I. The facts of the case and the purpose of the petition
The petitioner, Lee & Li, Attorneys-at-Law, operates a branch office in Hsinchu City (hereinafter referred to as the "Lee & Li Hsinchu Branch"). In connection with a case involving staff members of Guangchen Company suspected of insider trading in violation of the Securities and Exchange Act, the Shilin District Court of Taiwan (hereinafter referred to as the "Shilin District Court") issued search warrant No. 100-Sheng-Sou-597. This warrant authorized the Taipei City Investigation Office of the Ministry of Justice Investigation Bureau (MJIB) to enter the Lee & Li Hsinchu Branch and conduct a search of Attorney HUNG and Attorney LIN, both employed by the petitioner, between 7 a.m. and 6 p.m. on May 30, 2011. These attorneys were assigned to handle the asset impairment report of Guangchen Company for the Securities and Futures Bureau. The warrant permitted the search and seizure of relevant documents and electromagnetic records related to negotiations and correspondence between attorneys at the Lee & Li Hsinchu Branch and staff members of Guangchen Company. On May 30, 2011, MJIB investigators, executing the search warrant, entered the Lee & Li Hsinchu Branch and seized "18 email materials of Guangchen Company" and "1 email of Guangchen Company."
”The petitioner argued that the Shilin District Court authorized a search of the law firm without first issuing an order to produce the documents, thereby failing to satisfy the clarity requirement under the writ principle and violating the constitutional principle of proportionality. Consequently, the petitioner filed an interlocutory appeal on June 3, 2011. However, the Taiwan High Court Criminal Court dismissed the appeal in its Order No. 100-Zhēn-Kang-633 (2011) (hereinafter referred to as the "Final Ruling"), citing a lack of merit.
The petitioner argued that, despite the absence of any claim that an attorney was involved in a crime, investigators read and reviewed emails and other information exchanged between the petitioner and Guangchen Company during the search. They also accessed case information, records of business execution, and emails exchanged with clients unrelated to the scope of the warrant. Furthermore, the investigators failed to verify whether the emails to be seized were related to the purpose of the search before executing the seizure. The petitioner contended that the court’s decision to issue the search warrant was unlawful and infringed upon the constitutionally guaranteed right to trust between a defendant and his/her attorney. The petitioner also argued that Article 122, Paragraph 2 of the Code of Criminal Procedure, applied in the final ruling—stating that "the person, property, electronic 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 electronic record subject to seizure, is there" (hereinafter referred to as 'Disputed Provision 1')—and Article 133, Paragraph 1 of the same law—stating that "an item which can be used as evidence, or that is subject to confiscation, may be seized" (hereinafter referred to as 'Disputed Provision 2')—violate the Constitution. On July 6, 2012, the petitioner filed a request with the Judicial Yuan for a constitutional interpretation under Article 5, Paragraph 1, Subparagraph 2 of the Constitutional Court Procedure Act (1993) (hereinafter referred to as the 'Constitutional Court Act (1993)').
II. Review of acceptance requirements and the trial procedure
1. Review of acceptance requirements
Parts Accepted
For cases filed before the implementation of the amended Constitutional Court Procedure Act (hereinafter referred to as the Constitutional Court Act) but not yet concluded, the provisions of the amended law shall apply unless otherwise specified. However, whether a case is admissible shall be determined based on the provisions in effect before the amendment. Furthermore, pursuant to Article 90, Paragraph 1 of the Constitutional Court Act and Article 5, Paragraph 1, Subparagraph 2 of the Constitutional Court Act (1993), individuals, legal entities, or political parties applying for a constitutional interpretation must demonstrate that their constitutionally guaranteed rights have been unlawfully infringed. Additionally, they must show that, after exhausting legal procedures, there is a legitimate concern that the law or order applied in the final judgment violates the Constitution.
This petition was filed before the amendment to the Constitutional Procedure Act came into effect. Whether it will be accepted or not shall be determined in accordance with the requirements set forth in Article 5, Paragraph 1, Subparagraph 2 of the Constitutional Court Procedure Act.
Anyone whose constitutional rights or legal interests are infringed may seek relief in accordance with the law (see J. Y. Interpretation No. 486 for reference). If government agencies improperly intrude upon a law firm or impose restrictions on its staff, the victims of such improper government actions include the attorneys working at the firm and the partnership law firm they jointly operate. In this case, the petitioner is the partnership law firm, a specific type of business structure for law firms as defined in the Attorney Regulation Act (see Article 48 of the Attorney Regulation Act), and the recipient of the final ruling. The petitioner argued that the court, based on Disputed Provision 1, issued a search warrant and permitted the search of the law firm without first requiring the attorney to produce or deliver relevant documents via an order, which was both illegal and improper. Additionally, the court allowed the seizure of emails between the petitioner and its clients under Disputed Provision 2, thereby violating the law firm’s privacy rights and the confidentiality privilege between attorneys and clients (the right to confidential and unrestricted communication). After exhausting all trial-level remedies, the petitioner submitted this request for a constitutional interpretation. As the petition meets the criteria outlined in Article 5, Paragraph 1, Subparagraph 2 of the Constitutional Court Procedure Act, it is accepted for review.
(2) Parts not accepted
The petitioner also argued that Article 5, Paragraph 1 of the Communications Security and Supervision Act (hereinafter referred to as Disputed Provision 3) is unconstitutional. However, it has been determined that this provision was not applied in reaching the final ruling. Although the issue of communication monitoring and translation is mentioned in the reasoning of the ruling, the case does not involve a dispute over the legality of the communication monitoring or translation (i.e., whether the issuance of a communication monitoring warrant under the requirements of Disputed Provision 3 was proper). Furthermore, this case does not involve eavesdropping on a law firm or its attorneys. Since Disputed Provision 3 was not actually applied, it cannot serve as the subject of a petition. As this part of the petition does not meet the requirements for a constitutional interpretation under the criteria outlined above, it is deemed unaccepted.
2. Oral Hearing
This court conducted an oral hearing on March 27, 2023. In addition to notifying the petitioner, relevant government agencies, the Criminal Department of the Judicial Yuan, and the Ministry of Justice, the court also invited experts, scholars, and representatives from the National Human Rights Commission of the Control Yuan to present their opinions. The key points of the oral arguments presented by the petitioner, relevant agencies, and other participants are summarized as follows:
(1) Petitioner: Disputed Provisions 1 and 2 treat the premises where attorneys conduct their business the same as ordinary premises, making such locations susceptible to searches. These provisions allow prosecutors and law enforcement to search and seize documents and electromagnetic records produced by attorneys in the course of their professional activities. This not only infringes on the defendant's right to confidential communication but also destabilizes the special trust relationship between the defendant and his/her attorney. The application of these provisions contradicts the spirit of the reformed adversarial system, diminishes the defendant’s constitutional right to legal counsel, infringes on the defendant’s privilege of confidential communication, and undermines the core purpose and integrity of the defense system. Consequently, these provisions are inconsistent with the protection of the people’s right to litigation under Article 16 and the freedom of privileged communication under Article 12 of the Constitution. The petitioner therefore requests that the above provisions be declared unconstitutional and invalidated immediately.
(2) Criminal Department of the Judicial Yuan: The rights of criminal defendants to defense, to unobstructed communication with their counsel, and to effective legal representation are fundamental rights guaranteed by the Constitution. However, the right of the defendant and their counsel to be free from interference is not absolute. The Code of Criminal Procedure explicitly stipulates the requirements for search and seizure, and evidence obtained through such means may be challenged in accordance with the law. Judges may exclude such evidence based on a balancing of circumstances, as provided in Article 158-4 of the Code of Criminal Procedure. These existing provisions offer sufficient protection for the attorney’s right to privacy and right to work, the defendant’s right to effective legal assistance, and the right of the defendant and his/her attorney to unobstructed communication free from interference.
(3) The Ministry of Justice: With reference to the safeguards established by the European Court of Human Rights, Article 128 of the Code of Criminal Procedure mandates that search warrants must be issued by a judge in advance, with the issuance of search warrants for third parties, other than suspects, requiring a higher threshold of necessity. Article 148 further provides a mechanism to protect individuals subject to searches, mandating that searches be conducted in the presence of the individuals being searched. Additionally, the Code allows for motions to set aside court rulings and provides for the weighing and exclusion of evidence in accordance with Articles 404 and 416 after the search. The Ministry of Justice has also taken measures to protect attorneys during searches. In 2004, it issued an official directive outlining safeguards for attorneys during such procedures. Moreover, a directive issued in 2004 expanded the interpretation of special relationship of trust between defense attorneys and their clients, explicitly prohibiting the search and seizure of documents and records created within that special relationship of trust. These provisions and practices demonstrate that the existing legal framework and enforcement measures do not raise questions of unconstitutionality.
(4) The opinions and statements of the petitioners, relevant government agencies, experts and scholars are comprehensively documented in their written submissions, oral hearing presentations, and the transcript of the oral hearing.
After considering the petitions and statements from all parties during the oral hearing, this Judgment is made with the following reasoning.
III. The Subject Matter for Review
1. Article 122, Paragraph 2 of the Code of Criminal Procedure provides: “"the person, property, electronic 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 electronic record subject to seizure is there.” (i.e., the Disputed Provision 1)
2. Article 133(1) of the Code of Criminal Procedure provides: “An item which can be used as evidence, or that is subject to confiscation, may be seized.” (i.e., Disputed Provision 2)
IV. Legal Grounds for the Holdings
1. Pertinent Constitutional Rights
This case concerns the search of a law firm. The fundamental rights of both the law firm and the attorneys practicing within it are impacted as follows:
(2) The right to communicate freely and confidentially between the defense attorney and the defendant
In principle, a defense attorney shall be a lawyer (Article 29 of the Code of Criminal Procedure for reference). Therefore, serving as a defense attorney for the defendant is a crucial aspect of an attorney’s professional duties. The ability of criminal defendants and their defense attorneys to communicate freely and without interference is an essential element of the defendant's right to defense, and it should be guaranteed by the Constitution. For the defendant, the right to confidential and unrestricted communication falls under Article 16 of the Constitution, which protects the people's right to litigation. This is designed to ensure the right to a fair trial and to allow the defendant the right to adequate defense in accordance with due process of law, including the selection of a trusted advocate. This guarantees the protection of the right to a fair trial, as noted in . Y. Interpretation No. 654. These rights also protect the defendant's right not to incriminate themselves. Article 34, Paragraphs 1 and 2 of the Code of Criminal Procedure were subsequently amended as follows: “The defense attorney may interview, and have correspondence with, the accused in detention. Such rights may not be restricted, unless there is sufficient evidence to prove that the attorney may destroy, fabricate, or alter evidence, or may collude with accomplices or witnesses.”, “The interview and correspondence between a defense attorney and the accused, or suspect, who is arrested with or without a warrant during an investigation, shall not be restricted.”
To enable suspects and their defense attorneys to effectively exercise their right to defense, the Judicial Yuan has issued several interpretations. For example, J.Y. Interpretation No. 737 mandates that, during a pretrial detention hearing, the defendant and the defense attorney must be informed of the reasons and relevant evidence upon which the prosecutor’s detention request is based. Furthermore, the term "criminal defendant" in J.Y. InJ.Y. Interpretation No. 654 was expanded to include criminal suspects whom law enforcement authorities have subjectively suspected of committing a crime and against whom an investigation or inquiry has begun (see TCC Judgment 111-Hsien-Pan-7 for reference). Therefore, the right to confidential and unrestricted communication between the defense attorney and the defendant is essential to protect the defendant's right to litigation, the right to effective legal assistance, and the right to a fair trial. It also safeguards the defendant’s right not to incriminate themselves. If the right to confidential and free communication between the defense attorney and the defendant is violated, the defendant will be deprived of the real and effective protection afforded by the right to defense.
(3) The Attorney’s Right to Work, Freedom of Residence, and Due Process of Law
Article 15 of the Constitution guarantees the people's right to work, granting them the freedom to engage in work and to choose and pursue their occupation. Therefore, all legitimate work undertaken by the people as a means of livelihood should be protected by the state. Any restriction on occupational freedom must be justified and should not exceed what is necessary (see J.Y. Interpretation No. 462 and TCC Judgment 111-Hsien-Pan-12 for reference). Unwarranted intrusion or restrictions on a law firm may interfere with the attorneys' ability to perform their professional duties, thereby infringing upon their right to work.
Article 10 of the Constitution guarantees the freedom of individuals to reside in their homes, protecting their right to choose their residence and conduct their private lives without interference (see J.Y. Interpretation Nos. 443, 709, and 739 for reference). The protection of the freedom of residence extends not only to freedom from undue interference with one’s home but also to freedom from interference with one’s place of work and business. A law firm, being a place where attorneys conduct their professional activities, falls within the scope of constitutional protection for freedom of residence.
The principle of constitutional due process means that when people's rights are infringed upon or restricted, there should be a system in place that provides an opportunity for them to seek remedies. Furthermore, legislators should establish appropriate legal procedures based on factors such as the type of fundamental rights involved, the scope of protection, the extent of the restrictions, the public interest to be pursued, the functional appropriateness of the deciding authority, the availability of alternative procedures, and the costs associated with the various possible procedures (see J.Y. Interpretation No. 689 for reference).【32】
2. Review of Disputed Provisions 1 and 2
(1) Reasons for the Holding 1
Search and seizure in criminal proceedings are powerful tools used by the state to preserve evidence and uncover the truth, serving the purposes of prosecuting crimes, maintaining social order, and ensuring security—all of which are of significant public interest. Article 122 of the Code of Criminal Procedure establishes different thresholds for conducting searches depending on whether the subject is a defendant, a suspect, or a third party. Paragraphs 1 and 2 set the requirements as "when necessary" for defendants and suspects and "when there is probable cause" for third parties, respectively. Disputed Provision 1 stipulates that the search of a third party’s person, property, electromagnetic records, home, or other premises shall only be conducted when there is probable cause. This sets a higher threshold for searching third parties compared to defendants and suspects, where the threshold is necessity. Thus, Disputed Provision 1 distinguishes between defendants, suspects, and third parties in terms of search requirements (see the Legislative Yuan Gazette 64:97, published in November 1934). Disputed Provision 2 provides for the compulsory seizure of items and confiscated property to preserve evidence and ensure the execution of confiscation, serving as a necessary measure for the state to investigate crimes. The state's role in establishing the advocate system includes empowering attorneys to assist their clients in safeguarding constitutionally guaranteed fundamental rights, ensuring that the state adheres to due process when pursuing criminal investigations. Furthermore, it is a critical public interest to allow attorneys to fully perform their role as defenders, helping defendants or suspects exercise their right to defense effectively.
Due to the nature of an attorney's practice, which is to protect the interests of their client and foster full trust and communication, the Attorney Regulation Act specifically provides that attorneys have both the right and obligation to maintain confidentiality when their clients communicate with them confidentially for the purpose of seeking professional legal assistance and defense (see Article 36 of the Attorney Regulation Act for reference). This safeguard is designed to preserve the special relationship of trust between an attorney and their client. The Code of Criminal Procedure further stipulates that attorneys, including counsel and defense attorneys, have the right to refuse to testify when questioned or interrogated about confidential matters they have learned in the course of their work, unless permitted by their clients (see Articles 182 and 196-1, Paragraph 2, of the Code of Criminal Procedure for reference). This provision similarly aims to uphold the special relationship of trust between attorneys and their clients. Additionally, the Criminal Code imposes a duty of confidentiality on attorneys and penalizes the unauthorized disclosure of secrets learned or possessed during the course of their professional practice (see Article 316 of the Criminal Code for reference). When the relationship between an attorney and their client involves a defense attorney representing a defendant or suspect, the right to free and confidential communication is constitutionally guaranteed, as described above.
Furthermore, J.Y. Interpretation No. 654 has clarified that the right to free and uninterrupted communication between a defense attorney and a defendant (including a suspect) is constitutionally guaranteed, irrespective of whether the defendant’s or suspect’s personal freedom is restricted. The distinction between an attorney-client relationship and a defense attorney-defendant or defense attorney-suspect relationship is not always clear-cut. Additionally, when a client consults an attorney for assistance, such consultations are not limited to situations where the client has already been formally prosecuted by state authorities. Clients may also seek legal advice in preparation for the possibility of being investigated or prosecuted in the future. As such, the constitutionally protected right to free and confidential communication between a defense attorney and a defendant or suspect should extend to individuals who may become potential suspects subject to investigation and prosecution by state authorities and who seek the assistance of an attorney.
The right to confidential and free communication extends beyond face-to-face verbal communication. It should also encompass other forms of interaction, such as letters, electronic transmissions, and documentary information (e.g., documents, electromagnetic records, etc.) created by the attorney in the exercise of this right. These are integral to the core of the special relationship of trust between the attorney and their client. The purpose of the defense system is to enable attorneys to assist their clients in resisting state prosecution within the adversarial system, where trial, prosecution, and defense are separate entities, thereby preventing injustices. Consequently, communication records between an attorney and his/her client, as well as any documents (e.g., documents, electromagnetic records, etc.) prepared by the attorney for this purpose, should be constitutionally protected and excluded from being used as evidence of a crime. State authorities should be prohibited from seizing these communication records and documents (e.g., documents, electromagnetic records, etc.) for the purpose of collecting evidence of a crime. Therefore, state authorities should not initiate searches aimed at seizing such communication records or related documents for the purpose of obtaining evidence of a crime. Allowing searches and seizures of confidential communication records or the documents resulting from such communications between defense attorneys and defendants, suspects, or potential suspects would severely undermine the role of defense attorneys in protecting their client’' legal rights. It would also constitute an inappropriate infringement on the attorneys’ right to work.
In conclusion, Disputed Provisions 1 and 2, as well as other relevant provisions of the Code of Criminal Procedure, which fail to exclude from search and seizure the records of communication between attorneys and defendants, suspects, or potential suspects, along with any resulting documents and information (e.g., documents, electromagnetic records, etc.), based on the constitutional guarantee of the right to free and confidential communication, are inconsistent with Article 15 of the Constitution, which protects the attorney’s right to work, and Article 16, which safeguards the defendant’s right to litigation. The relevant authorities shall, within two years from the date of this judgment, amend the Code of Criminal Procedure in accordance with the principles outlined in this judgment and make appropriate provisions. Until these revisions are completed, judges, prosecutors, and related personnel shall conduct searches and seizures in compliance with this judgment. That said, the above restriction on searches and seizures involving law firms, attorneys, or defense attorneys acting as third parties shall not apply if there is sufficient evidence to prove that the attorneys or defense attorneys have destroyed, falsified, or altered evidence, or have colluded with accomplices or witnesses (as stipulated in the latter part of Article 34, Paragraph 1 of the Code of Criminal Procedure).
(2) Reasons for the Holding 2
A law firm, as the place where attorneys conduct their business, stores and manages information in its files, including electromagnetic digital records, relating to cases entrusted by numerous clients. A single electronic file may contain information pertaining to multiple clients. The content of engagements between attorneys and their clients may involve criminal liability or other legal matters. When a state agency conducts a search and seizure at a law firm, it must screen through documents and electromagnetic records to find specific items. During this process, the agency will inevitably encounter documents belonging to other clients who are not the target of the seizure, and whose communications are protected by the right to free and confidential communication. As a result, if a search is conducted at a law firm to seize items specified under Disputed Provision 2 without appropriate safeguards, it is likely to infringe upon the attorneys’ constitutional freedom of residence, diminish public trust in attorneys, and violate the attorneys’ right to work. Given that law firms inherently store sensitive and confidential information belonging to a wide range of clients, the search and seizure process inherently risks violating the right of other clients to communicate freely and confidentially. Therefore, the search and seizure of a law firm must be approached with careful consideration of the procedural requirements, procedural safeguards, and remedies necessary to ensure compliance with the constitutional principle of due process of law.
According to Article 128 of the Code of Criminal Procedure, a search warrant must be issued by a judge. Article 128-1, Paragraphs 1 and 2, stipulate that if a prosecutor deems a search necessary during an investigation—except for searches incident to arrest, direct searches, or consented searches—the prosecutor must apply for a search warrant in writing to the court. The application must include the information specified in Article 128, Paragraph 2, as well as the reasons for the search. To investigate a criminal suspect and collect evidence, a judicial police officer who finds it necessary to conduct a search may, in accordance with Article 128-1, Paragraph 1, request prosecutorial approval to petition the court for a search warrant. Additionally, under Article 128, Paragraph 3, the judge may provide appropriate instructions to law enforcement officers regarding the execution of the search warrant. When the court reviews a request to search a third-party law firm, it must take into account the unique nature of the law firm and rigorously examine the justification for the search in the specific case before deciding whether to issue the warrant. If a search is authorized, the search warrant must clearly specify the scope of the search, including the premises, individuals, objects, or electromagnetic records to be searched. The court should also provide explicit instructions to the enforcement officers about what to exclude from the search. This includes any records involving confidential communication between attorneys and their clients (defendants, suspects, or potential suspects). It also includes any resulting documentary information, such as written or electromagnetic records. Similarly, any materials (e.g., documents and electromagnetic records) derived from such communications must be excluded from the search.
Article 133, Paragraph 3, of the Code of Criminal Procedure states: “The owner, holder, or custodian of the items to be seized shall bring forward or deliver the items as ordered.” Accordingly, when the court considers whether to issue a search warrant for a law firm in the position of a third party—or even after the warrant has been issued—law enforcement should evaluate the specific circumstances of the case during execution. In accordance with the constitutional principle of proportionality, law enforcement should first resort to the less intrusive method of an “order to produce or deliver” the items in question before conducting a physical search and seizure. Additionally, any seizure resulting from a search must adhere to the terms of the search warrant, which requires a judge's signature. In cases of wrongful seizure, the seized items should be returned or temporarily returned to the law firm in accordance with Article 142 of the same law, to protect the rights of both the defense attorney and their client. To ensure compliance with the constitutional principle of due process, the entire search and seizure process as well as the inspection of seized items must be audio-recorded. Disputes may arise during the search about whether certain seized items are protected by the right to free and confidential communication. In such cases, the affected party may immediately request the presiding court to revoke or amend the search and seizure order. In such cases, the disputed items should be sealed and sent to the court for review. After executing the search warrant, the prosecutor or judicial police officer must, pursuant to Article 132-1 of the same law, report the results of the execution to the issuing court. The court may then review the legality of the search and seizure. Even if the search and seizure have been completed, the affected party may still file to revoke or amend the original sanction under Article 416, Paragraph 1, Subparagraph 1, and the court may not dismiss the request solely on the grounds that the execution has already been completed. If the court revokes the search and seizure pursuant to Article 416, Paragraph 2, it may declare that the seized items are inadmissible as evidence at trial. These provisions expressly stipulate the remedies available and the legal effect of the prohibition of evidence. Therefore, when a search and seizure of a law firm is conducted in accordance with the above procedures, it cannot be deemed inconsistent with the constitutional principles of due process.
In summary, based on an overall observation of Disputed Provisions 1 and 2, as well as the relevant provisions of the Code of Criminal Procedure on search and seizure, it is evident that the prosecutor’s request for a search warrant targeting a third-party law firm must be issued by a judge. The judge is required to carefully determine whether the legal requirements are satisfied in accordance with the applicable laws and regulations. Additionally, the procedural safeguards in place—such as the examination of seized objects during the process, the availability of legal remedies, and the exclusion of unlawfully obtained evidence—serve to prevent abuse of power or arbitrariness. These safeguards ensure that the extent to which basic rights are restricted during search and seizure is proportionate to the public interest in prosecuting crimes and uncovering the truth, thereby adhering to the principle of proportionality. The absence of special procedural requirements in the Code of Criminal Procedure for the search and seizure of law firms is consistent with does not violateArticle 10 of the Constitution, which guarantees the people’s freedom of residence, Article 15, which protects the right to work of attorneys, and the principle of due process of law.