Up-2530/06

Reference no.:
Up-2530/06
ECLI:
ECLI:SI:USRS:2010:Up.2530.06
Act:
The constitutional complaint against the second paragraph of the operative provisions of Supreme Court Decision No. Dsp 2/2006, dated 27 October 2006, in conjunction with Decision of the Disciplinary Court of the Bar Association of Slovenia No. Ds 4/2005, dated 27 March 2006
Operative provisions:
The constitutional complaint against the second paragraph of the operative provisions of Supreme Court Decision No. Dsp 2/2006, dated 27 October 2006, in conjunction with Decision of the Disciplinary Court of the Bar Association of Slovenia No. Ds 4/2005, dated 27 March 2006, is dismissed.
Abstract:
The presence of a representative of the Bar Association is intended to protect the human rights of third parties who in the situation referred to in the first paragraph of Article 8 of the LA reasonably expect that the protection of their privacy will be ensured. The position of such representative differs from the usual position of solemn witnesses. The latter observe closely how the search is conducted and make objections, if any, to the contents of the record (the third paragraph of Article 216 of the CPA). The representative of the Bar Association, on the other hand, must ensure that the secrecy of documents and objects which are not the subject of the search is respected.
 
When a search is conducted on the premises of a lawyer’s office, the scope of the search must be strictly limited in the warrant to the case files and objects which, in order to provide evidentiary material relating to a particular criminal offence, make the search of the lawyer’s office admissible. The reasoning of the warrant must not lead one to conclude that all the documentation in the lawyer’s office should be searched or that one should search in the lawyer’s office for whatever one wishes to find. The complainant cannot substantiate the alleged violation by stating that the case files and objects subject to search were defined only in the reasoning of the warrant and not in its operative provisions. What is essential is whether the subject of the search is described accurately.
 
A representative of the Bar Association must respect judicial decisions and does not have the right to assess whether a warrant was drawn up in accordance with the law. Therefore, the Supreme Court’s standpoint, according to which the complainant does not have the right to refuse to be present during a search of a lawyer’s office which is to be conducted on the basis of a court warrant, cannot be deemed unconstitutional. The position of the Supreme Court, according to which such conduct is contrary to the established legal order (Article 2 and the first paragraph of Article 23 of the Constitution), is namely relevant from the point of view of constitutional law.
Password:
1.5.51.2.6 - Constitutional Justice - Decisions - Types of decisions of the Constitutional Court - In constitutional-complaint proceedings - Dismissal of a constitutional complaint.
3.9 - General Principles - Rule of law.
1.4.10.6.1 - Constitutional Justice - Procedure - Interlocutory proceedings - Challenging a judge - Automatic disqualification.
1.5.5.1 - Constitutional Justice - Decisions - Individual opinions of members - Concurring opinions.
5.3.13.2 - Fundamental Rights - Civil and political rights - Procedural safeguards, rights of the defence and fair trial - Access to courts.
5.3.1 - Fundamental Rights - Civil and political rights - Right to dignity.
Legal basis:
Arts. 2, 19.3, 23.1, 29.2, 34, 35, 36.1, 36.2, 37, 37.1, 38, 38.1, 137.1, Constitution [URS]
Art. 59.1, Constitutional Court Act [ZUstS]
Document in PDF:
The full text:
Up-2530/06
15 April 2010
 
 
D E C I S I O N
 
At a session held on 15 April 2010 in proceedings to decide upon the constitutional complaint of Miha Kozinc, Ljubljana, represented by Odvetniška družba Čeferin, o. p., d. o. o., [the law firm Čeferin], Grosuplje, the Constitutional Court
 
d e c i d e d   a s   f o l l o w s:
 
The constitutional complaint against the second paragraph of the operative provisions of Supreme Court Decision No. Dsp 2/2006, dated 27 October 2006, in conjunction with Decision of the Disciplinary Court of the Bar Association of Slovenia No. Ds 4/2005, dated 27 March 2006, is dismissed.
 
 
R e a s o n i n g
 
A.
 
1. By the contested decision, the Disciplinary Court of the Bar Association of Slovenia (hereinafter referred to as the Disciplinary Court) held the complainant responsible for a violation of the professional duties of a lawyer pursuant to the sixth paragraph of Article 77.a of the Statutes of the Bar Association of Slovenia (Official Gazette RS, No. 15/94 et sub. – hereinafter referred to as the Statutes), in conjunction with Article 18 of the Lawyers Professional Code of Conduct, as on 26 July 2005 he unjustifiably refused to carry out the duty to be present during the search of a lawyer's office. It imposed upon him a disciplinary measure, i.e. a warning. The Supreme Court rejected the complainant‟s appeal, and dismissed the appeals of his defence counsel and of the Disciplinary Court prosecutor. 
 
2. The Disciplinary Court rejected the allegations of the complainant that the warrant of the investigating judge had not been drawn up in accordance with the Lawyers Act (Official Gazette RS, Nos. 18/93, 24/01, 54/08, and 35/09 – hereinafter referred to as the LA), and stated that the warrant contains all the essential elements required for the search pursuant to the provisions of the Criminal Procedure Act (Official Gazette RS, No. 63/94 et sub. – hereinafter referred to as the CPA) and Article 8 of the LA (it stated, however, that the files and objects that the search had been ordered for could have been indicated more precisely in the operative provisions of the judgment), and assessed the complainant‟s refusal to be present during the search of the lawyer's  office as unjustified. This was confirmed also by the Supreme Court, which stated that a representative of the Bar Association is obliged to be present during the search of a lawyer's  office due to the protection of the secrecy of files which are not the subject of such search, and that the lawyer's  departure from the premises of the search may result in the search being carried out without supervision by a lawyer. It also held that a representative of the Bar Association has the right to assess whether the search warrant was drawn up in accordance with the law, but he does not have the right to refuse to be present during the search on the basis of his own assessment regarding the (in)completeness of the warrant.  
 
3. The complainant alleges a violation of Articles 36 and 137 of the Constitution. He states that as a representative of the Bar Association he refused to cooperate in the search of the lawyer's office as the search warrant was unlawful. According to the allegations of the complainant, the files and objects subject to the search were not listed in the operative provisions of the warrant but only in its reasoning. He refers to Article 8 of the LA, which is lex specialis with respect to the general provisions of the CPA regarding the search of premises. Due to the special status enjoyed by lawyers in the legal order, the LA allegedly determines in greater detail the conditions for the conduct of a search of the premises of lawyers‟ offices as it allegedly specifies that in the warrant it must be stated which files and which objects are to be examined. The complainant states that a lawyer and his clients are linked by a special relationship, which has the nature of confidentiality and secrecy. Therefore in a search, law enforcement authorities should not intrude into case files that are not connected with the criminal case in question. If law enforcement authorities were allowed to conduct a search of the entire premises of a lawyer's offices, these confidential relations would be irreparably damaged. In legal theory there allegedly exists a generally accepted standpoint that it is merely the operative provisions of a legal act that become final and executable, whereas the reasoning allegedly serves only to ensure the right to a legal remedy. In the opinion of the complainant, the statements stated in the reasoning of the warrant in question are not sufficient since the addressees of the legal act are bound only by the operative provisions. The operative provisions of the type of warrant in question should allegedly contain instructions to the police officers who are to perform the search on how to act in a specific case. The police officers should allegedly act in accordance with the operative provisions of the search warrant as they are allegedly not even obliged to read the reasoning. The complainant believes that in the case at issue the police officers were entitled to search the entire premises and examine all the case files of the lawyer's office, which is in complete contradiction to the constitutional and statutory rights of the complainant as a lawyer. The complainant stresses that the attorneyship is an independent and autonomous service within the system of justice, regulated by law, and that, owing to the particularities of their profession, lawyers are in a special position as parties in criminal proceedings, which should be taken into account when such procedures are carried out. The complainant therefore opposes the standpoint of the Supreme Court according to which representatives of the Bar Association do not have the right to refuse to be present during the search of a lawyer's office if they assess that such is unlawful since the search warrant was not drawn up in accordance with Article 8 of the LA.
 
4. The complainant opposes the standpoint of the Supreme Court that a search may be conducted also in the absence of a representative of the Bar Association. He believes that the presence of a representative of the Bar Association is a necessary condition for a search to be conducted. The role of the representative of the Bar Association in the search is allegedly not to protect secrecy but to see to it that the search is conducted in accordance with the law. The complainant was allegedly aware that as a representative of the Bar Association he must ensure that the search of a lawyer's office is conducted in accordance with the law and the Constitution. However, as in his opinion it was not possible to ensure such, he allegedly acted out of necessity so as to avert an immediate danger (i.e. an unlawful search) which he did not cause himself and which allegedly could not have been averted in any other way (before leaving, the complainant allegedly urged the court to amend the warrant), whereby the harm thus incurred did not exceed the harm which threatened him (the right of the inviolability of dwellings was allegedly more important than an expeditious performance of a search, which would have occurred if the court had issued an accurate warrant). The complainant was allegedly punished only because he had observed the relevant provisions of the LA, the Criminal Procedure Act, and the Constitution, and due to this the independence of the attorneyship was allegedly put in jeopardy.
 
5. In proceedings pursuant to the third paragraph of Article 55.c of the Constitutional Court Act (Official Gazette RS, No. 64/07 – official consolidated text – hereinafter referred to as the CCA), the Constitutional Court accepted the constitutional complaint for consideration by its Order No. Up-2530/06, dated 6 April 2009. In accordance with the first paragraph of Article 56 of the CCA, it informed the Supreme Court thereof. 
 
B. – I.
 
6. The Constitutional Court consulted case files Nos. Ds 4/2005 and Dsp 2/2006 of the Disciplinary Courts of the first and second instances. As follows therefrom, the search of the lawyer's office was conducted in the following manner: On the basis of Warrant No. Kpd 462/05, dated 25 July 2005, issued by the investigating judge of the Koper District Court, the detectives of the Koper Police Directorate intended to conduct a search of the office of lawyer D. A. on 26 July 2005. The complainant came to the site of the intended search as a representative of the Bar Association and established that in the warrant the objects and case files subject to the search were not precisely defined. In a telephone conversation with the investigating judge and later with the President of the Koper District Court, he requested that the scope of the search be precisely defined in the warrant in accordance with Article 8 of the LA. As both of them continued to maintain that there was nothing wrong with the warrant as such, the complainant addressed a written complaint against the conduct of the investigating judge to the President of the Koper District Court. To protect the interests of the lawyer's clients, he refused to cooperate in such a search and reasoned his refusal in the annex to the record of the search. In a written statement he indicated that he refused to cooperate in the conduct of the search as he believed that the conditions for such were not fulfilled. The warrant issued by the investigating judge was allegedly inconsistent with the first paragraph of Article 8 of the LA, pursuant to which only an examination of case files and objects specifically mentioned in the warrant is permitted. In the complainant‟s view, the case files and objects should have been precisely indicated in the operative provisions of the search warrant. Due to the unfulfilled formal requirements (the absence of the Bar Association representative), the police did not conduct the search. The detectives sealed the lawyer's office and ordered the lawyer into police custody. After the investigating judge was informed of the event, he ordered that the search warrant be executed on the following day, i.e. on 27 July 2005. On that day the complainant and the President of the Regional Assembly [of the Bar Association] were present during the search. As is apparent from the oral defence given by the complainant, the search was conducted in such a manner that the lawyer's defence counsel and the head of the criminal police squad agreed to set apart the files subject to search. Those case files were taken to a special room where they were examined by the detectives.
 
 
B. – II.
 
7. The inviolability of a lawyer's office is ensured within the framework of the spatial aspect of privacy determined by Article 36 of the Constitution.[1] The search of a lawyer's office entails a severe interference with this constitutionally protected living space. Due to the weight of the interference and the constitutional significance of the protection of spatial privacy, only the judicial branch of power may order a search (the second paragraph of Article 36 of the Constitution). In a search of a lawyer's office it is not possible to observe only this aspect of privacy but also the aspects related to the nature of the lawyer-client relationship. As an independent and autonomous adviser and assistant, a lawyer is bound to engage in legal acts for the benefit of his clients within the limits of the law. A prerequisite for the performance of this task is a confidential relationship between a lawyer and his client.[2] In criminal proceedings, the right to confidential contact between the defendant and his defence counsel is an essential element of the right to legal counsel. [3] Confidential contact between a defence counsel and a defendant (or a detained person) is protected within the framework of the third paragraph of Article 19 of the Constitution and the second indent of Article 29 of the Constitution. This relationship is protected irrespective of whether the information is intended to be used in the criminal proceedings by the defence. Due to the fact that in a search of a lawyer's office there exists a risk that the police will obtain documents and objects not related to the criminal offence which is the subject of investigation, the legal order must ensure the protection of the rights determined by Article 35, the first paragraph of Article 37, and the first paragraph of Article 38 of the Constitution.[4] Therefore, this does not concern protection of the lawyer's interests (or his privilege), but his duty to protect professional secrets[5] and the protection of the human rights and fundamental freedoms of his clients. Legal protection of this confidential relationship encourages clients to communicate freely with their lawyer or defence counsel, i.e. without fear that a potential subsequent disclosure of confidential data will jeopardise their legal position.[6]
 
8. The violations of third party privacy rights which might occur in a search of a lawyer's office would be irreparable. Due to the protection of the confidential relationship and privacy of the lawyer's clients, an act must determine the conditions under which a search of a lawyer's office is admissible. These conditions are determined by Article 8 of the LA, which stipulates the conditions for a search of a lawyer's office that supplement those contained in the CPA. Pursuant to the first paragraph of Article 8 of the LA, a search of a lawyer's office is permitted only on the basis of a warrant issued by a competent court, and only regarding the case files and objects which are explicitly stated in the search warrant. The same paragraph also stipulates that in a search the secrecy of other documents and objects must not be compromised. Pursuant to the second paragraph of Article 8 of the LA, a representative of the Bar Association of Slovenia must be present during a search of a lawyer's office. The presence of a representative of the Bar Association is intended to protect the human rights of third parties who in the situation referred to in the first paragraph of Article 8 of the LA reasonably expect that the protection of their privacy will be ensured. The position of such representative differs from the usual position of solemn witnesses. The latter observe closely how the search is conducted and make objections, if any, to the contents of the record (the third paragraph of Article 216 of the CPA). The representative of the Bar Association, on the other hand, must ensure that the secrecy of documents and objects which are not the subject of the search is respected. It follows also from the case law of the European Court of Human Rights (hereinafter referred to as the ECtHR) that national law must regulate searches of lawyer's offices by providing for special safeguards.
 
9. The complainant challenges the standpoints of the courts which were the basis for disciplinary punishment. He alleges a violation of the spatial aspect of privacy determined in the first paragraph of Article 36 of the Constitution, but there is manifestly no such violation. The warrant in question namely did not refer to a search of his office. Nor can the complainant succeed by alleging a violation of the first paragraph of Article 137 of the Constitution, which regulates the institutionalized position of the attorneyship – it defines such as an independent and autonomous service within the system of justice. The Constitutional Court agrees with the complainant that an independent and autonomous attorneyship is of particular importance for the functioning of a state governed by the rule of law, in which human rights and fundamental freedoms are respected. However, the Constitution does not directly regulate human rights or fundamental freedoms in this provision, therefore the complainant cannot substantiate the constitutional complaint by referring to this provision. 
 
10. The allegations of the complainant that he was punished because he observed the provisions of the Constitution and that he acted out of necessity in order to avert an immediate danger which he did not cause himself and which allegedly could not have been averted in any other way, could be taken into consideration in light of the right to personal dignity determined in Article 34 of the Constitution. This right would have been violated if it were established that the bases for his disciplinary punishment included an unconstitutional standpoint. Therefore, the Constitutional Court had to evaluate the allegations in the light of the constitutionality of the standpoints on which the challenged court decisions are based. 
 
11. When a search is conducted on the premises of a lawyer's office, the scope of the search must be strictly limited in the warrant to the case files and objects which, in order to provide evidentiary material relating to a particular criminal offence, make the search of the lawyer's office admissible.[9] The reasoning of the warrant must not lead one to conclude that all the documentation in the lawyer's office should be examined or that one should search in the lawyer's office for whatever one wishes to find. The Supreme Court based the challenged decision on the standpoint of the case law according to which a warrant must include: the data on the person whose premises are to be searched; the reasons which lead to the justified suspicion that a criminal offence has been committed if a search is conducted before the initiation of the judicial investigation; an indication of the person, traces, or objects to which the search relates, and an indication of the circumstances that demonstrate the likelihood that the defendant will be apprehended or that the traces and objects that are important for the criminal proceedings will be revealed; and a specific indication of the premises where the search is to be conducted.[10] It stated that comparing a warrant to a judgment, which the law prescribes what its operative provisions must contain, is inappropriate, and it agreed with the standpoint of the court of first instance that the reasoning of the warrant clearly stated which objects and documents were to be searched for and which clients the case files that may be subject to search refer to.
 
12. The complainant does not contest the fact that the case files and objects subject to search were defined in the warrant, but he alleges that it was insufficient that they were defined only in its reasoning. Police officers are allegedly not obliged to read the reasoning. [The Court finds, however, that] he cannot substantiate the alleged violation thereby. It would indeed be clearer and more correct if the case files and objects regarding which the search of the lawyer's office had been ordered were stated in the operative provisions, as was already established by the court of first instance. However, this is irrelevant from the viewpoint of the protection of the privacy of the persons who are in a confidential relationship with the lawyer (Articles 35, 37, and 38 of the Constitution) – what is essential is that the subject of the search is described in sufficient detail, and one cannot imagine how the judge could have written the warrant in any more detail. From the warrant it clearly follows that only the documents connected to the matter should be searched for and examined, without the police officers being permitted to examine all other documents in the lawyer's office as well; such is also the standpoint that follows from the decision of the Supreme Court. 
 
13. A court warrant must enjoy respect for the authority of a decision issued by the judicial power equal to any other court decision; an individual is obliged to comply therewith. If the decision is not executable and if legal remedies are available to the individual, he or she may contest it. If legal remedies are not available, the decision is binding. The binding power of court decisions is an element of a state governed by the rule of law determined by Article 2 of the Constitution, and an element of the right to effective judicial protection determined by the first paragraph of Article 23 of the Constitution. It can be stripped of this binding power only in highly exceptional cases due to which this power should be considered “invalid". The case at issue is not such a case. Considering the significance of the authority of a court decision, a representative of the Bar Association does not have the right to assess whether the warrant was drawn up in accordance with the law, moreover, he has even less right to oppose it. Therefore, the Supreme Court‟s central standpoint, according to which the complainant does not have the right to refuse to be present during a search of a lawyer's office which is to be conducted on the basis of a court warrant cannot be deemed unconstitutional. The position of the Supreme Court according to which such conduct is contrary to the established legal order (Article 2 and the first paragraph of Article 23 of the Constitution) is namely relevant from the point of view of constitutional law. This position is decisive for a review of the contested decisions; the complainant, however, does not state any arguments against it that are relevant from the point of view of constitutional law.
 
14. As regards the aforementioned, a violation of Article 34 of the Constitution is not demonstrated, therefore the Constitutional Court dismissed the constitutional complaint.
 
 
C
 
15. The Constitutional Court reached this decision on the basis of the first paragraph of Article 59 of the CCA, composed of: Mag. Miroslav Mozetič, Vice President, and Judges Mag. Marta Klampfer, Mag. Marija Krisper Kramberger, Mag. Jadranka Sovdat, and Jan Zobec. Judges Jasna Pogačar, Dr Mitja Deisinger, Dr Ernest Petrič, and Jože Tratnik were disqualified from deciding in the case. The decision was adopted unanimously. Judge Sovdat submitted a concurring opinion. 
 
 
 
             Mag. Miroslav Mozetič
             Vice President
             
 
 
Endnotes:
[1] The first and second paragraphs of Article 36 of the Constitution read as follows:
“Dwellings are inviolable. No one may, without a court order, enter the dwelling or other premises of another person, nor may he search the same, against the will of the resident.”
“In the context of „reasonably expected privacy‟, the word dwelling should not be understood only as dwelling in the narrow sense but also as hotel rooms and all premises in general where a citizen has the right to the privacy he or she may reasonably expect.” See B. M. Zupančič in: L. Šturm (ed.), Komentar Ustave Republike Slovenije [Commentary on the Constitution of the Republic of Slovenia], Fakulteta za podiplomske drţavne in evropske študije, Ljubljana 2002, p. 388. Some authors interpret the term “other premises of another person” as referring to business premises, premises of undertakings, and other legal persons (G. Klemenčič, Hišna preiskava [Search of Premises]; in: G. Klemenčič, B. Kečanović, M. Ţaberl, Vaše pravice v policijskih postopkih [Your Rights in Police Procedures], Zaloţba Pasadena, Ljubljana 2002, p. 157). A provision similar to the one in the Slovene Constitution is also contained in the German Constitution, which in Article 13 explicitly refers only to the inviolability of dwellings and does not mention any other premises. It follows from the commentary on Article 13 of the German Constitution that the object of protection also includes business premises, with the exception of those which are generally accessible. H. D. Jarass, B. Pieroth, Grundgesetz für die Bundesrepublik Deutschland, 3. Auflage, Verlag C. H. Beck, München 1995, p. 310. 
[2] The privilege of the confidential relationship between a lawyer and his client is one of the oldest acknowledged privileges relating to confidential communications. The purpose of the privilege is “to foster full and open communication between lawyers and their clients, and thereby foster broader public interest in respect for the law and judiciary”. See US Supreme Court judgment in the case Upjohn Co. v. United States, 449 U. S. 383, 389 (1981). See also the judgments in the cases Fisher v. United States, 425 U. S. 391 (1976), and Swidler & Berlin v. United States, 524 U. S. 399 (1998).
[3] Defence counsels cannot perform any of their duties well unless the persons deprived of their freedom can present to them without reservations the circumstances of their case and how they have been treated. Constitutional Court Order No. Up101/96, dated 1 October 1998 (OdlUS VII, 249).
[4] Privilege refers to confidential communication between clients and their legal advisers when such is intended for obtaining or providing legal advice or for its application in proceedings which have already been or are to be initiated. This privilege is essential for the adequate and dignified arrangement of personal matters in a social environment poisoned by interferences with privacy. The individual must be enabled to obtain legal advice and legal assistance without fearing that his communication will be subject to investigation and seizure on the basis of a court order. “Denying the privilege against a search warrant would have a minimal effect in securing convictions but a major damaging effect on the relationship between the legal profession and its clients. It would engender an atmosphere in which citizens feel that their private papers are insecure and that relationships they previously thought confidential are no longer safe from police intrusion.” See judgment of the High Court of Australia in the case Baker v. Campbell, (1983) 153 CLR 52.
[5] In accordance with the first paragraph of Article 6 of the LA, a lawyer must protect what his client has confided in him as a secret. A violation of the duty to protect a professional secret is defined as a severe violation of a lawyer's duty in practicing the legal profession (the first paragraph of Article 77.b of the Statutes).
[6] “The objective significance of legal practice and the legally protected confidential relationship between a lawyer and his client is in any case affected when, due to the risk of unlimited access to data, the lawyer-client relationship is burdened from the beginning with uncertainty regarding its confidentiality. With the extent of the potential knowledge of confidential statements that state authorities may acquire, the probability increases that in pursuing their interests even those who are not suspects will no longer trust the persons who are normally entrusted with professional secrets.” See paragraph 94 of Order of the Second Senate of the German Federal Constitutional Court 2 BvR 1027/02, dated 12 April 2005.
[7] The CPA does not contain any detailed provisions regarding the manner of conducting a search of a lawyer's office.
[8] A search of a lawyer's office entails an interference with the right to respect for privacy determined by Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms (Official Gazette RS, No. 33/94, MP, No. 7/94 – hereinafter referred to as the ECHR); see the case of Niemietz v. Germany, judgment dated 16 December 1992. Such interference is admissible if it is provided for by the law and is necessary in a democratic society in the interests of national security, public safety, or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. According to the standpoints of the ECtHR, the search and seizure of documents in the office of a lawyer undoubtedly interfere with the professional secrecy which is the basis for a confidential relationship between a lawyer and his client. The protection of professional secrecy [in the lawyer-client relationship] is related to the right of the client against self-incrimination, which presupposes that the authorities obtain evidence without force or pressure, i.e. against the will of the defendant. If national law envisages the possibility of a search of a lawyer's office, the search must be consistent with special safeguards (garanties particulières). The ECHR does not prohibit the imposition of certain duties on lawyers that may relate to the relationship with their clients if there are reasonable indications that a lawyer has participated in a criminal offence, or within the framework of combating certain forms of conduct. Such measures must, however, be strictly limited as lawyers have a central role in the administration of justice, and, due to their mediatory role between clients and courts, they could be defined as courts‟ assistants. Paragraphs 41 and 42 of judgment in the case André et al. v. France, dated 24 July 2008. 
[9] The protection of the confidential relationship between a lawyer and his client does not entail an impediment to obtaining communications which were used for a criminal offence. Communications lose the nature of confidentiality if they were made with a view to obtaining legal advice to facilitate the commission of a criminal offence. See, for example, the judgment of the Supreme Court of Canada in the case Descôteaux et al. v. Mierzwinski, [1982] 1 S. C. R. 860.
[10] See Judgment of the Supreme Court No. I Ips 214/97, dated 28 November 2002.
 
 
Up-2530/06
5 March 2010
 
 
The concurring opinion of Judge Mag. Jadranka Sovdat, 
joined by Judge Mag. Marija Krisper Kramberger 
 
 
"We must seek justice, but at the same time attend to legal certainty, for it is itself a component of justice, and (…) build the rule of law which must possibly satisfy both concepts." (Radbruch, from Appendix III to Philosophy of Law,)[1]
 
1. The Disciplinary Court of the Bar Association of Slovenia found the complainant responsible for a violation of the professional duties of a lawyer pursuant to the sixth paragraph of Article 77.a of the Statutes of the Bar Association of Slovenia (hereinafter referred to as the BAS) (Official Gazette RS, No. 15/94 et sub.), in conjunction with Article 18 of the Lawyers Professional Code of Conduct, since, as a representative of the BAS, he unjustifiably refused to carry out the duty to be present during a search of a lawyer’s office. It imposed on him a disciplinary measure, i.e. a warning. The Supreme Court, which acting as an appellate disciplinary court, rejected the complainant’s appeal as time-barred, and dismissed the appeals of his defence counsel and of the Disciplinary Court prosecutor, adopted a number of standpoints. One of the adopted standpoints was that the complainant did not have the right to refuse to be present during the search of the lawyer’s office. I agree with the finding of the decision that, in light of the complainant’s allegations, which he primarily kept directing at the court search warrant, before the beginning of the search as well as in legal remedies against the court decisions, this is the central standpoint of the contested decision. I also agree with the fact that the said standpoint cannot be deemed unconstitutional as a court warrant must enjoy respect for the power of a decision made by the judicial power equally as any other court decision. If the legal order does not provide any legal remedies against such (and it does not follow from the constitutional order that the statutory regulation is unconstitutional if it does not provide legal remedies), the warrant is binding. In this case, it is binding also for the representative of the BAS when fulfilling the duty following from the second paragraph of Article 8[2] of the Lawyers Act[3] (hereinafter referred to as the LA).[4] The Constitutional Court did not consider the question of which legal remedy is available to the lawyer whose office is searched or even to the clients of this lawyer, and whether the court warrant is constitutional from their viewpoints, as this was not the subject of deciding in this case.
 
2. The essential allegation of the complainant directed against the court search warrant is that the particulars stated in the reasoning denoting which files and objects were to be searched for in the lawyer’s office,[5] should have been stated in the operative provisions and not merely in the reasoning, since police officers are allegedly only bound by the operative provisions, whereas they are allegedly not even obliged to read the reasoning of a court warrant, thus on such basis they could search the entire office of a lawyer. Thereby, the complainant does not provide a legal qualification specifying which human right such would entail a violation of. This is understandable, in a way, since it could be merely a question of legality and, in this respect, it would certainly be more appropriate if the contents of the reasoning of the court warrant, the obligatory presence of a representative of the BAS, and the obligation to respect the secrecy of documents and objects not defined as the subject of the search were stated in the operative provisions of the warrant, whereas the reasoning would state what is now written in the operative provisions, i.e. that the above-stated is ordered because Article 8 of the LA must be respected in the search of a lawyer’s office.[6] Nevertheless, the mere issue of the interpretation of the procedural rules defining the manner in which a court decision is structured cannot be the subject of review in a constitutional complaint unless at the same time a matter of constitutionality is at issue.   
 
3. I agree with the arguments of the decision, therefore I voted in favour of the dismissal of the constitutional complaint. However, I also wish to draw attention to the fact that the contested decision of the Supreme Court also contains standpoints which are, in my opinion, unconstitutional or which [could] consequently lead to unconstitutionality or may even lead to severe violations of human rights, not those of the complainant, but those of the clients of the lawyer whose office was searched.  Moreover, in my opinion this raises another serious issue, namely the issue of the constitutionality of the statutory regulation of searches when such concern a lawyer’s office, which makes it necessary for the legislature to regulate the issues pointed out below as soon as possible in order to prevent, in future cases of searches of lawyers’ offices, violations of Article 35, the first paragraph of Article 37, the first paragraph of Article 38, and, in cases involving the defence of defendants in criminal proceedings, even of Article 29 of the Constitution. It is true, however, that the standpoints that I consider unconstitutional do not constitute the central standpoint of the decision, and it is also true that in this case what follows from this was not even highlighted since a situation wherein these issues could have arisen as key issues did not occur. The representative of the BAS namely left the site of the search before it began.
 
4. In addition to the requirements determined in Article 8 of the LA, the provisions of the Criminal Procedure Act (Official Gazette No. 32/07 – official consolidated text et sub. – hereinafter referred to as the CPA) apply for the search of a lawyer’s office. Pursuant to these provisions, inter alia, a search is to be conducted by the investigating judge of a competent court (the first paragraph of Article 171 of the CPA), who may assign the execution of a warrant ordering a search of premises or a personal search (the third paragraph of Article 172 of the CPA) to the police, which evidently is generally what happens,[7] whereby two adults must be present at the search as witnesses. Before the search begins, the witnesses must be warned to observe closely how the search is conducted, and they must be informed of their right to make objections before signing the record of the search if they consider its content to be inadequate (the third paragraph of Article 216 of the CPA). I highlighted precisely the provisions stated above because: 1.) it is obvious that a general rule has been established according to which the police carry out searches of lawyers’ offices (as well), although in my opinion the investigating judge should not assign such task to the police, and 2.) in the contested decision, by limiting the role of the representative of the BAS to having the right to be present and to make objections, comments, and suggestions that are entered into the record “as anybody who has the right to be or must be present during a search of premises for the purposes of the protection of his rights or the rights of other persons in accordance with the provisions of the seventh paragraph of Article 216 and Articles 79-82 of the CPA", the Supreme Court assigned the representative of the BAS only the role of a witness in the performance of his duties pursuant to Article 8 of the LA. From a constitutional point of view, both reasons seem highly questionable to me.
 
5. The special rules which must apply in the search of a lawyer’s office are intended to protect professional secrecy. Despite the fact that we usually refer to legal professional privilege, this is not a lawyer’s privilege, but entails, by its nature, his duty to protect the rights of third parties who are in a confidential relationship with the lawyer. Thereby, it is most important that this in fact concerns the protection of the human rights of his clients, which is ensured by the Constitution within Article 35, the first paragraph of Article 37, the first paragraph of Article 38, and, in the case of a counsel for the defence in criminal proceedings, also within the framework of the right to defence determined by Article 29 of the Constitution, since the confidentiality of the relationship between a lawyer and a defendant is, so to speak, a natural constituent part of the said right.[8] A search of a lawyer’s office is therefore undoubtedly an attack on the professional secrecy on which this confidential relationship is based.[9] And therefore, a search of a lawyer’s office must be carried out only in exception, however, the exceptional nature of such a search cannot entail that a search of a lawyer’s office would not be permitted in the event of suspicion that a lawyer has committed a criminal offence. If a search is permitted, it is precisely in order to protect these human rights that the rules according to which the search may be conducted must be set out in detail. The Constitutional Court has already adopted the position precisely regarding the constitutional provisions protecting human dignity, personal rights, privacy, and safety (Articles 34 to 38 of the Constitution) that these are provisions which have a special place among human rights and fundamental freedoms, and which prohibit everyone - beginning with the State - from (inadmissibly) interfering therewith (Decision No. U-I-25/95, dated 27 November 1997, Official Gazette RS, No. 5/98, and OdlUS VI, 158, Para. 32 of the reasoning). The basic condition set by the Constitution is that a limitation of human rights and fundamental freedoms may be prescribed only by law, for, pursuant to the second paragraph of Article 15 of the Constitution, if the manner in which a human right is exercised may (only) be determined by law, then under the conditions set by the Constitution in the third paragraph of the same Article, the limitation of the human right must all the more be determined by law.[10] The regulation must be specific and unambiguous in order to rule out any possibility of arbitrary deciding by a state authority. As the Constitutional Court has already stressed in several decisions, legal certainty (lex certa) is a primordial element of a state governed by the rule of law (Article 2 of the Constitution) and would apply as an imperative constitutional postulate even if it were not explicitly mentioned in the Constitution (Decision No. U-I-25/95, Para. 42 of the reasoning).
 
6. When a court warrant specifies the files to be examined, it is perfectly logical that the judge who issued the warrant cannot order, for example, that the second file from the left on the third shelf on the left-hand side of the lawyer’s study should be taken out and therein the first three documents should be examined and seized (if I may exaggerate), such that it could be said that judicial power ordered with absolute precision what the subject of the search is. Since, naturally, such level of precision is impossible, it is necessary to set up other mechanisms to ensure the protection of human rights. The first mechanism is undoubtedly a court decision which allows such interference, and which is required by the Constitution in the second paragraph of Article 36. As soon as a court warrant exists, at least three basic questions are raised:
1. Who should search the lawyer’s office for the files that, according to the court warrant, are permitted to be the subject of the search and who should select the documents that are to be examined?
2. Who is to make an assessment of whether it is admissible to seize all the selected documents?
3. Who may object to the seizure of documents, and, in the event of such, who decides thereon and when, and what happens to the seized documents until such decision is taken?
 
7. Pursuant to Slovene regulations, the answers to these questions are the following: The files are to be searched for by the police, who also decide what they will seize and when this will happen (while conducting the search). Nobody can effectively object to such in a way that would prevent the seizure, therefore the one who in this State is called upon to decide objectively and independently (a part of this decision-making of course also being the protection of human rights), i.e. the courts - cannot decide thereon and because of that they cannot decide on the protection of professional secrecy either, which is in the particular interest of the clients who are not associated with the search of the lawyer’s office, on the basis of the first paragraph of Article 23 of the Constitution, and regarding human rights, particularly on the basis of the fourth paragraph of Article 15 of the Constitution. If we define the role of a representative of the BAS as the role of a “qualified” witness, then pursuant to the third paragraph of Article 216 of the CPA [the duty of] such witnesses [is to] closely observe how the search is conducted and they have the right to make objections before they sign the record of the search if they consider its contents inadequate. Neither the witness referred to in the third paragraph of Article 216 of the CPA nor the representative of the BAS merely in the role of such witness has the right to assess the contents of the documents that the police wish to seize, and even less right to object to the seizure thereof. The objections made by witnesses to be entered into the record may play a role in criminal proceedings in comprising an assessment of whether individual evidence was obtained in a constitutional and legal manner. They play no role whatsoever in preventing interferences with the rights of the lawyer’s clients. It is no less important to raise a question as to the extent to which the seizure of documents from files is permitted, i.e. documents which are a reflection of the confidential relationship between a lawyer, as a defence counsel in criminal proceedings, and his client, as a defendant in the same proceedings. There is no possibility for the representative of the BAS to prevent inadmissible interferences with these rights. Therefore his presence cannot play the role for which it was enacted by the legislature, i.e. the protection of the confidential relationships between a lawyer and his clients. Violations of human rights thereby already occur; in their nature they may be such that a question arises as to whether their consequences are at all remediable, such as is prescribed by the fourth paragraph of Article 15 of the Constitution.   
 
8. Therefore, in my view, the standpoint according to which a representative of the BAS may act merely in the role of a witness who may only put forward objections and comments to be entered into the record is unconstitutional, however, this unconstitutionality does not remain at the level of a statutory interpretation contrary to the Constitution, but is incorporated into the statutory regulation in force itself. The latter is not sufficient to achieve the purpose pursued by Article 8 of the LA[11], which is also confirmed by the standpoints adopted by the ECtHR on the interference with the confidential relationship between a lawyer and his client.
 
9. In its judgment in the case Wieser and Bicos Beteiligungen GmbH v. Austria, dated 16 October 2007, the ECtHR examined whether national law ensures appropriate and effective safeguards to prevent any abuse and arbitrariness.[12] It established that the safeguards provided for by the Austrian criminal procedure were fully complied with as regards the search of documents. Whenever the representative of the Bar Association objected to the seizure of a particular document, this document was sealed. Later the investigating judge decided, in the presence of the applicant, which documents were subject to professional secrecy, and returned a number of them to the applicant. The same safeguards, however, were not observed as regards electronic data. The representative of the Bar Association could not properly exercise his supervisory function in this respect.[13] The ECtHR found that, due to the failure to comply with these safeguards, the search and seizure of the data in digital form were disproportionate to the legitimate aim pursued. It therefore decided that the applicants’ right determined in Article 8 of the European Convention on Human Rights (hereinafter referred to as the ECHR) was violated. It established an infringement of the same Convention right also in its judgment in the case Iliya Stefanov v. Bulgaria, dated 22 May 2008.[14] Among other things, the presence of two witnesses with no legal education was problematic, and therefore it is highly unlikely that they were able to assess, independently of the investigators, whether particular evidence was protected by professional privilege. The presence of these witnesses therefore did not entail an effective safeguard against excessive police interference with the professional secrecy of the applicant.[15]
 
10. While a statutory requirement corresponding to the second paragraph of Article 8 of the Slovene LA has evidently not been enforced in Bulgaria, it is different in France. Notwithstanding this, the ECtHR established an infringement of a Convention right in its judgment in the case André and other v. France. The search of a lawyer’s office was carried out in the presence of the Head of the Bar Association. The documents that were seized included handwritten notes of the lawyer and the documents on which the notes of the lawyer in his own handwriting were added. The Head of the Bar Association explicitly stated that these were the lawyer’s private documents and therefore they were absolutely protected by professional secrecy. The applicants lodged a request for cassation against the seizure, which was unsuccessful. The ECtHR found that a special guarantee applied to the search because it was carried out in the presence of a representative of the Bar Association. Furthermore, the presence of this representative and his observations related to the protection of professional secrecy were stated in the record of the relevant investigative act. However, the presence of this representative and his objection did not prevent the actual examination and seizure of documents subject to professional secrecy.[16] The ECtHR also established that the search warrant was written very broadly as it referred to the search and seizure of all the documents and data storage devices related to the alleged fraud which might have been found on the premises of the applicants. The search of the applicants’ premises was carried out merely because of their role as lawyers of the suspected company, as the applicants were not suspected of being involved in the criminal offence.[17] On the basis of everything stated above, the ECtHR established that the search and seizure of the applicants’ documents were disproportionate to the legitimate aim pursued.[18] Therefore, [it established that] Article 8 of the ECHR was violated.
 
11. Whenever the ECtHR has established that sufficient guarantees for respect for rights have been fulfilled, it has decided the cases already at the level of the inadmissibility of the case. In this context, in its decision on the inadmissibility of the application in the case Alwin Tamosius v. United Kingdom, dated 19 September 2002, it examined whether the search was carried out with sufficient procedural safeguards to prevent any abuse and arbitrariness. It stated that the search of a lawyer’s office interferes with or threatens to interferes with the protection of professional secrecy and may have repercussions on the proper administration of justice, and hence on the rights determined in Article 6 of the ECHR.[19] In this particular case, the search was carried out under a court warrant, which, contrary to the allegations of the applicant, was not excessively broad. The warrant that was executed was accompanied by a schedule of 35 companies and individuals listed as being under investigation. The applicant did not persuade the ECtHR that he was not able to assess whether the investigators acted unlawfully. Furthermore, the search was carried out under the supervision of counsel, whose task was to identify[20] which documents were protected by professional privilege. Although the applicant claimed that this was not a sufficient safeguard, the ECtHR noted that the counsel was under instructions to act independently of the investigators and to give independent advice. The applicant also did not claim in any domestic proceedings that the counsel had made erroneous decisions. The ECtHR established that in domestic law such privilege provides a sufficient safeguard against interferences with professional secrecy and the administration of justice, therefore the search was not disproportionate to the aim pursued.
 
12. Judgments of the ECtHR have the power of precedent, therefore the standpoints of the ECtHR are also binding on Slovene State authorities.[21] The Constitutional Court has already stressed such.[22] Besides the standpoints of the ECtHR, it is worth noting that a number of countries provide for additional guarantees in their legal orders relating to searching a lawyer’s office in order to prevent violations of human rights or even abuse. In France, for example, a search of a lawyer’s office may be carried out only by a judicial officer (a magistrat)[23] in the presence of the Head of the Bar Association, whereas a representative of the Bar Association may prevent, by the powers vested in him, an inadmissible interference with human rights. In this respect, a special role was played by the case law of the highest court in the State, which had established certain conditions even before the enactment of the mentioned regulation in 2000. In particular, it developed standpoints on the exceptional admissibility of the seizure of the correspondence between a lawyer and his client if the seized documents are evidence of the lawyer’s involvement in a criminal offence,[24] and it decided the same in cases concerning the seizure of electonic data.[25] Despite all these safeguards, a violation of a Convention right may occur, as follows from the judgment of the ECtHR in the case André and other v. France.
 
 
13. Also in the Federal Republic of Germany the police may not examine files [at a lawyer’s office] without the lawyer’s permission. This is exclusively the right of a State Prosecutor.[26] The lawyer may insist on sealing the disputed documents even if the State Prosecutor is present. The lawfulness of the measure is decided upon by the court in appellate proceedings. In Belgium, certain practices have evolved, notwithstanding the absence of the (relevant) explicit statutory provisions, according to which the investigating judge must personally be present in the search of the premises, after he has informed the Head of the Bar Association and called for a representative of the Association to be present at the search.[27]
 
14. By his conduct the applicant evidently pursued justice. This was explicitly stated by the first panel of the Disciplinary Court, which took into consideration the fact that by his conduct the applicant “wished to pursue the legitimate aims of the protection of the inviolability of the lawyer’s office in terms of the protection of the confidentiality of the data of the lawyer’s clients” as one of the reasons for pronouncing the mildest disciplinary measure. However, in so doing, the applicant could not be successful unless he took into acount legal certainty, a component of which is also compliance with court decisions. As I have already stated above, this was the essential reason why I voted in favour of the dismissal of the constitutional complaint. I believe that it was necessary to draw attention to the unconstitutionality of some of the standpoints handed down by the Supreme Court in this regard, and to the fact that, in light of the standpoints of the ECtHR and a number of examples from the comparative data, it is necessary for the legislature to supplement the regulation determined in Article 8 of the LA either by amending this Act or the CPA in the part that regulates the search of premises.
 
 
Mag. Jadranka Sovdat
        J u d g e
 
 
Mag. Marija Krisper Kramberger
        J u d g e
 
 
Endnotes:
[1] G. Radbruch: Filozofija prava [Philosophy of Law], Študijska izd., Cankarjeva založba (Zbirka pravna obzorja; 16), Ljubljana 2001, p. 281.
[2] It reads as follows: "A representative of the Bar Association of Slovenia shall be present at the search of a lawyer's office."
[3] Official Gazette RS, No. 18/93 et sub.
[4] Conversely, the Supreme Court stated in the contested decision that the BAS representative has the right to assess whether the search warrant is drawn up in accordance with the law. Such standpoint would be reasonable only if the legal order provided for a special legal remedy by which he could contest the (constitutionality and) legality of the court warrant. 
[5] In the reasoning of the court warrant it is stated: "Business and other documents of the company (…) referring to the actual and modified records, the income (…) in (…) from 1996 onwards, statements of accounts sent (…), data on current accounts and transactions on them, a list of the financial assets of the company and in (…), data and evidence referring to the assets owned by the company (…), as well as to all the confidential documents of A. A. referring to the operations of the company (…) and the representation of the suspects B. B. and C. C."
 [6] The first paragraph of this Article stipulates: "A search of a lawyer's office shall be permitted only on the basis of a warrant issued by the competent court and only with reference to the records and objects explicitly stated in the search warrant. The search shall not affect the secrecy of other documents and objects."
 [7] Horvat denotes such as an operative investigative act which is normally not performed by an investigating judge himself. See Š. Horvat, Zakon o kazenskem postopku s komentarjem, GV Založba, Ljubljana 2004, p. 402.
 [8] "The privilege protecting from disclosure communications between solicitor and client is a fundamental right - as fundamental as the right to counsel itself since the right can exist only imperfectly without the privilege. The Courts should be astute to protect both." Cf.  the Supreme Court of Canada in the judgment Descôteaux et al. v.  Mierzwinski, [1982] 1 S.C.R. 860.
[9] Cf.  the European Court of Human Rights (hereinafter referred to as the ECtHR) in the judgment in the case André and other v. France, dated 24 July 2008, in Para. 41: "The Court assesses that searches and seizures in the case of lawyers undoubtedly entail an attack on professional secrecy, which is a basis of the confidentiality relationship between a lawyer and his client."
[10] In the aforementioned judgment of the Supreme Court of Canada, the Court established that the legislation enabled the search of a law office and the seizure of the objects for which there existed reasonable reasons that they entailed evidence in relation to the commission of a particular criminal offence, but it did not lay down a special procedure that would apply to such cases. The Court believed that in granting a search warrant the judge must be particularly demanding and must grant it if there is no other reasonable alternative. Moreover, the search should be made in the presence of a representative of the Bar. The Supreme Court “ordered” the courts to set out in the court warrant procedures for its execution which take into account the right to privacy and limit the interferences with this right to what is strictly unavoidable.
[11] Therefore, in the contested decision the standpoint of the Supreme Court according to which "the lawyer’s departure from the premises of the search may result in the search being carried out without the supervision of a lawyer" is questionable as well.
[12] It examined, in particular, whether the warrant was issued by a judge, whether the scope of the warrant was reasonably limited, and - since the search of a lawyer's office was concerned - whether it was carried out in the presence of an independent observer in order to ensure that documents protected by professional secrecy were not seized. The ECtHR found that the search warrant was issued by the investigating judge and that the scope of the warrant was reasonably limited.
[13] Whereby the list of computer files seized was not drawn up at the end of the search but only subsequently. Moreover, the police officers did not inform the applicant or the representative of the Bar of the results of the search before leaving the premises.
[14] The ECtHR examined the severity of the offence in connection with which the search was carried out, whether it was carried out on the basis of a court warrant, whether the warrant was based on reasonable suspicion, and whether its scope was reasonably limited. It also reviewed the manner in which the search was executed, and – since this concerned a lawyer’s office – whether it was carried out in the presence of an independent observer in order to ensure that evidence subject to legal professional privilege was not seized. The ECtHR also examined the possible repercussions on the work and reputation of the persons affected by the search. See Para. 38 of the judgment.
[15] The ECtHR found that the search warrant was based on a sufficiently reasonable suspicion and that it was issued by a court. However, neither the warrant nor the application for its issue specified what was expected to be found in the applicant’s office, or whether privileged material was to be seized as well. The warrant was therefore drawn up in overly broad terms and was thus not capable of minimising the interference with the applicant's right determined in Article 8 of the ECHR and with professional secrecy. On the basis of this warrant, the search, too, was carried out in an excessively broad manner. The entire computer used by the applicant for his work was seized, and it is natural to suppose that it contained files covered by professional privilege. The ECtHR therefore established that in these circumstances the search disproportionately interfered with the applicant’s professional secrecy. See Paragraphs 40–43 of the judgment.
[16] Para. 44 of the judgment.
[17] Para. 46 of the judgment.
[18] Para. 48 of the judgment.
[19] Regarding this, the ECtHR refers to its judgment in the case Niemietz v. Germany, dated 16 December 1992, Para. 37.
[20] The Inland Revenue obtained a search warrant in order to search the applicant's premises. During the search some 69 documents, files, and books were examined and seized. Officers searched for relevant data. Once their relevance had been established, the documents were then reviewed by the counsel nominated by the Attorney General. The task of the counsel was to advise whether any document was or was not subject to professional privilege. Any document found to be subject to privilege was returned to the applicant's attorneys. All the documents seen by counsel were listed, with counsel's opinion as to each.
[21] See B. M. Zupančič in: The Owl of Minerva, Essays on Human Rights, Eleven International Publishing, Utrecht 2008 (On the Interpretation of Legal Precedents and of the Judgements of the European Court of Human Rights), pp. 351–392.
[23] Pursuant to Articles 56-1 and 96 of the Code de procédure pénal, the search of a lawyer's office and of the premises of his residence may be carried out only by a judicial officer (a magistrat – normally the investigating judge or the State Prosecutor) in the presence of the Head of the Bar Association or his deputy, to whom the judicial officer first presents the contents of the reasoned court decision. Only the judicial officer and the Head of the Bar Association may become acquainted with the documents found on the site of the search before they are seized. If the Head of the Bar Association objects to the seizure of a particular document, it must be sealed, a report must be written and the sealed document must be submitted to the ‘Judge of freedoms and detention’, who decides on its seizure after previously hearing the judicial officer who conducted the search, the State Prosecutor, the lawyer whose premises were searched, and the Head of the Bar Association.
[24] Judgments of the Criminal Chamber of the Court of Cassation dated 12 March 1992, 20 January 1993, and 27 June 2001.
[25] Judgments of the Criminal Chamber of the Court of Cassation dated 14 November 2001 and 8 August 2007.
[26] Article 110 of the Criminal Procedure Act (Strafprozessordnung).
[27] In theory, there exist various positions regarding the powers vested in the investigating judge and the Head of the Bar Association in an examination of the files and private notes of a lawyer. Some authors claim that where the investigating judge believes that evidence is to be found in the files of the lawyer, he should indicate such to the Head of the Bar Association. The latter should examine the file by himself in order to establish whether it really contains evidence, and in such case he should hand them over to the judge. See M. Franchimont, A. Jacobs, and A. Masset, Manuel de procédure pénale, Second edition, Larcier, Bruselj 2006, p. 462. Others believe that such interferes with the powers vested in the investigating judge. In their opinion, only the investigating judge may decide which documents are protected by professional secrecy, after consulting the Head of the Bar Association or his deputy if necessary. See H.-D. Bosly and D. Vandermeersch, Droit de la procédure pénale, Fourth edition, La Charte, Bruges 2005, p. 663.
Type of procedure:
constitutional complaint
Type of act:
individual act
Applicant:
Miha Kozinc, Ljubljana
Date of application:
28.12.2006
Date of decision:
15.04.2010
Type of decision adopted:
decision
Outcome of proceedings:
dismissal
Document:
AN03465