Judgment of the Constitutional Court of 17 December 2015 № 33-П upon the petition of the citizens A.V.Balyan, M.S.Dzuba et al.

Legislation in question: Article 29, Point 7, Article 165, Part 4, and Article 182, Part 1 of the Criminal Procedure Code

Legal issue: Whether the search of an attorney’s premises is allowed within a criminal case, in which his client is considered a suspect or an accused, and if so, under what conditions?

Ratio decidendi: After analysing Russian and international legal standards, the Constitutional Court has come to a conclusion that the regulation in question does not contradict the Constitution. The right of a suspect and an accused to a confidential relationship with his/her attorney (defence attorney) as unalienable part of the right to be represented by an attorney is not an absolute right; however, its limitations in the area of confidentiality are only allowed under the conditions which are reasonable and commensurate to the goals to protect the basis of constitutional order, morals, health, rights and legal interests of other persons, the interests of the state defence and security, as stated in Article 55 (Part 3) of the Constitution. Intrusion of the State into the relations of a suspect and/or accused with an attorney (defence attorney) of his/her choice, including gaining of an access to the materials, related to the data on the type and content of such relations, is only allowed in extraordinary cases - when there exists a legitimate suspicion of an abuse of the law by an attorney and malicious misuse of the law by a client; and a full access by the state representatives to the material in its entirety without allowing exercising of a right to be represented by an attorney prior to the incidents of abuse is considered excessive and frivolous infringement on the rights of defence. Attorney-client privilege does not cover the documents, containing a proof that the elements of offence exist in the relationship between a client and his/her attorney, including a crime against justice, crime related instruments and objects. Moreover, the search of the attorneys’ materials is only allowed upon issuance of a court order, listing all the search and expropriation objects pertaining to the case in question, as well as the legal reasons for such search.

Dissenting opinion:
  • (concurring opinion) the Constitutional Court ought to have listed the circumstances of the case, constituting the basis for the constitutional hearing: having failed to gather enough quality evidence, the prosecution has split off a part of the case (claiming theft) and directed the investigation in such a manner that it implicated the defence attorneys in investigation. This allowed a multi-hour search of attorneys’ offices and seizure of the documents and objects (electronic media) that had not been clearly connected with the announced goals and reasons for the search. As a by-product of the search, the prosecution had received an access to attorneys’ documents containing confidential information, including the ones related to third parties, not involved in the investigated case.

    Constitution of Russia protects the Presumption of Innocence, the Privilege Against Incrimination of Self and Relatives, and similar immunities, including an attorney-client and doctor-patient privilege, which are so primary to the civilized legal society, as is, for example, the Seal of Confession. Investigative bodies and prosecution, if they agree that their actions have to be conducted in the constitutional legal manner, have to accept the ensuing limitations and restrictions, regardless of what State interests the investigators, interrogators, and prosecutors imply. The constitutional rights should not be sacrificed only on the grounds that the prosecution is certain of something and it decides to insists on its point of view, especially under a frustration when it does not have enough legal means to prove their suspicions.

    Cases similar to the one of the petitioners, even the ones containing no formal offences, place an attorney-client privilege under jeopardy and create a “freezing effect” on exercising of the right to be represented by an attorney and receive professional legal assistance. They allow the citizens’ mistrust of attorneys to proliferate, and let the citizens doubt that they are ready to hire defence attorneys’ who themselves are poorly protected by the law. The defence also has a reason not to antagonize the prosecution and not to allow it to turn against it and against its clients.

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Subject area:
Court Proceedings criminal procedure