CYIL vol. 15 (2024)

VLADISLAV VNENK one of the important components of the guarantee of the constitutionally guaranteed fundamental human rights to judicial protection under Article 36(1) of the Charter and to legal aid under Article 37(2) of the Charter, which requires special protection. It is one of the pillars on which the relationship of confidentiality between the lawyer and his client is built. The importance of that relationship of confidentiality in a democratic state governed by the rule of law is cardinal, since it constitutes a prerequisite for the real fulfilment of the right to qualified legal assistance in any particular case. The Court also notes that that right is an important corollary of the right to judicial protection and equality of arms, and that that right must not be limited by the fact that the lawyer’s client may fear that the confidentiality of the relationship with their lawyer will be breached and that they may not, because of that fear, disclose to the lawyer all the information necessary for the competent provision of legal assistance. In this respect, the Constitutional Court recalled the relevant decisions of the European Court of Human Rights and the guarantees arising from European Union law. As already mentioned above, the complainant (the lawyer and substitute for the previously chosen defence counsel) was imposed a fine in accordance with Section 66 of the Code of Criminal Procedure. However, pursuant to Section 66(3) of the Code of Criminal Procedure, ‘ if a defence counsel or a public prosecutor commits an act referred to in subsection (1) in proceedings before a court, he or she shall be referred to the competent authority for disciplinary action. This authority is obliged to inform the criminal prosecution authority of the result’ , and the Constitutional Court has interpreted that this limitation on the imposition of a fine also applies to the substitute of the defendant’s defence counsel. As far as the evaluation of this current ruling is concerned, it is a decision that can be described as extremely necessary, as the Constitutional Court has (repeatedly) inclined to the importance of the protection of attorney’s confidentiality (attorney’s secrecy) as a necessary attribute of the constitutionally guaranteed right to judicial protection and legal aid, and at the same time reminded (not only the general courts) of the importance of this institute in a democratic and legal state and the obligation of the public authorities to respect the confidentiality of the relationship between an attorney and their client. In this respect, the Constitutional Court did not deviate from its established decision-making practice, but at the same time it ruled in accordance with the case-law of the European Court of Human Rights and the Court of Justice of the European Union. 3. On the forthcoming amendment to the Advocacy Act The current national legislation is often criticized by the legal profession that the protection of attorney-client privilege is not sufficient, 40 in this context it is therefore to be welcomed that the Chamber of Deputies is discussing (Chamber of Deputies’ print 623) a government bill to amend the Advocacy Act, whereby, as the explanatory memorandum to the government bill states: 40 For example, Opinion of the Union of Advocates of the Czech Republic/ Czech Bar Association No. 1/2019 on the shortcomings of the legal regulation of the protection of the confidential relationship between an advocate and their client in criminal proceedings. Available at: https://www.uocr.cz/stanoviska/stanovisko-unie-obhajcu cr-c-1-2019-k-nedostatkum-pravni-upravy-ochrany-duverneho-vztahu-mezi-advokatem-a-jeho-klientem-v trestnim-rizeni/.

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