CYIL vol. 10 (2019)

CYIL 10 ȍ2019Ȏ LEGAL PROFESSIONAL PRIVILEGE IN INTERNATIONAL, EUROPEAN AND CZECH LAW Warrant; 61 in this context, a directive on a right to access to a lawyer was adopted. 62 Interestingly, it is much more similar in its scope to the ECtHR’s understanding of LPP, covering all modes of communication and not limiting its content, even though the term LPP itself is not mentioned: “Member States shall respect the confidentiality of communication between suspects or accused persons and their lawyer in the exercise of the right of access to a lawyer provided for under this Directive. Such communication shall include meetings, correspondence, telephone conversations and other forms of communication permitted under national law”. 63 Conversely, the protection is limited in its temporal scope, as it applies only to communication from an official notification that the person in question is suspected or accused of having committed a criminal offence. 64 This scope is arguably too narrow and we put forward that even communication pre-dating the initiation of investigation should be protected, that would however be more a question of national law than of the EU one. V. LPP in the Czech Republic Czech legal order does not employ the term legal professional privilege. Lawyers are bound by a duty of professional secrecy, 65 which is nonetheless, as we have discusses above, different form the concept of attorney – client privilege. The concept of LPP may nonetheless be identified in several areas of Czech law. 1. LPP in Czech Criminal Law The Constitutional Court of the Czech Republic (hereinafter referred to as “CC”) recognised that the individual provisions on communication between lawyers and their clients, contained in various pieces of legislation, “are a concretization of a constitutional right to defence within the meaning of Article 40 (2) of the Charter and a right to legal aid within the meaning of Article 37 (2) of the Charter, the essential constituent of which is a right to confer with a defence lawyer under conditions that do not convey information to authorities responsible for criminal proceedings ”. 66

61 2002/584/JHA: Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States. 62 Directive 2013/48/EU of the European Parliament and of the Council 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 (hereinafter referred to a “Access to Lawyer Directive”).

63 Access to Lawyer Directive, Art. 4. 64 Access to Lawyer Directive, Art. 2 (1).

65 Act No. 85/1996 Coll., on the legal profession, as amended, Section 21; relevant provisions of this act are accessible (in English) at: https://www.cak.cz/assets/act-on-legal-profession_219_2009.pdf (accessed on 15 June 2019). 66 Ruling of the CC of 3 January 2017, Ref. No. III. ÚS 2847/14; emphasis added.

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