CYIL vol. 15 (2024)

CYIL 15 ȍ2024Ȏ LAWYER’S CONFIDENTIALITY ȍLAWYER’S SECRECYȎ IN THE CASE LAW … In the Czech Republic, attorney’s confidentiality is explicitly enshrined in Section 21 of Act No. 85/1996 Sb., on the Legal Profession, according to which ‘ an attorney is obliged to maintain confidentiality of all facts of which he or she has become aware in connection with the provision of legal services ’ (attorney’s confidentiality is thus primarily derived from the existence of the attorney’s duty of confidentiality within the framework of the statutory regulation). 6 However, notwithstanding the cited provisions of the Advocacy Act, attorney’s confidentiality (protection of attorney’s secrecy) can also be inferred from constitutional guarantees, or rather from several fundamental rights and freedoms guaranteed by the constitutional order. In addition to the Charter of Fundamental Rights and Freedoms, the protection of professional attorney-client confidentiality (attorney-client privilege) is guaranteed by international human rights treaties, 7 in particular the European Convention, both in the context of the guarantee of the right to a fair trial, 8 but at the same time the protection of attorney client privilege (attorney-client privilege) is also derived from Article 8(1) of the European Convention, according to which ‘ everyone has the right to respect for his private and family life, home and correspondence .’ 9 There is already an established case-law of the European Court of Human Rights in the context of the guarantees under the European Convention, which can be demonstrated by several fundamental (and at the same time older) decisions of the European Court of Human Rights, such as the case Campbell v. The United Kingdom of 25 March 1992 (Application no. 13590/88), 10 or the case Herczegfalvy v. Austria of 24 September 1992 (Application no. 10533/83). The European Court of Human Rights has already made it clear in the aforementioned case of Campbell v. The United Kingdom, 11 that without effective protection of the confidentiality of communications between an individual and their lawyer, the right to legal aid would lose its factual meaning if (as in the present case) communications between a lawyer and a prisoner were, for example, subject to the control of the prison authorities, 12 6 Although the privilege of confidentiality is also reflected in the relevant procedural regulations, for more details see e.g., KOVÁŘOVÁ, Daniela, HAVLÍČEK, Karel, NĚMEC, Robert, SOKOL, Tomáš, SYKA, Jan, UHLÍŘ, David, ŽIŽLAVSKÝ, Michal. The Law on Advocacy and Statutory Regulations. Commentary . Prague: Wolters Kluwer, a.s., 2017, p. 315. 7 Which are part of the constitutional order on the basis of the conclusions of the so-called bankruptcy judgment (judgment of the Constitutional Court in case No. Pl. ÚS 36/01 of 25 June 2002). 8 KOVÁŘOVÁ, Daniela, HAVLÍČEK, Karel, NĚMEC, Robert, SOKOL, Tomáš, SYKA, Jan, UHLÍŘ, David, ŽIŽLAVSKÝ, Michal. The Law on Advocacy and Statutory Regulations. Commentary . Prague: Wolters Kluwer, a.s., 2017, p. 315. 9 E.g., HARRIS, David, O’BOYLE, Michael, WARBRICK, Colin. Law of the European Covention on Human Rights . London: Butterworths, 1995, p. 320; Similarly, the decision in Michaud v. France , Case No. 12323/11, of 6 December 2012. 10 On this in more detail e.g., HARRIS, David, O’BOYLE, Michael, WARBRICK, Colin. Law of the European Convention on Human Rights . London: Butterworths, 1995, p. 320. 11 This decision is emphasized in both older (e.g., HARRIS, David, O’BOYLE, Michael, WARBRICK, Colin. Law of the European Convention on Human Rights . London: Butterworths, 1995, p. 320; AUBURN, Jonathan. Legal Professional Privilege: Law and Theory . Oxford: Bloomsbury Publishing Plc, 2000, p. 39.), and in more recent (e.g., SCHABAS, William A. The European Convention on Human Rights: A Commentary . Oxford: Oxford University Press, Incorporated, 2015, p. 401.). Similarly, in the Czech commentary literature, e.g., KRATOCHVÍL, Jan. Chapter XVIII [The right to respect for private and family life (Article 8 ECHR)]. In: KMEC, Jiří, KOSAŘ, David, KRATOCHVÍL, Jan, BOBEK, Michal. European Convention on Human Rights . 1st edition. Prague: C. H. Beck, 2012, p. 878. 12 However, this right is not absolute and may be subject to limitations under Article 8(2) of the European

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