CYIL vol. 15 (2024)

CYIL 15 ȍ2024Ȏ

LAWYER’S CONFIDENTIALITY ȍLAWYER’S SECRECYȎ IN THE CASE LAW …

2. Current case report – Constitutional Court ruling No. IV. ÚS 662/23 of 21 November 2023

The Constitutional Court decided on a constitutional complaint filed by an attorney who had been summoned by a district court as a witness in a criminal case in which she had acted as a substitute for her chosen defence counsel during the preliminary proceedings. At the main hearing before the district court, the complainant (the lawyer) was to testify as a witness about what she knew about the crime and the perpetrator or about circumstances relevant to the criminal proceedings. The lawyer appeared at the main hearing in question and, in accordance with her duty, informed the court that she was to testify in the proceedings about facts subject to the duty of confidentiality, which were therefore subject to a prohibition on interrogation, 38 and refused to testify. The district court then imposed a fine on the lawyer for this action by three separate orders, the first order first imposing a fine of CZK 30,000 and then by two subsequent orders of CZK 50,000 each. The lawyer lodged complaints against all the orders, which were decided by the Superior Regional Court. The Regional Court set aside the second and third orders imposing a fine without further order. Although the Regional Court also annulled the first order challenged in the complaint (imposing a fine of CZK 30,000), it imposed a fine of CZK 3,000 on the lawyer. The Regional Court justified its action on the ground that the complainant was not subject to the prohibition on questioning under Section 99 of the Code of Criminal Procedure and was thus obliged to give evidence under Section 97 of the Code of Criminal Procedure. Since, in the Regional Court’s view, the complainant had failed to fulfill that obligation, it was appropriate to impose a fine of CZK 3,000, which the Regional Court considered adequate, since the complainant had been led to refuse to give evidence by her, in the Regional Court’s view, erroneous legal opinion. The complainant therefore turned to the Constitutional Court and lodged a constitutional complaint. In her constitutional complaint, the complainant argued that the general courts did not respect the existence of the attorney-client privilege and the duty of confidentiality of the attorney. In the complainant’s view, the general courts could not interfere with the attorney client privilege even by interpreting the principle of so-called substantive truth in such a way that the described procedure would make the lawyer an assistant of the state serving to convict their (albeit former) client. At the same time, the appellant argued that the original chosen counsel had not been legally relieved of the obligation of confidentiality (the lawyer had acted only as a substitute in the preparatory proceedings) and, even if that had been the case, she was entitled to assess whether the deprivation of confidentiality had been effected under duress or in distress. 39 The Constitutional Court upheld the lawyer’s constitutional complaint and quashed the contested order of the Regional Court, finding at the same time that there had been a violation of the complainant’s fundamental rights guaranteed by Article 2(3) of the Constitution of the Czech Republic and Articles 2(2), 11(1), 36(1), 37(3), and 38(2) of the Charter of Fundamental Rights and Freedoms. In the ruling in question, the Constitutional Court emphasized that it considers attorney client privilege to be 38 PAPEŽ, Vladimír, NESPALA, Marek. Duty of confidentiality. Bulletin of Advocacy . no. 4/2017, p. 57. 39 For example, VANTUCH, Pavel. Defender’s silence, waiver of confidentiality and his reporting obligation. Bulletin of Advocacy . no. 4/2013, p. 15.

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