The Constitutional Court on Friday ruled unconstitutional the search and seizure of confidential messages shared between lawyers and their clients during a prosecutors’ investigation, and ordered that the law be amended within two years.
The ruling on Articles 122-2 and 133-1 of the Code of Criminal Procedure (刑事訴訟法) came after Lee and Li Attorneys-at-Law challenged the constitutionality of the clauses, when its Hsinchu branch office was raided and messages between staff and clients were seized by prosecutors in a 2011 litigation case.
The law firm said that the prosecutors’ actions had infringed on its right to keep communication with its clients confidential, especially as prosecutors at the time could not prove that the office had committed any wrongdoing to justify their search.
Photo: Taipei Times file
Under the two articles, the premises or properties of any third -party can be searched only if there is probable cause.
A seizure that is not covered by a search warrant must be adjudicated by a judge, except when the item is seized for evidence, the articles say.
The court’s ruling said that the articles fail to take into consideration the attorney-client privilege, which is a rule that protects the confidentiality of communication between lawyers and clients.
The content of the two articles works against Articles 15 and 16 of the Constitution, which stipulate that “the right of existence, the right of work and the right of property shall be guaranteed to the people,” and that “the people shall have the right of presenting petitions, lodging complaints or instituting legal proceedings,” the ruling said.
Agencies should amend the Code of Criminal Procedure within two years, the court said, adding that before the revision of the law is completed, judges and prosecutors should conduct searches and seizures in accordance with the intention of the judgement.
The number of search warrants issued by Taiwanese courts from 2020 to last year averaged nearly 15,000 per year, Constitutional Court head clerk Hsu Chen-chou (許辰舟) said.
During this three-year period, 20 law firms have been searched, of which 18 were due to lawyers having become criminal suspects or because they were involved in collusion to destroy evidence, Hsu said.
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