ECHR: Estonian law does not protect attorney-client privilege sufficiently

Jaanus Tehver.
Jaanus Tehver. Source: Anna Aurelia Minev/ERR

Estonian laws don't ensure attorney-client privilege from law enforcement authorities sufficiently, the European Court of Human Rights (ECHR) said in a decision made on Tuesday.

"We have repeatedly criticized the light-handed search and obtaining of client material of law firms and attorneys," chairman of the board of the Estonian Bar Association Jaanus Tehver said. "A client's right to consult confidentially without the state intervening is the basis of fair jurisdiction. The ECHR stated that this right isn't enough protected within the law in Estonia."

Since the laws don't protect the attorney-client privilege enough, Estonia is violating Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms, the court decided.

The decision stresses that domestic Estonian laws don't ensure the protection of the data of external clients during searches of a law firm. According to the court's assessment, Estonian law also fails to safeguard against the protection of copies of a lawyer's materials from unauthorized people. In addition, there is no concrete regulation regarding searching the attorney's materials outside of the law firm, for example at their home or in their vehicle.

Tehver said that the handling of the client confidential materials during the course of the search of a law firm depends on the quality and goodwill of the processors although it should depend on the law.

"There have been searches which have considered the need for protecting external clients with complete seriousness," Tehver said. "Unfortunately, we have seen cases where the principles approved in the EIK's practice have just been ignored."

The attorney-client privilege ensures the operating of the rule of law and a fair trial.

"This is not a special request of the attorneys to cover for criminals," Tehver said. "Anyone can get caught by the state, both for a reason or unfairly. In a state governed by the rule of law, a person can defend himself in court against injustice, but he cannot get the best possible protection for his interests if he doesn't consult to an attorney openly."

This week, the Bar Association submitted a draft of attorney-client privilege to the Ministry of Justice, which aims to ensure the better protection of clients' confidential data.


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Editor: Roberta Vaino

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