Open AccessRestrictions on confidential communication between a lawyer and his client under the legislation of foreign countries and the practice of the ECHR
Author(s) -
V.V. Zaborovsky
Publication year - 2022
Publication title -
naukovij vìsnik užgorodsʹkogo nacìonalʹnogo unìversitetu. serìâ pravo
Language(s) - English
Resource type - Journals
eISSN - 2664-6153
pISSN - 2307-3322
DOI - 10.24144/2307-3322.2021.67.55
Subject(s) - confidentiality , legislation , limiting , law , business , set (abstract data type) , human rights , position (finance) , internet privacy , political science , law and economics , public relations , computer science , sociology , engineering , mechanical engineering , finance , programming language
This article reveals the problematic issues related to the implementation of one of the main guarantees of a lawyer's professional activity, namely ensuring the confidentiality of his communication with his client, in particular, regarding the possibility of limiting such confidentiality.
The study revealed the positions of foreign legislators, who set certain restrictions on the implementation of the guarantee of a ban on interfering in the private communication of a lawyer with his client. The positions of the European Court of Human Rights, which allow for the possibility of limiting the confidentiality of communication between them, are also analyzed. The position is argued, according to which Ukraine, along with many foreign countries, proceeds from the need to ensure absolute confidentiality of communication between a lawyer and his client.
To achieve this goal, the author used methods typical of legal science. The study was conducted using primarily a comparative legal method, which provided an opportunity to analyze the experience of foreign countries in implementing the guarantee of prohibition of interference in private communication with a client, while the formal-dogmatic method allowed to analyze the case law of the European Court of Human Rights.
The study allows us to conclude that a significant number of countries enshrining the right of a lawyer and his client to such communication, set certain restrictions on its implementation, in particular: an exception to the confidentiality of correspondence is possible if the judiciary has reasonable grounds to believe that it is criminal ( Italy); if there is a reasonable suspicion that the accused may violate the detention regime (Macedonia); or only in cases involving the establishment of terrorist organizations and criminal organizations abroad (Germany), etc.