Can an Attorney be inspected upon the enter-exit of Penitentiary Institutions?

Analysis

Nemat Karimli, the attorney of political prisoner Tofig Yagublu, refused to meet with his client at the Treatment Facility of Penitentiary Service where he is currently detained. Explaining the reasons behind his refusal on Facebook page, N. Karimli stated that his documents were inspected upon entering the facility. Karimli noted that the Penitentiary Service employees mentioned that T. Yagublu's documents would be checked and if they were not appropriate, they would be confiscated.

This has become a regular case for human rights attorneys upon visit to their defendants in prisons. These inspections are carried out in the absence of any suspicion of wrongdoing and only in relation to attorneys of political prisoners.

A few years ago, Nemat Karimli, already facing a similar situation, voiced his complaint against the Penitentiary Service, which resulted in a warning from the Presidium of the Bar Association.

“Tribunat” investigated the legality of conducting inspection of attorneys in penitentiary institutions.

Article 32 of the Constitution recognizes the right to personal inviolability. According to the document, the State guarantees everyone the right to maintain the secrecy of information transmitted by correspondence, telephone conversations, mail, telegraph and other means of communication. The Law “On Attorneys and Advocacy” provides for attorney secrecy (lawyer-client privilege – ed.) as a guarantee for advocacy. According to Article 7 of the Law, in order to provide legal assistance to detained, arrested or convicted, necessary conditions must be created for private meetings and consultations with an attorney, and confidentiality must be ensured. Accordingly, unless otherwise, communication between an attorney and a convict is protected by attorney secrecy.

Article 1 of the Law, along with other principles, also mentions confidentiality as one of the fundamentals of advocacy. According to Article 7 of the document, an attorney cannot be questioned about the circumstances known in connection with the performance of his professional duties, documents and other evidence collected by lawyers in connection with the performance of their professional activities, advocacy proceedings (dossier) cannot be requested or seized by investigative and judicial bodies. All applications made to attorneys and their organizations are protected as secrets. The protection of professional secrets is stated in the attorney’s oath and is recognized by the legislation as an obligation of an attorney.

But what about penitentiary legislation in regards with this issue?

Per Article 75 of the Code of Execution of Sentences (hereinafter referred to as the CES), the administration of a penitentiary institution has the right to inspect individuals entering and leaving this institution, their belongings, and vehicles. The rules for conducting these procedures are determined by the Internal Disciplinary Rules of Penitentiary Institutions. According to Article 81 of the CES, in order to receive legal assistance, prisoners are granted meetings with attorneys on their own, their close relatives’, or their legal representatives’ application. The number and duration of meetings is not limited and are carried out in compliance with the Internal Disciplinary Rules of Penitentiary Institutions. Such meetings are not included in the number of meetings established by CES. The attorney is allowed to enter the prison upon presentation of a document confirming identity and authority. Such meetings are held in private at the request of the parties.

The Internal Disciplinary Rules of Places of Detention regulate the conduct of inspections of individuals visiting penitentiary facilities. In accordance with the rules, upon sufficient reason to believe that the individual(s) visiting the visit will give the detainee items that are prohibited from being kept in pre-trial detention centers or take any items from them, the head of the pre-trial detention center announces that the visit will be granted if the visitor agrees to the inspection of belongings before and following the visit. An inspection of an attorney entering penitentiary institutions is permissible if there is sufficient reason to believe that the visitor will give or take any items that are prohibited.

The protection of lawyer-client privilege is also reflected in several international instruments. According to Article 4 of the International Bar Association’s General Principles for the Legal Profession, a lawyer must at all times maintain and guarantee the confidentiality of the affairs of his or her current or former clients, unless otherwise provided by law or with the consent of his or her client. According to Principle 18 of the UN Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, a detainee or arrested’s right to consult and communicate with his or her lawyer promptly, without censorship and in full confidentiality shall not be suspended or restricted, except in exceptional circumstances established by law or regulations, or when deemed necessary by a court or other authority in the interests of public safety or order. According to Recommendation No. R(2000)21 of the Committee of Ministers of the Council of Europe on the freedom of exercise of the profession of lawyer, lawyers should not be subject to any pressure or sanctions when acting in accordance with their professional standards. Furthermore, all necessary measures should be taken to ensure legal secrecy, an exception to this principle being possible only within the framework of the rule of law.

Lawyer-client privilege is also enshrined in international penitentiary regulations. Per Article 23 of the European Prison Rules, which are used in the preparation of the Internal Disciplinary Rules of Prisons, consultations and communications, including correspondence on legal matters, between prisoners and their lawyers must remain confidential. The court may, in exceptional cases, impose restrictions on such confidentiality in order to prevent serious crimes or a serious threat to security. The Commentary on the European Prison Rules states that such a restriction must be justified and reviewable. Exceptionally, when a court imposes restrictions on the confidentiality of communication with a lawyer in individual cases, it must state the specific reasons for this and provide them to the prisoner in writing. Where, in the interests of security and order, prisoners are not allowed to keep documents in their cells, arrangements should be made for them to be able to access them during normal working hours.

Violation of lawyer-client privilege may lead to a violation of Article 8 of the European Convention on Human Rights (Right to respect for private and family life). The European Court of Human Rights (hereinafter referred to as the ECtHR) has stated in a number of judgments that lawyer-client privilege is included in the ambit of Article 8. According to the case of Denysyuk and Others v. Ukraine, Article 8 provides enhanced protection for lawyer-client privilege (§101). Klaus Müller v. Germany, states that this protection covers all communications, letters, telephone conversations, oral communications and electronic correspondence (§37). Although lawyer-client privilege is a fundamental principle for the administration of justice, it does not have absolute status and may be subject to limitations (Michaud v. France; §123).

The legality of such interference can be examined through the prism of the case of Namazli v. Azerbaijan, in the face of the similarity of the facts. According to the facts of the case, lawyer Fariz Namazli was subjected to inspection by the penitentiary servicemen at the entrance and exit of the institution during a meeting with his client A.H., who was deprived of his liberty in Gobustan prison. Even though the attorney appealed to the local courts on the relevant issue, his complaint was not upheld.

The Court, having examined the application, emphasised that the substance was the inspection of a lawyer’s files by prison staff in the absence of any suspicion of wrongdoing (§ 39). In order to examine whether such an interference was justified, the Court examined the domestic prison legislation. While accepting the existence of the above-mentioned article of the CES, the Court did not concur with the Government’s argument that this article specifically provided grounds for the inspection of a lawyer’s files (§ 45). The Court noted that the domestic legislation granted a lawyer the right to enter a prison with an identity card and a document confirming his status as a lawyer. Despite the article of the CES allowing for the inspection of individuals entering a prison, the Court emphasised the need for a special provision for lawyers in order for this procedure to be carried out on lawyers (§§ 48-49).

ECtHR, having analysed the domestic legislation, found that the provisions allowing prison officers to inspect individuals entering the institution did not meet the “quality of the law” standard of Article 8 of the ECHR (§49). Per Court, this provision of the legislation did not contain a clear and detailed legal basis or safeguards against abuse of rights and arbitrariness. The legislation did not distinguish between relatives of the prisoner and lawyers, and did not take into account the special status of lawyers in the administration of justice. Hence, prison officers could breach confidentiality by inspecting the documents of lawyers without providing any reason or justification (§51). Under these provisions, prison officers could practically exercise their discretion to inspect the documents of lawyers visiting their clients in prison, without any reason or justification being required for their decisions.

Despite the Court's position on the ambiguous provisions of domestic legislation, no steps have been taken by the Government to amend the relevant act to date. In spite of the Decision adopted on 20 June 2024 highlighting the problematic nature of Article 75.5 of the CES, no legislative initiative has been taken to amend this article.

ECtHR concluded that the Government’s interpretation and implementation of the prison legislation in this way violated the lawyer-client privilege. Emphasizing the enhanced protection of lawyer-client privilege, the Court established that such interference was “unlawful” and found a violation of Article 8 (§§51-52).

“Tribunat” concludes that the inspection of attorney Nemat Karimli’s documents at the entrance to the penitentiary institution should be considered a violation of his legal confidentiality, which is protected by domestic and international law. Even though the current legislation provides for the right to inspect individuals entering a penitentiary institution, the authorities are entitled to carry out such a procedure only if there is a reasonable suspicion of a violation of the law. The application of this procedure, which is mainly carried out in relation to human rights attorneys, in the absence of reasonable suspicion, leads to a violation of lawyer-client confidentiality. Despite the decision of the ECtHR (Namazli v. Azerbaijan), which eliminated the conflict between penitentiary legislation and practice, the treatment faced by Nemat Karimli is a clear example of the continued systematic violation of attorney’s secrecy and confidentiality.