August 2023
Pei-Ching Ji and Sally Yang
The Constitutional Court issued the 112-Xian-Pan-9 Constitutional Decision of June 16, 2023, holding that the provisions of the Code of Criminal Procedure on search and seizure do not exclude from being subject to search and seizure documents and materials resulting from the exercise of the constitutionally protected right to freedom of communication between lawyers and defendants or crime suspects. To such an extent, such provisions are inconsistent with the purpose of protecting the right to work of lawyers under Article 15 of the Constitution and the right to litigation of defendants under Article 16 of the Constitution.
Within two years from the date proclaimed in this decision, relevant authorities should amend the Code of Criminal Procedure in accordance with the gist of this decision. Before the legal amendment is completed, judges, prosecutors, and related personnel handling search and seizure matters shall follow the gist of this decision.
The main reasons for this decision are provided as follows:
1. The right to freedom of communication falls within the scope of the people’s right to litigation protected under Article 16 of the Constitution.
The right to litigation aims to ensure the right of the people to a fair trial and the right to a full defense in accordance with due process, including the appointment of a trusted defense attorney, so as to safeguard a fair trial. The right to freedom of communication between a defense attorney and a defendant is a right not only to safeguard the defendant’s right to litigation and effective assistance and defense by the defense attorney but also to protect the defendant’s right not to prove his/her crime and to stand a fair trial.
Due to the nature of lawyers’ practice, which is to safeguard the rights and interests of their clients, and in order to establish trust and facilitate open communication with clients seeking professional legal assistance and defense, the Lawyers Act specifically provides that lawyers have the right and obligation to maintain the confidentiality of information obtained during the performance of their duties (Article 36 of the Lawyers Act) to uphold the special trust relationship between lawyers and their clients. If a lawyer serves as the defense attorney of his/her client (such as a defendant or a crime suspect), the right to freedom of communication between the defense attorney and the defendant or crime suspect should be protected under the Constitution.
The essence of the right to freedom of communication includes not only face-to-face verbal communication and means of communication such as letters and electronic transmission but also document materials (such as documents, electromagnetic records, etc.) created by an attorney in exercising the right to freedom of communication. Since they are core contents underlying such a special trust relationship between an attorney and his/her client, they should be protected by the Constitution and should be excluded from being admissible criminal evidence. To safeguard the realization of a defendant’s litigation rights and interests, state agencies certainly are not allowed to initiate searches for the purpose of “obtaining communication records and materials resulting from such communication” as criminal evidence.
2. Lawyers’ right to work, freedom of abode, and due process
Improper interference with and restrictions on law firms may also interfere with lawyers’ business execution within the law firms and further undermine their right to work. In addition, the freedom of abode protected under the Constitution also extends to business premises. Since a law firm is a location for a lawyer’s operation of lawyering business, the location certainly falls within the scope of constitutional protection of freedom of abode.
If communication records and materials resulting from the confidential and free communication between defense lawyers and defendants or crime suspects can be targeted for search and seizure by the state, it would also constitute an improper infringement on the right to work of defense attorneys or lawyers.
3. In conclusion, Article 122, Paragraph 2 of the Code of Criminal Procedure, which provides: “The person, property, electromagnetic record, dwelling, or other premises of a third party may be searched only when there is probable cause to believe that the accused or the suspect, or property or electromagnetic record subject to seizure is there,” and Article 133, Paragraph 1 of the same law, which stipulates: “An item which can be used as evidence, or that is subject to confiscation, may be seized,” as well as other related provisions of the Code of Criminal Procedure do not exclude communication records and documents and materials resulting from the exercise of the constitutionally protected right to freedom of communication between lawyers or defense attorneys and defendants, crime suspects, or potential crime suspects from being subject to search and seizure. To this extent, they are inconsistent with the purpose of protecting the right to work of lawyers under Article 15 of the Constitution and the right to litigation of defendants under Article 16 of the Constitution.”
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