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On the confidentiality of legal counselling

Case No. 17/94

THE CONSTITUTIONAL COURT OF
THE REPUBLIC OF LITHUANIA

 R U L I N G

On the compliance of Item 3 of Paragraph 2 of Article 58 of the Code of Criminal Procedure of the Republic of Lithuania with the Constitution of the Republic of Lithuania

18 November 1994, Vilnius

The Constitutional Court of the Republic of Lithuania, composed from the Justices of the Constitutional Court: Algirdas Gailiūnas, Kęstutis Lapinskas, Zigmas Levickis, Vladas Pavilonis, Pranas Vytautas Rasimavičius, Teodora Staugaitienė, Stasys Šedbaras, and Juozas Žilys

The court reporter—Rolanda Stimbirytė

The Constitutional Court of the Republic of Lithuania, pursuant to Paragraph 1 of Article 102 of the Constitution of the Republic of Lithuania and Paragraph 1 of Article 1 of the Law on the Constitutional Court of the Republic of Lithuania, in its public hearing, on 15 November 1994, considered case No. 17/94 subsequent to the petition submitted by the Second Vilnius City Local Court requesting an investigation into whether Item 3 of Paragraph 2 of Article 58 of the Code of Criminal Procedure is in conformity with the Constitution of the Republic of Lithuania.

The Constitutional Court

has established:

I

On 13 May 1994, the Second Vilnius City Local Court heard the civil case upon the complaints lodged by P. Makauskas and A. Liutvinskas against certain actions of officials.

Conforming to Article 81 of the Republic of Lithuania’s Law on Operational Activities, on 26 July 1993 A. Brazauskas and R. Dauginas were detained. They were charged under Article 96 of the Criminal Code, which provides liability for extortion of state and public property. The investigator from the Prosecutor’s Office of the Republic of Lithuania did not allow for the lawyers P. Makauskas and A. Liutvinskas to see their defendants. Such decision of the investigator was approved by the vice Prosecutor-General.

By its ruling, the Second Vilnius City Local Court suspended the investigation of this case and addressed the Constitutional Court with the petition requesting an investigation into whether Item 3 of Paragraph 2 of Article 58 of the Code of Criminal Procedure was consistent with Paragraph 6 of Article 31 of the Constitution.

II

The Second Vilnius City Local Court, the petitioner, bases its request on the following arguments.

In Paragraph 6 of Article 31 of the Constitution it is established that, from the moment of arrest or first interrogation, persons suspected or accused of a crime shall be guaranteed the right to defence and legal counsel. In the court’s opinion, Item 1 of Article 23 of the Law on the Bar provides concrete expression to this right as it entitles the counsel to the right to defend natural persons and represent them, likewise Article 24 of said Law which establishes prohibition to hinder the counsel from seeing the client face to face. Conforming to this, the court presupposes that Item 3 of Paragraph 2 of Article 58 of the Code of Criminal Procedure contradicts Paragraph 6 of Article 31 of the Constitution.

III

During the preliminary investigation of the case, Deputy Chairman of the Seimas Egidijus Bičkauskas, acting as the representative of the party concerned, submitted the following explanation.

The statement specified in the petition of the Second Vilnius City Local Court that Item 3 of Paragraph 2 of Article 58 of the Code of Criminal Procedure supposedly contradicts Paragraph 6 of Article 31 of the Constitution is groundless. The rules of this Article providing for the participation of the interrogator and investigator in the conversations of a counsel and his defendant, also the control over the correspondence with the suspect or the accused are absolutely in conformity with the sixth paragraph of Article 31 of the Constitution, which prescribes that, from the moment of arrest or first interrogation, persons suspected or accused of a crime shall be guaranteed the right to defence and legal counsel. Said norm of the Code of Criminal Procedure not only is in conformity with the Constitution but also is in accord with the underlying provisions of the Law on Criminal Procedure and is based on legal practice of foreign states and the logic of the reality our country’s judicial life.

Article 31 of the Constitution declares the right of persons suspected or accused of a crime to defence. The right to defence comprises the whole complex of rights vested by law in a person suspected or accused of a crime to defend oneself against suspicion or accusation. These rights are stipulated in Articles 17, 52, 59 and other articles of the Code of Criminal Procedure. The participation of a counsel for the defence in this procedure is only one of the forms of the realisation of the right to legal defence. This circumstance is purposely emphasised because one can get an impression that in legal practice the right to defence implies only participation of a counsel for the defence in the criminal procedure, whereas the fact that the content of this constitutional principle is much ampler is usually ignored.

In the first paragraph of Article 58 of the Code of Criminal Procedure it is established that “a counsel for the defence must use all the means and ways of defence specified in the law in order the circumstances justifying persons suspected, accused or convicted of a crime or those extenuating liability be exposed, and render legal support for mentioned persons”. This is a peremptory requirement of the Law on the Criminal Procedure.

Item 3 of Paragraph 2 of Article 58 of the Code of Criminal Procedure prescribes the right of a counsel for the defence to see his defendant detained or arrested for a crime face-to-face after the first interrogation. Therefore, it is important to emphasise that in this case the following provision of the Law on the Criminal Procedure is also valid: the content of the information obtained from the defendant or communicated to him may not contradict the requirement that the means and ways of the defence must be lawful. However, as legal practice proves, some counsels for the defence follow the principle “to win the case”. Such a position rather often contradicts the lawfulness of the counsel’s activity which is declared in the Law on the Criminal Procedure. Putting it more precisely, the counsel’s wish “to win the case” by all means goes counter to the principle of the criminal procedure implying that the court, the prosecutor, the interrogator and the investigator must take all the measures stipulated in the law in order to achieve a thorough and impartial investigation into the circumstances pertaining to the case, accusing as well as justifying the defendant, also circumstances attenuating or aggravating liability of the accused person. In other words, the law requires that authorities of legal protection should establish the truth in a case, which is not always in the counsel’s interests.

The Law on the Criminal Procedure, while obligating the interrogator and the investigator to fully and impartially examine the circumstances of cases, also provides for the preconditions of the investigation into these circumstances. The conditions and procedure for interrogative actions and adoption of decisions, also measures of procedural compulsion (measures of suppression, for instance) help to establish truth in a case. The norms of the criminal procedure also determine separate rules of preventive nature, the purpose of which is to guarantee the normal process of arguing. All this shall serve for a thorough and impartial investigation.

The legislature, conforming to the necessity of the control over evidence material, in Item 3 of Paragraph 2 of Article 58 of the Code of Criminal Procedure established such a rule by the Law of 10 December 1991: “In cases when there are grounds for maintaining that such meetings will have negative influence on a thorough and impartial investigation into the circumstances of the case, an interrogator or investigator shall be allowed to participate in the conversations between a counsel and a defendant and control the correspondence with a person suspected or accused of a crime within the first 15 days of detention or arrest; further participation in the conversations of a counsel and a defendant and control over correspondence shall be possible only on the consent of a prosecutor or a judge.” This is a sufficiently civilized procedural norm. It does not impair the right of persons to defence, i.e. such right to defence as it is interpreted by the now valid Code of Criminal Procedure.

Thus, the right established in Item 3 of Paragraph 2 of Article 58 of the Code of Criminal Procedure is in complete accordance with the set of procedural norms of special application that eliminate obstacles of the preliminary investigation. It entirely conforms to the notion of the right to defence based on law. Such a norm may not contradict the spirit and content of the provision of the sixth paragraph of Article 31 of the Constitution.

In the ruling of the Second Vilnius City Local Court it is held that the provision in question from the Code of Criminal Procedure does not agree with Article 24 of the Law on the Bar which runs: “It is forbidden to hinder the lawyer to meet his client face-to-face”. With regard to this, the following may be stated. Firstly, according to Article 1 of the Code of Criminal Procedure, the procedure for the investigation of criminal cases shall be established by the Code of Criminal Procedure, which is binding on all persons participating in the proceedings, lawyers among them. Therefore, while speaking about the matters concerning criminal procedure, it would be incorrect to conform to the Law on the Bar. Secondly, the Law on the Bar was adopted on 16 September 1992, and the new wording of Article 58 of the Code of Criminal Procedure was adopted on 10 December 1991. Consequently, the Law on the Bar was passed long after the new Article 58 of the Code of Criminal Procedure had been valid and applied in practice. However, the legislature has not established any competition of norms, and interpreted Article 24 of the Law on the Bar as the prohibition to hinder in non-permissible way the lawyer from meeting his client. Furthermore, the Law on the Bar speaks about the clients in general, whereas the Code of Criminal Procedure runs about a person suspected or accused of the crime, i.e. about the participant of the proceedings. Thus, the conditions established in the Law on the Criminal Procedure for the meeting of a counsel with his defendant, by no means may be considered as hindering. Such is the judicial procedure.

The Constitutional Court

holds that:

  1. In the sixth paragraph of Article 31 of the Constitution it is established: “From the moment of arrest or first interrogation, persons suspected or accused of a crime shall be guaranteed the right to defence and legal counsel.”

The right to defence is universally recognised and declared in international instruments. This right is normally established in the national legislation of states as well. Principle 17 of “The Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment”, approved by the 13 March 1989 Resolution (A/RES/43/1173) of the United Nations General Assembly, runs that a detained person shall have the right to legal counsel; immediately after arrest, a competent body shall inform him about this right and shall provide him with reasonable possibilities of exercising this right.

Item 3, Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms it is established: “Everyone charged with a criminal offence has the following minimum rights: (a) to be informed promptly, in the language which he understands and in detail, of the nature and cause of the accusation against him; (b) to have adequate time and facilities for the preparation of his defence; (c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; (d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; (e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court.”

  1. The norms of the Code of Criminal Procedure are actually in conformity according to their contents with the international instruments regulating the right to defence. For instance, Article 52 of this Code establishes the right of the accused: 1) to know what charges are brought against him and to give explanations with regard to the accusation; 2) to present evidence; 3) to make requests; 4) upon the termination of preliminary interrogation to get acquainted with the whole material of the case; 5) to have a counsel for the defence; 6) to participate in court hearing in the first instance court; 7) to claim objections or challenges; 8) to appeal against the actions and decisions of the interrogator, investigator, prosecutor and court. Similar rights of a person suspected of a crime are stipulated in Article 59 of the Code of Criminal Procedure. Under Article 17 of the same Code, the court, prosecutor, interrogator or investigator are obliged to guarantee for the accused a possibility for defending himself by the means prescribed in the law against the accusation, and to ensure the protection of his personal or property interests. Other articles of the Code of Criminal Procedure prescribe the procedure and ways for the implementation of the rights of a person suspected or accused of a crime.

After examination of the norms guaranteeing the right to defence the conclusion can be drawn that the content of this right comprises the whole system of the rights and procedural guarantees for a person suspected or accused of a crime which provides the possibility of denying or calling in dispute a suspicion or accusation.

According to the presumption of innocence determined in the first part of Article 31 of the Constitution, the burden of arguing in the criminal proceedings is laid on the authorities of interrogation and investigation. A person suspected or accused of a crime does not have to prove his innocence. However, exercising his right to defence, he may submit evidence or arguments that deny the accusation. In other cases the measures of defence may be used to reveal the circumstances attenuating liability. Therefore, defence serves as a purposeful balance for the criminal prosecution in order to protect the lawful interests of a person suspected or accused of a crime.

Constitutional right to legal counsel is particularised in various articles of the Code of Criminal Procedure. Article 53 of this Code determines the beginning of the participation of the counsel for the defence in a case, Article 55—the procedure for the invitation, appointment and replacement of the counsel, Article 56—cases when the participation of the counsel is obligatory. The first paragraph of Article 58 of the Code of Criminal Procedure contains the goals of the counsel’s participation in criminal proceedings: using measures and ways of defence prescribed by law to find out the circumstances that justify a person suspected, accused or convicted of a crime or alleviate his liability, and to provide legal assistance for him.

The goals of defence are in essence identical on the part of the suspect or the accused and their counsels for the defence. The procedural measures, by which said defence is realised, differ, however. They are determined by the specific character of the activity of a counsel as a professional jurist. The rights and duties of a lawyer as a participant of the process are defined by procedural laws, therefore, he independently realises some elements of defence taking into consideration the position of the defendant, though.

The right to legal counsel guaranteed by the sixth paragraph of Article 31 of the Constitution is realised in Article 53 of the Code of Criminal Procedure, which prescribes that a counsel for the defence may participate in the case from the moment of arrest or first interrogation. From that moment a counsel acquires the right to participate in the case throughout all criminal proceedings.

The duties and rights of a counsel for the defence are particularised in Article 58 of the Code of Criminal Procedure the second paragraph of which establishes the following rights: to get acquainted with the protocol of detention or the decision to bring a case, to participate in interrogation actions, ask for certificates and other documents necessary for defence, to state requests and objections or challenges, to appeal against the actions and decisions of the interrogator, investigator, prosecutor, judge or court, etc. Among those rights, there is the impugned provision stating that a counsel shall have a right “to see a detained or arrested defendant after the first interrogation face-to-face”, as well as cases when an interrogator or investigator is permitted to participate in the conversations between a counsel and a defendant. The counsel’s right to see a defendant stipulated in said Article is somewhat narrower than the right to have legal counsel which is established in Article 31 of the Constitution and echoed in Article 53 of the Code of Criminal Procedure. The emerging of this right in said Articles is defined as follows: “from the moment of arrest or first interrogation”. On the other hand, neither the impugned norm nor other provisions of the Code of Criminal Procedure contain the prohibition for a counsel for the defence to see his defendant from the moment of his detention. Such derivative right is presupposed by the general norm of Article 53 of the Code of Criminal Procedure which in fact literally echoes the norm of the sixth paragraph of Article 31 of the Constitution. In this respect, the wording of the norm of Item 3 of Paragraph 2 of Article 58 of the Code of Criminal Procedure is not precise enough, which is considered a lacuna the elimination of which shall be the prerogative of the legislature.

  1. The petitioner impugns the following provision of the second paragraph of Article 58 of the Code of Criminal Procedure: “In cases when there are grounds for maintaining that such meetings will have negative influence on a thorough and impartial investigation into the circumstances of the case, an interrogator or investigator may participate in the conversations between a counsel and a defendant and control the correspondence with a person suspected or accused of a crime within first 15 days of detention or arrest; further participation in the conversations of a counsel and a defendant and control over correspondence shall be possible only on the consent of a prosecutor or a judge.”

Criminal laws and laws on criminal procedure establish that every person who has committed a crime must be responsible for a crime in compliance with the laws. Provisions on criminal liability shall be implemented in the forms and ways determined in the Law on Criminal Procedure. Namely this way shall serve for the implementation of the main purpose of justice—to lawfully and fairly punish a guilty person. If such purpose were not achieved in criminal cases, the constitutional provisions that ensure the right to life (Article 19), the inviolability and human dignity of a person (Article 21), the inviolability of a person’s dwelling (Article 24) as well as other rights and freedoms, would lose sense.

The Code of Criminal Procedure, while regulating the participation of a counsel for the defence in a criminal case, emphasises the lawfulness of defence. In Article 58 of this Code it is determined that a counsel for the defence must use all the prescribed by the law measures and ways in order to achieve the goals of defence. While evaluating the provision of Item 3 of Paragraph 2 of Article 58 of the Code of Criminal Procedure from this perspective, the conclusions can be drawn that confidentiality of meetings shall be limited only in those cases when the suspicion arises that the meetings of a counsel and a defendant will have negative influence on the thorough and impartial investigation into the circumstances of the case. This provision shall not restrict the right to defence to a person suspected or accused of a crime provided that the measures and ways of lawful defence are used.

  1. The national laws of the European countries as well as international instruments also contain limitations for a counsel for the defence on meeting his defendant face to face. For example, the legislation of Sweden prescribe that confidential meetings are possible only on the permission of an investigator, prosecutor or judge. The refusal to permit such meetings may be appealed against by a lawyer. Article 45 of the Code of Criminal Procedure of Austria ensures the right for defendant to consult with his counsel without the presence of a court representative. However, by way of exception, when there are circumstances due to which the conversation between a lawyer and a defendant may have negative influence on the collection of evidence, the order may be given to observe the meetings of a lawyer with his defendant within first 14 days of arrest. The legislation of various countries normally guarantees the confidentiality of conversations between a person suspected or accused of a crime and his lawyer, however they also contain certain limitations on this right (for instance, such limitations are present in the laws on criminal procedure of Italy, Germany, Sweden, Belgium and other states. While establishing such limitations, the criminality rate on the whole and especially organised crime shall be taken into account. Such legal norms are aimed at preventing the participants of criminal proceedings from implementing their goals by unlawful measures.

Principle 15 of “The Body of Principles for the Protection of All Persons Under any Form of Detention or Imprisonment”, approved by the General Assembly of the United Nations runs: “Notwithstanding the exceptions contained in principle 16, paragraph 4, and principle 18, paragraph 3, communication of the detained or imprisoned person with the outside world, and in particular his family or counsel, shall not be denied for more than a matter of days.” Paragraph 3 of Principle 18 of this Body prescribes the following exception: the right of a detained or imprisoned person to be visited by and to consult and communicate, without delay or censorship and in full confidentiality, with his legal counsel may not be suspended or restricted save in exceptional circumstances, to be specified by law or lawful regulations, when it is considered indispensable by a judicial or other authority in order to maintain security and good order.

The possibility of putting limitations on the meeting of a counsel with his defendant has also been confirmed in the European Court of Human Rights in the case of Campbell vs. United Kingdom (1984). The European Court of Human Rights noted that the provisions of Article 6 (3) of the Convention for the Protection of Human Rights and Fundamental Freedoms may be given wider interpretation, i.e. under certain exceptional circumstances a state has the right to limit the confidentiality of legal consultation. When justified suspicions arise that a counsel for the defence abuses his procedural status and by the advice given to his defendant is misleading the court or otherwise hinders the normal run of the proceedings, a state may violate the principle of the privacy of legal consultations.

Therefore, the conclusion can be drawn that the national laws of the majority of democratic countries, the instruments of international organisations and the European Court of Human Rights provide for the legal preconditions for the limitations on the communication between a person suspected of accused of a crime and his counsel. However, there exists one general requirement: such limitations may be established only by law and within reasonable limits. The interpretation of this notion falls under the legislature’s jurisdiction, however observance of the main guarantees applied for the persons suspected or accused of a crime should not be ignored.

While evaluating the procedure for the limitations on the defendant’s meetings with a counsel, it should be noted that the guarantees to personal rights of a person suspected or accused of a crime established in the Code of Criminal Procedure the conception of which envisages the protection and extension of the adversarial principle, should also be subjected to particularisation. This may be done by more precise legal regulation of the actions of an interrogator and investigator also of the terms which limit the right of confidential meetings with a counsel and by the establishment of procedures and terms for appealing against these actions and consideration of complaints.

  1. The petitioner specifies that the constitutional right to defence as well as to legal assistance may be grounded on Item 1 of Article 23 and Article 24 of the Law on the Bar. A counsel in legal proceedings, just like other participants of the process, must abide by the Law on Criminal Procedure. Paragraph 2 of Article 1 of the Code of Criminal Procedure prescribes: “The criminal procedure prescribed by the Law on Criminal Procedure shall be uniform and binding in all criminal cases and to all courts, prosecutor’s offices, interrogation and investigation authorities, the bar, as well as other related enterprises, organisations and citizens.” The Constitutional Court holds that the question raised by the petitioner on the relationship among Item 3 of Paragraph 2 of Article 58 of the Code of Criminal Procedure also Paragraph 1 of Article 23 and Article 24 of the Law on the Bar is a question of the collision of norms, which does not fall under the jurisdiction of the Constitutional Court. The elimination of collisions is the legislature’s prerogative.

Conforming to Article 102 of the Constitution of the Republic of Lithuania as well as Articles 53, 54, 55, 56 of the Law on the Constitutional Court of the Republic of Lithuania, the Constitutional Court of the Republic of Lithuania gives the following

ruling:

To recognise that Item 3 of Paragraph 2 of Article 58 of the Code of Criminal Procedure of the Republic of Lithuania is in conformity with the Constitution of the Republic of Lithuania.

This ruling of the Constitutional Court is final and not subject to appeal.

The ruling is pronounced in the name of the Republic of Lithuania.

Justices of the Constitutional Court:

Algirdas Gailiūnas                           Kęstutis Lapinskas                           Zigmas Levickis

Vladas Pavilonis                              Pranas Vytautas Rasimavičius         Teodora Staugaitienė

Stasys Šedbaras                               Juozas Žilys