CYIL vol. 15 (2024)

VLADISLAV VNENK counsel can choose the appropriate defence tactics. 28 However, as highlighted above, the protection of legal professional privilege is provided not only in the context of legal aid in criminal cases, but also in the context of legal advice in general. 29 The commentary literature also places the attorney-client privilege under Article 40(4) of the Charter of Fundamental Rights and Freedoms, according to which the accused has the right to refuse to testify; this right may not be deprived in any way, where the existence of this fundamental right cannot be circumvented in such a way that the state forces an attorney to testify against their client, 30 although it must be added that such cases still occur, which will be discussed below in the context of a specific case. Thus, in order to respect the institution of attorney-client privilege, special provisions are also laid down, for example, for the search of attorneys 31 or the authorization of wiretaps within the meaning of the Criminal Procedure Code. 32 As a matter of principle, therefore, only the client may exempt the lawyer from confidentiality pursuant to Section 21(2) of the Advocacy Act (after the death of the client or the death of the client’s successor), since the protection of legal professional privilege serves to protect the interests of the client. 33 However, the protection of attorney-client privilege is not absolute, 34 whether it is a statutory obligation to prevent the commission of a crime 35 or if attorney-client privilege would be abused to commit a crime, 36 or in the context of reporting suspicious transactions in the framework of measures against the laundering of proceeds of crime and terrorist financing. 37 28 VANTUCH, Pavel. Defender’s silence, waiver of confidentiality and his reporting obligation. Bulletin of Advocacy . no. 4/2013, p. 13. 29 For example, the ECtHR decision in Altay v. Turkey of 9 April 2019 (Application no. 11236/09); 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. 30 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; MELZER, Filip. On the attorney’s duty of confidentiality. Bulletin of Advocacy . no. 1-2/2024, p. 11. 31 For example, HŘEBÍČEK, Václav. Searches at lawyers (§85b of the Criminal Procedure Code) . Prague: Leges, 2017. 32 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. 33 The Constitutional Court’s ruling, Case No. IV ÚS 662/23 of 21 November 2023. 34 E.g., the ECtHR decision Petrov v. Bulgaria of 22 May 2008 (Application no. 15197/02) or the ECtHR decision in Altay v. Turkey of 9 April 2019 (Application no. 11236/09). Similarly, cf. the Constitutional Court’s resolution of 25 November 2015, Case No. I. ÚS 3905/14, or the Constitutional Court’s ruling of 21 November 2023, Case No. IV. ÚS 662/23. 35 VANTUCH, Pavel. Defender’s confidentiality, waiver of confidentiality and his reporting obligation. Bulletin of Advocacy . no. 4/2013, p. 18; 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. 335. 36 E.g., the Constitutional Court’s ruling under Case No. IV ÚS 662/23 of 21 November 2023 or Case No. II ÚS 889/10 of 25 November 2010. 37 Constitutional Court Ruling, Case No. IV ÚS 662/23 of 21 November 2023; KOVÁŘOVÁ, Daniela, HAVLÍČEK, Karel, NĚMEC, Robert, SOKOL, Tomáš, SYKA, Jan, UHLÍŘ, David, ŽIŽLAVSKÝ, Michal. T he Law on Advocacy and Statutory Regulations. Commentary . Prague: Wolters Kluwer, a.s., 2017, pp. 327–328.

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