CYIL vol. 10 (2019)

CYIL 10 ȍ2019Ȏ LEGAL PROFESSIONAL PRIVILEGE IN INTERNATIONAL, EUROPEAN AND CZECH LAW II. LPP Under the Convention The ECtHR forcefully advocates for the LPP protection. As it explained in the Campbell 5 case: “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”. 6 As far as the legal basis of the protection of communication between lawyers and their clients is concerned, the ECtHR employs both privacy (Article 8 of the Convention) and fair trial (Article 6 of the Convention). 7 Article 8 of the Convention guarantees the right to respect for private and family life, home and correspondence. The scope of the LPP under Article 8 of the Convention is thus very broad, as may be demonstrated on the abovementioned Campbell case. Mr. Thomas Campbell, then in prison, complained that his correspondence with his lawyer was scrutinised by the prison authorities in violation of Article 8 of the Convention; the prison authorities were prepared not to check only the correspondence specifically relating to a complaint that Mr. Campbell was preparing to lodge with the European Commission of Human Rights. The ECtHR concurred with Mr. Campbell and stressed that the communication with a lawyer is in principle privileged, whatever its actual content: “Admittedly […] the borderline between mail concerning contemplated litigation and that of a general nature is especially difficult to draw and correspondence with a lawyer may concern matters which have little or nothing to do with litigation. Nevertheless, the Court sees no reason to distinguish between the different categories of correspondence with lawyers which, whatever their purpose, concern matters of a private and confidential character. In principle, such letters are privileged under Article 8 […]. This means that the prison authorities may open a letter from a lawyer to a prisoner when they have reasonable cause to believe that it contains an illicit enclosure which the normal means of detection have failed to disclose. The letter should, however, only be opened and should not be read. […] The reading of a prisoner’s mail to and from a lawyer, on the other hand, should only be permitted in exceptional circumstances when the authorities have reasonable cause to believe that the privilege is being abused in that the contents of the letter endanger prison security or the safety of others or are otherwise of a criminal nature”. 8 In addition to that, Article 6 of the Convention may be invoked in order to protect the LPP, both the right to fair trial in general 9 and the right to defence in criminal proceedings in particular. 10 In case S. , 11 where the complainant challenged both the interference with his 5 ECtHR judgment of 25 March 1992 Campbell v. the United Kingdom , application no. 13590/88. 6 Ibid , par. 46 7 NAZZINI, R. Competition Enforcement and Procedure. Second Edition. Oxford University Press, 2016, p. 184. 8 ECtHR judgment Campbell v. the United Kingdom (sub 5), par. 48; emphasis added. 9 Art. 6 (1) of the Convention. 10 Art. 6 (3) (c) of the Convention. 11 ECtHR judgement of 28 November 1991 S. v. Switzerland , application no. 12629/87, 13965/88.

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