Özet:

The disclosure of a secret belonging to another, learned either in the capacity as a custodian of that secret, as a member of certain professions, or in any other manner (for the purpose of this discussion, I will only mention doctors and lawyers) without authorization, is punishable under StGB § 203/1 with imprisonment of up to one year or a fine. In addition to the explicit provisions of the law, the legitimacy of disclosing a secret and its admissibility in court is a subject of debate. The discussions revolve around two main areas: the first concerns the possibility of justification under the duress of necessity as provided in StGB § 34. The second pertains to the question of whether a statement violating StGB § 203, if made in the context of testimony in court, can be used. In this framework, the question of whether the violation of confidentiality to facilitate criminal prosecution against a patient or client for a serious crime they committed can be justified under StGB § 34 needs to be addressed. Considering the view that everyone – even if they are the perpetrator of a serious crime – has the right to seek medical help and legal advice without fear of prosecution, it is necessary to agree with the majority opinion that sees no justification whatsoever for breaching the duty of confidentiality merely to reveal a completed crime of a patient or client. Another issue arises when a person, who is under a duty of confidentiality, gains information indicating that a patient or client is the perpetrator based on information provided by the patient or client or on concrete indications, especially in cases where an innocent person has been wrongly convicted. A possible solution to this issue could be to allow the disclosure of facts to enable a retrial while prohibiting the use of documents created as evidence against the patient or client. Another question that requires consideration within the context of StGB § 34 is whether the breach of confidentiality to prevent a legal harm originating from the patient or client can be justified. The prevailing view in the doctrine accepts the breach of confidentiality in such situations if the interests in disclosure outweigh the patient's or client's interest in confidentiality, in the sense of StGB § 34. The question of whether a witness statement made by a doctor or lawyer in court can be justified if it breaches the duty of confidentiality and whether it can be used against the patient or client is answered affirmatively in established case law, on the grounds that StPO § 53/1 grants these individuals the right to refuse to testify but does not impose a duty to refuse, hence allowing the use of such testimony. In the decisions made on the subject, it was stated that if a reliable person culpably violates professional confidentiality in court, this situation will not affect the admissibility of the statement within the scope of procedural law, and it was stated that the defendant does not have a right in procedural law to exercise the witness's power of silence. It is left to the witness whether he wishes to expose himself to the risk of criminal prosecution. Likewise, in a decision of the Federal Supreme Court, it was decided that a patient's explicit refusal to give permission to his doctor to testify would not constitute a violation of procedural law. These decisions have been accepted in the doctrine because the judge will not evaluate whether the judge made an unauthorized statement within the meaning of StGB § 203. However, it is necessary to agree with the critical view that the substantive illegality of the statement should also result in its procedural inadmissibility.

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