Austria finally implemented Directive 2013/48/EU, strengthening the right of access to a lawyer in criminal proceedings. On 1 November 2016, an amendment of the Austrian Code of Criminal Proceedings ("StPO") entered into force bringing significant improvements to protect the Attorney-Client Privilege. Finally, prosecution authorities are prohibited from seizing communications between defendants and attorneys outside the attorney's office.
1. Before the Amendment
In Austria, the attorney's right to deny testifying as a witness about information that was disclosed to him/her in his/her function as counsel to the defendant is stated in Section 157 StPO. This provision ensures the constitutional prohibition of procedural constraint to self-incriminate oneself.
To protect this Attorney-Client Privilege, Section 157 para 2 StPO prohibits circumventing the provision by such actions as seizing documents or data. However, jurisprudence stated that only communications located at the attorney's office were considered privileged. Information and documents located outside the attorney's office (e.g. the defendant's apartment) could be subject to seizure measures. This harmed the rights of defendants and was also questionable within the meaning of Article 6 ECHR which guarantees everyone charged with a criminal offence the right to defend oneself in person or through legal assistance.
2. After the Amendment
The new Section 157 para 2 StPO clearly sets forth that data and documents that (i) were created for the purpose of consultation or defence either by the defendant or the attorney fall within the provision (ii) regardless whether the data or the documents are in possession of the attorney or the defendant.
In practice, this means seizing communications between attorneys and defendants is also prohibited in cases where these communications are located outside the attorney's office (e.g. at the defendant's apartment). However, the requirement that all documents and data must have been created either by the attorney or the defendant raises questions. The concern is that this requirement will be interpreted as strictly as possible. Consequently, information that had been created by another person (e.g. a legal expert) and later handed to the defendant or the attorney would not fall within the provision. In addition, communications that are in the possession of a third party (e.g. the defendant's wife, another family member or a business partner) would still not be protected.