposition would be absolutely indispensable to safeguard the dignity or the most fundamental rights of the lawyer herself (right to life, right to essential bodily and mental integrity), or of the client. In our view, this would in principle only apply in a different case, not the case in which the lawyer acts as a criminal defence lawyer,53 since the position of defence lawyer and of witness is not compatible. In any event, the possibility for the defence lawyer to ask to be exempted (dispensa de sigilo) for privilege cannot be mistaken for the admissibility of ordering a breach of professional secrecy (quebra de sigilo) of the criminal defence lawyer currently or previously acting in a criminal case. As outlined below, it is not possible to intercept conversations or correspondence of the defence lawyer with his/her client, unless the former is also involved in criminal activity. Accordingly it would not be coherent to permit that a breach of the attorney-client privilege could be ordered in order to allow for compelling the defence lawyer to testify against her client. In any case, the defence lawyer cannot be interviewed as a witness about what she knows about her client’s case. It should be noted that generally, giving legal advice or defending a client in a criminal case is not a crime, therefore the mere allegation that a defence lawyer is a suspect because she is advising a person in a criminal case 53

However, in the recent high profile case mentioned above, the bar did grant the defence lawyer such an exemption for certain particular documents. However, the defence lawyer was not acting as such anymore at the time.

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does not permit to place the defence counsel in the position of accused and to arrest her.54 However, if the lawyer herself is a suspect of committing a crime she can be declared as an accused (arguido) and be detained for questioning. In such cases, the lawyer can either request exemption from the attorney-client privilege or invoke the attorney-client privilege in order to be able to reveal or not to reveal confidential information, depending on her interest, according to the aforementioned rules governing the attorney-client privilege (see above Sect. 2). However, we know that in practice, lawyers who are accused often make statements without asking for exemption, assuming that the attorney-client privilege does not apply in this situation. We believe that this is not correct, since it is for the Portuguese Bar Association to determine the exemption and there are no exceptions to the applicable procedure concerning these situations. However, we believe that if a lawyer has been detained and there is a conflict between the lawyer’s right to freedom and the obligation to respect privilege, which cannot be resolved timely by the bar (this arraignment takes place within 48 h), the violation of said privilege by the lawyer could be excusable. In any event, in these cases, the bar could retrospectively authorise exemption.

4.2

Searches of and Seizures in Lawyers’ Offices and of Lawyers’ Documents and Interception of Confidential Communication Between Client and Lawyer

4.2.1

General Rules for Searches and Seizures of Documents in Lawyers’ Premises

Art. 75(1) SPBA states that searches, seizures or equivalent evidence-gathering acts55 in lawyers’ premises as well as the interception of lawyers’ communications by phone or e-mail that are used in the discharge of the lawyers’ functions and are registered at the bar association56 may only be ordered by a competent judge. This implies that the registered addresses, telephones and e-mail addresses of lawyers enjoy a protection of legal privilege. Searches and seizures in lawyers’ premises, as well as the interception of evidence, may only be ordered in highly exceptional cases.

54 Of course, if the lawyer advises the client to commit a crime, she would be breaching the SPBA and she would be committing a crime herself, at least as instigator or accomplice and therefore such conduct would not be protected by the attorney-client privilege. 55 About searches and seizures in general in Portuguese criminal proceedings see Caeiro and Costa (2013), pp. 558 ff. 56 A public register is available at https://portal.oa.pt/advogados/pesquisa-de-advogados/.

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The CCP stipulates the requisites for a search of lawyers’ premises within criminal cases. Primarily, it should be underlined that seizure of correspondence in lawyers’ offices must in principle57 be preceded by the formal constitution of the lawyer as an accused in compliance with Art. 58 and 59 CCP, which determine that such a decision is not arbitrary, discretionary or automatic. On the contrary, it must only be determined if a specific well-founded suspicion of criminal activity, based on evidence acquired before the search, focuses on the lawyer herself, in which case the attorney-client privilege is not a valid justification for denying access to information, since the privilege does not protect criminal activity of the lawyer herself.58 Therefore, it is of utmost importance to guarantee that the formal declaration of the lawyer as an accused cannot be instrumentalized in order to access and seize relevant information regarding the client.59 Besides the formal declaration as an accused (arguido), the CCP establishes special rules for the search of and seizure in lawyers’ offices. A search may only be ordered by a judge and it must be conducted by the judge in person, in the presence of a representative of the local bar (Art. 177(5) CCP60). The seizure of documents in a lawyer’s office must also be ordered and conducted in person by a judge in the presence of the representative of the local bar (Art. 180 (1) CCP). 57 It seems that some courts and scholars are of the opinion that the search may be ordered for premises in investigations for crimes of which the lawyer is not a suspect. In our view, this is highly exceptional since, in principle, the only objects or documents that may be seized are those relating to offences committed by the lawyer or his/her collaborators (in which case it is a requisite that they have to be declared as an accused before the search) or that are themselves object of a crime (such as evidence of a crime that could not be obtained otherwise—imagine the situation in which someone would have hidden a corpse in a law firm without the knowledge of the lawyer). In the latter case we find that the preferable means is a subpoena rather than conducting a search of a lawyer’s office. This should be absolutely exceptional. Regarding searches for other types of documents and in case the lawyer her/himself was not formerly placed as an accused, then such searches should be waived in favour of a subpoena for the delivery of documents, in which case the lawyer could request a waiver of professional secrecy, or a breach of secrecy could be ordered. If there is no fear that the evidence may disappear or be destroyed, the search is in no way justified. 58 See Judgment of the Court of Appeals of Lisbon of 23.02.2017, case no. 1130/14.7TDLSB-C.L19, Rapporteur Cristina Branco. Available in Portuguese at http://www.dgsi.pt/jtrl.nsf/ 33182fc732316039802565fa00497eec/2f1cf874c969def3802580d0006e6214?OpenDocument. 59 See the seminal Judgment of the Court of Appeals of Lisbon of 15.04.2010, case no. 56/06.2TELSB-B.L1-9, Rapporteur Fátima Mata-Mouros (translation by the authors): “V The possible interest of the investigation in the seizure of documentation regarding the practice of advocacy cannot, by itself, serve as justification for the constitution of a lawyer as accused. VI According to the options made by the legislator and clearly defined in the law, namely in the Statute of the Bar Association and in the CCP, it is not the seizure of professional documentation in a law firm that allows to establish the constitution of the lawyer as defendant. Instead, it is the constitution of a lawyer as defendant that opens the possibility of seizure of professional correspondence.” Available in Portuguese at http://www.dgsi.pt/jtrl.nsf/e6e1f17fa82712ff80257583004e3ddc/ fdc745090a69eaa18025770b003dd2eb?OpenDocument. 60 See also Art. 75 SPBA.

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The SPBA states that during the search the lawyer and the bar representative are allowed to make applications (including invoking nullities etc.). In particular, they are allowed to ascertain privilege. If that happens, the judge will seal the relevant documents and, after having received, within 5 days, the applications outlining the grounds for ascertaining privilege, the judge will send them to the president of the court of appeals who will decide on whether privilege applies and on whether a breach of privilege can be ordered, which will only be the case if the lawyer is an accused and the documents themselves are object or element of a crime (Art. 180 (2) CCP and Art. 76(4) SPBA). Regarding the specific content of the search warrant, the issue is not uncontroversial. According to Art. 97(1)(b) and 97(5) CCP the warrant must be specific and substantiated. Such requisite has been interpreted as a prohibition of vagueness and lack of indicated connection between the facts being investigated and a specific conduct of the suspect.61 Nonetheless, some higher court decisions in Portugal have considered that the search warrant is sufficiently detailed if it indicates a broad outline of the case, the fact that there is a suspicion against the suspect (and not the specific suspicion consubstantiated on specific conducts) and the putative crime, which may have been committed.62 Regarding the rules governing the procedure, the mandatory presence of the judge63 and the representative of the local bar aims at preventing “rummaging” practices or “fishing expeditions” and to avoid the seizure of documents covered by the attorney-client privilege, since the CCP also establishes that documents covered by the attorney-client privilege may not be seized, unless they are object of a crime themselves. The judge must be the first person who, together with the bar representative, reads or analyses the documents in order to decide on whether they are relevant or not, in which case they will not be seized, and also to ascertain whether privilege applies (Art. 180(2) and (3) as well as 179(3) CCP). Nonetheless, recent case law specifically indicates that “[i]n relation to certain unlawful acts under investigation, which may have been carried out by means of apparently normal conduct, it is not expected that the evidence will be found in folders or files duly identified leading to a duly selected and analysed proof resulting from the search. Instead, the collection of a

61 See Decision of the Court of Appeals of Lisbon of 04.07.2016, case no. 108/15.8JALRA-A.L1.-3, Rapporteur: Orlando Nascimento (Vice-Presidente). Available in Portuguese at http://www.dgsi.pt/ jtrl.nsf/-/90B96E72687D805280257FFE002B0530. 62 See Judgment of the Court of Appeals of Lisbon of 02.20.2018, case no. 5340/17.7T9LSB-A.L15, Rapporteur: Vieira Lamim. available in Portuguese at http://www.dgsi.pt/jtrl.nsf/ 33182fc732316039802565fa00497eec/3e7390ebccec599980258249004ebb7b?OpenDocument& Highlight¼0,cibercrime. 63 Art. 179(5) CCP determines that (author translation): “The judge who authorised or ordered the proceeding is the first person to be aware of the contents of the seized correspondence. If the contents are considered relevant to the proof they are added to the proceedings; if not, they are restituted to the rightful person, and can not be used as a means of proof. The judge is bound by a duty of secrecy in relation to what he has learned and is not of interested for the proceedings.”

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wide range of elements is natural, whose analysis will only be possible in later desk work.”64 Nonetheless we believe that unrestricted, undirected and arbitrary searches and seizures are evidently a violation of the law, namely Art. 118 CCP, Art. 176 (1) CCP, Art. 177 (5) CCP, Art. 16 (3, 5 and 7) Cybercrime Law (in the case of electronic information) and Art. 75 SPBA, Art. 76 SPBA and Art. 92 SPBA. A search of a defence lawyer’s premises within the scope of an investigation in which the lawyer is representing an accused would amount to a flagrant breach of the rights of defence and to legal assistance in criminal proceedings (Art. 32§§1 and 3 PConst) and is therefore, in our view, absolutely prohibited. The exception would be the case in which the defence lawyer is also involved in the client’s criminal activity. However, there is a serious risk of instrumentalization of the possibility to declare the defence lawyer as an accused in these cases and therefore this situation should be highly exceptional and based on strong evidence of criminal activity, not merely vague suspicions. Recently, there was a high profile case (drugs trafficking, corruption etc.) in which the accused who had been arrested instructed a particular defence lawyer and, since the prosecutors suspected the lawyer’s involvement, this defence lawyer was immediately declared as an accused as soon as he arrived in court and therefore was prevented to act as a defence lawyer in the case. The situation was subject to criticism (since the lawyer was not indicted later on and considering that he had been wilfully declared as an accused as a means to withdraw him from the case). However, it could be seen as a way to prevent the need of having to request for intrusive measures against a defence lawyer at a later stage, which would touch on the heart of the right to an effective defence and of the attorney-client privilege. We are also aware of cases in which a suspicion arose against law firms concerning specific purported criminal activity but the prosecuting authority refrained from doing a search and chose to ask the law firm to provide the authorities with the particular documents that were relevant for the investigations, thereby avoiding an invasive search, with serious damage to the reputation of the law firm (in high profile cases the occurrence of such searches are often broadcasted live by the media) and to the professional secrecy concerning the affairs of clients who are not related to that specific investigation. These rules also apply to electronic searches and seizures, i.e. searches in computer systems used for the legal profession (Art. 15(6) and 16(5) Cybercrime Law). This might pose additional difficulties in in-house lawyers computer systems, if they are not duly separated from the company’s general computer system.

64 See Judgment of the Court of Appeals of Lisbon of 02.20.2018, case no. 5340/17.7T9LSB-A.L15, Rapporteur: Vieira Lamim, available in Portuguese at http://www.dgsi.pt/jtrl.nsf/ 33182fc732316039802565fa00497eec/3e7390ebccec599980258249004ebb7b?OpenDocument& Highlight¼0,cibercrime.

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Searches and Seizure of Correspondence and Stored Communications or Interception of Lawyers’ Conversations65

In relation to the correspondence between the defence counsel and her client, Art. 179 (2) CCP states that “[t]he seizure or any other form of control of the correspondence between the accused and her defence counsel is prohibited, under the penalty of nullity, unless the judge has substantiated grounds to believe that such correspondence is the object or element of an offence”. It should be noted that, even if the latter is applicable, seizure of correspondence that is still in circulation is only allowed for correspondence sent by or addressed to the suspect, in relation to offences punished with over 3 years of imprisonment and if the seizure will be of great interest (as opposite to mere interest) for truth seeking. The same rules apply to stored electronic communications, since Art. 17 Cybercrime Law makes the rules of Art. 179 CCP applicable in these cases. In this regard, in our view, electronic correspondence also enjoys added protection after having been received by the addressee. There is a dispute on whether the threshold of offences punished with over 3 years of imprisonment applies to the seizure of stored communications for crimes other than “cybercrimes”. The procedure for search and seizure of electronic correspondence or stored communications is the same as for correspondence. However, the operational implementation of judicial control and control by the bar representative has additional hurdles, since it would have to be implemented both during the search and seizure (for the selection of the data to be seized) but mostly also afterwards, since it is sometimes difficult to make a proper filtering and selection during the search. Interception of communications between the accused and her defence counsel, pursuant to Art. 187(5) CCP (applicable to electronic communications by Art. 18 (4) Cybercrime Law) is not permitted unless the judge has substantiated grounds to believe that such conversations are the object or element of an offence. The result may only be used in evidence concerning the offence of which the lawyer is a suspect.66

5 Exclusionary Rules and Nullities 5.1

Exclusionary Rules and Fruit of the Poisonous Tree: General Framework

Portugal has a constitutional exclusionary rule in Art. 32§8 PConst, and several exclusionary rules throughout the CCP and other laws.

65 66

See also Caeiro and Costa (2013), pp. 555–557. Caeiro and Costa (2013), p. 556.

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The constitutional exclusionary rule has been introduced in 1976 with the new Constitution and states: “All evidence obtained by torture, coercion, infringement of personal physical or moral integrity, or improper intromission into personal life, the home, correspondence or telecommunications is null and void”. There is relevant commentary and case law considering that evidence obtained in breach of procedural fundamental rights must also be excluded pursuant to Art. 32 PConst and Art. 126 CCP.67 The CPP has a corresponding rule: Article 126 Forbidden Methods of Evidence 1-. Evidence obtained by torture, coercion, or, as a general matter, infringement of personal physical or moral integrity, is null and void and may not be used. 2-. Evidence obtained by the following methods, infringes the physical or moral integrity of the persons, irrespective of their consent: a) Disturbance of freedom of will or of decision-making through ill-treatment, bodily harm, administration of means of any nature, hypnosis or use of cruel or deceptive methods; b) Disturbance, by any means, of the capacity of remembrance or judgment; c) Use of force in cases other than those permitted by law or beyond the legal limits; d) Threat with a legally inadmissible measure or with the denial or constraint of the enjoyment of a legally established benefit; e) Promise of legally inadmissible advantage. 3-. Subject to the cases permitted by law, evidence obtained by intromission in the private life, the home, the correspondence or telecommunications without the consent of the right holder is equally null and void and may not be used. 4-. If the use of the methods of gathering of evidence foreseen in this Article constitutes a punishable offence, the evidence may be used with the exclusive aim of prosecution against the authors of said offence.

The fruit of the poisonous tree doctrine applies, with the limitations of the “attenuation of the taint”, “inevitable discovery” and “independent source”.68 The Constitutional Court has explicitly recognized the doctrine in its Judgment no. 198/2004, of 24.03.2004.69 The decision dealt with the constitutionality of Art. 122(1) CCP.70

67

See v.g. Mendes (2013b), p. 225, quoting the Constitutional Court Judgment No. 184/2004, of 28.03.2004, which states that the reference to the safeguards of defence contained in Art. 32 (1) PConst would suffice “to include among defence rights the exclusion from the proceedings (rendered ineffective, invalid or null) illegal evidence regarding constitutionally relevant values”; Correia (2006), pp. 189–191. 68 On this topic see Mendes (2013a); Caeiro and Costa (2013), pp. 573–576. 69 Constitutional Court Judgment No. 198/2004 of March 24, 2004, available at http://www. tribunalconstitucional.pt/tc/acordaos/20040198.html (accessed 12 August 2019). 70 Art. 122 (1) CCP states that nullities render invalid the act in which they occurred, as well as the acts that depend on the former act and may be affected by those nullities (“As nulidades tornam inválido o acto em que se verificarem, bem como os que dele dependerem e aquelas puderem afectar”).

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The first instance court had decided that, given the nullity of wiretapping conducted in the scope of those proceedings, stemming from the violation of Art. 187 (1) and 188 (1) CCP and according to Art. 126(1) CCP and Art. 32§8 PConst, the records and transcripts of the conversations could not be used. Furthermore, derivative evidence, including the drugs seized, had been excluded according to Art. 122(1) CCP. Nevertheless, the defendants had been convicted on the basis of other evidence, including the confession they made during the main trial hearing. This decision was appealed, as the defendants sustained that the derivative effect (efeito à distância) laid down in Art. 122(1) CCP applies to any evidence causally linked to the null and void evidence and did not allow for any limitations. The Court of Appeals of Coimbra decided that notwithstanding the nullity of the wiretapping, not all derivative evidence had to be excluded, namely: the identification of the defendants, if this identification had been confirmed by themselves, by witnesses, searches, even if conducted after the wiretapping; the seizure of the drugs in the automobile conducted by one of the defendants; the allegation that other evidence would have not been discovered had to be demonstrated; real evidence such as the instruments/objects of the crime would not be excluded (the automobile, the drugs), although their seizure was affected by the nullity; the confession made by the defendant on his/her free will, because it was not entirely a result of the wiretapping. The Supreme Court affirmed this decision.71 The Constitutional Court limited its decision to the constitutionality of the interpretation of Art. 122 (1) CCP according to which the use of subsequent evidence other than the wiretapping itself was permitted when that subsequent evidence was the statement given by the defendants themselves in form of a confession.72 According to the Court,73 although our Constitution has a specific provision laying down a right to obtain suppression/exclusion of evidence obtained unlawfully by a violation of constitutionally protected values, the general statement contained in Art. 32§1 PConst74 would in itself suffice to affirm the existence of a constitutional right to have such evidence suppressed (made invalid, null and void or ineffective). According to the Court, the right to exclusion of unconstitutionally obtained evidence is no more than “a particular and inextricable dimension of the right to a criminal proceeding with the widest guarantees of defence”.75 The Court adheres to the principle of Justizförmigkeit des Verfahrens, according to which the judgment on culpability will only be in conformity with the procedural legal system if no procedural safeguard has been violated in disfavour of the defendant, quoting

See p. 11–14 of the judgment, §2.1. See p. 14 of the judgment, §2.1. 73 P. 15–16 of the judgment, §2.2.1. 74 Art. 32 (1) PConst states: “Criminal procedure shall ensure all the safeguards of the defence, including the right to appeal.” Translation available at http://www.en.parlamento.pt/Legislation/ CRP/Constitution7th.pdf. 75 “Dimensão específica e indissociável do direito a um processo penal com todas as garantias de defesa” (p. 15 of the Judgment, §2.2.1). 71 72

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Roxin’s statement that in a Rule of Law state this principle has as much value as a conviction of a guilty man and the reestablishment of legal peace. The issue at stake was then to decide whether “widest guarantees of defence” also include, beyond the nullity of the unlawful evidence itself, the derivative effect of the nullity on otherwise valid evidence, leading to its suppression, which would amount to an extension of the unlawfulness of the former evidence.76 The Constitutional Court considered that the derivative effect is certainly one of the right-protective dimensions of the criminal process and therefore it is permissible to verify, on a caseby-case basis, whether the naturalistic link between the unlawfulness and the otherwise lawfully obtained evidence also constitutes an “unlawfulness link” (nexo de antijuridicidade) that generates a derivative effect; or whether on the opposite there is such a degree of autonomy between the subsequent evidence and the former that substantially disconnects them. The Constitutional Court underlines that the principle of the fruit of the poisonous tree doctrine is no more than the analysis of the circumstances of the case in order to determine the existence of a link of unlawfulness between the unlawfully obtained evidence and the subsequent evidence, which requires dealing with the latter in the same manner as the former from a legal point of view. The Constitutional Court underlined that the doctrine had been developed within a legal system that is completely different from the Portuguese (and that some of the solutions adopted in the U.S. legal system according thereto would have absolutely no correspondence with our law), but it still did influence our legal system.77 Nonetheless, the definitive argument was that even in that system where it was developed the doctrine never implied the automatic “dominoes-exclusion” of all evidence subsequent and somehow related to the unlawfully obtained evidence.78 The Constitutional Court also summarized the position of other European legal systems on this issue (Germany, Spain, Italy) underlining that there was a tendency to recognize the derivative effect of the exclusion of evidence (although not without dispute and not generally).79 Reading Art. 122 (1) CCP in the light of the U.S. Supreme Court case-law, which it considered a good working instrument, the Constitutional Court stated that “this

P. 16 of the judgment, §2.2.1. P. 21 of the judgment, §2.2.4. 78 The Constitutional Court summarized the development of the fruit of the poisonous tree doctrine in the case-law of the U.S. Supreme Court with reference to Silverthorne Lumber Co. v. United States, 251 U.S. 385 (1920), Nardone v. United States, 308 U.S. 338 (1939), Weeks v. United States, 232 U.S. 383 (1914) and Mapp v. Ohio, 367 U.S. 643 (1961). The Constitutional Court mentioned that in the U.S. this doctrine had always been adopted with limitations and reviews the case law of the U.S. Supreme Court concerning the “independent source limitation” (Silverthorne Lumber Co. v. United States and Segura v. United States, 468 U.S. 796, 1983), the “inevitable discovery limitation” (Nix v. Williams, 467 U.S. 430 (1983)) and the “purged taint limitation” (Wong Sun v. United States, 371 U.S. 471 (1962); Michigan v. Tucker, 417 U.S. 433 (1971); Oregon v. Elstad, 470 U.S. 298 (1985)). 79 P. 22 ff. of the judgment, §2.2.5. 76 77

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rule makes interpretative room for searching for relationships of dependency or production of effects (Art. 122 (1) CCP refers to acts that depend on the invalid act or may be affected by it), which, based upon rational criteria, require projection [on the derivative evidence] of the same negative value that affects the prior act”.80 In that particular case the Constitutional Court concluded that the unlawfulness of the primary evidence was not affecting a later confession, provided that it was of free and informed nature, thus constituting an independent act of free will—which was the case as it could not be accepted that the defendants had only confessed because they thought the evidence obtained by means of wiretapping was valid, as their lawyers had invoked the unlawfulness of that evidence prior to the trial hearing.81 The Constitutional Court considered that a confession has such an autonomous nature that it enables the judge to have access to the facts by a means which is totally detachable from any other means that might have emerged at an earlier stage and been affected by a negative value.82 Finally, the Constitutional Court ruled that “the understanding of Art. 122 (1) CCP underlying the appealed decision, according to which this article provides the possibility to balance the meaning of subsequent evidence, without declaring its invalidity, proves to be in accordance with the Constitution, when a confession is at issue, thus not encompassing any interpretative overlapping of that rule that substantiates an infringement on the constitutional provisions invoked”.83 This doctrine is applied to exclusionary rules in a general manner.

5.2

Exclusion of Evidence or Information Unlawfully Seized During a Search of a Lawyer’s Office or of Any Privileged Communications That Were Unlawfully Intercepted

Generally, evidence obtained by means of an unlawful search or interception of the correspondence or communications, in particular as it amounts to the infringement of constitutional rights (privacy of the home and of communications, professional secrecy etc.) must be excluded pursuant to the rules outlined above (Art. 32§8 PConst and Art. 126(1) and (3) CCP), without prejudice of the exceptions to the exclusion of derivative evidence as outlined above. There is relevant commentary and case law considering that evidence obtained in breach of procedural fundamental rights, such as the right to defence or to legal assistance, must also be excluded pursuant to Art. 32 PConst and Art. 126 CCP. In what concerns the seizure of correspondence or stored electronic communications and the interception of communications between the client and the defence P. 22 of the judgment, §2.2.4. Pp. 24–25 of the judgment, §2.3.1. 82 P. 25 of the judgment, §2.3.1. 83 P. 25 of the judgment, §2.3.1. 80 81

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lawyer, the requisites established by the CCP and the Cybercrime Law regarding the use of these methods of gathering evidence explicitly establish the nullity as a sanction for their violation (e.g. Art. 179(1) and 190 CCP, applicable to electronic communications ex vi Art. 17 and 18(4) Cybercrime Law). This nullity is considered to be an exclusionary rule in connection with Art. 32§8 PConst and Art. 126(1) and (3) CCP (there are discussions about whether this is the case for all formal requisites established in the CCP and Cybercrime Law, or whether this only applies to the requisites for ordering the measure, but not to the formalities, which would be a “mere nullity”, i.e. one that could be cured if not argued timely). Furthermore, the SPBA establishes a general exclusionary rule for any acts committed in violation of the attorney-client privilege (Art. 92(5) SPBA). Pursuant to this rule, acts undertaken by the lawyer in breach of legal privilege, i.e. outside of the legal possibilities of exemption or breach of the privilege described above, may not be used as evidence in court. In any case, privilege concerning confidential correspondence between lawyers is absolute and such correspondence may never be used as evidence and is therefore not subject to exemption or breach of privilege (Art. 113(2) SPBA). Consequently, evidence obtained in breach of the rules described above regulating the attorney-client privilege, as well as derivative evidence not covered by the exceptions mentioned above will be considered null and void and must be excluded. It should be noted that the protection of the attorney-client privilege and the corresponding exclusionary rules also apply in the context of cross-border cases and they would constitute a ground for non-recognition or non-execution of an European Investigation Order, pursuant to Art. 11(1)(a) Directive (EU) 2014/41 (implemented in Portugal by Art. 22(1)(b) Law 88/2017, of August 21, 2017).84 This ground of non-execution, in what concerns the legal privilege, must be interpreted in or viewed as a mandatory ground for refusal in all instances in which our law prohibits the searches, seizures or interception of communications of lawyers and their clients.

5.3

Serious Violations of the Right to Counsel

Serious violations of the right to counsel in the form of an illegal search or interception of conversations, or a coercive interrogation of a lawyer would not be grounds to dismiss a criminal case per se. However, if evidence against the client has been gathered solely on the basis of that flagrantly obtained evidence, the case could be closed as a result of the application of the fruit of the poisonous tree doctrine, as outlined above. This would not prevent, however, the reopening of the case, should new independently obtained evidence be found, which would in itself permit to conclude that there was a strong evidence of the commission of crime (Art.

84

Available in Portuguese at http://www.pgdlisboa.pt/leis/lei_mostra_articulado.php?nid¼2754& tabela¼leis&nversao¼&so_miolo.

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279 CCP). If the decision to close the case on these grounds is taken by the trial court, then it is not possible to reopen the case for the same fact, even where new evidence has been discovered, since only convictions, not acquittals, may be challenged under this extraordinary remedy (Art. 449(1)(d) e contrario CCP). There is discussion among scholars and courts on whether a decision not to indict rendered by the investigative judge is subject to reopening under Art. 279 CCP, or not, under Art. 449(1)(d) e contrario CCP.85

6 Attorney-Client Communications at Trial During a trial the defence lawyer is always allowed to communicate with her client freely and confidentially. If needed, the defence lawyer may ask for a recess to consult with the client. There are however some practical hindrances to the exercise of this right during trial. The first is that the defence lawyer does not sit next to her client during trial. Therefore, whenever there is need for communication, the defence lawyer has to get up and go to the dock where the client is sitting in order to talk to the client, or must ask for a recess. This makes the preparation of a trial of utmost importance, since the defence lawyer has to be as well prepared as possible regarding evidence that may unexpectedly surface during the trial hearing. Additionally, when a client is in custody, the defence lawyer is normally only allowed to communicate with her immediately before or after the trial hearing, or during recess, if the judge explicitly authorises such conversations. Otherwise the policemen in charge of the detainee will state that they have no permission to allow such conversations. Furthermore, it is sometimes impossible to speak to the client after the trial session finishes in these cases, since the detainee is immediately taken away. Of course this is a limitation of the right to legal assistance, since the client in entitled to hear from the defence lawyer on how the trial went and also to make queries. In these cases, when the client is immediately taken away, she will have to stay in a state of suspense until she is finally able to call the defence lawyer (possible only once a day for 5 min) or the defence lawyer finds time to visit her. Between trial hearings, the defence lawyer is always allowed to talk to the client, even if the latter is in prison. However, this is difficult for legal aid lawyers, since the state only pays a maximum of three travels to prison (at a rate of 76.50 Euros each,

See Albuquerque (2011), annotation to Article 310, §§17–18, affirming that the decision not to indict by the investigative judge is not subject to reopening pursuant to Art. 279 CCP, with further references, for and against this position. 85

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before taxes) and, if there is need for an interpreter, paid by the state, the defence lawyer will have to apply to the court to authorise the services of the interpreter.86 Accordingly, there is room for improvement in this area, in particular by allowing the client to sit next to the defence lawyer during trial; allowing time for consultation between the defence lawyer and the detained client during court recesses and especially after the end of the trial hearing, even if only for a short enough period of time to consult about the trial; paying legal aid lawyers for meetings in prisons exceeding the number of three, when the complexity or length of the case so requires.

7 Criticism and Reform The protection of legal privilege and the right to counsel in Portugal, in particular in criminal proceedings, is well established and safeguards a high level of protection, which should be maintained, although some minor improvements could be suggested. As outlined above, there should be a clear legal provision establishing the obligation to inform witnesses of their right to legal assistance. This would help to avoid that persons who are actually suspects (or who will become suspects if they make a statement) are heard as witnesses and do not fully exercise their right against self-incrimination and to ask to be declared formally as accused (arguidos). Such a legal provision would also be in line with what is already good practice of certain judicial or police authorities. The practical operation of the right to legal assistance in the earliest stage of proceedings from the outset of detention could also be improved. If an arrested person does not instruct a defence lawyer and wishes to be assisted by a legal aid lawyer, the latter should be appointed immediately at that moment, rather than only at the moment in which the interrogation is to take place. This would promote two fundamental safeguards: (1) the defence lawyer’s role as a safeguard against illtreatment, in line with the standards recommended by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment87; (2) the right to an effective defence and to a fair trial, by giving the defence lawyer more time to prepare the arraignment or first interrogation. Finally, it should be established that the client has the right to sit next to the defence lawyer during trial; that time for consultation between the defence lawyer and the detained client during court recesses - and especially after the end of the trial 86

See as an example Judgment of the Court of Appeals of Porto of 30.09.2015, case no. 347/ 10.8PJPRT-E.P1, Rapporteur: Maria Luísa Arantes. Available in Portuguese at http://www.dgsi.pt/ jtrp.nsf/56a6e7121657f91e80257cda00381fdf/1d5953dbe1d6f4cf80257ee3002dae56? OpenDocument. 87 European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (2011), available at https://rm.coe.int/16806ccd25.

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hearing - must be allowed; and the conditions for the exercise of legal assistance by legal aid lawyers for meetings in prisons exceeding the number of three, when the complexity or length of the case or trial so require, should be improved. Overall it should however undoubtedly be highlighted that the protection of the attorney-client privilege and the right to counsel, in particular in criminal proceedings, is a well-established tenet of the Portuguese legal system with a high level of protection. This constitutes an outstanding feature of our legal system, which should be maintained. While the attorney-client privilege is not absolute—the only absolute privilege in Portugal is the religious secrecy, which may never be breached or waived in any circumstance—the attorney-client privilege of the defence counsel is practically absolute, since its breach would represent a violation of the core of the fundamental right to defence and to legal assistance in criminal proceedings. In the past, the interpretation of the rules on legal privilege was extremely strict and it was not common to see searches of lawyers’ premises, even in the restricted cases in which such searches are permitted, when the lawyer is suspect of criminal activity. Over the last 10 years, there is a feeling among criminal defence lawyers that the number of searches in lawyers’ premises based on the existence of a suspicion of criminal activity against those lawyers and/or their clients is rising, which could show a tendency to make lawyers suspects only as a justification to obtain permission to search their premises to obtain evidence against their clients.88 The Dean of the Portuguese Bar Association mentioned in 2017 that the Bar was following up around ten cases, in which the searches are considered doubtful.89 As outlined above, such searches are only lawful if the lawyer himself is a suspect and is declared as an accused (arguido) immediately before the search (i.e. based on evidence available before the search). In practice, regrettably, there are instances in which such searches are ordered without the presence of a strong and well-founded suspicion of the commission of specific criminal acts attributed to the lawyer, but

88

For example, see the concerns voiced by the Dean of the Portuguese Bar Association in 2017, http://expresso.sapo.pt/sociedade/2017-07-09-Ordem-vai-processar-Estado-por-causa-de-buscasa-advogados, and by previous Deans, for example in 2012, http://www.inverbis.pt/2012/ advogados/advogados-arguidos-buscas-escritorios. See also Narciso Machado, retired Court of Appeals Judge, https://www.publico.pt/2017/07/18/sociedade/opiniao/as-buscas-nos-escritoriosdos-advogados-1779398; pursuant to information kindly indicated by the Regional Councils of the Portuguese Bar Association, there were the following numbers of searches in lawyers’ premises: Lisbon—2009: 28; 2010: 4; 2011: 13; 2012: 18; 2013: 10; 2014: 18; 2015: 15; 2016: 17; 2017: 18 (Total: 141); Porto—2009: 4; 2010: 0; 2011: 0; 2012: 0; 2013: 2; 2014: 1; 2015: 6; 2016: 3; 2017: 2 (Total: 18); Coimbra—2009: 5; 2010: 2; 2011: 0; 2012: 4; 2013: 1; 2014: 7; 2015: 4; 2016: 2; 2017: 4 (Total: 29); Évora—2009: 0; 2010: 0; 2011: 0; 2012: 0; 2013: 0; 2014: 1; 2015: 1 2016: 00; 2017: 0 (Total: 2); Faro—2009: 0; 2010: 2; 2011: 1; 2012: 1; 2013: 3; 2014: 1; 2015: 4; 2016: 1; 2017: 1 (Total: 14); Açores—2009: 5; 2010: 0; 2011: 0; 2012: 0; 2013: 0; 2014: 0; 2015: 0; 2016: 0; 2017: 0 (Total: 5). 89 See http://expresso.sapo.pt/sociedade/2017-07-09-Ordem-vai-processar-Estado-por-causa-debuscas-a-advogados.

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rather on the basis of suspicion against the lawyers’ clients, which is unlawful and unconstitutional. Fortunately, our legal system establishes remedies for such violations, which have to be argued immediately during the search and, if it is established that there was a violation of legal privilege, the evidence must be excluded. Without this remedy, the protection of the attorney-client privilege and in particular of the right to defence and to legal assistance in criminal proceedings would be void, or, using Justice Holmes’ seminal statement, it would reduce their constitutional protection to “a form of words”. The strength of the protection of the attorney-client privilege in our legal system is shown by the circumstance that in money laundering regulations there is no obligation for lawyers to report their clients, while discharging their functions as advisors or legal representatives in any matter, before or during a court case,90 since these acts are legally reserved to lawyers (actos próprios).91 The only exception is the actions of lawyers as representatives in business transactions, or other actions that are not actos próprios, which is a function that may be discharged by any person and therefore not covered by the attorney-client privilege. To the extent of our knowledge, there are no proposals to modify the current legal framework. Any proposal to restrict the current protection would entail a conflict with the constitutional protections of legal information and assistance, in particular in criminal proceedings, effective judicial protection and the immunities of the legal profession established in Art. 20§§1 and 2, 32§§1 and 3, and 208 PConst.

References Abreu C (2008) Breves notas sobre a imprescindibilidade do Advogado. In: Comissão dos Direitos Humanos da Ordem dos Advogados (ed) Direitos Básicos – Alimentação, Saúde e Habitação. Principia, Lisboa, pp 147–149 Albuquerque P (2011) Comentário do Código de Processo Penal à luz da Constituição da República e da Convenção Europeia dos Direitos do Homem, 4th edn. Universidade Católica Editora, Lisbon Caeiro P, Costa M (2013) The Portuguese system. In: Ligeti K (ed) Toward a prosecutor for the European Union, vol 1. Hart, Oxford, pp 540–585 Correia J (2006) A distinção entre prova proibida por violação dos direitos fundamentais e a prova nula numa perspectiva essencialmente jurisprudencial. Revista do CEJ 4:175–202 Costa Ramos V, Churro B (2019) Report on Portugal. In: Quattrocolo S, Ruggeri S (eds) Personal participation in criminal proceedings, a comparative study of participatory safeguards and in absentia trials in Europe. Springer, Cham, pp 305–360

90 Art. 79(1) Law 83/2017, of August 18, 2017, available in Portuguese at http://www.pgdlisboa.pt/ leis/lei_mostra_articulado.php?nid¼2750&tabela¼leis&nversao¼&so_miolo. 91 The exercise of such acts by persons not possessing a lawyer or solicitor qualification is a criminal offence—see Art. 1 and 7 Law 49/2004, of August 24, 2004, available in Portuguese at http://www. pgdlisboa.pt/leis/lei_mostra_articulado.php?nid¼84&tabela¼leis&so_miolo.

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European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (2011) Access to a lawyer as means or preventing ill-treatment, 21st General Report of the CPT. https://rm.coe.int/16806ccd25. Accessed 12 Aug 2019 Figueiredo Dias J (1974) Direito Processual Penal. Coimbra Editora, Coimbra Mendes P (2013a) Comparative exclusionary rules, Portuguese and Brazilian perspective. http:// carlospintodeabreu.com/wp-content/uploads/2019/03/comparative_exclusionary_rules.pdf. Accessed 12 Aug 2019 Mendes P (2013b) O efeito-à-distância das proibições de prova. Revista do Ministério Público do Rio Grande do Sul 74:219–228 Miranda J, Medeiros R (2007) Constituição da República Portuguesa Anotada, vol III. Coimbra Editora, Coimbra, pp 98–103 Silva G (2001) O direito a não estar só ou o Direito a acompanhamento por advogado. In: AAVV (ed) Evolução constitucional e perspectivas futuras: Nos 25 Anos da Constituição da República Portuguesa de 1976. AAFDL, Lisbon Silva G (2009) Questões processuais na responsabilidade cumulativa das empresas e seus gestores. In: Monte MF et al (eds) Que futuro para o direito processual penal? Simpósio em Homenagem a Jorge de Figueiredo Dias, por ocasião dos 20 anos do Código de Processo Penal Português. Almedina, Coimbra, pp 789–803 Silva G (2014a) O Advogado Penalista, Jurismat. Revista Jurídica 4:15–33. http://recil. grupolusofona.pt/bitstream/handle/10437/6379/jurismat4_germano_15_33.pdf?sequence¼1. Accessed 12 Aug 2019 Silva G (2014b) A pessoa colectiva como arguida no processo penal; conferência proferida no âmbito do I Curso de Outono sobre Direito Penal das Pessoas Colectivas, FDL, Outubro de 2014. http://carlospintodeabreu.com/public/files/a_pessoa_colectiva_como_arguida_no_ processo_penal.pdf. Accessed 12 Aug 2019

Vânia Costa Ramos is a practising defence lawyer at Carlos Pinto de Abreu e Associados law firm, Portugal, leading the International, European, Extradition and Mutual Legal Assistance practice. She received her Masters of Criminal Law in 2008 with a thesis on the cross-border ne bis in idem principle in EU. She is the author of several articles on Portuguese and European Criminal Procedure and International Cooperation in Criminal Matters and guest lecturer (parttime) on International Judicial Cooperation in Criminal Matters at Centre for Judicial Studies, Portugal. From 2008 to 2011 she was a guest lecturer at the Law Faculty of the University of Lisbon. She is currently a researcher at the Research Centre for Criminal Law and Criminal Sciences of the same Faculty. She is preparing her PhD with a thesis on exclusionary rules in the EU. She is a member of the European Commission’s Expert Group on European Criminal Law and was elected a member of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) for Portugal. She is Vice-Chair of the European Criminal Bar Association and Chair of the Portuguese Criminal Lawyers’ Association. Carlos Pinto de Abreu is a practising lawyer holding the title of specialist criminal lawyer granted by the Portuguese Bar Association and a member of the Board of APAV—Portuguese Association for Victim Support and Chair of the Board of the Lawyers and Solicitors’ Pension Fund (CPAS). He has held various positions at the Portuguese Bar Association, has been President of the General Assembly and is currently a member of the Advisory Board of the Portuguese Criminal Lawyers’ Association. He is the author or co-author of several published books, compilations of legislation and a large number of articles, including “Procedural Strategy – from a battle perspective to a purely procedural perspective”; “Protection, Delinquency and Justice of Minors”; “Penal Execution Legislation and Penitentiary Regime”; “Payment Institutions – Compilation of Legislation and Regulations” and “Cases and Causes – history also repeats itself”.

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João Valente Cordeiro is a practising lawyer, a Professor of Law and Ethics at the National School of Public Health Nova University of Lisbon (ENSP-UNL) and Researcher at the Public Health Research Institute of Nova University of Lisbon. He holds a Law Degree from the Faculty of Law, University of Lisbon, a PhD in Biochemistry from University College London and a Biochemistry Degree from the Faculty of Sciences, University of Porto. He is a member of the Council of Ethics of the NOVA University of Lisbon, a member of the Ethics Committee for Research on Human Subjects of the Faculty of Pharmacy of the University of Lisbon and a member of the Pedagogical Council of ENSP-UNL. Currently, he is actively involved in researching and teaching at a graduate and post-graduate level on the subjects of Health Law and Ethics, Research Ethics and Bioethics, as well Digital Health and Precision Medicine at ENSP-UNL. He is also a tutor of the Research Skills Development Course of NOVA Doctoral School in partnership with Imperial College London and is the Co-Coordinator of the Research Ethics Course of NOVA Doctoral School. He has authored and co-authored several articles and book chapters. He had a previous biomedical research career during which he worked in five multidisciplinary research laboratories in three European countries and has published work in high impact top scientific journals.

Confidentiality of Correspondence with Counsel as a Requirement of a Fair Trial in Spain María Luisa Villamarín López

Abstract The Spanish Constitution recognizes the right to a legal counsel as a fundamental right within the right of defence (Art. 24 of the Constitution). Having legal assistance in criminal procedures is not only configured as a defendant’s guarantee but also as a must for the development of the procedure, that is exempted only in very limited cases. Within the criminal procedure, lawyers are subject to a very special regime of secrecy regarding the information given by their clients (Art. 416 CCP), in order to protect their right to silence; therefore, defence counsels cannot be forced by public authorities to place witness against them or they cannot be obliged to revealed their communications with their clients. All these issues will be covered in detail in this article, analysing the legal regime provided in the Spanish Criminal Procedural Law and its reading by the Spanish Constitutional Court and the Supreme Court. Keywords Access to lawyer · Attorney-client communications · Attorney-client privilege · Confidentiality · Criminal defence · Criminal procedure · Exclusionary rules · Fair trial · Legal aid · Legal privilege · Mandatory counsel · Right of defence · Right to counsel · Search of lawyer’s offices

Abbreviations ATS CCP CDAE CE CP EGAE LAJG

Court Order of the Supreme Court Criminal Procedural Law of 15 June 1882 Code of Deontology of the Spanish Lawyers Spanish Constitution of 6 December 1978 Spanish Criminal Code (LO 10/1995, 23 November) General Statute of the Spanish Lawyers Law of Legal Aid (Law 1/1996, 10 January)

M. L. Villamarín López (*) Universidad Complutense de Madrid, Madrid, Spain e-mail: [email protected] © Springer Nature Switzerland AG 2020 L. Bachmaier Winter et al. (eds.), The Right to Counsel and the Protection of Attorney-Client Privilege in Criminal Proceedings, Ius Comparatum – Global Studies in Comparative Law 44, https://doi.org/10.1007/978-3-030-43123-5_10

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LGP LO LOPJ LORPM LPBC RP SEPBLAC STC STJUE STS

M. L. Villamarín López

General Penitentiary Law (LO 1/1979, 26 September) Organic Law Organic Law of the Judicial Power (LO 6/1985, 1 July) Organic law on criminal responsibility of minors (LO 5/2000, 2 January) Law 10/2010, on the prevention of money laundering and the financing of terrorism Penitentiary Regulation, RD 190/1996, 9 February Executive Service of the Commission for the Prevention of Money Laundering and Monetary Infractions Judgment of the Spanish Constitutional Court Judgment of the Court of Justice of the European Union Judgment of the Spanish Supreme Court

1 Preliminary Information About the Right to Counsel The right to counsel is protected in Art. 17.3 (only applicable for someone who is being held in custody) and Art. 24.2 of the Spanish Constitution of 1978 (CE), within the Section about fundamental rights, which are subject to special protection even through an extraordinary remedy of complaint before the Constitutional Court (amparo). This right to legal advice is one of the instrumental rights—perhaps the most important—comprised within the most generic right of defence, meaning that the accused must have all opportunities to defend himself available, i.e. to submit his claims and evidence during the proceedings.1 In the Spanish procedural laws the right of defence as well as the right to legal counsel arise from the very minute in which criminal liability is attributed to a person: “All persons accused of a crime may exercise the right to a defence and may intervene in the procedural activities, from the moment they are notified of their existence, whether they have been arrested or subject to other precautionary measures or indicted” (Art. 118.1 CCP). Therefore, the right to legal assistance does not depend on whether the person has been arrested or not but it is conferred since the suspicion of criminal responsibility is individualized in a specific person, who is charged with a punishable act, so that lawyer and client can meet even prior to their statement being received by the police, prosecutor or judge (Art. 118.II CCP). As will be analysed in detail later, in the Spanish legal system, legal assistance is configured not only as a fundamental right of the defendant but also as an obligation in most types of proceedings in order to guarantee an effective defence and a proper functioning of the procedure itself. This implies that, although the right to counsel

1

For a better understanding of the Spanish criminal procedural system see the following two works in English: Bachmaier Winter and Del Moral García (2020) and Gascón Inchausti and Villamarín López (2008).

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consists firstly of the right to choose a lawyer freely (Art. 118.1.d CCP), if the interested party has not already appointed one, “the police, the Public Prosecution Service or the judicial authorities will immediately request the Bar Association to designate a lawyer ex officio” (Art. 767 CCP). Appointment ex officio does not mean free legal aid, which is only provided to those who prove not having sufficient means to pay the costs of the procedure. Specifically, Law 1/1996 of January 10 of Free Legal Aid (LAJG), recognizes this right in the following terms: (a) to natural persons who, lacking sufficient assets, have resources or income that does not exceed thresholds set forth in Art. 3 LAJG and whose general framework is twice the minimum salary (set for 2020 at 950 Euros); (b) legal persons without assets whose annual accounting result is less than three times the minimum inter-professional salary (Art. 3.5 LAJG). To speed up the provision of legal assistance to the person in custody or the defendant, the insufficiency of resources does not have to be proven at the very first moment, without prejudice to the fact that, if the right of legal aid is finally not recognized, the defendant will be obliged to pay the fees accrued for their lawyer’s intervention (Art. 6.2.II LAJG). Once this right is recognized, the defendant will have the right to legal assistance “for any police activity that is not the consequence of an ongoing criminal proceeding or for his first appearance before a judicial body” (Art. 6.2 LAJG), during the entire course of the procedure, including possible appeals (Art. 7.2 LAJG) and, even, for the enforcement of the judgment. The procedure for the recognition of free legal assistance is handled by the bar association of the place where the court that is going to hear the main proceeding is located (Art. 12.2 CCP), which will choose among the attorneys who are on its lists. A special shift of permanent guard to assist people in custody has to be guaranteed (Art. 24 LAJG) to meet the legal requirement provided in Art. 520.5 CCP, committing lawyers to go to the police agencies within a maximum period of three hours after being notified. Lawyers who join this shift (called turno de oficio) have to comply with the requirements demanded by the corresponding bar association of their city, which will normally consist of having an open law firm, certifying certain years of experience (especially in the field in which they want to practice) and having completed some specialized training to be able to provide this service. Only in cases related to criminal law can the appointed lawyers excuse themselves from the defence, alleging personal and fair reasons, which will be assessed by the Deans of their bar (Art. 31.II LAJG). Even in these cases of free legal aid, the Spanish Law preserves the right of the accused persons to appoint lawyers of their trust, though, “in this case they will be under the obligation to pay them for their fees and costs, as provided for with respect to those who do not have such right, unless the freely chosen professionals waive receipt of fees or costs under the terms provided for in Art. 27 of the Free Legal Aid Act” (Art. 121 CCP). Regarding the right to choose a lawyer in whom the defendant may trust, it has to be highlighted that is not absolute in the Spanish system.2 It can be temporarily suspended in cases of incommunicado detentions ordered according to the

2

See in detail Juan Sánchez R (2017).

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provisions in Art. 509 CCP3 for the duration of this special regime and provided special circumstances (Art. 527 CCP). Hence, in these cases a lawyer should be appointed ex officio. This limitation has been repeatedly justified by the Spanish Constitutional Court on the grounds that, in certain cases, when the “defence of social peace and citizen security” and the defendant’s right to legal assistance come into conflict, the first takes precedence over the second (among others, in STC 196/1987 of December 11). The Spanish Government, having been criticized by the United Nations Committee against Torture on this legal provision, has also maintained the need to keep this provision in cases regarding the fight against terrorism to ensure that the person in custody can make statements freely and without coercion, since the experience showed that defenders of terrorist bands (in particular, of the terrorist group called ETA) often used to be so closely linked to them, that in many cases they even were part of these organized criminal groups.4 The same opinion has also been defended by the European Economic and Social Committee in its Opinion of 7th December 2011.5 In any case, it should be noted that, whatever type of mandate, lawyers acting in criminal proceedings are procedural representatives of their clients,6 so they have to act entirely in the interests of the defendant and not in the interests of the police or the judge (or of the Administration of Justice), avoiding any possible harmful action that could be harmful to their client. In fact, the Constitutional Court has repeatedly stated that the right to legal counsel must guarantee a “real and effective defence and a not merely formal and illusory one” (for example, in SSTC 178/1991, 221/2000, 13/2000). The lawyer is the technical assistant of the defendant, whose presumption of innocence has to be undermined by the accusations. Therefore, the defence counsel is not allowed to place his defendant in situations that could harm him and is neither allowed nor obliged to collaborate with the investigation or force the accused to confess.7 But, as previously noted, legal assistance is more than just a right in the Spanish system. As a general rule, it is also a must for defendants. Its objective is to ensure that the criminal proceedings are followed “with respect to the essential principles of

3 The following circumstances may concur to order this incommunicado regime (Art. 509.1 CCP): “a) the urgent need to prevent serious consequences which may place the life, liberty or physical integrity of a person in danger, or b) the urgent need for immediate action by the investigative magistrates to prevent serious inconveniences to the criminal proceedings”. 4 On the response of the Spanish Government to the Report of the Committee against Torture, see in more detail Bernardo San José and De Padura Ballesteros, in Bachmaier Winter L (2012), pp. 125–128. 5 Opinion “Right of access to a lawyer in criminal proceedings”, SOC/424 (OJ C 43, 15.2.2012, pp. 51–55). Available at https://www.eesc.europa.eu/en/our-work/opinions-information-reports/opin ions/eesc-opinion-right-access-lawyer-criminal-proceedings. 6 See Moreno Catena and Cortés Domínguez (2017), p. 161. 7 However, the General Statute of the Spanish Lawyers indicates a limit to this defence function of lawyers in its Art. 30: “in no case can the protection of such interests justify the deviation from the supreme purpose of the Justice to which the Law is linked”.

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equality and contradiction, which impose on the jurisdictional bodies the positive duty to avoid imbalances between the respective positions of the parties in the procedure or limitations in the defence that may cause some of them defenceless, constitutionally prohibited by Art. 24.1 CE” (STC 212/1998, of October 27 1998). Therefore, the defendant cannot waive the assistance of counsel in juvenile (Art. 22.1 LORPM)8 and in most of the adult proceedings (Art. 118.3 CCP), with two exceptions. The first, the detainee or prisoner “may waive mandatory assistance of a lawyer if they were arrested for acts liable to be exclusively classified as crimes against road safety, as long as they have been provided with sufficient, clear information in plain, understandable language about the content of such right and the consequences of the waiver”, which, in any case, can be revoked “at any time” (Art. 520.8 CCP). The second, in connection with minor offences9 (Article 967.1 CCP), where legal assistance is not mandatory. However, if the defendant prefers to rely on legal counsel, he can always request it, since, as the Spanish Constitutional Court has repeatedly pointed out, “the fact that the intervention of a lawyer is not mandatory in a certain type of procedure, in accordance with the procedural rules, does not deprive the defendant of the right to defence and legal assistance recognized by Art. 24.2 CE, since the non-mandatory or necessary nature of the intervention of a lawyer in certain proceedings does not oblige the parties to act personally, but rather empowers them to choose between self-defence and technical defence, but without depriving them of their right to legal assistance” (SSTC 211/2003 and 262/2005, among others). Finally, two ancillary rights to the legal assistance have to be mentioned. Without these provisions the right to counsel would be ineffective in most cases in which the defendant does not understand the language used in court or has no ability to speak. Art. 118.1.f CCP and, in more detail, Art. 123.b CCP guarantee all defendants the right to translation and interpretation during the different stages of the proceedings, rights obviously applicable for all communications between clients and lawyers as it can be inferred from its wording: defendants are recognized a “right to have an interpreter for conversations held with their lawyer and which are directly related to their later questioning or statement taking, or which are necessary to submit an appeal or for other procedural activities”.10

8 In this sense Art. 22.1.b LORPM recognizes that, from the moment of the initiation of the procedure, the minor shall have the right to “appoint a lawyer to defend him or to be designated ex officio and to interview him confidentially, even before giving a statement”. 9 According to Art. 13.3 CP minor offenses are those punished with light penalties according to Art. 33 CP such as, for example, less serious injuries, minor threats (Art. 171.7 CP), mild coercions (Art. 172.3 CP) or thefts or money appropriations or undue damages or damages of less than 400 Euros (Art. 234.2 CP, Art. 249.2 CP, Art. 253.2 CP and Art. 263.1 CP). 10 See Article 123.b CCP.

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2 Attorney-Client Privilege 2.1

Attorney-Client Privilege, Loyalty and Legal Duties of Defence Counsel

The Spanish Constitution of 1978 recognized professional secrecy as a guarantee of the defendant’s right of defence, stating that “the law shall determine the cases in which, for reasons of family relationship or professional secrecy, it shall not be compulsory to make statements regarding alleged criminal offences” (Art. 24.2.II CE). The assistance of a lawyer in the criminal procedure has some very special characteristics since it presupposes a very close relationship of trust in which the client has to share all the information that may be relevant for the preparation of their procedural strategy, which may include not only data relating to their person or third parties (family, friends, partners etc.) but also the recognition of having committed a crime. Thus, such statements cannot be used by the lawyer in order not damage his client. This is the reason why the lawyer’s professional secrecy is not configured as a privilege of the lawyer but as a right of the client to ensure the correct exercise of the right of defence and to protect his right to privacy. This constitutional maxim has been developed both by the Organic Law of the Judiciary Power (LOPJ) and by the Criminal Procedural Law and complemented by two provisions passed by the Spanish Bar Association: the General Statute of the Spanish Lawyers (EGAE) and the Code of Deontology of the Spanish Lawyers (CDAE).11 Art. 542.3 LOPJ recognizes a generic duty of secrecy applicable to lawyers in all areas of law with respect to “all the facts or news that they know by reason of any of the modalities of their profession”, and, at the same time, provides an exemption from the general duty to declare. With regards to the criminal procedure, two articles of the CCP must be highlighted: Art. 263 CCP and Art. 416.2 CCP. According to Art. 263 CCP, lawyers are exempted from denouncing their clients without exception “with respect to instructions or explanations received” from them. In the section regarding witness statements and after setting a general obligation to testify (Art. 410 CCP), Art. 416 CCP makes some exceptions that include lawyers. The following are exempt from the obligation to testify: (1) some family members of the accused; (2) the Lawyer of the accused with regard to the facts confided in them in their capacity as defence; and, finally, (3) translators and interpreters. Despite its restrictive wording, this provision must be understood broadly in the new context of the right of defence provided in the already mentioned Art. 118 CCP. It therefore covers every subject facing a criminal investigation (even without being necessary to be formally “indicted”) and any lawyer, “by any of the sorts of his professional performance” (Art. 542.3 LOPJ), without being necessary that they are still formally

11

Available at https://www.abogacia.es/wp-content/uploads/2012/06/codigo_deontologico1.pdf.

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carrying out the defence, covering also the preliminary tasks of mere advice or assistance to the defendant or person in custody.12 Bearing in mind that the procedural laws contain no other rules regarding the duty of secrecy, the provisions passed by the Spanish Bar Associations13 become particularly relevant. Regarding the scope of this right, Art. 5 CDAE includes not only the “confidences and proposals of the client”, but also “those of the adversary, those of the colleagues and all the facts and documents that have been heard or received by reason of any of the modalities of their professional performance”, as well as “the conversations held with clients, the opposition or their lawyers, presence or by any telephone or telematic means”. This duty does not only oblige the lawyer who is in charge of the case, but also affects “his staff and any other person who collaborates with him in his professional activity”, as well as the other components of the law firm, when it is collective (also in Art. 28.6 EGAE). In fact, the EGAE prohibits them from “sharing premises or services with incompatible professionals, if this could affect the safeguarding of professional secrecy” (Art. 21.b EGAE and Art. 28.2 EGAE). Furthermore, the duty of secrecy does not end when the mandate is finished (Art. 6.7 CDAE) and lawyers are banned from advertising their services revealing data or facts that would have been covered by the professional secrecy “directly or indirectly” (Art. 25.2 EGAE and Art. 7 CDAE).

2.2

Lawyers’ Duty to Aid the Ascertainment of the Truth During the Procedure

The duty of secrecy implies, therefore, not only that the lawyer is not obliged to testify during the investigation stage or at the trial, but also that he cannot reveal what the client has told him in private, even if that information had a criminal content. As the Supreme Court has pointed out, “the confidentiality of the relations between the accused and his defence counsel, which naturally must be presided over by trust, is an essential element” (STS 79/2012, of 9 February). Otherwise, the defendant’s opportunities of defence would be curtailed since they would have no chance to build their procedural strategy to oppose the accusations brought against them. It must be highlighted that the Spanish Constitutional Court has continuously held that defendants are not subject to any legal obligation to tell the truth, but can be silent or even lie (SSTC 68/2001, of March 17, 233/2002, of December 9 312/2005, of December 12, 170/2006, of June 5) by virtue of their rights not to testify against

12

This exemption to reveal private information of clients is also recognized before the Tax Administration in Tax Law (Art. 93 of the General Tax Law, Law 58/2003, 17 December). 13 As regards the legal value of the provisions passed by professional associations, although there is no unanimous criterion, in general terms both the Spanish Constitutional and Supreme Courts have recognized the normative effectiveness of the deontological codes approved by them. For more details about this case law see Arribas López (2010), p. 25.

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themselves and not to confess to being guilty, according to which every citizen is recognized the right not to collaborate in his own case (STS No. 857/2012, of 9 November, referring to SSTC No. 57/2002, of March 11, 155/2002, of July 22, and 152/2004, of 20 September). Therefore, the lawyer cannot interfere with the exercise of these defendant’s privileges and, thus, cannot act against the defensive line of his client or his interests.

2.3

Attorney-Client Privilege: Possible Exceptions

Firstly, it could be discussed if lawyers have to still keep the secret even if they know that their client is planning to use “unlawful or unfair means” for their defence (Art. 3 CDAE), as could happen if the defendant tries to introduce a false document into the procedure or to coerce a witness to make a false statement. Even in these cases, in our opinion, the lawyer has to keep the secret to protect the defendant’s rights, even though a different approach is inferred from Art. 5.8 CDAE: “In exceptional cases of extreme seriousness in which the mandatory preservation of professional secrecy could cause irreparable damage or flagrant injustices, the Dean of the Bar will advise the lawyer with the exclusive purpose of guiding and, if possible, determine alternative means or procedures for solving the problem raised by weighing the legal issues in conflict”. Secondly, the nature of the duty of secrecy has to be clarified because, if it has a private nature, it therefore lapses if the client exempts him from declaring, giving their consent to reveal their data meanwhile if, on the contrary, the secret has a public character even their “consent in itself does not excuse the lawyer from preserving it” (Art. 5.8 CDAE).14 Thirdly, it is also disputable if the objective of preventing certain crimes should constitute a new exception to the lawyer’s duty to maintain professional secrecy. When a lawyer is told by their client that they intend to commit a crime in the near future, it can be understood that the counsel’s duty of confidentiality should not apply and, in this sense, it could be deemed that if the lawyer does not do anything to prevent the perpetration of the criminal offence, his omission could make him be liable according to Art. 450 CP (omission to prevent a crime).15 A clear exception to the duty of secrecy is made concerning lawyers who “participate in the design, implementation or advice of operations on behalf of clients”, particularly in the context of carrying out financial or real estate transactions, in order to facilitate the prosecution of money laundering offenses (Art. 2.1. ñ of Law 10/2010, on the prevention of money laundering and the financing of terrorism, LPBC). In these cases, lawyers are obliged to report any operation when there is evidence or possibility that it could be related to money laundering or terrorist financing, although the addressee of this notice by the lawyer is not the 14 15

For more details see Arribas López (2010), pp. 36 and 37. For more details see Arribas López (2010), pp. 48 ff.

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police or the prosecutor’s office but the Unit of Financial Intelligence of Spain called SEPBLAC (Executive Service of the Commission for the Prevention of Money Laundering and Monetary Infractions). However, in these cases, lawyers are exempted from testifying when information about these crimes is obtained as a consequence of the exercise of the right of defence “in judicial proceedings or in relation to them” or in the advisory tasks prior to judicial proceedings (Art. 22 LPBC) since, as the Court of Justice of the Union had occasion to indicate on this issue, “such dispensation contributes to preserve the right of the client to a fair process”.16 The Court of Justice of the European Union has made clear that the privilege of confidentiality between lawyer and client does not apply to in-house lawyers who work for a legal entity that has been indicted or accused, due to their lack of independence.17

2.4

Lawyers Involved in the Criminal Action

Even though confidentiality between client and lawyer is important, this protection disappears “when there is objective evidence indicating that the lawyer took part in the criminal activities under investigation, or of their involvement with the party under investigation or the accused in committing another criminal offense, without prejudice to the provisions of the General Prisons Act” (Art. 118.4.II CCP).

2.5

Lawyer’s Liability in Case of Breach of the Duty of Confidentiality

Finally, it should be analysed how Spanish lawyers take responsibility for the breaches of their duty of secrecy. Lawyers are subject to three sorts of responsibilities in the exercise of their profession, according to the LOPJ: civil, criminal and disciplinary, as appropriate (Article 546.2 LOPJ). With regards to civil liability, they will be responsible, as indicated in Art. 78.2 EGAE, when, due to fraud or negligence, they damage the interests of those whose defence has been entrusted to them. With regards to criminal responsibility, lawyers must be held accountable for the crimes committed in the exercise of their profession, in particular, for the crime of “discovery and disclosure of secrets”, provided for in Art. 199 CP, in which being a professional is deemed as an aggravated circumstance (Art. 199.2 CP). It is a crime

16 CJEU of June 26, 2007, C-305/05, resolving a preliminary ruling on the validity of Art. 2.bis.5 of Directive 91/308/EEC on the prevention of money laundering. 17 In this sense, see Gascón Inchausti (2012), p. 144.

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that punishes those who, in breach of their obligation of “silence and discretion”, “disclose the secrets of another person”. This offence is punishable by a prison sentence of one to four years, fine of twelve to twenty-four months and special disqualification for their profession for a period of two to six years. Thirdly, “lawyers are subject to disciplinary responsibility in case of infringement of their professional or deontological duties” (Art. 80 EGAE), which will normally be demanded before their professional associations. Specifically, the EGAE rules very serious infringements closely linked to breaches of the duty of secrecy such as the advertising of professional services which violate the confidentiality, as well as the commission of malicious acts that constitute an offence to the ethical rules that govern the duties established in the EGAE (Art. 84 EGAE). Although analysed in detail later it is important to point out also here that evidence obtained in violation of a fundamental right, such as the attorney-client privilege, leads to the ineffectiveness of the probative material obtained, in accordance with the provisions of Art. 11.1 LOPJ.

3 The Pretrial Right to Counsel During the Preliminary Investigation 3.1

Conditions for Counsel Meeting with Incarcerated Clients

In similar manner to Art. 118 CCP, Art. 520 CCP grants every person in custody the right to appoint a lawyer from the moment of his indictment (except in the cases already analysed in Art. 527 CCP) and “to be advised by a lawyer without unjustified delay”. In addition, it is provided that “in the event that, due to geographical distance, it is not possible for the lawyer to attend immediately, the detainee will be provided with communication with his lawyer via telephone or video conferencing, except where such communication is impossible” (Art. 520.2.c CCP). Due to the urgency of the need of having legal assistance, the designated lawyer is obliged to go to the place where the person is held in custody “with maximum haste, which must be within three hours of receiving the appointment. If they do not appear within this time limit, the bar association will appoint a new lawyer who must appear as soon as possible and within the time limit indicated, without prejudice to the disciplinary action which may be taken against the lawyer who did not appear” (Art. 520.5. IV CCP). Therefore, as a general rule, lawyers can interview their incarcerated clients in private, even prior to making a statement to the police, to the prosecutor or to the judicial authority,18 but not in cases of incommunicado detention or imprisonment,

18

Before the reform of the Criminal Procedural Law by LO 13/2015, this right was recognized in a much more limited way, only “once the procedural activity in which the lawyer took part was finished”.

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in which they are deprived of this right according to Art. 527 CCP (Art. 520.6.d CCP). This limitation is considered disproportionate by some authors, in particular bearing in mind that the lawyer was appointed ex officio in these cases, and “could only respond to the exceptionality criteria when any suspicions have been found against the lawyer”. These interviews, which will be carried out wherever the person is placed in custody (first, in police units, then in court), are confidential unless, as noted above, the lawyer is participating in the commission of other criminal acts (Art. 520.7 CCP) or in the case of an incommunicado detention (Art. 527.1.c CCP). Therefore, recording devices or video cameras cannot be installed to capture their conversations.

3.2

Right to Counsel During Investigative Acts Carried Out with the Participation of the Defendant

Legal assistance does not only comprise the possibility of interviewing the defendant. The CCP provides the right to counsel for an effective defence that extends throughout all phases of the procedure, and so lawyers must accompany the accused throughout all the investigation stages. In particular, lawyers are granted the following faculties in Art. 520.6 CCP: (a) request, as appropriate, that the detainee or prisoner is informed of the rights provided for in paragraph 2 and proceed, if necessary, with their medical examination; (b) appear in the investigative activities carried out with the participation of the defendant, in particular in the statements taken from the detainee, in the records of the examination they are subject to and in the reconstructions of events that the detainee takes part in. Once all these procedural activities have taken place, the lawyer may also request records; (c) during the execution of these acts, the lawyer also informs the detainee of the consequences of giving or refusing his consent to the practice of such legal activities. However, it needs to be pointed out that the possibility granted to lawyers to have access to the results of the procedural activities is restricted in cases of incommunicado detention according to Art. 527.1.d CCP, with the only exception of the “essential elements necessary to appeal the legality of the detention”.

4 State Intrusions into the Confidentiality of Attorney-Client Communications 4.1

The Attorney as a Witness Against His Client

As noted above, the lawyer is obliged to keep confidentiality with the only exception mentioned before regarding the Money Laundering Act of 2010. In all other cases, according to Art. 416.2 CCP, lawyers are exempt from testifying since they are

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obliged to keep confidential all of what they know about the defendant. Therefore, a lawyer cannot be forced or threatened with punishment to breach confidentiality during the investigation or the trial, as he serves the interests of his client and is bound to keep professional secrecy, under threat of sanction, as previously indicated. Although a lawyer is exempt from testifying because of his special relationship with one of the accused, in case of proceedings against several accused, the CCP stipulates that the lawyer is obliged to “testify with respect to the others” unless their statement may compromise the person he defends (Art. 416.2.II CCP).

4.2

Searches of Lawyers’ Offices

Unlike other European legislations, such as the French, the Spanish law does not currently have any specific provision detailing special rules according to which the search of a law firm must be requested or, when appropriate, executed. This does not mean course, that lawyers’ offices cannot be searched but it is not clear when and how searches can be done.19 The CCP distinguishes between searches of private homes and searches of public places. It is necessary to obtain the owner’s consent or, failing that, judicial authorization (Art. 545 ff. CCP). Although lawyers’ offices have not been recognized as domiciles in the case law (STS 1649/2013, 26 March), it has been generally considered an inviolable place in the sense of Art. 18.2 CE in order to protect clients’ right to privacy and the secrecy and confidence that prevail in lawyers-clients relationships (STC 54/2015, 16 March 2015; STS 8701/2012, 5 December).20 But, in the same way that homes can be searched when there is a superior interest of prosecuting a crime, lawyers’ offices can also be searched. Regarding domiciles, the CPP stipulates that “the search will be made in the presence of the interested party or the person legitimately representing them. If the former did not wish to appear or appoint a representative, it will be carried out in the presence of a member of their family, of legal age. If there is none, it will be done in the presence of two witnesses who reside in the same town”. The search also requires the presence of the Court Clerk or the judge who authorized it (Art. 569 CCP). In view of the fact that the CPP has no explicit provision regarding the search of lawyers’ offices, the EGAE deals with the issue in the following sense: “In the event that the Dean of a bar (. . .) is required by the law or advised by the judicial or administrative, competent to search a professional office of a lawyer, he must appear in that office and attend the proceedings carried out in it to ensure the protection of professional secrecy”. The Spanish courts have understood this additional requirement in quite different senses. As an example, the Supreme Court stated in its

19 20

On this question, see Azaustre Ruiz P (2012). See also Ruiz de Erenchun Arteche (2014), pp. 1 ff.

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judgment of April 27, 1994, that the search of lawyers’ offices needs to be carried out extremely carefully because it can jeopardize professional secrecy; bearing this in mind, the presence of a Dean, as stipulated by the EGAE, was considered necessary. On the contrary, in other decisions the attendance of a Dean was not deemed compulsory because it is not dictated by procedural laws and is therefore not considered binding, the legality of the registration being guaranteed by the presence of the Court Clerk (Letrado de la Administración de Justicia), supporter of the judicial public faith (Judgment of the Supreme Court of October 1, 1999). The Constitutional Court has not considered the presence of a Dean a constitutional requirement but nor has it eluded it (ATC 167/2000); in any case, it could be concluded that it is not a valid cause to declare the nullity of the search. However, the Supreme Court case law is consistent in stating that, in practice, these searches not only should safeguard the secrecy with respect to whom is investigated but also with respect to the data and information of other clients of the firm not affected by the criminal process (STS of February 25, 2004). The General Council of Spanish Lawyers has specified the regime of these actions in its Report 10/2015, of 14 December. It sought to clarify the particular criteria to be followed and the additional guarantees required for the adoption of these measures. Specifically, in their opinion, in the application of Art. 552 CCP, the following considerations should be taken into account when dealing with the search of a law firm: (a) avoidance of useless inspections, both for their content and duration; (b) avoidance of unnecessary damages; (c) adoption of complementary precautions such as the request for a list of persons whose files or documents could be subject to seizure, in order to ensure compliance with the professional secrecy of third parties that are not related to the purpose of the investigation, which may be incorporated in the minutes. Of particular concern in the Report is the new Art. 588 septies.a CCP, introduced by the Organic Law 13/2015, that gives the judge the possibility to authorize remote searches on computer equipment, which could create new and difficult problems when investigating law firms.21

4.3

Interception of Confidential Communications Between Lawyer and Client

As pointed out above, it is essential that the conversations between client and lawyer are confidential to preserve professional secrecy and thus guarantee the right of defence of the client. This follows directly from Art. 118.4 CCP and Art. 520.7 CCP and, indirectly, from the exemptions to testify provided for in the aforementioned Art. 263 CCP and Art. 416 CCP.22 In particular, in Art. 118.4 CCP, after their

21

In detail about computer searches, Bachmaier Winter L (2017). On the interception of confidential communications, see in detail Bachmaier Winter (2004), pp. 48 ff. 22

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confidential nature, the consequences of a possible breach of this guarantee are explained as follows: “If these conversations or communications (referring to direct conversations between lawyer and clients and also to those employing any external instrument) have been recorded or intercepted during execution of any of the investigative activities provided by this law, the judge will order the recording to be deleted, or the correspondence will be handed over to the addressee, and will leave a record of these circumstances on the proceedings”. Consequently, these relations have a special protection since it is not only about guaranteeing the secrecy of the communications of Art. 18.3 CE, which could be limited with respect to the generality of the persons investigated when a series of legal requirements are met (Art. 588.bis CCP), but also to save another secret of a different nature, such as professional secrecy, which would become redundant if it were restricted through these measures.23 However, there are two cases in which the communications between lawyers and clients can be intervened: the first, during imprisonment in cases of terrorism offenses, prior judicial authorization (Art. 51.2 LGP); the second, when there is “objective evidence” that the lawyer is also participating in the commission of a crime (Art. 118.4.II CCP). Despite the special regime to which defendants who are in prison are subject to, both the CE and procedural laws have made it clear that inmates in a penitentiary centre still have fundamental rights (Art. 25.2 CE and Art. 51.2 LGP) and, in particular, their right to secrecy of communications, both oral and written, although their exercise is subject to the specialties set out in the penitentiary legislation (STC 175/200, of June 26). Bearing this in mind, the lawyer-client contact in prison is protected with greater intensity, since, as the Supreme Court affirms, the interception of their communications would not only make the right of defence redundant but also become an ideal instrument for self-incriminating the accused, since “the recording of the conversations with the lawyers provided elements apt for the indictment, violating the right not to declare against oneself and influencing the defensive strategy”. In this sense, in the well-known Gürtel Case regarding preventive prisoners’ communications intervened by the investigate Judge Garzón, the Supreme Court pointed out that: “In the event that the legal system did not respond rigorously to such a serious violation of fundamental rights, no preventive prisoner or any lawyer would have from now on, when they talk in a prison visiting room about the defence strategy and other issues related to problems procedural and personal of the accused, the slightest guarantee that their conversations were not heard” (ATS of October 19, 2010). For these reasons, these types of interventions are generally proscribed: “Inmates’ communications with the defence attorney or with the lawyer expressly called in

23 For a study of this right and its limitations in more detail see López-Barajas Perea (2011), pp. 522 ff.

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relation to criminal matters and with the attorneys representing them, will be held in appropriate places and will not be able to be suspended or intervened except by order of the judicial authority and in cases of terrorism” (Art. 51.2 LGP and Art. 48.3 RP). Thus, a single exception is established for terrorism cases. These articles have been the centre of an arduous controversy because for years it was understood that they enabled the intervention of prisoners’ communications with their lawyers with judicial authorization for most of the cases or even without judicial permission for exceptional cases of terrorism. However, the Constitutional Court interpreted this provision in a more adjusted way to the right of defence, understanding that the two provisions mentioned in those articles must be interpreted cumulatively and not alternatively. Therefore, even in cases of terrorism, judicial authorization will be required to legitimize those measures (SSTC 183/1994, of June 20, 97/1994, of July 4, STC 58/1998, of March 16, on the written communications). As pointed out by the Supreme Court, it is unthinkable that the Administrative Authority of the prison could authorize this type of intervention since “it has no possibility of pondering procedural circumstances that occur outside the prison scope” and because this will be “totally incompatible with the more intense degree of protection that the law confers on the right of defence in criminal proceedings” (STS 245/1995, of March 2). The Constitutional Court has had occasion to justify this exception in the cases of terrorism in its Judgment 58/1998 of March 16, stating that “the maximum protection of individual rights within the rule of law is not incompatible with the admission of reactions provided against the proven possibility of abuse in very specific and exceptional cases as occurs in the area of criminal activities planned by organized groups that are permanent and stable, of an armed nature”, which “use the guarantees given by the democratic systems as a result of the right of defence as abusive channels for those who exceed the purpose of the defence and incite collaboration with terrorist activities, so that in this context it is reasonable”, exceptionally, to approve this type of interventions, although with certain additional cautions, as they are “the special guarantee of the previous judicial authorization”, which will have to weigh in on a case by case basis “the necessity, proportionality and reasonableness of the measure”. In any case, it should be clarified that these provisions are applicable only in prisons and, therefore, are not applicable to any other context, for example, in the police station after detention (STC 145/2014, of September 22). The second exception to the general rule of inviolability of communications between lawyer and client refers to cases in which it is considered that the lawyer may have participated in the commission of a crime.24 It is thus established in Art. 118.4.III CCP that: “The provisions of the first paragraph will not be applicable where there is objective evidence indicating that the lawyer took part in the criminal activities under investigation, or of their involvement with the party under investigation or the accused in committing another criminal offense, without prejudice to the provisions of the General Prisons Act”. In this case, the lawyer is not being

24 This exception is supported by the European Court of Human Rights in cases such as Kopp v. Switzerland, Appl. no. 23224/94, of 25 March 1998.

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investigated as a professional but as a normal person who has committed a crime. The Supreme Court limits these cases to those in which “there is evidence, sufficient and contrasted, that the lawyer has overreached his duties and responsibilities, joining the criminal activity as one of its members” (STS of 28 November 2001). Even if this is the case, special precautions must be taken when intervening lawyer’s communications, since this measure may compromise the information and data of the lawyer’s clients (even from people with no relation to the criminal proceedings in progress). Therefore, the judge has to be particularly careful with respect to the principle of proportionality, weighing if the investigative purposes really justify the interference of communications protected by the right of secrecy.25

5 Exclusionary Rules and Nullities The LOPJ clearly affirms in Art. 11 LOPJ the illegality of “the evidence obtained, directly or indirectly, violating fundamental rights”.26 This has also been held by the Constitutional Court, among others in its well-known resolution (“Auto”) of June 18 of 1992 and in its Judgments of March 2 of 1993 and June 3 of 1995. A clear conclusion can be drawn from this provision: the evidence must be considered inefficient and expelled from the procedure only in case of violation of fundamental rights. In other cases of procedural irregularities the consequences depend on the circumstances in which the defect occurred (see Art. 238 LOPJ).27 From this provision it is also obvious that the evidence obtained by directly violating fundamental rights (such as the right to secrecy of communications, the right to defence or legal assistance) will not have an effect on the procedure. Thus, the wiretapping of lawyer-client conversations, or the search of lawyers’ offices without judicial authorization, or the statement made by the accused without a lawyer or by a lawyer subjected to torture about what his client revealed to him in secret, will be unlawful. However, it is more difficult to determine how indirect infringement of the fundamental rights should affect the evidence taken. Initially the Constitutional Court applied the American doctrine of the fruits of the poisonous tree to these cases, which implied that everything that was obtained from a “poisoned” source of evidence must be deemed also contaminated and therefore procedurally ineffective. However, this interpretation was progressively evolving towards the application of the so-called “connection of illegality” (conexión de antijuridicidad) to overcome the disadvantages that the former has had on the criminal procedure, since it often

25

See in detail on this question Noya Ferreiro (2018), pp. 156 ff. See in detail about this question Armenta Deu T (2009). 27 For more details, see Banacloche Palao and Zarzalejos Nieto (2017), pp. 292 ff. 26

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allowed for guilty people to be released and has caused the exclusion of evidence that was not necessarily contaminated when it was gathered. This new doctrine, initiated in the Judgment of the Constitutional Court 81/1998, of April 2, implies that “to annul a piece of evidence is not enough a causal or factual connection with the unlawfully obtained, but that there must be an effective legal transmission of the unlawfulness from one evidence to another”. Thus, to be able to apply this doctrine it is necessary to analyse on a case by case basis if the following two requirements are met (so that the “connection of illegality” could be considered broken): (a) if the unlawfulness of the main evidence is spread to their derivatives, regardless of the causal relationship among them; (b) the importance of the law infringed upon. In this sense, it affirms that “only when the indirect evidence is legally distant from the violation of the right and the prohibition of evaluating it is not required by the needs for protecting it, it may be understood that its effective assessment is constitutionally legitimate, as it does not have any negative aspects that shape the substantive fundamental right” (SSTC 81/1998, April 2). In the Spanish legal system, illegal evidence can be expelled from the procedure even from the investigative stage, or before the trial (by means of the so-called “previous questions” (cuestiones previas) or “articles of previous pronouncement” (artículos de previo pronunciamiento) provided in Art. 666 CPP and Art. 786.2 CCP) or even by way of appeal. Depending on the content and scope of the procedural activities declared null, its consequences will be different.

6 Attorney-Client Communications at Trial During the trial, the communication between client and lawyer is not really free. First, due to the position in which the main actors of the criminal proceedings are placed in the courtroom, since the defendant does not sit on the bench together with their lawyer but is generally placed down on the bench, although in the closest area to them. Second, due to the dynamics of the trial itself, which must try to be held with as little breaks as possible, so that free communication with the client can only be established if the Magistrate agrees to an official recess or when, exceptionally, for example, a piece of evidence unknown to the defence is introduced during a session and the lawyer intends to question his client about it, the lawyer requests a break to be able to speak with their client out of the courtroom in order to decide their line of defence.

7 Criticism & Reform Although confidentiality of the lawyer-client relationship is not currently the subject of an arduous debate in Spain, given the urgency to change the current Criminal Procedural Law of 1882, the doctrine has suggested certain changes in this matter.

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First, the experts in criminal law have proposed to proclaim the crime of disclosure of secrets not as an offense that violates the privacy of the individual but as a crime against the Administration of Justice. From a procedural perspective, a better regulation would be advisable in particular relative to the three following aspects. First, regarding the obligation of secrecy of lawyers. As analysed above, the lack of legal provisions carrying out the fundamental right set forth in Art. 24.2 CE generates legal uncertainty that is not solved with the application of the CDAE.28 Second, the regulation of the privilege set forth in Art. 416 CCP has to be adapted to the new requirements of the defendant’s right of defence recognized by the last reforms of 2015 (adopting the new standards set forth in the recent European Directives on these matters), as pointed out above. And, finally, it would be highly recommended to introduce a special regime for the searches of lawyers’ offices and for the intervention of their communications in the CPP, taking into account the relevance of the rights that could be affected, directly or indirectly, by these investigative measures.

References Armenta Deu T (2009) La prueba ilícita (un estudio comparado). Editorial Marcial Pons, Madrid Arribas López E (2010) Sobre los límites del secreto profesional del abogado. Leg Mag Murcia Reg 43:15–41 Azaustre Ruiz P (2012) Marco procesal del secreto profesional en la entrada y registro de despachos de abogados. Revista de Derecho y proceso penal 221:15–36 Bachmaier Winter L (2004) Intervenciones telefónicas y derecho de terceros en el proceso penal. Revista de Derecho Procesal:1–3 Bachmaier Winter L (2012) Terrorismo, proceso penal y derechos fundamentales. Editorial Marcial Pons, Madrid Bachmaier Winter L (2017) Registro remoto de equipos informáticos en la Ley Orgánica 13/2015: algunas cuestiones sobre el principio de proporcionalidad. In: Cedeño Hernán M (ed) Nuevas tecnologías y derechos fundamentales en el proceso penal. Editorial Aranzadi, Pamplona Bachmaier Winter L, Del Moral García A (2020) Criminal law in Spain. Kluwer Law International, Netherlands Banacloche Palao J, Zarzalejos Nieto J (2017) Aspectos fundamentales de Derecho Procesal Penal. Ed. La Ley, Madrid Bernardo San José A, De Padura Ballesteros MT (2012) La detención incomunicada por delitos de terrorismo. In: Bachmaier Winter L (ed) Terrorismo, proceso penal y derechos fundamentales. Editorial Marcial Pons, Madrid, pp 125–128 Gascón Inchausti F (2012) Proceso penal y persona jurídica. Ed. Marcial Pons, Madrid Gascón Inchausti F, Villamarín López ML (2008) Spain. In: Vogler R, Huber B (eds) Criminal procedure in Europe. Dunckler and Humblot Verlag, Berlin Juan Sánchez R (2017) El nuevo régimen de la incomunicación cautelar en el proceso penal español. Indret 4:1–29

28

In this sense see Arribas López (2010), p. 28.

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López-Barajas Perea I (2011) El secreto de las comunicaciones con el abogado defensor en la nueva sociedad de la información. In: Actas del IV Congreso de Derecho Procesal, Los retos del Poder Judicial ante la sociedad globalizada, pp 517–530 Moreno Catena V, Cortés Domínguez V (2017) Derecho Procesal Penal. Editorial Tirant lo Blanch, Valencia Noya Ferreiro L (2018) Derecho de defensa e intervención de las comunicaciones de los abogados. Editorial Tirant lo Blanch, Valencia Ruiz de Erenchun Arteche E (2014) La entrada y registro en despachos de abogados. Economist Iuris 178:80–87

María Luisa Villamarín López is a Professor of Procedural Law at the Complutense University of Madrid since 2010, where she graduated and received her Doctor’s Degree with Extraordinary Award. After finishing her thesis on “The provisional dismissal in the criminal process” (published in 2003), she has been working in the framework of more than ten Research Projects and has enjoyed various research stays (MPI Freiburg, Hamburg, Harvard, UCLA, etc.). As a result of these works, since 2002 she has published three other books (“Obtaining evidence in the civil process in Europe”, “Enforced execution and circulation of motor vehicles: the procedural regime of the car of maximum amount”, “Neuroscience and detection of the truth in the criminal process”) and more than two dozen chapters of books and articles on various issues of civil and criminal proceedings, some of them in English, Polish and Portuguese.

Legal Privilege and Right to Counsel in Criminal Proceedings in Switzerland Veronica Lynn and Wolfgang Wohlers

Abstract A lawyer can only practice his profession effectively and properly if the client has complete trust in his lawyer’s discretion. This indispensable trust is safeguarded by the institute of legal privilege, commonly referred to as the attorney-client privilege, an unconditional guarantee of confidentiality. While the scope of the attorney-client privilege in criminal proceedings cannot be any other than in civil or administrative proceedings, defence counsels are confronted with unique issues regarding the implementation and enforcement of the attorney-client privilege and effective defence of the accused person. The aim of this contribution is to give the reader a basic understanding of the right to counsel, the attorney-client privilege and exclusionary rules under Swiss law, in general as well as in the context of criminal proceedings. Each chapter follows the template of questions asked in preparation of the XXth Congress of the International Academy of Comparative Law. The authors address specific difficulties defence counsels can be confronted with in practice, argue how to deal with these issues with regard to their duties and discuss problems regarding the right to counsel that have arisen with the implementation of the Federal Criminal Procedure code since its introduction in 2011. Keywords Access to lawyer · Admissibility of evidence · Attorney-client communications · Attorney-client privilege · Confidentiality · Criminal defence · Criminal procedure · Defence counsel of one’s own choosing · Defence counsel · Defence lawyer · Duty defence lawyer · Exclusionary rules · Fair trial · Lawyer of the first hour · Legal aid · Legal aid defence lawyer · Legal privilege · Mandatory counsel · Mandatory defence lawyer · Nullities · Right of defence · Right to counsel · Rules of professional conduct · Search of lawyer’s offices

V. Lynn (*) · W. Wohlers University of Basel, Faculty of Law, Basel, Switzerland e-mail: [email protected]; [email protected] © Springer Nature Switzerland AG 2020 L. Bachmaier Winter et al. (eds.), The Right to Counsel and the Protection of Attorney-Client Privilege in Criminal Proceedings, Ius Comparatum – Global Studies in Comparative Law 44, https://doi.org/10.1007/978-3-030-43123-5_11

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Abbreviations BBl BGE

BGer CC Cons. CCP ECHR ECtHR FAFML Nr. OGer ZH ZR

Bundesblatt (Federal Journal) Entscheidungen des Schweizerischen Bundesgerichts (Amtliche Sammlung) (Decisions of the Swiss Federal Supreme Court (Official Collection)) Unpublizierter Entscheid des Bundesgerichts (Unpublished decision of the Swiss Federal Supreme Court) Swiss Criminal Code of 21 December 1937 (SR 311.0) Consideration Swiss Criminal Procedure Code of 5 October 2007 (SR 312.0) European Convention on the Protection of Human Rights and Fundamental Freedoms of 4 November 1950 (SR 0.101) European Court of Human Rights Federal Act on the Freedom of Movement for Lawyers (Lawyer’s Act, FAFML) of 23 June 2000 (SR 935.61) Nummer (Number) Obergericht (Cantonal Supreme Court) (Kanton) Zürich ((Canton) Zurich) Blätter für Zürcherische Rechtsprechung (Papers for case law of Zurich)

1 Preliminary Information About the Right to Counsel 1.1

Time Scope of the Right to Counsel

In Switzerland, the defence of an accused person is restricted to lawyers who, in accordance with the Federal Act on the Freedom of Movement for Lawyers (FAFML), are authorized to represent parties before the judicial authorities (Art. 127 para. 5 of the Swiss Criminal Procedure Code, CCP).1 The accused is entitled to entrust a legal adviser with his defence (defence counsel of one’s own choosing) or to have one appointed to him (duty defence lawyer). According to Art. 129 para. 1 CCP the accused may at any stage of the proceedings appoint a legal counsel to safeguard his interests. In fact, any suspect is entitled to hire a defence counsel even before the proceedings have started at all2—provided that he has sufficient funds to pay for a lawyer. Indigent suspects have to request a duty defence lawyer and are therefore not in a position to have a legal adviser before the proceedings have officially started.

1

This provision applies subject to deviating provisions of the cantons regulating the defence regarding proceedings relating to contraventions, see Donatsch et al. (2014a), Article 127, para. 20; Niggli et al. (2014), Article 127, para. 21; Schmid and Jositsch (2017), para. 721. 2 Niggli et al. (2014), Article 129, para. 2; Wohlers and Lynn (2019), p. 105.

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The criminal proceedings are divided into the preliminary proceedings and the proceedings in front of the court. The preliminary proceedings are comprised of the enquiries made by the police and the investigation by the public prosecutor (Art. 299 CCP). In practice, the first interrogation is usually conducted by the police. According to the wording of Art. 159 para. 1 CCP the accused has the right for his defence counsel to be present and ask questions during the first interrogation by the police. Art. 159 para. 1 CCP grants the accused two rights. First, the right for his defence counsel to be present and ask questions during the first interrogation by the police (lawyer of the first hour), meaning in the first stages of the proceedings and not—as it used to be before the introduction of the Federal Swiss Criminal Procedure Code in 2011 which replaced the 26 cantonal and with regard to content very different criminal procedure codes—during the interrogations by the public prosecutor’s office in a later stage of the proceedings. Second, the accused has the right to meet with his defence lawyer without the presence of the authorities.3 If the interrogation is conducted by the public prosecutor’s office, the right for the defence counsel to be present does not follow from the right of the parties to be present guaranteed in Art. 147 CCP because the defence counsel is not a party to the proceedings (see Art. 105 CCP), but the legal adviser to the accused.4 Nevertheless, the right of counsel to be present is generally recognized.5 The police or the public prosecutor have to read the accused his rights at the beginning of the first interrogation (Art. 158 para. 1 CCP),6 meaning before they start asking questions. The interrogation has to be interrupted if the accused wishes to make use of his right to counsel.7 The law does not specify what is meant by the “first interrogation”, i.e. whether the right to counsel should apply at the moment of the first informal interrogation on-site or at the time of arrest.8 According to the legislator the first interrogation is the formal questioning recorded with minutes and not situations in which the police is asking questions at the scene of an accident to get an overview of what happened.9 Some authors have voiced their concern about this definition in view of the fact that, in practice, hours can pass between the preliminary arrest and the first formal

3

Schlegel (2011), p. 36; Schlegel and Wohlers (2012), p. 307; Niggli et al. (2014), Article 159, para. 24. 4 Donatsch et al. (2014a), Article 128, para. 2; Schmid and Jositsch (2017), para. 718. 5 Pieth (2016), p. 99; Schmid and Jositsch (2017), para. 758; Donatsch et al. (2014a), Article 147, para. 4. 6 Riklin (2014), Article 159, para. 2. 7 Pieth (2016), p. 97; Ruckstuhl (2010), p. 134; Niggli et al. (2014), Article 129, para. 2a and Article 159, para. 22; Schlegel and Wohlers (2012), p. 311; Schlegel (2011), p. 39; Schmid and Jositsch (2017), para. 737 and 867 f.; Ruckstuhl et al. (2011), para. 320; Donatsch et al. (2014b), p. 107; Oberholzer (2012), para. 384. 8 Niggli et al. (2014), Article 158, para. 7. 9 Botschaft zur Vereinheitlichung des Strafprozessrechts vom 21. Dezember 2005, BBl 1085 ff., 1192; critical Schlegel (2010), pp. 148 f.

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interrogation.10 They therefore propose that the first interrogation by the police should be the moment in which the authorities take notes—be it in the form of a protocol, memorandum, report, account or any other written form—of any information the accused is giving regardless of when or where this happens.11

1.2

The Right to Counsel for Indigent Persons

In Switzerland, there are no special institutions similar to public defender offices in other countries that safeguard the duties of defence. This duty is safeguarded by lawyers admitted to represent parties before the judicial authorities according to the FAFML. If the accused wants to entrust a legal counsel with his defence but does not possess the necessary means to hire one, he has to request the director of the proceedings to appoint a defence counsel. The director of the proceedings is a different person depending on the stage of the proceedings. In the preliminary proceedings the director is the public prosecutor (Art. 61 (a) CCP). Because the appointment of a defence counsel is usually already relevant during the investigation, the public prosecutor is thus responsible for appointing his own adversary.12 The broad discretionary power granted to the cantons by the legislator to establish their own systems to appoint a defence lawyer has been subject to criticism by the doctrine.13 It bears the risk that the director of the proceedings—the public prosecutor in the preliminary proceedings—could favour appointing a duty defence lawyer he finds pleasant.14 In response to this risk the canton of Zurich has established a special office responsible for examining the requests to appoint a duty defence lawyer. Even though it is part of the Senior Public Prosecutor’s Office, the separation of personnel is intended to prevent the public prosecutor to “choose his enemy himself” and the centralization should allow for equal distribution of the mandates as duty defence lawyer.15 The public prosecutor in charge of the case has to submit a request for a duty defence lawyer to the office for the appointment of duty defence lawyers.16 The accused has the right to propose a specific lawyer and the director should respect the wishes of the accused if possible (Art. 133 para.

10

Erni (2007), pp. 232 f. Niggli et al. (2014), Article 158, para. 7; Donatsch and Cavegn (2009), p. 105. 12 Donatsch et al. (2014a), Article 133, para. 2. 13 Donatsch et al. (2014a), Article 133, para. 2; Piguet and Dyens (2015), p. 370; Hauri (2011), p. 14; Heimgartner (2012), p. 168. 14 Piguet and Dyens (2015), p. 370; Hauri (2011), p. 14; Heimgartner (2012), p. 168; Niggli et al. (2014), Article 133, para. 2. 15 Heimgartner (2012), p. 168; Niggli et al. (2014), Article 133, para. 2. 16 Heimgartner (2012), p. 168. 11

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2 CCP).17 The wishes of the accused will not be met when the requested defence counsel is not available or there is a conflict of interest.18 In this situation the accused has to be asked again which (different) defence counsel he would like to entrust with his defence.19 If the accused does not make a request that could be followed up on, the director of the proceedings or the special office decide which lawyer will be appointed. They decide in part on the basis of factual criteria (such as experience, competence and/or knowledge of a language) and partially with regard to an even distribution of the mandates between the lawyers who make themselves available for the mandate of duty defence lawyer.20 However, even if it were the case, that public prosecutors contact or appoint defence counsels that they are friendly with, it has to be noted that one of the primary duties of a defence counsel in Switzerland is his duty to act solely in the interests of the accused (Art. 128 CCP, see Sect. 2.2 below). The director of the proceedings appoints a duty defence lawyer in cases of mandatory defence (mandatory defence lawyer, Art. 130 CCP) or if the accused lacks the necessary financial means and requires a defence lawyer to safeguard his interests (legal aid defence lawyer, Art. 132 para. 1(b) CCP). A defence lawyer is required to safeguard the interests of the accused in particular if the matter at hand is not a minor case and the case involves factual or legal issues that the accused is not qualified to deal with alone (Art. 132 para. 2 CCP). The jurisprudence has addressed the prerequisite of when a case is too complex for the accused to handle in depth.21 A case is no longer regarded as minor if a sentence of imprisonment of more than 4 months, a financial penalty of more than 120 day-units or a community service order amounting to more than 480 hours is to be expected (Art. 132 para. 3 CCP). The concrete punishment imposed is relevant and not the punishment that could be imposed theoretically.22 The fees of the legal aid defence lawyer are paid by the state in accordance with the table of legal fees applicable in the confederation or canton in which the criminal proceedings are conducted (Art. 135 para. 1 CCP). However, if the accused is ordered to pay procedural costs, he must, as soon as his financial circumstances permit, repay the fees to the confederation or the canton and pay the difference between the official fees and the full fees to his defence lawyer (Art. 135 para. 3 CCP). Provided that the accused has sufficient funds, he can simply hire the defence counsel of his own choosing. However, the process is different if the accused is

17 Donatsch et al. (2014a), Article 133, para. 5; Niggli et al. (2014), Article 133, para. 7; Schmid and Jositsch (2017), para. 746. 18 Donatsch et al. (2014a), Article 133, para. 6b. 19 Donatsch et al. (2014a), Article 159, para. 20. 20 Heimgartner (2012), p. 168; Donatsch et al. (2014a), Article 133, para. 5 ff. 21 Donatsch et al. (2014a), Article 132, para. 14 ff.; Schmid and Jositsch (2017), para. 741 fn. 226 with more details; Wohlers and Lynn (2019), pp. 106 f. 22 BGE 120 Ia 43 ¼ Praxis 1994 Nr. 157; Donatsch et al. (2014a), Article 132, para. 19; Schmid and Jositsch (2017), para. 743 fn. 229.

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indigent. As mentioned above, the police have to read the accused his rights at the beginning of the first interrogation and advise him about his right to the lawyer of the first hour. However, Art. 159 CCP does not specify how the lawyer of the first hour can or has to be appointed in practice. In accordance with the case law of the European Court of Human Rights (ECtHR), which insists that the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) guarantees rights that are not theoretical or illusory but practical and effective,23 and Art. 143 para. 1(c) CCP, which requests that the person being questioned has to be informed in full of his rights and obligations, the prevailing doctrine in Switzerland concludes that the director of the proceedings has to advise the accused on how and where he can contact a defence lawyer and provide him with the appropriate means to do so, indigent or not.24 According to Art. 159 CCP the enforcement of the right to counsel does not give rise to any right to postpone the interrogation. In light of the importance of the right to counsel the authorities have to allow the defence counsel a reasonable period of time to arrive.25 There are differing opinions as to how long the authorities have to wait for the defence counsel to arrive at the station but the prevailing opinion is that they are required to wait for some hours up to half a day.26 If the lawyer preferred by the accused cannot arrive in due time the accused has to be allowed to contact another lawyer.27 As already mentioned above, the interrogation has to be interrupted and suspended until the accused had the opportunity to meet with his defence counsel. If the accused already knows which lawyer he would like to mandate, the police can either call the lawyer themselves or they can allow the accused to use a telephone provided by them,28 but remain in the room while the accused talks to a lawyer and remind him that he will have the opportunity to talk to his defence counsel unsupervised when he arrives.29 If the accused does not know a lawyer or the lawyer he requested cannot be reached, the 26 cantons of Switzerland each have different arrangements in place. The police can provide the accused with a telephone book or a directory of defence counsels.30 However, most cantons have a system of on-call duty defence counsels, which is generally organized by the bar association of the

23 Pishchalnikov v. Russia, Appl. no. 7025/04, of 24 September 2009, § 66 regarding Art. 6 para. 3 (c) ECHR. 24 Schlegel and Wohlers (2012), p. 312; Schlegel (2011), p. 38; Niggli et al. (2014), Article 159, para. 16; Schlegel (2010), pp. 276 f.; Schmid and Jositsch (2017), para. 862; Ruckstuhl (2010), pp. 136 f.; Donatsch et al. (2014b), p. 107; Donatsch et al. (2014a), Article 159, para. 20. 25 Donatsch et al. (2014a), Article 159, para. 20; Pieth (2016), pp. 97 f.; Niggli et al. (2014), Article 159, para. 46 f.; Ruckstuhl (2010), p. 138; Schmid and Jositsch (2017), para. 868. 26 Niggli et al. (2014), Article 159, para. 22; Schlegel and Wohlers (2012), p. 313. 27 Donatsch et al. (2014a), Article 159, para. 2. 28 Schlegel and Wohlers (2012), p. 312; Schlegel (2010), pp. 277 f.; Ruckstuhl (2010), p. 138. 29 Donatsch et al. (2014a), Article 159, para. 18. 30 Schlegel and Wohlers (2012), p. 312; Donatsch et al. (2014a), Article 159, para. 20; Erni (2007), p. 237.

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canton in question.31 For example, the canton of Zurich has a hotline service organized by an association consisting of 250 defence counsels which is operated 24 hours a day, 7 days a week and has an alternating group of five defence counsels on call for 48 hours and another group of five defence counsels on standby, if the first five cannot be reached.32

1.3

Mandatory Counsel

According to Art. 130 CCP a defence lawyer has to be appointed to represent the accused, even against his will, in one of the following five cases (mandatory defence lawyer): First, if the period of remand including the period when under arrest has continued for more than 10 days. Second, if the offence in question carries a custodial sentence of more than a year or a custodial measure or may result in deportation from Switzerland. Third, if the accused is unable to safeguard his interests in the proceedings adequately due to his physical or mental condition or for other reasons and his statutory representative is unable to do so either. Fourth, if the prosecuting lawyer is appearing in person before the court of first instance or the court of appeal and fifth, if accelerated proceedings according to Art. 358–362 CCP are being conducted.

2 Attorney-Client Privilege 2.1

Significance, Legal Basis and Scope of the Attorney-Client Privilege

The attorney-client privilege33 is an indispensable part of a constitutional state and safeguards public as well as private interests. A lawyer can only practice his profession properly and therefore fulfil his role and obligations as an institution within the justice system if the discretion of lawyers is guaranteed unconditionally.34 A client has to be able to trust his lawyer completely. Without the client’s trust in his

31

Ruckstuhl et al. (2011), para. 296. Schlegel and Wohlers (2012), p. 315; http://www.pikett-strafverteidigung.ch. 33 For the sake of good order, it should be noted that the term “attorney-client privilege” is used in this paper for the purpose of harmonisation with the other contributions in this book. The lawyer’s duty of confidentiality under Swiss law is not the same as the concept of the attorney-client privilege of the U.S., but would instead be referred to as “legal privilege”. 34 Niggli and Wiprächtiger (2019), Article 321, para. 2; BGE 87 IV 108; Wohlers and Lynn (2018), p. 12. 32

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lawyer’s discretion a client will not grant his lawyer insight into all the relevant information necessary for the lawyer to properly counsel or defend him in court.35 Because the attorney-client privilege is one of the most important professional duties of a lawyer it is lawfully fixed in the public law governing the profession, the rules of professional conduct and criminal law in Switzerland and therefore protected threefold.36 Defence counsels are subject to the FAFML that imposes a number of duties on lawyers in Art. 12 FAFML. To emphasize the importance of the attorneyclient privilege the legislator regulated it in a separate article.37 According to Art. 13 FAFML, unlimited in time and applicable to anyone, lawyers must observe professional secrecy for all information that has been confided to them by their clients as a result of their professional activity. Release from professional secrecy does not obligate lawyers to divulge confidential information. They are furthermore responsible for seeing that their assistants observe professional secrecy. The wording of Art. 15 of the National Rules of Professional Conduct published by the Swiss Bar Association is almost identical to Art. 13 FAFML. The code of professional conduct is a representation for what is customary for lawyers in Switzerland, which is why these rules and its case law complement and specify the duties of the FAFML.38 The Swiss Criminal Code (CC) safeguards the client’s trust in his lawyer’s discretion by declaring a violation of the attorney-client privilege punishable by law.39 Art. 321 CC states that members of certain professions, such as lawyers and defence counsels, who disclose confidential information that has been confided to them in their professional capacity or which has come to their knowledge in the practice of their profession are liable on complaint to a custodial sentence not exceeding 3 years or to a monetary penalty (Art. 321 para. 1 CC). The fact that Art. 321 CC is only punishable on complaint demonstrates that the attorney-client privilege serves to protect the relationship between the client and his lawyer and therefore serves the interests of the client.40 However, no offence is committed if the lawyer disclosing the information does so with the consent of the person to whom the information pertains or on the basis of written authorisation issued in response to his application by a superior authority or supervisory authority (Art. 321 para. 2 CC). The federal and cantonal provisions on the duty to testify and on the obligation to provide information to an authority are reserved (Art. 321 para. 3 CC). Because Switzerland unified its civil and criminal procedure laws with effect from 2011, the exact scope of the attorney-client privilege under the new rules is not yet entirely clear and it will be the task of the courts to determine precisely which information and documents are protected. The following analysis is based on the

35 Niggli and Wiprächtiger (2019), Article 321, para. 2; Erni (1997), para. 2 and 20; BGE 112 Ib 606; BGE 115 Ia 199; Wohlers and Lynn (2018), p. 12. 36 Fellmann and Zindel (2011), Article 13, para. 5; Wohlers and Lynn (2018), p. 13. 37 Fellmann and Zindel (2011), Article 13, para. 14. 38 Fellmann and Zindel (2011), Article 13, para. 18. 39 Fellmann and Zindel (2011), Article 13, para. 12. 40 Fellmann and Zindel (2011), Article 13, para. 12.

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doctrine and case law existing so far.41 Regarding the duty to disclose confidential information in criminal proceedings the attorney-client privilege previously did not protect the relationship between the lawyer and his client as such but could rather be described as a “cloak”42 over the lawyer: the procedural rules implementing the privilege only protected information and documents physically in the hands of the lawyer. The same information or documents located somewhere else, i.e. in the hands of the client or a third party, were not protected.43 Under the new procedural rules these information and documents are protected irrespective of their location, moving Swiss procedural law closer to the concept of the legal privilege of common law jurisdictions.44 Today, the scope of the attorney-client privilege in Switzerland is remarkably wide: any information perceived by the lawyer in connection with a mandate may require confidential treatment.45 Consequently, the communications between the lawyer and his client, meaning letters and e-mails, are protected as well as other records of the client or the lawyer, legal research in preparation of a trial, memoranda, strategy papers, drafts of contracts or settlements etc.46 The form in which the information is brought to the lawyer’s attention is of no relevance, meaning it is protected regardless of whether it has been obtained through oral, written or non-verbal communication. Also irrelevant is the source of the information; it could have been given to the lawyer by his client, he could have learned of it by a third party or by himself.47 The only caveat being that there needs to be a connection between the knowledge of the confidential information and the lawyer’s professional, meaning legal capacity.48 The information must have been brought to the lawyer’s attention in connection with an existing or prospective mandate, by virtue of his activity as an adviser to or representative of a client.49 The term “secret” in Art. 13 FAFML and in Art. 321 CC is interpreted in a very broad sense.50 For example, the mere fact that a mandate exists can be qualified as a

41

Burckhardt (2012), p. 282. Burckhardt (2012), p. 281. 43 Donatsch et al. (2014a), Article 264, para. 2. 44 Burckhardt (2012), p. 281; Nater and Rauber (2012), p. 16. 45 Burckhardt (2012), p. 282; Ruckstuhl et al. (2011), para. 469. 46 Botschaft zum Bundesgesetz über die Anpassung von verfahrensrechtlichen Bestimmungen zum anwaltlichen Berufsgeheimnis vom 26. Oktober 2011, BBl 8181 ff., 8184; Nater and Rauber (2012), p. 17; Wohlers and Lynn (2018), p. 15. 47 Burckhardt (2012), p. 283; Fellmann and Zindel (2011), Article 13, para. 100; Niggli and Wiprächtiger (2019), Article 321, para. 16; Wohlers and Lynn (2018), p. 15. 48 Niggli and Wiprächtiger (2019), Article 321, para. 16; Burckhardt (2012), p. 283; Wohlers and Lynn (2018), p. 15. 49 Burckhardt (2012), p. 283; Wohlers and Lynn (2018), p. 15. 50 Niggli and Wiprächtiger (2019), Article 321, para. 14; Fellmann and Zindel (2011), Article 13, para. 187. 42

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secret.51 Only confidential information perceived by the lawyer in his typical legal profession is protected.52 If the lawyer has learned about confidential information in connection with a private, political, social or another, not typically legal professional activity, it is not protected by the attorney-client privilege.53 According to the Federal Supreme Court, activities are not protected where the business rather than the legal element of a lawyer’s work is predominant. The court specified in a number of decisions which activities are to be considered as typical legal activities and which are not.54 There is no doubt that acting as a defence counsel is a typical legal activity. Therefore, any information perceived by the lawyer within his capacity as defence counsel is privileged.55

2.2

Duties and Role of Defence Counsel

In the past, the Federal Supreme Court repeatedly stated that the defence counsel is a servant of the law and an assistant to the administration of justice and as such limited in his professional activity.56 In a court ruling still seen as a landmark decision the Federal Supreme Court clarified that the defence counsel is a servant of the law and an assistant to the administration of justice insofar as it is his duty to give advice and support the client. Without the assistance of defence counsels it would often be impossible for citizens to exercise their legal rights and without their work the realisation of the legal system in general would be jeopardised.57 Therefore, defence counsels are not merely servants to judges or an organ of the state but instead part of the criminal justice system and advocates for the interests of their clients.58 Under the rule of the unified criminal procedure code introduced in 2011, the defence counsel is obligated, within the limits set out by statute and the rules of professional conduct, to act solely in the interests of the accused (Art. 128 CCP). The sole duty

51

Fellmann and Zindel (2011), Article 13, para. 107; Erni (1997), para. 12; Wohlers and Lynn (2018), p. 15; Wohlers and Lynn (2019), p. 109. 52 Fellmann and Zindel (2011), Article 13, para. 114; Burckhardt (2012), p. 283; Burckhardt and Ryser (2013), pp. 160 f. 53 Niggli and Wiprächtiger (2019), Article 321, para. 17; Wohlers and Lynn (2018), p. 16. 54 Niggli and Wiprächtiger (2019), Article 321, para. 17; Burckhardt (2012), p. 283; Fellmann and Zindel (2011), Article 13, para. 118; Wohlers and Lynn (2018), p. 16 with more details; BGE 115 Ia 197; BGE 112 Ib 606; BGE 114 III 107; BGE 135 III 597; BGE 132 II 103; BGE 124 III 363; BGE 120 Ib 112; BGE 117 Ia 341; BGE 115 Ia 197; BGE 114 III 105 and most recently BGer 1B_85/ 2016, 20 September 2016 ¼ Praxis 2017 Nr. 24 and BGer 1B_433/2017, 21 March 2018. 55 Wohlers and Lynn (2019), p. 109. 56 BGE 103 Ia 431; BGE 98 Ia 58; BGE 123 I 16; Verein Zürcherischer Rechtsanwälte (1988), p. 39; Naegeli (2010), p. 292; Omlin (2009), p. 74. 57 BGE 106 Ia 104. 58 BGE 106 Ia 105; Naegeli (2010), p. 292; Omlin (2009), p. 74; Niggli et al. (2014), Article 128, para. 1; Ruckstuhl et al. (2011), para. 322.

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and function of a defence counsel is to support his client and represent his interests.59 His function is to monitor the rule of law of the proceedings,60 ascertaining that the accused is only sentenced if the authorities are able to prove his guilt in a trial that was conducted according to the orderly code of procedure.61 The defence is the sole representation of interests aimed at the exoneration of the accused.62 The defence counsel has to act unilaterally, only in favour of and in the interests of the accused, in order to obtain the most beneficial sentence for his client.63 Therefore, the defence counsel has no duty to help the court in ascertaining the objective truth or to facilitate the proceedings.64 It is the duty of the authorities to prove if the accused is guilty. Because the accused does neither have a duty to cooperate nor to tell the truth65 it is out of the question for a defence counsel to side with the criminal justice authorities and contribute to the conviction of his own client.66 That being said, the defence counsel is not allowed to actively impede the ascertainment of truth, e.g. by destroying evidence or influencing witnesses. He is obligated to act within the restrictions laid down by law and the professional rules of conduct (Art. 128 CCP).67 Certain behaviours could qualify as threatening behaviour (Art. 180 CC), coercion (Art. 181 CC), offences against personal honour or defamation (Art. 173 ff. CC) or offences against administration of justice (Art. 303 ff. CC) and are punishable under criminal law.68 Even though the defence lawyer is not obligated to say everything he knows, the prevailing doctrine does not conclude that he may or should lie.69 The defence counsel is faced with a balancing act between being loyal to his client and safeguarding his best interests and not violating the imperative of not lying in court.70

2.2.1

Difference of Opinions Between Defence Counsel and Client

A lawyer has to exercise his profession conscientiously and with diligence (Art. 12 (a) FAFML) and is solely obligated to act in the interests of his client (Art.

59

Pieth (2016), p. 95; Ruckstuhl et al. (2011), para. 322; Schmid and Jositsch (2017), para. 755. Niggli et al. (2014), Article 128, para. 1; Ruckstuhl et al. (2011), para. 323. 61 Wohlers (2012), p. 57; Hohler (2009), p. 296. 62 BGE 138 IV 168. 63 Pieth (2016), p. 95; Niggli et al. (2014), Article 128, para. 1 and 5; BGE 138 IV 168; Ruckstuhl et al. (2011), para. 322. 64 Naegeli (2010), pp. 292 and 296; Ruckstuhl et al. (2011), para. 322; Schiller (2009), para. 1510; Wohlers (2012), p. 55. 65 Donatsch et al. (2014a), Article 128, para. 13 with more details; Schiller (2009), para. 1532. 66 Erni (1997), para. 38. 67 Niggli et al. (2014), Article 128, para. 5 ff. 68 Niggli et al. (2014), Article 128, para. 6; Wohlers (2012), p. 58. 69 Schiller (2009), para. 1532. 70 Naegeli (2010), p. 295. 60

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128 CCP). Since it is the lawyer’s duty to work towards exonerating his client he is not allowed to act in any way that could incriminate his client. The Federal Supreme Court clarified that a lawyer is not even allowed to convey to the court indirectly— either by his choice of words or behaviour—that he thinks his client is guilty. Even if the lawyer knows or assumes that his client is guilty, even though his client insists that he is innocent, the lawyer has to refrain from making any remarks in front of the authorities. The knowledge and the opinion of the defence counsel have in any case to recede in view of the defence mandate.71 According to the prevailing doctrine and the Federal Supreme Court the lawyer’s duty to safeguard the client’s interests is not without limits.72 While he is the advocate for those interests73 he should align his actions with the objective desired by his client only insofar as he deems this even possible and in accordance with his own legal opinion.74 A lawyer is neither the uncritical mouthpiece75 of his client nor should he simply act as a rubber stamp.76 He owes his client loyalty and support but not blind fealty.77 He should assist his client with objective judgment. This requires him to independently assess and determine which strategy to pursue and try to convince the client of his point of view or to prevent the client of choosing an inappropriate approach.78 The client’s best interest and therefore the defence counsel’s duty is—according to the Federal Supreme Court—to obtain an acquittal or at least the most beneficial sentence for his client.79 Recently, this approach has been criticised for being paternalistic. By deciding that the “best interest” for a client is always to strive for an acquittal or the most beneficial judgment without listening to what the client really wishes on a case-bycase basis, defence counsels are patronizing their clients.80 Instead, lawyers and clients should work together as partners.81 In order to assess what the actual interests of the client are, the defence counsel and his client should be in constant dialogue and decide cooperatively on the strategy and the steps to be taken.82 If the lawyer cannot persuade his client of the strategy he thinks is best, he has to decide whether he can act as his client wishes or he should resign. If the defence counsel is an

71

BGE 138 IV 168; Donatsch et al. (2014a), Article 128, para. 15; Lieber (2013), p. 52. Schmid and Jositsch (2017), para. 763. 73 BGE 106 Ia 105. 74 Fellmann and Zindel (2011), Article 12, para. 31; Pieth (2016), p. 95. 75 BGE 105 Ia 304 ¼ Praxis 1980 Nr. 85, 231; BGE 116 Ia 105; Pieth (2016), p. 95. 76 BGer 2A.600/2003, 11 August 2004, cons. 3.2.3. 77 Fellmann and Zindel (2011), Article 12, para. 31; BGE 105 Ia 304 ¼ Praxis 1980 Nr. 85, 232. 78 BGE 130 II 95. 79 Niggli et al. (2014), Article 128, para. 1 and 5; BGE 138 IV 168; BGE 138 IV 168; BGE 106 Ia 105. 80 Wohlers (2012), pp. 68 and 70. 81 Wohlers (2012), p. 70; see also Ruckstuhl et al. (2011), para. 330 according to whom the defence counsel is not obligated to act against the will of his client. 82 Wohlers (2012), p. 70. 72

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appointed duty defence lawyer however, he cannot simply resign from the mandate because he has been formally instated as such. The duty defence lawyer is in an uncomfortable position. He has to act in a manner that does not breach his duty of loyalty towards his client.83

2.2.2

Perjurious Testimony of Client or Witnesses for the Defence

There are no rules in place that state how a defence counsel should react if the defendant proposes to give admittedly perjurious testimony. As mentioned above, the accused does not have a duty to tell the truth84 and his defence counsel is obligated to inform him about his rights. However, despite the lawyer’s obligation to serve the interests of his client the lawyer is neither allowed to consciously claim untrue facts nor to urge his client to lie in court.85 If his client proposes to lie in court, the defence counsel cannot encourage him to lie or even help him with acts of collusion.86 The defence counsel should suggest to his client to make use of his right to refuse to testify.87 If the client decides to give false testimony, there is no obligation for the defence counsel to reveal that the client is lying. The defence counsel has to refrain from asking his clients questions if he knows that the client will answer with a lie. On the other hand, the defence counsel is allowed to ask questions that might lead to a lie. The same holds true for cases in which the defence counsel calls witnesses for the defence or asks them questions as well as for cases in which he submits written documents or other evidence that may be forgeries: The defence counsel is allowed to call and question witnesses for the defence that may lie and he is allowed to submit evidence which may be forged. The defence counsel exceeds the permitted limits when he knows for certain that the witness will lie or the evidence is forged.88

83 If a duty defence lawyer’s request to be dismissed is not granted, he has to refrain from taking legal actions he deems reasonable, but which are not in line with his client’s interests, see Wohlers (2012), pp. 73 f. 84 Donatsch et al. (2014a), Article 128, para. 13 with more details; Schiller (2009), para. 1532. 85 Donatsch et al. (2014a), Article 128, para. 14; Verein Zürcherischer Rechtsanwälte (1988), pp. 59 f. 86 Donatsch et al. (2014a), Article 128, para. 14. 87 Donatsch et al. (2014a), Article 128, para. 14. 88 For more information regarding the criminal liability of a defence counsel for assisting offenders see Trechsel and Pieth (2018), Article 305, para. 10 as well as Niggli and Wiprächtiger (2019), Article 305, para. 9.

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Incriminating or Relevant Evidence, Confessions and Secret Messages

If the defendant turns the murder weapon or other relevant evidence over to the defence counsel, there are no rules in place guiding the defence counsel on how to react. In his own interest the defence counsel should not accept items or documents used to commit a crime or stemming from a crime, so-called genuine evidence. Furthermore, he should not advise the client on what to do with the genuine evidence at all, e.g. tell him how he could best destroy it. An advice like this would be punishable under Art. 305 CC for assisting an offender.89 If the evidence consists of, for example, accounting records, it could be favourable if the defence counsel makes copies of the records on the spot and hands the original records back to the client since their strategy later on might be to hand over the documents to the public prosecutor’s office.90 It should be noted that genuine evidence is not protected by the attorney-client privilege, meaning that if the authorities conduct a search at the law firm the lawyer cannot refuse to surrender the genuine evidence, e.g. the murder weapon.91 Since searches of lawyers’ offices are possible (see Sect. 4.2 below) but pose a risk to confidential information of other clients subject to the attorney-client privilege, it would be advisable for a defence counsel to avoid the risk of this compulsory measure by not accepting any evidence. As mentioned above, the defence counsel is not allowed to incriminate his client but there is no rule on how the defence counsel should react if the defendant tells him where the victim’s body is buried. Even if he knows that his client is guilty because the client told him so, he has to refrain from making any remarks in front of the authorities in order to achieve the most beneficial judgement for his client,92 while acting within the limits set out by statute and the rules of professional conduct. The duties of the defence counsel concerning secret written messages of the arrestee addressed to third parties is a matter of some debate. According to the Federal Supreme Court defence counsels are not allowed to accept such secret written messages and they are not protected by the attorney-client privilege.93 Some authors argue that it is not the acceptance that should be unlawful only the forwarding of such messages because there is no reason why a secret written message handed over to the defence counsel should be treated differently than the verbal request of the arrestee for his defence counsel to deliver a message to someone.94

89

Wohlers and Lynn (2019), p. 122. Wohlers and Lynn (2019), pp. 122 ff. 91 Erni (1997), para. 57; Fellmann and Zindel (2011), Article 13, para. 186; Schiller (2009), para. 705 ff.; Wohlers and Lynn (2019), p. 120. 92 BGE 138 IV 168; Donatsch et al. (2014a), Article 128, para. 15; Lieber (2013), p. 52. 93 BGE 102 IV 215. 94 Erni (1997), para. 16 and 58; Mabillard (2005), p. 215. 90

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307

Special Rules Regarding the Right to Refuse to Testify

According to Art. 171 para. 1 CCP certain people, such as lawyers and defence counsels, have the right to refuse to testify as a witness about secrets with which they have been entrusted in their professional capacity or which they have become aware of in the course of their work.95 The right to refuse to testify is the procedural implementation of the attorney-client privilege safeguarded by Art. 321 CC. A lawyer is allowed to reveal confidential information, if either his client or the Cantonal Supervisory Authority for Lawyers release him from his professional secrecy. While the other professions possessing the right to refuse to testify are compelled to testify if certain requirements are met (Art. 171 para. 2 CCP), turning their right not to testify into a duty, the legislator granted defence counsels complete protection: Lawyers do not have to reveal confidential information, even if they have been released from their professional secrecy (Art. 171 para. 4 CCP in conjunction with Art. 13 para. 1 FAFML).96 There are no exceptions where the duty of confidentiality does not apply and the lawyer would be obligated to report a crime committed or in order to prevent its commission. There are no special rules in case of corporate criminal liability either. It needs to be noted that corporate in-house lawyers are not admitted to appear in court as defence counsels for their corporation. Only lawyers fulfilling the requirements and subject to the FAFML are allowed to defend the accused in court (Art. 127 para. 5 CCP). In order for a lawyer to be admitted to represent clients in court he must have passed the bar exam and be registered in a Cantonal Register for Lawyers in Switzerland. One of the requirements to be registered is that the lawyer must be capable of practising law independently. He may be employed only by persons who themselves are registered in a Cantonal Register for Lawyers (Art. 8 para. 1 (c) FAFML). Corporate in-house lawyers are employees of the corporation and therefore lack the necessary independence.

2.4

Defence Counsel as a Suspect

If the lawyer is or becomes a subject of the criminal investigation in the role of an accused person, he cannot rely on his right to refuse to testify or to hand over items and assets (Art. 264 para. 1(c) CCP). The accused lawyer can only refuse to hand

95

Schmid and Jositsch (2017), para. 893 f. Donatsch et al. (2014a), Article 171, para. 52; Niggli et al. (2014), Article 171, para. 15; BGE 136 III 301 ff.; Pieth (2016), pp. 205 f.; Ruckstuhl et al. (2011), para. 471; Schmid and Jositsch (2017), para. 894; Wohlers and Lynn (2019), p. 117. 96

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over items, if he is a witness, not if he is accused himself.97 No one is allowed to claim privilege based on professional secrecy for his own transgressions.98 It has to be noted however, that a lawyer who is a suspect has the right to refuse to testify based on the principle nemo tenetur se ipsum accusare, guaranteed in Art. 113 para. 1 CCP.

2.5

Breach of Attorney-Client Privilege

If a lawyer violates the attorney-client privilege he can be held liable under criminal, disciplinary and civil law. If he violates Art. 321 CC, he is liable on complaint to a custodial sentence not exceeding 3 years or to a monetary penalty (Art. 321 (1) CC). While Art. 321 CC requires direct intent or conditional intent, disciplinary sanctions can be imposed for negligence and do not even require a criminal complaint of the client.99 The disciplinary proceedings take place in front of the different Cantonal Supervisory Authority for Lawyers and are independent from criminal proceedings.100 In case of a violation of Art. 13 FAFML the supervisory authority can impose the following disciplinary measures (Art. 17 FAFML): warning, reprimand, fine of no more than CHF 20,000, temporary interdiction to practice as a lawyer for a maximum of 2 years or permanent interdiction to practice. It is furthermore possible to impose a fine in addition to an interdiction to practice or to provisionally rescind the authorisation to practice. Each of the 26 cantons in Switzerland has its own law that specifies the obligations laid down by the FAFML and the organisation of the supervisory authorities. In addition, the bar associations in each canton can impose disciplinary measures as well. The Bar Association of the Canton of Zurich, for example, has a special professional tribunal that sanctions violations of the professional rules of conduct as well. The disciplinary measures available to the professional tribunal for the violation of the attorney-client privilege are a warning, reprimand or a fine. Under civil law, the violation of the attorney-client privilege can lead to claims for damages and amends.101 There are no rules that any statements or materials produced in proceedings against the lawyer are excluded as evidence against his client.

97

BGE 130 II 193, 196; BGE 126 II 495, 502; BGE 138 IV 227; Donatsch et al. (2014a), Article 171, para. 6; Niggli and Wiprächtiger (2019), Article 321, para. 25; Burckhardt and Ryser (2013), p. 162; Wohlers and Lynn (2019), p. 118. 98 BGE 102 IV 214; Wohlers and Lynn (2019), p. 118. 99 Fellmann and Zindel (2011), Article 13, para. 195. 100 Fellmann and Zindel (2011), Article 13, para. 196. 101 For example Art. 398 para. 2 in conjunction with Art. 97, Art. 41 in conjunction with Art. 28 or Art. 49 in conjunction with Art. 28 of the Federal Act on the Amendment of the Swiss Civil Code; Fellmann and Zindel (2011), Article 13, para. 193.

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3 The Pretrial Right to Counsel During the Preliminary Investigation 3.1

Conditions for Defence Counsel and Lawyer of the First Hour Meeting with Incarcerated Clients

In a state under the rule of law, the right of the accused to communicate freely with his defence counsel is a fundamental prerequisite for the effectiveness of the defence102 and therefore for a fair trial.103 The accused has to be able to contact his defence counsel anytime he deems so necessary. Likewise, the defence counsel has to have access to his client at all times.104 The oral or written communication has to be free from supervision or inspection regarding its content. Conversations, correspondence or phone calls cannot be monitored (Art. 235 para. 4 CCP).105 However, the defence counsel and his client cannot choose freely in which form they wish to communicate. For example, telephone calls can be denied if necessary to guarantee the purpose of the detention and the safety of the remand prison.106 In practice, this means that the defence counsel has to choose between going to visit his client in prison—forcing him to take into consideration, if the client is incarcerated in a prison nearby or further away from the defence counsel—or writing a letter, leaving him to spend a lot of time and resources for what could have been resolved by a quick telephone call. Furthermore, if the defence counsel wants to visit his client in prison, he has to do so during visiting hours of the prison and some prisons in rural areas require the scheduling of the meeting beforehand.107 If there is justified suspicion that the right of the accused to communicate freely is being abused, meaning that there is reasonable suspicion of malpractice, the director of the proceedings may, with the approval of the compulsory measures court, restrict free communication for a limited period of time. He has to inform the arrestee and the defence counsel of the restrictions in advance (Art. 235 para. 4 CCP). There is justified suspicion of malpractice, if there is concrete evidence that the right is being abused, e.g. secret written messages have been found or a cell phone that can be traced back to the defence counsel.108 According to Art. 159 para. 2 CCP a person who has been arrested has the right to communicate freely with his defence counsel. The right guarantees that all oral or 102

Ruckstuhl et al. (2011), para. 326. BGE 121 I 167; Donatsch et al. (2014a), Article 235, para. 11. 104 Niggli et al. (2014), Article 235, para. 53. 105 Niggli et al. (2014), Article 235, para. 54; Donatsch et al. (2014a), Article 235, para. 12; Niggli et al. (2014), Article 223, para. 3; Pieth (2016), pp. 98 f.; Ruckstuhl et al. (2011), para. 327 and 362; Wohlers and Lynn (2019), pp. 112 and 115. 106 Donatsch et al. (2014a), Article 235, para. 12. 107 Wohlers and Lynn (2019), pp. 112 f. 108 Niggli et al. (2014), Article 235, para. 57; Donatsch et al. (2014a), Article 235, para. 14; Ruckstuhl et al. (2011), para. 327 fn. 209 and para. 364. 103

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written communication between the defence counsel and his client are free of any kind of supervision109 and it exists even before the arrestee is interrogated by the police or the public prosecutor. Because the first interrogation will normally happen within a few hours after the arrest the main problem for the defence counsel normally is not to be denied access to his client but to get to his client in time to be able to give him advice prior to the interrogation. An external inspection of the defence counsel and the containers he carries with him before the meeting is allowed; the inspection has to be performed so that the authorities cannot take note of the content of the documents.110 The defence counsel and client have to be provided with a room that cannot be monitored acoustically.111 Depending on the room available for the meeting, the set-up varies. If there were any video cameras or tape-recorders installed in those rooms, they would have to be switched off for the attorney-client privilege to be respected. Where these meetings take place depends on the design of the police station or public prosecutor’s office building. In the canton of Zurich for example, the defence counsel and his client meet, if the accused is being held at a police station, either in a so-called distance cell, which usually holds a table and some chairs, or in an interrogation room, in some cases even in the office of one of the police officers. In the public prosecutor’s offices, they can meet in a small interrogation room. There are no time limits for these meetings stated in the law. The legislative materials state that the defence counsel has to be able to meet briefly with his client.112 In practice, the time allowed for the defence counsel and his client to meet depends on the practice of the canton113 and on the person conducting the interrogation.114 For example, in the canton of Zurich some police officers or public prosecutors allow the defence counsel as much time as the defence counsel deems necessary, while others try to put a lot of pressure on defence counsels by becoming pushy even before the meeting takes place and starting to interrupt the meetings after as much as 10–20 min. There have been accounts that the authorities are less likely to put pressure on experienced and confident lawyers. Much depends on the ability of a defence counsel to assert himself and insist on needing more time. In most cases however, the meetings will be quite brief anyway because the defence counsel is not yet allowed insight into the files at this stage of the proceedings.115 Thus, the only topic to discuss is usually whether the client should answer questions or not.

109

Donatsch et al. (2014a), Article 159, para. 17; Schlegel and Wohlers (2012), p. 313; Wohlers and Lynn (2019), p. 115. 110 Pieth (2016), p. 99; Wohlers and Lynn (2019), pp. 113 f. 111 Ruckstuhl et al. (2011), para. 363; Schlegel and Wohlers (2012), p. 313. 112 Botschaft zur Vereinheitlichung des Strafprozessrechts vom 21. Dezember 2005, BBl 1085 ff., 1195; Niggli et al. (2014), Article 159, para. 24. 113 Schlegel and Wohlers (2012), p. 313; Wohlers and Lynn (2019), p. 115. 114 Wohlers and Lynn (2019), p. 115. 115 Niggli et al. (2014), Article 159, para. 24.

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311

Participation Rights of Defence Counsel

Since the preliminary proceedings are comprised of the enquiries made by the police and the investigation by the public prosecutor (Art. 299 CCP), the participation rights of the defence counsel differ depending on the stage of the investigation in the preliminary proceedings. If evidence is taken by the police during the preliminary enquiries by the police, neither the accused nor the defence counsel have participation rights.116 However, there are some exceptions. First, the defence counsel has a right to be present during the interrogation of his client by the police (Art. 159 para. 1 CCP, see Sect. 1.1 above). Second, if the police interrogate someone in the role of “person providing information” according to Art. 178 ff. CCP and their statements shall be used against the accused afterwards, the right to confrontation guaranteed in Art. 6 para. 3 (d) ECHR has to be respected by letting the accused and/or his defence counsel participate at said interrogation. It is also sufficient if the right to confrontation can be exercised at a later time.117 If evidence is taken during the investigation by the public prosecutor himself or by the police on request of the public prosecutor’s office, the accused has the right to be present (Art. 147 para. 1 CCP).118 In his position as legal adviser, the defence counsel has the right to be with his client and therefore be present as well. The same rule applies when someone else is interrogated in the role of “person providing information” or as a witness.119 The right of the accused to be present can be limited if there is justified suspicion that he is abusing his right (Art. 108 CCP).120 If there are grounds to assume that a co-suspect, a person providing information or a witness could be exposed to a serious danger to life and limb or any other serious prejudice, the public prosecutor shall take the appropriate protective measures according to Art. 149 ff. CCP, which can consist of conducting interrogations while excluding parties (Art. 149 para. 2(b) CCP). The exclusion of the defence is only allowed if the grounds for exclusion exist in the person of the defence counsel, i.e. that the presence of the defence counsel itself poses a danger.121 It is a matter of debate if and how the right to confrontation can be guaranteed if the accused and the defence counsel are excluded from the interrogation.122 At the interrogation of his client by the police during the preliminary enquiries the defence counsel has the right to ask his client questions (Art. 159 para. 1 CCP). The right to ask questions exists also regarding interrogations conducted by the public 116

Niggli et al. (2014), Article 147, para. 7a; Donatsch et al. (2014a), Article 147, para. 2. Donatsch et al. (2014a), Article 147, para. 13. 118 Donatsch et al. (2014a), Article 147, para. 2. 119 Donatsch et al. (2014a), Article 147, para. 4; Niggli et al. (2014), Article 147, para. 7. 120 Niggli et al. (2014), Article 147, para. 14; Donatsch et al. (2014a), Article 147, para. 3a f. 121 Niggli et al. (2014), Article 149, para. 22; Donatsch et al. (2014a), Article 147, para. 4; Godenzi (2011), pp. 350 f. 122 Donatsch et al. (2014a), Article 147, para. 4; Godenzi (2011), pp. 350 f. 117

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prosecutor.123 It is for the police officer conducting the interrogation to decide when the defence counsel can ask his questions.124 He decides whether to allow the defence counsel to pose questions in between or only after he has finished. He can even decide if the questions can be asked directly or have to be asked through him.125 Usually, the defence counsel asks his questions after the police officer has finished (so-called supplementary questions).126 The questions of the defence counsel are limited to the subject of the interrogation as set out by the police.127 The police officer or public prosecutor in charge of the interrogation decides if a question is permitted or not because it may be improper or does not pertain to the subject of the proceedings.128 While the police officer or public prosecutor asks his questions the defence counsel can only intervene if the questions asked by the police are unlawful—for example deceptive or leading questions—or if there are any doubts with regards to the ability of the accused to be interrogated.129 Furthermore, the defence counsel can advise the client not to answer a question or even to stop answering questions at all. Given the importance the hearing of evidence in the pretrial investigation phase has for the direction the proceedings take, it is hardly surprising that the freedom given to the person conducting the interrogation often leads to uncertainty and discontent of the accused and his defence counsel. Some public prosecutors, for example, only allow questions that have not been asked before and are strictly limited to the subject determined by them. If the defence counsel follows another agenda and/or an interrogation technique like the funnel approach,130 the public prosecutor is likely to prohibit the defence counsel to do so, objecting that the question has already been asked before or there is—from the point of view of the public prosecutor—no connection between the question asked and the aim of the interrogation. Because of these restrictions and because of the fact that it is sometimes strategically dangerous to ask the client questions when the answers may be unpredictable,131 most defence counsels rarely ask supplementary questions at all. Whether the interrogation can or has to be interrupted at the request of the defence counsel in order to discuss something with his client depends on the public prosecutor or police officer conducting the interrogation and the assertiveness of the defence counsel. Some public prosecutors allow for or sometimes even suggest a

123

Botschaft zur Vereinheitlichung des Strafprozessrechts vom 21. Dezember 2005, BBl 1085 ff., 1187; Niggli et al. (2014), Article 147, para. 8; Donatsch et al. (2014a), Article 147, para. 5. 124 BGE 139 IV 34; Donatsch et al. (2014a), Article 147, para. 6; Niggli et al. (2014), Article 147, para. 8. 125 Niggli et al. (2014), Article 147, para. 8; Wohlers (2013), p. 165. 126 Niggli et al. (2014), Article 159, para. 40. 127 Schlegel and Wohlers (2012), p. 314. 128 Niggli et al. (2014), Article 147, para. 8; Donatsch et al. (2014a), Article 147, para. 6. 129 Niggli et al. (2014), Article 159, para. 38; Schlegel and Wohlers (2012), p. 314. 130 For more information on this interrogation technique see: Ill (2015), pp. 142 ff. 131 Ruckstuhl et al. (2011), para. 379; see also Pieth (2016), p. 98.

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short interruption themselves while others do not permit interruptions at all, prompting defence counsels to advise their client to make use of their right to refuse to testify in order to force an interruption of the interrogation. Whether the defence counsel should use this option depends on the manner in which the interrogation is being conducted. The seating order is of practical importance as well: it is difficult for a defence counsel to advise his client on procedural rights if he is not seated next to his client but instead behind him. A lot depends on how reasonable and fair the person conducting the interrogation and the defence counsel interact with each other and how prepared for confrontation the respective defence counsel is.132 If an interruption is permitted, either the authorities leave the room or they allow the defence counsel and his client to use a separate room. The conversation between the defence counsel and his client during an interruption has to be protected against disclosure to third parties the same way meetings before an interrogation are.

4 State Intrusion into the Confidentiality of Attorney-Client Communications 4.1

Right to Refuse to Testify

Lawyers and defence counsels133 may refuse to testify in relation to confidential matters that have been confided to them or come to their knowledge in the course of their professional work (Art. 171 para. 1 CCP). Not only is the lawyer or defence counsel entitled to refuse the disclosure of information, he is even liable to prosecution according to Art. 321 CC if he does so. Anything else only applies when the client or the Cantonal Supervisory Authority for Lawyers has released the lawyer or defence counsel from his professional secrecy (Art. 171 para. 2 CCP). According to Art. 171 para. 4 CCP in conjunction with Art. 13 FAFML the lawyer is however, different to other carriers of professional secrecy, also in the case of a release from the professional secrecy only entitled but not obligated to disclose information subject to the professional secrecy.134 This is relevant for the defence counsel in proceedings relating to contraventions if the defence counsel is not at the same time authorized to represent parties before the judicial authorities in accordance with the FAFML. This type of defence counsel has to testify if he has been released from his professional secrecy by his client, unless the defence counsel can demonstrate that

132

Wohlers (2013), p. 165. The CCP grants the cantons the discretion to allow other people than lawyers who are authorized to represent parties before the judicial authorities in accordance with the FAFML to act as defence counsel in proceedings relating to contraventions. This is why the articles pertaining to the professional secrecy refer to lawyers as well as defence counsels. 134 Donatsch et al. (2014a), Article 171, para. 52; Niggli et al. (2014), Article 171, para. 15; Wohlers and Lynn (2019), p. 117. 133

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the interest in secrecy outweighs the interest in ascertaining the truth (see Art. 171 para. 3 CCP). A lawyer acting as a defence counsel can thus only be interrogated on the circumstances relevant to the case of his client if he has been released from his professional secrecy and he is at the same time also willing to talk. If there is no release from secrecy, the application of any compulsory measures against the lawyer is not possible due to the fact that he is not allowed to testify and any possible testimonies would be inadmissible as evidence.135 Due to the fact that the lawyer rightfully refuses testimony even though he has been released from his secrecy, the compulsory consequences provided for in Art. 176 CCP cannot be ordered against him. However, the situation is different for a defence counsel who is not a lawyer.136 A monetary fine and possibly also an administrative penalty can be imposed on him.

4.2

Searches of Lawyer’s Offices

The search of a lawyer’s office may be carried out by the police upon written request of the public prosecutor or without such a request in case of an imminent danger (see Art. 241 CCP). The search may take place when there is reasonable suspicion that wanted persons are present at the lawyer’s office (Art. 244 para. 2(a) CCP), if any criminal offence is committed at the lawyer’s office (Art. 244 para. 2(c) CCP) or if there are any items to be confiscated in the lawyer’s office (Art. 244 para. 2 (b) CCP). While it is sufficient that there is suspicion that items to be confiscated are kept on the premises, the range of application of the aforementioned variant is limited by the fact that practically all the existing documents within the frame of a mandate of defence are subject to a prohibition to seize. Not to be seized are:137 notes handed over by the client to the defence counsel, notes the defence counsel himself has written, research documents of the defence counsel, correspondence between the defence counsel and the client. On the other hand, evidence of criminal offence can be seized as well as items that are subject to forfeiture.138 The situation is delicate if the client has handed over documents and other records to the defence counsel which have not been created with regard to the mandate and which may be taken into consideration as evidence. A confiscation may be possible if the records are original documents available at the defence counsel’s office. The attorney-client privilege cannot and must not serve the purpose to deprive the authorities of original

135

Niggli et al. (2014), Article 171, para. 13 regarding the exception for cases in which the release is granted later on. 136 Additionally see fn. 1 above. 137 Niggli et al. (2014), Article 264, para. 29 f.; Donatsch et al. (2014a), Article 264, para. 4 and 8; Schmid and Jositsch (2017), para. 1120, 1122 and 1124a. 138 Donatsch et al. (2014a), Article 264, para. 8; Pieth (2016), p. 158; Schmid and Jositsch (2017), para. 1123; Heimgartner (2011), p. 240.

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evidence.139 It is questionable how to treat cases in which the defence counsel has copied the documents for himself and returned the originals to the client. If the legal authorities can get a hold of the originals, it must be deemed not permissible to seize the copies available at the defence counsel’s office. However, it is a different matter if the originals cannot be retrieved any more. In this case, the copy takes the place of the untraceable original and can thus be seized. The search of a lawyer’s office is allowed consequently if there is reasonable suspicion that there is original evidence in the office or copies of otherwise non-retrievable original evidence. Reasonable suspicion has a low standard of proof.140 It must, however, not be based on mere assumptions, but presumes concrete evidence.141 However, regarding the search of a lawyer’s office the standard of proof for reasonable suspicion has to be quite high due to the fact that the search of a lawyer’s office constitutes a serious intrusion into the economic activity of the relevant lawyer and possible colleagues in the lawyer’s office as well as other clients are affected. Finally, it needs to be noted that the principle of proportionality applies for the search like it does for all other compulsory measures (Art. 197 para. 1(c) and (d) as well as para. 2 CCP).142 Because the search of a lawyer’s office bears grave consequences for the lawyer concerned, his colleagues, and other clients of the lawyer’s office concerned, the search must not be ordered if the purpose pursued and/or the subject of the accusation in connection with the search are disproportionate to the imminent disadvantages. This would for example be the case if it were to find evidence of inferior importance and/or the search took place within the frame of a criminal investigation that involves minor offences. When carrying out the search it must be guaranteed that the protected interests of the colleagues and of the other clients at the lawyer’s office are safeguarded in as much as possible.143 The search cannot be used as a pretext to extensively scan the lawyer’s office. Instead, the search is to be limited on finding the evidence accessible to confiscation for whose availability at the lawyer’s office there is concrete evidence. For example: if the weapon used for a crime is supposed to be at the lawyer’s office, only this item can be searched for. Files may be searched in view of the fact that the weapon used for a crime is hidden therein, but it is not allowed to take note of the content of the documents. The same holds true e.g. if a lawyer’s office is searched because there is concrete suspicion that the accused is present there. In this case as well only the accused is to be searched for.

139

Niggli et al. (2014), Article 264, para. 27; Donatsch et al. (2014a), Article 264, para. 8; Wohlers and Lynn (2019), p. 120. 140 Donatsch et al. (2014a), Article 244, para. 8; Niggli et al. (2014), Article 244, para. 23. 141 Dissenting Niggli et al. (2014), Article 244, para. 24. 142 Donatsch et al. (2014a), Article 244, para. 12; Niggli et al. (2014), Article 244, para. 23. 143 Wohlers and Lynn (2019), p. 132.

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The search is to be conducted in the presence of the owner of the premises to be searched (Art. 245 para. 2 sentence 1 CCP). If there are several owners, all the owners are obligated and entitled to be present.144 The owner of the premises may also call a legal counsel; this also holds true for the accused if his premises are searched.145 If an owner is not present but can easily be reached and turn up within short, the search has to wait until he appears.146 If the owner cannot be present, “another suitable person is to be called” in his place (Art. 245 para. 2 sentence 2 CCP), meaning a person not involved in the proceedings whereby it can be both a private person e.g. the landlord, but also employees of the local authorities e.g. the secretary of the local council.147 In light of the significant risk a search of a lawyer’s office poses to the secrets of other clients not involved in the proceedings it has been proposed that a neutral observer, e.g. a board member of the bar association or a member of the Cantonal Supervisory Authority for Lawyers should be present at all searches of lawyer’s offices.148 The search is to be recorded in writing as an action of the proceedings (Art. 76 para. 1 CCP). The minutes should document the course, the scope and the result of the search. The requirements regarding the content of the minutes are stated in Art. 77 CCP. The owner present at the search may object both the search and confiscation of records on the grounds that there is a right to refuse to testify. The records must then be sealed and may neither be inspected nor used by the criminal justice authorities (Art. 248 para. 1 CCP). The public prosecutor’s office is to submit a request to remove the seal to the court responsible for compulsory measures within 20 days which has to decide within 1 month whether the records are to be unsealed or not (Art. 248 para. 3 CCP). If the court responsible for the compulsory measures decides against the unsealing or if the public prosecutor’s office does not submit a request for the removal of the seal, the records shall be returned to the owner. If the court responsible for the compulsory measures agrees to the removal of the seal, the records are handed over to the relevant public prosecutor’s office.

144

Donatsch et al. (2014a), Article 245, para. 4. Donatsch et al. (2014a), Article 245, para. 6. 146 Donatsch et al. (2014a), Article 245, para. 4. 147 Donatsch et al. (2014a), Article 245, para. 5. 148 Erni (1997), para. 53. 145

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Interception of Confidential Communication Between Lawyer and Client

The visual or acoustic surveillance of a lawyer’s office with technical surveillance devices is not allowed (Art. 281 para. 3(b) CCP).149 An exception is only possible in cases where the lawyer or defence counsel himself is urgently suspected of having taken part in the action due to which the surveillance takes place (Art. 281 para. 4 in conjunction with Art. 271 para. 2 CCP). Also, the surveillance of a lawyer or defence counsel’s mail as well as telecommunication (telephone, e-mail etc.) is only allowed if the lawyer or defence counsel himself is urgently suspected of having committed a criminal offence.150 The surveillance is, however, only allowed regarding the offence that caused suspicion against the lawyer or defence counsel. Information referring to offences for which there is no suspicion that the lawyer or defence counsel is involved, cannot come to the knowledge of the criminal justice authority (Art. 271 para. 1 CCP). If during the surveillance of other persons conversations between a lawyer or defence counsel and his client are recorded, this information must be removed from the case files and destroyed immediately; it may not be used (Art. 271 para. 3 CCP). In order to assure that the visual and/or acoustic surveillance of the lawyer’s office and/or the telecommunication of the lawyer or defence counsel limits itself to the findings referring to the action due to which the surveillance may take place exceptionally, it is to be ensured that information referring to cases where there is no urgent suspicion that the lawyer or defence counsel is involved in, is not brought to the attention of the criminal justice authorities. According to Art. 271 para. 1 CCP the findings are to be checked within the frame of the surveillance under the guidance of a court on whether they may not be brought to the attention of the public prosecutor’s office and police due to an existing professional secrecy.151 If during the triage it is ascertained that the surveillance refers to communication which is subject to professional secrecy and which due to a lack of a suspicion of involvement of the lawyer or defence counsel was not allowed, this information is not to be passed on to the authorities involved in the investigation but the recordings of the telecommunication are to be deleted and possible physical records are to be destroyed.152 Letters are to be forwarded to the addressee.

149

Schmid and Jositsch (2017), para. 1169. Pieth (2016), p. 164; Ruckstuhl et al. (2011), para. 367; Schmid and Jositsch (2017), para. 1146. 151 Schmid and Jositsch (2017), para. 1146. 152 Donatsch et al. (2014a), Article 271, para. 15 ff. noting that by doing so, exonerating information could be destroyed as well. 150

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5 Exclusionary Rules and Nullities 5.1

Exclusion of Evidence Unlawfully Seized During Search of Lawyers’ Offices

Written messages from the accused to his defence counsel or from the defence counsel to the accused may not be seized by the criminal justice authorities (Art. 264 para. 1(a) CCP). The same holds true for records that the accused has prepared with regard to the defence strategy in order to give them to his defence counsel (Art. 264 para. 1(b) CCP).153 Records that the defence counsel has prepared for himself may not be seized.154 Should the criminal justice authorities still seize such documents, the person concerned may ask for the sealing of said documents (Art. 264 para. 3 CCP). The documents may neither be seen nor used by the criminal justice authorities (Art. 248 para. 1 CCP). The public prosecutor’s office has to submit a request for unsealing to the compulsory measures court within 20 days or otherwise return the sealed items to the legitimate person (Art. 248 para. 2 CCP). If the public prosecutor’s office has submitted a request for unsealing, the compulsory measures court decides within 1 month whether the documents may be used in the proceedings (Art. 248 para. 3 CCP). If the compulsory measures court permits the unsealing, the question arises whether the documents are admissible. The CCP regulates admissibility of evidence in Art. 141 CCP. The legal qualification of the procedural rule that has been violated is thus decisive: If a mere administrative regulation is concerned, its violation does not have the inadmissibility as its consequence (Art. 141 para. 3 CCP). If regulations on admissibility are concerned, it is as follows: If the violated regulation of the CCP explicitly declares evidence as inadmissible, the obtained evidence cannot be used under any circumstances (so-called absolute regulation on admissibility, Art. 141 para. 1 CCP). It is debatable whether Art. 141 para. 1 CCP is applicable if the regulation does not explicitly state the inadmissibility.155 This question is of practical importance because, in principle, evidence obtained in violation of a regulation on admissibility is inadmissible, unless it is essential that it be admitted in order to secure a conviction for a serious criminal offence (so-called simple regulation on admissibility, Art. 141 para. 2 CCP), whereas it is debatable what is meant by “serious criminal offence”.156 Regulations on admissibility are, among other, articles that safeguard the procedural position of the accused as a subject in the proceedings.157 Because the defence 153

Donatsch et al. (2014a), Article 264, para. 4. BGE 107 Ia 45; BGE 117 Ia 341; Riklin (2014), Article 264, para. 3; Burckhardt and Ryser (2013), p. 161. 155 Donatsch et al. (2014a), Article 141, para. 19. 156 Donatsch et al. (2014a), Article 141, para. 21a. 157 BGE 131 I 275 ff.; BGE 139 IV 134; Niggli et al. (2014), Article 141, para. 67; Riklin (2014), Article 141, para. 6; Donatsch et al. (2014a), Article 141, para. 24. 154

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should safeguard the procedural position of the accused as a subject, the articles that protect the freedom of communication of the accused with his defence counsel are regulations on admissibility.158 Because the law does not explicitly order the inadmissibility of information that has been obtained in disregard of the right to counsel, Art. 141 para. 2 CCP is applicable. However, it needs to be noted that Art. 158 para. 2 CCP orders absolute inadmissibility for evidence obtained after the accused has not been informed about his right to counsel. The doctrine assumes that the evidence obtained in disregard of the right to counsel is consequently absolutely inadmissible as well.159 Complementary to this point of view, the failure to ensure the right to effective defence leads to inadmissibility of evidence also according to the case law of the ECtHR.160 The courts have not had to address this question so far so that it is not clear at the moment whether in practice para. 1 or para. 2 of Art. 141 CCP is applicable. If one assumes that disregarding the prohibition of seizure of defence documents is a question of a simple regulation on admissibility in terms of Art. 141 para. 2 CCP, the evidence is in principle inadmissible. The evidence could however be considered admissible if the client is accused of a “serious criminal offence” and the admissibility is indispensable which is to be assumed in cases where an acquittal or abandonment of the proceedings would be the consequence without the admissibility.161 If, however, Art. 141 para. 1 CCP is considered applicable, the evidence would be inadmissible regardless of which criminal offence the client is accused of. Where evidence that is inadmissible under Art. 141 para. 2 CCP has made it possible to obtain additional evidence, such evidence is not admissible if it would have been impossible to obtain had the previous evidence not been obtained. At the moment it is still not clear whether the admissibility may only be assumed when the evidence could with the utmost probability also have been obtained without the inadmissible evidence162 or if this should already be possible when there is only a certain probability that the evidence could also have been obtained in another way.163 According to the prevailing doctrine Art. 141 para. 4 CCP does not apply if it is a question of absolute inadmissibility of evidence in terms of Art. 141 para. 1 CCP.164

158

OGer ZH, 3.2.1993, ZR 95 (1996) Nr. 36; Donatsch et al. (2014a), Article 141, para. 24. Similar Niggli et al. (2014), Article 141, para. 82. 160 See Salduz v. Turkey, Appl. no. 36391/02, of 27 November 2008, § 72 discussed by Wohlers and Schlegel (2009), 76. 161 Donatsch et al. (2014a), Article 141, para. 21a. 162 Donatsch et al. (2014a), Article 141, para. 15 with more details. 163 Similar see BGE 138 IV 173. 164 Donatsch et al. (2014a), Article 141, para. 14. 159

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Exclusion of Privileged Communication Unlawfully Intercepted

Apart from cases in which the defence counsel himself is suspected to be involved in the criminal offence, surveillance of the telecommunication of the accused with his defence counsel is not allowed. If in the course of surveillance of the accused or a third party conversations of the accused with his defence counsel are monitored, this information is to be eliminated from the documents of the proceedings and to be destroyed immediately according to Art. 271 para. 3 CCP; they are not to be used in any way. The deletion of physical minutes is possible without any problems. On the other hand, the deletion of the relevant communication from the data system set up within the framework of surveillance poses serious technical difficulties.165 Regardless of this, it is clear that the findings obtained may not be used in the course of the proceedings and thus cannot be used to the detriment of the accused. This is also evident from Art. 277 para. 2 CCP that explicitly states that the results of unauthorized surveillance may not be used. The article also includes findings from surveillance for which no authorization may be granted.166 As outlined above, this is the case for the surveillance of the communication of the accused with his defence counsel. Because the prohibition of utilization stated in Art. 271 para. 3 CCP also includes the inadmissibility, one must assume that the article is an absolute regulation on admissibility in terms of Art. 141 para. 1 CCP. This means that the recordings of conversations are subject to absolute inadmissibility (without exception). Whether one may also assume that further evidence, which was obtained following an unlawful use of recordings, may not be used under any circumstances, has not yet been conclusively addressed.167

5.3

Consequences of Violation of the Confidentiality by the State

The Swiss criminal procedure law has certain prerequisites that have to be fulfilled so that proceedings may be conducted (prerequisites to proceedings) and certain circumstances whose existence eliminate conducting or continuing criminal proceedings respectively (impediments to proceedings).168 Interferences with the right of defence, however, do not constitute an impediment to proceedings. In principle, interferences with the right of defence lead to

165

Donatsch et al. (2014a), Article 271, para. 15 ff. Donatsch et al. (2014a), Article 272, para. 2. 167 See Donatsch et al. (2014a), Article 141, para. 14; not answered in BGE 138 IV 171 ff. 168 Donatsch et al. (2014a), p. 255. 166

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inadmissibility of evidence. However, if there is enough other evidence that can be used, the proceedings continue. If there is not enough evidence available to support a sentence because of its inadmissibility, the public prosecutor’s office has to refrain from prosecution and instead abandon the proceedings (Art. 319 para. 1(a) CCP). If the lack of admissible evidence is only realized after the indictment, the court has to acquit the accused. The legally valid acquittal entails that other proceedings for the same criminal offence are not possible anymore (ne bis in idem; Art. 11 para. 1 CCP). A legally binding ruling abandoning proceedings is equivalent to a final verdict of acquittal (Art. 320 para. 4 CCP), however, the public prosecutor can order the reopening of proceedings according to Art. 323 para. 1 CCP if he obtains new evidence or information. The reopening of the proceedings after an acquittal on the other hand is not stipulated in the CCP (see Art. 11 para. 2 in conjunction with Art. 410 CCP).

6 Attorney-Client Communications at Trial Whether or how the defence counsel and his client can communicate at trial is not explicitly regulated by the CCP. Consequentially, the courtroom etiquette depends entirely on the judge in question. While some judges even frown upon the quick exchange of information in hushed voices, other judges allow it. However, the defence counsel and his client can communicate by exchanging written notes. Normally, the defence counsel sits next to his client. But sometimes the seating arrangements make free communication difficult. For example, if the courtroom is small and there are a lot of people accused, the defence counsels either sit in front of the accused or behind them. However, the defence counsel can always request a brief recess, which is usually granted. He can then consult with his client confidentially in a separate room. The relevance of free communication at trial is relativized by the fact that there is no strict principle of immediacy in Swiss criminal proceedings. The courts largely base their decisions on the findings obtained during the preliminary investigation. The taking of evidence at trial, especially the hearing of witnesses, is very rare and the practice is different in each canton.169 At least in cantons where the courts mainly base their decisions on the files, e.g. the canton of Zurich, the main hearing is generally limited to the hearing of the accused and the pleadings of the parties.

169

Summers et al. (2016), pp. 351 and 359 f.; Wohlers (2014), pp. 424 and 431 f.

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7 Criticism & Reform The Swiss criminal procedure law was unified in the year 2011 when the CCP replaced the until then applicable, by no means unified 26 cantonal laws on criminal proceedings. In as far as it is known at present, there are no intentions to reform the CCP regarding the topics discussed in this report. It is neither planned to reinforce the free communication of the defence counsel with his client, nor are there any efforts discernible to limit the existing protection of free communication or its scope respectively. The reason for this might be that the newly established law has implemented to a large extent the standards developed by the ECtHR which are binding throughout Europe. Falling behind this standard would bear the risk of Switzerland being sentenced by the ECtHR. The amendment of some details would perhaps be desirable from the point of view of the defence, e.g. regarding the question of provision of a translator for defence counsels who are appointed to an accused person speaking a foreign language, or the question regarding the presence of a person from the Cantonal Supervisory Authority for Lawyers in case of searches of lawyer’s offices. Overall, the legal situation at present is evidently however such that the defence counsels and their organizations do not demand amendments of the law. The criticism regarding the present situation does not concern the legal situation as such but its application by the authorities in practice. First, the criticism concerns the circumstance that the cantonal authorities do not apply the now unified procedural rules in a uniform manner throughout Switzerland. In many places both the interpretation and application of the procedural rules are still seen through the glasses of the old cantonal laws of legal proceedings and the traditions formed by them. This consequently leads to the fact that one and the same rule is handled completely differently in the cantons. On the one hand, this complicates the activity of defence counsels working in all of Switzerland. But above all, it is not justifiable that the accused affected by a restrictive interpretation of a rule has to accept this as a special sacrifice to the Swiss confederation. Second and above all, the criticism of the defence counsels concerns various points for the practical handling of the current law which impedes the exertion of the functions of the defence without there being a comprehensible reason for this from their point of view. In as far as it is evident, there is one point that is generally criticized from the point of view of the defence counsels, which is the extremely limited possibility to contact the client in remand by telephone. Another problem often addressed is the seating order in different cantons during interrogations that can impede the defence counsel to advise his client adequately. This often leads to disputes between the defence counsel and the person conducting the interrogation because the defence counsel wants to fulfil his duty to counsel his client also during the on-going interrogation. Other examples, which not only shed light on the different practices between various cantons but also to the inconsistent practice within one and the same canton, refer to questions on how long one has to wait for the appearance of the defence counsel, how long and under what circumstances

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he can meet with his client before the interrogation and when and above all how and to what extent the defence counsel can make use of his right to ask questions. Finally, it is reported again and again by defence counsels that experienced and “battle-tried” defence counsels are treated differently (and better) in practice than their still inexperienced colleagues. At present, all of this has led to the bar associations meeting with the individual criminal justice authorities in order to discuss problems and to look for solutions. The hope is to find amicable solutions and stipulate them in an agreement that leads to a uniform and reliable practice. Discussions are still ongoing; there are no results as of yet. Some authors170 criticize the prevailing practice according to which not the accused himself but the defence counsel decides both on the targets and means to be applied to reach these targets whereby the defence counsel has to orientate himself on the well-understood interests of his client, i.e. on the interests which the accused should have which however not necessarily correspond to the ones which the client actually does have in a specific case. The paternalistic understanding of the relationship between the accused and his defence counsel is contrasted with an understanding of the relationship based on partnership which counteracts the subtle incapacitation of the client by the defence counsel but which is more intricate and time-consuming and whose realization, in particular in cases of mandatory defence from which the defence counsel cannot resign without further ado, may cause problems. So far, this approach has led to isolated agreement from defence counsels,171 but at present, the practice retains the still prevalent paternalistic approach.

References Baumgartner H (1996) Die Verteidigung gerät zunehmend unter Druck. plädoyer 6:24–26 Baumgartner H (2002) § 7 Zur Verteidigung in Wirtschaftsstraffällen. In: Niggli MA, Weissenberger P (eds) Strafverteidigung, Handbücher für die Anwaltspraxis, Band VII. Helbing Lichtenhahn, Basel Bernard S (2015) Take Care – Fürsorge als Basis der Verteidigung. forumpoenale 4:231–236 Burckhardt P (2012) Legal privilege and confidentiality in Switzerland. In: Greenwald D, Russenberger M (eds) Privilege and confidentiality – an international handbook, 2nd edn. Bloomsbury Professional, London, pp 279–292 Burckhardt P, Ryser RM (2013) Die erweiterten Beschlagnahmeverbote zum Schutz des Anwaltsgeheimnisses insbesondere im neuen Strafverfahren. AJP 2:159–168 Donatsch A, Cavegn C (2009) Der Anspruch auf einen Anwalt zu Beginn der Strafuntersuchung. forumpoenale 2:104–109 Donatsch A, Hansjakob T, Lieber V (2014a) Kommentar zur Schweizerischen Strafprozessordnung (StPO), 2nd edn. Schulthess, Zürich Donatsch A, Schwarzenegger C, Wohlers W (2014b) Strafprozessrecht, 2nd edn. Schulthess, Zürich

170 Baumgartner (2002), § 7, para. 7.20; Baumgartner (1996), pp. 24 and 26; Wohlers (2012), pp. 55 f. 171 Bernard (2015), p. 232.

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Erni L (1997) Anwaltsgeheimnis und Strafverfahren. In: Brechbühl B, Hauser E, Hofer U (eds) Das Anwaltsgeheimnis. Schulthess, Zürich, pp 5–35 Erni L (2007) Die Verteidigungsrechte in der Eidg. Strafprozessordnung, insbesondere zum “Anwalt der ersten Stunde”. ZStrR 125:229–241 Fellmann W, Zindel GG (2011) Kommentar zum Anwaltsgesetz, Bundesgesetz über die Freizügigkeit der Anwältinnen und Anwälte (Anwaltsgesetz, BGFA), 2nd edn. Schulthess, Zürich Godenzi G (2011) Heimliche Einvernahmen. ZStrR 129:322–352 Hauri C (2011) Anwälte tragen Last der Rechtsstaatlichkeit. plädoyer 6:12–14 Heimgartner S (2011) Strafprozessuale Beschlagnahme – Wesen, Arten und Wirkungen, Unter Berücksichtigung der Beweismittel-, Einziehungs-, Rückgabeund Ersatzforderungsbeschlagnahme. Schulthess, Zürich Heimgartner S (2012) Amtliche Mandate im Vorverfahren – Zürcher Praxis. forumpoenale 3:167–174 Hohler C (2009) Grenzen der Verteidigung. forumpoenale 5:296–300 Ill C (2015) Informationsgespräch im strukturierten Gespräch. In: Romerio F, Bazzani C (eds) Interne und regulatorische Untersuchungen. Schulthess, Zürich, pp 139–161 Lieber V (2013) Ungenügende Verteidigung und die Folgen – Streiflichter zur neueren bundesgerichtlichen Rechtsprechung. forumpoenale 1:51–54 Mabillard R (2005) Anwaltsgeheimnis als verfassungsrechtliche Schranke für Zwangsmassnahmen am Beispiel der Durchsuchung und Beschlagnahme von Papieren. SJZ 101:209–217 Naegeli G (2010) Darf man im Prozess lügen? AwR 6-7:292–296 Nater H, Rauber R (2012) Umfassender Schutz der Anwaltskorrespondenz. SJZ 108:16–17 Niggli MA, Wiprächtiger H (2019) Basler Kommentar, Strafrecht II, Art. 137–392 StGB, Jugendstrafgesetz, 4th edn. Helbing Lichtenhahn, Basel Niggli MA, Heer M, Wiprächtiger H (2014) Basler Kommentar zur Schweizerischen Strafprozessordnung, Art. 1–195 StPO und Art. 196–457 StPO, 2nd edn. Helbing Lichtenhahn, Basel Oberholzer N (2012) Grundzüge des Strafprozessrechts, 3rd edn. Stämpfli, Bern Omlin E (2009) Strafverteidigung – Grenzen der Wahrung von Parteiinteressen. AwR 2:74–78 Pieth M (2016) Schweizerisches Strafprozessrecht, Grundriss für Studium und Praxis, 3rd edn. Helbing Lichtenhahn, Basel Piguet C, Dyens A (2015) Konnte mit der Einführung der schweizerischen Strafprozessordnung tatsächlich eine Stärkung der Verteidigungsrechte bewirkt werden? AwR 9:365–376 Riklin F (2014) StPO Kommentar, Schweizerische Strafprozessordnung mit JStPO, StBOG und weiteren Erlassen, 2nd edn. Orell Füssli, Zürich Ruckstuhl N (2010) Die Praxis der Verteidigung der ersten Stunde. ZStrR 128:132–145 Ruckstuhl N, Dittmann V, Arnold J (2011) Strafprozessrecht, unter Einschluss der forensischen Psychiatrie und Rechtsmedizin sowie des kriminaltechnischen und naturwissenschaftlichen Gutachtens. Schulthess, Zürich Schiller K (2009) Schweizerisches Anwaltsrecht, Grundlagen und Kernbereich. Schulthess, Zürich Schlegel S (2010) Die Verwirklichung des Rechts auf Wahlverteidigung, Eine rechtsvergleichende Untersuchung zum schweizerischen und deutschen Recht. Schulthess, Zürich Schlegel S (2011) Anwalt der ersten Stunde: Entscheidend ist die Umsetzung. plädoyer 1:36–41 Schlegel S, Wohlers W (2012) Der “Anwalt der ersten Stunde” in der Schweiz, Zugleich ein Beitrag zu den menschenrechtlichen Mindeststandards der Strafverteidigung. StV 5:307–318 Schmid N, Jositsch D (2017) Handbuch des schweizerischen Strafprozessrechts, 3rd edn. Dike, Zürich Summers S, Scheiwiller A, Studer D (2016) Das Recht auf Konfrontation in der Praxis. ZStrR 134:351–381 Trechsel S, Pieth M (2018) Schweizerisches Strafgesetzbuch, Praxiskommentar, 3rd edn. Dike, Zürich

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Verein Zürcherischer Rechtsanwälte (1988) Handbuch über die Berufspflichten des Rechtsanwaltes im Kanton Zürich. Verein Zürcherischer Rechtsanwälte, Zürich Wohlers W (2012) Die Pflicht der Verteidigung zur Wahrung der Interessen der beschuldigten Person. ZStrR 130:55–75 Wohlers W (2013) Das Anwesenheits- und Fragerecht der Verfahrensparteien bei Einvernahmen im Vorverfahren. forumpoenale 3:160–166 Wohlers W (2014) Die Unmittelbarkeit der Beweiserhebung im Strafprozess. ZStrR 132:424–447 Wohlers W, Lynn V (2018) Das Anwaltsgeheimnis bei internen Untersuchungen. recht 1:9–24 Wohlers W, Lynn V (2019) Das Anwaltsgeheimnis im Strafverfahren. In: Wohlers W, Seitz C (eds) Anwaltsgeheimnis, Legal Privilege im schweizerischen und internationalen Kontext. Helbing Lichtenhahn, Basel, pp 102–132 Wohlers W, Schlegel S (2009) Anmerkung zu EGMR, Grand Chamber, Case of Salduz v. Turkey, Urteil vom 27. November 2008, Application no. 36391/02. forumpoenale 2:71–76

Veronica Lynn studied law in Zurich, where she also completed internships and trained with major corporate law firms. She was admitted to the bar in Switzerland in 2016 while simultaneously being a doctoral student at the University of Zurich, writing her PhD thesis on the attorney-client privilege and working as an academic research assistant at the chair for criminal law and criminal procedure law of Prof. Dr. Wolfgang Wohlers at the University of Basel. She specializes in whitecollar crime, criminal defence, covert surveillance measures and criminal aspects of information technology. Wolfgang Wohlers studied law in Hamburg, where he also received his doctorate and worked as a defence lawyer (1994–2000). He initially was professor in Dresden and from 2001 to 2015 professor of criminal law and criminal procedure at the University of Zurich. Since 2015, he has been professor of criminal law and criminal procedure at the Faculty of Law of the University of Basel. Wolfgang Wohlers is co-editor of various professional journals and since 2019 a member of the working group “Alternative Draft”, in which professors of criminal law from Germany, Austria and Switzerland develop legislative proposals on criminal law and criminal procedural issues. One of his main areas of research is the institute of criminal defence.

Confidentiality of Correspondence with Counsel as a Requirement of a Fair Trial: Turkey—Quo vadis? Öznur Sevdiren

Abstract The attorney-client privilege is extensively provided for under the Turkish Attorneyship Law as an essential component of defence rights. This legal privilege is also guaranteed through numerous provisions in the Turkish Criminal Procedure Code in relation to both the investigation and trial phases. Under Turkish law, the breach of the attorney-client privilege constitutes a crime and, as distinct from other jurisdictions, the law recognises no exception. This state of affairs can be attributed to historical and constitutional developments in Turkey. Significantly, the judgments of the European Court of Human Rights (ECtHR) gave further stimulus to the legislative change in this regard. Yet, with the recent incorporation of emergency decrees in the Turkish Criminal Procedure Code, the attorney-client privilege has been severely restricted. The criteria for these restrictions have been formulated imprecisely and used generally without any objective basis in practice. This approach has had repercussions on the Turkish criminal justice system in many ways, in particular resulting in a dramatic erosion of the defence rights. This chapter provides a general framework for the attorney-client privilege in Turkish law and, in light of the jurisprudence of the ECtHR, examines the recent changes through emergency decrees in Turkish legislation, and their interpretation and implementation in practice. Keywords Access to lawyer · Attorney-client communications · Attorney-client privilege · Confidentiality · Criminal defence · Criminal procedure · Defence rights · Emergency law · Exclusion of counsel · Exclusionary rules · Fair trial · Legal privilege · Mandatory legal assistance · Right of defence · Right to counsel · Search and seizure · Searches of lawyers’ offices · Turkish criminal justice system

Ö. Sevdiren (*) Istanbul Bilgi University, Istanbul, Turkey e-mail: [email protected] © Springer Nature Switzerland AG 2020 L. Bachmaier Winter et al. (eds.), The Right to Counsel and the Protection of Attorney-Client Privilege in Criminal Proceedings, Ius Comparatum – Global Studies in Comparative Law 44, https://doi.org/10.1007/978-3-030-43123-5_12

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Abbreviations CAT CC CCBE CCP CPT ECHR ECtHR OCHR StGB UN

United Nations Committee Against Torture Turkish Criminal Code Council of Bars and Law Societies of Europe Code of Criminal Procedure The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment European Convention on Human Rights European Court of Human Rights United Nations Human Rights Office of the High Commissioner Strafgesetzbuch (German Criminal Code) United Nations

1 Introduction The right to counsel as protected in various human rights treaties is attributed to numerous goals in the criminal justice system. While serving as a vital safeguard against self-incrimination, the right to counsel per se constitutes a protection against torture and ill treatment, coerced confessions and other human rights violations.1 As a fundamental feature of fair trial, it prevents failures of justice.2 As generally recognised, lawyers are assigned a fundamental role in a democratic society.3 Indeed, from a macro perspective, an effective system of legal assistance reveals a functioning democracy in terms of checks and balances and the separation of

1

The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) repeatedly stressed that “the period immediately following deprivation of liberty is when the risk of intimidation and physical ill-treatment is greatest. Consequently, the possibility for persons taken into police custody to have access to a lawyer during that period is a fundamental safeguard against ill-treatment.” CPT/Inf (96) 21. General Comment No. 2 of the Committee against Torture (24 January 2008), para. 13. Committee on Legal Affairs and Human Rights, “Securing Access of Detainees to Lawyers” (Rapporteur: Mariatta Karamanlı), AS/Jur(2016) 34, s.1. For the related case law, see e.g.: Salduz v. Turkey, Appl. no. 36391/02, of 27 November 2008, para. 53–54; Ibrahim and Others v. the United Kingdom, Appl. nos. 50541/08, 50571/08, 50573/08 and 40351/09, of 16 December 2014. para. 255; Simeonovi v. Bulgaria, Appl. no. 21980/ 04, of 12 May 2017, para. 112. See also, Amnesty International (2014), p. 44. 2 Beuze v. Belgium, Appl. no. 71409/10, of 9 November 2018, para. 125–130; Blokhin v. Russia, Appl. no. 47152/06, of 23 March 2016, para. 198; Simeonovi v. Bulgaria, Appl. nos. 21980/04, of 12 May 2017, para. 112. 3 Michaud v. France, Appl. nos. 12323/11, 6 December 2012, para. 117. See also, the statement on numerous European lawyer organisations, accessible at https://eldh.eu/wp-content/uploads/2019/ 03/Statement-conviction-of-18-CHD-lawyers-1.pdf and http://www.ccbe.eu/fileadmin/speciality_ distribution/public/documents/DEONTOLOGY/DEON_Postion_Papers/EN_DEON_20170915_ Statement-on-professional-secrecy_LPP.pdf.

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powers. Perhaps, in no other jurisdiction are the overall situation in the country and the intricacies in the criminal justice system in this respect so closely interlinked as in Turkey. There has certainly been progress made from incommunicado detention to a comparatively broad recognition of the right to defence counsel under the new Turkish Criminal Procedure Code (CCP). Yet, the law remains vulnerable to changes in the current political climate. Such a dramatic change occurred in the aftermath of the attempted military coup of 2016. Shortly after the failed coup, a state of emergency had been proclaimed, which effectively suppressed some of the achievements of the criminal policy and legislation that had been just recently adopted.4 The situation was further exacerbated with a number of proceedings instituted against lawyers,5 together with “unfair trials and harsh sentences” as stated in the joint declaration by European lawyer organisations and with an everincreasing removal of lawyers from the duty and actual proceedings.6 The bar associations are cautious about recent developments.7 In practice, the position of the counsel is hence quite different than what is stipulated in law. This article will first outline the basis of the right to counsel under Turkish law. It will be followed by an examination of the meaning of professional confidentiality (attorney-client privilege) in Turkish law, and then the role of defence counsel in the criminal investigation phase. Afterwards, the nullities and exclusionary rules in this respect will be dealt with. And finally, the scope of reform of Turkish criminal procedure will be evaluated critically.

2 The Basis of the Right to Defence Counsel Under Turkish Law The right to defence counsel is not explicitly stipulated in the Turkish Constitution. The Turkish Constitution provides the right to fair trial in general terms without explicitly stating its components. Yet, Turkey is a party to the European Convention

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International Commission of Jurists (2018a) Justice Suspended: Access to Justice and the State of Emergency in Turkey, Geneva; Office of the United Nations High Commissioner for Human Rights 2018. 5 United Nations Human Rights Office of the High Commissioner (OCHR) identifies “a pattern of persecution of lawyers representing individuals accused of terrorism offences.” Report on the impact of the state of emergency on human rights in Turkey, including an update on the South East (January–December 2017), March 2018, at https://www.ohchr.org/Documents/Countries/TR/ 2018-03-19_Second_OHCHR_Turkey_Report.pdf. 6 Joint Statement of International Bar Association’s Human Rights Institute with several European Associations and Organisations, accessible at https://www.ibanet.org/Article/NewDetail.aspx? ArticleUid¼895fa7bd-9d21-4125-95c8-3ebd714999a5. 7 See the statement of the numerous Bar Associations (22/3/2019) including Ankara, İzmir and Istanbul, accessible at http://www.istanbulbarosu.org.tr/HaberDetay.aspx?ID¼14345&Desc¼Bas %C4%B1na-ve-Kamuoyuna.

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on Human Rights (ECHR), and accepted the jurisdiction of the European Court of Human Rights (ECtHR).8 Turkey is also a party to the UN Civil and Political Rights Convention. Due to normative hierarchy, both of these treaties have a significant place. According to Art. 90 of the Turkish Constitution, in case of conflict between domestic laws and international agreements the provisions of international agreements shall prevail.9 The ECHR has a particularly significant role. Alongside the European Convention and its interpretation by the ECtHR, the individual constitutional application to the Turkish Constitutional Court10 further increases the importance of the European Convention in that individual constitutional application can only be made if the rights which are covered by the ECHR and its additional protocols are infringed.11 It can be observed that the ECtHR case law has hitherto played a critical role in establishing standards for “effective criminal defence”.

2.1

Preliminary Information About the Right to Counsel

In Turkish law, the right to access to defence counsel is gradually formed by the endeavours to comply with the European Convention system with regard to rights ranging from right to liberty and security to fair trial beginning from the early 1990s. The ECtHR case law,12 numerous reports of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) and the United Nations Committee Against Torture (CAT) and the thematic rapporteurs and working groups revealed that the use of torture and ill treatment in police custody and forced confessions appeared to be common.13 In particular, the

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On the influence of the ECtHR case law in other European countries, see Weigend (2019). On this topic see Özenç (2018). 10 Introduced with Law no. 5982 dated 7/5/2010 “Amending Certain Provisions of the Constitution of the Republic of Turkey”. 11 See e.g. Onurhan Solmaz, 2012/1049, of 26 March 2013, para. 18. Göztepe (2011); Şirin (2013). 12 E.g. Aksoy v. Turkey, Appl. no. 21987/93, of 18 December 1996; Aydın v. Turkey, Appl. no. 57/1996/676/866, of 25 September 1997; Sur v. Turkey, Appl. no. 137/1996/756/955, of 3 October 1997; Tekin v. Turkey, Appl. no. 52/1997/836/1042, of 9 June 1998. 13 Commission on Human Rights, “Question of the Human Rights of All Persons Subjected to Any Form of Detention or Imprisonment”—Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Report by the Special Rapporteur P. Kooijmans, pursuant to 1988/32), E/CN.4/ 1989/15, 1989, 23/1/1989, p. 44, para. 211; Commission on Human Rights, “Question of the Human Rights of All Persons Subjected to Any Form of Detention or Imprisonment”—Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Report by the Special Rapporteur P. Kooijmans, pursuant to 1989/23), E/CN.4/1990/17, 1989, 18/12/1989, pp. 46–52; Commission on Human Rights, “Question of the Human Rights of All Persons Subjected to Any Form of Detention or Imprisonment”—Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Report by the Special Rapporteur P. Kooijmans, pursuant to 1990/34), E/CN.4/ 1991/17, 10/1/1991, pp. 55–63; Committee Against Torture, “Activities of the Committee Against 9

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relationship between incommunicado detention and the use of torture was frequently highlighted.14 It triggered a change in law beginning from the 1990s. One of the early and significant steps in this respect was the reform of criminal procedure law in 1992.15 In conformity with the ECtHR case law, it was recognised that anyone suspected or accused of a crime had the right to legal assistance from the moment of being taken into police custody. Significantly, again, mandatory defence counsel was introduced in relation to juvenile offenders. Even within this law, ordinary offences and those falling within the ambit of State Security Courts were differentiated and the provisions of the concerned law were not applicable to the crimes under the jurisdiction of State Security Courts. After repealing State Security Courts, this limitation was lifted (Law no. 4928). The new CCP, which was passed in 2004 and went into effect on 1 June 2005, as part of package of reforms, contains various measures revealing the significance attached to the right to legal assistance.

2.2

Time Scope of the Right to Counsel

Under Turkish law, the right to legal assistance, though not explicitly provided, is applicable from the point of arrest. Art. 90 CCP, the provision on “arrest in delicto flagrant”, reads that anyone who is arrested shall be informed promptly about her/his “legal rights”, after taking measures to prevent her/him from escaping and harming herself/himself and others. It is generally accepted that the right to defence counsel is one of the basic rights, which should be reminded at the time of arrest.16 This right is more expressly provided in Art. 6.4 of the Regulation on Arrest, Detention and Interrogation.

Torture Pursuant to Article 20 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment”, UN Doc. No. A/48/44/Add.1, 15/11/1993, para. 5, pp. 38–39; European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), “Public Statement on Turkey”, CPT/Inf(96) 34, 6/12/1996. On the Public Statement on the situation in Turkey by the European Committee for the Prevention of Torture see Tanca (1993). For a detailed account, see Sevdiren (2016); TİHV (2016), pp. 29–34. On the issue of torture in the early 1990s, see also Tanör (1991), pp. 35–39. 14 See e.g. E/CN.4/1989/15 (see fn. 13), para. 233; see also “Question of the Human Rights of All Persons Subjected to Any Form of Detention or Imprisonment”—Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Report by the Special Rapporteur P. Kooijmans, pursuant to 1991/38), E/CN.4/1992.17, 27/12/1991, para. 284. In the Report, the then Human Rights Commissioner Kooijmans underlined that “Torture most often takes place during incommunicado detention, when the detainee is refused access to legal counsel.” 15 Law no. 3842, 18/11/1992. 16 Öztürk et al. (2018), p. 251; Gökcen et al. (2018), p. 33; Centel and Zafer (2018), p. 358. See also, Miranda v. Arizona, 384 U.S. 436 (1966).

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A clearer provision in the CCP (Art. 148 CCP), in conformity with the case law of the European Court,17 does exist in relation to an interrogation during the investigation phase and during trial. Accordingly, during the interrogation by the prosecutor or under her/his instruction by the police or in front of justice of peace; and in the trial process, the court is required to inform the suspect or accused about the right to defence counsel. This regulation has far reaching implications in the criminal procedure. Since then, the statement given without a counsel cannot be a basis for the conviction, unless s/he confirmed it in the court hearing.

2.3

Appointment of Defence Counsel and Legal Aid

Under Turkish criminal procedure law, the assistance of the defence counsel is not obligatory throughout the investigation phase and criminal proceedings. Where the case in question necessitates mandatory counsel as will be touched upon below, the legal assistance becomes an obligation. If the suspect or the accused who does not have a defence counsel is a child, or an individual who is disabled to the extent that s/he cannot make her/his own defence, or is deaf or mute, a defence counsel shall be appointed without her/his request. Again, if s/he is accused of a crime carrying imprisonment at the lower level of more than five years, the counsel is mandatory. There are other situations where the presence of a defence counsel is necessary. Where the public prosecutor demands remand on custody, in the hearing where this demand will be considered, the presence of the counsel is necessary. In cases involving fugitives where they do not have a counsel, the court is required to appoint a lawyer on her/his behalf (Art. 247/4 CCP). Again, in cases where an expert opinion is required on the mental health of the suspect or the accused, which may lead to the detention in a mental health institution, and s/he has no counsel, upon the request of the judge or court, a defence counsel shall be appointed by the relevant bar association (Art. 74 CCP). The appointment of the defence counsel is necessary, if a disciplinary measure for the violation of the order of the court has been decided to continue without presence of the accused and the accused has no counsel. Lastly, in cases where the defence counsel has been banned (dismissed) from duty in accordance with Art. 151 CCP, the presidency of the relevant bar association shall be notified of this ban immediately for the appointment of a new defence counsel (Art. 151/5 CCP). In cases where mandatory counsel is not required, the suspect or the accused may choose a defence counsel or may opt to waive this right. In cases where the suspect or the accused declares that s/he is unable to choose a defence counsel, a defence

17

Simeonovi v. Bulgaria, Appl. no. 21980/04, of 12 May 2017, para. 111; Beuze v. Belgium, Appl. no. 71409/10, of 9 November 2018, para. 125–130.

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counsel shall be appointed on her/his behalf regardless of the severity of the offence.18 The right to the defence counsel, however, is applied restrictively in practice. As reported, in particular, in police stations waivers of the right to counsel are quite common. This is largely due to the fact that, the suspect and the accused are rarely informed of their rights. Filling out pre-printed forms where the rights of the suspect are only very briefly mentioned appears to be the sole way of notification in most of the cases. Studies show that “nearly 80% of people who heard the warning did not understand that they were entitled to free legal assistance”.19 In a significant majority of the cases, hence, due to tense circumstances surrounding and open discouragement of police officers (on the grounds of the promise of early release or otherwise probable delay) suspects refrain from using the right to legal assistance and check “no” boxes on the forms.20 This way of waiving the right to legal assistance is not considered as sufficient to meet the standards established by the ECtHR.21 Also in courtroom, the impact of this right is practically very limited. A previous study demonstrated that judges did not inform the accused of their right to counsel in more than 90% of criminal cases in Istanbul courts.22 74% of all convicts who have been sentenced to prison did not have any representation at any stage.23 In cases where the suspect or the accused declares that s/he is unable to choose a defence counsel, a defence lawyer shall be appointed on her/his behalf regardless of the seriousness of the offence. Also, the CCP does not explicitly confine this right to legal assistance where the suspect or accused is indigent. Yet, the Attorneyship Law, under the title of legal aid, defines it with reference to financial means of the person in question. Having said that, there is no rule concerning financial eligibility restrictions regarding the counsel under Turkish criminal procedure law. Hence, there is no test to check the claims of insufficient means, thus, anybody claiming to lack sufficient means may benefit from legal aid. A regulation concerning counsel appointment by the bar24 states that where the counsel is not mandatory, the payment for counsel will be calculated as a cost of the proceedings and will be charged. In any case, the rate of using legal aid in Turkey appears to be quite low, at around 3% among all accused.25 On the other hand, the quality of the representation appears to be admittedly poor, both in terms of mandatory counsel and where a counsel has been appointed upon

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For a brief framework, see Yenisey et al. (2017). Stoughton (2009), p. 11. 20 Elveriş et al. (2007), p. 33. 21 Cengiz (2007); Altıparmak (2013), p. 5. 22 Elveriş et al. (2007), p. 33. 23 Kalem Berk (2011), p. 16. 24 Ceza Muhakemesi Kanunu Gereğince Müdafi ve Vekillerin Görevlendirmeleri İle Yapılacak Ödemelerin Usul ve Esaslarına İlişkin Yönetmelik, 273/2007 (RG: 26450). 25 Kalem Berk (2011), p. 16. 19

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the request of the suspect or the accused.26 The fact that the payment for the appointed lawyers is much less than the payment for the privately contracted lawyers is coupled with the problem of under-qualification, poor training and a heavy caseload.27 There is no independent or governmental authority, which is responsible for monitoring this issue. Research conducted in this area showed that in more than half of the cases the criminal legal aid lawyers have not lodged any petition against the use of pretrial detention.28

3 Attorney-Client Privilege 3.1

An Overview

Although there are endeavours to limit the applicability of the attorney-client privilege as a general principle and the ECtHR partly confirm these attempts, it is still regarded a basic requirement of the right to respect for private life29 and also a fundamental way of realising the right to a fair trial.30 As the European Bar Association emphasises, “it would be impossible for lawyers to provide such advice or representation if the client, for fear of betrayal of that essential precondition of confidentiality, withholds information from his lawyer.”31 But, indeed, this principle does not merely serve the interests of the client, its encroachment would have repercussions on the proper administration of justice.32 In Turkish law, the attorney-client privilege is provided in the Attorneyship Law without providing any exception unlike common law countries or in Civil Law countries such as Germany.33 Pursuant to Art. 36 Attorneyship Law, attorneys are prohibited from disclosing information that has been entrusted to them or that they come upon in the course of performing their duties both as an attorney and as

26

Criticised in Turkey progress report of the European Commission, 9/11/2010, accessible at https://ec.europa.eu/neighbourhood-enlargement/sites/near/files/pdf/key_documents/2010/pack age/tr_rapport_2010_en.pdf, pp. 18–19. 27 See e.g. Elveriş et al. (2005), p. 190. 28 Kalem Berk (2011), p. 17. 29 Michaud v. France, Appl. no. 12323/11, of 6 December 2012, para. 118–119. Spronken and Fermon (2008); Geraldine (2016). 30 See e.g. Niemietz v. Germany, Appl. no. 13710/88, of 16 December1992, para. 37. 31 Council of Bars and Law Societies of Europe (CCBE), CCBE Statement on Professional Secrecy/ Legal Professional Privilege, 15/9/2017, accessible at https://www.ccbe.eu/fileadmin/speciality_ distribution/public/documents/DEONTOLOGY/DEON_Postion_Papers/EN_DEON_20170915_ Statement-on-professional-secrecy_LPP.pdf. 32 Michaud v. France, Appl. no. 12323/11, of 6 December 2012, para. 117; Niemietz v. Germany, Appl. no. 13710/88, of 16 December 1992, para. 37; Wieser and Bicos Beteiligungen GMBH v. Austria, Appl. no. 74336/01, of 16 October 2007, para. 65–66. 33 See Weisser (2018).

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members of the Union of Bar Association of Turkey and various bodies of bar associations. The information includes all communications and advice in relation to the retained matter. The lawyer’s obligation applies to all stages of civil litigation and criminal investigation and trial process, disciplinary investigation or administrative application process. For these obligations, there is no time limit, hence after a criminal proceeding is completed, the lawyer is still bound by the obligation of professional secrecy. The Turkish Attorneyship Law also provides that attorney’s testimony on matters relating to her/his client is contingent upon the client’s consent. However, even with this condition satisfied, the attorney may refuse to give testimony (Art. 36/2 Attorneyship Law). Exercising the right to refrain from providing testimony will not entail any legal and criminal responsibility. Legal secrecy is also prescribed in Art. 37 of Professional Rules enacted by the Union of the Turkish Bar Associations. Accordingly, lawyers are bound by legal secrecy in matters entrusted to them and which have otherwise become known in their capacity as a lawyer. Although lawyers are subject to a strict duty of confidentiality, in legal doctrine, this rule is not seen as absolute. In cases regarding the protection of the constitutional order and state security, it is argued that lawyers do not have any obligation of confidentiality.34 Others argue that with regard to organised crime, the obligation of the attorney-client privilege should be lifted, yet with regard to legally protected values such as life, health, property and the public security, this obligation should prevail and in these cases no liability should arise.

3.2

The Duty to Aid the Ascertainment of the Truth

As opposed to common law countries adopting adversarial procedure, where the defence is also responsible for investigating, selecting and presenting evidence,35 in the Turkish criminal justice system, lawyers have no such role while representing their client. The aim of the criminal procedure is described in the CCP as the ascertainment of the truth. Principally, it is the duty of each actor in the criminal justice process to aid ascertaining the substantive truth. Nevertheless, given the nature of the legal profession and the obligations of professional secrecy to act in favour of her/his client, lawyers’ role has certain limitations. Lawyers can contribute to the ascertainment of the truth to the extent that her/his profession allows. The boundaries of the professional code vary depending on different views on the legal nature of defence counsel. Since it is accepted that the lawyer is a representative of the suspect, it would be necessary to recognise that the defence means which are considered legitimate for the suspect and the accused, are also legitimate for her/his defence counsel.36

34

In particular, earlier studies on this topic, see e.g. Donay (1978); Sungurtekin Özkan (1999). Hodgson (2016), p. 266. 36 Centel and Zafer (2018), p. 190. 35

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According to the prevailing opinion and to the case law,37 the defence counsel is the assistant to the suspect or the accused38 rather than being her/his representative, and as s/he acts not only on behalf of her/his client but is also required to take public interest into account.39 The Attorneyship Law also places emphasis on the public service nature of the profession and underlines the duty of lawyers to solve the conflicts with justice and equity and to ensure full implementation of legal rules (Art. 2 Attorneyship Law). On the other hand, the prevailing opinion among German scholars, which has also been adopted by Turkish legal scholars,40 is that the lawyer is an agent of the administration of justice and an assistant to the suspect or the accused.41 Opinions favouring this perspective point to the fact that the right to examination of documents and “cross-examination” of witnesses are only granted to lawyers. Having said that, it is also accepted that given that the defence counsel must assist her/his client, the duty of ascertaining the truth cannot be seen as a requirement as is the case for the judge, the court or the prosecutor. The defence counsel cannot be held responsible for not revealing evidence against her/his client, in particular those, which might result in conviction or more severe punishment. Again, even though the defence counsel knew about the evidence against her/his client, s/he has no obligation to notify the prosecutor or the court. Hence, s/he is not required to disclose a confession made by her/his client. If the suspect or accused informs her/his lawyer about the location of the weapon, the counsel does not have the duty to notify judicial authorities. Legal professional secrecy and the duty to act in favour of her/his client constitute the very basis of such a conduct. This holds true, even if the defendant tells the lawyer where the victim’s body is buried. Even in this case, if the defence counsel was not involved actively, it would hardly be possible to think that the lawyer is required to disclose the relevant information. On the other hand, since the counsel is not seen as a mere representative of the suspect or the accused, but rather conceived as an independent judicial organ, s/he has no right to mislead the authorities about the facts of the cases, to obstruct investigative activities of the prosecutor or to interrupt the mission of the court/the judge which is to clarify the truth.42 Hence, following the abovementioned “weapon case”, the lawyer cannot communicate information received from her/his client, yet s/he cannot retain crime evidence in her/his office. An active conduct to hide evidence of a crime is not allowed and would constitute a crime itself. Again, it is Turkish Court of Cassation (Yargıtay) CGK (General Assembly of the Criminal Divisions), “The defence counsel is subject to a separate status from the attorney with authority to represent and is not entitled to such absolute (sic) and broad powers as lawyers acting on behalf of her/his client in civil law.” 1974/8-272, 1974/447, 9/12/1974. 38 Centel (1984), pp. 48–51; Gökcen et al. (2018), p. 263; see also the judgement of Court of Cassation (9.12.1974, 8-272/447). 39 Öztürk et al. (2018), p. 249; Gökcen et al. (2018), p. 263; Dülger (2012), pp. 47–48. 40 Yenisey and Nuhoglu (2018), p. 184. 41 Centel and Zafer (2018), p. 227. 42 Özenç (2018), pp. 342–347. A detailed study on the topic, Zafer (2004). 37

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recognised that the counsel is not under the requirement to say everything s/he knows; yet everything s/he says ought to be true.43

3.3

Testifying Against Client

Under Turkish law, a very significant procedural guarantee is the right of the defence counsels to refrain from testimony on matters, which they have learned in their professional capacity or during their duty. Art. 46 CCP deals with the issue of “refraining from testimony because of professional privilege and privilege caused by permanent occupation”.44 This privilege is also granted to the clerks and assistants of lawyers. No derogation from the general principle is allowed. As touched upon above, the lawyer cannot provide testimony on matters, which are confided to her/him without the consent of her/his client. Without the consent of the client, the court cannot take unlawfully disclosed privileged information into account. In other words, the court cannot base its decision on such unlawfully obtained testimony, since it would constitute an absolute breach of law.

3.4

Decision to Exclude Counsel

Under Turkish law, the right to defence counsel of one’s own choosing is restricted with the possibility of excluding a lawyer in certain cases.45 With an amendment through an emergency decree,46 according to Art. 151/3 CCP, a counsel can be prevented from taking on his/her duty if an investigation or trial is being carried out in respect of her/him in cases of organized crime, armed organized crime and those crimes which are defined under the Anti-Terror Law (Art. 151/3 CCP). At the investigation phase, this decision is taken by the justice of peace upon the prosecutor’s request and at the trial phase by the court.47 Upon the request of the counsel, it

43

Centel and Zafer (2018), p. 228; Weisser (2018), p. 577. “The profession” includes lawyers, notaries and business trustees. With respect to the offence in relation to the failure of the public officials’ requirement to notify an offence, see Kocasakal (2017), pp. 103–107. 45 On the topic, see generally e.g. Mahmutoğlu and Dursun (2005). 46 Emergency Decree no. 676, Art. 2. 47 In the Memorandum of the Ministry of the Justice the objectives of the amended provision are explained in the following way: “The interference of the organization-connected lawyers to the prosecutions so as to remain out of the scope of the right to legal assistance prevents the material fact from being revealed. The prevention of this type of extrajudicial interferences is of greater importance in terms of the prevention of the repetition of the perilous events causing the declaration of state of emergency and the proper execution of prosecutions concerning these events. When it comes to the terror crimes, a similar prohibition opportunity is included also in the Article 138a and 44

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can be challenged by judicial review. As the ECtHR case law consistently holds, the right to have access to legal assistance of her/his own choosing is a “mechanism for securing an effective defence” of the suspect and accused.48 The criteria for the decision to exclude the defence counsel from her/his duty in the Turkish Criminal Procedure is too broad, as a basic suspicion would suffice to remove the right of a lawyer to exercise advocacy.49 According to the wording of the mentioned provision, “a reasonable and objective basis”50 for this decision appears not to be required. In practice, it has been used against lawyers representing individuals accused of crimes falling under the scope of the Anti-Terror Law (Law no. 3713). It appears that without separate evidence assessment had been made for each file; hitherto, automatic procedures for exclusion of lawyers have taken place.51 It was therefore not surprising that such a systematic practice was indeed “recommended” by the Ministry of Justice.52 An automatic application of this kind is clearly an infringement of the right to be defended by counsel of her/his own choosing. In this sense, it constitutes a different way of what the UN Basic Principles denounces as “identification” of lawyer with her/his client.

3.5

Breach of Attorney-Client Privilege

Where attorney breaches the confidentiality duty and gives testimony, or provides the court with confidential documents, the breach of her/his professional obligations incurs civil, criminal and disciplinary consequences. Beyond question, the breach of the attorney-client privilege is a criminal and disciplinary offence under Turkish law, but notably there is certain degree of uncertainty about which crime it constitutes. Previously, it was regulated under the crime of “disclosure of professional secrecy”. Nevertheless, there is no specific provision in the current Turkish Criminal Code (CC) anymore. Art. 258 CC53 penalises the public servant’s publishing or disclosing any confidential document, decision, order or other official notification under her/his control with a number of

following articles of the German Code of Criminal Procedure so as to be applied for the ordinary periods.” See Memorandum Prepared By the Ministry of Justice of Turkey For the Visit of the Delegation of the Venice Commission to Ankara on 3 and 4 November 2016 (in connection with the emergency decree laws), CDL-REF(2016)067 (23 November 2016), p. 64. 48 Dvorksi v. Croatia, Appl. no. 25703/11, of 20 October 2015, para. 78, Martin v. Estonia, Appl. no. 35985/09, of 30 May 2013, para. 90–93. 49 Centel and Zafer (2018), p. 222. 50 Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, A/63/223, 6/8/2008, para 40. 51 European Commission for Democracy Through Law (Venice Commission) (2017), para. 99. 52 Report on Circular, “Avukatları yok etme talimatı: Savunmayı susturun” (Sinan Tartanoğlu), Cumhuriyet, 9 August 2017. 53 On Art. 258 CC, see Alşahin (2014).

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specified alternative commission of crimes. Nevertheless, as the subject matter of this crime is an official document, the attorney-client privilege with its different facets does apparently not fall within its scope.54 Again, a related type of crime could be Art. 239 CC, namely, “disclosure of business secrets, banking secrets or information relating to customers”. But different from the German Criminal Code, there is no specific reference to lawyers (Art. 203 sec. 1 no. 3 StGB) and given the nature of the lawyer-client relationship, the application of this article for lawyers is not possible. In fact, as Art. 62 Attorneyship Law makes an explicit reference to Art. 257 CC, to the crime of “the abuse of office”, cases of breach of professional secrecy shall be punishable under this provision.55

4 The Pretrial Right to Counsel During the Preliminary Investigation 4.1

An Overview

Unquestionably, as has been stressed in many decisions of the ECtHR, access to a lawyer when in police custody is a fundamental safeguard for protection against the dangers of incommunicado detention.56 This has a particular meaning in relation to Turkish criminal justice system. In particular, in the 1990s, as touched upon above, there were serious allegations of widespread and systematic abusive practice of police custody. Motivated largely by the desire to become a fully-fledged member of the European Union, Turkey has adopted significant changes on the right to defence counsel, and the exclusionary rules57 were introduced. Against this background, with the new CCP entering into force in 2005, a number of procedural safeguards against torture and ill-treatment and exclusion of their possible effects were enacted in the Turkish Criminal Justice System. Under the Turkish CCP, the suspect’s right to an interview with her/his counsel includes the presence of the counsel during the interview or interrogation and her/his legal assistance to suspect (Art. 149.3 CCP). Turkish law guarantees the right of communicating with defence counsel without hindrance in that Art. 154 CCP provided that “any suspect or accused at any time shall have the right to an interview 54

Mahmutoğlu and Talas (2007), p. 23. “Advocates who neglect the duties they are assigned and abuse the power conferred upon them either by virtue of their profession or as members in the various organs of the Union of Turkish Bar Associations or bar associations in accordance with the present Law or other laws (in any manner) are punishable under Art. 257 of the Turkish Criminal Code.” See the decisions of the Court of Cassation, e.g. 4 CD, 2009/19013 E., 2011/21017 K., 14/11/2011. 5 CD, 2016/8579 E., 2016/9046 K., 16/11/2016, both decisions are cited in Mısır (2018), pp. 510–516. 56 See for the ECtHR case law, supra fn. 2. See also Human Rights Committee, General Comment No. 20 (1992), United Nations Compilation of General Comments, p. 140, para. 11. 57 See Sözüer and Sevdiren (2013). 55

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with a defence counsel in an environment where other individuals are unable to hear their conversation”. Written correspondence between the suspect or the accused and their defence counsel cannot be seized as long as such items are at the hands of the defence counsel (Art. 126 CCP). If the suspect or the accused is in custody, in principle the correspondence with the counsel cannot be hindered and restrictions cannot be imposed (Art. 114 Penal Enforcement Law). The meetings take place in the police or gendarmerie buildings or prisons. In principle, video cameras or taperecordings cannot operate during the interview. Nevertheless, in 2016, just after the attempted military coup, the right to legal assistance was subject to a dramatic change in many respects by an extraordinary decree (Decree Law no. 668). With this law, the right of the suspect to consult with her/his lawyer could be suspended for up to 5 days. The reason for such a provision was explained as to prevent persons suspected of being members of a terrorist organisation or other criminal organisations, giving orders and instructions to them or transmitting secret, open or encrypted messages.58 This was a clear breach of the ECtHR jurisprudence. The Strasbourg Court holds that the right to legal assistance at the initial stages of police interrogation is of crucial importance and therefore “to deny access to a lawyer for the first 48 hours of police questioning, in a situation where the rights of the defence may well be irretrievably prejudiced, is – whatever the justification for59 such denial – incompatible with the rights of the accused under Article 6”.60 Again, as the ECtHR implicitly emphasises, the right to legal assistance falls within the non-derogable rights, as the Brannigan and McBride case law counts the right to legal assistance as one of the important safeguards against arbitrary detention and torture and ill-treatment even in a public emergency.61 This provision restricting the right to access to counsel had far-reaching consequences in practice. Amnesty International and Human Rights Watch reported that in several cases incommunicado detention has led to torture and ill treatment.62 Having attracted heavy criticism both in national and international quarters, the first step of the incumbent government was to limit the suspension of consulting with defence counsel to 24 hours with another decree law. In relation to certain offences as listed in the provision the new law contains a restriction of the right to legal assistance for up to 24 hours by the order of a judge on the condition that during this time period, the suspect cannot be questioned (Art. 154/2 CCP). The Turkish Ministry of Justice in 2016 was of the opinion that this practice is also in conformity with the recent judgements of the ECtHR (by citing Ibrahim and

58 The Statement of the Ministry of Justice, 31/10/2016, available at http://www.adalet.gov.tr/ PRESS-RELEASE-ON-THE-REPORT-OF-THE-HUMAN-RiGHTS-WATCH-TiTLED-ABLANK-CHECK. 59 Emergency Decree no. 684, 23/1/2017. 60 Magee v. United Kingdom, Appl. no. 28135/95, of 6 June 2000, para. 44. 61 Brannigan and McBride v. United Kingdom, Appl. no. 14553/89 and 14554/89, of 22 April 1993, para. 64–65. 62 See Amnesty International (2016); Human Rights Watch (2016).

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Others v. the United Kingdom).63 Yet, as the Venice Commission emphasised, in any case, the individualised examination of the circumstances of each particular case is required and temporary limitation on contacts with counsel may be only imposed in exceptional circumstances, where the alleged security risk is convincingly shown.64 Hence, the examining judge ought to grant such an exception on the basis of the case in question. Regrettably, the practice is far from such a direction and almost automatic restriction appears to be the rule.65

4.2

The Limitations of Communication Between the Attorney and Client

The new rules introduced during the state of emergency, clearly removed clientcounsel privilege and fair trial guarantees and posed even greater danger for the consultation between the defence counsel and the client. With two different emergency decrees, the provisions concerning convicts were made applicable to persons in detention. And with the incorporation of these measures into the Penal Enforcement Code, currently, Art. 59 of the Penal Enforcement Code provides restrictive rules also on the communication between defence counsel and the convict and the detainee (with reference to Art. 116 of the Penal Enforcement Code). The first paragraph of this article provides that “during the interview; document or documents issued by a lawyer or a lawyer to a convict (detainee), files and records of their own conversation cannot be examined; the meeting with the attorney of the court cannot be overheard and cannot be recorded”. Nevertheless, with the emergency decrees, in relation to a number of offences listed in this provision, this rule is subject to exception under certain circumstances. These offences include offences against national security, the constitutional order and those that are defined in the Anti-Terror Law. Art. 59 Penal Enforcement Code states that where information, findings or documents are obtained indicating that public security and security of penal establishments is endangered, terrorist or (ordinary) criminal organisations are commanded that orders or instructions are given to these organisations or that secret, open or encrypted messages are transmitted by remarks during the interviews between the detainees and their lawyer,66 the following restrictions can be imposed:

63

See the Statement of the Ministry of Justice, 31/10/2016, para. 47. European Commission for Democracy Through Law (Venice Commission) (2016), para. 170–173. 65 Human Rights Watch (2019), pp. 18–19. 66 The English translation of the Code of Execution of Penalties and Security Measures is available at http://www.judiciaryofturkey.gov.tr/The-Law-on-the-Execution-of-Penalties-and-Security-Mea sures-is-available-on-our-website. 64

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1. Recording of interviews. 2. Presence of an officer during the interview with the defence counsel. 3. Seizure of documents, document templates and files that are given and taken by defence counsel and her/his counsel, and records of their communication. 4. The restriction of the frequency and duration of lawyer-client meetings upon the request of the chief public prosecutor. 5. Where the interview of the detainee is understood to serve the above-mentioned purposes, the immediate termination of it. 6. And finally, upon the request of the chief public prosecutor, ban on the meeting of detainee with her/his counsel up to six months. In such a case, where the convict/ detainee does not have another lawyer/if the person is left without lawyer, the relevant bar association should be notified for the appointment of a new lawyer.67 In many respects, this provision introduced during emergency rule effectively amounts to a breach of the fair trial requirements. Firstly, it infringes on the right of the defendant to communicate privately with counsel as foreseen in the CCP, since the scope of this provision is unclear. It lacks “law quality”, since it does not create foreseeable criteria for the application of such restrictive measures, as the ECtHR case law consistently emphasises. As the Strasbourg Court held that “a norm cannot be regarded as a ‘law’ unless it is formulated with sufficient precision to enable the citizen to regulate his (sic) conduct”.68 The terms, such as “endangering prison security and public security” or “transmission of secret, open or encrypted messages”, are too open. “Information, evidence or document about the transmission of hidden, open or coded message” is extremely broad and potentially touches the essence of the right to a meaningful and effective communication between lawyer and her/his client. In practice, without due reason, it is possible to claim that lawyer and client communication involves coded message. It is therefore not surprising that in practice,69 no specific and convincing reason for the application of these measures are required to impose such restrictions. Secondly, the provision in question equates the status of detainees on remand and convicts. By its very nature the relationship of the counsel and her/his client cannot be the subject of the same requirements. Fair trial requirements of effective defence and presumption of innocence require a differentiated treatment in the prison setting. The mere fact that the consultation between the counsel and the client takes place in the prison does not mean that any kind of restriction is possible. Quite the contrary, as the Turkish Constitutional Court held that although certain restrictions on the rights of prisoners can be imposed for the purpose of ensuring order and security in prison, prevention of crime and maintaining discipline, even in these circumstances such restrictions must be in accordance with the requirements of Art. 13 of the Constitution. In other words, the latter restrictions must be in conformity with

67

Romaniuk v. Poland, Appl. no. 59285/12, of 12 January 2016, para. 35–47. Sunday Times v. United Kingdom, Appl. no. 6538/74, of 26 April 1979, para. 49. 69 See Human Rights Watch (2019), pp. 16–18. 68

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the letter and spirit of the Constitution, with the democratic order of society and the secular republic and with the principle of proportionality.70 The court went on to underline that regarding fundamental rights and freedoms, the legislature is required to make foreseeable rules, which do not allow arbitrary application. Giving a wide margin of discretion to the executive may potentially result in arbitrary interferences with rights and might be unconstitutional. Hence, the court underlined the prohibition on arbitrary interference by the executive.71 It is true that according to the provision in question the measures can only be imposed upon the request of the public prosecutor through a decision of the justice of the peace at the pretrial stage. Yet, given the quite controversial position of the justice of peace, it can hardly be said that such a judicial decision constitutes a safeguard for the suspect.72 In the Brennan case, the ECtHR underlined that an accused’s right to communicate with her/his counsel is regarded as one of the basic requirements of a fair trial. Without having the possibility of confidential communication with defence counsel, “the right to legal assistance would lose much of its usefulness”.73 Nevertheless Brennan recognizes that there may be cases in which this rule may be subject to the exception where there is good cause and that such a restriction does not mean the deprivation of the accused from a fair hearing. Given the variety, duration and restriction implied, such measures would deprive the suspect/accused from the right to fair trial under Turkish law. On the other hand, the ban on meetings of the detainee with her/his counsel in cases where s/he has no other counsel results in the assignment of a new lawyer by the bar association. This is also a clear breach of the right to counsel of one’s own choosing. The official justification of these measures may be based on the seriousness of crimes. Yet, as the ECtHR underlined in Romaniuk v. Poland, a special regime based essentially on the seriousness of the offence, without providing sufficient and relevant reasons, is incompatible with the Convention.74

4.3

The Participation in Investigative Acts

As the ECtHR consistently emphasises, the investigation stage is of crucial importance because the evidence gathered at this stage determines the way in which the offence charged will be considered.75 The new Turkish CCP principally facilitates

70

Anayasa Mahkemesi (Constitutional Court), Mehmet Koray Eryaşa, Appl. no. 2013/6693, 16/4/ 2015, para. 51. 71 Ibid. 72 See e.g. International Commission of Jurists (2018b). 73 Brennan v. United Kingdom, Appl. no. 39846/98, of 16 October 2001, para. 58; see S. v. Switzerland, Appl. no. 12629/87, of 28 November 1991, para. 48. 74 Romaniuk v. Poland, Appl. no. 59285/12, of 12 January 2016, para. 45–47. 75 Mehmet Şerif Öner v. Turkey, Appl. no. 50356/08, of 13 September 2011, para. 21.

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the participation of counsel in investigative acts. First of all, the CCP provides a general authorisation for the participation of defence counsel in investigation measures. Art. 149 CCP reads: “The right of defence counsel to consult with the suspect or the accused, to be present during the interview or interrogation, and to provide legal assistance shall not be prevented or restricted at any stage of the investigation and trial phase.” As a rule, it is possible to claim that defence counsel is entitled to participate in investigative acts during the pre-trial stage as far as the nature of such investigative acts allows. Of these, participation in interrogation proceedings regardless of the nature of the offence is one of the achievements of the recent law reform. As touched upon above, defence counsel may participate in the interrogation of the suspect without any limitation. If the case necessitates mandatory counsel, the participation of counsel is required. In Turkish law, there is no explicitly regulated power for counsel to interfere with the interrogation by the police and the prosecutor. This may well be interpreted in favour of an active involvement of counsel. Nevertheless, the Regulation on the Arrest, Police Detention and Interrogation is quite restrictive in this respect. The regulation, which in many respects is more influential in the everyday practice of law enforcement agencies, explicitly regulates this issue by stating that “defence counsel can only provide legal assistance, s/he cannot respond to a question directed to the suspect, during the interrogation, s/he cannot intervene in a way that the impression is given by counsel that s/he puts himself/herself in the client’s place. Legal assistance does not imply interventions that may obscure the material event. Defence counsel may remind the suspect of her or his legal rights and any intervention of the defence shall be recorded” (Art. 23 of the Regulation). In the legal doctrine, it is accepted that, during the interrogation, counsel must take care that the interrogation takes place in a fair manner and is recorded.76 In the judicial interrogation taking place in front of the justice of peace where remand detention and judicial control have been demanded, as it is alike with court hearing, defence counsel can intervene and ask questions. Apart from interrogation, the CCP provides instances where the presence of defence counsel shall be provided. These include judicial inspection, inspection of the crime scene and the search. Crime scene inspection in Turkish law is generally designed as a search and seizure measure.77 There is no legal provision in the CCP on crime scene inspection apart from molecular genetic examination in general terms. In the Regulation on Judicial and Administrative Search,78 however, “crime scene inspection” is defined and described as “scientific and technical procedures developed for the search, discovery and seizure of evidence to establish cause and effect relations”. Amendment 6 of the Police Powers Act deals with this measure. According to Amendment

76 Demirbaş (1996), p. 27. For opposing views on the role of the counsel, see, Özbek et al. (2016), pp. 261–262; Centel and Zafer (2018), p. 213. 77 Özbek et al. (2016), p. 407; Centel and Zafer (2018), p. 425. 78 Art. 9 of the Regulation on Judicial and Administrative Search, 1/6/2005, RG: 25832.

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6 of the Police Powers Act the police is required to take urgent measures for the protection of the crime scene, for the detection of the evidence to avoid the loss and deterioration of the evidence after acquiring knowledge that a crime has been committed or being currently committed and should immediately inform the Prosecutor about the arrested persons, and about the precautions taken. Having informed the prosecutor, the police shall carry out the necessary investigations for clarifying the case under the instruction of the prosecutor. In order to detect criminal evidence the police shall conduct necessary investigations and technical investigations at the scene, identify the evidence, seize and send them to the relevant places for investigation under the instruction of the prosecutor. If the crime scene inspection is conducted in a dwelling, in work premises or in non-public spaces, it must be conducted as a search. Therefore, counsel can participate in the crime scene inspection, since Art. 120 CCP provides that the attorney of the individual shall not be prevented from being present during the search. In Turkish law, judicial inspection at both investigation and trial stage is possible, where there is a need to learn, evaluate and asses the content of the evidence.79 Judicial inspection can be conducted upon a judicial decision. Exceptionally, at the investigation phase, in cases where there is peril in delay, it can be conducted by the public prosecutor. Counsel can participate in the judicial inspection and therefore must be notified in advance (Art. 84/1 and 3 CCP). Showing the crime scene as a method of re-enactment of a crime is regulated in Art. 85 CCP.80 Among Turkish criminal law scholars, this measure is seen as a type of judicial inspection.81 The public prosecutor can participate in this type of re-enactment of a crime scene with the suspect, provided that s/he has already given information about the crime in question. In relation to certain offences listed in Law no. 6526, such as production of and counterfeiting drugs (addictive or relieving) committed within the activity of an organisation, crimes committed through coercion and threat within the activity of the organisation founded for the purpose of providing unfair economic benefits and crimes committed against principally state security and constitutional order, the chief judicial police is entitled to conduct a crime scene visit. This provision is subject to criticism on the grounds that the listed crimes are so severe that the passive state of the prosecutor in their investigation is quite contradictory. Given the importance of testimony which may be delivered during this procedure, bestowing this power on the police clearly lacks any reasonable justification. Further, counsel can also be present, if it does not delay the investigation. Such a conditional recognition of the participation in the re-enactment of the crime is regarded as a potential source for potential misuse and arbitrary restriction of counsel’s involvement.82 In legal scholarship, this

79

Yenisey and Nuhoglu (2018), p. 609. Previously, in the old CCP, there was no provision for the showing of a crime scene, but in practice it was often used as an investigative tool. Demirbaş (2011), p. 187. 81 Yenisey and Nuhoglu (2018), p. 612; Özbek et al. (2016), p. 281. 82 Feyzioğlu (2006), p. 33; Yıldız (2007), pp. 160–163. 80

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procedure is deemed as taking a statement.83 Hence, according to this opinion, the participation of defence counsel is required. In numerous decisions, the Court of Cassation also supports this view.84 Identification is provided for explicitly in the Police Powers Act. According to Amendment 6 to the Police Powers Act in 2007, with the instruction of the prosecutor, the police may conduct an identification procedure to determine whether the arrested suspects are the perpetrators of the crime. The presence of defence counsel in this investigative tool is controversial, as there is no mention of it. Emphasising the provision enabling the suspect to benefit from advice of one or more defence counsel at any stage during investigation (Art. 149/I CCP) and also the right of defence counsel to consult with the suspect at any stage of the investigation, the legal doctrine is of the opinion that defence counsel cannot be prevented from being present in an identification procedure.85 Correspondingly, the suspect should be notified about her/his right to consult with her/his counsel. Again, for crimes punishable with imprisonment of at least five years, as outlined above, counsel is mandatory. Hence without defence counsel’s presence during the identification process, the procedure would be unlawful. A decision of the Court of Cassation in 2008 shed light on the issue.86 According to the Court of Cassation, the suspect participates in the identification procedure passively, and no testimony from him/her is taken during this procedure. The person who is actively involved in this process is the victim or witness. For this reason, there is no requirement that defence counsel be available to her/his client. If the abovementioned provision were extended to all investigative acts, defence counsel would also be required to be present in health control at the beginning and at the end of the detention. In sum, the Court of Cassation is of the opinion that due to the very nature of the identification procedure, counsel cannot be admitted to said procedure. Notwithstanding this opinion, the Court of Cassation also held that before and after the identification procedure, the suspect can consult with her/his lawyer, if s/he so wishes. It must be noted however that such interpretation for the identification procedure is not compatible with the ECtHR case law. In the Yunus Aktaş v. Turkey case the Strasbourg Court underlined the requirement of the notification of

83

Yıldız (2007), p. 154; Centel and Zafer (2018), pp. 335–336. Court of Cassation, 1 CD., 11.05.2005, 2004/4786 E., 2005/1232 K. I.a. the court takes the absence of the defence counsel during the showing of the crime scene into account in deciding whether there was a violation of Article 6 §§ 3 c) ECHR, Soykan v. Turkey, Appl. no. 47368/99, of 21 July 2009, para. 49–57. See also Savaş v. Turkey, Appl. no. 9762/03, of 8 December 2009, para. 67. 85 İnci (2009), pp. 105–106. See also (with different reasoning) Yenisey and Nuhoglu (2018), p. 201. 86 General Assembly of the Criminal Divisions, Court of Cassation CGK, 2008/6-71 E., 2008/85 K., 15.4.2008. Also, 13 CD, E. 2015/6673, 2015/8330, 4.5.2015, 13 CD., E. 2014/28376, K. 2015/ 14787, 21.05.2015. 84

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persons in question of their right to benefit from legal assistance before the identification parade.87 The only identification procedure, to which the defence counsel’s participation is deemed necessary in Turkish case law, is confrontation (Art. 52 CCP). Designed to eliminate contradictory/conflicting statements of witnesses or suspects, confrontation can only exceptionally take place in the investigation process. Such exceptions include cases in which delay is prejudicial or this procedure is required for identification of the suspect. At the investigation stage, where the confrontation is designed between the suspect and victim or witness and their statements are taken thereby, the Court of Cassation therefore ruled that this is no longer a mere identification procedure. The active involvement of the suspect would qualify this procedure as interrogation, and for this reason, the participation of the mandatory counsel is necessary.88 Although the Court of Cassation has not hitherto addressed this issue by referring to the mentioned cases, yet in effect parallel with the ECtHR case law, it held that the suspect and the accused must be informed of their right to legal assistance before a confrontation procedure takes place.89 This is, according to the Court, due to the fact that in the latter case, during this confrontation, the testimony of the suspect will be taken.

4.4

Searches of Lawyers’ Offices

In order to understand the difference between ordinary searches and those that are conducted in lawyers’ offices, a brief explanation of the search measure under Turkish law is necessary. Pursuant to the CCP, the search of a domicile, a place of business or other premises of the suspect or the accused requires a reasonable suspicion that both the suspect or the accused is guilty of a crime and subject to arrest and that a search of the premises, body or documents may lead to the discovery of the evidence (Art. 116 CCP). Other persons’ body, belongings or dwellings may also be searched, where “there are facts to conclude, that the person who is being searched or the evidence of the crime is located in those premises” (Art. 117 CCP). Art. 119 CCP includes search warrants. In accordance with the Constitution, a search warrant can principally only be issued by a judge (justice of peace). Nevertheless, where delay is deemed prejudicial, a public prosecutor must issue a written order. Finally, if the public prosecutor is not reachable, upon a written order of the security forces a search can be conducted. Nevertheless, in the following sentence, it is made clear that “a search in private dwellings, business premises as well as other premises closed to the public can only

87

Yunus Aktaş and others v. Turkey, Appl. no. 24744/03, of 20 October 2009, para. 52. General Assembly of the Criminal Divisions of the Court of Cassation CGK, 2008/6-7 E., 2008/ 84 K., 15/4/2008. 89 Savaş v. Turkey, Appl. no. 9762/03, of 8 December 2009, para. 67. 88

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be conducted upon the written order of the public prosecutor”. Under Turkish law, the search warrant shall include the reasons for the search, the person to be searched or the address of the dwelling or place to be searched, or the material that is to be searched, and the time limitation of the search warrant or order. In any case, if the public prosecutor is not present during the search of private dwellings, business premises or properties closed to the public, two members of the community council in that district, or two neighbours shall be called to be present. The search of lawyers’ offices is explicitly regulated. According to Art. 130 CCP “lawyers’ offices shall only be searched with a court decision” and in the presence of the public prosecutor. Also, the President of the bar or an attorney representing the lawyer shall be present at the time of search. Hence, regardless of the nature of the crime (whether or not it falls within the duty related offences) the search of lawyers’ offices is subject to the same conditions. On the same issue, the Attorneyship Law restricts the scope of search guarantees to the offences related to the legal profession. According to Art. 58 Attorneyship Law, in “investigations on attorneys induced by crimes arising in connection with their practice of attorneyship” the attorney’s office and residences may be searched only with a court warrant and in the presence of the prosecutor. The Attorneyship Law’s guarantees cover not only offices but also attorneys’ dwellings. Seizure provisions are provided in Art. 130.2 CCP. Where the lawyer or the Bar representative argued that the seized items are concerned with legal professional privilege, such items must be put in a separate envelope or packaged and be sealed by the present individuals. The documents must be examined at the investigation phase by a justice of peace and at the trial process by the court. Having examined the related items, if the judge or the court considers that such materials fall within the ambit of a legal professional privilege, the seized objects must be returned and the transcripts of these transactions must immediately be destroyed.

4.5

In-House Lawyer

Under Turkish law, little has been said on the extent to which legal professional privileges apply to in-house lawyers and to company directors, officers and employees.90 In the Turkish Attorneyship Law, provisions on search do not recognise such a distinction. Hence, it can be said that in Turkey, the office of in houselawyers shall be searched under the same procedural guarantees provided due to legal professional privilege. The Strasbourg Court rewards such procedural guarantees to company lawyers as well.91

90

Keskin-Kiziroğlu (2010). See e.g. Iliya Stefanov v. Bulgaria, Appl. no. 65755/01, of 22 May 2008; Andre and Another v. France, Appl. no. 18603/03, of 24 July 2008; Wiesser and Bicos Beteiligungen GmbH v. Austria., Appl. no. 74336/01, of 16 October 2007. 91

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349

Interception of Confidential Communications Between Lawyer and Client

In Turkish law, interception of communication is available only for offences listed in the related provision and if there is strong suspicion indicating that one of the catalogue crimes has been committed and if there is no other possibility to obtain evidence. Pursuant to Art. 135 CCP, the location, listening and recording of correspondence and evaluating the signals is possible under judicial decision, where delay is prejudicial with the written order of the prosecutor to be confirmed by a judge within 24 hours time. Hence in Turkish law, interception of telecommunication can be used only as a last resort, only when less intrusive mechanisms are proven or appear to be “ineffective”. It is not necessary that other measures have already been used in order to issue an interception order. In Turkish law, a wiretap order may not be issued to record communication between the suspect/accused and those who have a privilege not to testify against the defendant, such as family members (Art. 135 (2) CCP). If it is only discovered after the interception that such a privileged individual was involved in the recorded conversations, then the recording must immediately be destroyed. It goes without saying that lawyers, their clerks and assistants also fall within this category. Apart from this provision, the following provision covers the interception of communication of the lawyers with the suspect/accused: Art. 136 CCP prohibits the implantation of bugging devices in the office or domicile of the suspect/accused’s counsel with regard to the offence under investigation related to the suspect or the accused. Distinct from the regulation of Art. 135 CCP, here the prohibition is imposed not only on recording, but also on listening, detecting and evaluating the signal information. Oddly enough, this prohibition in Turkish law applies only to the lawyers’ office and dwelling. The mobile phone is not included in the provision. According to the majority of scholars, a teleological interpretation of the aforementioned provision is required to extend its protection to cover all means of telecommunications between the lawyer and her/his client.92 Since such a regulation is to protect professional secrecy and the right to defence, telecommunication through mobile phone is currently the most important tool of communication between the accused/suspect and counsel. E-mail messages would also fall within this category. For stored e-mail or phone messages, under Art. 134 CCP a judicial warrant upon motion of the public prosecutor is required. In Turkish law, search of computers, computer programs and computer records used by the suspect/accused as well as copying, analysis and textualization of those records is separately regulated from general rules on search and seizure. For digital data mining there should be strong suspicion that the crime has been committed and no other way to obtain evidence shall be possible. Such a

92

Sevük (2007), p. 119; Şen (2007), p. 121; Centel and Zafer (2018), p. 464.

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search warrant can only be given in relation to the suspect or accused. This order would have no effect for the defence counsel as a third party. Surveillance by technical means is regulated in Art. 140 CCP. It can be used only in cases where there is strong suspicion that one of the specifically listed offences (e.g. human trafficking, intentional homicide, drug trafficking, counterfeiting) in this provision has been committed and if there are no other means available for obtaining the evidence. The measure involves surveillance of activities of the suspect or the accused in public places, automobiles, or business premises by technical means, including voice and image recording. The surveillance does not extend to homes or to other private premises. Surveillance with technical means must be ordered by a judge, or in cases where delay is prejudicial by the public prosecutor with the condition of obtaining judicial approval within 24 hours. A technical surveillance order may last for up to four weeks. This period may be extended once, for another four weeks, but in relation to investigations concerning criminal organisations the judge may order further extensions of one week each. Different from interception of communication, there is no specific regulation on the issue of surveillance of counsel by technical means. This may largely be due to the fact that the rule clearly indicates that only the suspect/ accused’s business premises may be bugged. Hence, due to the clear wording of the provision, when defence counsel is neither suspected nor accused, it is not possible to implant a technical surveillance mechanism. The question here is, however, if the defence counsel and her/his client meet in the client’s office, whether or not the conversation between the two could be used against the suspect/accused. In this case, there should be an analogy in favour of the defendant with the provisions concerning wiretapping. Since the defence counsel has a privilege to refrain from testimony, recording a conversation between the two would be a breach of the right to fair trial. Hence, where it is understood after surveillance by technical means that defence counsel was involved in the recorded conversations, the recording must be immediately destroyed.

5 Exclusionary Rules and Nullities The Turkish Constitution provides a solid foundation for the exclusion of unlawfully obtained evidence. The amended version of Art. 38(7) Constitution prescribes that “findings obtained through illegal methods shall not be considered to be evidence”. Hence, any breach of the standards as established by law may result in the exclusion of the evidence, regardless of the gravity of the illegality in question. In the new CCP, the constitutional mandate for exclusion of illegally gathered evidence found clear implementation.93 The new CCP contains various measures which reveal the legislature’s intention to attach crucial importance to evidentiary prohibition rules.

93

Sözüer and Sevdiren (2013).

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Of these, Art. 206(2) CCP requires the suppression of any illegally obtained evidence. Art. 217 CCP provides that the offence charged may be proven only with lawfully obtained evidence. Hence, unlawfully obtained evidence could not be used as the basis for the judgment. Otherwise, it would be an absolute violation of the law (Art. 289/i CCP) and such decision shall be reversed. In general, the Court of Cassation has reversed judgments based on illegal interrogations even in cases where defective interrogations led to an acquittal.94 The court holds that the requirement of notification of the suspect or the accused of her/his rights prior to interrogation is a constitutive rule rather than a regulative rule and that any breach in this regard must automatically result in the suppression of evidence derived from such interrogations.95 The Court of Cassation, however, has been much less categorical, when it comes to excluding statements made or evidence gathered during the preliminary investigation following a failure to advise the suspect/accused of the right to counsel, holding that automatic exclusion would impede the administration of criminal justice.96 The court has rejected automatic exclusion, and asserted that evidence should only be suppressed in cases where a causal nexus can be established between the breach of the interrogation procedures and the judgment. As outlined above, Art. 148/3 CCP constitutes a very specific exclusionary rule. Under that provision, statements obtained by the police in the absence of defence counsel cannot be used as a basis for a conviction, unless the content of the statement is confirmed by the suspect or the accused before the court. If such a statement is used in evidence without such consent, that judgment must be overturned by the Court of Appeals or Cassation.97 The other category in this case would be the evidence gathered by breach of counsel’s legal privilege. As examined above, evidence gathered through methods such as interception of telecommunication, data mining and surveillance by technical means, which violate the safeguards geared towards legal privilege, must be excluded from the file. Such evidence cannot be the basis of the judgement, otherwise the judgement would be reversed.98 Likewise, judgments based on a breach of the prohibition of testifying against the client should also be reversed.

94

For the case law of the Court of Cassation see CGK, 1995/6-238, 1995/305 K., 24/10/1995, CGK 1995/6-163 E., 1996/66 K., 26.3.1996. 2 CD., 2009/35973 E., 2010/26044 K., 4CD; 2013/35037 E., 2014/4180 K., 11.2.2014, 22 CD 2015/1981 E., 2015/1649 K. 95 Court of Cassation 2 CD, 2003/4094, 2004/11538, 9/6/2004, 4 CD 2003/891 E., 2004/433 K., 21/1/2004. 96 Court of Cassation, 4 CD, 1994/7114 E., 1994/7264 K., 26/9/1994, 4 CD 1994/7351, 1994/7693 K., 4/10/1994. 97 General Assembly of the Criminal Divisions of the Court of Cassation CGK, 2007/7-147 E., 2010/159 K., 26/06/2007. 98 Previously, the Court was more cautious and did not favour automatic exclusion when a departure from the standards established by law occurred. See e.g. CGK; 2007/7-147 E., 2007/159 K., 26/6/ 2007. See Sözüer and Sevdiren (2013), but also in the recent decisions, CGK. 2011/8-278 E., 2012/ 96 K., 13/3/2012.

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Among the aforementioned investigative acts such as search—apart from the showing of a crime scene, confrontation, judicial inspection, crime scene inspection—the presence of the counsel is not stipulated as a requirement. Due to a rather loose wording regarding the counsel’s participation in such investigative procedures, the mere fact that the counsel is not present would not likely be regarded as a reversible error. Where, however, without due reason counsel was not notified about the investigative acts in question or her/his participation was prevented, this may well be seen as restriction of defence rights and accordingly a reason for overturning the decision. The Court of Cassation has already underlined this approach in relation to judicial inspection.99

6 Attorney-Client Communications at Trial Defence counsel may be present in all sessions of the main hearing (Art. 197 CCP). Yet, the communication of attorney and client is quite problematic.100 The main reason for this lies in the way in which the hearings and courtrooms are structured. First of all, it must be said that in Turkish courtrooms, the defence counsel is physically on a lower level than the prosecutor. Even more problematic is the fact that counsel stands far away from their clients and can hardly communicate confidentially with them. It is much harder, when the defendants are detained and surrounded by armed gendarmeries. Furthermore, this state of affairs has been exacerbated after a widespread application of videoconference methods (known as Sesli ve Görüntülü Bilişim Sistemi, SEGBİS).101 In fact, the Turkish Court of Cassation considered it a requirement when a statement is taken and the final statement is heard or evidence is discussed,102 the will of the accused to participate in the hearing must be taken into account. Yet, with a change through an Emergency Decree, it was stipulated that where the judge or court deems necessary, the statement can be taken by video conference method (Art. 196/4 CCP). The ECtHR does not consider the use of the video conference method as incompatible with the notion of fair trial, provided that effective and confidential communication with a lawyer is ensured.103 Nevertheless, as the ECtHR consistently emphasises the right

99

See e.g. in relation to judicial inspection, the decision of the Court of Cassation 8 CD 8.5.2007, 2007/2839 E., 2007-3924 K. On the topic of the restriction of defence rights in Turkish law, see Günay (2016). 100 For example Lemonde (2013), p. 116, notes that “In this respect an objective observer in Turkish courtroom is necessarily struck by the distance separating the accused from their lawyers, particularly when the defendants are detained and surrounded by numerous armed guards. This in no way allows proper communication between the Counsel and the client.” 101 For a general overview see Kolcu (2018), pp. 262–270. 102 Court of Cassation, 16 CD, 2015/6772 E., 2016/3312 K., 25.5.2016, 16 CD., 2017/1976 E., 2017/5323 K., 26.10.2017, 16 CD. 2017/144 E., 2017/3655 K., 30.3.2017. 103 See e.g. Marcello Viola v. Italy, Appl. no. 45106/04, of 5 October 2006.

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of the accused to communicate with her/his lawyer “without the risk of being overheard by a third party is one of the basic requirements of a fair trial in a democratic society”.104 As such, without a separate telephone line, it is not possible to conduct the hearing through videoconferencing. In the court proceedings, even if the accused is not present, the defence counsel may be present in all sessions of the main hearing (Art. 197 CCP) and can lodge an appeal on facts and law (istinaf) and law only (temyiz) (Art. 299 CCP). In cases requiring mandatory counsel, the participation of counsel in the hearing is necessary, unless counsel is absent with due cause. Hence, the proceedings can continue and a judgment can only be passed in the presence of counsel. A controversial addition to the law in this respect is made by an Emergency Decree.105 Accordingly, where counsel is absent without due cause and where s/he leaves the hearing, the trial shall be continued and concluded.

7 Criticism & Reform At the surface, one can gain the impression that Turkish law contains principles guaranteeing the role of defence counsel. Yet, practice demonstrates that such guarantees for the proper functioning of the legal profession are under constant threat.106 Defence lawyers in Turkey, in particular human rights defenders encounter problems with different facets. As touched upon above, while performing their professional duties, lawyers are quite often subject to interference and reprisals. They are often viewed as potential criminals.107 They frequently face improper identification with their clients and are exposed to criminal proceedings. As the

104 Castravet v. Moldova, Appl. no. 23393/05, of 13 March 2007, para. 49; Sakhnovskiy v. Russia, Appl. no. 21272/03, of 2 October 2010, para. 97. 105 Emergency Decree no. 676, 29/10/2016. 106 Special Rapporteur on the Independence of Judges and Lawyers, who visited Turkey from 10–14 October 2011 issued a report (GE.12-13403), available at http://www.ohchr.org/EN/ Issues/Judiciary/Pages/Visits/aspx. See pp. 16–17. See also Amnesty International, Turkey: Court’s Decision to Re-Detain Lawyers Adds Credence to Allegations that their Prosecution is Politically Motivated, 27 September 2018 EUR 44/9149/2018, and the report of Lawyers for Lawyers, the Law Society of England and Wales, Lawyers’ Rights Watch Canada and Fair Trial Watch Joint (Upr Submission-Turkey-June 2014) available at https://uprdoc.ohchr.org/uprweb/downloadfile.aspx? filename¼1375&file¼EnglishTranslation, for the Public Statement of the Amnesty International (27 September 2018 EUR 44/9149/2018), see https://www.amnesty.org/download/Documents/ EUR4491492018ENGLISH.pdf. More recently, see Human Rights Watch (2019). 107 In an early study, it is said by the Ministry of Justice officials that in relation to terror-related crimes and crimes against state the heightened fear is that a “lawyer, (. . .) who may meet with the detainee, might either assist in the destruction or suppression of evidence against the detainee or leak information to others outside the legal process who may be intent on committing terror crimes or acting against the state.” Lawyers Committee for Human Rights (1998), p. 2154; see Human Rights Watch (2019).

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ECtHR emphasises, the legal profession has a central role in the administration of justice and maintenance of the rule of law.108 Perhaps due to such a role, in times of emergency such as in Turkey, defence counsels are subjected to various methods of what is termed “intimidation, hindrance, harassment or improper interference” in the UN Basic Principles on the Role of Lawyers.109 As far as procedural rights are concerned, under Turkish law, the scope of effective defence is rather limited. Historically, the principle of equality of arms has hitherto been a mere ideal rather than a reality. This state of affairs has clearly been discernible as to access to the investigation file, consultation with clients, representation both at the investigation stage and trial phase and the ineffectiveness of legal remedies. Several aspects of the emergency law impaired the right to defence in many respects and undermined the role of defence counsel. Emergency decrees have bypassed many of the guarantees of a fair trial and have become even more permanent in law, in particular in relation to defence rights.

8 Conclusion Overall, the recent changes in legislation relating to the right to legal assistance, which were mainly implemented by emergency decrees, and then incorporated permanently into the Turkish CCP, have introduced serious impediments for providing an effective defence to those accused of criminal offenses. Under the current law, as summarised in some detail above, the attorney-client privilege is severely restricted. The “criteria” for the restrictions are formulated in such a vague way that they can be imposed without any reasonable cause that would satisfy an objective observer. In practice, the restrictions imposed on counsel and her/his client have become automatic procedures. On the other hand, the special nature of the judicial review mechanism renders review procedures largely ineffective. Consequently, the role of defence counsel has been significantly eroded and is no longer compatible with fair trial standards including the principle of equality of arms. Furthermore, the fact that defence lawyers have been under constant threat in various ways paints a gloomy picture for defence rights.

108

Elçi and Others v. Turkey, Appl. no. 23145/93 and 25091/94, of 13 November 2003, para. 669. This role was emphasised in Recommendation No. R(2000)21 of the Committee of Ministers to Member States on the freedom of exercise of the profession of lawyer (Adopted by the Committee of Ministers on 25 October 2000 at the 727th meeting of the Ministers’ Deputies.) 109 The UN Basic Principles on the role of lawyers address many of the problems that “(a) lawyers are able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference; (b) are able to travel and consult with their clients freely both within their own country and abroad; and (c) shall not suffer, or be threatened with, prosecution or administrative, economic or other sanctions for any action taken in accordance with recognised professional duties, standards and ethics.”

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Kalem Berk S (2011) “Access to Justice” in Turkey. TESEV, Istanbul Keskin-Kiziroğlu S (2010) Arama İşlemi Bakımından Şirket Avukatının Şirket İçindeki Çalışma Yeri Avukatın Bürosu Sayılabilir mi? (Festschrift for Prof. Dr. Köksal Bayraktar). Galatasaray Üniversitesi Hukuk Fakültesi Dergisi 1:237–260 Kocasakal Ü (2017) Suçu Bildirmeme Suçları (TCK 278, 279, 280). Vedat Kitapçılık, Istanbul Kolcu H (2018) Adil Yargılanma Hakkı Çerçevesinde Sanığın Duruşmada Bulunma Hakkı ve SEGBİS Sistemi’. İstanbul Barosu Dergisi 91:247–273 Lawyers Committee for Human Rights (1998) Justice on trial: state security courts, police, impunity, and the intimidation of human rights defenders in Turkey. Fordham Int Law J 22:2129–2269 Lemonde M (2013) Needs assessment report and recommendations of action for Turkish Criminal Justice System. https://rm.coe.int/16806f234c. Accessed 24 Aug 2019 Mahmutoğlu FS, Dursun S (2005) Yeni Ceza Muhakemesi Kanunu’nda Müdafiin Görevden Yasaklanması Hali ve Bunun Alman Hukukundaki Düzenlemesiyle Karşılaştırılması. Polis Dergisi 44:125–130 Mahmutoğlu FS, Talas S (2007) Avukatların Görev Suçları ve Yargılama Rejim, İstanbul Barosu Dergisi Ceza Hukuku Özel Sayısı, pp 13–41. http://fsmahmutoglu.av.tr/pdf/ 50c91966bff8f636711d98dd51ee944d3418ee197818090242.pdf. Accessed 24 Aug 2019 Mısır MH (2018) Avukatın Görev Suçları. TBB Yayınları, Ankara Office of the United Nations High Commissioner for Human Rights (2018) Report on the impact of the state of emergency on human rights in Turkey, including an update on the South East (January–December 2017). https://www.ohchr.org/Documents/Countries/TR/2018-03-19_Sec ond_OHCHR_Turkey_Report.pdf. Accessed 24 Aug 2019 Özbek VÖ, Doğan K, Bacaksız P, Tepe İ (2016) Ceza Muhakemesi Hukuku. Seçkin, Ankara Özenç B (2018) The impact of the European Convention on Human Rights on the legal order of Turkey: achievements and problems. Galatasaray Üniversitesi Hukuk Fakültesi Dergisi 15:129–155 Öztürk B et al (2018) Nazari ve Uygulamalı Ceza Muhakemesi Hukuku. Seçkin, Ankara Şen E (2007) İletişimin Denetlenmesi Tedbiri. Ceza Hukuku Dergisi 2:97–135 Sevdiren Ö (2016) Türkiye’nin Cezasızlık Mevzuatı. Hafıza Merkezi, İstanbul Sevük HY (2007) Postada El Koyma ve Telekomünikasyon Yoluyla Yapılan İletişimin Desteklenmesi. Türkiye Barolar Birliği Dergisi 69:97–124 Şirin T (2013) Türkiye’de Anayasa Şikayeti (Bireysel Başvuru). On İki Levha Yayıncılık, Istanbul Sözüer A, Sevdiren Ö (2013) Turkey: the move to categorical exclusion of illegally gathered evidence. In: Thaman SC (ed) Exclusionary rules in comparative law. Springer, Dordrecht, pp 287–308 Spronken T, Fermon J (2008) Protection of attorney-client privilege in Europe. Penn State Int Law Rev 27:439–463 Stoughton C (2009) A comparative analysis of the Turkish and American criminal legal aid systems. Ankara Law Rev 6:1–16 Sungurtekin Özkan M (1999) Avukatlık Mesleği, Avukatın Hak ve Yükümlülükleri. DAÜ Yayınları, İzmir Tanca A (1993) The public statement on Turkey by the European Committee for the prevention of torture. Eur J Int Law 4:115–118 Tanör B (1991) Türkiye’nin İnsan Hakları Sorunu, 2nd edn. BDS Yayınları, Istanbul TİHV (2016) İşkence Dosyası (Gözaltında ya da Cezaevinde Ölenler 12 Eylül 1980-12 Eylül 1995). TİHV Yayınları 5, Ankara Weigend T (2019) Defense rights in European legal systems under the influence of the European Court of Human Rights. In: Brown DK, Iontcheva Turner J, Weisser B (eds) The Oxford handbook of criminal process. Oxford University Press, New York (e-book) Weisser B (2018) Confidentiality of correspondence with counsel as a requirement of fair trial. In: Schmidt-Kesseli M (ed) German national reports on the 20th International Congress of Comparative Law. Mohr Siebeck, Tübingen, pp 563–588

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Yenisey F, Nuhoglu A (2018) Ceza Muhakemesi Hukuku. Seçkin, Ankara Yenisey F, Çalıcı C, Ziyalar N (2017) Access to legal aid in criminal matters: İstanbul sample. Int J Sci Res Publ 7:552–557 Yıldız AK (2007) Ceza Muhakemesi Hukukunda Keşif ve Yer Gösterme. İÜHFM 65:127–173 Zafer H (2004) Faile Yardım Suçu ve Müdafiin Bu Suçtan Sorumluluğu. Beta, Istanbul

Öznur Sevdiren is an assistant professor of criminal and criminal procedure law at Istanbul Bilgi University, Istanbul. She received her law degree from the University of Istanbul, her Masters degree from the University of Sheffield and PhD from the University of Cologne. She teaches criminal, criminal procedure and international criminal law at both graduate and postgraduate level. Her publications include Alternatives to Imprisonment in England and Wales, Germany and in Turkey (Springer, 2011).

Confidentiality of Correspondence with Counsel as a Requirement of a Fair Trial in the United Kingdom Richard Stone and Veronica Lynn

Abstract The aim of this contribution is to give the reader an understanding of the right to counsel, legal professional privilege, state intrusions into lawyer-client communications and exclusionary rules under U.K. law. After an introduction to the jurisdictions and professions of the U.K., it provides a preliminary overview of the right to counsel, aspects of which are further explored after an examination of legal professional privilege, the role of defence counsels and specific difficulties they may face in practice. Finally, the authors examine to what the extent law enforcement authorities are able to gain access to privileged information by means of searches, seizure or surveillance measures, especially with regards to the recently amended and heavily criticised regulation of surveillance. Keywords Access to lawyer · Admissibility of evidence · Attorney-client communications · Attorney-client privilege · Confidentiality · Covert surveillance · Criminal defence · Criminal procedure · Defence counsel · Defence lawyer · Duty solicitor scheme · Duty of confidentiality · Exclusionary rules · Fair trial · Legal aid · Legal advice privilege · Legal privilege · Legal professional privilege · Litigation privilege · Mandatory counsel · Nullities · Right to counsel · Rules of professional conduct · Search of lawyer’s offices · Seizure · Surveillance · Terrorism

Abbreviations BSB CD CE(NI) Order 1999

Bar Standards Board Core Duty The Criminal Evidence (Northern Ireland) Order 1999

R. Stone University of Lincoln, Lincoln, United Kingdom e-mail: [email protected] V. Lynn (*) University of Basel, Faculty of Law, Basel, Switzerland e-mail: [email protected] © Springer Nature Switzerland AG 2020 L. Bachmaier Winter et al. (eds.), The Right to Counsel and the Protection of Attorney-Client Privilege in Criminal Proceedings, Ius Comparatum – Global Studies in Comparative Law 44, https://doi.org/10.1007/978-3-030-43123-5_13

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CJPA 2001 CP(S) Act 1995 CSPI Code 2018 DSCC ECHR ECtHR EU GCHQ HM LSC MI5 MI6 NCA NI PACE 1984 PACE Code B 2013

PACE Code C 2019 PACE Code H 2019

POCA 2002 RIPA 2000 s. SCC 2017 sch. SRA TA 2000 U.K. YJCEA

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Criminal Justice and Police Act 2001 Criminal Procedure (Scotland) Act 1995 Covert Surveillance and Property Interference Code of Practice Defence Solicitor Call Centre European Convention on Human Rights European Court of Human Rights European Union Government Communications Headquarters Her Majesty’s Legal Services Commission Military Intelligence, Section 5 Military Intelligence, Section 6 National Crime Agency Northern Ireland Police and Criminal Evidence Act 1984 Revised Code of Practice for the Searching of Premises by Police Officers and the Seizure of Property found by Police Officers on Persons and Premises Revised Code of Practice for the Detention, Treatment and Questioning of Persons by Police Officers Revised Code of Practice in connection with Detention, Treatment and Questioning by Police Officers under the Terrorism Act 2000 Proceeds of Crime Act 2002 Regulation of Investigatory Powers Act 2000 Section(s) Standard Criminal Contract 2017 Schedule Solicitors’ Regulation Authority Terrorism Act 2000 United Kingdom Youth Justice and Criminal Evidence Act 1999

1 Introduction: A Note on Jurisdictions and Professions The U.K. is made up of three distinct jurisdictions—i.e. England and Wales, Scotland, and Northern Ireland. There are differences in criminal procedure between the three. The approach in this report is to focus primarily on the position in England and Wales, but to note significant differences in the other jurisdictions at the appropriate points.

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Courts in all parts of the U.K. are required to take account of the European Convention on Human Rights (ECHR) in applying the law.1 Convention rights cannot be used to overturn provisions of primary legislation (Acts of Parliament), but can be used to interpret them.2 Secondary legislation (Statutory Instruments) can be declared invalid if found to be incompatible with Convention rights. As a result, Art. 6 and 8 ECHR have a significant role in U.K. law relating to access to legal advice, and its confidentiality. The legal profession in all three jurisdictions is divided into solicitors and barristers. In criminal cases, solicitors will have first contact with the client, and will provide advice following arrest and during detention and questioning by the police. If the case proceeds to trial, and particularly if it is a jury trial, then a barrister is likely to be briefed by the solicitor,3 and will take over the case. In this report the term “lawyer” is used to cover both solicitors and barristers.

2 Preliminary Information About the Right to Counsel 2.1

Time Scope of the Right to Counsel

The right to legal advice first arises when a person is being questioned as a suspect or has been arrested. Strictly speaking, in England, Wales and Northern Ireland the statutory right to legal advice only applies once a person has been arrested and held in custody at a police station, by virtue of s. 58 of the Police and Criminal Evidence Act 1984 (PACE 1984).4 In the Scottish case of Ambrose v Harris5 the Supreme Court, reviewing the Strasbourg jurisprudence on Art. 6 ECHR, held that the right to legal advice should arise from the moment an individual was being questioned as a suspect (whether or not in custody), rather than simply a witness, and this ruling will have general application in the U.K. In Scotland it has been given statutory effect.6

1

Human Rights Act 1998, s. 2(1). Human Rights Act 1998, s. 3. 3 Though there is an increasing number of solicitor-advocates who have rights of audience at jury trials. 4 In Northern Ireland the equivalent provision to PACE 1984, s. 58 is Art. 59 of The Police and Criminal Evidence (Northern Ireland) Order 1989; Hungerford-Welch (2014), p. 15. For more information see Sect. 4. 5 Ambrose v Harris (Procurator Fiscal, Oban) [2011] UKSC 43, [2011] 1 WLR 2435; see also Zander (2018), para. 5-45. 6 See s. 15A (regarding suspects) of the Criminal Procedure (Scotland) Act 1995; s. 17 applies to those arrested and is the equivalent of s. 58 of PACE 1984. 2

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Appointment of Counsel and the Right to Counsel for Indigent Persons

The procedures for dealing with a detainee’s request for legal advice are set out in Note for Guidance 6B to PACE Code C 2019.7 These distinguish between the detainee who is in a position to pay for legal advice, and the detainee who relies on publicly funded advice. People who are entitled to legal advice and assistance in connection with criminal investigations8 are entitled to legal aid to pay for it without reference to their financial resources.9 The provision of legal aid is governed by the terms of the Legal Aid Agency’s Standard Criminal Contract (SCC) 2017.10 As regards a detainee who wishes to pay for legal advice, he should be given the opportunity to consult a specific solicitor or another solicitor from the same firm. Where these procedures fail to identify a solicitor able to give advice, or in any case where the detainee is seeking publicly funded advice, initial access to legal advice is to be by means of a phone call to a publicly funded Defence Solicitor Call Centre (DSCC) authorised by the Legal Services Commission (LSC).11 The DSCC will determine whether legal advice should be limited to telephone advice, or whether a solicitor should attend.12 Telephone advice will be appropriate if the detainee is being held in relation to a non-imprisonable offence. The fact that the police intend to interview or hold an identification parade will be relevant to the decision as to whether to attend, as will the ability of the detainee to communicate by telephone, the eligibility of the detainee to assistance from an appropriate adult, or allegations of serious mistreatment by the police.

7 The Codes of Practice to PACE 1984 originated from rules regarding the questioning of suspects for the guidance of the police. There are now eight Codes in effect which have become an essential and major part of the PACE system (Zander [2018], para. 6-01 f.): Code A for the Exercise by Police Officers of Statutory Powers of Stop and Search, Code B for the Searching of Premises by Police Officers and the Seizure of Property found by Police Officers on Persons and Premises, Code C for the Detention, Treatment and Questioning of Persons by Police Officers, Code D for the Identification of Persons by Police Officers, Code E on Audio Recording Interviews with Suspects, Code F on Visual Recording with Sound of Interviews with Suspects, Code G for the Statutory Power of Arrest by Police Officers, Code H for the Detention, Treatment and Questioning by Police Officers of Persons under s. 41 of, and sch. 8 to the Terrorism Act (TA) 2000. The codes are revised regularly and are available at https://www.gov.uk/guidance/police-and-criminal-evidence-act1984-pace-codes-of-practice. 8 This includes people who are arrested and held in custody by police, HM Revenue and Customs officers, volunteers, persons being interviewed in connection with a service offence, people detained under the TA 2000, sch. 7 (Cape (2017), para. 1.51). 9 Cape (2017), para 1.51. 10 Cape (2017), para. 1.51. 11 In detail, see Cape (2017), para. 1.53. 12 See also Zander (2018), para. 5-60 ff.

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The SCC 2017 regulates the police station Duty Solicitor Scheme and imposes the obligation to participate in the scheme on providers who have a contract with the Legal Aid Agency (rather than individual duty solicitors).13

2.3

Mandatory Counsel

There is no requirement to receive legal advice, and the person arrested or detained is entitled to refuse this. If the detained person is a juvenile or a vulnerable person, PACE Code C 2019 makes provision for them to be accompanied by an “appropriate adult”, who may ask for a solicitor to attend. The person detained cannot, however, be forced to see such a solicitor.14 At trial, in general there is no requirement for legal representation, and access to free legal representation depends on the seriousness of the case, and a means test. The defendant is normally entitled to present their case themselves. The only exception relates to cases involving sexual offences, where the defendant will not be allowed to cross-examine the alleged victim, and situations where a witness or victim is a child, and the offence is sexual or any of the offences listed (such as kidnapping, assault or injury).15 In such cases the defendant will be invited to appoint a lawyer to carry out the cross-examination. Failing that, the court may appoint a lawyer to fulfil that role.16

3 Legal Privilege 3.1

Significance, Legal Basis and Scope of the Legal Privilege

U.K. law distinguishes between the duty of confidentiality and legal professional privilege. The duty of confidentiality is an obligation governed by the codes of practice applying to each branch of the profession.17 There are at least seven such

13

Cape (2017), para. 1.49. See PACE Code C 2019, para. 6.5A. 15 Youth Justice and Criminal Evidence Act 1999 (YJCEA), s. 34–40. S. 35 sets out the precise details of the offences which are covered. The equivalent provisions in Northern Ireland are Art. 24–27 of The Criminal Evidence (Northern Ireland) (CE[NI]) Order 1999 (SI 1999/2789). In Scotland, similar procedures are contained in the Criminal Procedure (Scotland) (CP[S]) Act 1995, s. 288C–288G. 16 See s. 38 of the YJCEA 1999, Art. 26 of the CE(NI) Order 1999, and s. 288D of the CP (S) Act 1995. 17 Cape (2017), para 1.17. 14

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codes operating in the U.K.,18 but all of them adopt basically the same rules. The code of practice of the Bar of England and Wales will be used here as the example.19 Lawyers and their staff are under a professional duty to keep all of their (present and former) client’s affairs confidential.20 Without the client’s agreement no information that has been communicated to the lawyer by or on behalf of the client may be disclosed to anyone outside of the law firm.21 The duty of confidentiality can be overridden where disclosure is permitted or required by law.22 Legal professional privilege on the other hand used to be seen as no more than evidential rule,23 but is now also regarded as a substantive right of considerable importance in English law,24 and as Lord Hoffmann stated, it: (. . .)is a fundamental human right long established in the common law. It is a necessary corollary of the right of any person to obtain skilled advice about the law. Such advice cannot be effectively obtained unless the client is able to put all the facts before the adviser without fear that they may afterwards be disclosed and used to his prejudice.25

The law recognizes that certain communications between a lawyer and their client, or with a third party, should be protected from enforced disclosure.26 While the duty of confidentiality covers all confidential information regarding a client’s affair, legal professional privilege is more narrow and covers communications between a lawyer and their client which are made for the purpose of enabling the client to obtain or the lawyer to give legal advice.27 If a communication is privileged, neither the police nor a court can force either lawyer or client to disclose it.28 There are two distinct subcategories of legal professional privilege: legal advice privilege and litigation privilege.29 Legal advice privilege covers communications between a

18 I.e. in England and Wales, the codes produced by the Bar Standards Board (barristers), the Solicitors’ Regulation Authority (SRA) (solicitors), and the Chartered Institute of Legal Executives (legal executives), in Scotland the Faculty of Advocates (barristers) and the Law Society of Scotland (solicitors), and in Northern Ireland the Bar of Northern Ireland (barristers) and the Law Society of Northern Ireland (solicitors). 19 Bar Standards Board (BSB) Handbook, 4th edn., October 2019, available at https://www. barstandardsboard.org.uk/uploads/assets/de77ead9-9400-4c9d-bef91353ca9e5345/28a6e3bc-c6fd4610-be413a06fea5f8ff/second-edition-test31072019104713.pdf. 20 Cape (2017), para 1.17. 21 Cape (2017), para. 1.17. 22 Cape (2017), para. 1.17 f. 23 Cape (2017), para. 1.17; Thanki (2018), para. 1.06. 24 Thanki (2018), para. 1.06. 25 R (Morgan Grenfell & Co Ltd) v Special Commissioner of Income Tax [2003] 2 AC 185, para. 120; Thanki (2018), para. 1.05. 26 Cape (2017), para. 1.19. 27 Cape (2017), para. 1.19. 28 Cape (2017), para. 1.19. Legal professional privilege cannot be overridden by an order of the court (see Thanki (2018), fn. 10 referring to Comfort Hotels v Wembley Stadium [1988] 1 WLR 872; R (Kelly) v Warley Magistrates Court [2008] 1 WLR 2001). 29 Thanki (2018), para. 1.10; Pattenden and Sheehan (2016), 15.03.

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lawyer and their client for the purposes of giving or receiving legal advice in the context of litigation as well as non-litigation, meaning whether litigation is contemplated or in progress or not.30 Litigation privilege covers communications between the client or their lawyer and third parties31 for the purposes of litigation, and only if litigation is in progress or in contemplation.32 In English law, unlike EU law, legal professional privilege is extended to in-house lawyers with the reasoning that “lawyers do not cease to be regarded as professional legal advisers simply because they are employed by their clients, for example, in a company’s legal department”.33 A lawyer who breaches the client’s confidence in a situation where it is improper to do so would be potentially liable to civil action by the client, and disciplinary proceedings by their professional body. The information disclosed is, however, likely to be admissible at trial.34

3.2

Duties and Role of Defence Counsel

The proper role of the defence lawyer is not merely that of an observer or—as the Court of Appeal has sometimes implied35—that of a provider of legal information,36 but he is instead under a duty to act in good faith and do their best for every client.37 The lawyer has to treat the interests of their client as paramount, provided that this does not conflict with their professional conduct obligations or the public interest in the administration of justice.38 This means that a lawyer’s duty to obtain the best result for their client has to be exercised in the context of legal duties, e.g. criminal law, and professional duties, i.e. the professional rules and codes of conduct.39 A lawyer has a duty of confidentiality towards their client, but also owes a duty to the court.40 These duties are largely set out in the above mentioned codes of practice.

30

Thanki (2018), para. 1.10. Litigation privilege does not cover communications between lawyer and client, these are covered by legal advice privilege—a misperception persisted in by courts (see Thanki (2018), para. 1.11 and fn. 48). 32 Thanki (2018), para. 1.10. Regarding the distinction between the two see Waugh v British Railways Board [1980] AC 521 and Re L [1997] AC 16. 33 Pattenden and Sheehan (2016), para. 15.20. 34 See Sect. 6 for the exclusionary rules under U.K. law. 35 R v Alladice [1988] 87 Cr App R 380; [1988] Crim LR 608; R v Dunford [1990] 91 Cr App R 150; [1991] Crim LR 370. 36 Cape (2017), para. 1.4. 37 Cape (2017), para. 1.5; SRA Code of Conduct 2011, Principle 4. 38 Cape (2017), para. 1.5. 39 Ede and Edwards (2017), p. 5. 40 See also Ede and Edwards (2017), p. 6 f. 31

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The BSB code sets out a number of “core duties” of which the most relevant here are41: CD1: You must observe your duty to the court in the administration of justice. CD2: You must act in the best interests of each client. [. . .] CD6: You must keep the affairs of each client confidential.

The code also makes it clear that the overriding duty is CD1, and if other duties are in conflict with it, CD1 should prevail.42 This means that the barrister must never knowingly or recklessly mislead the court. As an example of how this potential conflict should be handled the code deals specifically with the situation where the client admits to having committed the offence with which they have been charged. The code states:43 1 you would not be entitled to disclose that information to the court without your client’s consent; and 2 you would not be misleading the court if, after your client had entered a plea of ‘not guilty’, you were to test in cross-examination the reliability of the evidence of the prosecution witnesses and then address the jury to the effect that the prosecution had not succeeded in making them sure of your client’s guilt.

On the other hand, the barrister must not present evidence inconsistent with the confession—e.g. evidence of an alibi, or that someone else committed the crime.44 It is a fundamental ethical rule that a lawyer must not, knowingly and actively, assist their client to mislead the police.45 Furthermore, lawyers must not compromise themselves in relation to their client: they have to remember that an act performed with intent to impede the apprehension or prosecution of a person who has committed “a relevant offence” is itself a serious criminal offence.46 For example, the lawyer has to be clear about the difference between identifying the weaknesses of a client’s version of events and helping them to concoct a story.47 While the former is entirely proper, the latter is most likely illegal.48 If the client is insisting that the defence is presented in a way that conflicts with the barrister’s duties as outlined above, then the barrister must withdraw from the case. There is no U.K. case law on the situation where the lawyer is given information by a client about a crime that has been completed—e.g. as to where a body or stolen 41

BSB Handbook, Part 2—B, The Core Duties. BSB Handbook, Guidance gC1. Regarding the SRA’s Code of Conduct see Ede and Edwards (2017), p. 7. 43 BSB Handbook, Guidance gC9 (emphasis in original). 44 BSB Handbook, Guidance gC10. 45 Cape (2017), para. 5.37. 46 Cape (2017), para. 1.11; Criminal Law Act 1967, s. 4. 47 Cape (2017), para. 1.11. 48 Cape (2017), para. 1.11. 42

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goods are located—but it seems that such information will be covered by legal privilege, so that the lawyer will have no duty to disclose it.49 Since the lawyer is under a professional duty to keep the affairs of the client confidential,50 he must not pass on information about the client to the police unless authorised to do so by the client.51 Anything the client says to their lawyer about a crime, including about physical evidence of it, may be privileged.52 The physical evidence itself however is not unless it was brought into existence after the crime for the purposes of the client’s defence.53 There is a similar lack of U.K. case law on how the lawyer should react when the client hands over physical evidence relating to an offence, but the lawyer who takes possession of physical evidence of a crime and fails to hand it over to the authorities runs the risk of being treated as an accessory to the offence.54

3.3

Special Rules Regarding the Right to Refuse to Testify

In general, a lawyer cannot be compelled to give evidence about matters which are covered by legal privilege. The main exception is the so-called “iniquity” exception, where the lawyer is involved in the criminal enterprise, or where the privilege is lost because the communication from the client was made with the intention of furthering a criminal purpose. S. 10 of PACE 1984 deals with this, and is discussed further in Sect. 5.2.2. There are some situations where a professional has a statutory obligation to disclose confidential information received from a client. The main examples are s. 330 of the Proceeds of Crime Act (POCA) 2002, which relates to money laundering, and s. 21A of the Terrorism Act (TA) 2000, which relates to financing of terrorism. There is a duty to report suspected relevant offences under the legislation to a nominated office within the professional’s organisation or the National Crime Agency (NCA). Both sections, however, specifically protect legally privileged information, unless the information was communicated or given to the lawyer “with a view to furthering a criminal purpose”.55

49

See Pattenden and Sheehan (2016), para. 9.55 and 15.37. SRA Code of Conduct 2011, chapter 4. 51 Cape (2017), para. 1.11. 52 Pattenden and Sheehan (2016), para. 15.37. 53 Pattenden and Sheehan (2016), para. 15.37, referring to R v R [1994] 4 All ER 260 (CA), discussed further in Sect. 5.2.2. 54 Pattenden and Sheehan (2016), para. 9.55 and 15.38. Evidence produced for the purposes of the defence will be privileged—see R v R [1994] 4 All ER 260.d. 55 POCA 2002, s. 330(11); TA 2000, s. 21A(9). 50

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4 The Pretrial Right to Counsel During the Preliminary Investigation While trial has traditionally been viewed as the most important part of the adversarial criminal justice system, after the leading ECtHR case of Salduz v. Turkey,56 more emphasis has been placed on the preliminary investigation stage, especially on what happens at the police station.57 Two Court of Appeal decisions underline the importance of a lawyer’s role:58 In R v Paris, Abdullahi and Miller the defendant, during most of the interviews, was accompanied by their solicitor who sat in on the interviews and—according to the Court of Appeal—“seemed to have done that and little else. It seemed that their presence might actually have rendered a disservice since the officers might have taken the view unless and until the solicitor intervened, they could not be criticised for going too far.”59 The case of R v Dunn60 also showed that an inactive lawyer can do their client a disservice as, in the view of the court, the presence of the lawyer was sufficient to protect the suspect’s interests.61 There has been some concern over the extent to which legal advisers properly protect their client’s interests in the police station.62 Research by Baldwin for the 1993 Royal Commission on Criminal Justice found that advisers were often passive, and tended to assist the police rather than their clients.63 Similar conclusions were drawn by McConville and Hodgson,64 who found that advisers were only intervening on behalf of the client in 20–22% of cases. A rather more positive view, however, was taken by Bridges and Choongh.65 They found that in 78% of the cases which they observed where an intervention by the adviser was called for, some intervention was made on behalf of the client. Nor did they observe the adviser acting as a “third interviewer” for the police, as Baldwin had done. As noted above,66 there is no statutory right to legal advice prior to arrest (other than in Scotland) but case law has indicated that Art. 6 ECHR requires that legal advice should be available whenever a person is questioned as a suspect. A failure to allow legal advice may render evidence of the questioning inadmissible.67 The exclusionary rules under U.K. law are dealt with in Sect. 6.

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Salduz v. Turkey, Appl. no. 36391/02, of 27 November 2008. Cape (2017), para. 1.1. 58 Cape (2017), para. 1.3. 59 R v Paris, Abdullahi and Miller [1993] 97 Cr App R 99; [1994] Crim LR 361. 60 R v Dunn [1990] 91 Cr App R 237; [1990] Crim LR 572. 61 Cape (2017), para. 1.3. 62 See also Zander (2018), para. 5-91. 63 Baldwin (1992). 64 McConville and Hodgson (1993). 65 Bridges and Choongh (1998). 66 See Sect. 2. 67 See also Emmerson et al. (2012), para. 5-38. 57

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The right to legal advice for all persons arrested and held in custody is a basic and statutory right guaranteed in s. 58 PACE 1984 and s. 6 of PACE Code C 2019.68 According to s. 58(1) of PACE 1984 a person arrested and held in custody in a police station or other premises is entitled, if he so requests, to consult a solicitor privately at any time. A person who is arrested (and the police have power to arrest any person whom they have reasonable suspicion has committed any offence) should be cautioned to the effect that they do not have to say anything, but that if they fail to state something which they later rely on in evidence it could harm their defence. Anything they do say may be used as evidence.69 Once arrested, a person should normally be taken to a police station, where the decision will be taken to detain,70 charge or release (with or without bail). They must be told of their rights at this stage, including the right to legal advice.71 The right applies to anyone held in police custody following arrest.72

4.1

Conditions for Counsel Meeting with Detained Clients

PACE 1984 gives the right to any detainee to consult “a solicitor privately at any time”.73 The statutory provisions are supplemented by the Codes of Practice.74 The police are expected to comply with these, but failure to do so does not automatically render evidence inadmissible or render the officer concerned liable to civil or criminal action.75 PACE Code C 2019 deals with procedures for detention, treatment and questioning of persons by police officers. Under this code, unless the police have decided to exercise their right to delay access (as discussed in the next paragraph), a person detained by the police must be informed on arrival at the police station of the right of access to legal advice, and be given a written statement referring to it.76 The above mentioned studies found that the length of the first consultation lasted from 10 min up to over an hour.77

68

Zander (2018), para 5-38; Cape (2017), para. 1.7 and 2.121. Hungerford-Welch (2014), p. 8. 70 This decision will be taken by a custody officer, generally holding the rank of sergeant. 71 PACE Code C 2019, para. 6. 72 PACE 1984, s. 58; Art. 59 of The Police and Criminal Evidence (Northern Ireland) Order 1989; CP(S) Act 1995, s. 15A and 17. 73 PACE 1984, s. 58(1). 74 See PACE 1984, s. 66. 75 PACE 1984, s. 67(10). 76 PACE Code C 2019, para. 6.1; Zander (2018), para. 5-38. 77 Zander (2018), para. 5-92, with references to Bucke and Brown (1997), p. 27 f. and McConville and Hodgson (1993). 69

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The power to delay access to legal advice (other than for those detained under terrorism legislation)78 is also set forth in s. 58 of PACE 1984, and applies to any indictable offence (that is, any offence which is not triable only summarily by magistrates or a single judge, as opposed to jury trial in a crown court).79 The maximum period of delay is 36 h.80 It may only be authorised by an officer of at least the rank of superintendent.81 The conditions for exercise of the right are that the authorising officer has reasonable grounds for believing that its exercise (a) will lead to interference with or harm to evidence connected with an indictable offence or interference with or physical injury to other persons; or (b) will lead to the alerting of other persons suspected of having committed such an offence but not yet arrested for it; or (c) will hinder the recovery of any property obtained as a result of such an offence.82 The power also exists where the officer has similar grounds for believing that (a) the person detained for the indictable offence has benefited83 from their criminal conduct, and (b) the recovery of the value of the property constituting the benefit will be hindered by the exercise of the right.84 It would appear at first sight that the police objection on one of the above grounds could be a general one; the Court of Appeal in R v Samuel,85 however, held that the reasonable belief must be related to the particular adviser that the detainee wishes to consult.86 This is now spelt out by para. 3 of Annex B to PACE Code C 2019, which states that authority to delay a detainee’s right to consult privately with a solicitor may be given only if the authorising officer has reasonable grounds to believe the solicitor the detainee wants to consult will, inadvertently or otherwise, pass on a message from the detainee or act in some other way which will have any of the consequences which, if reasonably suspected justify delaying access. In these circumstances, the detainee must be allowed to choose another solicitor. This is further reinforced by Note of Guidance B3 to PACE Code C 2019, which states that a decision to delay access to a specific solicitor is likely to be a rare occurrence and only when it can be shown that the suspect is capable of misleading that particular solicitor and there is more than a substantial risk that the suspect will succeed in causing information to be conveyed which will lead to one or more of the specified consequences. Para. 4 of Annex B to PACE Code C 2019 specifies that access to a solicitor may not be denied on the grounds that the solicitor might advise the detainee not to

78

See Sect. 4.2. These provisions do not apply in Scotland. There is a more limited right of delay under s. 15A (7) of the CP(S) Act 1995. 80 PACE 1984, s. 58(5). 81 PACE 1984, s. 58(6). 82 PACE 1984, s. 58(8). 83 As defined by Part 2 of POCA 2002. 84 PACE 1984, s. 58(8A). 85 R v Samuel [1988] 1 QB 615, [1988] 2 All ER 135, [1988] 2 WLR 920. 86 See also Hungerford-Welch (2014), p. 15; Cape (2017), para. 2.147. 79

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answer any questions. Incriminating statements, made in the absence of a legal adviser, have frequently been excluded by the courts as “unfair evidence” under s. 78 of PACE 1984.87 In practice, these powers to delay access to legal advice are very rarely used.88 However, less than half of all detainees actually seek legal advice, and only just over a third receive it.89 The difference between the two figures does not result from any formal refusal of access under s. 58 of PACE 1984, but from other difficulties, such as the availability of the solicitor requested or other delays, or from the detainee having had a change of mind about needing advice. Concerns about likely delays may lead some to feel that the quickest way out of the police station is to decline the opportunity of receiving legal advice.90 There is also some evidence that the police sometimes “play” on these types of feeling in a way which discourages a request for advice, or encourages a request to be withdrawn.91 When advice is given in person, and a solicitor arrives at the police station, there is no obligation on the police to provide the solicitor with any information but the detainee must be told of the solicitor’s arrival, even if he is being interviewed at the time.92 The detainee should be asked if he wishes to see the solicitor. This must be done even if the suspect has previously declined legal advice or, having requested it, subsequently agreed to be interviewed without receiving legal advice.93 Generally, as mentioned above, the right of the accused is to consult privately with their legal adviser.94 According to Note for Guidance 6J to PACE Code C 2019 the right to consult or communicate in private is fundamental95 and explains that, “if the requirement for privacy is compromised because what is said or written by the detainee or solicitor for the purpose of giving and receiving legal advice is overheard, listened to, or read by others without the informed consent of the detainee, the right will effectively have been denied”. However, the term “privately” is not defined.96 Furthermore, the regular use of telephone advice, as is now encouraged, increases the risk that the confidentiality of the discussions between solicitor and client will be compromised because of the physical arrangements in many police stations.97 In R (La Rose) v Commissioner of the Metropolis,98 the court found that

87

See below, Sect. 6. Zander (2018), para. 5-89; see Brown (1989); Brown et al. (1992), p. 69; Bucke and Brown (1997), p. viii. 89 The proportion of suspects asking for a solicitor has risen steadily (see Zander (2018), para. 5-86). 90 See also Zander (2018), para. 5-87. 91 See Sanders et al. (2010), pp. 235–239. 92 PACE Code C 2019, para. 6.15. 93 PACE Code C 2019, para. 6.15. 94 Zander (2018), para. 5-54. 95 Cape (2017), para. 2.136. 96 Cape (2017), para. 2.136. 97 Zander (2018), para. 5-54. 98 R (La Rose) v Commissioner of the Metropolis [2001] EWHC 553 (Admin). 88

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there was no breach of the applicant’s rights in the fact that he had had to use a telephone that was on the custody sergeant’s desk. Other police officers were in the custody suite at the time. The applicant had taken the phone as far from the desk as its cord would permit, and had, on their solicitor’s advice, given only “yes” and “no” answers to her questions. The court noted that there was no suggestion that anyone had attempted to eavesdrop on the conversation. It seems likely, however, that the applicant was inhibited in the advice that he could receive by the situation in which it was given, and there was clearly a strong risk, if not the actuality, of solicitor/client confidentiality being prejudiced.

4.2

Access to Legal Advice Under the Terrorism Provisions

The right of access to legal advice for those detained under TA 2000 or other terrorism legislation, is set out in para. 7 of sch. 8 to TA 2000, rather than s. 58 of PACE 1984. The grounds for delaying access to legal advice under TA 2000 are set out in sch. 8 as well. These must be based on a reasonable belief that one of the following consequences will follow from the exercise of the right:99 (a) interference with or harm to evidence of a serious offence, (b) interference with or physical injury to any person, (c) the alerting of persons who are suspected of having committed a serious offence but who have not been arrested for it, (d) the hindering of the recovery of property obtained as a result of a serious offence or in respect of which a forfeiture order could be made under s. 23, (e) interference with the gathering of information about the commission, preparation, or instigation of acts of terrorism, (f) the alerting of a person and thereby making it more difficult to prevent an act of terrorism, and (g) the alerting of a person and thereby making it more difficult to secure a person’s apprehension, prosecution, or conviction in connection with the commission, preparation, or instigation of an act of terrorism. “Serious offence” here means an indictable offence. These are broader consequences than those relating to people held for ordinary criminal offences. The decision to delay must be taken by an officer of at least the rank of superintendent, but it will be difficult to challenge an officer’s stated belief that there were reasonable grounds to fear one of these consequences. The prohibition on authorising delay on the basis that the legal advice will be to refuse to answer questions applies equally to those held under the terrorism provisions.100 The maximum period for delay is extended from 36 h to 48 h in relation to people held under the terrorism provisions.101

99

TA 2000, sch. 8, para. 8(4). PACE Code H 2019, Annex B, para. 4. 101 TA 2000, sch. 8, para. 8(2); see also Zander (2018), para. 5-68. 100

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Finally, whilst the right to legal advice under para. 7 of sch. 8 to TA 2000 is specifically stated to be a right to consult “privately”, para. 9 of sch. 8 to TA 2000 provides an exception to this. An officer of at least the rank of commander or assistant chief constable102 may in certain circumstances give a direction that the detainee may only consult a solicitor in the sight and hearing of a uniformed officer of at least the rank of inspector. This officer should not, in the opinion of the authorising officer, have any connection with the case. The circumstances which will justify such a direction are that the authorising officer has reasonable grounds to believe that without this supervision one of the consequences justifying denial of access to legal advice for someone held under the terrorism provisions will follow.103 In other words, this allows for access to legal advice to be allowed under supervision, in circumstances which would otherwise justify refusal of access altogether. The power to defer access to legal advice has been used more frequently in terrorism cases than in relation to ordinary criminal offences. Nevertheless, the government stated in 1998 that it was not aware of any formal denial of access in terrorism cases in the past 2 years in the U.K.104 The reason for what may well be a decline in the use of the power is likely to be attributable largely to the views expressed by the ECtHR in a number of Northern Ireland terrorism cases, such as John Murray v. United Kingdom,105 Averill v. United Kingdom,106 and Magee v. United Kingdom.107 In all these cases the delay in access to legal advice was held to breach Art. 6 ECHR,108 and the fact that at trial adverse inferences could be drawn from silence under questioning was a relevant factor. The response of the U.K. government to the Murray decision was to introduce an amendment to the “adverse inference” provisions so as to prevent an inference from silence being drawn unless the accused has had an opportunity to consult a solicitor before being questioned.109 In certain circumstances a person who has not been denied access to legal advice under any of the above provisions may nevertheless be interviewed without their lawyer being present if it is deemed necessary for “safety” reasons. These are set out

102

In Northern Ireland of at least the rank of assistant chief constable. TA 2000, sch. 8, para. 9. 104 Legislation Against Terrorism, A Consultation Paper, Home Office, 1998, para. 8.31, available at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/ file/265689/4178.pdf. 105 John Murray v. United Kingdom, Appl. no. 18731/91, of 8 February 1996. 106 Averill v. United Kingdom, Appl. no. 36408/97, of 6 June 2000. 107 Magee v. United Kingdom, Appl. nos. 26289/12, 29062/12 and 29892/12, of 12 May 2015. 108 Note, on the other hand, that in Brennan v. United Kingdom, Appl. no. 39846/98, of 16 October 2011, the delay in access to legal advice was held not to breach Art. 6 ECHR. See also Zander (2018), para. 5-71. 109 See Criminal Justice and Public Order Act 1994, s. 34(2A). 103

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in para 6.6 of PACE Code C 2019,110 which states that this procedure may be adopted where an officer of superintendent rank or above has reasonable grounds for believing that: 1. the consequent delay might: (a) (b) (c) (d)

lead to interference with, or harm to, evidence connected with an offence; lead to interference with, or physical harm to, other people; lead to serious loss of, or damage to, property; lead to alerting other people suspected of having committed an offence but not yet arrested for it; (e) hinder the recovery of property obtained in consequence of the commission of an offence.

2. when a solicitor, including a duty solicitor, has been contacted and has agreed to attend, awaiting their arrival would cause unreasonable delay to the process of investigation. In either of the above two cases, no adverse inferences may be drawn at trial from the accused’s failure to mention during questioning something relied on in their defence at trial.

5 State Intrusion into the Confidentiality of Lawyer-Client Communications 5.1

Lawyer as Witness

As indicated in Sect. 3 above, in general, a lawyer cannot be compelled to give evidence about matters which are covered by legal privilege. The main exception is the so-called “iniquity” exception, where the lawyer is involved in the criminal enterprise, or where the privilege is lost because the communication from the client was made with the intention of furthering a criminal purpose.

5.2

Search of Lawyer’s Offices

PACE 1984 significantly extended the police’s powers to obtain evidence by means of a search warrant.111 This raised concern in certain quarters that the power might

110

Similar provision is made for those detained under the terrorism provisions by PACE Code H 2019, para. 6.7. These Codes do not apply to those detained in Scotland. 111 See in particular the power under s. 8 of PACE 1984 to obtain a warrant to search for evidence of any indictable offence.

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be used to search for confidential material, including that held by solicitors. This concern was met by creating three statutorily defined categories of protected material. In relation to this material, the police would not be able to obtain an ordinary warrant, under PACE 1984 or any other statute, but would have to go through a special procedure laid down in PACE 1984, which, if successful, would result in a court order for production of the material to the police. In some circumstances, however, these procedures can lead to a search warrant.

5.2.1

Protected Material

The three categories of protected material recognized in PACE 1984 are legally privileged material, excluded material, and special procedure material. Access to items which are subject to legal privilege cannot be obtained at all. Excluded and special procedure material cannot be obtained by means of an ordinary search warrant.

5.2.2

Legal Privilege

The definition of “items subject to legal privilege” is contained in s. 10 of PACE 1984. The category is intended to protect the confidentiality of communications between client and legal adviser. “Legal adviser” means a professionally qualified lawyer—the courts have refused to extend the concept to other professions.112 The definition in s. 10 of PACE 1984 is primarily concerned with “communications”. This word is undefined, but will cover letters, recorded telephone calls or conversations, and electronic messages. Two categories of communication are covered. First, there are those which are made between a professional legal adviser and their client or any person representing their client, in connection with the giving of legal advice.113 The advice does not have to relate to any proposed legal proceedings. Second, there are communications made in connection with or in contemplation of legal proceedings and for the purposes of such proceedings.114 In relation to this category, the range of people who may be involved is wider. As well as communications between a professional legal adviser and their client or their client’s representative, those between such an adviser or their client, representative and any other person are covered. Communication between the legal adviser and a prospective witness would, for example, come within this definition. A third category covers items which are not in themselves communications, but are enclosed with or referred to in such communications. The items must have been

112 See, e.g. R (Prudential plc) v Special Commissioner of Income Tax [2013] UKSC 1—accountant giving legal advice. The issue is not directly dealt with in the Codes of Practice. 113 PACE 1984, s. 10(1A). 114 PACE 1984, s. 10(1B).

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made in connection with the giving of legal advice, or in connection with or in contemplation of legal proceedings and for the purposes of such proceedings. An example of non-documentary material falling within this category occurred in R v R.115 The defendant had provided a blood sample to their doctor, and their solicitors had arranged for scientific analysis of this. The scientist who carried out this analysis was subsequently called as a witness for the prosecution, and her evidence was admitted. The Court of Appeal held that the blood sample, which had been given for the purpose of the defendant’s defence, fell within s. 10(1) of PACE 1984, and was therefore subject to legal privilege. The scientist’s evidence should not have been admitted. The case law on s. 10 of PACE 1984 has generally been restrictive of its scope. Straightforward records of transactions, such as conveyancing documents, do not fall within s. 10 of PACE 1984.116 The communications or items must relate to the giving of advice, or to legal proceedings. In R v Manchester Crown Court, ex p Rogers,117 the court held that legal privilege does not extend to records of time on an attendance note, on a time sheet or fee record (since they were not “communications”), nor to a record of an appointment made since, although this was a “communication”, it was not, “without more to be regarded as made in connection with legal advice”.118 This approach is in line with the policy reasons for the privilege outlined. A person cannot therefore keep material out of the hands of the police by the simple expedient of giving it to a solicitor for safe-keeping. The material may attract some protection as being within the “excluded” or “special procedure” categories which will be discussed, but it will not receive the much stronger protection of legal privilege. A broader restriction of the scope of the privilege derives from the decision of the House of Lords in Francis and Francis v Central Criminal Court.119 The focus here was on s. 10(2) of PACE 1984 which removes the privilege from items “held with the intention of furthering a criminal purpose”. The police were seeking correspondence and attendance notes held by a firm of solicitors relating to property transactions undertaken by one of their clients. The suspicion was that, although the client was probably innocent of any impropriety, the money for these transactions derived from drug-trafficking activities on the part of one of the client’s relatives. The question was whether the relative’s criminal purpose could remove the privilege from the documents, which were in the possession of the solicitors. The majority in the House of Lords followed the common law decision in R v Cox and Railton120 which denied the protection of legal privilege where communications were intended to further the client’s criminal purpose, even where the communications were in the

115

R v R [1994] 4 All ER 260. R v Crown Court at Inner London Sessions, ex p Baines and Baines [1987] 3 All ER 1025. 117 R v Manchester Crown Court, ex p Rogers [1999] 1 WLR 832. 118 Ibid, p. 839. 119 Francis and Francis v Central Criminal Court [1988] 3 All ER 775. 120 R v Cox and Railton [1884] 14 QBD 153; see also Gale et al. (2002), p. 109 f. 116

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possession of the innocent solicitor. On this basis, the fact that a third party had an intention to further a criminal purpose was sufficient to remove the privilege. The privilege will, however, still apply to communications by a client to a solicitor which, unknown to the solicitor, contained false statements, and which might lead to the offence of perjury being committed in legal proceedings.121

5.2.3

Excluded Material

This is the second most highly protected type of material. Its protected status arises from the fact that it is held in confidence, and that it consists either of personal records, human tissue or tissue fluid, or journalistic material. It is defined in s. 11 of PACE 1984. The first type of excluded material consists of personal records. They must have been acquired or created in the course of a person’s work, or for the purposes of a paid or unpaid office, and they must be held in confidence. Some records held by a lawyer could fall into this category. The other two categories of excluded material (human tissue or tissue fluid, and journalistic material) are unlikely to be held by lawyers, and are not discussed further in this report.122

5.2.4

Special Procedure Material

This is the material with the lowest level of protection. It is defined in s. 14 of PACE 1984 and includes all items which are not legally privileged or excluded material, but have been acquired or created in the course of a person’s work, or for the purposes of a paid or unpaid office, and are held in confidence. Examples of material which has been held to come into this category include conveyancing documents in the possession of a solicitor.123 Indeed, much material held by a lawyer in relation to a client will, if not legally privileged, constitute special procedure material.

5.2.5

Orders for Production

As has already been noted, material which is legally privileged is beyond the reach of the police. Excluded material or special procedure material consisting of documents or records cannot be obtained by means of an ordinary search warrant (s. 9(2) of PACE 1984), but may be accessible by means of a production order, or in extreme

121

See also R v Crown Court at Snaresbrook, ex p DPP [1988] 1 All ER 315. For full discussion see Costigan and Stone (2017), chapters 6, 6.7. 123 R v Crown Court at Inner London Sessions, ex p Baines and Baines [1987] 3 All ER 1025. 122

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cases a search warrant, issued by a circuit judge. This procedure for access was introduced by PACE 1984, but has subsequently been applied in other contexts.

5.2.6

PACE 1984 Procedure for Access to Protected Material

The procedure for access to excluded or special procedure material under PACE 1984 is set out in sch. 1 to the Act. The police must make an application to a circuit judge. Notice of the application must be given to the person in possession of the material sought. It need not be given to anyone else, such as, for example, the person under investigation.124 The notice should set out the general nature of the offences under investigation, and the address of the premises where the material is alleged to be. It should also give sufficient information identifying the material to enable the person on whom the notice is served not to “conceal, destroy, alter or dispose” of it without the permission of either a judge or the police.125 Once the notice has been given under PACE 1984, there will then be a “with notice” hearing, at which the police will try to convince the judge that one of two sets of “access conditions” is met. The first set of access conditions applies only to special procedure material, and is not available in relation to excluded material. There must be reasonable grounds for believing that an indictable offence has been committed, that special procedure material comprising relevant evidence is on the premises, and that it is likely to be of substantial value to the investigation. The judge must also be satisfied that other methods of obtaining the material, for example a straightforward request for access, have been tried without success, or have not been tried because it appeared that they were bound to fail. Finally, the judge must be satisfied that production of or access to the material would be in the public interest, having regard to the likely benefit to the police’s investigation, and the circumstances under which the material is held.126 The second set of access conditions allows an order to be made in relation to either special procedure or excluded material. The conditions are satisfied if there are reasonable grounds to believe that the relevant material is on the premises specified, and that, but for s. 9(2) of PACE 1984, it would have been appropriate for a search warrant to have been issued. The offence being investigated does not have to be an indictable one, the material sought does not need to be relevant evidence, and there is no question of the public interest to consider. A circuit judge who is satisfied that one or the other set of access conditions is fulfilled, may make an order directing the person who appears to be in possession of

124

R v Crown Court at Leicester, ex p DPP [1987] 3 All ER 654. PACE 1984, sch. 1, para. 11; R v Central Criminal Court, ex p Adegbesan [1986] 3 All ER 113. 126 The question of “public interest” has been discussed in a number of cases. The current approach is to be found in R v Central Criminal Court, ex p Bright [2001] 2 All ER 244. It will include the need to take account of the provisions of the ECHR: see R (British Sky Broadcasting Ltd) v Chelmsford Crown Court [2012] EWHC 1295; [2012] Cr App R 33. 125

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the material to produce it to the police, or give access to it.127 Failure to comply will be treated as a contempt of court, thus enabling the person who refuses to be fined or imprisoned.128 As a last resort, sch. 1 of PACE 1984 provides that in certain circumstances a search warrant may be issued in relation to excluded or special procedure material.129 Before issuing a warrant the judge must first be satisfied that one of the sets of access conditions applies. In addition, the judge must be satisfied that one of a number of further conditions has been met. The first is that it is impracticable to communicate with the person entitled to grant entry to the premises, or the person entitled to grant access to the material. It was held in R v Crown Court at Leeds, ex p Switalski that the fact that a solicitors’ firm is itself under criminal investigation may mean that such communication is “impracticable” and may justify the use of a warrant.130 It was emphasized in R v Southampton Crown Court, ex p J and P, however, that it will be unusual for a warrant to be issued against a firm of solicitors.131 In this case the Divisional Court quashed the warrant on the basis, inter alia, that the need for a “without notice” application had not been made out. The second condition which may justify the issue of a warrant arises where the material sought is subject to a statutory restriction on disclosure, and is likely to be disclosed in breach of this if the warrant is not issued. The third condition is where service of notice of an application for an order might seriously prejudice the investigation. This would be the case where there was reason to believe that the person in possession of the material would destroy or dispose of it, or that the person would alert others involved in a criminal operation. Finally, where the second set of access conditions is satisfied, and an order to produce has not been complied with, a warrant may be issued. PACE Code B 2013 contains some special provisions which apply to searches under a warrant issued under sch. 1 of PACE 1984. An officer of at least the rank of inspector should take charge of the search, which should be carried out “with discretion and in such a manner as to cause the least possible disruption to any business or other activities carried out on the premises”.132 Before searching the premises the inspector should ask for the material in question to be produced. He might also ask for indices to files on the premises to be produced, and seek to inspect any files which an index seems to show might contain any of the material sought. Only if these procedures are refused, or ineffective, or for some other reason the inspector thinks that a physical search of the premises is necessary, should one be carried out.133

127

PACE 1984, sch. 1, para. 4. PACE 1984, sch. 1, para. 15. 129 PACE 1984, sch. 1, para. 12. 130 R v Crown Court at Leeds, ex p Switalski [1991] Crim LR 559. 131 R v Southampton Crown Court, ex p J and P [1993] Crim LR 962. 132 PACE Code B 2013, para. 6.14. 133 PACE Code B 2013, para. 6.15. 128

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Although it is not required by either the statute or the Code of Practice, it is good practice where there is a risk that the execution of a warrant may involve looking at material potentially covered by legal privilege for independent counsel to be appointed to examine any such material.134 This should be made clear in the application for the warrant. The independent counsel should review the material on the premises, unless the powers to “seize and sift” under s. 50 of the Criminal Justice and Police Act (CJPA) 2001 (discussed below) are specifically being used.135

5.3

Access to Lawyer’s Files Under Terrorism Legislation

Similar powers to those under PACE 1984, i.e. involving production orders and warrants applying to excluded and special procedure (but not legally privileged) material, are available in relation to “terrorism investigations” under TA 2000, sch. 5.136 In this case the application for a production order will be without notice, rather than the “with-notice” procedure under PACE 1984, presumably because of the nature of the investigation, and the risk of material being destroyed.137 Before making an order, the judge must be satisfied that a terrorism investigation is being carried out, that there are reasonable grounds for believing that the material sought is likely to be of substantial value to the investigation, and that it is in the public interest (on the same basis as under the first set of access conditions under PACE 1984) that access should be granted.138 Otherwise the procedure is very similar to that under PACE 1984. The search warrant powers are subject to the provisions in para. 6.14–6.15 of PACE Code B 2013 as to the conduct of any search.

5.4

Powers to “Seize and Sift”

When in the course of a search the police come across a large quantity of documentary material some of which is likely to be relevant to the investigation it may well be

134

See, for example, R(S) v Chief Constable of the British Transport Police [2013] EWHC 2189 (Admin), [2014] 1 WLR 1647 and R(F) v Blackfriars Crown Court [2014] EWHC 1541 (Admin). In the former case, a member of the SRA was also supposed to be present but could not attend at the relevant time. 135 R(S) v Chief Constable of the British Transport Police [2013] EWHC 2189 (Admin), [2014] 1 WLR 1647. 136 Such powers are also contained in POCA 2002, and the Extradition Act 2003, but they are not directly concerned with the investigation of criminal offences and are not discussed further here. Fuller discussion can be found in, e.g. Stone (2013) or Pattenden and Sheehan (2016), chapter 11. 137 See R v Crown Court at Middlesex Guild Hall, ex p Salinger [1993] 2 All ER 310, p. 317. 138 TA 2000, sch. 5, para. 6.

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difficult, if not impossible, to determine quickly and on the spot what of the material was relevant and liable to seizure and what was not. Some of the material might be legally privileged matter. It may take time to go through the contents of a computer hard drive or similar storage device to find what is or is not relevant. This situation is dealt with by s. 50–70 of CJPA 2001.139

5.4.1

The Powers Under Section 50 of the Criminal Justice and Police Act 2001

S. 50 of CJPA 2001 gives additional seizure powers in two situations. S. 50(1) of CJPA 2001 deals with the situation where a person is already lawfully on premises, with a power to search. It relates to material which the person “has reasonable grounds for believing may be or may contain something for which he is authorised to search”. The person must also have one of the powers of seizure listed in sch. 1 to the CJPA 2001 or the power in s. 50(2) of CJPA 2001. Sch. 1 to CJPA 2001 contains an extensive list of over seventy powers under a wide range of statutes, including all the powers under Parts 3 and 4 of PACE 1984. One of two further conditions must then be satisfied for the extended power of seizure under s. 50(1) of CJPA 2001 to arise. These are that it is not reasonably practicable in all the circumstances to determine, either (a) whether what has been found is something that the person is entitled to seize, or (b), the extent to which what has been found contains something that the person is entitled to seize. The test of what is “reasonably practicable” is further explained in s. 50(3) of CJPA 2001 and is discussed further below, after the discussion of s. 50(2) of CJPA 2001. If the above conditions are satisfied, then the person’s power of seizure “shall include power (. . .) to seize so much of what he has found as it is necessary to remove from the premises to enable” it to be determined whether it does constitute or include something which the person is entitled to seize. The power under s. 50(2) of CJPA 2001 arises where in the course of a lawful search the searcher comes across something “which he would be entitled to seize but for its being comprised in something else that he has (. . .) no power to seize”. The power of seizure must be one of those listed in Part 2 of sch. 1 to CJPA 2001. It must also not be reasonably practicable in all the circumstances to separate the seizable property on the spot. The most obvious situation where this will apply is where the item or items subject to seizure are stored electronically on the hard drive of a computer but it can apply wherever disaggregation of the seizable from non-seizable is impractical.

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These provisions apply throughout the U.K. They are supplemented by para. 7.7.–7.13 of PACE Code B 2013, which refers to the provisions as giving “seize and sift powers”—this being a broadly accurate representation of their effect.

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The test of what is “reasonably practicable” in relation to the powers under both s. 50(1) and 50(2) is dealt with in s. 50(3) of CJPA 2001, which lists the factors to be taken into account. These are: • the length of time it would take to carry out a determination or separation “on site”; • the number of people that would be required to carry out that determination or separation; • whether the process would involve damage to the property; • what apparatus or equipment would need to be used; and • in the case of separation, whether such separation would be likely to prejudice the use of some or all of the separated seizable property for a purpose for which it is capable of being used. The power under s. 50(1) of CJPA 2001 does not extend to items which the searcher reasonably believes to be legally privileged. It simply gives the power to be able to remove and examine material which was not thought to be legally privileged but which might or might not otherwise be within the terms of the search power. S. 50(2) of CJPA 2001, however, does give a power to seize material thought to be legally privileged. Where items subject to legal privilege have been seized, s. 54 of CJPA 2001 applies. This is a very convoluted section containing internal crossreferencing. There is a basic duty to restore items which appear to be subject to legal privilege to the person from whom they were seized. This duty does not exist, however, where the legally privileged material cannot reasonably practicably be separated from other property which either (a) there is no obligation to return under s. 54 or 55 (which deals with excluded and special procedure material), or (b) there is a power to retain under s. 56 of CJPA 2001. The s. 56 power to retain exists when it is reasonably believed that the property was obtained through the commission of an offence or that it is evidence of an offence and, in either case, it is necessary to retain it to stop it being concealed, lost, altered, or destroyed.

5.4.2

Excluded and Special Procedure Material

Where, following a seizure under s. 50 of CJPA 2001, it appears that some of the items are excluded or special procedure material under PACE 1984, s. 55 of CJPA 2001 imposes an obligation, similar to that under s. 54 of CJPA 2001 in relation to legally privileged material, to return the items as soon as is reasonably practicable. As with s. 54 of CJPA 2001 the obligation does not apply where the material may be retained under s. 56 of CJPA 2001, or where it is not reasonably practicable to separate the protected material from other material which can be lawfully retained.

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Retention of Seized Material

Once property has been seized under s. 50 of CJPA 2001 there is an obligation for the person in possession of it to examine it to see if its retention is justifiable. This examination must take place as soon as is reasonably practicable (taking account of the desirability of allowing anyone from whom the property was seized, or with an interest in it, the opportunity of being present or represented at the examination). Notification of the name and address of the person to be contacted in order to exercise the power to be present at the examination must be included in the notice to be given to the occupier or left on the premises, and PACE Code B 2013, para. 7.8A suggests that “all reasonable steps should be taken to accommodate an interested person’s request to be present”. Until the examination is complete, the property should be kept separate from anything seized under any other power. Retention will be justified if the property falls within s. 53(3) of CJPA 2001, otherwise it should be returned. Property falls within s. 53(3) of CJPA 2001 if (a) it is property for which the person seizing it had the power to search when he made the seizure, but is not required to be returned as legally privileged; or (b) it is property the retention of which is authorised by s. 56; or (c) it is something that, in all the circumstances, cannot reasonably practicably be separated from property falling within one of the above two categories. S. 56 of CJPA 2001 authorises the retention of any material seized by a constable who was lawfully on premises, or by a person authorised under s. 16(2) of PACE 1984 to accompany a constable, or by a person accompanied by a constable under a warrant issued under s. 448 of the Companies Act 1985, provided that one of two conditions (set out in s. 56(2) and (3) of CJPA 2001) is fulfilled. These conditions are that there are reasonable grounds for believing that the property is either: • property obtained in consequence of the commission of an offence; or • evidence in relation to any offence and that in either case it is necessary for it to be retained in order to prevent its being concealed, lost, damaged, altered, or destroyed.

5.5

Powers to “Bug and Burgle”: Police Act 1997

The effect of Part III of the Police Act 1997 is to give the police powers to enter and interfere with property, and to carry out surveillance by means of wireless telegraphy, without the need for a warrant. Such actions, which would otherwise be unlawful, are made lawful if covered by an “authorisation”.140 The powers under

140

Police Act 1997, s. 92.

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Part III are supplemented by a Code of Practice.141 The current “Covert Surveillance and Property Interference” (CSPI) Code of Practice, which was revised in August 2018, provides guidance on the issues of authorisations in chapter 7 as well as a new detailed section to safeguard privileged information (chapter 9).

5.5.1

Authorisations

The power to issue an authorisation under these provisions rests with various senior officials (referred to as “authorising officer”), including for example any chief constable of police or the Director General of the NCA.142 In a situation of urgency, it may be given by one of the senior officers specified in s. 94(2) of the Police Act 1997, for example, an assistant chief constable, or in London, a commander.143 The basis on which an authorisation may be issued is that the authorising officer believes that the action is necessary for the purpose of preventing or detecting “serious crime”, and that the taking of the action is proportionate to its objectives.144 In reaching this conclusion the officer should consider whether the objective could reasonably be achieved by other means.145 “Serious crime” is defined in s. 93(4) of the Police Act 1997 as conduct which constitutes one or more offences, and (a) involves the use of violence, results in substantial financial gain or is conduct by a large number of persons in pursuit of a common purpose; or (b) the offence, or one of the offences is an offence for which a person who has attained the age of 21 and has no previous convictions could reasonably be expected to be sentenced to imprisonment for a term of 3 years or more. The normal procedure is for the authorisation to be given in writing, though in a case of urgency it may be given orally.146 A written authorisation lasts for 3 months; an oral authorisation, or one issued in case of urgency by someone other than the chief officer or their deputy, lasts for 72 h.147 Either type of authorisation may be renewed (more than once), in writing, for 3 months.148

141

See Regulation of Investigatory Powers Act (RIPA) 2000, s. 71; CSPI Code 2018, available at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/ 742041/201800802_CSPI_code.pdf. 142 Police Act 1997, s. 93(5); CSPI Code 2018, para 7.8. 143 CSPI Code 2018, para 7.8. 144 Police Act 1997, s. 93(2); CSPI Code 2018, para. 7.9. 145 Police Act 1997, s. 93(2B); CSPI Code 2018, para. 7.10. 146 Police Act 1997, s. 95(1); CSPI Code 2018, para. 7.15. 147 Police Act 1997, s. 95(2); CSPI Code 2018, para. 7.25. 148 CSPI Code 2018, para. 7.28.

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Supervision by Commissioners

The issue of authorisations is not under the control of ordinary justices of the peace or judges in the way that most search warrants are. They are instead subject to the supervision, and to some extent the control, of special “Judicial Commissioners”. As soon as an authorisation has been given, a Commissioner should be given notice of it in the prescribed form.149 The Commissioner has the power to quash or cancel an authorisation if satisfied that there were no reasonable grounds for believing that the conditions for its issue were satisfied, or that they have ceased to apply.150 The authorising officer may appeal to the Investigatory Powers Commissioner against a decision to quash or cancel.151 The circumstances in which action on an authorisation must await the approval of a Commissioner are cases where the authorising officer believes that any of the property specified in the authorisation is used wholly or mainly as a dwelling or as a bedroom in a hotel, or constitutes office premises; or the action authorised is likely to result in any person acquiring knowledge of matters subject to legal privilege, confidential personal information or confidential journalistic information.152 The CSPI Code 2018 urges particular care when there is a possibility of such material being involved,153 but does not preclude the acquisition of such confidential information. Where there is the possibility of legally privileged material being involved, the CSPI Code 2018 stipulates additional safeguards.154 The acquisition of such material through property interferences is addressed in para. 9.58–9.62 and distinguishes between interferences “likely to result in” or “that may result in” the acquisition of knowledge of matters subject to legal privilege. In relation to covert surveillances the safeguards provide for three different circumstances where they will or may be obtained (para. 9.51–9.57): where privileged material is intentionally sought, is likely to be obtained and where the purpose or one of the purposes is to obtain items that, if they were not generated or held with the intention of furthering a criminal purpose, would be subject to privilege.155 Where the intention is for surveillance to acquire knowledge of matters subject to legal privilege, the powers should only be used in relation to such material in “exceptional and compelling” circumstances.156 Exceptional and compelling circumstances will arise in a very restricted range of cases, where there is a threat to life or limb or where it is in the

149

Police Act 1997, s. 96 and the Police Act 1997 (Notification of Authorisations etc.) Order 1998; CSPI Code 2018, para. 7.21. 150 CSPI Code 2018, para. 7.43. 151 CSPI Code 2018, para. 7.43. 152 CSPI Code 2018, para. 7.24. 153 CSPI Code 2018, chapter 9. 154 CSPI Code 2018, para. 9.50. 155 CSPI Code 2018, para. 9.50. 156 CSPI Code 2018, para. 9.51.

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interests of national security.157 The test for when these circumstances are given can only be met when the public interest in obtaining the information sought outweighs the public interest in maintaining the confidentiality of legally privileged material, and when there are no other reasonable means of obtaining the required information and the authorised surveillance must be reasonably regarded as likely to yield the intelligence necessary to counter the threat.158 Any authorisation of such use of these powers must take into account whether it would be proportionate to the objective sought.159

5.6

Covert Surveillance

Covert surveillance operations clearly have the potential for access being gained to confidential material, including material covered by professional/client confidentiality.160 Indeed it has been held by the House of Lords that the powers in this area provided by Part II of RIPA 2000 can be used in relation to legally privileged communications, including a supposedly private consultation between lawyer and client taking place in a police station.161 There are associated Codes of Practice dealing with covert surveillance. The provisions of Part II of RIPA 2000 were enacted primarily to ensure that covert surveillance activities could be made immune from challenge under Art. 8 of the Human Rights Act 1998. There is no necessity, as the Codes of Practice make clear, for the authorisation procedures to be used, since the surveillance will not generally involve any otherwise unlawful actions, but if they are, it is anticipated that this will remove the possibility of a challenge under Art. 8 ECHR. S. 26 of RIPA 2000 identifies three types of behaviour that are covered by the Act: directed surveillance; intrusive surveillance; and the conduct and use of covert human intelligence sources. “Surveillance” is partially defined in s. 48(2) of RIPA 2000 to include (a) monitoring, observing or listening to persons, their movements, their conversations or their other activities or communications; (b) recording anything monitored, observed, or listened to in the course of surveillance; and (c) surveillance by or with the assistance of a surveillance device. Surveillance is “intrusive” if it relates to the surveillance of what is happening in residential premises or in a private vehicle, and either involves the presence of an individual in the premises or vehicle, or is carried out by means of a surveillance

157

CSPI Code 2018, para. 9.51. CSPI Code 2018, para. 9.51. 159 CSPI Code 2018, para 9.52. 160 The powers are likely to be used mainly by the police, but are also available to the HM Revenue and Customs, the Competition and Markets Authority, local authorities, and a range of other public authorities—see sch. 1 to RIPA 2000. 161 Re McE [2009] UKHL 15, [2009] 1 AC 908. 158

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device. Following the comments of the House of Lords in Re McE,162 consultations with a lawyer in connection with legal proceedings, have been specifically designated “intrusive surveillance”,163 and the remainder of this section will focus on this area. RIPA 2000 provides a system of authorisation in s. 28–32. For intrusive surveillance the power to authorise lies with the Secretary of State or “senior authorising officers”, who in relation to the police are chief constables.164 The grounds for surveillance are limited to national security, the economic well-being of the U.K., and the prevention or detections of “serious crime”, but the intrusion must be “necessary” and proportionate to the objective.165 The authorisation procedure in relation to intrusive surveillance is similar to that applying under the Police Act 1997. That is, normally approval must be sought from a Judicial Commissioner before the authorisation can take effect. The Commissioner must be satisfied that the relevant grounds exist for the issue of the authorisation.166 Once approved, the authorisation will normally last for 3 months, with the possibility of renewal.167

5.7

Interception of Communications

The procedures allowing for interception of communications, including those between lawyer and client, were set out in Part I of RIPA 2000. These provisions were repealed and replaced by the Investigatory Powers Act 2016 (IPA 2016).168 The IPA 2016 applies to the whole of the U.K. Part 2 of IPA 2016 sets out the procedures whereby a warrant may be obtained to gain access to the content of communications by post, telephone, e-mail, or other electronic means. The officials entitled to apply for a warrant are comprised of the heads of the intelligence services (MI5, MI6, GCHQ), the Director of the NCA, the Metropolitan Police Commissioner, the chief constables of the police services of Scotland and Northern Ireland, the Commissioners of Revenue and Customs; the Chief of Defence Intelligence and a person who is the competent authority of a country or territory outside the U.K. for the purposes of an EU mutual assistance instrument or an international mutual assistance agreement.169 Application is made

162

Re McE [2009] UKHL 15, [2009] 1 AC 908. The Regulation of Investigatory Powers (Extension of Authorisation Provisions: Legal Consultations) Order 2010, SI 2010/461. 164 RIPA 2000, s. 32. 165 RIPA 2000, s. 32(3). 166 RIPA 2000, s. 36(4). 167 RIPA 2000, s. 43(3). 168 Regarding the criticism of IPA 2016, see Sect. 8. 169 IPA 2016, s. 18. 163

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to the Secretary of State,170 who issues the warrant, but only with the approval of a Judicial Commissioner (who must hold or have held “high judicial office”).171 The Judicial Commissioner must decide if the warrant is necessary and proportionate to the purpose for which it is sought.172 The grounds for the issue of a warrant are that it is necessary in the interests of national security, or for the purpose of preventing or detecting serious crime, or in the interests of the economic well-being of the U.K. so far as those interests are also relevant to the interests of national security.173 The warrants will generally be valid for 6 months.174 There are complex protective provisions relating to information which is subject to legal privilege, set out in IPA 2016, s. 27. Essentially these require the person considering the application to take account of the public interest in maintaining the confidentiality of items subject to legal privilege, and only issue a warrant where there are “exceptional and compelling circumstances”, and appropriate provisions have been made for the handling, use, and retention of the items. The public interest in obtaining the information must • outweigh the public interest in the confidentiality of items subject to legal privilege, • there must be no other means by which the information may reasonably be obtained, and • in the case of serious crime, obtaining the information must be necessary for the purpose of preventing death or significant injury.175 Information obtained from interceptions cannot be used in evidence.176 Nor can evidence be given that suggests that an interception has taken place.177 The information is to be used only for intelligence-gathering, and not as evidence.178

Or in Scotland the “Scottish Ministers”—IPA 2016, s. 21. IPA 2016, s. 227(2)—this means essentially a judge of the High Court or above (or, in Scotland, of the Court of Session or above). See also Constitutional Reform Act 2005, s. 60(2). The requirement is the same as for Surveillance Commissioners under the Police Act 1997 and RIPA 2000. 172 IPA 2016, s. 23. 173 IPA 2016, s. 20(2). A third ground, relating to “economic well-being” cannot be used in relation to legally privileged material—s. 27(5). 174 IPA 2016, s. 32. 175 IPA 2016, s. 27(6). 176 IPA 2016, s. 56. 177 IPA 2016, s. 56. 178 IPA 2016 also contains powers for “bulk interception warrants”, “bulk equipment interference warrants”, and “bulk personal data set warrants”; all contain provisions relating to “legal privilege” in similar terms to those relating to interception of communications. 170 171

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6 Exclusionary Rules and Nullities The U.K. does not have strong exclusionary rules in relation to criminal proceedings. The main tests of admissibility are relevance and reliability, and the fact that there has been some impropriety in the obtaining of evidence will not necessarily lead to its exclusion.179 Courts do have a discretion to exclude evidence if its admission would be “unfair” to the accused. In England, Wales and Northern Ireland this test is now supplemented by statutory provisions; in Scotland the position is still governed by case law. There is one circumstance where a clear exclusionary rule does apply, and that is where it appears that evidence has been obtained by torture (either of the accused or a third party). This absolute prohibition was confirmed by the House of Lords in A v Secretary of State for the Home Department (No. 2).180 Beyond this, the statutory provisions applying in England, Wales and Northern Ireland contain specific rules relating to confessions, and a more general provision relating to other evidence. They appear in s. 76 and 78 of PACE 1984.181 S. 76 of PACE 1984 is concerned solely with confessions; s. 78 of PACE 1984, on the other hand, is concerned with all types of evidence, including confessions. By virtue of s. 76(2)(a) of PACE 1984, if a confession appears to have been obtained as a result of oppression, then it should be excluded, unless the prosecution can prove beyond reasonable doubt that it was not so obtained. The matter may be raised either by the defence, or by the court itself.182 “Oppression” is defined as including “torture, inhuman or degrading treatment, and the use or threat of violence (whether or not amounting to torture)”. S. 76(2)(b) of PACE 1984 deals specifically with unreliable confessions. As with oppression the issue may be raised by either the defence or the court. It arises where a confession was or may have been obtained from a person in consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by them in consequence thereof. Once the issue is raised, the burden is on the prosecution to prove beyond reasonable doubt that the confession was not obtained in this way. It is not enough to show that the confession is reliable. The test is whether what happened to produce the confession was likely to render it unreliable.183 Other conduct which has led to exclusion under s. 76(2)(b) of PACE 1984 includes a failure to comply with the requirements of PACE Code C 2019.184 179

The common law approach is to be found in Kuruma v The Queen [1955] AC 197 and R v Sang [1980] AC 402. 180 A v Secretary of State for the Home Department (No. 2) [2006] UKHL 71. 181 The equivalent provisions in Northern Ireland are Art. 74 and 76 of PACE (NI) Order 1989. 182 PACE 1984, s. 76(3). 183 See, e.g., R v Cox [1991] Crim LR 276. 184 R v Doolan [1988] Crim LR 747: failure to caution before interview. R v Chung [1991] 92 Cr App R 314.

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S. 78 of PACE 1984 gives any court a power to exclude evidence if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it. The section has been used in many cases. Part of the reason for this is that it quickly became established that the section could be used to exclude any evidence, including confessions and other incriminating statements, which might at first sight have seemed to be the exclusive preserve of s. 76 of PACE 1984. It also became established fairly early on, in R v Samuel,185 that the section was a self-contained provision which should be interpreted within its own terms, rather than being regarded as simply restating the (restrictive) common law rules. The case also established one of the main grounds on which exclusion has subsequently been justified: that is, on the basis that there have been “significant and substantial” breaches of PACE 1984, or a Code of Practice, or both.186 In fact, the vast majority of cases under s. 78 of PACE 1984 have been concerned with just two types of breach, namely, breach of the provisions concerning access to legal advice under s. 58 of PACE 1984, and breach of the provisions of PACE Code C 2019 concerning the requirements to make contemporaneous records of interviews, and to show these to the suspect.187 Other breaches as regards, for example, breath tests or identification procedures can, however, lead to exclusion. Even if there has been a significant and substantial breach this does not, however, lead to automatic exclusion. In a number of cases the courts have refused to exercise the power to exclude evidence because the breach did not “make any difference” to what had happened, and the evidence was not, therefore, unfair. In reaching this decision the courts are not saying that the evidence is reliable despite the breach: reliability or not is generally irrelevant to s. 78 of PACE 1984. What they are saying is, for example, that the confession would have occurred even if the correct procedures had been followed. In R v Alladice [1988] Crim LR 608, for example, the defendant had wrongfully been refused access to a solicitor. His own evidence at the trial, however, made it clear that he was well aware of the right to remain silent, and that a solicitor might well have advised him to say nothing. There was no reason to suppose that he would not have confessed if he had had access to a solicitor. Unlawful actions by the police in the course of obtaining evidence will not automatically render it inadmissible: the judge still has discretion under s. 78 of PACE 1984. This was the ruling of the House of Lords in R v Khan.188 The police had obtained evidence by planting a surveillance device on private property, which had almost certainly involved trespass and criminal damage. The House of Lords did

185

R v Samuel [1988] QB 615. See also R v Keenan [1989] 3 All ER 599—breach of PACE Code C can in itself justify exclusion. 187 E.g. R v Canale [1990] Crim LR 329; R v Walsh [1990] Cr App R 161; R v Scott [1991] Crim LR 56; and R v Sparks [1991] Crim LR 128. 188 R v Khan [1996] 3 All ER 289. 186

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not think that this illegality was anything more than one of the factors to be considered by the judge in exercising the s. 78 of PACE 1984 power. On balance, there was no unfairness to the accused in admitting the evidence. The ECtHR subsequently held that the admission of the evidence did not infringe the right to a fair trial according to Art. 6(1) ECHR.189 Trickery by the police will in some cases lead to exclusion under s. 78 of PACE 1984 even if there has been no breach of the Act or Codes of Practice. In R v Mason,190 the police had told the defendant and solicitor that the defendant’s fingerprints had been found near the scene of the crime. This was quite untrue, and the defendant’s subsequent confession was ruled inadmissible. Conversely, in some cases, the courts have been prepared to condone deceit by the police. In R v Bailey,191 a blatant piece of play acting was approved by the Court of Appeal. The investigating officers and the custody officer played out a conversation in front of the defendants, in which the custody officer, appearing to act against the wishes of the investigating officers, insisted in placing the two defendants in the same cell. In fact, the investigating officers wanted the defendants together, as the cell was bugged. The defendants, lulled into a false sense of security, engaged in a conversation which contained a number of damaging admissions, and was recorded. The Court of Appeal found nothing wrong in what the police had done, even though it was clearly a means of circumventing the fact that they could not question the defendants further (because they had both already been charged). If bad faith can be shown, this may well override the fact that a breach might not otherwise be regarded as substantial, or that it made no difference. The unreported cases of R v Hall (1994) (Leeds Crown Court), and R v Stagg (1994) (Central Criminal Court) provide other examples of the police overstepping the mark. In both cases an undercover policewoman “befriended” a man charged with murder, and obtained incriminating information. In both cases the trial judge refused to allow the evidence thus obtained to be given at the trial. The emotional context in which the evidence was obtained made it unfair to allow it to be admitted. Moreover, in Hall some of the questioning had clearly been used as a means of circumventing the provisions of PACE Code C. This approach shows that the power to exclude evidence is at times used to discipline the police. A deliberate breach of legal professional privilege can also lead to a judge staying proceedings as an abuse of process.192

189

Khan v. United Kingdom, Appl. no. 35394/97, of 12 May 2000. R v Mason [1987] 3 All ER 481. 191 R v Bailey [1993] 3 All ER 513. 192 See R v Grant [2005] EWCA Crim 1089. For further discussion see Pattenden and Sheehan (2016). 190

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7 Lawyer-Client Communications at Trial In both summary and jury trials the defendant will sit in a “dock”, apart from their lawyer. Communication between defendant and lawyer during the trial may therefore be difficult, but consultation can be permitted at the discretion of the magistrates or judge. There are no restrictions on confidential lawyer/client communications when the court is not in session, and the lawyer may ask for the trial to be suspended in order for such communication to take place. Again, this is at the discretion of the magistrates or judge.

8 Criticism and Reform Current criticism has focused on Part I of RIPA 2000 and IPA 2016, and the fact that it is seen as weakening protection for legal professional privilege.193 The IPA 2016 has been dubbed the “Snoopers’ Charter” by privacy campaigners because of its extensive surveillance powers. In April 2018, the U.K. High Court ruled that the IPA 2016 is “incompatible with fundamental rights in EU law in that in the area of criminal justice access to retained data is not limited to the purpose of combating ‘serious crime’ and is not subject to prior review by a court or an independent administrative body”.194 Furthermore, in Big Brother Watch and others v. United Kingdom195 the ECtHR deemed that the U.K.’s previous use of bulk data-collection programs violate human rights law by lacking oversight of the entire selection process. There are also concerns about the government’s attempts to limit funding for criminal legal aid. Cuts to civil legal aid have led to a significant increase in litigants in person. A similar approach to the criminal area risks an increase in miscarriages of justice for defendants who cannot afford legal advice and representation.196

References Baldwin J (1992) The role of legal representatives at police stations. RCCJ Research Study No. 3, HMSO Bridges L, Choongh S (1998) Improving police station legal advice. Law Society Research Study No. 31

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See, e.g. Gould (2017), p. 15; Webley (2016), p. 173. [2018] EWHC 975 (Admin), 186. 195 Big Brother Watch and others v. United Kingdom, Appl. nos. 58170/13, 62322/14 and 24960/15, of 13 September 2018. 196 See, e.g., Hynes (2017) 181 (11). 194

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Brown D (1989) Detention at the police station under the Police and Criminal Evidence Act 1984. Home Office Research Study No. 104, HMSO Brown D, Ellis T, Larcombe K (1992) Changing the code: police detention under the revised PACE codes of practice. Home Office Research Study No. 129, HMSO Bucke T, Brown D (1997) In police custody: police powers and suspect’s rights under the revised PACE codes of practice. Home Office Research Study No. 174, HSMO Cape E (2017) Defending suspects at police stations, The practitioner’s guide to advice and representation, 7th edn. Legal Action Group, London Costigan R, Stone R (2017) Civil liberties and human rights, 11th edn. Oxford University Press, Oxford Ede R, Edwards A (2017) Criminal defence, good practice in the criminal courts, 4th edn. The Law Society, London Emmerson B, Ashworth A, Macdonald A, Choo A, Summers M (2012) Human rights and criminal justice, 3rd edn. Sweet & Maxwell, London Gale M, Scanlan G, Gale S (2002) The Criminal Justice and Police Act 2001: a guide for practitioners. Callow Publishing, London Gould J (2017) Privilege in peril? Is legal professional privilege at risk of losing its status as a certain & absolute right? New Law J 167(7735):15–16 Hungerford-Welch P (2014) Criminal procedure and sentencing, 8th edn. Routledge, London Hynes S (2017) Criminal legal aid – lessons not learned. Crim Law Justice Weekly 181(11) McConville M, Hodgson J (1993) Custodial legal advice and the right to silence. RCCJ Research Study No. 16, HMSO Pattenden R, Sheehan D (2016) The law of professional-client confidentiality, regulating the disclosure of confidential information, 2nd edn. Oxford University Press, Oxford Sanders A, Young R, Burton M (2010) Criminal Justice, 4th edn. Oxford University Press, Oxford Stone R (2013) The law of entry search and seizure, 5th edn. Oxford University Press, Oxford Thanki B (2018) The law of privilege, 3rd edn. Oxford University Press, Oxford Webley L (2016) Interception of communications and legal professional privilege and the rule of law. Leg Ethics 19:173–176 Zander M (2018) The Police and Criminal Evidence Act 1984, 8th edn. Sweet & Maxwell, London

Richard Stone is Emeritus Professor of Law and Human Rights and has taught and researched in law in a variety of HE institutions over a 40-year career, including the University of Leicester, Nottingham Trent University, and the Inns of Court School of Law. In 2003, he was appointed Head of the Law School at the University of Lincoln and led the Law School until 2009, when he became Director of Research until his retirement in 2014. His teaching and research has been focused on the areas of human rights and contract law. His publications include “The Law of Entry, Search, and Seizure” (5th edn, OUP, 2013), “Civil Liberties and Human Rights” (11th edn, OUP, 2017) and “The Modern Law of Contract” (12th edn, 2017). Veronica Lynn studied law in Zurich, where she also completed internships and trained with major corporate law firms. She was admitted to the bar in Switzerland in 2016 while simultaneously being a doctoral student at the University of Zurich, writing her PhD thesis on the attorney-client privilege and working as an academic research assistant at the chair for criminal law and criminal procedure law of Prof. Dr. Wolfgang Wohlers at the University of Basel. She specializes in whitecollar crime, criminal defence, covert surveillance measures and criminal aspects of information technology.

Confidentiality of Attorney-Client Communications in the United States Stephen C. Thaman

Abstract This chapter first outlines the extent of the right to counsel in criminal cases in the United States, that is, when it is first recognized, the types of cases where appointed counsel is mandatory etc. It then delves into limitations on the ability to meet with and confidentially speak with defense counsel placed on incarcerated defendants and during trial with respect to all defendants. Finally, it explores the extent to which law enforcement authorities may search attorney’s offices, or intercept confidential oral or electronic communications between attorney and client, or access them in digital storage after the communication. Important in this respect are the relatively strict exclusionary rules in the United States when law enforcement investigators violate the right to confidentiality of lawyer-client relations protected by the Fourth Amendment to the U.S. Constitution or the laws relating to the right to counsel and attorney-client privilege. Keywords Access to lawyer · Attorney-client communications · Attorney-client privilege · Confidentiality · Criminal defence · Criminal procedure · Exclusionary rules · Fair trial · Public defender · Right of defence · Right to counsel · Search and seizure · Search of lawyer’s offices

Abbreviations ABA Amend. BOP DSO FBI FISA FISC NACDL

American Bar Association Amendment Federal Bureau of Prisons Rules Defense security officer Federal Bureau of Investigation Foreign Intelligence Surveillance Act U.S. Foreign Intelligence Surveillance Court National Association of Criminal Defense Lawyers

S. C. Thaman (*) Saint Louis University, St. Louis, MO, USA e-mail: [email protected] © Springer Nature Switzerland AG 2020 L. Bachmaier Winter et al. (eds.), The Right to Counsel and the Protection of Attorney-Client Privilege in Criminal Proceedings, Ius Comparatum – Global Studies in Comparative Law 44, https://doi.org/10.1007/978-3-030-43123-5_14

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NSA OCDC SAMs SCA SEC URE U.S. USDOJ USSC

National Security Agency Office of Chief Defense Counsel Special Administrative Measures Stored Communications Act Securities and Exchange Commission Uniform Rules of Evidence United States U.S. Department of Justice United States Supreme Court

1 The Right to Counsel During the Criminal Process 1.1

Introduction: Constitutional and Structural Aspects of U.S. Law Relating to the Attorney-Client Privilege

In the United States (U.S.), the defense lawyer plays a key role in protecting suspects and defendants against undue use of coercion, blandishments or trickery in the procurement of confessions of guilt, or, in the context of our system of plea bargaining, assuring that defendants don’t plead guilty unless it is really to their benefit. Defense counsel, in the U.S., is required to investigate the client’s case and prepare the defense, both to properly cross-examine the prosecution’s witnesses at trial, but also to know if the defendant should accept a plea deal or go to trial. In both defense lawyer roles, the confidentiality of written, electronic and oral interactions between defense lawyer and client are crucial, as is the attorney-client privilege which prevents the lawyer from revealing any privileged communications the client has made. The defense lawyer can only effectively represent the client if the client is honest in his or her discussions of the case with the lawyer. But this carries with it some dangers. Guilty clients often tell the lawyer of their guilt, turn over physical or other evidence to lawyers which is circumstantial evidence of their guilt and, thus, the lawyer herself, and her files, either written in her office, or digital in her computer (or in the “cloud”) are often sources of evidence the prosecution or police would love to plumb in trying to prove the client’s guilt beyond a reasonable doubt. The prosecution, without the attorney-client privilege, could subpoena the lawyer to testify, which implicates the right to silence and the privilege against selfincrimination, or subpoena files from the lawyer, which impacts on the right to privacy in one’s writings. The prosecution can ask a judge to issue a search warrant for a lawyer’s office or computer, or an order to wiretap the lawyer’s or client’s phone during their discussions of the case. Or the police or prosecution can simply try to induce the client to waive the right to counsel and speak with them about the case.

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The most important constitutional provision implicated by prosecution attempts to bypass or undermine the attorney-client privilege, is, of course, the right to counsel protected by the Sixth Amendment to the U.S. Constitution (6th Amend.) which provides: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.” When state officials try to circumvent the protective shield of the lawyer and gather self-incriminating evidence from the defendant, which he or she has entrusted to the lawyer verbally or physically, or through inducing direct admissions by the client, then this impacts, the right to silence and the privilege against selfincrimination, protected by the Fifth Amendment of the U.S. Constitution (5th Amend). The 5th Amend. provides, inter alia, that no person “nor shall be compelled in any criminal case to be a witness against himself.” Finally, when the state seeks to compel the lawyer to turn over incriminating evidence by use of a subpoena, or procures a search warrant or interception order to search a lawyer’s office or computer or to intercept confidential communications with a client, the Fourth Amendment of the U.S. Constitution (4th Amend.) comes into play, which provides: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” Of course, the piercing of the attorney-client shield may also lead to gathering of evidence which is used to convict the defendant, thus potentially violating the right to due process of law or the right to a fair trial under the 6th Amend. Both the 5th and 14th Amends. of the Federal Constitution provide that neither the states nor the federal government may “deprive any person of life, liberty or property without due process of law.” The U.S. is comprised of fifty individual state jurisdictions. Each state has its own constitution, its own statutes and rules, its own courts to interpret and apply the laws, and its own bar associations to promulgate rules for the attorneys appearing in its courts. There is a separate, nation-wide federal jurisdiction, overseen by the United States Supreme Court (USSC), which interprets and applies the Constitution of the U.S. and federal law, and supervises the operation of the federal courts. Constitutional issues arising in criminal cases in the state courts can be appealed to the USSC only if they present federal issues, and in criminal cases, the USSC only determines whether the state has followed the minimum requirements required by its

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interpretation of the federal constitution and Bill of Rights.1 The states, however, are free to grant their citizens greater protections than those mandated by decisions of the USSC. In consequence, if a state court judgment is based on both federal and state constitutional grounds, the USSC lacks jurisdiction if the state grounds are adequate to support the judgment and independent of federal law.2 The USSC has ruled extensively on issues related to the right to counsel in criminal cases and those opinions will be discussed in the sections that follow, along with decisions of state courts which might grant broader protection to the attorney-client privilege. However, the attorney-client privilege is based to a great extent on rules laid out by national and state bar associations and authoritative restatements of the law, some of which have been enacted into statutes. We will discuss this more in Sect. 2.

1.2

Right to Counsel for the Indigent

The 6th Amend. expressly provides a criminal accused the right “to have the assistance of counsel for his defense.” Historically, this provision was read to ensure only the right of the criminally accused to retain private counsel to defend them at any time before or after being charged. It was not until 1932 that the USSC directly addressed the issue of whether indigent defendants, unable to retain private counsel, had the right to be provided legal representation, and it found a limited right to counsel under the 5th Amend. “due process” clause, rather than the 6th Amend. In the famous case of the “Scottsboro Boys,” in which nine black teenagers were convicted without counsel of the rape of a white woman and sentenced to death, the USSC made a narrow ruling that a court must supply effective counsel for an indigent defendant in a capital case who “is incapable adequately of making his own defense because of ignorance, feeble mindedness, illiteracy, or the like.”3 At the time of the Powell decision, nearly half of the states failed to appoint counsel in most felony cases.4 In 1938, the USSC held that the right to counsel under the 6th Amend. required every indigent defendant in all criminal prosecutions in federal courts to be provided counsel,5 but the Court declined to extend that requirement to the states until 31 years later in the landmark decision of Gideon v. Wainwright, which made the 6th Amend.’s guarantee of the right to assistance of counsel binding on the states in

The Bill of Rights are the first ten amendments to the U.S. Constitution, adopted in 1791, 4 years after the constitution itself was adopted in 1787. 2 Fox Film Corp. v. Muller, 296 U.S. 207, 209–10 (1935). 3 Powell v. Alabama, 287 U.S. 45, 65 (1932). 4 Israel (1963), p. 267. 5 Johnson v. Zerbst, 304 U.S. 458, 462–63 (1938). 1

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all serious cases.6 Today, the right to counsel inures in any case in which the defendant could be punished by any kind of imprisonment, thus, even in misdemeanor cases.7 If a defendant receives even a suspended jail sentence in a case where she was not represented by a lawyer, that sentence may not be imposed.8 The 6th Amend. has been interpreted as imposing a right to effective assistance of counsel. In order to prevail on an appellate claim of ineffective assistance of counsel, however, a convicted defendant must prove both that the lawyer’s performance was deficient, i.e., failed to meet an objective standard of reasonableness, and also that the error was prejudicial, i.e., the result of the trial would have been different had the lawyer been competent.9 Several different systems exist to supply counsel for indigent defendants. Public Defender Offices exist in many states and counties, and in the federal courts, to represent indigent criminal defendants. Several models exist. In California, for instance, it is up to each county to determine the type of appointed counsel program it wishes to implement. In larger metropolitan counties, the county itself runs a large law office, which is entrusted with the defense of the indigent. Typically, the Chief Public Defender is a civil servant hired by the governing body of the county. In San Francisco City and County, however, the public defender is an elected official.10 In some counties in California, the county government has a system of “private” public defenders. The county asks for the best bid from private lawyers who will assume all of the defense work for the indigent. This system has been implemented in San Diego County. In smaller rural counties, however, the court will appoint lawyers from a list of private lawyers compiled by the local bar association, who have expressed their willingness to take criminal appointments. Requirements for such court-appointment regimes vary. In some areas, there are strict rules as to how much experience a lawyer must have to represent defendants, dependent on the gravity of the offense. In others, courts appoint lawyers eminently unqualified to try criminal cases. Even civil or tax lawyers, with no criminal experience, have been appointed to try capital cases. On many occasions, the appointment of incompetent or ethically compromised lawyers has arguably led to the imposition of unjust death sentences.11 Missouri’s approach to the representation of indigent defendants contrasts with that of California. The Missouri Public Defender is a statewide operation, which undertakes the representation of all indigent defendants. Branches of the Public Defender are located in each county, region, or metropolitan area.12 The quality of the defense provided by Public Defender Offices and by appointed counsel varies, as does the quality of privately retained counsel. One factor that

6

Gideon v. Wainwright, 372 U.S. 335, 342–42 (1963). Argersinger v. Hamlin, 407 U.S. 25, 37 (1972). 8 Alabama v. Shelton, 535 U.S. 654, 662 (2002). 9 Strickland v. Washington, 466 U.S. 669, 687 (1984). 10 Thaman (2000), p. 1017. 11 Ibid. p. 1018. 12 Ibid. 7

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affects the quality of the service provided is the salary the attorney is paid. In Alameda County, California, for example, the public defenders at one time won parity in salary with the county District Attorney’s Office. Such parity does not exist, however, in Missouri. In some states, most notably in the South, public defender offices, if they exist, are woefully understaffed, underpaid, and overworked. Where private counsels come in, they are often friends of the judge or prosecutor and only provide a lukewarm or lackluster defense so as to “keep the system working.” The hourly wage of court-appointed lawyers is also often ridiculously low.13

1.3 1.3.1

The Right to Counsel During the Pretrial Stage of Criminal Proceedings In General

The USSC has pronounced, that the right to counsel only attaches at “critical stages” of a criminal proceeding, where the substantial rights of the accused may be affected. The Court also has said that the right does not attach until the commencement of formal proceedings, whether by way of formal charge, preliminary hearing, indictment, information or arraignment, for, in the Court’s opinion: “it is only then that the government has committed itself to prosecute, and only then that the adverse positions of the government and defendant have solidified. It is then that a defendant finds himself faced with the prosecutorial forces of organized society, and immersed in the intricacies of substantive and procedural criminal law”.14 Thus, there is no right to counsel, and therefore, to appointed counsel, at the time of arrest, if the defendant has not yet been charged. We will see below, that the USSC in the famous case of Miranda v. Arizona,15 recognized a quasi-right to counsel during pre-charge interrogation, by preventing interrogation if the suspect asks to see a lawyer. Since an arrested person must be brought to court within 48 h and charged, or released,16 this period without a constitutional right to counsel is quite short, though of utmost importance for the defense of the accused. The accused has a right to counsel at the first appearance before the court17 and at virtually every important court hearing thereafter.

13

Ibid. pp. 1020–1021. Kirby v. Illinois, 406 U.S. 682, 689–90 (1972). 15 Miranda v. Arizona, 384 U.S. 436 (1966). 16 County of Riverside, California v. McLaughlin, 500 U.S. 44, 56 (1991). 17 Rothgery v. Gillespie County, 554 U.S. 191, 194 (2008). 14

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Conditions for Counsel Meeting with Incarcerated Clients

The right to effective assistance of counsel includes providing the time and opportunity to adequately prepare for trial, and the right of an incarcerated defendant to confidential meetings with the attorney to the end of such preparation.18 Although opportunities exist for an attorney to confer with an incarcerated client when he is brought to court, the time for such meetings is limited and there are few opportunities to confer in complete privacy. Longer meetings must be arranged at the place where the client is incarcerated, and the logistics of such meetings are typically left to the agency which runs the custodial facility. If attorneys believe they are not being afforded adequate opportunities to confer in confidence with their incarcerated clients, they must seek a court order to compel the prison officials to provide adequate facilities for a meeting. Federal Bureau of Prisons Rules (BOP) provide for “Special Administrative Measures” (SAMs) which are used to prevent the passage of information from suspected terrorists to potential cohorts or the media. These measures include such things as housing the inmate in administrative detention, limiting correspondence and visiting rights, and limiting use of the telephone, as is deemed to be “reasonably necessary” to protect persons against the risk of acts of violence or terrorism.19 A well-known New York lawyer was convicted of aiding terrorism in violation of BOP SAMs by secretly transmitting correspondence from a terrorist suspect to his co-conspirators abroad.20 Amendments of BOP regulations in 2001 have now allowed for the monitoring of attorney-client conversations without a court order. We will discuss this issue in the section “The Wiretapping Laws in Relation to Lawyer-Client Conversations” below.

1.3.3

Right to Counsel During Investigative Acts Carried on with the Participation of the Defendant

Right to Counsel During Interrogations The case law of the USSC deals with the issue of counsel during interrogations differently, depending on whether the interrogation was before or after the defendant has been charged, and whether the suspect/accused was in or out of custody at the time of the questioning. In the first part of the twentieth century, the USSC was reluctant to decide on the admissibility of evidence or procedural aspects of criminal cases in state cases, and relied on old decisions which proclaimed that the 4th, 5th and 6th Amends. were not binding on the states. They did decide around 35 cases, however, which dealt with

18

Powell v. Alabama, 287 U.S. 45, 58–59 (1932). 28 C.F.R. § 501.3(a) (1997). 20 United States v. Stewart, 590 F.3d 93 (2d Cir. 2009). 19

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extreme pressure and coercion used by the police in extorting confessions in state courts, claiming the practices violated the “due process” clause of the 14th Amend. which was added after the Civil War in 1865, and proclaimed that no state could deprive its citizens of due process of law. These “voluntariness” decisions were based on an evaluation of the “totality of the circumstances” and the presence or absence of counsel was only one factor in this multi-factor assessment (counsel was nearly always not present, however).21 Justice Robert Jackson, shortly after working as the main prosecutor in the Nuremberg Trials after World War II, made the following statement which summarizes the quandary faced by criminal justice systems in deciding whether to allow the right to counsel during police questioning: “Amid much that is irrelevant or trivial one serious situation seems to me to stand out in these cases. The suspect neither had nor was advised of his right to get counsel. This presents a real dilemma in a free society. To subject one without counsel to questioning which may and is intended to convict him, is a real peril to individual freedom. To bring in a lawyer means a real peril to solution of the crime because, under our adversary system, he deems that his sole duty is to protect his client – guilty or innocent – and that in such a capacity he owes no duty whatever to help society solve its crime problem. Under this conception of criminal procedure, any lawyer worth his salt will tell the suspect in no uncertain terms to make no statement to police under any circumstances.”22 In Spano v. New York,23 the USSC, found a violation of due process, emphasizing, for instance, that the police’s refusal to let Spano’s lawyer see him was one of the factors leading to the decision. Two concurrent opinions felt the court should have found a violation of the right to counsel as Spano had been indicted. Five years later, in Escobedo v. Illinois,24 the majority opinion held that “when the process shifts from investigatory to accusatory – when its focus is on the accused and its purpose is to elicit a confession – our adversary system begins to operate, and, under the circumstances here, the accused must be permitted to consult with his lawyer.” It certainly appeared that the majority of the USSC would find that the 6th Amendment right to counsel would apply during police interrogation, but in the famous decision of Miranda v. Arizona, 2 years later, the Court did not reiterate this position, and only found that a person in police custody, whom the police would like to interrogate, must be advised of the right to silence and the right to speak to a lawyer, the right to have a lawyer present during questioning, and must waive both of those rights in order for the police to question him.25 The Miranda Court did not expressly recognize a “right to counsel” in a pre-charge interrogation and clearly stated that police stations did not have to have “station-house” lawyers or public

21

Thaman (2001), pp. 583–584. Watts v. Indiana, 338 U.S. 49, 59 (1949). 23 Spano v. New York, 360 U.S. 315, 324–27 (1959). 24 Escobedo v. Illinois, 378 U.S. 478, 492 (1964). 25 Miranda v. Arizona, 384 U.S. 486, 444–45 (1966). 22

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defenders on hand to talk to arrestees before their interrogations.26 In a subsequent case, the USSC also approved of police telling arrestees that they will not provide lawyers for them before the interrogation, and that they must, thus, decide on whether or not to waive the right to a lawyer, before having talked to one.27 Furthermore, the USSC found no violation where police neglected to inform an uncharged incarcerated suspect that his family had hired an attorney for him and the attorney was in the jailhouse, before inducing him to waive his right to speak to a lawyer and agree to the interrogation.28 In some states, however, refusal to tell a suspect he or she has been provided a lawyer is not permitted.29 The USSC in Miranda also limited the duty to warn suspects of the right to silence and to counsel to situations when the person to be interrogated is in custody, for it found that police custody was “inherently coercive” and only with the admonitions could this coercive atmosphere be alleviated. Justice White, in dissent, made, I believe, an appropriate comment, when he stated that, if custody is so inherently coercive, why wouldn’t the waiver of the right to silence and to counsel also be presumably the fruit of this coercive atmosphere?30 The USSC has also, surprisingly, allowed undercover police officers or informants to be placed into jail cells with uncharged suspects, whom the police want to interrogate, and to use their disguise as fellow prisoners to try to coax incriminating statements from them.31 If an uncharged prisoner, however, does request to speak to a lawyer, the police must immediately stop their attempt to interrogate him and may not return, until the suspect has seen a lawyer and the lawyer has informed them that his client is willing to talk to them, or unless the suspect voluntarily reinitiates contact with the police for the purpose of talking with them.32 The police may not even seek to interrogate him, after such a request for counsel, even on a different crime.33 A recent exception has been carved out, however, for situations where the suspect has been released from custody and 14 days have passed.34 The situation changes, however, once a suspect has been charged with a crime and becomes an accused. Then the suspect has a right to counsel under the 6th Amend. In a 1964 decision, involving surreptitious interrogation of a charged, 26

Ibid. p. 474. Duckworth v. Eagan, 442 U.S. 195 201–04 (1989). 28 Moran v. Burbine, 475 U.S. 412, 431 (1986). 29 State v. Joslin 29 P.3d 1112, 1118–20 (Or. 2001) (and police must not question suspect if lawyer invokes suspect’s right to silence); State v. Roache, 803 A.2d 572, 578–79 (NH 2002) (no duty to heed counsel’s request not to question the suspect, as long as suspect knows counsel has been appointed); Commonwealth v. McNulty, 937 N.E.2d 16, 25–28 (Mass. 2010); State v. McAdams, 193 So.3d 824, 832 (Fla. 2016). 30 Miranda v. Arizona, 384 U.S. 486, p. 536. 31 Illinois v. Perkins, 496 U.S. 292, 299 (1990). 32 Edwards v. Arizona, 451 U.S. 477, 484–85 (1981); Minnick v. Mississippi, 498 U.S. 146, 153 (1990). 33 Arizona v. Roberson, 486 U.S. 675, 683–85 (1988). 34 Maryland v. Shatzer, 559 U.S. 98, 110–12 (2010). 27

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out-of-custody defendant by his co-defendant, who was working with the prosecution, the USSC clearly held that any contact made by prosecution organs with a charged defendant must be through the charged person’s counsel, referring here to the New York law in force at the time.35 The USSC has since whittled away at this rule. Now, if a suspect has been charged, say, by a secret grand jury indictment, and is out of custody, but does not have a lawyer yet, the police may attempt to speak to him after having advised him of his Miranda rights and after having gotten a waiver of them.36 The same is true if the indicted suspect is in custody and has not requested to have counsel appointed.37 If an accused is arraigned on a charge in court, is advised of the right to counsel, and even when counsel, often a public defender, is appointed to represent him without his knowledge, the police can attempt to interview him, after advising him of his Miranda rights, as long as he has not requested that a lawyer be appointed, or agreed to the appointment.38 Some states, however, give more protection under their state constitutions than the USSC has accorded under the 6th Amend. and forbid any attempts to interrogate indicted persons in the absence of counsel,39 or even a knowing waiver of the 6th Amend. right to counsel during the entirety of criminal proceedings.40 Despite the weakening of the protection of charged suspects permitted by Montejo, which allows a charged suspect to waive the right to counsel in the context of police interrogation without requiring the lawyer to be present, Massiah still appears to be good law and prohibits the prosecutor or police from surreptitiously questioning a charged, out-of-custody defendant. Although informers or undercover police officers may be placed in a charged defendant’s jail cell, they may not question the accused about the charged crime.41 These constraints do not, however

35

Massiah v. United States, 377 U.S. 201, 203–05 (1964). Fellers v. United States, 540 U.S. 519, 524–25 (2004). It should be recalled that the Miranda warnings need not be given to uncharged suspects when they are out of custody. 37 Patterson v. Illinois, 487 US 285, 290–95 (l988). 38 Montejo v. Louisiana, 556 U.S. 778, 789–95 (2009). 39 People v. Samuels, 400 N.E.2d 1344, 1346–47 (N.Y. 1980) (holding that an arrest warrant triggers the right to counsel, and that a person arrested on such a warrant may not be interviewed without counsel being present). 40 People v. Settles, 385 N.E.2d 6l2, 616 (N.Y. l978); Bradford v. State, 927 S.W.2d 329, 334–35 (Ark. 1996); State v. Forbush, 796 N.W.2d 741, 748–50 (Wis. 2011) (but only if defendant has invoked the right to counsel); State v. Lawson, 297 P.3d 1164, 1173–74 (Kan. 2013) (Miranda waiver of counsel is insufficient after charging); State v. Bevel, 745 S.E.2d 237, 242–43 (W. Va. 2013). 41 United States v. Henry, 447 U.S. 264, 269–70 (l980); Kuhlmann v. Wilson, 477 U.S. 436, 459 (1986). 36

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apply, if the goal of the interrogation is to elicit information about “uncharged crimes”,42 even if the “other crime” is closely related to the charged offense.43

Right to Counsel During Line-Ups According to the USSC, only a charged defendant has a 6th Amend. right to a lawyer during identification procedures, such as line-ups, as it determined this was a “critical phase” of criminal procedure due to the high error rate in identifications and the possibility of manipulation by the police.44 The USSC refused to extend the right to pre-charge line-ups, however, despite the existence of the same problems, even though the great majority of line-ups are conducted before a suspect is charged.45 The USSC, however, held that a post-charge photo identification procedure was not a “critical stage” in terms of the 6th Amend., as it was only a part of preparing witnesses to testify at trial.46

Right to Counsel During Other Procedures Involving the Accused The USSC has found that there is no 6th Amend. right to counsel during the taking of fingerprints or handwriting exemplars, or even more intrusive procedures such as taking blood or physical samples from a suspect, though such procedures may require a court order.47 New York has, however, recently recognized that taking a buccal swab of a charged defendant for the purposes of DNA analysis is a “critical stage” of the prosecution and defendant has a right to have counsel present.48

42

McNeil v. Wisconsin, 501 U.S. 171, 180–81 (1991). New York does not follow this rule. People v. Lopez, 947 N.E.2d 1155, 1156 (N.Y. 2011). 43 Texas v. Cobb, 532 U.S. 162, 168–69 (2001). Some States have refused to follow the holding of Cobb. State v. Conway, 842 N.E.2d 996, 1017–18 (Ohio 2006); Jewell v. State, 957 N.E.2d 625, 635–36 (Ind. 2011). 44 United States v. Wade, 388 U.S. 218, 236–37 (1967). 45 Kirby v. Illinois, 406 U.S. 682, 689–90 (1972). 46 United States v. Ash, 413 U.S. 300, 317–18 (1973). 47 United States v. Wade, 388 U.S. at 227–28. A Vermont statute, however, requires a lawyer to be present when a drunk-driving suspect is advised of the necessity of submitting to a test of his blood alcohol, because refusal is punished as a crime. State v. Velez, 819 A.2d 712, 716–17 (Vt. 2003). 48 People v. Smith, 92 N.E.3d 789, 790 (N.Y. 2017).

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There is also no 6th Amend. right for a target of an investigation by a grand jury,49 to have counsel present during his or her questioning.50 Nonetheless, around 20 states have enacted legislation that permits counsel to assist at least some witnesses, and especially suspects, during questioning by the grand jury.51 The suspect need not be given the Miranda warnings and has a duty to answer questions, though he or she may selectively refuse to answer individual questions which might incriminate them.52

1.4

The Right to Counsel at Trial and During and After Appeal

The 6th Amend. right to counsel continues through trial and sentencing and applies, as well, to hearings to violate probation where the state seeks to impose a previously suspended jail term.53 Although there is no constitutional right to appeal a conviction in the U.S.,54 all states allow direct appeals to at least one court and discretionary further appeals to the State Supreme Court or the U.S. Supreme Court. The USSC has held that there is a 6th Amend. right to counsel at the first appeal of right,55 but not during discretionary appeals to the higher courts.56 In the U.S., proceedings in habeas corpus in the federal and state courts are used as vehicles to re-open final judgments. There is, however, no 6th Amend. right to an appointed lawyer in such proceedings,57 even for death row inmates.58 Despite the USSC’s narrow interpretation of the 6th Amend. for post-conviction proceedings, many states do provide, either by statute, or by case law, for a right to

49 The grand jury is an inquisitorial panel of lay people supervised by the prosecutor, which has the power to subpoena witnesses, investigate charges, and decide whether there is sufficient evidence for a case to be charged. The right to be charged by grand jury is guaranteed by the 5th Amend. in federal cases, but is not required in all states. United States v. Navarro-Vargas, 408 F.3d 1184 (9th Cir. 2005). 50 Connecticut v. Gabbert, 526 U.S. 286, 292–93 (1999). 51 La Fave et al. (2018), 3:8.14b. 52 United States v. Mandujano, 425 U.S. 564, 574–75 (1976). 53 Mempa v. Rhay, 389 U.S. 128, 135 (1967). 54 McKane v. Durston, 153 U.S. 684, 687–88 (1894). 55 Douglas v. California, 372 U.S. 353, 357–58 (1963). 56 Ross v. Moffitt, 417 U.S. 600, 610 (1974). 57 Pennsylvania v. Finley, 481 U.S. 551, 555–56 (1987). 58 Murray v. Giarratano, 492 U.S. 1, 10 (1989); Gibson v. Turpin, 513 S.E.2d 186, 187–88 (Ga. 1999).

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counsel for discretionary review of convictions59 or for habeas corpus petitions, especially in serious or capital cases.60

1.4.1

Right to Waive Counsel and Defend Oneself

The 6th Amend. also guarantees that a criminal defendant who is capable of “voluntarily and intelligently” waiving his right to court-appointed counsel has a constitutional right to represent herself in pro se.61 In 1993 the USSC held that a paranoid schizophrenic defendant who was declared competent to stand trial after forced medication was presumably able to waive counsel and defend himself in a death penalty case.62 But in a later case, the high court held that a clear and unequivocal request by the accused to represent himself can be denied under limited circumstances: if the request is untimely and would require an unreasonable continuance of trial; if a defendant has shown a propensity to engage in seriously disruptive misconduct; if the defendant lacks the ability to make a knowing and intelligent waiver of counsel; or if the defendant lacks the requisite “mental competence” to conduct his own defense, thus weakening the precedential value of the Godinez case.63

1.4.2

Right to Communicate Freely with Counsel During Trial

Normally a defendant in even the most serious felony cases, such as death penalty cases, sits next to his or her lawyer at counsel table and they can freely communicate during the trial. Even if a defendant has been disruptive and must be restrained or limited in his movement, courts hold that they still must be able to confer with defense counsel.64 It is within the discretion of the trial judge to determine how long a lawyer may talk with his or her client during trial, and the extent it is allowed during breaks in the trial. A judge’s decision restricting time for conferring will only lead to reversal of a conviction if the lawyer can show it impaired his ability to give effective assistance to the client.65 It is permissible for a trial judge to prevent a

59

Kargus v. State, 162 P.3d 818, 821–22 (Kan. 2007). 21 U.S.C. § 848(q)(4)(B); Hain v. Mullin, 436 F.3d 1168, 1170–71 (10th Cir. 2006); Grayson v. State, 118 So.3d 118, 126–27 (Miss. 2013). 61 Faretta v. California, 422 U.S. 806, 835–36 (1975). 62 Godinez v. Moran, 509 U.S.389, 396–97 (1993). 63 Indiana v. Edwards, 554 U.S. 164, 177–78 (2008). 64 Pitts v. Redman, 776 F.Supp. 907, 922 (D. Del. 1991). 65 Stubbs v. Bordenkircher, 689 F.2d 1205, 1206 (4th Cir. 1982). 60

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lawyer from talking with his client during a short recess, but not for the entire trial or an entire overnight break.66 It is permissible, however, to prevent a defendant from communicating with his lawyer during a break in his own testimony,67 but not, for instance, to prevent the defendant from conferring with counsel during an overnight break between his direct and cross-examination.68

2 Attorney-Client Privilege 2.1 2.1.1

Basic Parameters of the Attorney-Client Privilege Policy Behind the Privilege

In a 1981 decision, the USSC stated: “The attorney-client privilege is the oldest of the privileges for confidential communications known to the common law. Its purpose is to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice (. . .).”69 It has been said that, in the criminal context, confidentiality between attorney and client should be treated like the church confessional.70 The relationship is seen as so crucial to the administration of justice that a lawyer’s duty of confidentiality never ends.71 An example of the strength of the confidentiality of lawyer-client communications can be seen in a California code provision adopted in 1850, patterned on the oath given advocates in the Canton of Geneva: “It is the duty of an attorney to: (. . .) maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client.”72 The attorney-client privilege in the U.S., has been defined and developed by the USSC, which has relied heavily on a treatise on the law of evidence by John Henry Wigmore, first published in 1904.73 Within a particular state, or the federal system, the rules regarding what information is strictly within the privilege, and when the lawyer has discretion to reveal such information or other information given the attorney in confidence, are typically governed by a set of rules adopted by the courts

66 Unites States v. Sandoval-Mendoza, 472 F.3d 645, 651–52 (9th Cir. 2006); Moore v. Purkett, 275 F.3d 685, 688–89 (8th Cir. 2001). 67 Perry v. Leeke, 488 U.S. 272, 283–85 (1989). 68 Geders v. United States, 425 U.S. 80, 88–89 (1976). 69 Upjohn Co. v. United States, 449 U.S. 383, 389 (1981). 70 Matter of Nackson, 534 A.2d 65, 69 (N.J. App. 1987). 71 Swidler & Berlin v. United States, 524 U.S. 399, 403 (1998). 72 Cal. Business and Professions Code § 6068(e). Cf. Hall (2017), §28.10. 73 Wigmore (1904). Cited in Cunningham and Srader (2017), pp. 318–319.

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based on a version of either the American Bar Association’s (ABA) “Model Rules of Professional Conduct” (ABA Rules) or its predecessor, the ABA “Model Code of Professional Responsibility.” (ABA Code).74 Another authoritative source for the rules has been American Law Institute’s “Restatement 3rd, Law Governing Lawyers” (Restatement).75

2.1.2

What Kinds of Communications Are Subject to the Privilege?

In his treatise, Professor Wigmore stated that the general contours of the attorneyclient privilege are as follows: “Where legal advice of any kind is sought from a professional legal adviser in his capacity as such, the communications relating to that purpose, made in confidence by the client, are at the client’s instance permanently protected from disclosure by himself or by the legal adviser, except if the protection be waived.”76 One of the most cited summaries of the privilege comes from Judge Wyzanski in a 1950 federal court decision: The privilege applies only if (1) the asserted holder of the privilege is or sought to become a client; (2) the person to whom the communication was made (a) is a member of the bar of a court, or his subordinate and (b) in connection with this communication is acting as a lawyer; (3) the communication relates to a fact of which the attorney was informed (a) by his client (b) without the presence of strangers (c) for the purpose of securing primarily either (i) an opinion on law or (ii) legal services or (iii) assistance in some legal proceeding, and not (d) for the purpose of committing a crime or tort; and (4) the privilege has been (a) claimed and (b) not waived by the client.77 One of the main exceptions in criminal cases which renders a communication not privileged, is when “the services of the lawyer were sought or obtained to enable or aid anyone to commit or plan to commit what the client knew or reasonably should have known to be a crime or fraud.”78 The USSC has stated that “the purpose of the crime-fraud exception to the attorney-client privilege (is) to assure that the ‘seal of secrecy’ (. . .) between lawyer and client does not extend to communications ‘made for the purpose of getting advice for the commission of a fraud’ or a crime.”79

74

Green (1996), p. 463. American Law Institute, Restatement, Third, The Law Governing Lawyers, 1986–2017, available at https://www.ali.org/publications/show/law-governing-lawyers/. 76 Wigmore (1904), § 2290. For similar language, see Restatement 1986–2017, § 86. 77 United States v. United Shoe Machinery Corp., 89 F.Supp. 357, 358–59 (D. Mass. 1950). Cf. Hall (2017), § 29:2. 78 Uniform Rules of Evidence (URE) 1974, Rule 502(d)(1). ABA Model Rule 1.2(d) also states that “(a) lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent.” This exception was already recognized in Clark v. United States, 289 U.S. 1, 14 (1933). 79 Unites States v. Zolin, 491 U.S. 554, 574–75 (1989). 75

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Attorney-Client Privilege for Corporations? In the U.S., corporations and other legal persons may be subject to criminal prosecution. Despite some dissenting voices, it is far and away the prevailing view, that the attorney-client privilege adheres between a lawyer and a legal entity, such as a corporation. The USSC also supports this view.80 Some courts have applied what is called the “control group” test, which recognizes corporate communications as privileged if the person making the communication to the lawyer was in a position to control or play a substantial role in an action subject to the lawyer’s advice or is an authorized member of the control group capable of “personifying” the corporation. Employees outside the “control group” would be treated as any “fact witness” who gives information to a lawyer and that information would be confidential and be part of “work product,”81 but would not be privileged.82 Many courts felt the “control group” test was too narrow, and preferred what is called the “subject matter test,” pursuant to which the privilege would cover some communications with counsel by employees outside the control group when they are authorized by corporate leaders to make the communication and it deals with the subject matter upon which the lawyer’s advice is sought.83 The USSC has championed an even broader conception of the privilege in relation to corporations. Upjohn Co. did an internal investigation of allegations of overseas bribery and the government then subpoenaed the reports of statements made by witnesses. The company claimed attorney-client privilege. The federal court of appeal applied the “control group” test and said the employees’ communications were not privileged. The USSC reversed, claiming the “control group” test “frustrates the very purpose of the privilege by discouraging the communication of relevant information by employees of the client to attorneys seeking to render legal advice to the client corporation.” It emphasized that employees beyond the control group often possess information needed by corporate lawyers and an extension of the privilege would foster greater overall corporate legal compliance.84 As a result of the Upjohn decision, the control group test is no longer applied in federal courts. The “control group” and “subject matter” tests are, however, still applied in state courts.85

80 Upjohn Co. v. United States, 449 U.S. 383, 389–90 (1981). Cf. Brown (2006), p. 925. See also URE 502(a)(1). 81 On “work product,” see the section ‘Discovery and “Work Product”’ below. 82 This test was first promulgated in Philadelphia v. Westinghouse Electric Corp., 210 F. Supp. 483, 485 (E.D. Pa. 1962). See Brown (2006), pp. 926–927. 83 This test was first enunciated in Harper & Row Publishers, Inc. v. Decker, 423 F.2d 487, 491–92 (7th Cir. 1970). Brown (2006), pp. 928–929. 84 Upjohn Co. v. United States, 449 U.S. 383, 391–93 (1981). 85 Brown (2006), p. 934.

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Is the Duty of Confidentiality Broader Than the Privilege?

§ 59 Restatement defines “confidential client information” as “consisting of information relating to the representation of a client, other than information that is generally known”, and it includes oral, documentary, electronic, photographic, or information in any form and includes work product. Even information that becomes known to others does not lose its confidential character as long as it is not “generally known.” Even information that the lawyer learns accidentally from third persons remains confidential if it concerns the client. ABA Code 4-101(A) differentiates between “confidence” which is information expressly protected by the attorney-client privilege and “secret” which is “other information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would likely be detrimental to the client.”86 In Texas, “confidential information” is divided into “privileged” and “non-privileged” information, yet the fact that information falls outside the attorney-client privilege or work-product immunity does not necessarily determine its confidentiality under the Texas code section.87

2.1.4

When May or Must the Lawyer Reveal the Content of Communications from Her Client?

Most of the rules applicable in the states and federal system clearly state that a lawyer shall not reveal any information related to representation of a client, whether “confidence” or “secret”, “privileged” or “not-privileged”, unless with the consent of the client or “the disclosure is impliedly authorized in order to carry out the representation of the client”.88 Most of the exceptions, such as the crime and fraud exception, are discretionary, indicating that “a lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes it is necessary”.89 The main exceptions for our purposes relate to the crime-fraud exception and a related exception dealing with client perjury or turning over incriminating physical evidence to law enforcement authorities. Another important exception involves revelations by the lawyer required to defend himself in a lawsuit brought by the client, or against an allegation of incompetence.90 I will not discuss this “lawyer self-defense” exception any further.91

This provision has been codified in New York. Hall (2017), § 28:11. Texas RPC 1.05(a); Hall (2017), §§ 28:12, 28:14. 88 ABA Rule 1.6(a); Cf. Cal. Rule 3-100(A). Such as in negotiations with the prosecutor to prevent charges from being filed or to secure an advantageous plea bargain. Hall (2017), § 28:19. 89 ABA Rule 1.6(b); ABA Code 4-101(C) also uses the phrase: “may reveal”. 90 United States v. Pinson, 584 F.3d 972, 977–78 (10th Cir. 2009). 91 ABA Rule 1.6(b)(5); ABA Code 4-101(C)(4); Restatement, § 64; Hall (2017), § 28:59. 86 87

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Discovery and “Work Product” Important in this context is the procedure of “discovery” in U.S. criminal procedure. Traditionally in the common law, the state or prosecutor had no right to discover any evidence gathered by the lawyer or her client until and if it was presented at the trial. In a similar vein, the defendant did not have to announce whether or not he would testify at trial until after the prosecution evidence and the other defense evidence had already been presented.92 Similarly, in many states the defense did not have to make an opening statement or announce, prior to putting on the defense case, whether a defense was contemplated, or what it might be. This has changed, however. In 1970, the USSC decided that a state could require the defense to announce whether it was relying on an alibi defense and to provide the names of the alibi witnesses.93 Since then, there has been an explosion of discovery statutes which allow the government to gain information related to the defense’s case. Today in most states the prosecution has been granted an independent right to discover at least one of following: defenses, witness names, statements of witnesses, reports of experts, documents and tangible evidence. Sometimes states require broad defense disclosure upon a request for discovery from the prosecution, which is the approach taken in the federal courts.94 The one area which has been traditionally immune from prosecution discovery (and defense discovery from the prosecution) has been what is called “work product”. The “work product privilege” is broader than the attorney-client privilege. As the USSC stated in a 1947 case: “Proper preparation of a client’s case demands that he assemble information, sift what he considers to be the relevant from the irrelevant facts, prepare his legal theories and plan his strategy without undue and needless interference. That is the historical and the necessary way in which lawyers act within the framework of our system of jurisprudence to promote justice and to protect their clients’ interests. This work is reflected, of course, in interviews, statements, memoranda, correspondence, briefs, mental impressions, personal beliefs, and countless other tangible and intangible ways—aptly though roughly termed (. . .) as the ‘work product of the lawyer.’ Were such materials open to opposing counsel on mere demand, much of what is now put down in writing would remain unwritten. An attorney’s thoughts, heretofore inviolate, would not be his own. Inefficiency, unfairness and sharp practices would inevitably develop in the giving of legal advice and in the preparation of cases for trial. The effect on the legal profession would be demoralizing. And the interests of the clients and the cause of justice would be poorly served.”95

92

Brooks v. Tennessee, 406 U.S. 605, 609–13 (1972). Williams v. Florida, 399 U.S. 78, 81–84 (1970). 94 See Fed. R. Crim. P. 16. For an excellent compendium of the change to prosecution discovery, see Mosteller (1986). 95 Hickman v. Taylor, 329 U.S. 495, 511 (1947). 93

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The “work product” doctrine has been gradually limited in criminal cases, though not eliminated. For instance, in California it applies only to writings reflecting an attorney’s impression, opinions, and theories, and would not apply to tests performed by a defense expert.96 It can yield, for instance, in relation to statements taken by investigators if a witness interviewed by the investigator testifies at trial and the content of the statement could be useful to cross-examine the witness.97 It has yielded when prosecution discovery of the statements taken by defense experts is permitted.98 However, if an expert is retained, and the defense does not intend to call her as a witness, it has been held to violate the right to counsel and the work product doctrine to subpoena the expert to testify about the tests she performed.99

2.2

The Crime-Fraud Exception

ABA Code 4-101(C)(3) describes this exception quite broadly as: “the intention of his client to commit a crime and the information necessary to prevent the crime.” ABA Rule 1.6(b)(1–3), more broadly paints out the kinds of information a lawyer may reveal, as information100: “(1) to prevent reasonably certain death or substantial bodily harm;101 (2) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer’s services; (3) to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client’s commission of a crime or fraud in furtherance of which the client has used the lawyer’s services.”102 Cal. Rule 3-100(C), however, also stipulates that before releasing information to prevent a criminal act, the lawyer should: make a good faith effort to persuade the client, not to commit the act that or to continue the acts which threaten death or substantial bodily harm, and inform the client of his decision to reveal the information. The revelation must be “no more than is necessary to prevent the criminal act” given what the lawyer knows, given the information known to the member at the time of the disclosure. The discretionary nature of the Cal. rule is emphasized in Cal.

96

People v. Zamudio, 181 P.3d 105, 128–29 (Cal. 2008). United States v. Nobles, 422 U.S. 225, 245–46 (1975). 98 Mosteller (1986), pp. 1657–1664. 99 State v. Dunn, 571 S.E.2d 650, 656–58 (N.C. App. 2002). 100 The rules of many large states are substantially similar to ABA Rule 1.6. Hall (2017), § 28:8. 101 Cf. Restatement, § 66(1). Cal. Rule 3-100(B) speaks of commission of a “criminal act reasonably likely to cause death or substantial bodily harm”. Hall (2017), § 28:10. 102 Restatement, § 67(1) contains language similar to subsections 2 and 3. Hall (2017), § 28:14. 97

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Rule 3-100(E), which says: “a member who does not reveal information permitted by paragraph (B) does not violate this rule”.103 A few states impose a mandatory duty on lawyers to disclose information given to them by clients relating to crime and fraud. The most mandatory disclosure rule is in New Jersey, where lawyers must disclose information to prevent the client: “(1) from committing a criminal, illegal or fraudulent act that the lawyer reasonably believes is likely to result in death or substantial bodily harm or substantial injury to the financial interest or property of another; (2) from committing a criminal, illegal or fraudulent act that the lawyer reasonably believes is likely to perpetrate a fraud upon a tribunal.”104 In addition, Congress, as a result of massive securities frauds revealed in 2001–2002, passed the so-called Sarbanes-Oxley Act of 2002 which requires lawyers licensed before the Securities and Exchange Commission (SEC) to become whistleblowers and report securities fraud up the chain of command in the company and to seek to rectify it. Corporate counsel can, of course be drawn into the SEC’s criminal investigation of a corporation.105 The attorney has a duty to report material violations of the securities laws to the chief legal officer and chief executive officer and this is deemed not to violate corporate confidences.106 An attorney retained to investigate for a company has no duty to report to the SEC if the attorney reports to the appropriate internal officers or committees. Likewise, an attorney retained to defend against an investigation or enforcement action has no duty to report. If, however, an attorney for an issuer of stock believes that the issuer has committed or is about to commit securities fraud, perjury, or make false statements to a government agency, the attorney may reveal to the SEC without the issuer’s consent, confidential information related to the representation to the extent the attorney reasonably believes necessary: to prevent a material violation likely to cause substantial injury to the financial interest or property of the issuer or investors (or to rectify damages or injuries already caused) or to prevent false statements likely to perpetrate a fraud upon the SEC.107 For the government to get access to evidence it believes relates to the crime-fraud exception, it must make an offer of proof. As to the amount of proof necessary, the USSC has held: “It is obvious that it would be absurd to say that the privilege could be got rid of merely by making a charge of fraud”. To drive the privilege away, there must be “something to give color to the charge”; there must be “prima facie evidence that it has some foundation in fact”. When that evidence is supplied, the seal of secrecy is broken.108

Hall (2017), § 28:10 and § 28:14. Restatement, § 66(3) also emphasizes this. N.J. RPC 1.6(b)(1–2). Hall (2017), § 28:13. 105 15 U.S.C.§ 7245; Hall (2017), § 28:31. 106 14 C.F.R. § 205.3(b)(1). 107 Hall (2017), § 28:31. 108 Clark v. United States, 289 U.S. 1, 15 (1933). 103 104

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A lawyer may disclose on-going or future crimes, but not past crimes, which remain confidential.109 In determining whether or not to make limited disclosure to prevent a client from committing a crime, a lawyer should consider the potential seriousness of the injury, the likelihood and imminence of its occurrence, and whether there is any other way to prevent the potential harm.110 The ABA has issued an opinion that the lawyer must believe “beyond a reasonable doubt” that the client will commit a crime in order to reveal this information.111

2.3

2.3.1

Defense Lawyer Duties in Relation to the Ascertainment of Truth: Dealing with Client Perjury, Handling of Incriminating Evidence The Problem of Client Perjury

ABA Rule 3.3(a) provides that: “A lawyer shall not knowingly: (1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer; (2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to be directly adverse to the position of the client and not disclosed by opposing counsel; or (3) offer evidence that the lawyer knows to be false. If the lawyer, the lawyer’s client, or a witness called by the lawyer, has offered material evidence and the lawyer knows of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal case, that the lawyer reasonably believes is false.” ABA Code 7-102(B)(1), on the other hand, prohibits a lawyer from breaching a confidence to reveal a fraud on the court.112 Some commentators claim that requiring a lawyer to reveal confidential information to the court if the lawyer knows that the client committed perjury conflicts with the lawyer’s duty to learn as much as possible about the client’s case and to inform the client of the lawyer’s duty to keep information confidential. They suggest that a lawyer should thus not follow ABA Rule 3.3(a)(3).113 The ABA itself shares this opinion.114

Hall (2017), § 28:33. Hall (2017), §§ 28:21–22, commenting on Cal. RPC-300 which goes into detail about the factors that should be taken into consideration before revealing future criminal conduct. 111 Hall (2017), § 28:25. 112 Hall (2017), § 28:32. 113 Freedman (2014–2015), pp. 1025–1026. 114 Ibid, p. 1027. 109 110

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In practice, there are several approaches a lawyer can take when he or she knows or suspects that a client will give false testimony at trial. First of all, the lawyer should counsel the client not to give perjurious testimony.115 The lawyer may advise the court of the perjury problem and lets the client testify in a narrative fashion, avoiding the normal question-answer style of direct examination. The lawyer should then not refer to the client’s testimony in his or her closing argument.116 However, some courts say this approach is only consistent with lawyer-client confidentiality if counsel actually “knows” and doesn’t just suspect that the testimony will be perjurious.117 Another approach is for the lawyer to withdraw from the defense of the would-be perjurious client,118 but some courts disapprove of this tactic if counsel only disbelieves client’s story.119 Some courts prefer that the lawyer reveal the perjury to the court, rather than asking to withdraw from the case.120

2.3.2

Handling Incriminating Physical Evidence

If a client reveals to counsel the location of stolen property or, for instance, a murder weapon, this is considered to be confidential and subject to the privilege, but the lawyer should try to persuade the client to reveal the location.121 If a client tells counsel of the location of the bodies of crime victims, the same approach is usually taken.122 If, however, there is a chance the victim is still alive, then the lawyer has discretion to advise the authorities.123 If a client turns over stolen property, an instrument of crime, such as a murder weapon, or other incriminating physical evidence to the lawyer, the evidence itself is not privileged from disclosure by either confidentiality or the attorney-client privilege124 and it should be turned over to law enforcement. The government can issue a subpoena duces tecum to compel the lawyer to turn over evidence in her

115

Preventing a client from testifying perjuriously does not constitute ineffective assistance of counsel. Nix v. Whiteside, 475 U.S. 157, 166 (1986). 116 People v. Johnson, 72 Cal.Rptr.2d 805, 810–11 (Cal. App. 1998); Commonwealth v. Mitchell, 781 N.E.2d 1237, 1249–50 (Mass. 2003); People v. Andrades, 828 N.E.2d 599, 600–02 (N.Y. 2005). 117 State v. McDowell, 681 N.W.2d 500, 514–15 (Wis. 2004). 118 State v. Berrysmith, 944 P.2d 397, 401–02 (Wash. App. 1997). 119 United States v. Midgett, 342 F.3d 321, 324–25 (4th Cir. 2003). 120 People v. DePallo, 754 N.E.2d 751, 753–54 (N.Y. 2001). 121 Hall (2017), § 28:28. Wemark v. State, 602 N.W.2d 810, 816–17 (Iowa 1999) (murder weapon). 122 People v. Belge, 372 N.Y.S.2d 798, 801–03 (N.Y. App. 1975). Cf. Hall (2017), § 28:29. 123 McClure v. Thompson, 323 F.3d 1223, 1243–44 (9th Cir. 2003). 124 People v. Lee, 83 Cal. Rptr. 715, 722–23 (Cal. App. 1970).

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possession.125 The lawyer may subject the evidence to tests or analysis,126 but it may not be altered.127 The act of production of the evidence is considered to be protected by the privilege and could not be introduced at trial,128 nor could the prosecutor subpoena the lawyer to testify that he received the evidence from the defendant.129 If the prosecutor discloses to the jury that defense counsel was the source of the evidence, this constitutes a violation of the attorney-client privilege.130

2.4

Consequences of Lawyer Breach of Duty of Confidentiality: Civil, Criminal, Disciplinary Liability

An attorney is subject to the professional responsibility rules of the jurisdiction in which she practices. Sanctions, which may range from fines and warnings, to suspension and disbarment, are enforced by the bar association to which she belongs. Some violations of the rules can, however, lead to criminal prosecution, such as when a lawyer refuses to turn over incriminating physical evidence, or tampers with or destroys it. In a Pennsylvania case, two public defenders were convicted of hindering the prosecution and tampering with evidence when they in good faith refused to turn over evidence until the middle of their client’s trial. The court, however, held that the law regarding tampering with evidence was vague when applied to criminal lawyers with their duties of confidentiality to the client.131 Another lawyer was charged in federal court with obstruction of justice for having destroyed child pornography it found on his client’s laptop computer and agreed to a plea bargain on a lesser charge.132

125

In re January 1976 Grand Jury, 534 F.2d 719, 728 (7th Cir. 1976) (money from a bank robbery). State ex. rel. Sowers v. Olwell, 394 P.2d 681, 685 (Wash. 1964) (knife used in murder); State v. Carlin, 650 P.2d 324, 327–28 (Kan. App. 1982). Restatement, § 119. Hall (2017), § 28:60. 127 People v. Meredith, 631 P.2d 46, 54 (Cal. 1981). 128 State ex. rel. Sowers v. Olwell, 394 P.2d 681, 684–85 (Wash. 1964). Cf. Hall (2017), § 28:37. 129 Anderson v. State, 297 So.2d 871, 873–75 (Fla. App. 1974). 130 Sanford v. State, 21 S.W.3d 337, 347 (Tex. App. 2002). Hall (2017), § 28:60. 131 Commonwealth v. Stenhach, 514 A.2d 114, 123–24 (Pa. Super. 1986). 132 United States v. Russell, 639 F.Supp.2d 226, 234–36 (D.Conn. 2007). 126

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3 State Intrusion into the Confidentiality of Attorney-Client Communications 3.1

Compelling Waiver of Attorney-Client Privilege as Part of Plea Bargaining

The U.S. Department of Justice (USDOJ) has adopted guidelines that encourage corporate lawyers to waive the attorney-client and work product privileges, so that the corporation will qualify as “cooperative,” and be eligible for significant mitigation of punishment under the United States Sentencing Guidelines.133 A survey conducted in 2006 revealed that federal government demands for privilege waivers have become the norm. Now governmental agencies believe it is reasonable and appropriate for them to expect a company under investigation to broadly waive attorney-client or work product privilege. This led the Federal Sentencing Commission on April 5, 2006, to remove the privilege waiver language from its commentaries.134

3.2

Subpoenaing the Attorney to Testify Against the Client

Another method by which law enforcement may obtain information from attorneyclient communications for use in a criminal prosecution, is to subpoena a lawyer before a grand jury to give testimony which may be used against his or her clients. If subpoenaed, the attorney may assert the attorney-client privilege on behalf of his client, but the court may still order the attorney to testify. USDOJ guidelines, however, recommend, that alternative means of obtaining the information sought be exhausted and that there be a showing that the need to subpoena the lawyer outweighs the harm done to the attorney-client relationship. The subpoena must then be narrowly tailored to avoid seeking privileged information.135 Since these guidelines went into effect in mid-1985, the subpoenaing of lawyers has increased drastically. In the first year, the USDOJ approved 411 subpoenas, about 33 per month. In the second year, federal prosecutors requested to subpoena 523 lawyers, of which 278 were for the grand jury and 85 for trial testimony. In the third year the sum rose to 410 requests for subpoenas of 649 attorneys.136 Although subpoenas are typically served on lawyers in civil cases, a 1985 study showed that

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Brown (2006), p. 898. Ibid., p. 946. 135 Cunningham and Srader (2017), pp. 360–361. 136 See Whitehouse v. U.S. District Court for Dist. of Rhode Island, 53 F.3d 1349, 1352–53 (1st Cir. 1995). 134

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criminal defense lawyers in white-collar crime and drug cases are the most likely to be subpoenaed.137 Although subpoenas of lawyers do not normally have to be approved by a court in the federal system,138 courts have criticized the use of subpoenas of defense counsel to testify against their clients claiming it will chill the openness of attorney-client communications and will undermine the right to have the lawyer of one’s choice, because once a lawyer testifies in a case, an immediate conflict arises, which can lead to the disqualification of the lawyer from further participation in the case.139 As one court put it: “The government would possess the ultimate tactical advantage of being able to exclude competent defense counsel as it chooses”.140 An attorney, when subpoenaed, has the right to invoke her client’s 6th Amend. right to counsel if the information sought by the prosecutor is covered by the attorney-client privilege. If attorney disqualification will likely result from the subpoena, the court, in deciding whether to enforce the subpoena, must balance the probative value of the information sought against the target’s possible loss of the counsel of choice. Courts will not, however, presume that the subpoena will lead to disqualification of the lawyer.141 An attorney can move to quash a subpoena142 and some states, in accordance with ABA Rule 3.8(3)143 and Restatement § 108(4), require that the prosecutor demonstrate that the lawyer’s testimony will be adverse to the accused, that it is admissible under the rules of evidence, and that there is a compelling need for the evidence which cannot be obtained from any other source.144 A Nevada law provides that the prosecutor and the grand jurors shall not: “(1) question an attorney or his employee regarding matters which he has learned during a legitimate investigation for his client, or (2) issue a subpoena for the production of the private notes or other matters representing work done by the attorney or his employee regarding the legal services which the attorney provided for a client.”145

Hall (2017), § 30:1. In re Grand Jury Proceeding, 721 F.2d 1221, 1223 (9th Cir. 1983). 139 See People v. Pasillas-Sanchez, 214 P.3d 520, 525–26 (Colo. App. 2009), holding that an attorney cannot serve as both lawyer and witness in the same trial unless the testimony addresses uncontested issues. 140 United States v. Rogers, 602 F. Supp. 1332, 1349–50 (D. Colo. 1985). For similar criticisms, see United States v. Perry, 857 F.2d 1346, 1347 (9th Cir. 1988); United States v. Klubock, 832 F.2d 649, 653 (1st Cir. 1987). Cf. Hall (2017), § 30:1. 141 In re Grand Jury Subpoena Served Upon Doe, 781 F.2d 238, 243–44 (2d Cir. 1986). Hall (2017), § 30:4. 142 F.R.Crim. P. 17(c) provides for a motion to quash in the federal system. 143 For similar rules, see: Colo. RPC Rule 3.8(f); N.H. RPC 4.5; Pa. RPC 3.10; R.I. RPC Rule 3.8(f); Tenn. RPC 3.8(f); W. Va. CPR 4-101(B). 144 Hall (2017), § 30:4. 145 Nev. Rev. Stat. § 172.139. 137 138

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Other states, such as Florida, Illinois, New York and the District of Columbia have rejected such rules.146 A lawyer’s failure to respond to a subpoena can be punished as contempt147 and can be punished by a jail term, but the contempt may be purged if the lawyer testifies.148 The National Association of Criminal Defense Lawyers (NACDL) has created a “Lawyers Assistance Strike Force” in all federal districts to represent lawyers without cost who have been subpoenaed, threatened or held in contempt etc. for trying to avoid revealing client confidences.149 An order to testify is appealable in most but not all jurisdictions.150

3.3

Subpoenaing Documentary or Physical Evidence from an Attorney

Subpoenas duces tecum are a valid and less intrusive measure than a search warrant to acquire documents and other items in the possession of lawyers and are preferred under U.S. Attorney’s Manual § 9–19.220–.221.151 Sometimes a subpoena is sufficient to gather a law firm’s e-mail records as well.152 If the material is covered by the attorney-client privilege, the lawyer must move to quash the subpoena and assert the privilege.153 The motion to quash can also allege that the subpoena is “unreasonable and oppressive”.154 The USSC has ruled that documents given by a client to her lawyer for the purpose of getting legal advice are privileged, and may not be subpoenaed if they could not have been subpoenaed from the client, before he turned them over, for instance, due to the 5th Amend. privilege against self-incrimination.155 The lawyer, however, cannot assert the privilege against self-incrimination for the client to resist a subpoena.156 If the lawyer is also a suspect, however, the lawyer may claim the privilege against self-incrimination in answer to a subpoena of his own documents, not based on the incriminating content of those documents, because no one forced him to create them, but because the act of producing them would be self-incriminating by

Hall (2017), § 30:6. F.R.Crim. P. 17(g). 148 Brown v. United States, 359 U.S. 41, 58 (1959); Hall (2017), § 30:7. 149 Ibid., § 30:7. 150 Ibid., § 30:9. 151 Doe v. DiGenova, 642 F. Supp. 624, 631 (D.D.C. 1986); Klitzman, Klitzman & Gallagher v. Krut, 591 F. Supp. 258, 269 (D.N.J. 1984); Hall (2017), § 30:5. 152 In re Grand Jury Proceedings, 43 F.3d 966 (5th Cir. 1994). 153 Hall (2017), § 30:2. 154 F.R.Crim. P. 17(c)(2). 155 Fisher v. United States, 425 U.S. 391, 403–05 (1976). Hall (2017), § 30:2. 156 Couch v. United States, 409 U.S. 322, 328–29 (1973). 146 147

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proving his possession of the documents, their authenticity, or that they are indeed the documents mentioned in the subpoena.157

3.4 3.4.1

Searches of Lawyer’s Offices Special Requirements Related to Probable Cause and Judicial Authorization

Two important issues are in the forefront when a lawyer’s office or a lawyer’s computer is searched, regardless of whether the lawyer or a client was the target of the search. The search must be limited so as to search and seize only the documents relating to the probable cause and not covered by the privilege and it is also crucial which organ will perform the initial search and perusing of documents to determine whether they may be seized, whether it be a judge, a member of the bar, or even a prosecutor. The narrowing of the scope of a search in the U.S. is called “minimization”. If the warrant is too broadly drafted, or the serving officers conduct the search in too broad a manner, lawyer’s files related to other clients, or the lawyer’s own personal files unrelated to the probable cause may be rummaged. Many courts have called attention to this problem and its implications for the attorney-client privilege, the privilege against self-incrimination, the 6th Amend. right to counsel and the 4th Amend. right to privacy.158 In Andresen v. Maryland,159 the USSC dealt with a search of the office of a lawyer who was a suspect in a land fraud. The list of documents sought in the warrant concluded with a “catch-all” phrase “together with other fruits, instrumentalities and evidence of crime at this time unknown”. The defendant properly argued that this phrase rendered the search warrant overbroad and in violation of the 4th Amend. The USSC, however, decided that the warrant should be read to only authorize seizure of documents pertaining to the lot involved in the alleged land fraud, and did not authorize a general search. It further held that evidence of other offenses found during the search could be seized where it was relevant to Andresen’s intent. In reality, the officers seized a huge number of documents and were ordered to return those not relating to the designated lot. The court noted that there are “grave dangers inherent in executing a warrant authorizing a search and seizure of a person’s papers that are not necessarily present in executing a warrant to search for physical objects”.

157

Fisher v. United States, 425 U.S. 391, 410 (1976). People v. Nash, 341 N.W.2d 439, 447 (Mich. 1983); Fenwick & West v. Superior Court, 51 Cal. Rptr.2d 294, 297 (Cal. App.1996); People v. Hearty, 644 P.2d 302, 303 (Colo. 1982). Hall (2017), § 30:10. 159 Andresen v. Maryland, 427 U.S. 463, 479–82 (1976). 158

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In Zurcher v. Stanford Daily,160 the USSC dealt with a third-party non-suspect newspaper which was alleged to have had criminal evidence in its possession for its own legitimate reporting purposes. The newspaper’s files were searched under a third-party warrant, but nothing was seized. The Court held that search warrants for evidence in the hands of those free of criminal involvement are permitted by the 4th Amend. and that 1st Amend. concerns relating to freedom of the press do not impose stricter standards on the government. Clearly, this means a lawyer’s office can be searched, as well, even when she is not herself a criminal suspect, and that the attorney-client privilege does not necessarily require heightened standards. Courts have generally held that the client maintains a reasonable expectation of privacy in information in the lawyer’s files which has been imparted for the purpose of seeking legal advice or preparing a defense even though the files are no longer under the client’s control.161 Courts have also held that the lawyer, whether suspect or not, has a duty to protect the attorney-client privilege and confidentiality of documents of all of her clients and oppose any search of these files.162

3.4.2

Special Requirements Where the Target of the Search Is the Client

U.S. Attorney’s Manual § 9–19.220–.221 specifically states that subpoenas should be used to obtain documents from non-suspect lawyers, unless the use of a subpoena would “substantially jeopardize the availability or usefulness of the materials sought” and the materials are “of substantial importance to the investigation or prosecution of the particular case”. If a search warrant is requested, it must be approved by a Deputy Assistant Attorney General unless there are exigent circumstances.163 Some states, however, categorically prohibit law office searches when the lawyer is not a suspect.164 The Minnesota Supreme Court has held that a search of a lawyer’s office when there is no probable cause that he is a potential suspect along with the client, is unreasonable under the 4th Amend., even if the search warrant was based on probable cause and narrowly described the documents to be seized. In such a case, it held that the search violated the attorney-client privilege, the attorney’s duty to preserve client confidences, the work product rule, and the client’s right to effective assistance of counsel under the 6th Amend. The court noted: “Even the most particular warrant cannot adequately safeguard client confidentiality, the attorney-client privilege, the attorney’s work product, and the criminal defendant’s constitutional right to counsel of all of the attorney’s clients. It is unreasonable, in

160

Zurcher v. Stanford Daily, 436 U.S. 547, 553–68 (1978). DeMassa v. Nunez, 770 F.2d 1505, 1506–07 (9th Cir. 1985). 162 People v. Superior Court (Laff), 23 P.3d 563, 569 (Cal. 2001) (suggesting lawyer should seek a court order preventing revelation of privileged materials). 163 28 C.F.R. § 59.4(b)(3); Hall (2017), § 30:5. 164 Or. Rev. Stat. § 9.695 (1981). 161

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any case, to permit law enforcement officers to peruse miscellaneous documents in an attorney’s office while attempting to locate documents listed in a search warrant. Even if it were possible to meet the particularity requirement regarding the place to be searched, the file would still contain some confidential information that is immune from seizure under the attorney-client privilege or the work product doctrine. Once that information is revealed to the police, the privileges are lost, and the information cannot be erased from the minds of the police”.165 Several courts have declined to follow the radical approach taken in Oregon and in Minnesota, however.166 But, some states which allow searches of non-suspect lawyer’s offices, have also promulgated special rules for conducting these searches which are stricter than those applying to normal criminal searches. California law provides for appointment of a “special master”, who is a lawyer and member of the California Bar selected by the Bar to conduct searches of lawyer’s offices. The “special master” accompanies the police officers when they serve the search warrant and themselves carry out the search. Cal. Penal Code § 1524(c)(1)–(3) provides: “Upon service of the warrant, the special master shall inform the party served of the specific items being sought and that the party shall have the opportunity to provide the items requested. If the party, in the judgment of the special master, fails to provide the items requested, the special master shall conduct a search for the items in the areas indicated in the search warrant. (2) If the party who has been served states that an item or items should not be disclosed, they shall be sealed by the special master and taken to court for a hearing. At the hearing the party searched shall be entitled to raise any issues which may be raised pursuant to Section 1538.5 [exclusion of evidence seized in violation of the 4th Amend.] as well as a claim that the item or items are privileged, as provided by law. (. . .) (3) Any such warrant must, whenever practicable, be served during normal business hours. In addition, any such warrant must be served upon a party who appears to have possession or control of the items sought. If after reasonable efforts, the party serving the warrant is unable to locate any such person, the special master shall seal and return to the court for determination by the court any item which appears to be privileged as provided by law.”167 Courts in states without such a law still require that appropriate minimization requirements are met,168 will often appoint “special masters”,169 and will also require that files that may contain privileged material be sealed, brought to court, and only revealed, to the extent necessary, after a court hearing.170

O’Connor v. Johnson, 287 N.W.2d 400, 400–05 (Minn. 1979); Hall (2017), § 30:12. In re Search Warrant B-21778, 521 A.2d 422 (Penn. 1987); Deukmejian v. Superior Court, 162 Cal. Rptr. 857, 862 (Cal. App. 1980). 167 See Hall (2017), § 30:12. 168 People v. Nash, 341 N.W.2d 439, 447 (Mich. 1983). 169 Hall (2017), § 30:14. 170 In re Grand Jury Subpoenas Dated December 10, 1987, 926 F2d 847, 858 (9th Cir 1991); In re Impounded Case (Law Firm), 840 F2d 196, 202 (3d Cir 1988). The American Law Institute, in §§ 165 166

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The U.S. Attorney Guidelines recommend that a “taint team” or “Chinese wall” composed of prosecutors not working on the particular case, be responsible for deciding which documents may be seized and potentially used in court. These prosecutors are not allowed to communicate information to the lawyers charged with investigation and prosecution of the case. “Special Masters” can be lawyers from the bar, as in California, or judicial officials. And finally, a judge at a hearing can, in camera, sort through the documents to make the admissibility decision. Most commentators feel a judge would do the best job.171 When the office and home of President Donald Trump’s personal lawyer Michael Cohen were searched pursuant to a warrant, in relation to hush money allegedly paid by him to a porn star, the President, in a sense, pleaded to let his own lawyers (not Cohen, of course), make a review of the documents seized. Cohen’s own lawyer, however, asked the court to appoint a “special master”. Cohen’s lawyers claimed the evidence seized by the FBI included “thousands if not millions” of documents protected by the attorney-client privilege and work product doctrine. The prosecutors wanted to use a “taint team” to do the review of the documents to see what might be privileged or irrelevant to the investigation.172 At the time the search warrant was served, President Trump tweeted: “Attorney-client privilege is dead!”173

3.4.3

Special Requirements Where the Search Relates to the Attorney’s Own Alleged Criminality

Clearly, when the lawyer is also a suspect in criminal activity, no court has imposed a complete ban on a search of the lawyer’s office and files. Yet the lawyer must still make every effort to protect the confidentiality of privileged and non-privileged communications in the files relating to her clients, whether implicated in the same criminal conduct, or not. Thus, even a lawyer-suspect may have a right to an in camera hearing to determine whether files are protected by attorney-client or work product privilege,174 and in California such a hearing must be held every time a law office is searched.175

220.2(4), 220.5 of its Model Code of Pre-Arraignment Procedure, has provided, that in situations “where documents are so intermingled that they cannot feasibly be sorted on site”, law enforcements should not search them until after a judicial hearing. This suggestion was followed in United States v. Tamura, 694 F2d 591, 595–96 (9th Cir 1982). See McArthur (2004), pp. 743 and 750. 171 United States v. Hunter, 13 S.Supp.2d 574, 583 (D. Vt. 1998); United States v. Neill, 952 F. Supp. 834, 840 (D. D.C. 1997); In re Search Warrant for Law offices Executed on March 19, 1992, 153 F.R.D. 55, 59 (S.D.N.Y. 1994). See McArthur (2004), p. 751. 172 Van Voris and Voreacos (2018). 173 Rubin (2018). 174 People v. Superior Court (Bauman & Rose), 44 Cal. Rptr. 2d 734, 739 (Cal. App. 1995). 175 Geilim v. Superior Court, 285 Cal. Rptr. 602, 608–09 (Cal. App. 1991). See Hall (2017), § 30:13.

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Even where a special master is not used, search warrants must narrowly describe the files which are the target of the search and the actual search must be conducted so as to minimize the reading of files that are outside the scope of the search warrant.176 In one case a search warrant was issued to investigate a lawyer’s fraudulent inflating of his clients’ medical bills. The warrant authorized the seizure of all of the firm’s closed personal injury files and some open ones. Police seized two thousand files and many other financial documents. The federal court of appeal invalidated the search, claiming the officers made no attempts to minimize the invasion of the clients’ privacy claiming: “this government rampage potentially or actually invaded the privacy of every client of the firm”. The court suggested using a subpoena process in such a case and, if a search warrant is resorted to, then the use of a special master.177

3.5 3.5.1

Interception of Confidential Communications Between Lawyer and Client Interception of Communications by Mail

Reading the letter of an inmate that he planned to send to his attorney violates his constitutional rights to free speech and assistance of counsel.178 SAMs may, however, be placed on correspondence between terrorism suspects and lawyers as was noted in Sect. 1.3.2, supra.

3.5.2

Use of Informants

In the seminal case, Weatherford v. Bursey, Bursey, and an undercover agent, Weatherford, were arrested for vandalizing a county army recruiting office. The undercover agent met with both Bursey and his counsel at trial planning sessions on two separate occasions in order to maintain his masquerade and avoid suspicion. Weatherford testified against Bursey and he was convicted. The Court relied on several factors to determine whether a 6th Amend. violation had occurred including: (1) whether the monitor’s identity had been revealed; (2) the purpose of the monitoring; (3) whether the information was revealed to prosecutors; and (4) whether the defendant could show actual prejudice in the preparation of or in the actual trial. Crucial was whether the overheard conversations produced, directly or indirectly, any of the evidence offered at trial. The Court found there was no evidence the

176

See People v. Hearty, 644 P.2d, 302, 311 (Colo. 1982). Klitzman, Klitzman and Gallagher v. Krut, 744 F.2d 955, 957–62 (3d Cir. 1984). See McArthur (2004), p. 743. 178 Nordstrom v. Ryan, 856 F.3d 1265, 1271–72 (2017). 177

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informant communicated contents of attorney-client conversations to the prosecutor, nor used any evidence derived therefrom at trial.179 Some courts find prejudice, however, simply if the attorney-client confidences were actually disclosed to the government, regardless of a showing of how they were used to the defendant’s detriment at trial.180 In a case similar to Weatherford, the California Supreme Court found that when the government intentionally used an undercover agent to pose as a co-defendant and thus take part in all attorney-client meetings (there were many defendants who had been arrested following a sit-in at a nuclear power station), and report the information to law enforcement officials, then there is a categorical violation of the right to counsel under the 6th Amend. and the California Constitution and the remedy is dismissal of the case.181 Generally, the use of a wired informant, who is not a co-defendant, to record conversations between lawyer and client has been held not to violate the attorneyclient privilege, because there is no privilege when third parties are present.182 In one case federal officials secretly placed a body bug on a lawyer and monitored conversations between the defendant and his lawyer. Although this definitely constituted an invasion of the attorney-client privilege, the court determined that the defendant, who had pleaded guilty, was not prejudiced as no evidence used against the defendant was gathered from the eavesdropping. The court also refused to find a general violation of due process on account of the outrageous nature of the government’s conduct.183

3.5.3

Wiretapping, Bugging and Intercepting Electronic Communications or Metadata

The Wiretapping Laws In 1968 Congress enacted the Omnibus Crime Control and Safe Streets Act, Title III (hereinafter: Title III) of which contained new wiretap legislation.184 Title III’s guidelines are minimal standards also for the states, which may, however, impose stricter standards for intercepting conversations. In 1986 Congress amended Title III with, among other things, the Stored Communications Act (SCA), which deals with stored e-mail, voice mail etc. Title III imposes stricter judicial control on interceptions of private communications than the 4th Amend. does in relation to search warrants. Only high-level

179

Weatherford v. Bursey, 429 U.S. 545, 557–58 (1977). United States v. Curcio, 608 F.Supp. 1346, 1356 (D.C. Conn. 1985). 181 Barber v. Superior Court, 598 P.2d 818, 826–28 (Cal. 1979). 182 State v. Soto, 933 P.2d 66, 76–77 (Hawaii 1997). 183 United States v. Ofshe, 817 F.2d 1508, 1510 (11th Cir. 1987). See Cunningham and Srader (2017), p. 336. 184 Pub. L. 90-351, 82 Stat. 197. The law is commonly called “Title III”. 180

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prosecutors may apply for a judicial wiretap order under Title III, whereas any police officer may apply for a search warrant. In addition, only high court felony trial judges may issue such an order. Although the definition of “probable cause” for obtaining an interception of communications is considered to be identical with that for obtaining a search warrant,185 the application presented by prosecutors for an interception order must, unlike with a search warrant, include “a full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous.”186 In 1978, Congress enacted the Foreign Intelligence Surveillance Act (FISA).187 Under FISA, the President of the U.S., acting through the Attorney General may authorize electronic surveillance without a court order to acquire foreign intelligence information for periods of up to 1 year as long as the measure targets agents of foreign powers or persons involved in international terrorism and as long as there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a U.S. citizen or permanent resident is a party.188 FISA established a special secret court, the U.S. Foreign Intelligence Surveillance Court (FISC), consisting of eleven federal district court judges, to receive requests for surveillance which might affect U.S. citizens or permanent residents.189 In the wake of the 9/11 attacks, President George W. Bush authorized the National Security Agency (NSA) to conduct warrantless wiretapping of telephone and e-mail communications where one party to the communication was located outside the U.S. and a participant in “the call was reasonably believed to be a member or agent of Al Qaeda or an affiliated terrorist organization”. This secret practice, which circumvented FISA, because it involved intercepting communications of U.S. persons, was revealed in 2005, originally caused an uproar, but was eventually rubberstamped by the FISC in January of 2007, and approved by Congress when it amended FISA in 2008.190 Under the new provision, the government is not required to demonstrate probable cause that the target of the electronic surveillance is a foreign power or its agent, nor does it require the government to specify the nature and location of each of the particular facilities or places at which the surveillance will occur.191 Electronic surveillance is freed of FISA constraints if it is “directed at a person reasonably believed to be located outside of the United States.” Thus, this telecommunications

185

United States v. Falcone, 505 F.2d 478, 481 (3d Cir. l974). 18 U.S.C. § 2518(1)(b). 187 50 U.S.C. § 1801 et seq. 188 50 U.S.C. § 1802(a)(1). 189 50 U.S.C. § 1803(a)(1). 190 Thaman (2018), pp. 259–260. 191 50 U.S.C. § 1881a. 186

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surveillance can include communications with a U.S. citizen or resident as long as the surveillance itself is not directed at that person.192

The Wiretapping Laws in Relation to Lawyer-Client Conversations If the prosecutor secretly eavesdrops on privileged conversations between a lawyer and client through bugging or wiretapping, then this would normally be considered to be a serious violation of the right to counsel. Some states have found that it creates an irrebuttable presumption of prejudice and the remedy is the disqualification of the prosecutor’s office in the case.193 An Indiana Prosecutor was recently suspended from the bar for 4 years without automatic reinstatement, after secretly listening into lawyer-client conversations in a local jail.194 Although prisoners do not have the same kind of expectation of privacy as do people on the outside,195 and thus in many ways are not protected by the 4th Amend.,196 federal courts have ruled that the confidentiality of the attorney-client relationship must be protected in prison and phone calls with lawyers should not be monitored.197 This protection does not extend, however, to prisoner-lawyer e-mail. Federal prisoners are told in advance, that if they use the prison computers, their communications are not private. The ABA and other groups have been seeking, however, to pass legislation protecting e-mail communications between lawyers and their imprisoned clients.198 Where attorney-client conversations have been intercepted per FISA, the federal courts only provide for a rebuttable presumption that privileged material was acquired. “Taint teams” are then tasked with maintaining the integrity of a defendants’ right to have privileged communications with his attorney.199 Any lawyer who is involved in representing accused or alleged terrorists and makes international phone calls in the course of this representation, could have had their telephone calls intercepted under the NSA program, without there having been

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Schwartz (2008), p. 308. State v. Quattlebaum, 527 S.E.2d 105, 109 (S.C. 2000). 194 In re Neary, 84 N.E.3d 1194, 1197–98 (Ind. 2017). In one case, the eavesdropping led to the discovery of a gun used in a homicide. 195 Hudson v. Palmer, 468 U.S. 517, 526 (1984). See Katz v. United States, 389 U.S. 347, 361 (1967) which held that the 4th Amend. only protects conversations and other activities where a person has a “reasonable expectation of privacy.” 196 United States v. Paul, 614 F.2d 115, 117–20 (6th Cir. 1980). 197 Lanza v. New York, 370 U.S. 139, 143–44 (1962); Krilich v. Federal Bureau of Prisons, 346 F.3d 157, 159 (6th Cir. 2003); United States v. Noriega, 764 F.Supp. 1480, 1485 (S.D. Fla. 1991). See Cassidy and Porsch (2004), p. 684. 198 “ABA Says Inmate-Lawyer E-Mails Should be Shielded”, Criminal Law Reporter (BNA), Feb. 10, 2016. https://www.bna.com/aba-says-inmatelawyer-n57982067171. 199 United States v. Neill, 952 F.Supp. 834, 841 (D.D.C. 1997). See Cassidy and Porsch (2004), p. 682. 193

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any judicial warrant or finding of probable cause under FISA. One FBI official was quoted as saying: “It’s not as if we’re targeting the lawyer for surveillance. It’s not like we’re eager to violate lawyer-client privilege. The lawyer is just one of the people whose calls from the suspect are being swept up.” Lawyers in such cases regularly tell their clients to assume that everything said is being monitored, thus chilling the use of the phone as a means of preparing a case.200 Indeed, a lawsuit was brought in part by lawyers with foreign clients, in order to compel the government to reveal whether or not their conversations had been monitored by the NSA, but the USSC rejected the suit, claiming the plaintiffs had no standing to sue, because they couldn’t prove their status as victims.201 But in one case, involving an Islamic charity suspecting of financing terrorism, the government mistakenly provided defense lawyers with a logbook of secretly intercepted phone calls stamped “top secret”.202 Although Title III requires minimization when it comes to lawyer-client conversations, as does FISA, this is not a prohibition. According to most federal cases dealing with the issue, “minimization” here simply means the listening and recording must stop when the parties have been identified and the conversation between them is determined to be “non-pertinent or privileged.”203 Unlike in the case of searches of lawyer’s offices, there is no neutral “special master” or judge to decide what conversation is privileged and what is not.204 The 2011 FISA guidelines for minimization, recently declassified, indicate that they only apply when the 6th Amend. applies, that is in relation to a person who has already been indicted in the U.S.205 “Minimize” also does not mean the officials listening to the conversations must immediately turn off their devices when they realize a lawyer is talking to a client. One federal appeals court stated that it would “be unreasonable to expect agents to ignore completely any call to an attorney” as “lawyers have been known to commit crimes”.206 At least one federal court also rejected a presumption of a prohibition on listening to any attorney-client conversations, unless there is probable cause that the conversation is privileged.207 There are still, however, disputes as to how long it is appropriate for agents to listen to a particular conversation before cutting off the procedure, and how often they may return to spot-check whether new conversations fall without the

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Shenon (2008). Clapper v. Amnesty International, U.S.A., 568 U.S. 398, 404–05 (2013). 202 Shenon (2008). 203 United States v. DePalma, 461 F.Supp. 800, 821 (S.D.N.Y. 1978). 204 McArthur (2004), p. 747. 205 Niarchos (2014). 206 United States v. Hyde, 574 F.2d 856, 870 (5th Cir.1978). 207 See United States v. Gotti, 771 F.Supp. 535, 543–44 (E.D. N.Y. 1991). 201

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privilege.208 In a fairly recent California case, police wiretapped the defendant on the eve of his trial, suspecting that he was intimidating witnesses. One of the calls intercepted was a discussion between the defendant and a defense investigator about what witnesses the defense might call and how the defense might respond to prosecution evidence. There was no attempt to minimize. The defendant’s mother was also listening in to this call. The defendant’s mother then related what was discussed in other telephone discussions with third parties. The California Supreme Court held that the attorney-client privilege did not apply, because the mother was listening in, and that the 6th Amend. right to counsel was not violated because the defendant couldn’t show that any information gathered was used against him at his trial. It also noted that the aim of the warrant was not to intercept calls with defendant’s defense team.209 The FISC, in a rare reported (but heavily redacted) case, refused to set aside rules permitting FBI agents, to collect, on domestic soil and without a warrant, international e-mails and phone calls of noncitizens abroad when they communicate with Americans, including lawyers. The court, however, criticized the NSA and the FBI for failure to set up special teams to review the communications of foreign targets who had been indicted, in order to screen out any information protected by attorneyclient privilege.210 Naturally, if there is probable cause that attorney and client are engaging in crime or fraud, conversations may be intercepted. For instance, a FISA warrant was used to reveal that Lynne Stewart, a human rights lawyer, was passing messages on behalf of a client convicted of terrorism, in violation of imposed SAMs.211

The Federal Bureau of Prisons Rule About Eavesdropping on Lawyer-Client Communications in Terrorism Cases In terrorism cases involving classified information, lawyers are required to undergo background checks that can include an FBI review of their financial and medical records, including records of psychiatric care.212 In addition, as we have noted above in Sect. 1.3.2, SAMs can be applied in such cases. One of these SAMs is a BOP Rule authorizing listening to and recording attorney-client conversations, which was introduced on October 31, 2001, without notice or opportunity for comment.213 According to this rule, when the Attorney General has reasonable suspicion “to believe that a particular inmate may use communications with attorneys or their

208

United States v. Cleveland, 964 F.Supp. 1073, 1097 (E.D. La. 1997) (allowing spot checks); McArthur (2004), pp. 749–750. 209 People v. Alexander, 235 P.3d 873, 888–93 (Cal. 2010). 210 Savage (2016). 211 Niarchos (2014). 212 Shenon (2008). 213 Cunningham and Srader (2017), pp. 311–313.

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agents to further or facilitate acts of terrorism,” the Director of the BOP is ordered to monitor or review communications between the inmate and his lawyer or members of his defense team which are traditionally covered by the attorney-client privilege, “for the purpose of deterring future acts that could result in death or serious bodily injury to persons, or substantial damage to property”. Except in cases where a judicial warrant has been obtained, the Director of the BOP “shall provide written notice to the inmate and to the attorneys involved, prior to the initiation of any monitoring or review,” that their communications may be monitored and that they are therefore not protected by the attorney-client privilege “if they would facilitate criminal acts or a conspiracy to commit criminal acts, or if those communications are not related to the seeking or providing of legal advice”. The BOP Rule then requires setting up a “privilege team” (like a “taint team”) made up of persons not involved in the investigation, to minimize the extent that any communications subject to the attorney-client privilege are not retained during the monitoring.214 The BOP rule increases the amount of time that SAMs of all kinds may be imposed, from 120 days to 1 year, with the possibility of additional 1-year extensions. Prior to the BOP rule, a prosecutor would have to have a prima facie showing that the conversation of a lawyer with her client fell within the crime-fraud exception to the attorney-client privilege, and could then ask a judge for an order to wiretap.215 The NACDL, in an Ethics Opinion, has held that a lawyer, when given notice by the Bureau of Prisons that all future conversations will be monitored, must immediately stop communicating with the client, for further communication may be interpreted as an impermissible affirmative disclosure of what would otherwise be privileged communications.216

Military Commission Cases Lawyers representing the highest level terrorist suspects housed at the U.S. prison in Guantánamo Bay, Cuba, have recently complained of the presence of secret microphones that have been monitoring their conversations with their clients. The Government admitted the presence of a hidden microphone in the room where lawyers met with Abd al-Rahim al-Nashiri, a Saudi facing death penalty charges over Al Qaeda’s bombing of the American destroyer Cole in 2000. The government, however, claims it was left-over from interrogations of Guantánamo detainees, and was not used to eavesdrop on privileged conversations. This led to the withdrawal of two members of al-Nashiri’s defense team, who did not believe the government’s explanation.217

28 C.F.R. § 501.3(d)(2–3). Cunningham and Srader (2017), pp. 317 and 326–327. 216 NACDL Ethics Opinion, 19, cited in Cassidy and Porsch (2004), p. 691. 217 Savage (2018). 214 215

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An Army colonel ordered the audio recording equipment in attorney-client meeting rooms to be disconnected, but not dismantled and acknowledged, that each meeting room also had at least two video cameras, one which could zoom in and read “very tiny writing” on documents examined during attorney-client visits.218 In March of 2013, the Office of Chief Defense Counsel (OCDC) for the military commissions discovered that there had been corruptions to and loss of electronic files containing attorney work-product, attorney-client communications, and other privileged and confidential documents on the hard drive OCDC is required to use for their Guantánamo defense work. OCDC internet communications were also being monitored and reviewed. Around the same time, it was confirmed that the government had searched 540,000 e-mails of the defense team of detainee Ibrahim al Qosi, and had gained access to all defense files.219 Defense counsel for the five co-defendants accused of planning and executing the 9/11 terrorist attacks jointly filed an emergency motion notifying the Military Commission that two FBI agents had interviewed the defense security officer (DSO) working for defendant Ramzi bin al Shibh’s team on Sunday, April 6, 2014, and compelled him to work as a secret informant for the FBI during the trial. A DSO is a legal team’s advisor and liaison to government agencies on security issues.220

4 Exclusionary Rules Related to Violations of the Attorney-Client Privilege and the Right to Counsel 4.1

Exclusion of Evidence Due to the Violation of the 6th Amendment Right to Counsel

It should be recalled, that the 6th Amend. right to counsel only inures after a person has been charged. When this right is violated and a statement or a confession of the defendant results, it may not be used in court.221 This is also the case when the use of a police informant violates the 6th Amend. and a confession results.222 An important issue is whether a 6th Amend. violation in the context of interrogation will also lead to exclusion of “fruits of the poisonous tree,” such as physical evidence. A simple Miranda violation will lead to exclusion of the confession but the confession may be used to impeach a testifying defendant as long as the Mirandadefective statement was not “involuntary” under the old due process involuntariness 218

Simon (2015), p. 354. Ibid., pp. 354–355. 220 Ibid., pp. 355–356. 221 Massiah v. United States, 377 U.S. 201, 203–04 (1964). 222 United States v. Henry, 447 U.S. 264 (1980). 219

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test.223 The USSC recently treated 6th Amend.-defective confessions in the same way.224 When it comes to physical evidence, however, a violation of the 6th Amend. may lead to exclusion of the physical fruits of a confession, whereas a plurality of the USSC has decided that a violation of Miranda will not, as long as the confession passed the old “voluntariness” test.225 The Brewer v. Williams case dealt with a situation where police intentionally violated Williams’ right to counsel and interrogated him with the intent of finding the body of the girl he allegedly raped and killed. He told them of its location. In a second decision on the same case, the USSC presumed that the body would have to be excluded if it was the “fruit” of the 6th Amend. violation. But it famously held that the body would have been “inevitably discovered” by a nearby search team, and therefore was not the fruit of the violation.226 Some other courts have also found that a violation of the 6th Amend. right to counsel is more serious than a Miranda violation and will lead to exclusion of physical evidence found as a result of the illegal confession.227 If the 6th Amend. violation is not due to police misconduct, but, for instance, because the lawyer abandoned the defendant during custodial interrogation, courts will not suppress even the statement, because the exclusionary rule is mainly meant to deter unlawful police conduct.228 If there is a violation of the 6th Amend. right to counsel during a post-charge lineup, the witness’s identification at the line-up is inadmissible, but any in-court identification of the defendant by the same witness is admissible, if the prosecutor can convince the court that there was an “independent source” for it, such as the memory of the witness, the time they had to see the suspect during the offense etc.229 Where the 6th Amend. violation consists in a violation of the attorney-client privilege either through a search of files, or any kind of eavesdropping on privileged communications, then the key issue is whether any fruits of the illegal search or interception were used at the trial. We have seen, in the previous section, that many courts will find no 6th Amend. violation, unless some of the evidence is used to convict the defendant. We have also seen, in the Barber case from California, that infiltrating an informant as a co-defendant into the defense team can lead to dismissal, rather than just exclusion of evidence. The tactic in that case led the defendants to mistrust

223

Harris v. New York, 401 U.S. 222, 226 (1971). Kansas v. Ventris, 556 U.S. 586, 594 (2009). 225 United States v. Patane, 542 U.S. 630, 643–44 (2004). In a few states, however, physical fruits of a Miranda violation are also inadmissible. State v. Knapp, 700 N.W.2d 899, 917–21 (Wis. 2005); Commonwealth v. Martin, 827 N.E.2d 198, 200–03 (Mass. 2005); State v. Peterson, 923 A.2d 585, 588–93 (Vt. 2007); State v. Vondehn, 236 P.3d 691, 695–98 (Or. 2010). 226 Nix v. Williams, 467 U.S. 431, 446–48 (1984). 227 United States v. Kimball, 884 F.2d 1274, 1278–80 (9th Cir. 1989). 228 People v. Frazier, 733 N.W.2d 713, 722–25 (Mich. 2007). 229 United States v. Wade, 388 U.S. 218, 241–42 (1967). 224

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their attorneys, refuse to cooperate rendered it impossible to properly prepare for trial.230

4.2

Exclusion of Evidence Due to Violation of the 5th Amendment Privilege Against Self-incrimination As It Relates to Attorney-Client Relations

In 2000 the USSC finally conceded what was obvious, that the Miranda warnings, which include warnings about the right to speak to a lawyer, are based in the 5th Amend. privilege against self-incrimination.231 Thus the inadmissibility of a confession obtained in violation of Miranda and, in some states, the fruits of the poisonous tree, are not admissible due to a violation of the privilege against selfincrimination.232 Early American jurisprudence viewed the attorney-client privilege as being related to the privilege against self-incrimination. Without the privilege, the defendant might refuse to communicate with his lawyer in order to preserve his privilege against self-incrimination.233 Some courts have also held that electronic monitoring by jail authorities of a criminal defendant’s conversations with his attorney violates the defendant’s 5th Amend. privilege against compelled self-incrimination.234 In a famous nineteenth century case, the USSC at one time held that responding to a subpoena for business records itself constituted a violation of the 5th Amend., in that the state was compelling a person to incriminate herself through producing selfincriminating documents.235 This was at a time, however, when the government only had the right to seize, through search or subpoena, fruits or instrumentalities of crime, or contraband. “Mere evidence”, consisting of private papers, were beyond the scope of police action. That doctrine was abolished, however, in 1967.236 In Sect. 3.3, supra, it was noted that a subpoena of documents can implicate the 5th Amend., if the act of production of the documents would tend to incriminate the person producing them, by admitting the documents exist, authenticating them, verifying possession of them and confirming that they were the documents described in the subpoena.237

230

Barber v. Superior Court, 598 P.2d 818, 826–28 (Cal. 1979). Dickerson v. United States, 530 U.S. 428, 437–38 (2000). 232 See Sect. 4.1, supra. 233 Cunningham and Srader (2017), p. 338. 234 Fajeriak v. State, 520 P.2d 795, 799 (Alaska 1974); People v. Holman, 356 N.Y.S.2d 958, 961 (N.Y. 1974). Cunningham and Srader (2017), pp. 338–339. 235 Boyd v. United States, 116 U.S. 616, 633–38 (1886). 236 Warden v. Hayden, 387 U.S. 294, 301–02 (1967). 237 United States v. Doe, 465 U.S. 605, 617 (1984); United States v. Hubbell, 530 U.S. 27, 36–37 (2000). 231

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The broader a subpoena, such as those that get close to requesting “all records,” are thus more likely to engender 5th Amend. issues through their production.238 If the production of papers would constitute a violation of the 5th Amend. privilege against self-incrimination, the contents of the papers would be the fruit of the poisonous tree and not usable at trial, even if the government granted the holder of the papers immunity for the act of production.239 Clearly a lawyer turning over his or her client’s records would not incriminate the lawyer, but it would violate the 5th Amend. if the client’s turning them over would have incriminated him in the way indicated. An exception to this, is if the records turned over were “required records” or if it was a “foregone conclusion” that the records existed and that the client possessed them.240 Where the law requires a company or corporation to keep records, it would be a “foregone conclusion” that such “required records” were in their possession.241 Unlike an individual criminal defendant, a corporation has no 5th Amend. privilege against self-incrimination.242 Even a closely-held corporation owned by one person243 or a small law office partnership244 would have no 5th Amend. right to resist a subpoena as a legal entity.

4.3

Exclusion of Evidence Due to Violation of the Right of Confidentiality in One’s Papers and Private Spaces As It Relates to Attorney-Client Relations (4th Amendment Issues)

Many courts have held that an attorney’s obligation to safeguard the attorney-client privilege as it pertains to his files and papers, from any attempted invasion of such protected confidences as they contain, would give him standing to claim an illegal search and seizure under the 4th Amend.245 In addition, searches of the offices of lawyers who are not suspects themselves are sometimes prohibited by statute, and

238 In re Grand Jury Subpoena, Dated April 18, 2003 (Doe v. United States), 383 F.3d 905, 910–12 (9th Cir. 2004); United States v. Ponds, 454 F.3d 313, 324–25 (D.C. Cir. 2006) (involving subpoena of criminal defense lawyer suspected of concealment of client fees). 239 United States v. Hubbell, 530 U.S. 27, 39–40 (2000). 240 In Hubbell, the government tried to claim that it was a “foregone conclusion” that “everyone has ordinary income, financial and business records.” The USSC rejected this notion. 530 U.S. 27, 29 (2000). 241 Shapiro v. United States, 335 U.S. 1, 18–19 (1948). “Required” records must be regulatory in nature. Grosso v. United States, 390 U.S. 62, 67–68 (1968). 242 Hale v. Henkel, 201 U.S. 43, 69–70 (1906). 243 United States v. Braswell, 487 U.S. 99 (1988). 244 Bellis v. United States, 417 U.S. 85, 95–96 (1974). 245 Schwimmer v. United States, 232 F.2d 855, 866 (8th Cir. 1956). McArthur (2004), p. 744.

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these statutes sometimes include their own explicit exclusionary rules. An Oregon statute provides, for instance, that “Evidence or the fruits thereof obtained in violation of this section shall be inadmissible in any criminal or civil action or proceeding (. . .).”246 The prosecutor or police could, theoretically, have probable cause that privileged communications contain evidence of crime, thus making a search warrant valid under the 4th Amend., yet the contents, as privileged, could not be used at trial. Some courts have claimed that law enforcement could use privileged information to further its investigation, as long as it, or its direct fruits, are not used at trial.247 Some federal courts have appeared to suggest, that while evidence of privileged communications unlawfully gathered must be suppressed, the derivative “fruits of the poisonous tree” may not always be inadmissible.248 A lawyer, who is not a suspect, whose office is searched with an overbroad or otherwise illegal search warrant, can enjoin the use of the evidence to protect the attorney-client privilege and lawyer confidentiality, but cannot move to suppress the evidence due to a violation of the 4th Amend. because she is not a defendant.249 The lawyer may move for return of the evidence seized.250

4.4

Exclusion of Evidence Due to Violation of the Right to Confidentiality of Communications Between Attorney and Client

Title III specifically prohibits the use of any intercepted privileged conversations between lawyer and client from being used in court.251 The Title III exclusionary rule is broader than the 4th Amend. exclusionary rule, applies to derivative evidence (fruits of the poisonous tree) and may be invoked not only in criminal trials: “no evidence derived therefrom may be received in evidence in any trial, hearing, or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, etc.”252 Fruits of illegal wiretaps may also not be used to impeach a

Or. Rev. Stat. § 9.695(4) (1981). Hall (2017), § 30:12. United States v. White, 970 F.2d 328, 336 (7th Cir. 1992). McArthur (2004), p. 737. 248 United States v. Squillacote, 221 F.3d 542, 560 (4th Cir. 2000); Nickel v Hannigan, 97 F3d 403,409 (10th Cir 1996); United States v. White, 970 F2d 328, 336 (7th Cir 1992). McArthur (2004), pp. 752–753. 249 Klitzman, Klitzman and Gallagher v. Krut, 744 F.2d 955, 960–61 (3rd Cir. 1984). 250 Fed. R. Crim. Pro.41(g), see Application of First United Financial Corp. for Return of Seized Property, 620 F. Supp. 1450, 1452 (E.D. N.Y. 1985). Hall (2017), § 30:15. 251 18 U.S.C. § 2517(4). 252 18 U.S.C. § 2515. FISA has a similarly expansive exclusionary rule. 50 U.S.C. § 1806(c,e). 246 247

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testifying defendant, as may the fruits of a search made in violation of the 4th Amend.253 Violations of provisions of Title III that were not “intended to play a central role” in the regulatory scheme, will not, however, necessarily lead to suppression of evidence otherwise legally gathered.254 The USSC has ruled that a violation of the minimization requirements in a normal case will not necessarily lead to exclusion.255 This is not, however, true when the wiretap order is aimed at conversations arguably falling within the attorney-client privilege. One federal court of appeal wrote: “Whatever errors the government may have made in the course of minimization were (. . .) adequately compensated by the suppression of the twenty-two calls themselves.”256 Other courts have indicated that suppression of all overheard conversations should be the result when the minimization rules in relation to attorneyclient conversations are not followed.257 Courts have also suggested that blanket suppression may be appropriate where agents in bad faith attempted to intercept privileged conversations.258 When the eavesdropping of conversations is not subject to Title III, or FISA, such as by putting listening devices in jails or police stations, then most federal courts will not even entertain a 4th Amend. challenge to exclude the contents of the communications.259

5 Criticism & Reform For years now, people have been writing about the failure of the American criminal justice system.260 One of the reasons for this lies in the state’s failure to fund public defender offices adequately enough to provide an effective defense. More than 80% of those prosecuted are poor and cannot afford to hire their own lawyer. Nearly all of them (around 95%) plead guilty and in more than half of these cases their courtappointed lawyer spent little if any time with them, and did virtually no investigation of possible defenses, before the plea was entered.261 The quality of appointed counsel is so bad in places that more than half of criminal defendants think defense

253

People in re. A.W., 982 P.2d 842, 849 (Colo. 1999). United States v. Chavez, 416 U.S. 562, 574–75 (1974). 255 Scott v. United States, 436 U.S. 128, 137–39 (1978). 256 United States v. Hoffman, 832 F.2d 1299, 1309 (1st Cir. 1989). 257 United States v. Turner, 528 F.2d 143, 156 (9th Cir. 1975); United States v. Suquet, 547 F.Supp. 1034, 1039 (N.D. Ill. 1982). McArthur (2004), p. 752. 258 United States v. Ozar, 50 F.3d 1440, 1448 (8th Cir. 1995). McArthur (2004), p. 752. 259 The only exceptions have been: Gennusa v. Shoar, 879 F. Supp. 2d 1337, 1348–49 (M.D. Fl. 2012) and Lonegan v. Hasty, 436 F. Supp.2d 419, 433–36 (E.D.N.Y. 2006). Simon (2015), p. 348. 260 For one example, see Stuntz (2011). 261 Backus and Marcus (2006), p. 1034. 254

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counsel work for the prosecution. The problem of the conviction of the innocent in the U.S., which has reached deplorable heights, even in capital cases, is partially due to ineffective assistance of counsel, but also negligent or outright dishonest practices of police and prosecutors.262 Of course, where the lawyer never meets the client, there is no problem of attorney-client privilege, eavesdropping, search of lawyer’s offices etc. Where there is no trial, there is also no problem with the admissibility of privileged material, if it has been illegally accessed. In most plea deals in the federal system, at least, defendants have to wave all their rights to appeal or to litigate issues, such as illegal searches, violations of attorney-client privilege etc., to get the deal. The incredibly long, at times, life-long prison sentences and the death penalty have made the U.S. plea bargaining system coercive, so that even innocents feel at times coerced into pleading guilty.263 But even with presumably well-paid corporate counsel, we have seen an erosion of trust between attorney and officials and employees of corporate clients caused by the practices of privilege waiver.264 Finally, it is the lawyers who defend those who face the most Draconian punishments, suspected terrorists, whether in the normal courts or in military commissions, who have seen the protection of the attorney-client privilege melt away as a result of SAMs and the BOP rule allowing monitoring of conversations. Just by declaring to prisoners and their counsel “we are listening in,” there is no more attorney-client privilege, no more expectation of privacy, no more ability to confer with counsel. Because of this grim backslide, the only reforms being suggested today are microreforms, which intend to somewhat improve the deteriorated situation. For instance, in relation to the “compelled-voluntary waivers” of the attorney-client privilege by corporate lawyers, there has been a suggestion of introducing the idea of a selective waiver of the privilege, for instance, in relation to USDOJ or other government agencies, while maintaining the privilege in other respects.265 A more cynical suggestion has been to require lawyers to give a kind of Miranda warning to officials and employees of their corporate clients, along the lines of: “anything you say to me might be revealed and could be used against you.”266 To avoid SAMs or eavesdropping on conversations in terrorism cases, some have suggested the creation of a USDOJ “Honor List” of attorneys for whom background and national security checks have been conducted. These attorneys could serve as defense counsel to suspected terrorists without being subjected to monitoring.267 Others have suggested that the federal system could also adopt an obligatory system of special masters who monitor conversations, thus taking the executive branch out

262

Thaman (2016), p. 75. Thaman (2010), pp. 370 and 374. 264 Brown (2006), pp. 900–901. 265 Ibid, p. 947. 266 Ibid, p. 939. 267 Cassidy and Porsch (2004), p. 695. 263

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of the role of themselves deciding what conversations are privileged and which are not.268 It has further been suggested that the rules of professional conduct be amended to require lawyers to disclose information to prevent death or injury, a rule which exists only in eleven states.269

References American Bar Association (ABA) Model Code of Professional Conduct (1969). https://www. americanbar.org/content/dam/aba/administrative/professional_responsibility/mrpc_migrated/ mcpr.pdf. Accessed 30 Aug 2019 American Bar Association (ABA) Rules of Professional Conduct (1983). https://www.americanbar. org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/. Accessed 30 Aug 2019 American Law Institute, Restatement, Third, The Law Governing Lawyers (1986–2017). https:// www.ali.org/publications/show/law-governing-lawyers/. Accessed 30 Aug 2019 Backus SB, Marcus P (2006) The right to counsel in criminal cases: a national crisis. Hastings Law Rev 57:1031–1130 Brown LT Jr (2006) Reconsidering the corporate attorney-client privilege: a response to the compelled-voluntary waiver paradox. Hofstra Law Rev 34:897–963 Cassidy C, Porsch C (2004) Government monitoring of attorney-client communications in terrorism-related cases: ethical implications for defense attorneys. Georgetown J Leg Ethics 7:681–695 Cunningham KV, Srader JL (2017) The post-9-11 war against terrorism: what does it mean for the attorney-client privilege? Wyoming Law Rev 4:311–363 Freedman MH (2014–2015) Lawyer-client confidentiality: rethinking the trilemma. Hofstra Law Rev 43:1025–1038 Green BA (1996) Whose rules of professional conduct should govern lawyers in federal courts and how should the rules be created? George Washington Law Rev 64:460–531 Hall JW Jr (2017) Professional responsibility in criminal defense practice, 3rd edn. Thomson, West. (digital edition) Israel JH (1963) Gideon v. Wainwright: the “Art” of overruling. Supreme Court Rev 1963:211–272 La Fave W, Israel JH, King NJ, Kerr OS (2018) Criminal procedure, 4th edn. Thomson, West. (digital edition) McArthur ED (2004) The search and seizure of privileged attorney-client communications. Univ Chic Law Rev 72:729–756 Mosteller RP (1986) Discovery against the defense: tilting the adversarial balance. Calif Law Rev 74:1567–1685 Niarchos N (2014) Has the NSA wiretapping violated attorney-client privilege? The Nation, 4 February 2014. https://www.thenation.com/article/has-nsa-wiretapping-violated-attorney-cli ent-privilege/. Accessed 30 Aug 2019 Rubin JS (2018) Warrants for Trump Lawyer Cohen Prompt “Special Procedure”. Bloomberg-Big Law Business, 10 April 2018. https://biglawbusiness.com/warrants-for-trump-lawyer-cohenprompt-special-procedure. Accessed 30 Aug 2019 Savage C (2016) Judge rejects challenge to searches of e-mails gathered without warrant. NY Times, 20 April 2016, p A7. http://www.nytimes.com/2016/04/20/world/judge-rejects-

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challenge-to-searches-of-emails-gathered-without-warrant.html?ref¼world&_r¼0. Accessed 30 Aug 2019 Savage C (2018) Guantánamo lawyers challenge government’s explanation for hidden microphone. NY Times, 13 March 2018. https://www.nytimes.com/2018/03/12/us/politics/guantanamo-hid den-microphone.html?rref¼collection%2Fsectioncollection%2Fus&action¼click& contentCollection¼us®ion¼stream&module¼stream_unit&version¼latest& contentPlacement¼2&pgtype¼sectionfront. Accessed 30 Aug 2019 Schwartz PM (2008) Reviving telecommunications surveillance law. Univ Chic Law Rev 75:287–315 Shenon P (2008) Lawyers fear monitoring in terrorism cases. NY Times, 28 April 2008, p A14. http://www.nytimes.com/2008/04/28/us/28lawyers.html. Accessed 30 Aug 2019 Simon R (2015) The criminal defense lawyer exception to the Fourth Amendment. Seton Hall Law Rev 45:347–382 Stuntz WJ (2011) The collapse of American Criminal Justice. Belknap Press, Cambridge Thaman SC (2000) Is America a systematic violator of human rights in its criminal procedure? St. Louis Univ Law J 44:999–1023 Thaman SC (2001) Miranda in comparative law. St. Louis Univ Law J 45:581–624 Thaman SC (2010) A typology of consensual criminal procedures: an historical and comparative perspective on the theory and practice of avoiding the full criminal trial. In: Thaman SC (ed) World plea bargaining: consensual procedures and the avoidance of the full criminal trial. Carolina Academic Press, Durham, pp 297–399 Thaman SC (2016) Ensuring the factual reliability of criminal convictions: reasoned judgments or a return to formal rules of evidence? In: Ross JE, Thaman SC (eds) Comparative criminal procedure. Edward Elgar, Cheltenham, pp 75–114 Thaman SC (2018) The U.S. Foreign Intelligence Surveillance Act and the erosion of privacy protection. In: Sieber U et al (eds) Alternative systems of crime control. Duncker & Humblot, Berlin, pp 217–282 Uniform Law Commission, Uniform Rules of Evidence (1974). http://www.uniformlaws.org/ shared/docs/rules%20of%20evidence/evid98am.pdf. Accessed 30 Aug 2019 Van Voris B, Voreacos D (2018) Trump document review would set dangerous precedent, prosecutors say. Bloomberg, 16 April 2018. https://www.bloomberg.com/news/articles/201804-16/trump-document-review-would-set-dangerous-precedent-u-s-says. Accessed 30 Aug 2019 Wigmore JH (1904) A treatise on the system of evidence in trials at common law. Little, Brown, Boston

Stephen C. Thaman (J.D., University of California, Berkeley; Dr. iur., University of Freiburg, Germany) is Professor of Law Emeritus at Saint Louis University, USA. He is the author of “Comparative Criminal Procedure: A Casebook Approach” (Carolina Acad. Press, 2nd edn. 2008), editor of “World Plea Bargaining” (Carolina Acad. Press, 2010) and “Exclusionary Rules in Comparative Perspective” (Springer, 2013), and co-editor of “Comparative Criminal Procedure” (Elgar, 2016). He was an Assistant Public Defender in Alameda County, California, from 1976–1987.