Review article
https://doi.org/10.54070/hljk.32.2.3
CHALLENGES IN EXERCISING THE RIGHT OF A DEFENDANT TO CONFIDENTIAL COMMUNICATION WITH THE DEFENCE COUNSEL
Marija Đuzel
; Sveučilište u Splitu Pravni fakultet
*
* Corresponding author.
Abstract
The right to confidential communication between a defendant and the defendant’s defence
counsel is the starting point and conditio sine qua non of exercising the right to legal assistance
in criminal proceedings. Although this right is not expressly provided for in either the European
Convention on Human Rights or the EU Charter of Fundamental Rights, it is derived from
the right to legal assistance as a specific aspect of the right to a fair trial. The EU Directive on
the right of access to a lawyer in criminal proceedings reinforces the standards set in the case
law of the European Court of Human Rights. The issue of possible limitations and obstacles to
ensuring the confidentiality of conversations between a defendant and the defendant’s defence
counsel is most often related to situations in which the defendant is deprived of liberty, when
communication takes place under the supervision of state authorities. The ECtHR justifies
restrictions on this privileged relationship only in exceptional circumstances of abuse of this
privilege by the defence counsel and in cases of the most serious criminal offences. The use
of advanced communication technologies poses a challenge to ensuring the confidentiality of
correspondence with the defence counsel even when the defendant is at large, especially in cases
of monitoring and interception of conversations. The need to establish sufficient procedural
mechanisms to protect the right to confidentiality also arises in situations when the premises
and devices used for the lawyer’s professional activities are subject to search and seizure.
The paper analyses different aspects of protecting the confidentiality of communications
between the defendant and the defendant’s defence counsel established in national legislation
and practice, and the possible limitations of this right, all in the context of the standards adopted
in the ECtHR case law and the experiences of relevant comparative systems.
Keywords
defence counsel, defendant, confidentiality, fair trial, right to respect for private life *
Hrčak ID:
342376
URI
Publication date:
1.12.2025.
Visits: 425 *