Retten til fortrolig kommunikation med forsvarsadvokaten - en analyse af den retlige beskyttelse ved politiets indgreb

Abstract

The aim of this project is to examine the legal position in Denmark regarding the right to confidential communication with the defence counsel. This is particularly relevant in an increasingly technological world, where communication with one’s defence counsel often takes place via smartphones, which are frequently seized and searched by the police in investigations of criminal cases. The project concludes that several provisions within Danish legislation protect such correspondence from being compro-mised by authorities, especially in connection with coercive measures by the authorities, such as inter-ference in the secrecy of communications, searches, and seizures. Furthermore, the project analyses section 807(3) of the Danish Administration of Justice Act, which grants journalists covered by the witness exemption rules the right to claim for the courts to conduct an initial review of seized data carriers. This provision aligns with the special protection afforded to journalists’ confidential sources. The project finds it arbitrary that no equivalent or even greater protec-tion applies to correspondence or similar communication between a defence counsel and their client. This conclusion is based on the comparison of various protective rules applicable to journalists and defence counsels under Danish law, as well as an analysis of the legislative history of the relevant provisions. Through this comparison, the project concludes that the relationship between clients and their defence counsels is significantly more protected than the relationship between journalists and their confidential sources. The project also addresses whether the absence of statutory rules for filtering out communication be-tween clients and their defence attorneys from large volumes of data during seizures is compatible with Denmark’s obligations under the European Convention on Human Rights. According to Article 8(2) of the Convention and relevant case law, any interference by the authorities in an individual’s right to respect for privacy must have a clear legal basis in law. Moreover, the Saber v. Norway judg-ment indicates that interference in the relationship between a defence counsel and their client is particu-larly intrusive, and in such cases, it is required to have additional framework as a statutory safeguard for the individual. In that specific case, it was deemed insufficient to rely solely on internal proce-dures. There are no statutory safeguards for the individual in Danish law, which protects the individu-al who inform the authorities that seized data carriers contain correspondence with their defence coun-sel. Therefore, Denmark cannot be considered to be in compliance with the European Convention on Human Rights. Finally, the project presents legal policy considerations supporting the introduction of a provision in Denmark similar to Section 807(3) of the Danish Administration of Justice Act, but specifically to protect the relationship between defence counsels and their clients. This would serve to ensure com-pliance with the European Convention on Human Rights and to avoid an unintended imbalance in the various legal protections in Danish law.

A master thesis from Aalborg University

Retten til fortrolig kommunikation med forsvarsadvokaten - en analyse af den retlige beskyttelse ved politiets indgreb

[The right to confidential communication with the defence counsel - an analysis of legal protection in the context of police interference]