DISSENTING OPINION OF JUDGE YUDKIVSKA

In the dark ages of the Russian Empire, lawyer Fyodor Plevako became a symbol of the highest legal professionalism. He explained the challenge of the legal profession in the following way: “Behind the back of the prosecutor there is a silent, cold, unshakable law, behind the back of the defender there is a human being with his fate, his wants and needs; and this human being climbs onto shoulders of his defender, seeks his protection; and it’s scary to slip with such a burden!” [1] .

For Mr Müller, our applicant, to whom the four managing directors of his four client companies had entrusted their “wants and needs”, it was also scary “to slip” – to make a deontological mistake in a situation where these persons, who had placed their trust in him, were under criminal investigation.

I respectfully dissent from the decision of the majority finding that the imposition of the administrative fine on him for his refusal to testify as a witness in criminal proceedings against the managing directors of his client companies did not constitute a violation of Article 8.

I believe that it did constitute such a violation, for two main reasons.

Firstly, I disagree that the interference in question was in accordance with the law. The majority noted a divergence in the interpretation of Article 53 of the Code of Criminal Procedure by different courts of appeal. In other words, the applicant had to take a delicate decision in a situation where there had been an opposite approach to this issue by courts at the same level of jurisdiction in different regions. The majority accepted that “this situation differ[ed] from that which ha[d] most often raised an issue under the Convention of conflicting case-law within the same supreme court”, and that it was a role of the Federal Court of Justice, to which, however, the applicant did not have access (paragraph 54 of the judgment), to clarify the approach. Nevertheless, in their opinion the consistency of jurisprudence in the applicant’s particular region was enough to make the law foreseeable.

I cannot share this view. A situation where lawyers in the same State in comparable situations did or did not have a right to refuse to testify, depending only on the area of territorial jurisdiction in which the proceedings at issue were adjudicated (with at least a theoretical possibility that a case might – for different reasons – be transferred to another area or go to a higher court) creates an obvious state of legal uncertainty, incompatible with the rule of law.

As stated by the US Supreme Court in the case of Upjohn Company [2] :

“If the purpose of the attorney-client privilege is to be served, the attorney and client must be able to predict with some degree of certainty whether particular discussions will be protected. An uncertain privilege, or one which purports to be certain but results in widely varying applications by the courts, is little better than no privilege at all .”

In the present case we are dealing precisely with “an uncertain privilege”.

An argument in paragraph 59 that “the applicant would, in any event, have acted without guilt” fails to remove not only the issue of the unforeseeability of the law, but also a much more important deontological dilemma that he faced, and a risk of “slipping with such a burden”. We should not forget that “where a lawyer is involved, an encroachment on professional secrecy may have repercussions on the proper administration of justice ... In addition, the attendant publicity must have been capable of affecting adversely the applicant’s professional reputation, in the eyes both of his existing clients and of the public at large” [3] .

With that I move to another, and far more significant, issue that the present case raises, namely whether the interference complained of was “necessary in a democratic society”.

Referring to a wide margin of appreciation and to the decisions of the domestic courts, as well as to the lack of severity of the sanction (although detention had been envisaged – see paragraphs 25 and 71 of the judgment), the majority found that the interference had been proportionate, having again concentrated on the fact that “the applicant did not run an actual risk of committing the offence of disclosure of private secrets under Article 203 of the Criminal Code” (see paragraph 72 of the judgment).

I regretfully find that this limited perspective prevented the majority from looking at the very heart of the purpose of lawyer-client privilege and from carefully defining its scope in the present case.

This Court has held many times that the lawyer-client relationship is, in principle, privileged [4] and that confidential communication with one’s lawyer is protected by the Convention as an important safeguard of the right to defend oneself [5] . The US Supreme Court has also expressed its belief that “[t]he attorney-client privilege is the oldest of the privileges for confidential communications known to the common law... [that] may be asserted by an individual or any entity, including a corporation” [6] . In its view the privilege is intended to encourage “full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and the administration of justice” [7] .

In the present case the applicant had provided legal advice on different transactions to four companies prior to their insolvency. He argued – repeating a position of a number of German appeal courts in this respect (see paragraph 19 of the judgment) – that although formally he represented legal entities, only natural persons, i.e. the companies’ managers, were capable of undertaking actions on behalf of the companies and were thus de facto his clients. It is difficult to contest this: as a figurative “person”, the corporation cannot act on its own, and all its acts, including communication with counsel, are performed by physical “persons” – employees. Human clients have an indivisible identity, but for a company the client’s identity and that of the communicator are different. This split should be recognised when lawyer-client privilege is at stake, i.e. the privilege covers both the company as client and the natural person – the communicator (a director or manager), who acts on its behalf and expresses its will. To do otherwise, i.e. to exclude the director, would run counter to the logic and spirit of this privilege, and would not take account of the nature of a legal person.

This concept was elegantly formulated by Lord Denning in Bolton (Engineering) Co. Ltd. as follows [8] :

“A company may in many ways be likened to a human body. It has a brain and nerve centre which controls what it does. It also has hands which hold the tools and act in accordance with directions from the centre. Some of the people in the company are mere servants and agents who are nothing more than hands to do the work and cannot be said to represent the mind or will. Others are directors and managers who represent the directing mind and will of the company, and control what it does. The state of mind of these managers is the state of mind of the company and is treated by the law as such .”

American courts share the same view [9] :

“... if the employee making the communication, of whatever rank he may be, is in a position to control or even to take a substantial part in a decision about any action which the corporation may take upon the advice of the attorney, ... then, in effect, he is (or personifies) the corporation when he makes his disclosure to the lawyer and the privilege would apply.”

Apparently, this is also the settled position of a number of Courts of Appeal in Germany.

As the companies’ lawyer advising on transactions, the applicant was perhaps required to carry out different tasks of commercial law, competition law or other fields of law, which definitely had a bearing on the commercial policy of the companies. When companies were seeking his advice, they provided him with information upon which the advice was to be based. But who provided such information – a figurative person or a physical one? The answer is obvious: communication occurred between physical persons. Thus a crucial problem arises – this communication might have consequences both for the legal entities and their managers: given the role of the latter in decision-making, where the wrong decision is taken the issue of their personal liability is self-evident. If, as in the present case, they are consequently held to be criminally liable, the legal advice to the companies and to themselves as managing directors clearly overlaps. Thus, the lawyer-client privilege granted to this communication covers both the companies and the communicators – the managing directors. As rightly noted by the German appeal courts, it “usually could not be ruled out that in his lawyer-client exchanges, the lawyer had obtained knowledge of personal secrets of the former managing director acting for the company in addition to secrets of the company” (see paragraph 19).

In the words of the Supreme Court of New South Wales, Australia [10] :

“the privilege attached to legal advice obtained by a company is not lost when the advice is disclosed to its directors, but this is not because of their common interest. The company can only manifest its acts and intentions by the actions and declarations of human beings .”

That relationship reinforced the ties of trust and loyalty between the applicant and his clients’ managing directors. Under the lawyer-client privilege, the managing directors could be assured that the information communicated by them to the applicant would not later be used against them. As soon as they became suspects, their privilege against self-incrimination came to the fore.

Therefore, it is difficult to agree with the majority that a wide margin of appreciation must be afforded in this area (see paragraph 69 of the judgment): the Court has always insisted that the margin of appreciation tends to be relatively narrow where the right at stake is crucial to the individual’s effective enjoyment of key rights [11] , and the privilege against self-incrimination has been identified by the Court as lying at the heart of the rights which the defence enjoys under Article 6 of the Convention [12] .

The Belgian Constitutional Court, for example, stressed this connection between lawyer-client confidentiality and privilege against self ‑ incrimination, in setting aside a provision that laid down the conditions in which any person holding confidential information through status or occupation might depart from the professional duty of confidentiality in certain cases (crimes against minors and vulnerable persons). That court held [13] :

“In terms of confidential information conveyed by [lawyers’] clients and likely to incriminate those clients, the right of lawyers to depart from their professional duty of confidentiality related to activities which were central to their role of defence in criminal proceedings. Thus, the rule of professional confidentiality should give way only if that could be justified by a pressing reason of general interest and if the lifting of confidentiality was strictly proportionate to that objective.”

No such careful proportionality analysis was carried out in the present case. Although, according to this Court, public interest concerns cannot justify measures that extinguish the very essence of defence rights, including the privilege against self-incrimination [14] , in the present case the majority did not give thorough reasons to explain why they considered that the interference in question was in the interest of justice and outweighed the managing directors’ defence rights.

Interestingly enough, the majority, speaking about a balancing of different interests at stake in paragraph 67, refer to the case of Wieser and Bicos Beteiligungen GmbH v. Austria (no. 74336/01, ECHR 2007 ‑ IV). But the Court reached an opposite conclusion in that case. There, the domestic authorities had argued that the first applicant (a lawyer) was not the applicant company’s counsel and that the data seized did not concern their client-lawyer relationship. However, the mere fact that the first applicant had acted as counsel for companies whose shares were held by the applicant company was enough to conclude that his communication with the shareholder of his clients (the applicant company) was covered by lawyer-client privilege (ibid., § 65).

In the present case, given that the managing directors whom the applicant assisted on different transactions were subsequently criminally charged in respect of these very transactions, I am unable to separate the interests of these directors from those of the companies they had managed. The communication between them and the applicant was undoubtedly covered by lawyer-client privilege.

I thus find that in the absence of agreement of three (out of four) of the managing directors to release the applicant from professional secrecy, his refusal to testify in the proceedings against them represented the pinnacle of fidelity to his profession and commitment to deontological principles.

Therefore, having punished him for refusing to testify, the authorities overstepped the margin of appreciation afforded to them. Consequently, Article 8 has been violated.

[1] See Plevako F., N. Izbrannye rechi. - M. : Jurait, 2017, T.1, p.30.

[2] Upjohn Company v. United States , 449 U.S. 383, 393, 101 S. Ct. 677 (1981), emphasis added.

[3] See Niemietz v. Germany , 16 December 1992, § 37, Series A no. 251 ‑ B.

[4] See Campbell v. the United Kingdom , 25 March 1992, § 46, Series A no. 233.

[5] See Apostu v. Romania , no. 22765/12, § 96, 3 February 2015.

[6] See Upjohn Company v. United States , 449 U.S. 383, 389, 101 S. Ct. 677 (1981).

[7] Ibid.

[8] H L Bolton (Engineering) Co. Ltd. v. T J Graham & Sons Ltd. [1957] 1 Q.B. 159, emphasis added.

[9] City of Philadelphia v. Westinghouse Electric Corp. , 210 F. Supp. 483,485 (E.D. Pa. 1962), emphasis added.

[10] Farrow Mortgage Services PL (In Liqn) v. Webb and Ors [1996] NSWSC 259 (5 July 1996), emphasis added.

[11] See, for example, S. and Marper v. the United Kingdom [GC], nos. 30562/04 and 30566/04, § 102, ECHR 2008.

[12] See Van der Heijden v. the Netherlands [GC], no. 42857/05, § 64, 3 April 2012.

[13] Gw.H ., no. 127/2013, 26 September 2013.

[14] See Jalloh v. Germany [GC], no. 54810/00, § 97, ECHR 2006 ‑ IX.