The Antwerp Court of Appeal ruled on Wednesday to acquit former lawyer Pol Vandemeulebroucke for membership of a criminal organisation. Indeed, his prosecution and conviction at first instance was based on wiretaps containing information covered by professional secrecy. Since the investigators had not treated this protected information as required by law, the wiretaps involved irregularly obtained evidence that violated the ex-lawyer's right to a fair trial. In doing so, the court put up a dam against the worrying national and international trend of setting aside lawyers' professional secrecy in the fight against organised crime.[1]
Rule of law
The Court's judgment is in fact self-evident in a state governed by the rule of law, in which access to legal assistance and thus the right to (criminal) defence must be guaranteed for everyone. However, effective legal assistance can only be obtained and provided if there is a guarantee that the information communicated by the client to his lawyer and vice versa cannot be used against him in any way. This also applies to confidential information of which the lawyer otherwise becomes aware in the context of his assistance to the client.
Professional secrecy therefore serves not only the interests of the client, who must be able to tell his story to his lawyer in complete confidence, that of the lawyer, who must be able to advise his client freely and with all his cards on the table, but also that of society as a whole. For this reason, professional secrecy is of public policy.
That is also why our Code of Criminal Procedure contains very strict provisions on the interception and examination in a judicial enquiry of communications covered by professional secrecy. If investigators are confronted with such protected information in the context of a tap measure or the reading of a mobile phone, they are not allowed to include it in an official report, but must deposit it in a file under sealed cover at the court registry (article 90sexies, §3 Code of Criminal Procedure). Such data cannot therefore be used as evidence against the person concerned (or his lawyer).
If a lawyer himself is the subject of such an investigative measure because he is suspected of having committed criminal offences, the investigating judge will determine, after consultation with the President of the Bar, which information intercepted is covered by professional secrecy and which is not. Only the information not covered by professional secrecy may be included in an official report (article 90octions Code of Criminal Procedure).
Protected information in the criminal file
Despite the clear will of the legislator to prevent information covered by professional secrecy from being used as evidence in criminal proceedings, in practice it often ends up in the criminal file. Indeed, its content can be invaluable to investigators, who, with the digitisation and internationalisation of organised crime, encounter many obstacles to gather decisive evidence. The temptation then is not to be too close to procedural rules.
Indeed, once the protected information is in the criminal file (and it has not been purged from it by the investigating courts), the judge can take cognisance of it. It goes without saying that it then requires a tour de force by the defence to convince the same judge to make abstraction of this (sometimes crucial) information when assessing the guilt of the person(s) involved in the charges.
However important the fight against organised crime is, professional secrecy as a fundamental part of the right to a fair trial cannot be curtailed as a result. The recent judgment of the Antwerp Court of Appeal is therefore as evident as it is courageous.
[1] See among others: https://www.ibanet.org/IBA-releases-statement-defending-principle-of-lawyer-client-confidentiality-from-international-attack
