Amicus Curiae Brief to the Constitutional Court | Case on the Search of Law Offices

Main Case Number    Hui-Tai-Tzu No. 11067
Amicus Curiae    Taiwan Association for Judicial Reform
　　　　　　Representative: Huang Hsu-T'ien    All details in the power of attorney

Counsel    
Attorney Li Yi-Chuan
Attorney Cheng Yu-Ting
Attorney Chou Yu-Hsiu    All details in the power of attorney

Regarding the petition for constitutional review of legal norms by citizens, this amicus curiae brief is submitted pursuant to Article 20, Paragraph 1 of the Constitutional Court Procedure Act:

I. Disclosures Required for Submitting an Amicus Curiae Brief:

1. Pursuant to Article 20, Paragraph 3 and Article 19, Paragraph 3 of the Constitutional Court Procedure Act, individuals or organizations other than parties and interested persons submitting professional opinions or materials shall disclose whether they have a division of labor or cooperative relationship with the parties, interested persons, or their counsel, or any financial remuneration or sponsorship and its amount or value.
2. This amicus curiae brief was co-authored by counsel Attorney Li Yi-Chuan, Attorney Cheng Yu-Ting, and Attorney Chou Yu-Hsiu.
3. Regarding the drafting of this amicus curiae brief, this Association, its representative, and its counsel have not received any financial remuneration or sponsorship, nor any amount or value thereof, from the applicant, interested persons, or their counsel in Hui-Tai-Tzu Case No. 11067 (hereinafter the "Present Case"), nor is there any command-and-supervision relationship, which is hereby stated for the record.

II. Issues for Argument Announced by the Honorable Court

Pursuant to the Honorable Court's Announcement No. Hsien-Ting-Li-Hui-Tai-11067-1122000002 dated January 3, 2023, the issues for oral argument in the Present Case are:

1. Should attorney-client privilege (or the right to attorney-client confidential communication) and the privacy of legal practice be protected by the Constitution? What are the constitutional bases, subjects, contents, and scope of such protection?
2. Do the provisions of Article 122, Paragraph 2 and Article 133, Paragraph 1 of the Code of Criminal Procedure constitute an unconstitutional infringement upon the aforementioned rights?

III. Opinions and Reasoning Regarding the Present Case

1. Article 122, Paragraph 2, Article 133, Article 135 of the Code of Criminal Procedure, and Article 5 of the Communication Security and Surveillance Act fail to provide special protection for the right to confidential communication between attorneys and their clients, which is inconsistent with the International Covenant on Civil and Political Rights (hereinafter the "ICCPR"), which requires full protection of individuals' rights to a fair trial, privacy, and effective assistance of counsel:

   • (1) Articles 14 and 17 of the ICCPR respectively protect the rights to a fair trial and privacy. Even if there is a necessity to interfere with the aforementioned rights based on legal provisions, the conditions of confidentiality of communication between defense counsel and the accused must still be respected, and counsel shall not be subjected to any restrictions, influences, pressures, or improper interference:

     1. Article 14 of the ICCPR guarantees the right of individuals to a fair trial. As interpreted in paragraph 34 of General Comment No. 32, counsel must be able to communicate with the accused in conditions guaranteeing full respect for the confidentiality of their communications, and their advice must not be subject to any restrictions, influences, pressures, or undue interference from any quarter:

        • (1) According to Article 14, Paragraph 3, Subparagraph 2 of the ICCPR: "In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality: […] (b) To have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing; […]"

        • (2) Furthermore, paragraph 34 of ICCPR General Comment No. 32 points out: "The right to communicate with counsel requires that the accused be granted prompt access to counsel. Counsel should be able to meet their clients in private and to communicate with the accused in conditions that fully respect the confidentiality of their communications. Lawyers should be able to advise and to represent persons charged with a criminal offence in accordance with generally recognized professional ethics without restriction, influence, pressure or undue interference from any quarter."

        • (3) As can be seen from the above, affording a criminal defendant sufficient time to communicate with defense counsel to prepare a defense is a "minimum guarantee" that every criminal defendant must equally enjoy. In addition to granting sufficient time for preparation between the criminal defendant and defense counsel, the State should also enable them to utilize adequate "facilities" to communicate, thereby ensuring the realization of the right of communication between the criminal defendant and defense counsel.

        • (4) Consequently, regarding the right of communication between a criminal defendant and defense counsel, the ICCPR requires the State to enable counsel to communicate with the accused under conditions obtaining "full respect for the confidentiality of communications." In addition to the confidentiality of the communication process, the contents of the communications, such as the legal advice provided by counsel to the criminal defendant, must also be protected from any restrictions, influences, pressures, or undue interference.

        • (5) In fact, in the case of Saodat Khomidova & Bakhrom Khomidov v. Tajikistan, presented in UN document CCPR/C/81/D/1117/2002, Ms. Saodat Khomidova submitted a communication on behalf of her son, Mr. Bakhrom Khomidov, stating that Mr. Bakhrom Khomidov was accused of involvement in the murder of his neighbor couple. Following his arrest, Mr. Bakhrom Khomidov was denied access to legal assistance and was not even informed of his right to be defended by counsel. It was not until two months later that investigators provided him with a lawyer, but all consultations between the lawyer and Mr. Bakhrom Khomidov took place in the presence of investigators. Regarding the fact that all meetings between the accused and defense counsel took place in the presence of investigators, the Committee held that Mr. Khomidov's rights under Article 14, Paragraph 3, Subparagraph 2 of the ICCPR were indeed violated.

        • (6) In addition, in the written comments submitted by the Council of Europe Commissioner for Human Rights pursuant to Article 36, Paragraph 3 of the European Convention on Human Rights, the Commissioner also indicated that the role of defense lawyers is crucial for the protection of human rights (paragraph 23), and pointed out that in some country reports, the Commissioner and predecessors expressed concern over reports of harassment, ill-treatment prosecutions, and other forms of pressure and obstruction imposed on lawyers defending sensitive cases, considering that the principle of lawyer-client confidentiality has been violated in such cases (paragraph 24). Such pressure seriously undermines the right to defense and hinders lawyers from effectively serving the cause of justice. It further stated that defense lawyers, when providing legal assistance, should be able to do so unhindered and in complete confidentiality to ensure that the right to defense is fully implemented in the performance of their duties (paragraph 27).

     2. As can be understood from the interpretations in paragraphs 1, 4, and 8 of General Comment No. 16, even if there is a necessity for government agencies to interfere with communication rights in accordance with legal provisions, the right to privacy conferred by Article 17 of the ICCPR still requires scrutiny as to whether the legislation has detailed and specified the permissible circumstances of interference, and must ensure that the provisions and objectives of the ICCPR are complied with in every individual case:

        • (1) According to Article 17 of the ICCPR: "1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation. 2. Everyone has the right to the protection of the law against such interference or attacks."

        • (2) Furthermore, ICCPR General Comment No. 16 points out: "(Paragraph 1) Article 17 provides that no one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence... The Committee considers that this right is to be protected against all such interference and attacks whether they emanate from State authorities or from natural or legal persons.", "(Paragraph 4) The term 'arbitrary interference' is also applicable to the protection of the rights provided for in article 17. The Committee considers that the expression 'arbitrary interference' can also extend to legislated interferences. The introduction of the concept of arbitrariness is intended to guarantee that even interference provided for by law should be in accordance with the provisions, aims and objectives of the Covenant and should be, in any event, reasonable in the particular circumstances.", and "(Paragraph 8) Even with regard to interferences that conform to the Covenant, relevant legislation must specify in detail the precise circumstances in which such interferences may be permitted. A decision to make use of such authorized interference can be made only by the authority designated by law, and on a case-by-case basis. Compliance with article 17 requires that the integrity and confidentiality of correspondence should be guaranteed de jure and de facto. Correspondence should be delivered to the addressee without being intercepted, opened or read. Surveillance, whether electronic or otherwise, interceptions of telephone, telegraph and other forms of communication, wiretapping and recording of conversations should be prohibited..."

        • (3) As can be seen from the above, the Committee considers that the protection of the aforementioned communication rights requires not only avoiding "unlawful" interference, but even if conducted by government agencies pursuant to law, it may still constitute "arbitrary" interference and should likewise be avoided.

        • (4) Consequently, to avoid constituting "arbitrary" interference and to conduct reasonable interference consistent with the spirit of the ICCPR, the legislation must not only detail and specify the precise circumstances in which interference is permissible, but such interference must also be decided by authorities designated by law on a case-by-case basis referring to the aforementioned permissible standards. Efforts must be made to ensure that interferences conducted pursuant to law in individual circumstances reasonably conform to the provisions and objectives of the ICCPR, thereby ensuring the integrity and confidentiality of communications both de jure and de facto.

     3. In summary, pursuant to Articles 14 and 17 of the ICCPR regarding the protection of the rights to privacy and a fair trial, the integrity and confidentiality of communications between a criminal defendant and defense counsel shall be protected. Even if the State has grounds and necessity for interference, it shall set forth in advance in legal norms complying with the spirit of the ICCPR the specific circumstances under which interference is permissible, strictly execute such interference in actual law enforcement according to the statutory requirements, and prudently avoid any restrictions, influences, pressures, or undue interference upon defense counsel caused by the interference measures in every individual case.

   • (2) Article 122, Paragraph 2, Article 133, Article 135 of the Code of Criminal Procedure, and Article 5 of the Communication Security and Surveillance Act do not provide special protection for the right to confidential communication between attorneys and their clients regarding search, seizure, and wiretapping:

     1. Article 122, Paragraph 2, Article 133, and Article 135 of the Code of Criminal Procedure fail to provide special protection for the right to confidential communication between attorneys and clients regarding search and seizure:

        • (1) Examining Article 122, Paragraph 2 of the Code of Criminal Procedure, which merely provides: "The body, articles, electromagnetic records, and dwelling or other premises of a third party may be searched only when there are reasonable grounds to believe that the defendant or criminal suspect, or articles or electromagnetic records to be seized, exist therein." It fails to consider that the right to confidential communication between a client and defense counsel requires special protection; thus, its level of protection cannot be treated merely as that of an ordinary "third party." Obviously, the aforesaid provision fails to carefully consider and detail that if the premises to be searched are sensitive premises potentially involving the right to confidential communication between attorneys and clients (such as the search of a law office involved in this case), special requirements must apply otherwise.

        • (2) Next, Article 133 of the same Code merely provides: "
          (Paragraph 1) Articles that may serve as evidence or may be confiscated may be seized.
          (Paragraph 2) To ensure collection, the property of a criminal suspect, defendant, or third party may be seized as necessary.
          (Paragraph 3) The owner, holder, or custodian of articles to be seized may be ordered to produce or deliver them.
          (Paragraph 4) The seizure of immovable property, vessels, or aircraft may be effected by notifying the competent authority for seizure registration.
          (Paragraph 5) The seizure of claims may be effected by issuing a seizure order prohibiting collection or other disposition from the debtor, and prohibiting discharge to the defendant or third party.
          (Paragraph 6) Seizure under this Code has the effect of prohibiting disposition, and does not preclude provisional attachment, provisional injunctions, and attachment or seizure in final execution under civil law."
          Similarly, this provision likewise fails to carefully consider and detail the special requirements that must be met when items to be seized are sensitive items potentially involving the right to confidential communication between attorneys and clients (such as case files held by a law office).

        • (3) Furthermore, Article 135 of the same Code still merely provides: "(Paragraph 1) Mails or telegrams held or kept by postal or telecommunications agencies, or personnel executing postal and telegraphic affairs, may be seized under any of the following circumstances: 1. There are reasonable grounds to believe they are related to the case. 2. Sent by or addressed to the defendant. However, mails or telegrams exchanged with defense counsel are limited to those that can be considered evidence of crime, or where there is a risk of destroying, forging, or altering evidence, or colluding with accomplices or witnesses, or where the defendant has fled.
          (Paragraph 2) Seizures made pursuant to the preceding paragraph shall be promptly notified to the sender or recipient of the mail or telegram. However, this does not apply if it would impede proceedings."
          Although the proviso of Paragraph 1 of this Article sets forth special regulations for communication contents exchanged between the defendant and defense counsel, it uses standards such as "can be considered a risk of..." or "the defendant has fled." It is highly questionable whether "a risk that... can be considered" meets the standard of "legislation must specify in detail the precise circumstances in which such interferences may be permitted" as interpreted in Article 17 of the ICCPR and General Comment No. 16. Moreover, using "whether the defendant has fled" as the distinguishing standard for whether to interfere with confidential communications between the defendant and defense counsel and seize communications exchanged between them is evidently inappropriate in terms of whether the interference is reasonable and whether the means are conducive to achieving the purpose.

     2. Article 5 of the Communication Security and Surveillance Act does not provide special protection for the right to confidential communication between attorneys and clients regarding wiretapping:

        • (1) Examining Article 5 of the Communication Security and Surveillance Act, which provides: "(Paragraph 1) Where there are factual grounds to believe that a defendant or criminal suspect has committed an offense under any of the following subparagraphs, and the offense gravely endangers national security, economic order, or social order, and there are reasonable grounds to believe that the communication contents are related to the case, and evidence cannot or is difficult to collect or investigate by other methods, a communication surveillance warrant may be issued. 1. [...] (Omitted).
          (Paragraph 2) The communication surveillance warrant referred to in the preceding paragraph shall be applied for in writing by the prosecutor upon application by judicial police agencies or ex officio to the competent court for issuance during the investigation stage... (Omitted).
          (Paragraph 4) The executing agency shall make a report at least once every fifteen days during the period of executing surveillance... (Omitted).
          (Paragraph 5) The application for a communication surveillance warrant shall be limited to a single surveillance target..."
          However, it fails to consider the right to confidential communication between a client and defense counsel, and fails to exclude them from the scope of wiretapping or enact special regulations, which clearly violates the requirements of Article 14, Paragraph 3, Subparagraph 2 of the ICCPR. If this indeed enables investigators to universally learn the communication contents between the defendant and defense counsel regardless of individual case circumstances, then according to the standard of the Saodat Khomidova & Bakhrom Khomidov v. Tajikistan case, there is a high probability of infringing upon the rights protected under Article 14, Paragraph 3, Subparagraph 2 of the ICCPR.

        • (2) In addition, "wiretapping" is often considered the compulsory measure that most severely restricts and interferes with fundamental rights apart from restricting personal liberty. Implementing wiretapping against defense counsel can hardly be deemed not to affect counsel's provision of legal advice to criminal defendants, and it must be recognized that such measures indeed constitute restrictions, influences, pressures, and undue interference upon defense counsel.

   • (3) Article 122, Paragraph 2, Article 133, Article 135 of the Code of Criminal Procedure, and Article 5 of the Communication Security and Surveillance Act formally fail to meet the requirements of Article 17 of the ICCPR and paragraph 8 of General Comment No. 16 regarding "legislation must specify in detail the precise circumstances in which interference is permitted," and substantively constitute an infringement upon the rights to a fair trial and privacy protected under Articles 14 and 17 of the ICCPR:

     1. As seen above, whether it is Article 122, Paragraph 2, Article 133 of the Code of Criminal Procedure, or Article 5 of the Communication Security and Surveillance Act, none of them specially distinguishes the differences in status and function between ordinary third parties and defense counsel regarding search, seizure, and wiretapping regulations, but merely regulates using abstract standards such as "there are reasonable grounds to believe..." or "may as necessary..." Formally, this clearly fails to meet the requirements of Article 17 of the ICCPR and paragraph 8 of General Comment No. 16 concerning "legislation must specify in detail the precise circumstances in which interference is permitted." Furthermore, although the proviso of Article 135, Paragraph 1 of the Code of Criminal Procedure establishes special regulations for communication contents exchanged between the defendant and defense counsel, the requirement prescribed therein of "can be considered a risk of..." is also difficult to consider as complying with the aforesaid requirements of the ICCPR.

     2. In addition, even if the interference is executed in accordance with the law, since it fails to comply with the aforementioned requirements, such interference not only inevitably constitutes "arbitrary interference" as referred to in Article 17 of the ICCPR, but when the premises to be searched are sensitive premises potentially involving the right to confidential communication between attorneys and clients, when items to be seized are sensitive items potentially involving the right to confidential communication between attorneys and clients, and when wiretapping defense counsel allows investigators to jointly hear communication contents between the defendant and defense counsel, it will not only severely infringe upon the right to privacy protected under Article 17 of the ICCPR and the communication right protected under Article 14, Paragraph 3, Subparagraph 2 of the ICCPR, but will also inevitably impose restrictions, influences, pressures, and undue interference upon defense counsel, thereby infringing upon the right to a fair trial protected under Article 14 of the ICCPR.

2. Article 122, Paragraph 2, Article 133, Article 135 of the Code of Criminal Procedure, and Article 5 of the Communication Security and Surveillance Act, by failing to provide special protection for the right to confidential communication between attorneys and clients in their respective provisions on search, seizure, and wiretapping, are further inconsistent with Articles 16, 22, and 18 of the Basic Principles on the Role of Lawyers and Principle 2 ("State Responsibility") Paragraph 15 of the United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems:
   • (1) Articles 16 and 22 of the Basic Principles on the Role of Lawyers specifically emphasize that governments should recognize and respect that all communications between lawyers and their clients within their professional relationship are confidential, and should ensure that lawyers perform their professional functions without improper interference:

     1. According to Article 22 of the Basic Principles on the Role of Lawyers, governments shall recognize and respect that all communications and consultations between lawyers and their clients within their professional relationship are confidential.

     2. Furthermore, Article 16 of the Basic Principles on the Role of Lawyers provides that governments shall ensure that lawyers (a) are able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference; (b) are able to travel and to consult with their clients freely both within their own country and abroad; and (c) shall not suffer, or be threatened with, prosecution or administrative, economic or other sanctions for any action taken in accordance with recognized professional duties, standards and ethics.

     3. The right to confidential communication between attorneys and clients is an important content of the defendant's exercise of the right of defense. Therefore, it must be ensured that the defendant can communicate with counsel without hesitation or distraction under conditions free from interference by state authorities to seek professional legal assistance, without worrying that the contents of communication with counsel will be used as evidence against them, thereby substantively protecting the defendant's right to defense. Consequently, after accepting a client's appointment, an attorney needs to engage in case discussions, transmission of materials, correspondence, and other information exchanges with the client in order to provide professional legal assistance and substantive effective legal opinions, thereby fulfilling the duties of a professional attorney. All information exchanged between the attorney and the client mentioned above, as well as materials such as business records of subsequent litigation strategies studied by the attorney, constitute the core contents of confidential communication between attorneys and clients, shall be deemed "confidential matters," and should be protected by the right to confidential communication.

     4. If judicial authorities are able to conduct comprehensive searches, seizures, and wiretapping of law offices in a manner no different from the extent of compulsory measures implemented against ordinary individuals, it can be considered an improper interference with lawyers performing their professional functions, and compromises the basic function of the defense system in protecting the litigation rights of criminal suspects. Thus, the State cannot simply subject lawyers to unwarranted sanctions and interference on grounds such as giving instructions or assistance to clients; this runs counter to Articles 22 and 16 of the Basic Principles on the Role of Lawyers cited above, reducing the protection of the right to confidential communication between attorneys and clients to a dead letter.

   • (2) Moreover, pursuant to Article 18 of the Basic Principles on the Role of Lawyers, lawyers shall not be identified with their clients or their clients' causes as a result of discharging their functions. Conversely, pursuant to Principle 2 ("State Responsibility") Paragraph 15 of the United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems, a credible legal aid system must be provided:

     1. According to Article 18 of the Basic Principles on the Role of Lawyers, lawyers shall not be identified with their clients or their clients' causes as a result of discharging their functions.

     2. Furthermore, Principle 2 ("State Responsibility") Paragraph 15 of the United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems provides that States should consider the provision of legal aid their duty and responsibility and, to that end, should consider enacting specific legislation and regulations, where appropriate, to ensure a accessible, effective, sustainable and credible legal aid system.

     3. In addition, Article 3.19 of the Universal Declaration on the Independence of Justice provides that the State shall provide lawyers with the means and privileges necessary to effectively discharge their professional functions, including: (a) absolute professional confidentiality between lawyers and clients; (b) the right to travel and provide client consultation freely domestically and abroad; and (c) the right to freely seek, receive, and impart information and ideas regarding their professional duties in accordance with their professional capacity.

     4. When an attorney is retained by a client to defend them, due to the characteristics of executing their duties, the attorney must put themselves in the client's shoes to provide substantive and effective legal assistance for the client's best interests, while bearing the obligation of confidentiality regarding the entrusted case. However, attorneys are extremely prone to being identified with the client due to the discharge of their functions, facing the same accusations as the client, or being suspected of a high probability of concealing or destroying evidence or colluding with accomplices or witnesses for the client. Consequently, Article 122, Paragraph 2, Article 133, Article 135 of the Code of Criminal Procedure and Article 5 of the Communication Security and Surveillance Act, by lacking special protective regulations for the right to confidential communication between attorneys and clients, easily subject law offices to unwarranted searches, seizures, and communication surveillance by investigative authorities, which obviously violates Article 18 of the Basic Principles on the Role of Lawyers and constitutes a certain degree of sanction and interference with lawyers performing their professional functions.

     5. Conversely, pursuant to Principle 2 ("State Responsibility") Paragraph 15 of the United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems and Article 3.19 of the Universal Declaration on the Independence of Justice, the State should actively give legislative provisions to provide necessary protection enabling lawyers and clients to communicate smoothly and with peace of mind in the performance of professional duties. This is not an extraterritorial privilege unique to the status of lawyers, but an important content for realizing the defendant's exercise of the right of defense and the right to confidential communication, and must not be deliberately ignored.

   • (3) In summary, Article 122, Paragraph 2, Article 133, Article 135 of the Code of Criminal Procedure, and Article 5 of the Communication Security and Surveillance Act fail to provide special protection for the right to confidential communication between attorneys and clients in their respective regulations on search, seizure, and wiretapping, which is inconsistent with the aforementioned Basic Principles on the Role of Lawyers and the United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems. This easily causes law offices to be subjected to unwarranted searches, seizures, and communication surveillance by investigative authorities, seriously infringing upon the right to confidential communication between attorneys and clients, and further causing sanction and interference with lawyers performing their professional functions, and should be declared unconstitutional.

IV. Conclusion

Article 122, Paragraph 2, Article 133, Article 135 of the Code of Criminal Procedure, and Article 5 of the Communication Security and Surveillance Act fail to provide special protection for the right to confidential communication between attorneys and their clients, which is inconsistent with the ICCPR, which requires full protection of individuals' rights to a fair trial, privacy, and effective assistance of counsel. Furthermore, because these provisions lack special safeguards for attorney-client confidential communication regarding search, seizure, and wiretapping, they violate the aforementioned Basic Principles on the Role of Lawyers and the United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems, while also infringing upon the right to confidential communication between attorneys and clients. Therefore, these provisions are unconstitutional as they fail to establish specific protective regulations for attorney-client confidential communication, thereby contradicting the intent of Articles 16 and 22 of our Constitution to protect the right to litigation and the right to privacy.

Respectfully submitted to
The Constitutional Court