May telephone conversations with the defence lawyer be intercepted?
1.The Right of the Accused
The right of the accused to avail himself of a defence lawyer at any stage of a lawsuit is one of the pillars of a rule-of-law principle. A client with no legal experience is provided with partisan counsel who, by means of his knowledge, is to establish a level playing field between the state and the accused. For this reason, there is a special state of mutual trust between the defence lawyer and client, which is protected in many ways. The defence lawyer has, for example, the right to refuse to give evidence on anything he is entrusted with in the scope of his work. He therefore cannot be turned into a witness against his own client
After the Federal Court of Justice and the Federal Constitutional Court have had to repeatedly deal with when and to what extent the mutual trust between defence lawyer and client may be intervened, the legislator reacted in 2008. Ever since, the particular mutual trust between a defence lawyer and a client is protected by law as per § 160a German Code of Criminal Procedure. This expressly rules an extensive limitation to gathering and admitting evidence. Not only is not permitted to intercept a defence lawyer; a recorded conversation may also not be admitted. If a conversation that is protected by the confidentiality of the lawyer-client relationship is recorded by accident during extensive telephone interceptions, this fact must be documented, the conversation deleted and a note made on this action.