Note: 
This summary constitutes no part of the Judgment but is prepared by the Department of Clerks for the Constitutional Court only for the readers’ reference.
Original paragraph numbers that the summarized texts correspond to are put into lenticular brackets after each paragraph. 
In case of any conflict of meaning between the Traditional Chinese version and the translated English version, the Traditional Chinese version shall prevail.

Headnotes

    Article 122, Paragraph 2 and Article 133, Paragraph 1 of the Code of Criminal Procedure were declared partly unconstitutional for failing to provide sufficient procedural safeguards for attorneys and law firms. The provisions did not exclude attorney-client communications (of attorneys and law firms) from search and seizure, consequently violating the lawyer's right to work and their client's right to judicial remedy.

    However, the current mechanism of judge-reviewed warrants and challenge procedures against the search and seizure are sufficient in terms of judicial supervision and remedy. 

Background Note

    This Judgement concerns the attorney-client privilege and the protection of professional secrecy of lawyers in cases that involve search and seizure of law firm’s offices. The disputed provisions are Article 122, Paragraph 2 and Article 133, Paragraph 1 of the Code of Criminal Procedure. The former stipulates the standard to initiate search and seizure toward parties that are not criminal suspects; the latter the general regulation for seizure. 

    The petitioner is the law firm Lee and Li, Attorneys-at-Law. In 2011, the offices of two lawyers (LIN and HUNG) employed by the petitioner were searched by the Ministry of Justice Investigation Bureau (MJIB). The offices were on the premises of the petitioner's Hsinchu branch office. The search was initiated to collect evidence for an insider trading investigation toward the firm’s client, Kontron Asia, who was assigned to Lee and Li lawyers LIN and HUANG. Based on surveillance recordings, the MJIB had probable cause to believe that they may find crucial evidence in the correspondences between the Securities and Futures Bureau of the Financial Supervisory Committee and LIN and HUNG. The MJIB's search warrant, with a note from the investigation's prosecutor emphasizing the search "shall only be limited to document and electronic devices in LIN and HUNG's offices, so that it wouldn’t cause a nuisance to the firm", was issued by the Taiwan Shilin District Court. The MJIB search has resulted in the seizure of eighteen emails (and relevant documents) from HUNG and one compact disc containing LIN's emails. The petitioner filed an interlocutory appeal, arguing that the seized documents are privileged and that Taiwan Shilin District Court allowing the search without first ordering its lawyers to hand in the documents has violated due process. However, the interlocutory appeal was overruled by the Taiwan High Court.

    The petitioner lodged for constitutional review in July 2012, arguing that the disputed provisions have treated the premises of law firms as common places, making the premises prone to searches, and privileged documents and electronically-stored information subjected to seizure, consequently violating attorney-client privilege, the protection professional secrecy of lawyers, and the right to judicial remedy.
 

Summary of the Judgment 

Holding

1. Article 122, Paragraph 2 of the Code of Criminal Procedure (hereinafter "Provision I") provides that "[t]he 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." Article 133, Paragraph 1 of the Code of Criminal Procedure (hereinafter "Provision II") provides that "An item which can be used as evidence, or that is subject to confiscation, may be seized." Upon comprehensive examination of the two provisions and other relevant regulations, it is observed that documents (e.g., papers, electronic records) generated by lawyers or defense counsels in the exercise of their constitutionally protected right to confidential communication with defendants, suspects, or potential suspects, are not exempt from being subject to search and seizure. Within this scope, the disputed provisions violate the protection of lawyer's right to work and the defendant's right to judicial remedy under Articles 15 and 16 of the Constitution. The competent authority should amend the Code of Criminal Procedure following this Judgment within a two-year grace period from the announcement of this Judgment. Before the amendment, search and seizure conducted by judges, prosecutors, and relevant authorities should conform to this Judgment. 
2. Viewing comprehensively from the disputed provisions and other regulations regarding search and seizure, judges may review search warrant applications from relevant authorities, there are also established supervision and challenge mechanisms for the order and execution of search and seizure. Therefore, the Code of Criminal Procedure not providing a special procedure for the search and seizure of law firms does not violate the protection of freedom of residence, lawyer's right to work, and due process of law under the Constitution. 
3. The rest of the petitioner's complaint is dismissed.

Reasoning

1. Pertaining constitutional rights: 

(1) The right to confidential communication under attorney-client privilege:

    The free and full communication between the criminal defendant and his or her attorney is the important essence of the criminal defendant's right to counsel and should be protected under the Constitution. From the perspective of the defendant, the right to confidential communication lies within the boundary of people's right to judicial remedy. Its purpose is to safeguard the people's right to a fair trial so that criminal defendants are entitled to the full right to defend under due process of law, which includes, among other things, the selection of an entrusted counsel. The right to confidential communication is essential for the defendant to institute legal proceedings and receive effective assistance of counsel. It also serves to protect the defendant's privilege against self-incrimination (right not to incriminate oneself) and uphold the right to a fair trial. Once the right to confidential communication is infringed, the defendant will be unable to procure effective protection to realize the functions of the right to defend.【27-28】

(2) The attorney's right to work, freedom of residence, and the due process of law:

    Undue disruption and restriction toward law firms may interfere with the practices of lawyers, consequently infringing their right to work.【30】

    Article 10 of the Constitution stipulates that people have the freedom of residence, which not only includes the protection of people's homes from undue interference but also extends to their workplaces and business premises. Since law firms serve as places where lawyers conduct legal practice, they fall within the scope of constitutional protection for the freedom of residence.【31】

2. The review of Provisions I and II:

(1) In terms of Part 1 of the holding:

    When clients communicate confidentially with attorneys for legal advice and defense, the Attorney Regulation Act (ARA) specifically requires the latter to keep the privileged information confidential in order to maintain the special trust between attorneys and clients. This is both a right and an obligation of the attorney under the ARA. When attorneys and defense counsels are questioned or interrogated about the confidential matters they have learned in the course of their duties, the Code of Criminal Procedure stipulates that they have the right to refuse to testify unless authorized by their clients. The right to free and confidential communication between defense counsels and their defendants (or suspects) should be protected under the Constitution. Given that it is hard to draw a clear line to the point where the client's case has turned into a criminal matter, this protection should extend to potential suspects who are seeking attorney advice for possible future prosecutions.【36-37】

    The right to confidential communication, in addition to face-to-face verbal dialogues, letters, and electronic transmissions, should also include documents (e.g., papers, electronic records) generated by attorneys or defense counsels during the exercise of their right to free communication. This lies in the core of the special trust between attorneys and their clients and should be constitutionally protected, excluding said documents from being admitted as evidence. Therefore, state authorities cannot initiate searches to seize said documents as evidence of a crime. Provisions I and II and other relevant provisions in the Code of Criminal Procedure did not exempt said documents from being subject to search and seizure. Within this scope, the disputed provisions violate the protection of lawyer’s right to work and the defendant’s right to judicial remedy under Articles 15 and 16 of the Constitution. The competent authority should amend the Code of Criminal Procedure following this Judgment within a two-year grace period from the announcement of this Judgment. Before the amendment, search and seizure conducted by judges, prosecutors, and relevant authorities should conform to this Judgment.【38-39】

(2) In terms of Part 2 of the holding:

    The law firm is where attorneys conduct their businesses, in which the premises preserve various documents on their client's cases, including those preserved electronically. It is also probable for an electronic document to contain information on multiple clients. When state authorities conduct searches at law firms and obtain items for seizure under Provision II without proper arrangement, it is highly possible to infringe upon the freedom of residence of lawyers and diminish the public's trust in them. It also constitutes a violation of the lawyers' right to work. To meet the requirement of due process of law under the Constitution, careful consideration should be given especially to the initiating condition, procedure, and remedy of search and seizure of law firms.【41】

    Article 128 of the Code of Criminal Procedure stipulates that searches should be reviewed by a judge (Richtervorbehalt). Said Article further provided in Paragraph 3, Second Sentence that the judge may specify proper instructions to be followed by the person executing the search on the search warrant. Accordingly, when reviewing the search warrant of a law firm that is a third party in a case, the judge should consider the special nature of law firms, and examine strictly the reasons as to whether the warrant should be granted in each case. When approving searches toward law firms, search warrants should specify the scope of the search in terms of premises, persons, objects, or electronic records. Moreover, specific instructions should be given that items subject to search and seizure should not include documents (e.g., papers, electronic records) generated by lawyers or defense counsels and their clients (defendants or suspects) during their confidential communications.【42】

    When the court reviews search warrant applications for law firms that are third parties to the cases, it should also consider the circumstances of each case. Under the constitutional principle of proportionality, it should still primarily choose the less intrusive means, which is "ordering the owner, holder, or custodian to bring forward or deliver the items." In cases where the items were seized mistakenly, the items should be returned (either definitely or provisionally) to the law firms following Article 142 of the Code of Criminal Procedure to protect the rights of the attorneys and their clients. The execution of searches and seizures should be fully recorded in audio and video. During the search of law firms, if anyone at the location argues that the seized item pertains to the scope of free and confidential communication, they may, per Article 416, Paragraph 1, Subparagraph 1 of the Code of Criminal Procedure, request the court in charge to withdraw or change the search and seizure order. Meanwhile, the seized items should be sealed and submitted to the court for examination. Such a request does not become inadmissible simply because the search and seizure has been conducted. Under Paragraph 2 of the said Article, if the search and seizure were revoked, the court may exclude the seized items as evidence during trial (exclusionary rule). As mentioned above, the remedies and exclusionary rule for evidence have been stipulated expressly for searches and seizures. Searches and seizures of law firms under said procedures are not in violation of the constitutional principle of due process of law.【43】

    In conclusion, viewing comprehensively Provisions I and II and the provisions regarding search and seizure in the Code of Criminal Procedure, prosecutor-filed search warrant applications towards law firms should be reviewed by a judge. Considering that said provisions provide examination of seized items in real-time, post-search remedies and the exclusionary rule for searches and seizures, abuse of power and arbitrariness may be avoided, limiting the intrusion of fundamental rights proportionately equilibrated with the public interest of truth-finding and prosecution of crime. Therefore, although the Code of Criminal Procedure did not set up a special procedure for searches and seizures of law firms, it still conforms to the protection of freedom of residence (Article 10), the lawyer's right to work (Article 15), and the principle of due process of law under the Constitution.【44】