Amendments to the Austrian Code of Criminal Procedure bring substantial improvements to defendant's rights, but also facilitate the public authorities' access to confidential bank data. We have prepared a series of Legal Insights to inform you about these amendments: (i) Part 1 – Amendments regarding the Attorney Client Privilege (published today); (ii) Part 2 – Improvements to Defendant's Rights (published on 11 April); and (iii) Part 3 – New Rules regarding the prosecution authorities' access to bank data (published on 14 April).
1. 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 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. The ECHR constantly acknowledges this privileged relationship between an attorney and his client in its rulings.
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 to testify as witnesses about all information which was disclosed to them in their function as counsel to the defendant. Thus, the refusal right covers information that was disclosed to the attorney in his function as counsel to the defendant (i) by his client; (ii) by a third party; (iii) or in any other way. In order to avoid undermining 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 measures and 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.
2. Current Situation
Until now the Austrian Supreme Court argued that art 144 and 157 ACCP applies to attorneys (and other person subject to professional confidentiality) only. In other words, the defendant himself or third parties were not protected by art 144 and 157 sec 2 ACCP. Consequently, correspondence which was kept outside the attorney's office or accommodation, for example in the defendants office or e-mail account could be searched, seized and confiscated by the prosecution authorities. As absurd as this may sound in the year 2016, 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 memorandums in their office.
Even though this practice did not remain unchallenged, as notable scholars as well as the Austrian Bar Association repeatedly called for a better protection of attorney-client privileged information, the Supreme Court refused to change its line of argument. Now it will finally have to, as Austria has implemented the Directive 2013/48/EU on the right of access to a lawyer in criminal proceedings.
3. The Amended Provisions of the ACCP – Full Protection of Attorney Client privileged Communication
The new sec 157 of the ACCP, which enters into force on 1 November, 2016, now clearly stipulates that any documents or information disclosed (i) to the attorney by the defendant; or (ii) from the attorney to the defendant; (iii) for the purpose of obtaining or giving legal advice or developing a defense strategy may not be seized, regardless of whether the information is in the possession of the attorney or the defendant himself. In practice this means:
- In the event 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 is sealed and separately stored with the court.
- As a next stop the court will order the defendant to specify and explain which documents are privileged. This statement and the sealed documents will then be reviewed by the court, which 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.
Given the narrow wording of the new provision and the great resistance of the Supreme Court and the prosecution authorities against the amendment, it remains to be seen how this provision will be handled in practice. The fear is that the new "right" will be interpreted as restrictively as possible, eg by a refusal to extend the protection (i) to information that was not prepared by the attorney himself but received from a third party, for instance a legal expert, and later handed over to the defendant and/or (ii) to information that is not in the hand of the defendant but a third party ie, his wife, colleague or business partner. This is a concern.