Are Law Firm Searches Unconstitutional?

The Constitutional Court held an oral debate today. Both the Judiciary and the Ministry of Justice said it was constitutional. The Ministry of Justice also revealed that 20 firms have been searched in the past three years. In practice, the principle of least infringement has been strictly followed.

(Photo by reporter Yang Guowen)

[Reporter Yang Guowen/Taipei Report] Lili Law Firm believes that the prosecution searched its Hsinchu branch in 2011 and seized evidence. The provisions of the Criminal Procedure Law on search and seizure may be unconstitutional, and it petitioned for constitutional interpretation. The Constitutional Court today During the verbal debate, both the Judicial Yuan and the Ministry of Justice believed that the current regulations were not unconstitutional. The Ministry of Justice gave an example. From 2020 to 2022, only 20 law firms were searched, of which 18 were lawyers suspected of committing crimes. It is constitutional under the principle of least harm.

The constitutional interpretation case will be pronounced within 3 months.

This case stems from the fact that the Shilin District Prosecutor’s Office ordered Taipei City to mediate the Hsinchu branch of the search and law firm in 2011 for investigating a violation of the Securities Exchange Act, and seized relevant evidence.

Lili Law Firm refused to accept it and filed a protest, which was rejected and confirmed.

Lili Law Firm believes that when there is no specific evidence to determine that the lawyer has committed a crime, the investigation, search, and seizure related actions, as stipulated in Article 122 Item 2 and Article 133 Item 1 of the Criminal Procedure Law, violate the relationship between the defendant and the lawyer. The right of immunity, right of defense and right of litigation of secret communication, which is in danger of being unconstitutional, therefore petitions for constitutional interpretation.

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The Constitutional Court held an oral debate today. Lee & Li Law Firm argued that based on the freedom of confidential communication, the right to work as a lawyer, the right to privacy, the right to information autonomy, and the corresponding due process of law, the right of defense of litigants, and the non-self-incrimination The right of anonymity can be derived from the communication immunity between the defendant and the lawyer, which is a right guaranteed by the Constitution.

This right is recognized in international conventions.

Li Li believes that the current criminal procedure law does not exclude the content of communication between the client and the lawyer, the content of the communication, and the results of the lawyer's work may be the subject of search and seizure. , which is unconstitutional due to insufficient legislative norms.

The Criminal Department of the Judicial Yuan pointed out that the affirmation of the criminal defendant's right to defense, the right of the defendant and defender to communicate without interference, and the right of the defendant to be effectively defended are all fundamental rights guaranteed by the Constitution.

However, the right of defendants and defenders to communicate without interference is not unrestricted. For example, communication with lawyers is not guaranteed when the defendant is committing a crime, but the means of restricting this right must be subject to strict judicial scrutiny.

Article 135, Item 1, Item 2 of the Criminal Procedure Law of our country stipulates that the e-mails and telegrams between the defendant and the defender may only be considered as criminal evidence or there is a risk of annihilation, forgery, alteration of evidence, or collusion with accomplices or witnesses, or The defendants are limited to those who have fled before they can be detained; after the event, they can file quasi-appeals and appeal reliefs for the evidence that has been illegally searched and seized. The existing regulations cover the protection of lawyers' right to privacy and right to work, the defendant's effective assistance from lawyers, and the defendant's relationship with lawyers. The right to communicate without interference is adequately safeguarded and not unconstitutional.

The Ministry of Justice points out from the guarantee benchmark established by the European Court of Human Rights that the relevant provisions of my country’s Criminal Procedure Law on searching for law firms and seizing data in law firms have included Article 128 of the Criminal Procedure Law, which is reserved by judges in advance and that lawyers have committed crimes. When there is a third person other than the suspect, the issuance of a search ticket must meet a higher degree of necessity.

In addition, Article 148 of the Criminal Procedure Law stipulates that the person who is ordered to be searched shall have a protection mechanism during the event; if there is an illegal search afterwards, he may file a judicial remedy in accordance with Articles 404 and 416 of the same law; and the balance of evidence and Excluded; the Ministry of Justice also made a letter in 2004 to expand and explain that the documents and records based on the trust relationship between the defender and the defendant cannot be searched and seized.

The Ministry of Justice pointed out that, looking at laws and regulations and practices, there is no doubt that the search for law firms is unconstitutional in the relevant provisions of Article 122, Item 2, and Article 133, Item 1 of the Criminal Procedure Law.

For example, the Ministry of Justice, between 2020 and 2022, only 20 law firms were searched, of which 18 were lawyers suspected of committing crimes, and 2 were crimes involving law firms. In practice, the principle of least infringement has been strictly followed. Conforms to strict international restrictions and is constitutional.