The Institute for Law and Public Policy has prepared an expert opinion on searches in attorneys’ offices
On December 21, 2015, the Russian Constitutional Court (the RCC) has officially published the Judgment of December 17, 2015 No. 33 on constitutionality of Section 2 (7) of Article 29, Section 4 of Article 165 and Section 1 of Article 182 of the Criminal Procedure Code of the Russian Federation. The complaint has been lodged by a group of attorneys at law and their clients, who claimed unconstitutionality of the above-mentioned provisions insofar as they allow to hold searches in attorneys’ offices and seize documents protected by attorney-client privilege.
In the Judgment, the RCC has provided a constitutional interpretation of the contested provisions of the Criminal Procedure Code, with due regard to the necessity of professional secrecy protection. In fact, the RCC has held the following:
(a) a search connected with access to materials protected by attorney-client privilege can be held solely upon sufficient grounds;
(b) a court decision sanctioning a search has to specify particular items and materials subject to search and seizure;
(c) a group of materials cannot be subject to examination by prosecuting authorities, namely:
- materials not directly connected with criminal violations by attorney or his client;
- materials not connected with crimes committed by a third party;
- materials not connected with keeping instruments of a crime or prohibited/controlled items.
(d) in the course of a search in attorney’s office conduction of photo-, video- or any other recording of materials protected by attorney-client privilege is forbidden.
Moreover, in the statement of reason section of the Judgment, the RCC stressed that the federal legislator may introduce amendments allowing to assure a differential treatment of materials during a search in attorneys’ premises depending on whether the contents of such materials include confidential information or not. The Institute supposes that such a mechanism can be implemented through legislative recognition of independent third party’s representatives presence during the search for protection of client-attorney privilege and resolution of disputes concerning the status of seized materials (i.g., a representative of bar association).
In support of the claimants’ legal position, the Institute has filed an independent expert opinion (amicus curiae brief) to the RCC featuring the results of comparative research of standards of protection granted to lawyers’ professional secrecy in Council of Europe member states. The thorough analysis of the Judgment shows that the RCC has in general adopted the foreign best practices for law offices search and seizure execution. The constitutional interpretation of the contested provisions can help fix the deficiencies in Russian criminal procedure regulations and its application by state prosecution authorities and courts.