For a long time now, lawyers - or at any rate those concerned by the consequences of the reporting duties imposed on lawyers by the European money laundering legislation - have been waiting for a case to go to the European Court of Human Rights in Strasbourg on the subject of the compatibility of lawyer reporting with various articles of the European Convention of Human Rights. Well, such a case is now working its way through the Court.
It has been brought by Patrick Michaud against France (case 12323/11). Mr Michaud is a lawyer in Paris, and a member of the Paris Bar’s ruling Council. He is objecting to France’s implementation of the law, and in particular invokes Articles 6, 7 and 8 of the Convention, although not in that order. In the order in which they appear in his complaint, he states the following:
Under Article 8 (‘Everyone has the right to respect for his private and family life, his home and his correspondence’), he complains that, since a lawyer has to report suspicions relating to people coming for legal assistance, under the threat of of disciplinary sanctions if he or she fails to do so, there is not adequate protection of lawyer-client confidentiality and what is called ‘professional secrecy’ in France.
Under Article 7 (‘No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed’), he says that the notions of reporting suspicions and remaining vigilant are too vague to make it proper that failure should be subject to disciplinary sanctions - there is no legal certainty in the disciplinary offences.
And under Article 6 (‘Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law’), he says that the duty on lawyers to report suspicious transactions is incompatible with the right of defendants not to incriminate themselves and with the presumption of innocence in their favour.
The Court has now asked some questions of the parties, as follows:
(1) Does Article 8 protect lawyer-client confidentiality and the notion of ‘professional secrecy’?(2) If so, has there been an interference in this protection and can Mr Michaud consider himself a victim of such a breach?(3) Would a previous case (Bosphorus Hava Yollari Turizm ve Ticaret Anonim Sirketi v. Ireland No: 45036/98) in which a country was held not to breach the Convention because it was following its obligations under EU law be applicable here?(4) Would one of the exceptions to Article 8 (‘is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others’) be applicable here?
It is interesting that Mr Michaud puts Article 8 as the first Article to be considered, and that the Court’s questions focus on Article 8 alone. That is because there has already been a case at European level considering the impact of the reporting duties on Article 6 - but it was a case before the European Court of Justice in Luxembourg, and not before the European Court of Human Rights in Strasbourg.
That was the Belgian case of the Ordre des Barreaux Francophones et Germanophones and others (Case-305/05), which held that the reporting duties did not breach Article 6. Just as interestingly, the Court gave a hint in that case that Article 8 might be a fruitful line to follow in the future, when it said, in the light of the referring court restricting its jurisdiction by making reference only to Article 6: ‘That being so, the legality of Directive 91/308 should not additionally be appraised by reference to fundamental rights not specified by the referring court, such as the right to respect for privacy provided for in Article 8 of the ECHR.’
Well, now we have our case on Article 8, and so the long struggle over the compatibility of the legislation with human rights will finally reach another judicial conclusion at European level.