The right to remain silent and company lawyers –

By Isaac Ibáñez García

As identified by Professor Alonso García (The implementation by the Court Costituzionale of the multi-level protection of rights in the EU Part II: Consob matter”. WP IDEIR nº 38 (2021)):

“It needs to be famous that neither the European Conference on Human Rights (ECHR) nor the Constitution of Elementary Rights of the European Union (CDFUE) ponder, expressis verbis, the fitting to stay silent or not self-incriminating. The identical doesn’t occur, alternatively, with the Worldwide Covenant on Civil and Political Rights, whose article 14 provides “each particular person accused of against the law” the assure “to not be compelled to testify in opposition to himself or to admit responsible” ( part Three g) “.

A while in the past I said that, for my part, the elemental proper acknowledged in article 24.2 of our Structure, to “not testify in opposition to themselves and never confess responsible”, is likely one of the foundations of the privilege of confidentiality between legal professional and shopper and, due to this fact, of the fitting of protection.

Certainly, it’s the defendant’s perception that conversations along with his lawyer can’t be heard, since on this space of ​​confidentiality the defendant can switch elements of his conduct to his defender, even acknowledging the actual fact. This should be incardinated with the right-obligation to be defended by a lawyer. If self-defense have been acknowledged, the accused is evident that, apart from voluntary confession of the info, nobody would know of his participation in them. As there’s a third celebration, the lawyer who defends him, the accused should have full assurance (absolute assurance) that his conversations can’t be intercepted, since his basic proper can be violated. Even in essentially the most disgusting crimes, equivalent to terrorism, I perceive that the fitting can’t be violated, except there are indications that the train of protection and the standing of lawyer are getting used for the fee of latest crimes. Even on this case, what was mentioned between the accused and his lawyer couldn’t be used in opposition to him for the crimes for which he’s already accused.

The confidentiality of attorney-client relationships relies on the concept of absence of otherness. This concept implies that the Regulation and the authorized norms that kind it at all times discuss with the connection of a person with others (outdoors world). In our case and given the requirement of the defendant’s obligation to be assisted by a lawyer, we’ve got to take care of a authorized fiction: that the lawyer doesn’t exist, it’s the defendant himself and, due to this fact, the surface world, based mostly on the cited basic rights, they can not think about the communications between the lawyer and the shopper as current.

Commenting on the latest Judgment of the Court of Justice of the European Union of February 2, 2021 (Case C-481/19. Consob), Professor Alonso García (ob. cit) tells us that

“With regard to the reasoning of the CJEU concerning the Strasbourg doctrine, it was developed within the following phrases: 1) the proper to stay silent implicitly kinds the very foundation of the idea of truthful course of, serving to, by defending the accused from undue coercion by public authorities, to keep away from judicial errors and to ensure the targets of mentioned course of; 2) the fitting to stay silent, in a legal case, is especially violated when a suspect, below risk of being punished if he doesn’t confess, or confesses, or is punished for having refused to take action; 3) the fitting to stay silent can’t be moderately restricted to the confession of unlawful acts or observations that straight incriminate the celebration, but it surely additionally contains data on issues of reality that may later be utilized in assist of the accusation and thus have an effect on the conviction or sanction imposed on mentioned particular person “.

In my view, what is based by the CJEU referring to the jurisprudence of the Courtroom of Strasbourg, It additionally contains the lawyer of the celebration; that’s to say, to the data that the lawyer of the celebration could have and to which has been transmitted between each.

Nevertheless, the Courtroom of Justice has mentioned (amongst others, its Judgment of September 14, 2010. Case C.-550/07 P. Akzo Nobel Chemicals Ltd), relative to the protection of the confidentiality of communications between a lawyer and a company -When the lawyer is inner, in house-), what

92. It needs to be recalled that respect for the rights of the protection in any process that will give rise to sanctions, particularly fines or periodic penalty funds, constitutes a basic precept of European Union legislation that the case legislation of the Courtroom of Justice has highlighted on a number of events (see judgments of October 2, 2003, Thyssen Stahl v Fee, C ‑ 194/99 P, Rec. p. I ‑ 10821, paragraph 30; of June 29, 2006, Showa Denko v Fee, C ‑ 289 / 04 P, Rec. P. I ‑ 5859, paragraph 68, and of February 8, 2007, Groupe Danone v Fee, C ‑ 3/06 P, Rec. P. I ‑ 1331, paragraph 68), and has been enshrined in Article 48 (2) of the Constitution of Elementary Rights of the Union.

93. By this purpose, the appellants try to point out that the fitting of protection should embody the facility to be suggested, defended and represented by the authorized adviser freely chosen by them and that the safety of the confidentiality of communications between legal professionals and purchasers kinds a part of this proper, whatever the skilled standing of the lawyer in query.

94. On this regard, it needs to be famous that, when an organization addresses its in-house legal professional, it isn’t coping with an unbiased third celebration, however quite an individual who’s a part of its workers, with out prejudice to any skilled duties ensuing from its membership.

95. It needs to be added that, even assuming that consulting inner legal professionals, employed by the corporate or group of firms, was a part of the fitting to be suggested, defended and represented, this doesn’t exclude the appliance, within the occasion of the intervention of inner legal professionals, of sure restrictions and guidelines regarding the train of the occupation, with out it being doable to think about that this undermines the fitting of protection. Thus, firm legal professionals don’t at all times have the chance to characterize their employer earlier than all nationwide courts, whereas such guidelines restrict the chances open to potential purchasers in selecting essentially the most acceptable authorized adviser.

96. It follows from these concerns that any defendant who needs to hunt the recommendation of a lawyer should settle for such restrictions and situations for the train of mentioned occupation. The modalities for the safety of the confidentiality of communications between legal professionals and purchasers are a part of these restrictions and situations.

97. Consequently, the plea based mostly on the violation of the fitting of protection is unfounded ”.

In my view, the restrictions and situations of the train of the authorized occupation referred to by the CJEU in relation to the safety of the confidentiality of communications between legal professionals and purchasers should not justified and can be opposite to the fitting to stay silent and to the idea the idea of a good course of, by way of the jurisprudence of the ECHR.

Already on the nationwide degree, Spanish legislation doesn’t distinguish between inner and exterior legal professionals. Following Lord Denning, the lawyer’s responsibility of secrecy and due to this fact the confidentiality of communications between legal professionals and purchasers, “It’s not the privilege of the lawyer, however of his shopper”. Subsequently, the interpretation and scope of this privilege should be carried out with its major proprietor and recipient, the shopper, in thoughts.

The skilled secrecy of the lawyer and, due to this fact, the safety of the confidentiality of communications between lawyer and shopper contains “all of the info or information that they know by purpose of any of the modalities of their skilled efficiency ”. In different phrases, it covers each authorized advisory work with out connection to judicial processes or administrative procedures (together with recommendation on the initiation or methods to keep away from a course of), in addition to the judicial processes or administrative procedures themselves, no matter whether or not the lawyer and the shopper have obtained or obtained such data earlier than, throughout or after such processes.

The proper to the inviolability of communications between lawyer and shopper, as a manifestation of the elemental proper of protection, It can’t be restricted to the scope of the judicial course of, however to all the data transmitted between each (in any approach: written communications, phone, and many others.) earlier than, throughout or after a judicial course of. Take into account the case of a judicial investigation –additionally in an administrative proceeding- by which written communications are intervened between lawyer and shopper previous to the method (eg stories, notes, and many others.) and that will incriminate the shopper.

At current, the Spanish authorized system, by way of the rights and duties of legal professionals, treats on an equal footing each those that apply the occupation on their very own account and people who apply it as an worker.

This recognition is a part of the important content material of the fitting of protection and the privilege of confidentiality of communications. The shopper has the fitting to anticipate that communications along with his legal professionals, whether or not inner or exterior, get pleasure from the identical privilege of confidentiality.

Concerning firm legal professionals, the right thesis is the one held by the Competitors Protection Courtroom in its Decision of December 30, 1993 (File 333/93. PLACONSA), which understands that the technical capabilities carried out by professionals “They’re at all times exercised independently and are faraway from the managerial energy of the employer when working for another person (eg, physician, pilot, captain, and many others)”. This thesis coincides with that defended by Common Counsel Sir Gordon Slynn in his conclusions on the matter AM & S Europe Limited (As. 155/79. Judgment of May 18, 1982.

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