In 2011, Lee and Li, Attorneys-at-Law became the target of a search warrant request by the Ministry of Justice Investigation Bureau. The law firm filed a petition for statutory interpretation on the Taiwan High Court’s final and binding judgment on criminal case 2011 Zhen-Kang-Zi No. 633 on the grounds that the application of Article 122, Paragraph 2 (regarding searches) and Article 133, Paragraph 1 (regarding seizure) of the Code of Criminal Procedure in the search of the law firm and seizure of its privileged documents when there was no evidence to suggest that the lawyers had committed any criminal acts was a violation of Article 16 (the right to institute legal proceedings) and Article 12 (freedom of privacy of correspondence) of the Constitution. During oral arguments, the National Human Rights Commission (NHRC) appointed commissioner Lai Chen-chang to testify as an expert witness as to whether the two cited provisions from the Code of Criminal Procedure were unconstitutional.
In his testimony, Lai cited Article 17 (privacy protection) and Article 14 (the right to a fair trial) of the International Covenant on Civil and Political Rights (ICCPR), both of which involve the privilege of confidentiality between lawyers and clients, which in turn is related to whether correspondence between attorneys and their clients may be seized and used as evidence in a court of law. Furthermore, the European Court of Human Rights cited Article 8 (privacy protection) of the European Convention on Human Rights (ECHR) to emphasize that the use of search and seizure warrants against law firms is an infringement of professional privilege in legal matters and thus threatens the foundation of trust between attorneys and their clients.
Therefore, attorney-client privilege must be protected by a set of specific procedures and effective monitoring measures under the law. Therefore, the NHRC concluded in its statement that Article 122, Paragraph 2 (searches) and Article 133, Paragraph 1 (seizure) of the Code of Criminal Procedure, as general provisions, may not be sufficiently normative, and their application to support searches of law firms and the seizure of their privileged documents is thus inconsistent with the European Court of Human Rights’ interpretation of Article 8 of the ECHR and with the principles expressed in Article 17 (privacy protection) and Article 14 (the right to a fair trial) of the ICCPR.
The Constitutional Court issued a judgment (2023 Xian-Pan-Zi No. 9) on June 16, 2023