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01 February 2014

When the public prosecutor comes knocking, does your communication with your attorney remain privileged?

In a recent statement, Austria’s public prosecution authority expressed its opinion on the legitimacy of accessing the correspondence between attorneys and their clients.

The attorney-client privilege — a fundamental right

Art 6 Sec 3 Para c ECHR stipulates the fundamental right of every defendant charged with a criminal offence to defend him- or herself in person or through legal assistance. The defendant’s ability to communicate openly and without restrictions about the case with his or her attorney is an indispensible prerequisite to efficiently execute this right. The ECHR’s rulings have consistently acknowledged this privileged relationship between an attorney and his client.

In Austrian criminal law, this fundamental right is specified through Art 157 Sec 1 Para 2 and Art 157 Sec 2 of the Austrian Code of Criminal Procedure (ACCP): All attorneys have the right to refuse testimony as witnesses about all information that was disclosed to them in their function as the defendant’s counsel. Thus, the refusal right covers information that was disclosed to the attorney in his or her function as counsel of the defendant (i) by his or her client, (ii) by a third party, (iii) or in any other way.

Further, in order to avoid an undermining of this fundamental refusal right, Art 144 and 157 Sec 2 ACCP prohibits any kind of circumvention of this refusal right, eg by confiscating the attorney’s documentation, data storage mediums, or notes about the mandate, or by questioning the attorney’s employees. Evidence obtained in violation of Art 144 and 157 Sec 2 ACCP is void by law.

A fundamental right for attorney’s only? 

However, unlike in Germany, Austria’s public prosecution authorities opine that Art 144 and 157 ACCP apply only to attorneys (and other person subject to professional confidentiality). In other words, the defendant him- or herself or third parties are not protected by Art 144 and 157 Sec 2 ACCP. Consequently, correspondence that is being kept outside the attorney’s office or accommodation, eg in the records of the company in which the defendant is working or in the defendant’s private email account, may be legally accessed and confiscated by the prosecution authorities.

Austria’s public prosecution authorities have even gone so far as to argue that a defendant may not invoke Art 8 ECHR, which provides a right to respect one’s correspondence, to fend off the confiscation the mutual communication. The authorities argue that the rights granted in Art 8 ECHR are subject to restrictions that are in accordance with the law and “necessary in a democratic society”.

This opinion of the Austrian public prosecution authorities did not remain unchallenged. Notable scholars follow the German doctrine, which calls for an extensive interpretation regarding the indefeasibility of communication between the defendant and his or her attorney. The German courts rule for an absolute prohibition against the confiscation of documents necessary for the defence (including the defendant’s own documents and documents to arrange the attorney’s engagement), regardless in whoever’s possession these documents are (including third parties) or where they are stored.

Conclusion and Outlook 

It remains to be seen, whether the critics of the public prosecution authorities will be heard by the courts. Currently a defendant’s communications with his or her attorney may be searched, seized and confiscated, if they are not kept in the hands of the attorney. As absurd as this may sound in the year 2014, defendants are better advised to avoid emails and stick to personal meetings at their attorney’s office.

The public prosecutor may access the defendant's correspondence with his or her attorney as long as it is not stored within the attorney's premises.

authors: Klara Kiehl, Mark Tuttinger