Posted 27th March 2014
The Law Society is concerned that a European Court of Human Rights (ECtHR) ruling, which found in favour of Turkish authorities recording meetings between a client and his lawyers, could have far-reaching implications for the confidentiality of the lawyer-client relationship.
The ECtHR ruled this week that the Turkish government was justified in recording confidential meetings between lawyers and militant leader Abdullah Ocalan, reasoning that national authorities should be able to impose ‘lawful restrictions’ on people charged with terrorist activities when such restrictions are ‘strictly necessary to protect society against violence’.
This decision comes despite article rule 22 of the UN Basic Principles on the Rules for Lawyers, which compels governments to recognise the confidentiality of lawyer-client communications.
The decision comes as 46 Kurdish and Turkish lawyers are on trial because of their work representing Abdullah Ocalan, leader of the Union of Communities in Kurdestan (PKK). PKK is recognised as a militant group.
The trial has been followed by the Human Rights Committee of the Law Society as well as many other European Bar Associations who have all expressed concern that the rights of the defendant lawyers under the European Convention on Human Rights have been violated during the course of the trial.
The lawyers on trial have been so since November 2011, charged under Turkey’s anti-terror legislation in Turkey for being members of an illegal organisation.
The defendants are accused of passing on Ocalan’s orders and forming part of an illegal leadership committee linked with the PKK. The lawyers all deny all charges.
The Law Society’s Human Rights Committee is concerned that, if left unchallenged, the ECHR decision to permit the recording of a confidential conversation between a lawyer and client could have implications for legal professional privilege in countries subject to the European Convention on Human Rights.
Professor Sara Chandler, chair of the Law Society’s Human Rights Committee, said:
’As it stands, the ECtHR decision allows legal professional privilege to be ignored in circumstances where the state expresses the view that confidentiality may lead to the commission of violent crimes. This stance is open to misuse by governments and, while the protection of society from violence must be paramount, respect for privileged communications between lawyers and their clients is essential except in the most extreme circumstances.
’This exception by the ECtHR to allow a government to record a lawyer-client meeting unfairly identifies the lawyer with the client’s activities, and, to an extent, undermines the UN Basic Principles on the Role of Lawyers.
‘We are hopeful that this decision will be reviewed by the Grand Chamber of the ECtHR so that more detailed consideration is given to the issue of when, if ever, legal professional privilege can be compromised.’
In the duties and responsibilities section of the United Nations Basic Principles on the Role of Lawyers, article 22 states: Governments shall recognise and respect that all communications and consultations between lawyers and their clients within their professional relationship are confidential.