Austria: When the Public Prosecutor Comes Knocking: Is Communication with your Attorney Privileged?

Attorney-client privilege – a fundamental right

Article 6 Sec 3 of the ECHR (European Convention on Human Rights) stipulates the fundamental right of every defendant charged with a criminal offence to defend himself in person or through legal assistance. An indispensable prerequisite to efficiently execute this right is to communicate openly and without restrictions with the attorney about a case. In constant rulings, the ECHR acknowledges this privileged relationship between an attorney and his client.

In Austrian criminal law, this fundamental right is specified in Article 157 Sec 1 Para 2 and Article 157 Sec 2 of the Austrian Code of Criminal Procedure (“ACCP”). All attorneys have the right to refuse testimony as witnesses about all information which was disclosed to them in their function as counsel of the defendant. Thus, the refusal right covers in-formation that was disclosed to the attorney in his function as counsel of the defendant (i) by his client (ii) by a third party (iii) or in any other way. In order to avoid an undermining of this fundamental refusal right, Articles 144 and 157 Sec 2 of the ACCP prohibit circumvention of this refusal right, eg by confiscating the attorney’s documentation, data storage media and notes about the mandate or by questioning the attorney’s employees. Evidence obtained in violation of Articles 144 and 157 Sec 2of the ACCP is void by law.

The (now outdated) interpretation of Article 157 Sec 2 of the ACC of the Austrian Supreme Court

The Austrian Supreme Court argued that Articles 144 and 157 of the ACCP apply to attorneys (and other persons subject to professional confidentiality) only. In other words, the defendant himself or third parties were not protected by Articles 144 and 157 Sec 2 of the ACCP. Consequently, correspondence which was kept outside the attorney’s office or residence, for example in the defendant’s office or e‑mail account, could be searched, seized and confiscated by the prosecution authorities. As absurd as this may sound in this day and age, this resulted in severe limitations of attorney-client communication, ie clients had to be advised to refrain from e‑mailing their attorneys regarding criminal law advice or from keeping any opinions or memoranda in their office.

Even though this practice did not remain unchallenged, as notable scholars as well as the Austrian Bar Association repeatedly called for better protection of privileged attorney-client information, the Supreme Court refused to change its line of argument. Now it will finally have to, as Austria has implemented Directive 2013/48/EU on the right of access to a lawyer in criminal proceedings.

The (now outdated) interpretation of the Austrian Supreme Court

The new Article 157 of the ACCP enters into force on 1 November 2016. It stipulates that any documents or information disclosed to the attorney by the defendant or from the attorney to the defendant for the purpose of obtaining or giving legal advice or developing a defence strategy may not be seized, regardless of whether the information is in the possession of the attorney or the defendant himself. The initial draft intended to offer even broader protection, including all work-related information of an attorney, regardless of its location. However, the Supreme Court opposed this amendment in its statement on the draft bill. Thus, it is to be feared that the Supreme Court will insist on a very literal interpretation of the new provision and refuse to extend the protection to (i) information the attorney received from a third party, ie a legal expert and later handed over to the defendant, (ii) client privileged information that is not in the hands of the defendant but a third party, and (iii) information which was stolen or hacked from the attorney’s office.

How to prevent a seizure of privileged attorney-client documents in practice

In case of a house search, the defendant (either a natural person or in case of charges against a corporate entity, the entity itself) may object to the seizure of privileged communication and request that all such communication be sealed and separately stored with the court. Next, the court will order the defendant to specify and explain which documents are privileged. This statement and the sealed documents are then reviewed by the court that will decide which documents are privileged and must be returned to the defendant and which documents may be reviewed by the public prosecution authority. This decision of the court can be appealed by the public prosecution authority as well as the defendant.

The public prosecutor may no longer access the defendant's correspondence with his or her attorney, even if it is located outside of the attorney's office.

author: Klara Kiehl