Constitutional court case law

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Case number:
U-I-115/14, Up-218/14
ECLI:
ECLI:SI:USRS:2016:U.I.115.14
Challenged act:
The Criminal Procedure Act (Official Gazette RS, Nos. 32/12 – official consolidated text, 47/13, and 87/14) (CrPA)

The Attorneys Act (Official Gazette RS, Nos. 18/93, 24/01, 54/08, 35/09, and 97/14) (AttA)

The investigative measures conducted on the basis of the following Ljubljana District Court orders:
– No. IV Kpd 54914/2013, dated 18 November 2013 (law firm Odvetniška družba Jernejčič – Peternelj in partnerji, attorney Andrej Jernejčič),
– No. IV Kpd 54914/2013, dated 18 November 2013 (law firm Odvetniška pisarna Vladimir Bilić, attorney Vladimir Bilić),
– No. IV Kpd 54914/2013, dated 18 November 2013 (attorney Alja Markovič Čas)

The constitutional complaint of the Bar Association of Slovenia against Ljubljana District Court Orders No. III Kpd 6446/2014, dated 8 October 2014, and No. III Kpd 6446/2014, dated 4 December 2014
Operative provisions:
The Criminal Procedure Act (Official Gazette RS, Nos. 32/12 – official consolidated text, 47/13, and 87/14) and the Attorneys Act (Official Gazette RS, Nos. 18/93, 24/01, 54/08, 35/09, and 97/14) are inconsistent with the Constitution.
 
The National Assembly of the Republic of Slovenia must remedy the unconstitutionality referred to in the preceding Point within one year of the publication of this Decision in the Official Gazette of the Republic of Slovenia.
 
Until the established inconsistency is remedied, searches of attorneys' offices, searches of electronic devices, and seizures of objects, documents, and devices belonging to an attorney shall be authorised and conducted in the manner determined in Paragraphs 60 through 63 of the reasoning of this Decision.
 
The decision of a judge referred to in Paragraph 60 of the reasoning of this Decision rejecting the exclusion of data contained in documents or other storage media from the scope of an investigative measure may be appealed within three days of the service of the judge's decision. The appeal may be lodged by the attorney or the representative of the Bar Association of Slovenia, who requested the exclusion during the execution of the investigative measure in order to protect the privacy of attorneys. The appeal may invoke complaints regarding the constitutionality or legality of the court order authorising an investigative measure and request protection against the review and disclosure of data that are protected by the privacy of attorneys and therefore the review of such data and the seizure of the media on which it is stored are inadmissible. The competent higher court shall decide on the appeal within three days of its receipt by means of an order served on the complainant and the investigating judge, as well as the police if the investigating judge authorised the police to execute the investigative measure. The appeal suspends the effect of the judge's decision rejecting the exclusion of data from the scope of the investigative measures.
 
The investigative measures conducted on the basis of the following Ljubljana District Court orders:
– No. IV Kpd 54914/2013, dated 18 November 2013 (law firm Odvetniška družba Jernejčič – Peternelj in partnerji, attorney Andrej Jernejčič),
– No. IV Kpd 54914/2013, dated 18 November 2013 (law firm Odvetniška pisarna Vladimir Bilić, attorney Vladimir Bilić),
– No. IV Kpd 54914/2013, dated 18 November 2013 (attorney Alja Markovič Čas),
violated the rights determined by Article 35, the first paragraph of Article 36, and the first paragraph of Article 37, as well as the rights determined by the first paragraph of Article 23 and Article 25 of the Constitution.
 
Further interferences with the privacy of attorneys on the basis of the orders referred to in the preceding Point are hereby prohibited. Investigative measures may not be conducted without the attendance of a representative of the Bar Association of Slovenia or without observing the safeguards that follow from Points 3 and 4 of these operative provisions.
 
The complainants against whom investigative measures have been conducted, their attorneys or representatives, and a representative of the Bar Association of Slovenia must immediately be granted access to all objects, data, documents, and documentation in any form that have been seized during investigative measures against the complainants conducted on the basis of the orders referred to in Point 5 of these operative provisions. The complainants and the representative of the Bar Association of Slovenia have the right to object to their seizure in the manner and according to the procedure determined in Point 3 of these operative provisions.
 
The constitutional complaint of the Bar Association of Slovenia against Ljubljana District Court Orders No. III Kpd 6446/2014, dated 8 October 2014, and No. III Kpd 6446/2014, dated 4 December 2014, is rejected.
Abstract:
The privacy of attorneys, which is protected by Articles 35, 36, and 37 of the Constitution, refers to facts, relationships, objects, premises, data, and communication that are substantively connected to the exercise of the profession of attorney. It protects both the privacy of attorneys and the privacy of their clients, as these are intertwined in an inseparable and complex whole that is based on mutual trust and an expectation of confidentiality and that forms the core of the relationship between attorneys and their clients. The value underlying the privacy of attorneys is thus the need to protect the confidentiality of business relationships between attorneys and their clients. Confidential data encompass data related to a client held by an attorney as well as the attorney’s correspondence with the client and the legal advice provided to the client. This duty to protect the confidentiality of the data entrusted to an attorney by his or her clients is the essential foundation of the confidential attorney-client relationship. However, attorneys cannot effectively fulfil their duty to protect confidentiality with regard to their clients unless they are simultaneously ensured the right to be free from inadmissible interferences with the privacy of attorneys, especially in relation to the state.
 
The collection of confidential information that is connected to the profession of an attorney and thus covered by the privacy of attorneys is protected not only in attorneys’ offices but also on all premises where an attorney practices his or her profession. Consequently, all such premises are protected in the framework of the spatial aspect of the privacy of attorneys. What is protected are not the premises as such, but privacy on such premises. As a great amount of confidential information is located on premises that are protected by the privacy of attorneys, the spatial aspect of the privacy of attorneys carries a special weight.
 
An attorney’s right to privacy does not enjoy absolute protection. However, in order for interferences with the privacy of attorneys to be admissible, in addition to the general conditions for the admissibility of interferences with human rights, the special safeguards determined by the Constitution with regard to spatial and communication privacy (the second through fourth paragraphs of Article 36 and the second paragraph of Article 37 of the Constitution) have to be observed as well. A prior court order is required for the admissibility of such interferences; this also applies if the interference at issue is restricted to that part of the privacy of attorneys that is protected only by Article 35 of the Constitution, as even such an interference is by its very nature severe and intertwined with the particular aspects of privacy.
 
In addition to the general and special constitutional requirements that apply to interferences with the privacy of other persons, it must be taken into consideration that the position of attorneys, as regards the practice of their profession, is expressly protected by the Constitution. Such is intended to protect the human rights of the attorneys’ clients. The legislature has to establish an appropriate statutory basis for interferences with the privacy of attorneys as regards the conditions for ordering an interference with the privacy of attorneys as well as the manner in which such shall be executed in individual instances. The statutory basis must satisfy the requirements stemming from the special protection of the privacy of attorneys.
 
Searches of attorneys’ premises, seizures of their documents and objects, and searches of their electronic devices interfere with the privacy of attorneys. The effective prevention, discovery, and prosecution of criminal offences, and the institution or course of criminal proceedings are constitutionally admissible aims for interferences with human rights and fundamental freedoms, including, as a general rule, also the privacy of attorneys. However, defendants’ right to a defence and the privilege against self-incrimination prevent the issuance of a search order authorising investigative measures against an attorney representing a defendant in a pre-trial investigation or in criminal proceedings with regard to information concerning the confidential relationship between the attorney acting as a defence attorney and the defendant.
 
If an interference with the privacy of attorneys has a constitutionally admissible aim, an interference by means of investigative measures is admissible if it is necessary for the institution or course of criminal proceedings. An interference with the privacy of attorneys is necessary if it follows from the court order authorising such interference why the information or data that are directly connected to specific criminal proceedings can be obtained precisely by means of a search of an attorney’s office and why other investigative measures do not suffice for the collection thereof. In addition, from the perspective of the necessity of an interference, the Constitution requires that the scope of every interference with the privacy of attorneys be limited to the least possible interference. Such entails, inter alia, that investigators must not be granted even a momentary chance to access all data in an attorney’s office or on other equally protected premises, as well as the attorney’s servers or computers, which thus by the nature of the matter include data whose seizure is not necessary to achieve the purpose of the search or is even inadmissible with regard to its aim. A statutory regulation that grants investigators broad and extensive access to data interferes with the privacy of attorneys in an unconstitutional manner. 
 
In accordance with the statutory regulation currently in force, the power to review data or seize (electronic) documents granted to investigators and exercisable at their discretion is extremely broad and may even encompass data or documents that are not listed in the court order authorising the investigative measure. The affected attorney and a representative of the Bar Association of Slovenia may express their opposition; they cannot, however, achieve that such measures are adequately limited or that the decision regarding such is transferred to an independent and impartial body. As attorneys’ offices and other equally protected premises as well as attorneys’ electronic devices are where confidential information is concentrated, the nature of the matter requires special regulation of the investigation thereof in order to satisfy the constitutional requirement according to which in each individual instance the necessity of an interference must be established. Therefore, the law must precisely regulate the execution of an interference with the privacy of attorneys that has been appropriately ordered by a court.
 
If a constitutionally admissible aim can be achieved with a less invasive measure than the one determined by law, the statutory regulation does not fulfil the requirement of necessity with regard to interferences with the privacy of attorneys. There are in fact two less invasive measures that would allow interferences with the privacy of attorneys only in constitutionally admissible instances and when absolutely necessary: the presence of the affected attorney and a representative of the Bar Association of Slovenia during investigative measures against attorneys and ensuring the attorney and the representative of the Bar Association of Slovenia the possibility to object to the review of certain data or their seizure, whereby the final say on the admissibility of the investigative measure must be reserved for a judge deciding impartially thereon. This judge is the only representative of state power who may (which, due to the nature of the matter, is to a certain extent inevitable) review data that are not the target of the investigative measure, as the data that are the target of the court order still have to be singled out.
 
The legislation does not even regulate the presence of the affected attorney and a representative of the Bar Association of Slovenia in a consistent manner, and as a general rule the final decision on the admissibility of interferences with the privacy of attorneys is left to the police. Neither the attorney nor the representative of the Bar Association of Slovenia can thus prevent interferences with the privacy of attorneys that are not necessary or that are inadmissible already with regard to their aim. Such entails that the challenged regulation allows excessive interferences with privacy that can result in irreparable consequences, and the general statutory prohibition against revealing [information in] confidential documents and objects is hollowed out at the stage of its implementation, as it only establishes a goal without also determining the procedural path that participants in proceedings could take to attain it. It is therefore inconsistent with Article 35, the first paragraph of Article 36, and the first paragraph of Article 37 of the Constitution.
 
The statutory regulation does not accord any legal remedies against an order authorising an investigative measure to an attorney who is not a defendant or to a representative of the Bar Association of Slovenia. It thus interferes with the human right determined by Article 25 of the Constitution. Furthermore, if the investigating judge delegates the execution of an investigative measure to the police, the fact that the statutory regulation does not determine judicial control of their decisions constitutes an interference already with the right to judicial protection determined by the first paragraph of Article 23 of the Constitution. As there exists no constitutionally admissible aim for such an interference, the legislature’s omission is inconsistent with the mentioned Articles of the Constitution.
 
Investigative measures against the complainants were carried out on the basis of an unconstitutional statutory regulation. The possibility of a representative of the Bar Association of Slovenia attending all stages of the execution of investigative measures that interfered with the privacy of attorneys was not provided. It was the police who by themselves decided which documents and electronic devices would be seized, and no judicial protection was provided against such decision. Insofar as the complainants had voiced objections to the extent, seizure, and review of the data, the investigators rejected such either expressly or de facto. The decision on the dispute between the affected attorney or the representative of the Bar Association of Slovenia and the police officers who executed the investigative measures was thus not left to an independent body. The complainants, who were not suspected of criminal offences, could not avail themselves of any legal remedy against the order authorising the investigative measure or the manner of its execution. Consequently, the complainants’ human rights determined by the first paragraph of Article 23, Article 25, the first paragraph of Article 35, the first paragraph of Article 36, and the first paragraph Article 37 of the Constitution were violated.
 
As the challenged court orders have already been executed to a significant extent, due to the nature of things, their effects cannot be nullified by abrogating the orders and remanding the case to the investigating judge. In such instances the Constitutional Court limits itself to establishing violations if such can lead to an improvement of the legal position of the complainants. As the court orders at issue still continue in part to produce legal effects, the Constitutional Court prohibited further interferences with the privacy of attorneys without due respect for the safeguards that are required by the Constitution and which the Constitutional Court clarified in its decision on the review of the constitutionality of the statutory regulation in this Decision.
 
Thesaurus:
1.5.4.5 - Constitutional Justice - Decisions - Types - Suspension.
1.5.51.1.15.1 - Constitutional Justice - Decisions - Types of decisions of the Constitutional Court - In abstract review proceedings - Finding that a regulation is not in conformity - With the Constitution.
1.5.51.1.16 - Constitutional Justice - Decisions - Types of decisions of the Constitutional Court - In abstract review proceedings - Call to the norm-giver to adjust a regulation with the Constitution.
1.5.51.1.22 - Constitutional Justice - Decisions - Types of decisions of the Constitutional Court - In abstract review proceedings - Determination of the manner of implementation of a decision.
1.5.51.2.8 - Constitutional Justice - Decisions - Types of decisions of the Constitutional Court - In constitutional-complaint proceedings - Finding of a violation of a constitutional right.
1.5.51.2.13 - Constitutional Justice - Decisions - Types of decisions of the Constitutional Court - In constitutional-complaint proceedings - Determination of the manner of implementation of a decision.
1.4.52.2 - Constitutional Justice - Procedure - Procedural requirements in constitutional-complaint proceedings - Legal interest to file a constitutional complaint.
1.5.51.2.1 - Constitutional Justice - Decisions - Types of decisions of the Constitutional Court - In constitutional-complaint proceedings - Rejection.
5.3.32 - Fundamental Rights - Civil and political rights - Inviolability of the home.
5.3.33 - Fundamental Rights - Civil and political rights - Inviolability of communications.
5.3.30 - Fundamental Rights - Civil and political rights - Right to private life.
5.3.13.2 - Fundamental Rights - Civil and political rights - Procedural safeguards, rights of the defence and fair trial - Access to courts.
5.3.13.3 - Fundamental Rights - Civil and political rights - Procedural safeguards, rights of the defence and fair trial - Double degree of jurisdiction.
3.16 - General Principles - Proportionality.
5.3.13.22.1 - Fundamental Rights - Civil and political rights - Procedural safeguards, rights of the defence and fair trial - Right to remain silent - Right not to incriminate oneself.
1.4.10.6 - Constitutional Justice - Procedure - Interlocutory proceedings - Challenging of a judge.
Legal basis:
Articles 23.1, 25, 35, 36.1, 37.1, Constitution [URS]
Articles 40.2, 48, 48.1, 49.1, 55.b.1.2, The Constitutional Court Act [CCA]
Cases joined:
¤
Full text:
U-I-115/14-28
Up-218/14-45
21 January 2016
 

DECISION

 
At a session held on 21 January 2016 in proceedings to review constitutionality initiated upon the petition of the Bar Association of Slovenia, Ljubljana, represented by the law firm Odvetniška družba Čeferin, o. p., d. o. o., Grosuplje, and in proceedings to examine and decide upon the constitutional complaint of the Bar Association of Slovenia, represented by its President Roman Završek, and the law firm Odvetniška družba Jernejčič – Peternelj in partnerji, o. p., d. o. o., Ljubljana, Andrej Jernejčič, Ljubljana, the law office Odvetniška pisarna Vladimir Bilić, d. o. o., Ljubljana, Vladimir Bilić, Ljubljana, and Alja Markovič Čas, Ljubljana, the Constitutional Court
 

decided as follows

 
1. The Criminal Procedure Act (Official Gazette RS, Nos. 32/12 – official consolidated text, 47/13, and 87/14) and the Attorneys Act (Official Gazette RS, Nos. 18/93, 24/01, 54/08, 35/09, and 97/14) are inconsistent with the Constitution.
 
2. The National Assembly of the Republic of Slovenia must remedy the unconstitutionality referred to in the preceding Point within one year of the publication of this Decision in the Official Gazette of the Republic of Slovenia.
 
3. Until the established inconsistency is remedied, searches of attorneys' offices, searches of electronic devices, and seizures of objects, documents, and devices belonging to an attorney shall be authorised and conducted in the manner determined in Paragraphs 60 through 63 of the reasoning of this Decision.
 
4. The decision of a judge referred to in Paragraph 60 of the reasoning of this Decision rejecting the exclusion of data contained in documents or other storage media from the scope of an investigative measure may be appealed within three days of the service of the judge's decision. The appeal may be lodged by the attorney or the representative of the Bar Association of Slovenia, who requested the exclusion during the execution of the investigative measure in order to protect the privacy of attorneys. The appeal may invoke complaints regarding the constitutionality or legality of the court order authorising an investigative measure and request protection against the review and disclosure of data that are protected by the privacy of attorneys and therefore the review of such data and the seizure of the media on which it is stored are inadmissible. The competent higher court shall decide on the appeal within three days of its receipt by means of an order served on the complainant and the investigating judge, as well as the police if the investigating judge authorised the police to execute the investigative measure. The appeal suspends the effect of the judge's decision rejecting the exclusion of data from the scope of the investigative measures.
 
5. The investigative measures conducted on the basis of the following Ljubljana District Court orders:
– No. IV Kpd 54914/2013, dated 18 November 2013 (law firm Odvetniška družba Jernejčič – Peternelj in partnerji, attorney Andrej Jernejčič),
– No. IV Kpd 54914/2013, dated 18 November 2013 (law firm Odvetniška pisarna Vladimir Bilić, attorney Vladimir Bilić),
– No. IV Kpd 54914/2013, dated 18 November 2013 (attorney Alja Markovič Čas),
violated the rights determined by Article 35, the first paragraph of Article 36, and the first paragraph of Article 37, as well as the rights determined by the first paragraph of Article 23 and Article 25 of the Constitution.
 
6. Further interferences with the privacy of attorneys on the basis of the orders referred to in the preceding Point are hereby prohibited. Investigative measures may not be conducted without the attendance of a representative of the Bar Association of Slovenia or without observing the safeguards that follow from Points 3 and 4 of these operative provisions.
 
7. The complainants against whom investigative measures have been conducted, their attorneys or representatives, and a representative of the Bar Association of Slovenia must immediately be granted access to all objects, data, documents, and documentation in any form that have been seized during investigative measures against the complainants conducted on the basis of the orders referred to in Point 5 of these operative provisions. The complainants and the representative of the Bar Association of Slovenia have the right to object to their seizure in the manner and according to the procedure determined in Point 3 of these operative provisions.
 
8. The constitutional complaint of the Bar Association of Slovenia against Ljubljana District Court Orders No. III Kpd 6446/2014, dated 8 October 2014, and No. III Kpd 6446/2014, dated 4 December 2014, is rejected.
 

REASONING

 
 
A
 
1. On the basis of Article 215 of the Criminal Procedure Act (hereinafter referred to as the CrPA), the District Court issued three orders authorising searches of offices, apartments, and personal vehicles of attorneys due to the probability that objects and evidence of criminal offences important for criminal proceedings instituted against third parties, among whom the complainants were not listed, will be found. It also ordered the seizure of objects and documents that were allegedly connected to the purpose of the investigation. The execution of the orders was delegated to the police, who were to conduct the search without interfering with the confidentiality of other documents or objects and a representative of the Bar Association of Slovenia (hereinafter referred to as the BAS) was to attend the search of the attorneys' offices. 
 
2. The law firms and attorneys whose premises were searched and the BAS lodged constitutional complaints against the mentioned court orders. The complainants allege that the challenged court orders led to violations of the rights to privacy and personality rights (Article 35 of the Constitution), the inviolability of dwellings (Article 36 of the Constitution), the protection of the privacy of correspondence and other means of communication (Article 37 of the Constitution), the protection of personal data (Article 38 of the Constitution), and violations of the first paragraph of Article 6, Article 8, and Article 13 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).
 
3. By the challenged orders the court allegedly ordered searches of offices, homes, and personal vehicles of attorneys, even though they were not identified as suspects in criminal proceedings. A representative of the BAS allegedly attended the searches of the attorneys' offices and objected to the seizure of their clients’ files in their entirety, computers, and copies of servers containing all electronic communication, but these were nevertheless seized. However, the representative of the BAS allegedly did not attend the searches of the attorneys' homes and personal vehicles. The police allegedly seized all data, including data that did not refer to persons suspected of criminal offences. As there existed an attorney-client relationship between the attorneys and the suspects, the attorneys were allegedly exempted from the duty to testify in accordance with Article 236 of the CrPA. Therefore, they should have been provided with the opportunity to refuse to produce documentation in order to preserve the confidentiality of what their clients shared with them in the performance of the profession of attorney. The complainants believe that the search of an attorney's office should only be ordered in exceptional circumstances and in accordance with precisely defined rules, and that a search of the office of an attorney who is not suspected of having committed a criminal offence cannot be ordered without the consent of the attorney’s clients. They allege that it does not follow from the challenged court orders that the objects sought could not be obtained through searches of the suspects’ premises. 
 
4. A search order is allegedly not subject to a special appeal. As the complainants are not suspected of having committed any criminal offences, they are not parties to the relevant criminal proceedings, and thus they allegedly cannot lodge motions for the exclusion of evidence obtained in the searches of premises or lodge any legal remedies in the proceedings. They allege that a request for compensation in accordance with Article 26 of the Constitution does not constitute an effective legal remedy, as due to the violation of professional secrecy in instances of searches of premises executed against attorneys it is particularly also the rights of third parties who entered into confidential relationships with the attorney that are violated. As a result, the attorney is not the only one who can claim damages. Furthermore, the BAS allegedly may not avail itself of an effective legal remedy to prevent such interferences with the human rights of an attorney's clients. The fact that the representative of the BAS objected to the seizure of objects was allegedly not taken into account in the proceedings at issue. As a result, the investigative measures that were ordered and executed in such manner allegedly entailed an inadmissible interference with the confidential relationship between attorneys and their clients and an attack on the professional secrecy that is the foundation of such confidential relationship.
 
5. The BAS also lodged a petition to initiate proceedings to review the constitutionality of Articles 214 through 224 of the CrPA and Article 8 of the Attorneys Act (hereinafter referred to as the AttA), i.e. to review the constitutionality of the statutory regulation of searches of premises, seizures of objects, and seizures and searches of electronic devices, whenever these investigative measures are conducted against an attorney. The challenged statutory regulation is allegedly inconsistent with the right to an attorney, the right to adequate facilities to prepare one's defence, and the privilege against self-incrimination (the first, second, and fourth indents of Article 29, and the third paragraph of Article 19 of the Constitution), the equality of arms (Article 22 of the Constitution), the right to judicial protection (the first paragraph of Article 23 of the Constitution), the right to an effective legal remedy (Article 25 of the Constitution and Article 13 of the ECHR), the right to a fair trial (the first paragraph of Article 6 of the ECHR), the right to an attorney (point (c) of the third paragraph of Article 6 of the ECHR), and Article 137 of the Constitution. Furthermore, it is allegedly inconsistent with the right to privacy and personality rights (the first paragraph of Article 35 of the Constitution), the right to the protection of the privacy of correspondence and other means of communication (the first paragraph of Article 37 of the Constitution), and the protection of personal data (the first paragraph of Article 38 of the Constitution), which are also protected by Article 8 of the ECHR.
 
6. The petitioner believes that the challenged regulation does not contain special provisions ensuring protection of the special status of attorneys determined by Article 137 of the Constitution, or protection of the confidential attorney-client relationship. The petitioner alleges that the CrPA does not determine even a general prohibition of investigative measures against an attorney who is not a suspect [in criminal proceedings]. Without laying down any special restrictions, it allegedly also allows that evidence against a defendant be collected from his or her attorney, and even from his or her defence attorney in criminal proceedings. Such regulation allegedly entails a disproportionate interference not only with an attorney's right to privacy, but also a disproportionate interference with the right to privacy of the clients represented by the attorney. The petitioner stresses that the right to the confidentiality of the relationship between a defendant and his or her defence attorney in criminal proceedings is an essential part of the right to an attorney and a part of the general requirement of a fair trial. Already the mere possibility of an interference with such communication allegedly also entails an inadmissible interference with the right to adequate facilities to prepare one's defence. Moreover, Article 8 of the AttA allegedly in no way limits the possibility or instances in which the investigative measures whose regulation the petitioner challenges may be conducted against an attorney. The mere requirement that a representative of the BAS attend the search of an attorney's office allegedly does not guarantee effective protection of the confidentiality of the relationship between an attorney and his or her clients. The representative of the BAS allegedly has no effective possibility to ensure that the confidentiality of the relationship is in fact observed in the execution of a search of premises. In addition, this requirement allegedly only applies to a search of an attorney's office, and not to a search of other premises of the attorney or to a search of his or her electronic devices. Even if it could also be applied to a search of electronic devices, special safeguards would allegedly have to be provided due to the specificity of this investigative measure when conducted against an attorney. It is alleged that, as a general rule, electronic devices are seized in their entirety and storage media are seized with all of the data stored on them, including data that have no connection to the case under investigation. An attorney may allegedly only attend the collection of such data, but may not be present when they are reviewed. In addition, neither the CrPA nor the AttA require the attendance of a representative of the BAS in such instances. The challenged regulation thus enables, on the one hand, the review of data that have no connection with the case under investigation and, on the other hand, the review of data that are connected to the case under investigation but that should not be made available to the prosecuting authorities due to the right to a defence of the affected attorney's clients. According to the petitioner's allegations, the decision on whether data that are not connected to the case that is the subject of criminal proceedings may be destroyed is at the discretion of the prosecuting authorities. They allegedly adopt such decision only after they have had a chance to review the electronic device or medium on which the electronic data are stored in its entirety. Therefore, in this part the challenged regulation is allegedly inconsistent with the right to the equal protection of rights, the right to adequate facilities to prepare one's defence, the right to an attorney, the right to the privilege against self-incrimination, the right to a fair trial, privacy rights, and Article 137 of the Constitution.
 
7. The petitioner alleges that it has no special legal remedy against an order authorising a search of premises or a search of an electronic device, while attorneys who are not themselves a party to the proceedings may only to a limited extent avail themselves of the other legal remedies that are generally at the disposal of parties to criminal proceedings. Therefore, the challenged regulation is allegedly inconsistent with the right to judicial protection and the right to an effective legal remedy. In instances of searches of attorneys' offices, a claim for compensation in accordance with Article 26 of the Constitution is allegedly not an effective legal remedy, as not every violation of human rights necessarily also leads to a favourable decision on an action for damages. Disciplinary proceedings allegedly cannot remedy or mitigate violations of the human rights of attorneys and their clients. Furthermore, an administrative dispute procedure allegedly also does not provide a legal remedy with an effect comparable to that of an appeal. The petitioners assert that the confidentiality of the attorney-client relationship could only be effectively protected by a legal remedy that would guarantee certain suspensive effects during the execution of a search of an attorney's office or a search of an attorney's electronic devices, for example by allowing that an object could be seized, but that it may not be inspected until a decision on the legal remedy has been adopted. The complete restriction of the suspensive effect of the legal remedy is thus allegedly not necessary. It is alleged that in fact there is no legal remedy against the seizure of objects, regardless of whether such seizure is conducted as an independent measure or as part of a search of premises.
 
8. By Order No. Up-218/14, U-I-115/14, dated 9 October 2014, the Constitutional Court accepted the petition and the constitutional complaint for consideration. In accordance with the first paragraph of Article 56 of the Constitutional Court Act (Official Gazette RS, Nos. 64/07 – official consolidated text, and 109/12 – hereinafter referred to as the CCA), it informed the Ljubljana District Court of the acceptance of the constitutional complaint.
 
9. The Constitutional Court sent the order accepting the petition together with the petition itself to the National Assembly. The National Assembly did not reply to the petitioner's statements; however, an opinion regarding such was submitted by the Government. At the outset, the Government highlights that the petitioner did not invoke a violation of Article 2 of the Constitution, even though it invoked the existence of an unconstitutional legal gap. In the Government’s opinion, the existing regulation already contains a number of safeguards that prevent abuses and contain the foundations for the development of case law that can further elaborate these safeguards and provide an interpretative value. From the provisions regulating the content of a written court order authorising a search of premises, from the restriction of searches of attorneys' offices to only the files and objects that are expressly listed in the search order, and from the requirement that a search may not interfere with the confidentiality of other documents and objects, it allegedly follows that the search of an attorney's office must not violate the rights of third parties. The Government further deems that the provisions requiring the presence of witnesses at searches of premises, the provisions determining which objects or documents may be seized, and the prohibition on a decision being based on evidence obtained in violation of these provisions constitute such safeguards. With regard to the search of electronic devices, it highlights the temporal dimension of this type of search and the extensiveness of the review of their content, which allegedly cannot be limited in advance. It lists statutory provisions that allegedly require the police to proceed in the most restrained and discreet manner possible while investigating. The Government highlights the position that has allegedly emerged from the expert public and according to which the provisions on persons who may not be heard as witnesses and privileged witnesses must not be interpreted so narrowly as to include only oral testimony. It stresses that allegedly also in some other countries the confidentiality of the relationship between a defendant and his or her attorney is limited to the attorney's role in judicial proceedings, and that the European Court of Human Rights (hereinafter referred to as the ECtHR) does not treat as an exception [to the confidentiality of such relationship] only cases where an attorney is involved in a criminal offence, but also cases connected to his or her duty to report as regards the prevention of money laundering. However, the Government agrees with the petitioner that it would be feasible to provide a more precise and specific regulation of searches of premises, searches of electronic devices, and seizures of objects when these are conducted against attorneys. The Government is allegedly in the process of drafting an amendment to the CrPA that will follow this general direction and presumably it will be ready in 2015.
 
10. In its statement regarding the Government's position, the petitioner first stresses that it stated already in the petition that the principle of certainty is a primary element of the concept of a state governed by the rule of law enshrined in Article 2 of the Constitution. In its opinion, the first reason invoked for the inconsistency of the challenged regulation with the Constitution lies in the fact that neither the CrPA nor the AttA contain a prohibition (not even in principle) against investigative measures, nor do they determine any limitations with regard to the instances and circumstances in which the investigative and prosecuting authorities may collect evidence in criminal proceedings by means of the mentioned investigative measures against a defendant also from an attorney either representing the defendant in such or other proceedings or providing the defendant with legal advice. The petitioner believes that an interpretation may not exceed the linguistic scope of the text of a legal rule and establish [new] legal rules. As the statutory regulation contains no special conditions, it is allegedly impossible to interpret the measures at issue in a constitutionally consistent manner. In the petitioner's opinion, the statutory possibility allowing investigative and prosecuting authorities to conduct different investigative measures against an attorney in order to collect evidence against a defendant who is represented by the attorney in criminal proceedings entails a complete hollowing-out of the defendant's right to confidential communication with his or her attorney. Effective protection of a defendant's rights can allegedly only be guaranteed if the confidentiality of the attorney-client relationship in criminal proceedings is guaranteed in all stages of the proceedings and independently of the (possible) use of the evidence so obtained in criminal proceedings due to the fact that subsequent protection is not possible. The petitioner is further of the opinion that an attorney’s court-related work cannot be distinguished from the remainder of his or her work. With regard to a search of electronic devices, it stresses that it is of essential importance that the police must not access certain data that are confidential in nature.
 
11. On 2 December 2014, the BAS extended its constitutional complaint also to Ljubljana District Court Order No. III Kpd 6446/2014, dated 8 October 2014, by which the investigating judge ordered that the electronic data storage media seized from attorney Vladimir Bilić in the course of a search of premises be unsealed and searched. It further extended its constitutional complaint to Ljubljana District Court Order No. III Kpd 6446/2014, dated 4 December 2014, by which the validity of the former order had been extended. By Order No. Up-218/14, dated 11 December 2015, the Constitutional Court suspended the execution of the challenged Ljubljana District Court orders authorising these searches until its final decision and determined the manner of implementation of its decision by prohibiting any further investigative measures in connection with seizures conducted on the basis of the challenged orders until its final decision.
 
 
B – I
 
Procedural Aspects of the Constitutionality of the Statutory Regulation
 
12. Even though the petitioner stated that it challenges Articles 214 through 224 of the CrPA and Article 8 of the AttA, the Constitutional Court already established in Order No. U-I-115/14, Up-218/14, dated 9 October 2014, that it follows from the content of its statements that it is in fact alleging the existence of a so-called unconstitutional legal gap. Therefore, the Constitutional Court deemed that it is claiming an unconstitutionality of the CrPA and the AttA insofar as they allegedly, contrary to the Constitution, failed to regulate searches of attorneys' offices and other premises used by attorneys, seizures of objects and electronic devices of attorneys, and effective legal remedies intended to ensure respect particularly for the right to privacy that protects the confidentiality of the attorney-client relationship as well as for other human rights of an attorney's clients.
 
13. The petitioner challenges the regulation of three investigative measures, namely the search of premises, the search of electronic devices, and the seizure of objects. Therefore, the Constitutional Court limited its review to an assessment of the constitutionality of the regulation of these investigative measures.
 
 
B – II
 
The Statutory Regulation of Investigative Measures
 
14. The purpose of investigative measures is to investigate the commission of criminal offences (or the suspicion that they have been committed) and to collect evidence and data for a decision on the institution or course of criminal proceedings. During an ongoing criminal investigation, these formal procedural acts are performed by an investigating judge, who may also authorise the police to conduct specific acts. They may also be carried out during the pre-trial procedure.
 
15. Searches of premises are regulated by Articles 214 through 219 of the CrPA. The first paragraph of Article 214 of the CrPA determines that a court order authorising a search of premises may only be issued if two conditions are met, namely if there exist reasonable grounds for the suspicion that a person committed a criminal offence and if it is likely that during the search the suspect will be apprehended or evidence of the criminal offence or objects that are important for the criminal proceedings will be found. The CrPA then proceeds to determine the procedure for conducting searches of premises, but does not contain any more detailed provisions on conducting searches of attorneys' offices. Article 215 of the CrPA regulates the procedure regarding a search order before the search is initiated, Article 216 regulates the execution of a search of premises, Article 217 regulates instances of found objects that are not connected to the criminal offence regarding which the search was ordered, and Article 218 regulates entering a dwelling without a court order. Article 219 of the CrPA prohibits a judicial decision from being based on evidence collected contrary to any of the (statutory and constitutional) safeguards. If a search of premises is used to collect evidence and data from an attorney, in addition to the general provisions, the special provisions contained in the AttA have to be considered as well. The first paragraph of Article 8 of the AttA determines that a search of an attorney's office may only be authorised with regard to files and objects that are expressly listed in the search order. This provision also contains two additional conditions regarding the execution of a search of an attorney's office, namely the search must not infringe the confidentiality of other documents or objects (the first paragraph of Article 8) and a representative of the BAS must attend the search (the second paragraph of Article 8).
 
16. Seizures of documents and other objects are regulated by Articles 220 through 224 of the CrPA. Even though this special investigative measure can be conducted independently, it is most frequently conducted as part of another investigative measure, in particular, a search of premises or a personal search, while with regard to searches of electronic devices, it is generally the stage preceding such. It is aimed at seizing objects that were used in the commission of a criminal offence or intended for such use or that were the result of a criminal offence as well as objects that can serve as evidence in criminal proceedings. As an investigative act, a seizure is always a provisional measure. Seizures of electronic devices are regulated by Article 223a of the CrPA, which requires that data be secured in electronic form by (a) storing them on another appropriate storage medium, (b) creating an identical copy of the entire storage medium, or (c) sealing the entire electronic device or a part thereof. The holder of the electronic device or his or her representative, attorney, or an expert of his or her choice may attend this procedure.[1]
 
17. In accordance with the first paragraph of Article 219a of the CrPA, an electronic device[2] may be searched if, as is also required for the authorisation of a search of premises, there exist reasonable grounds for the suspicion that a criminal offence has been committed and if it is likely that the electronic device contains electronic data that will enable the identification, discovery, or apprehension of the suspect or defendant or result in the discovery of evidence of the criminal offence that is important for the criminal proceedings or can serve as evidence in criminal proceedings. Without the prior written consent of the holder of an electronic device and its users, an electronic device may only be searched on the basis of a written court order containing a statement of reasons.[3] The search of an electronic device comprises three stages, i.e. seizing, securing, and reviewing. It has to be executed in such a manner that the integrity of the original data and the possibility of their use in further proceedings are preserved.[4] The search must be executed in a manner that interferes to the least extent possible with the rights of persons who are not suspects or defendants, that protects the confidentiality of the data, and that does not cause disproportionate damage.[5] At a review of data from a seized and secured electronic device or a copy thereof the CrPA does not envisage the presence of any persons other than the reviewers themselves.
 
18. The AttA does not contain a special regulation on searches of electronic devices and seizures of items.
 
19. A search of premises may be conducted on a defendant's premises or the premises of third parties (the first paragraph of Article 214 of the CrPA). Similarly, objects and electronic devices may be seized and searched regardless of whether they belong to a defendant or to persons against whom pre-trial or criminal proceedings have not been instituted. All of these investigative measures entail the collection of evidence and data independently of the will of the person against whom the investigative measure is being conducted. This is what distinguishes them from taking statements or testimony. Therefore, searches of premises can be conducted even against persons who may not be heard as a witness (Article 235 of the CrPA) or who are exempt from the duty to testify (Article 236 of the CrPA, also referred to as privileged witnesses).[6] Electronic devices of persons who may not be heard as witnesses and privileged witnesses may also be searched (such implicitly follows from the sixth paragraph of Article 219a of the CrPA). 
 
20. Attorneys must preserve the confidentiality of the information entrusted to them by a client (the first paragraph of Article 6 of the AttA). A defence attorney may not be questioned as a witness regarding information the defendant has shared with him or her, unless such is requested by the defendant him- or herself (Article 235 of the CrPA). An attorney is exempt from the duty to testify about facts he or she learned in the performance of the profession of attorney,[7] except in instances determined by the third paragraph of Article 65 of the CrPA or if the conditions under which the law determines that they are relieved of the duty to preserve confidentiality or obliged to surrender confidential information to the competent authorities are fulfilled.
 
 
B – III
 
The Human Right to Privacy
 
21. The petitioner argues, inter alia, that the challenged regulation inadmissibly interferes with the right of attorneys to privacy, which protects the confidential attorney-client relationship, as it does not account for the special position of attorneys and does not prohibit investigative measures against attorneys. The petitioner alleges an inconsistency with the right to privacy protected by Articles 35, 36, 37, and 38 of the Constitution. As Article 8 of the ECHR does not guarantee a higher level or greater scope of protection of these rights than the Constitution (the fifth paragraph of Article 15 of the Constitution), the Constitutional Court reviewed the challenged regulation from the perspective of the provisions of the Constitution.
 
22. Article 35 of the Constitution guarantees the inviolability of a person's physical and mental integrity, and the inviolability of his or her privacy and personality rights. In addition, the Constitution contains three special provisions that specifically protect the inviolability of dwellings (and other premises) or spatial privacy (the first paragraph of Article 36 of the Constitution), the privacy of correspondence and other means of communication or communication privacy (the first paragraph of Article 37 of the Constitution), and the protection of personal data or information privacy (the first paragraph of Article 38 of the Constitution). The Constitutional Court has already adopted positions regarding the content protected by the general right to privacy as well as spatial and communication privacy as regards both natural persons and legal entities.[8] Searches of attorneys' offices and seizures of data storage media necessarily lead to an intertwining of all aspects of privacy. The Constitutional Court therefore reviewed the consistency of the challenged regulation with Articles 36 and 37 of the Constitution. As regards instances of concurrent interferences with information privacy, the Constitutional Court only reviewed such from the perspective of the general right to privacy determined by Article 35 of the Constitution, as such instances concern privacy protected by this general provision as well as privacy that is specifically protected by the first paragraph of Article 38 of the Constitution. The Constitutional Court reviewed the challenged regulation in such a manner because in a majority of cases the criteria for admissible interferences with information privacy determined by the first paragraph of Article 38 of the Constitution are more lenient than the criteria governing interferences with spatial and communication privacy, and due to the above mentioned intertwining of the different aspects of privacy, whereby it is clear that in such instances all interferences must fulfil the same criteria, i.e. the most stringent criteria from a constitutional perspective. Even if an interference is admissible from the perspective of information privacy, already due to the intertwining of the different aspects of privacy such does not entail that it is also admissible from the perspective of spatial or communication privacy or from the perspective of the content protected in the framework of the general right to privacy as part of the work of attorneys. With regard to such, it should also be highlighted that the Constitutional Court has already held that severe interferences with the right determined by Article 35 of the Constitution require prior judicial authorisation in order to be proportionate,[9] while such is not required for an interference that is restricted only to information privacy.
 
23. The Constitutional Court defined a person's privacy, the inviolability of which is guaranteed by Article 35 of the Constitution, as “the sphere of a person's existence formed by a more or less complete whole of his or her conduct and engagements, feelings, and relations, for which it is characteristic and essential that the person shapes and maintains it alone or together with those close to him or her with whom he or she lives in an intimate community, for example with a spouse, and that he or she lives in such community with a sense of being safe from intrusion by the public or any other undesired person.”[10] The right to privacy determines the area of an individual's own activity in which he or she is the one who decides which intrusions he or she will allow. The more the sphere of an individual's private life is intimate, the greater the legal protection he or she must enjoy. This is even truer when it is admissible that the state or competent state authorities interfere therewith.[11]
 
24. The spatial aspect of privacy protects an individual from having his or her conduct revealed where he or she legitimately expects to be left alone.[12] The individual is protected everywhere where he or she can reasonably, and therefore also evidently for others, expect that he or she will not be exposed to the eyes of the public. The first but not the only such place is his or her dwelling. The Constitutional Court specifically underlined that it is essential for the notion of premises in the sense of the second paragraph of Article 36 of the Constitution that it is a complete spatial unit intended and used for living or carrying out an activity, and hidden from the eyes of the public.[13] What is protected are not the premises as such, but an individual’s privacy on premises regarding which the individual reasonably expects privacy and deems them to be his or her residential premises.[14] The Constitution determines special conditions for the admissibility of interferences with spatial privacy in the second, third, and fourth paragraphs of Article 36. In accordance with the second paragraph of Article 36 of the Constitution, premises on which an individual’s privacy is protected may be entered and searched only on the basis of a prior court order. In accordance with the third paragraph of Article 36 of the Constitution, a person whose premises are being searched (or his or her representative) has the right to attend the search. In accordance with the fourth paragraph of Article 36 of the Constitution, a search may only be carried out in the presence of two witnesses. Such entails that already the constitution framers deemed that, in addition to the general conditions for the admissibility of an interference with a human right determined by the third paragraph of Article 15 and Article 2 of the Constitution, special procedural safeguards that ensure the proportionality of the interference with the right have to be observed as well.
 
25. The right to communication privacy protected by the first paragraph of Article 37 of the Constitution entails the "protection of the individual's interest that the state or uninvited third persons do not learn of the content of a message that he or she transfers via any means that allows remote exchange or transfer of information, as well as the individual's interest in having the control and freedom to decide to whom, to what extent, how, and under which conditions he or she will transmit a certain message.”[15] The subject of protection is free and unmonitored communication and thus the protection of the confidentiality of relations that the individual establishes when communicating.[16] In the second paragraph of Article 37 of the Constitution the constitution framers also determined special restrictions on interferences with this human right. The constitution framers already explicitly limited the aims that may justify interferences with this human right, namely to criminal proceedings and state security. In addition, they explicitly emphasised that the interference must be necessary to achieve the mentioned aims, which is already a constituent part of the admissibility of any restriction in accordance with the general principle of proportionality (Article 2 of the Constitution). A prior court order is also required as a special condition for the admissibility of an interference with communication privacy. With regard to both specific aspects of privacy, this is thus a special constitutional safeguard determined as one of the conditions for the admissibility of an interference. The mentioned constitutional requirement is intended to prevent arbitrary interferences by the executive branch of power with these constitutionally highly protected values by requiring the executive branch of power to justify in advance the necessity of an interference before the judicial branch of power. Such is all the more necessary as by their very nature these interferences include an element of surprise, meaning that the individual whose privacy is being interfered with does not and may not know in advance that the interference will take place and therefore also does not anticipate it. The requirement of a prior court order thus predominantly serves the protection of the rights of the individual whose privacy is being interfered with and in this regard essentially contributes to the proportionality of the interference.
 
The Privacy of Attorneys
 
26. The privacy of attorneys with respect to facts, relationships, objects, premises, data, and communication that are substantively connected to the practise of the profession of attorney (i.e. the privacy of attorneys) has been accorded a special constitutional weight. Not in order to privilege attorneys, but due to the fact that the privacy of attorneys is linked to the privacy of their clients in an inseparable and complex manner and to the special mutual trust and expectation of confidentiality that constitute the core of the relationship between an attorney and his or her client. The privacy of attorneys has several aspects and is therefore protected by Articles 35, 36, and 37 of the Constitution.
 
27. The reason underlying the special protection of the privacy of attorneys thus lies in the fact that it protects not only an attorney’s privacy, but also, and in fact even more so, the human rights of the attorney’s clients.[17] An attorney’s work is intended to provide professional assistance and to decisively contribute to the ability of his or her clients to protect their rights and legal interests, including those guaranteed and protected by the Constitution and international legal instruments as human rights and fundamental freedoms. An attorney provides his or her clients with legal assistance, whereby it is important that as part of this role he or she also represents them in judicial proceedings. Namely, it is precisely the exercise of the right to judicial protection (the first paragraph of Article 23 of the Constitution) and to appropriate legal remedies (Article 25 of the Constitution) in proceedings before judicial authorities that ensures individuals the effectiveness of their rights and legal interests, including human rights and fundamental freedoms (the fourth paragraph of Article 15 of the Constitution). In this regard, the attorney’s role is especially accentuated in connection with the vulnerable position of an individual who has been charged with a criminal offence. Such an individual is ensured fair proceedings by the general constitutional procedural safeguards determined by the first paragraph of Article 23, Articles 22 and 25, and the special safeguards determined by Article 29 of the Constitution. Among the latter, inter alia, the rights to a defence attorney in criminal proceedings and to an adequate defence against the charges are explicitly guaranteed. They are exercised precisely through the assistance of an attorney. It is exactly due to the outlined special role of the attorney in the exercise of rights and legal interests or in defending against charges in judicial proceedings that it is not surprising that the first paragraph of Article 137 of the Constitution speaks of the attorneyship as a part of the system of justice.  
 
28. The representation of clients by attorneys refers to an extremely broad scope of relationships in which the attorney, by the very nature of the practise of his or her profession, necessarily learns of a large quantity of information and engages in numerous communications with his or her clients, either directly or remotely, whereby he or she also learns of the most sensitive information, detailed information regarding privacy, potentially also in its narrowest – i.e. its most intimate part. In the interest of his or her clients and the protection of their rights, an attorney must protect all such information of his or her clients as a professional secret. The value underlying the protection of the privacy of attorneys is precisely the necessity to protect the professional secrecy of attorneys. The professional secrecy of attorneys encompasses information held by an attorney as well as the attorney’s correspondence with his or her clients and the provision of legal advice to his or her clients. An individual seeking legal advice must be ensured that, as a general rule, an attorney will not disclose information obtained during a consultation regarding a client’s rights and obligations, that the attorney will not be required to disclose such information to third parties, and that the information will not be used against the client.[18] An attorney thus has a duty to protect the right to privacy of his or her clients in all its forms, i.e. the duty to protect their personal data, statements, documents, objects, and messages, in effect, the part of their privacy that clients share with the attorney for the purpose of seeking legal assistance. They can only share it freely and in full if they can completely trust the attorney. The duty to protect confidentiality is thus the essential foundation of the confidential attorney-client relationship.[19] Such is in turn a necessary precondition allowing an attorney to perform legal acts to the benefit of his or her clients as an autonomous and independent counsellor and assistant within the limits of the Constitution and the laws.[20] A client will only be able to exercise his or her rights and legal interests with the assistance of an attorney successfully and to their fullest extent if the attorney is able to provide the client, on the basis of information provided by him or her in full and in earnest, with complete and reliable professional assistance and support during consultations as well as when representing them before a court. This confidentiality is particularly accentuated if the client is a defendant in criminal proceedings. The right to a defence with the assistance of an attorney (the second indent of Article 29 of the Constitution) is an essential element of a fair trial. The assistance of an independent legal professional ensures that the defendant enjoys a position that is de facto equal to that of the state prosecutor as the opposing party in criminal proceedings. The confidentiality of the relationship between a defendant and his or her defence attorney is a necessary condition for the effective exercise of this right.[21]
 
29. Attorneys have the right to practise their profession autonomously and independently. In accordance with the deontological rules of their profession, attorneys may only perform such successfully if in carrying out their work they enjoy the trust of their clients, who establish relationships with them through authorisations. Attorneys can only be bound by the duty to protect the confidentiality of all information entrusted to them by their clients in connection with their work if, at the same time, they enjoy the right to protect their privacy (in all its forms) in the professional field to which such information pertains. The duty to protect the confidentiality of what a client has entrusted to them therefore establishes not only attorneys’ obligation to protect confidentiality, but also attorneys’ right to be free from interferences with the privacy of attorneys. This right is reflected in the obligation of others, primarily the state, to abstain from such interferences.[22]
 
30. The privacy of attorneys thus refers to facts, relationships, objects, premises, data, and communication that are substantively connected to the practise of the profession of attorney. The confidentiality of the relationship that has to be protected is rooted in the exercise of the work of an attorney. The right to privacy that derives from this confidential relationship (Article 35 of the Constitution) as well as its spatial (the first paragraph of Article 36 of the Constitution) and communication aspects (the first paragraph of Article 37 of the Constitution) have to be reviewed in the light of such. The privacy of attorneys is thus a collection of entitlements that derive from Article 35, the first paragraph of Article 36, and the first paragraph of Article 37 of the Constitution and pertain to attorneys. The privacy of attorneys has to be accorded special protection because it reflects the privacy of an attorney’s clients.
 
The Spatial Privacy of Attorneys
 
31. In the framework of spatial privacy, individuals are protected from having their conduct revealed where they reasonably expect to control who may enter certain premises and gain insight into their conduct. With regard to attorneys, the practise of the profession of attorney as determined by Article 2 of the AttA is protected. Attorneys predominantly practise their profession in attorneys’ offices, and therefore in such offices privacy is protected by the first paragraph of Article 36 of the Constitution. However, they may also practise it elsewhere or the objects that are connected to the practise of their profession may be located elsewhere (e.g. an attorney’s house, apartment, car, holiday home).[23] Wherever they practise their profession, their spatial privacy is protected. Such is due to the fact that what is protected are not the premises as such, but privacy on such premises. The term attorney’s office must therefore be interpreted in such a manner so as to include all of the above stated premises. With regard to such, it is irrelevant whether an attorney works as an independent attorney or if a number of attorneys work together in an attorneys’ office under civil law or in a law firm that is a legal entity. In any event, the legal profession is practised by an attorney and therefore all of the above mentioned instances concern the privacy of attorneys. Insofar as attorneys are assisted by attorney candidates or trainees in accordance with the statutory regulation, it is clear that the privacy of attorneys also extends to them. In order for an attorney to be able to carry out his or her work (i.e. providing legal assistance to clients), an exchange of confidential information between the attorney and his or her client is indispensable. Consequently, a great amount of confidential information is located on premises that are protected by the privacy of attorneys. With regard to attorneys, spatial privacy, which protects such premises, thus carries a special weight – as has already been emphasised, not only as regards the protection of an attorney’s conduct, namely the practise of his or her profession on such premises, but in particular also as regards the protection of confidential information belonging to the attorney or his or her clients.
 
The General and Communication Privacy of Attorneys
 
32. Communication privacy (the first paragraph of Article 37 of the Constitution) entails the protection of an individual’s interest in controlling the remote transmission of a message and preventing the state and third parties from gaining knowledge of its content. The general protection of privacy pursuant to Article 35 of the Constitution also protects direct communication between individuals that is not intended for the public. Both are of particular importance for an attorney’s relationship with a client, as the client entrusts the attorney with confidential information when seeking assistance with regard to the protection of his or her rights and legally protected interests. An attorney can only effectively assist a client if he or she has all the necessary information. Therefore, he or she is meant to know information that clients would not entrust to others.
 
Limitations of the Privacy of Attorneys
 
33. As is true with regard to the right to privacy of any individual, such right of attorneys is also not protected as an absolute right. Therefore, the petitioner’s statements that interferences with the privacy of an attorney should not be admissible at all unless the attorney him- or herself is suspected of a criminal offence are unsubstantiated. Interferences with these constitutionally protected rights are admissible, but only if they pursue a constitutionally admissible aim and if they are proportionate.[24] In addition to these conditions under which interferences with human rights and fundamental freedoms – and thus also with the privacy of attorneys – are admissible in general, the Constitution explicitly determines a number of special safeguards regarding the admissibility of interferences with spatial and communication privacy. These safeguards contribute to the proportionality of interferences. There is no reason for special safeguards to not apply in instances of interferences with the privacy of attorneys. Therefore, also an interference with the spatial privacy of attorneys is only admissible on the basis of a prior court order (the second paragraph of Article 36 of the Constitution) and may, as a general rule, only be conducted in the presence of the owner of the premises or his or her representative and two witnesses (the third and fourth paragraphs of Article 36 of the Constitution). In accordance with the fifth paragraph of Article 36 of the Constitution, an official may enter a person’s premises without a court order and without the presence of two witnesses only in exceptional circumstances and subject to conditions provided by law, and only if such is absolutely necessary for the protection of people or property or for the apprehension of the perpetrator of a criminal offence. However, due to its nature, this constitutionally envisaged exception cannot apply to the privacy of attorneys, as such an intervention is evidently not required with regard to searches of attorneys’ files, documents, or electronic devices. In any event, an interference with the communication privacy of attorneys is only admissible when such is absolutely necessary for the initiation or course of criminal proceedings, or for the security of the state. The interference as such and the manner of its execution may only be determined by law, and, in any event, an individual interference is admissible only for a limited time and – as equally applies to interferences with spatial privacy – only on the basis of a prior court order (the second paragraph of Article 37 of the Constitution). The statutory regulation of interferences with communication privacy must include detailed rules that, with due consideration of the explicit constitutional requirements, prevent the arbitrariness of state authorities and the misuse of the applied special methods and means.[25] The purpose of a prior court order is precisely to prevent arbitrary conduct by the executive branch of power and its potential abuses.[26] By their very nature, such interferences with privacy, even where the latter is only protected by Article 35 of the Constitution, are so severe and intertwined with the particular aspects of privacy that even in this regard we can speak of the requirement of a court order to ensure the proportionality of the interference, as has already been pointed out (see Paragraph 22 of this reasoning).
 
34. However, as is evident from the above statements, the admissibility of interferences with the privacy of attorneys is subject to even more than all of the general and special constitutional requirements that also apply to interferences with the privacy of other persons in general. In comparison with others, attorneys are in a special position when practising their profession (Paragraphs 26 through 30 of the reasoning of this Decision). Such is precisely due to the special nature of the right to privacy of attorneys, which is at the same time also a duty to protect their privacy in order to ensure respect for all aspects of the privacy of their clients (Article 35, the first paragraph of Article 36, and the first paragraph of Article 37 of the Constitution) and to ensure the effectiveness of the constitutional law safeguards of fair judicial proceedings in proceedings in which clients protect their rights with the professional assistance of an attorney (Article 22, the first paragraph of Article 23, and Articles 25 and 29 of the Constitution). Due to such, with regard to any interference with the privacy of attorneys, it must be ensured that it is only executed if and only to the extent to which such is absolutely necessary to attain constitutionally admissible aims, not only from the perspective of the privacy of attorneys, but throughout the entire duration of the interference also from the perspective of respect for the constitutionally protected rights of an attorney’s clients. This is even more important because an attorney’s office is by its very nature a place with a high concentration of different kinds of privacy, including such that have absolutely no connection with the reasons underlying the interference with the privacy of the attorney and therefore the necessity of an interference with them clearly cannot be demonstrated. In order to attain such, the legislature has to establish an appropriate statutory basis by regulating the conditions under which an interference with that right may be ordered as well as the manner in which investigative measures are to be carried out, which have to be observed in the execution of any interference ordered in an individual case. An appropriate statutory regulation of interferences with the privacy of attorneys is the first condition for ensuring that all constitutional safeguards will also be observed every time it is applied.[27] Therefore, the Constitutional Court reviewed the challenged regulation precisely from the above outlined perspective.
 
 
B – IV
 
Review of the Constitutionality of the Statutory Regulation from the Perspective of the Right to Privacy of Attorneys
 
35. Investigative measures undoubtedly interfere with the right to privacy protected by Article 35 of the Constitution, as well as with both of the above mentioned specific aspects of privacy (the first paragraph of Article 36 and the first paragraph of Article 37 of the Constitution).[28] On the basis of those measures, the state may enter premises on which attorneys carry out their activities and where objects, documents, and other storage media related to the work of attorneys may be found. These objects and storage media may be seized and the investigators may review as well as copy their content. Data on an electronic device may constitute evidence of remote electronic communication (the first paragraph of Article 37 of the Constitution) or an attorney's files, notes, final documents, and drafts thereof, which are protected by the general right to privacy under Article 35 of the Constitution.
 
36. Investigative measures against attorneys are a multifaceted interference. An attorney can be the target of an investigative measure or an investigative measure can be directed against the attorney’s clients or against third parties. With regard to such, it is irrelevant if the attorney’s current or former clients whose information is still being stored by the attorney in one form or another are affected. An attorney can act as: (a) the defence attorney of a suspect or an accused person (hereinafter referred to as a defendant); (b) a defendant’s attorney; (c) someone who has no contractual relationship with a defendant; or (d) a defendant. Each of these positions requires appropriate constitutional law protection of the attorney’s privacy. Insofar as the Constitution requires special protection of the privacy of attorneys also in instances when an attorney is a defendant (potentially also together with his or her client), the purpose of such protection is not to privilege the attorney, but to protect the privacy of his or her clients.
 
37. The provisions of the CrPA regarding investigative measures refer to anyone against whom investigative measures are carried out and therefore also to attorneys. The AttA only includes special provisions with regard to searches of premises. It determines that a search of an attorney’s office may only be carried out on the basis of a court order and that such order must explicitly list the files and objects regarding which the search has been authorised, whereby the execution of the search must not affect the confidentiality of other files and objects in the attorney’s office (the first paragraph of Article 8 of the AttA). This thus entails the regulation at a statutory level of the obligation stemming from the second paragraph of Article 36 of the Constitution, which requires a prior court order for searches of premises (as well as even to enter such). The law thereby requires the competent judge issuing the order to prevent interferences with the privacy of attorneys that have no connection with the investigative measure. This is in accordance with the requirement that an investigative measure may only interfere with an attorney’s privacy insofar as such is absolutely required by the criminal proceedings at issue.
 
38. The AttA also determines that searches of premises must be performed in the presence of a representative of the BAS (the second paragraph of Article 8 of the AttA). However, neither the AttA nor the CrPA define the role of the representative of the BAS who has to attend searches of premises. The presence of the representative of the BAS does not substitute for the presence of (one of) the witnesses required by the fourth paragraph of Article 36 of the Constitution. As the Constitutional Court held already in Decision No. Up-2530/06, the presence of the representative is intended to protect the human rights of third parties, who legitimately expect that their privacy will be protected in instances governed by the first paragraph of Article 8 of the AttA. His or her role is thus to ensure that the confidentiality of documents and objects that are not the subject of the search is observed. The representative of the BAS is thus assigned the role of guardian of the privacy of attorneys, which, precisely due to the right to privacy and constitutional procedural safeguards regarding the attorneys’ clients, must remain protected in spite of the interference authorised by a court order and within the scope authorised by the court order. The role of the representative of the BAS can thus only be an active one. However, the statutory regulation does not determine the activities that the representative of the BAS is authorised to carry out in order to fulfil his or her role. The mere presence of a representative of the BAS, however, cannot prevent interferences with the privacy of attorneys that are not necessary and therefore that should not take place. In addition, the law does not even envisage the presence of a representative of the BAS at other investigative measures. 
 
39. We are thus dealing with an interference with the privacy of attorneys, the admissibility of which must be reviewed from the perspective of the general conditions determined by the Constitution for limitations of this human right as well as the special conditions imposed by the special provisions of Articles 36 and 37 of the Constitution, thereby taking into account the special nature of the privacy of attorneys. In accordance with the general constitutional conditions, human rights and fundamental freedoms may be limited only by the rights of others and in such cases as are provided by the Constitution (the third paragraph of Article 15 of the Constitution). An interference with human rights is constitutionally admissible if it is based on a constitutionally admissible, i.e. objectively substantiated, aim (the third paragraph of Article 15 of the Constitution) and if it is in accordance with the general principle of proportionality as one of the principles of a state governed by the rule of law (Article 2 of the Constitution). The Constitutional Court performs an assessment of whether an interference is excessive on the basis of a so-called strict test of proportionality. This test comprises a review of three aspects: 1) whether the interference is in fact necessary (required) to attain the pursued aim; 2) whether the interference under review is appropriate for attaining the pursued aim in the sense that the aim can actually be attained through the interference; 3) whether the weight of the consequences of the interference under review with the affected human right is proportionate to the benefits that will result therefrom (the principle of proportionality in the narrower sense). Only an interference that passes all three aspects of the test is constitutionally admissible.[29]
 
The Aim Pursued by Investigative Measures
 
40. The first condition for the constitutionality of an interference with a human right is always the constitutionally admissible aim. The second paragraph of Article 37 of the Constitution inter alia explicitly determines that an interference with communication privacy is admissible if such is absolutely necessary for the initiation or course of criminal proceedings. The investigative measures whose regulation is under review in the case at issue were performed precisely for the needs of individual criminal proceedings. Although the Constitution does not contain any special provisions on constitutionally admissible aims with regard to interferences with the rights determined by Article 35 and the first paragraph of Article 36 of the Constitution, it is evident that also in these instances the admissible aims pursued by the interferences are the initiation or furtherance of criminal proceedings. Investigative measures in criminal proceedings are namely intended to produce evidence and thus to enable effective prevention, discovery, and prosecution of criminal offences, whereby the human rights and fundamental freedoms of other persons and other constitutional values are protected (the third paragraph of Article 15 of the Constitution). As a general rule, these are constitutionally admissible aims for interferences with the human rights and fundamental freedoms (of defendants as well as of third parties) through investigative measures as an expression of the state’s repressive power to protect such values. Such also applies to interferences with the privacy of attorneys regardless of whether the defendant is an attorney, his or her client, or any other person.
 
Protection of the Privilege against Self-Incrimination
 
41. The aim mentioned in the preceding Paragraph cannot justify an interference with the privacy of an attorney representing a defendant in a pre-trial investigation or in criminal proceedings with regard to information concerning the confidential relationship between the attorney acting as a defence attorney and the defendant. In such instances, disclosure of the information is first and foremost prevented by the defendant’s right to a defence and the privilege against self-incrimination as a constituent part thereof (the fourth indent of Article 29 of the Constitution). Such is also taken into account by the statutory regulation of the special position accorded to attorneys in some instances by the CrPA. Thus, an attorney may not be questioned regarding information a defendant shared with him or her as his or her defence attorney, unless such is expressly requested by the defendant;[30] except in exceptional circumstances, the attorney is exempt from the duty to testify regarding facts he or she learned while practising his or her profession and that fall within the scope of professional secrecy;[31] communication between an attorney acting as a defence attorney and a detainee may not be reviewed; correspondence and conversations between a defence attorney and a detained defendant are free and unsupervised.[32] At the constitutional level, the same level of protection applies to any collection of data (which is forcibly carried out by the investigative authorities of the state) whose disclosure would violate the confidential relationship between a defendant and a defence attorney.[33] In such a case, the aim of the investigation would also require that the attorney circumvent the privilege against self-incrimination, as the investigative authorities would gain access to data that they would not have been able to obtain otherwise because when acting as a witness the attorney would have to protect such. Therefore, a generally admissible aim for an interference with the privacy of attorneys cannot entail a constitutionally admissible aim, insofar as the privacy of attorneys, due to the nature of the matter, protects the privilege against self-incrimination.[34] Nevertheless, it should be noted that protection of the relationship of confidentiality between a defendant and a defence attorney is not absolute and unconditional in cases where the attorney him- or herself is suspected of or charged with participating in the criminal offence under investigation, which must of course follow already from the court order authorising the search. In such a case, the attorney cannot rely on the privacy of attorneys and does not enjoy the special (enhanced) protection characteristic of the relationship between a defendant and his or her defence attorney. It would namely be unacceptable for a criminal offence to be committed under the guise of protecting the privacy of attorneys.
 
42. It has to be noted that the challenged statutory regulation does not allow interferences with the privacy of attorneys insofar as such protects the privilege against self-incrimination. Courts have to interpret laws with the help of methods of interpretation that are established within legal doctrine. As they are bound by the Constitution (Article 125 of the Constitution), they always have to interpret laws in a constitutionally consistent manner. An interpretation is consistent with the Constitution if it does not violate the human rights and fundamental freedoms of the parties to proceedings (the first paragraph of Article 15 of the Constitution).[35] As stated in Paragraph 19 of the reasoning of this Decision, the wording of the general regulation of investigative measures determined by the first paragraph of Article 214, the first paragraph of Article 220, and the first paragraph of Article 219a of the CrPA does not exclude the execution of investigative measures against witnesses who are either prohibited from testifying or exempt from the duty to testify in accordance with Articles 235 and 236 of the CrPA. Applied on its own, a grammatical interpretation of the cited statutory provisions would thus lead to the possibility of applying the mentioned investigative measures to obtain information regarding which an attorney acting as a defence attorney in criminal proceedings may not testify. However, such an interpretation of the first paragraph of Article 214, the first paragraph of Article 220, and the first paragraph of Article 219a of the CrPA is not a constitutionally consistent interpretation. The information that would be sought on an attorney’s premises with the intent to seize it, whether it be stored in a document or on an electronic device, would namely be precisely the information a defendant entrusted to his or her defence attorney. The legislature determined that the state is prohibited from forcing a defence attorney to testify against a client or interfering with the attorney’s correspondence with a detained client in Article 74 and point 2 of Article 235 of the CrPA. The prohibition derives from Article 29 of the Constitution. Such is precisely the goal that the legislature wanted to attain by the mentioned provisions. Therefore, the statutory provisions that serve as the basis of investigative measures have to be interpreted with the help of teleological reduction.[36] Such enables their constitutionally consistent interpretation. Even though such is not explicitly written in the statutory provisions, Article 29 of the Constitution requires an interpretation of the mentioned provisions of the CrPA according to which a court order authorising an investigative measure against an attorney may not be issued with the aim of finding information that is substantively connected with the confidential relationship between a defendant and an attorney acting as his or her defence attorney. Thus, if an attorney may not be questioned regarding that which a defendant entrusted him or her with as his or her defence attorney, and if an attorney has to be ensured completely unmonitored communication with a defendant precisely in order to protect their defence attorney-defendant relationship, it would be untenable to deem that the legislature wanted to ensure observance of these safeguards expressly determined with regard to the right enshrined in Article 29 of the Constitution through the mentioned prohibition and simultaneously hollow out these very same safeguards by allowing the relevant data to be obtained through the search of an attorney’s office (as it did not expressly exclude such possibility). Even if during an investigative measure investigators discover such data by chance, they may not seize them. Such an interpretation of the statute, which is permitted by the text of the mentioned provisions of the CrPA with respect to their purpose and in accordance with the established methods of interpreting statutes, prevents the hollowing out of the fundamental procedural safeguards in criminal proceedings that ensure individuals a fair trial. As a general rule, the execution of investigative measures against an attorney is thus permitted, except with regard to data that have a direct connection with his or her function as a defence attorney in criminal proceedings. In light of the above, the only possible interpretation of the CrPA in conformity with the Constitution is an interpretation according to which it does not allow any interferences with this segment of the privacy of attorneys. The challenged statutory regulation is not inconsistent with the Constitution merely because it does not explicitly determine such. However, it is at the legislature’s discretion to determine this explicitly in the future in order to ensure greater clarity of the statutory regulation.
 
The Necessity of the Interferences with the Privacy of Attorneys
 
43. The Constitutional Court has already emphasised that human dignity, personality rights, and an individual’s privacy and safety (Articles 34 through 38 of the Constitution) are rights that are accorded a special position among human rights.[37] The competences of state authorities in the field of criminal law are such that they frequently interfere with these human rights and fundamental freedoms. Such interferences, even provided they pursue a constitutionally admissible aim, can have extremely serious consequences already at a general level. Consequently, the ensured level of protection has to be higher as well. The rights that are coincidentally affected by investigative measures carried out against an attorney as a result of the attorney’s profession are the ones that originate in the confidential attorney-client relationship. Such an interference is thus even more serious than in general, and requires that the review of its necessity be particularly strict. Protection must also be adapted to such.
 
44. Necessity as a condition for the admissibility of an interference follows from the general test of proportionality (Article 2 of the Constitution) that every interference must pass, and, with regard to communication privacy, also from an express constitutional provision (the second paragraph of Article 37 of the Constitution). An interference is necessary if the pursued aim can only be attained in the manner determined by statute and the possibility of attaining the aim exists neither without the interference nor through less severe means that would entail a lesser interference with the protected constitutional value – when there namely does not exist any less invasive, yet equally appropriate and effective means to attain the aim. From this perspective, two conditions have to be fulfilled already at the outset to enable the authorisation of searches of premises and searches of electronic devices as well as seizures of documents and electronic data storage media. The measures have to aim at obtaining (1) information or data that are directly connected to specific criminal proceedings and (2) such information or data can be obtained precisely from an attorney. If it is evident that they could be obtained outside the attorney’s office, the interference with the attorney’s privacy is not necessary. The AttA contains no special provisions regarding the first condition. The first paragraph of Article 214 of the CrPA permits a search of the premises of a defendant as well as of other persons on the basis of the existence of reasonable grounds for the suspicion that a particular criminal offence has been committed – this is namely how the mentioned provision has to be interpreted. The first paragraph of Article 219a of the CrPA contains the same provision concerning searches of electronic devices. With regard to the second condition, the first paragraph of Article 214 of the CrPA determines that a search may be carried out if it is likely that during the search evidence of the criminal offence or objects that are important for the criminal proceedings will be found, or, as is determined by the first paragraph of Article 219a of the CrPA regarding electronic devices, if it is likely that an electronic device contains data that will enable the discovery of evidence of the criminal offence or objects that are important for the criminal proceedings or if they can be used as evidence in criminal proceedings. In instances where such likelihood has been established, an interference with the privacy of attorneys is necessary if it is evident why the information or data can be obtained precisely by means of a search of an attorney’s office and why other investigative measures do not suffice for the collection thereof. Due to the importance of the constitutional values protected by the privacy of attorneys, for reasons of clarity this element should be explicitly determined already in the statutory regulation of investigative measures. It has to be considered already when an interference is authorised by a court. Unless such necessity is established, the conditions for issuing a court order on the basis of which an interference is to be carried out are not fulfilled. The court order must also contain a statement of reasons regarding the necessity of the interference, namely reasoning as to why the desired data cannot be obtained without interfering with the privacy of attorneys.[38] 
 
45. Even after it has been established that an interference with the privacy of attorneys pursues a constitutionally admissible aim and that it is also necessary in the sense that the relevant information or data have to be obtained precisely from an attorney, the condition of necessity is not yet satisfied. The statutory regulation must ensure that every individual interference with the privacy of attorneys does not exceed what is absolutely necessary. The statutory basis for issuing a prior court order for the investigative measures that are the subject of this Decision comprises the following: (a) the first paragraph of Article 215 of the CrPA and the first paragraph of Article 8 of the AttA as regards searches of premises, and (b) the second paragraph of Article 219a of the CrPA as regards searches of electronic devices.[39] In this regard, the first paragraph of Article 8 of the AttA appropriately determines that the search of an attorney's office may only be authorised with regard to files and objects that are expressly listed in the search order. At the same time, it also determines that the confidentiality of other documents and objects must not be infringed. The third indent of the third paragraph of Article 219a of the CrPA requires that a request for an order to search electronic devices and the order itself must further contain a description of the information that is sought. According to the seventh paragraph of Article 219a and the sixth paragraph of Article 223a of the CrPA, searches and seizures have to be executed in a manner that interferes to the least extent possible with the rights of persons who are not defendants, that protects the secrecy and confidentiality of the information, and that does not cause disproportionate damage. With regard to searches of premises and the possibility to seize documents or objects connected therewith, the legislature thus acknowledged at a general level that it has to prohibit interferences with the privacy of attorneys that are not covered by a court order. However, when regulating searches of electronic devices, the legislature evidently did not envisage the possibility of searching an attorney’s electronic devices. While it considered the general principle that interferences with the rights of other persons must be proportionate in the seventh paragraph of Article 219a and the sixth paragraph of Article 223a of the CrPA, these provisions cannot ensure that there will be no interferences with an attorney’s electronic devices in instances where an interference is inadmissible already with regard to its aim. In such instances, it is precisely the police, to whom investigating judges as a general rule delegate the execution of investigative measures, who must not access such data and information.[40] The statutory provisions that, according to the Government, require the police to exhibit the utmost restraint and discretion when investigating cannot effect such. The police perform the function of discovering perpetrators of criminal offences and are naturally interested in a certain outcome of the investigation. Therefore, if police officers have a chance to access (even if only for a moment) data whose seizure it may subsequently become clear was not even admissible to attain the purpose of the search, it will no longer be possible to achieve effective protection of the human right to privacy of attorneys.
 
46. It is further questionable if a search of an electronic device that is carried out by the police in all stages and without any limitations can even be restricted to a necessary interference with the privacy of attorneys. The characteristics of electronic devices have to be considered due to the fact that the seizure of, for example, an attorney’s computer (desktop or laptop) or the server of an attorney’s office can effectively entail the seizure of the entire office of the attorney. In addition, it is precisely the technical characteristics of electronic devices that enable very quick insight into extremely large quantities of potentially very sensitive data.[41] The review of such an electronic device in its entirety, in order to find the data that may be accessed on the basis of the court order, would also entail an interference with the privacy of attorneys in its entirety, which would not only significantly exceed the scope of the interference authorised by the court order, but, quite clearly, could not satisfy the condition of the necessity of the interference. The position of the Government that this kind of conduct by the police cannot be limited in advance is therefore constitutionally unacceptable.  
 
47. The above entails that on the basis of the challenged statutory regulation investigators may review practically unlimited amounts of documents and (electronic) data, as well as seize documents and electronic storage media at will. The attorney and the representative of the BAS may express their objection to a review or seizure and achieve that their objection is recorded in the minutes of the investigative measure. They cannot, however, achieve that such measures are adequately limited or that the decision regarding such is transferred to an independent and impartial body. The power to review data or seize documents granted to investigators is, on the contrary, extremely broad and may even encompass data or documents that are not listed in the court order authorising the investigative measure. Insofar as an investigative measure may be indirectly “challenged” for having been executed too broadly (e.g. through a request for the exclusion of evidence or legal remedies against a judgment of conviction), such option is limited to the parties to the criminal proceedings, and at the same time it is also not sufficiently effective, as the consequences of an invasion of the privacy of attorneys that has already taken place are by their very nature irreversible.
 
48. When what is at issue is the fact that the statutory regulation must ensure that every individual interference with the privacy of attorneys will not exceed what is absolutely necessary, the particularities of the privacy of attorneys must thus be addressed. As attorneys’ offices (and other equally protected premises, provided they are linked to the practise of the profession of an attorney) and attorneys’ electronic devices are where the confidential information covered by the privacy of attorneys is concentrated, the nature of the matter requires special regulation of the investigation thereof in order to satisfy the constitutional requirement according to which in each individual instance the necessity of an interference must be established. In instances of justifiable searches for a single document or an individual item of data "hidden" in an extensive amount of documentation in paper form or in electronic devices in an attorney’s possession, it is logical that the law must also precisely regulate the execution of an interference with the privacy of attorneys that has been appropriately ordered by a court. Otherwise, interferences with the privacy of attorneys may arise that have no connection to the criminal proceedings regarding the criminal offence under investigation, or even interferences regarding which there exists no constitutionally admissible aim. The latter type of interferences cannot be allowed at all, while, from the perspective of necessity, the former can only be allowed if there does not exist any less invasive measure that could prevent such interferences yet still enable the police to review and collect data or information that are justifiably sought for the purpose of individual criminal proceedings. A comparative review of the regulations in some foreign systems,[42] as well as a precise study of the judgments of the ECtHR, which has already decided on the admissibility of interferences with the privacy of attorneys protected by Article 8 of the ECHR,[43] show that there exist less invasive measures. Consequently, interferences with the privacy of attorneys as broad and extensive as those allowed by the challenged regulation are constitutionally inadmissible.
 
A Less Invasive Interference with the Privacy of Attorneys
 
49. There are in fact two less invasive measures that would allow interferences with the privacy of attorneys only in constitutionally admissible instances and when absolutely necessary. The first is the presence of a representative of the BAS at searches of attorneys’ offices. As follows from the second paragraph of Article 8 of the AttA, such was also introduced by the legislature. The representative of the BAS is also an attorney. Therefore, he or she has the necessary knowledge and skills to recognise the privacy of attorneys and to intervene to protect it. This statutory regulation is thus properly in place. However, the legislature only provided for the presence of the representative of the BAS at searches of premises. It failed to regulate the second measure that has to be available to both an attorney whose premises or electronic devices are being searched and a representative of the BAS during the execution of an investigative measure. It is only the possibility to object to the review of certain data in order to protect the privacy of attorneys – due to the fact that the investigative measure at issue, in light of its aim and necessity, does not justify an interference with such privacy – and the possibility to achieve that such data could be excluded from the scope of the interference with the privacy of attorneys that transform the representative of the BAS from a witness into the active player that he or she is intended to be. As is evident from the minutes of the searches of premises and seizures of objects and electronic devices that were enclosed with the constitutional complaint, on the basis of the legislation in force, both the attorney and the representative of the BAS can merely achieve that their objections are recorded in the minutes of a search of premises and a seizure of documents and objects. The decision on the merits of such objections is reserved for the police. In this regard, the statutory regulation is clearly deficient, and one must agree with the petitioner that the existing statutory provisions cannot be interpreted in a constitutionally consistent manner, as they do not regulate this issue at all. It is the lack of such provisions that is unconstitutional. While data covered by the privacy of attorneys that are not the target of the order authorising the investigative measure will continue to be accessed also within the framework of the less invasive measure, it will not be the police who are to review them, but an independent person who is to decide on their admissibility in an impartial manner. The less invasive measure that still achieves the constitutionally admissible aim is namely still a measure that interferes with the privacy of attorneys. Therefore, such measure has to be determined by law, which is ensured by neither the AttA nor the CrPA.
 
50. As the statutory regulation does not even ensure the presence [of the attorney or a representative of the BAS] during the execution of the investigative measures in a consistent manner, attention must also be drawn to this aspect. The current regulation ensures the attorney’s presence only in instances of searches of premises and when electronic devices are seized or secured,[44] and the presence of a representative of the BAS only in instances of searches of attorneys’ offices (with regard to which, the term ‘attorneys’ offices’ has to be interpreted in a constitutionally consistent manner as defined by the Constitutional Court in Paragraph 31 of the reasoning of this Decision).[45] Thus, neither are ensured the possibility to attend the review of the content of electronic devices,[46] and the representative of the BAS may not even be present during the seizure and securing of electronic devices.
 
51. In order to be able to effectively protect the privacy of attorneys, the attorney and the representative of the BAS must, in light of the above, have the possibility to object that the state seized certain data, documents, or objects. Once they are guaranteed the possibility to attend investigative measures and thus to be acquainted with all stages of their execution, they also have to be given the possibility to prevent interferences with the privacy of attorneys that are not necessary or that are even inadmissible already with regard to their aim. Otherwise, the revealing of information entailing an interference with the privacy of attorneys can result in irreparable consequences.[47] The general prohibition against revealing [information in] confidential documents and objects contained in the first paragraph of Article 8 of the AttA is thus hollowed out at the stage of its implementation. The prohibition establishes a goal without also determining the procedural path that the parties could take to attain it. Without additional effective procedural safeguards it is only illusory, and it does not in fact protect the privacy of attorneys, their communication, and therefore the privacy of their clients. As all investigative measures that interfere with the privacy of attorneys can lead to interferences with a confidential relationship, the representative of the BAS must have a possibility to ensure effective legal protection (inter alia also when electronic data storage media are being searched).[48] Only in such a manner can the less invasive measure uphold the necessity of the interference with the privacy of attorneys and ensure that investigators remain within the bounds of the court order, which must already of itself respect the constitutional limits of admissible interferences with the privacy of attorneys.
 
* * *
52. In light of the above, Articles 35, 36, and 37 of the Constitution, insofar as they protect the privacy of attorneys, require special regulation of the execution of a court order authorising an investigative measure against an attorney that by its nature entails a significantly less invasive measure than a non-selective interference with the privacy of attorneys with the aim of finding and seizing individual documents and data. However, the statutory regulation of investigative measures does not regulate such absolutely necessary safeguards when these measures are executed against an attorney and thus it allows that investigative authorities acquaint themselves with all data, namely data that they may access on the basis of the order authorising the search despite the fact that knowledge of their content is not absolutely necessary to attain the aim of the search, even data to which access is not justified by a constitutionally admissible aim. Therefore, the challenged parts of the CrPA and the AttA enable interferences with the privacy of attorneys that are not necessary (i.e. they enable excessive interferences), and, although interferences that are not justified by a constitutionally admissible aim are prohibited, enable such interferences during the execution of individual investigative measures. The legislature thus failed to ensure the protection that it should have ensured and consequently the challenged regulation is inconsistent with Article 35, the first paragraph of Article 36, and the first paragraph of Article 37 of the Constitution.
 
 
B – V
 
Review of the Constitutionality of the Statutory Regulation from the Perspective of the Right to Judicial Protection and the Right to a Legal Remedy
 
53. The petitioner alleges that it has no specific legal remedy against orders authorising a search of premises or a search of an electronic device, and an attorney who is not him- or herself a party to proceedings may only resort to other legal remedies that are generally at the disposal of parties to criminal proceedings only to a limited extent. Furthermore, the petitioner allegedly has no legal remedy against seizures of objects. Therefore, the challenged regulation is allegedly inconsistent with the right to judicial protection and the right to an effective legal remedy (the first paragraph of Article 23 and Article 25 of the Constitution, and Articles 6 and 13 of the ECHR).
 
54. A court order authorising a search of premises and a court order authorising a search of an electronic device (which may be issued as a separate court order or already contained in the order authorising a search of premises[49]) are acts of the judicial branch of power. By their very nature they are acts of surprise and thus the person whose premises (or devices) they allow to be searched cannot be informed of such acts in advance and cannot have at his or her disposal legal remedies against such acts before they become enforceable. Otherwise, they could not fulfil their purpose. Consequently, the affected persons must be ensured the possibility of their subsequent supervision, thus enabling them to fully verify the constitutionality or legality of such acts of the judicial branch of power from a factual as well as legal perspective. The petitioner alleges that it has no effective legal remedy against such acts and legally qualifies this statement as an allegation of an interference with the first paragraph of Article 23 and Article 25 of the Constitution. As the acts in question are acts of the judicial branch of power and due to the nature of the matter a subsequent effective legal remedy has to be provided against such acts, the Constitutional Court reviewed such statements of the petitioner from the perspective of the human right to a legal remedy (Article 25 of the Constitution). As decisions on seizures of documents, case files, or electronic devices can, according to the regulation in force, be made by the police when the investigating judge delegates the execution of an investigative measure to them, the Constitutional Court reviewed such from the perspective of the right to judicial protection determined by the first paragraph of Article 23 of the Constitution. As the provisions of the ECHR invoked by the petitioner do not ensure a higher level of protection than the Constitution, the Constitutional Court also reviewed this alleged inconsistency from the perspective of the Constitution.
 
55. Article 25 of the Constitution guarantees everyone the right to an appeal or to any other legal remedy against the decisions of courts and other state authorities, local community authorities, and bearers of public authority by which their rights, duties, or legal interests are determined. The mentioned constitutional provision guarantees observance of the principle of hierarchy in judicial decision-making. The essential content of this principle lies in the power of a second instance court to review the decisions of a first instance court with regard to all questions that are important for deciding on a right or obligation, regardless of whether they are of a factual or legal nature.[50] Such entails that Article 25 of the Constitution guarantees a decision on the merits regarding the correctness of an authoritative first instance decision, whereby the appellate court has to substantively review whether the statements in the appeal are well founded.[51] The purpose of Article 25 of the Constitution is to enable individuals to effectively protect their legal interests by lodging a legal remedy, which entails that the appellate court must consider an appeal, provided such is admissible, on the merits and also adopt a position in the reasoning of the decision regarding those statements in the appeal that are of essential importance for a decision.[52] Effectiveness also entails that, as a general rule, such legal remedy must have suspensive effect. Deviations from this rule are only allowed if it is possible, following the enforcement of the challenged decision and a successful appeal, to restore the state of the facts regarding the appellant that existed before the decision’s execution.[53] In accordance with the first paragraph of Article 23 of the Constitution, decisions regarding an individual’s rights, duties, and any charges brought against him or her shall be made by an independent, impartial court constituted by law. In this regard, it would not be superfluous to recall that the third paragraph of Article 120 of the Constitution already requires that judicial protection be guaranteed against decisions and actions of administrative authorities – in the case at issue, the police. Such is, of course, ensured in accordance with the first paragraph of Article 23 of the Constitution.   
 
56. An attorney against whom investigative measures are being carried out and who is also a defendant may challenge an order authorising a search of premises (or a seizure of an electronic device) with the same legal remedies that are at the disposal of every defendant in criminal proceedings. In accordance with the second paragraph of Article 83 and Article 285d of the CrPA, as a defendant he or she may also propose the exclusion of evidence obtained through investigative measures and the court must decide thereon. He or she may further invoke the unconstitutionality or illegality of an order by means of an objection against the charges in accordance with Article 274 of the CrPA, and he or she may in particular invoke them in an appeal against a first instance judgment in criminal proceedings (the first paragraph of Article 366 in conjunction with the first paragraph of Article 367 of the CrPA).[54] However, all of these legal remedies inter alia share the common characteristic that they can allow irreversible interferences with the privacy of attorneys, whereby an attorney is not entitled to invoke the potential violations resulting from such with regard to his or her clients. This is even truer in instances when an interference should not have occurred at all and it could have been prevented by means of an effective legal remedy.
 
57. If the purpose of a legal remedy is the effective protection of the privacy of attorneys, it is clear that the relevant legal remedy must have suspensive effect: once privacy has been “breached” or data have been reviewed, not even a successful appeal can restore the state that existed before the interference. The statutory regulation does not accord any legal remedies against an order authorising an investigative measure to an attorney who is not a defendant or to a representative of the BAS.[55] In both instances, the lack of an effective legal remedy entails an interference with the right determined by Article 25 of the Constitution. Even if the investigative measure were performed by an investigating judge who also decided on the seizure of documents, case files, or electronic devices, the fact that no legal remedy against his or her decision is provided would also entail an interference with the right determined by Article 25 of the Constitution. However, if the investigating judge delegates the execution of an investigative measure to the police and thus they are also the ones who decide on the seizure of objects, the fact that the statutory regulation does not determine judicial control of their decisions constitutes an interference already with the right to judicial protection determined by the first paragraph of Article 23 of the Constitution. As already stated, these interferences may only be admissible if they pursue a constitutionally admissible aim (the third paragraph of Article 15 of the Constitution) and if they are consistent with the principles of a state governed by the rule of law (Article 2 of the Constitution), more precisely, with the principle that prohibits excessive interferences by the state (the general principle of proportionality). The Constitutional Court could not establish a constitutionally admissible aim for these interferences, which in fact entail deprivation of the right to an effective appeal that would ensure a review by a higher instance court of court orders that are the basis for interferences with the privacy of attorneys or judicial control of police decisions regarding the seizure of documents, case files, and electronic devices. Already due to such, the legislature’s omission is inconsistent with Article 25 of the Constitution and, in the relevant part, also with the first paragraph of Article 23 of the Constitution.
 
 
B – VI
 
Established Unconstitutionalities of the Statutory Regulation
 
58. In light of the above, the AttA and the CrPA are inconsistent with Article 35, the first paragraph of Article 36, and the first paragraph of Article 37 of the Constitution, as they do not regulate the specificities of investigative measures against attorneys in a manner that would prevent inadmissible interferences with the privacy of attorneys. As they do not provide attorneys or the representative of the BAS with an effective legal remedy against court orders that are the basis for the execution of investigative measures and against court decisions regarding the extent of data that may be reviewed, seized, and searched for in an attorney’s office (which have not yet been introduced into the legal order even though such are required by the Constitution), they are further inconsistent with Article 25 of the Constitution. As the challenged legislation does not enable judicial control of police decisions regarding the review, seizure, and search of such data, it is further inconsistent with the first paragraph of Article 23 of the Constitution. The legislation under review thus failed to regulate issues that it should have regulated in accordance with the constitutional requirements. Therefore, the Constitutional Court adopted a declaratory decision in accordance with the first paragraph of Article 48 of the CCA (Point 1 of the operative provisions) and required the legislature to remedy the established unconstitutionality within the usual deadline (Point 2 of the operative provisions of this Decision). The decision as to in which Act it will remedy the established unconstitutionality falls within the legislature’s discretion. As this review of the alleged unconstitutionality is limited to three investigative measures, the legislature should note that the constitutional requirements as to the special protection of the privacy of attorneys might also affect the constitutionality of the regulation of other investigative measures. 
 
 
B – VII
 
The Manner of Implementation of the Decision on the Established Unconstitutionalities of the AttA and the CrPA
 
59. On the one hand, the effective prosecution of criminal offences, which is crucial for the protection of public order and numerous human rights of the victims of crime, has to be ensured until the established unconstitutionality is remedied. Such entails that until the unconstitutionality is remedied, the execution of searches of premises, searches of electronic devices, and seizures of relevant objects and data from attorneys must remain admissible. On the other hand, further inadmissible and irreversible interferences with the privacy of attorneys through the execution of investigative measures must be prevented, regarding which neither attorneys nor representatives of the BAS have at their disposal an effective legal remedy, and to some extent not even judicial protection, against such interferences with such highly constitutionally protected values. In order to protect human rights until the established unconstitutionality is remedied, the Constitutional Court, on the basis of the second paragraph of Article 40 of the CCA, thus determined the manner of implementation of its Decision (Points 3 and 4 of the operative provisions of this Decision). Thereby it established the minimum safeguards for the regulation of investigative measures carried out against an attorney.
 
60. Until the established unconstitutionalities are remedied, investigative measures against attorneys shall be ordered and executed in the following manner: (1) the attorney whose premises or electronic devices are to be searched or whose objects are to be seized, the attorney representing him or her (hereinafter referred to as the attorney), and a representative of the BAS have to be informed of all investigative measures that are to be executed against the attorney;[56] to this end, the attorney has the right, and the representative of the BAS the duty to attend their execution; the investigative measure may not be performed without the presence of the representative of the BAS; (2) during the execution of an investigative measure, the attorney and the representative of the BAS have the right to file an oral request for protection against the review or disclosure of data protected by the privacy of attorneys; (3) if the attorney or the representative of the BAS request that individual documents or files not be reviewed, such document or file must be sealed immediately; no one may interfere with the integrity of the sealed data; (4) immediately after the completion of the investigative measure, the police (or the investigating judge, if he or she performed the investigative measure) must present the sealed documents together with the minutes documenting their seizure to a judge of the competent district court who is not and will not be in charge of the judicial investigation in the criminal proceedings as part of which, or with regard to the institution of which, the court order that was the basis for the investigative measure had been issued; (5) the judge of the competent district court has the right to review the content of the documents that were seized and sealed, and, if he or she deems it necessary, also the case file of the criminal case at issue, and has to decide on the seizure of the documents in the shortest possible time; (6) before deciding, the judge shall question the attorney whose premises were searched, the representative of the BAS, and the person who carried out the investigative measure and, if he or she deems it necessary, the competent state prosecutor; the judge may open the sealed documents in the presence of these persons, however, in addition to the judge, only the attorney and the representative of the BAS may review it; (7) if the judge finds that the protection of the privacy of attorneys forbids the seizure of the document, he or she shall immediately order that it be returned to the attorney and that the relevant part of the minutes regarding its seizure be destroyed; (8) if the judge finds that the document may be seized, he or she decides on its seizure by an order containing a statement of reasons; (9) the attorney and the representative of the BAS may lodge an appeal against the order mentioned in the preceding point within a deadline of three days of it being served; (10) the appeal delays the seizure; until the appeal is decided, the sealed document shall remain in the keeping of the judge who allowed its seizure.
 
61. The rules determined in the preceding Paragraph of the reasoning of this Decision apply mutatis mutandis to the investigative measure of a search of an electronic device, subject to the different regulation specified in this paragraph, namely: (1) if the attorney or representative of the BAS object to the review of an electronic device, the investigators may only secure[57] its content, without reviewing it; in such instances, the data storage medium containing the secured content shall be sealed; (2) in order to decide on the review and seizure of the data, a judge may review the content of the electronic device with the assistance of a court-appointed expert; (3) if the judge appoints an expert, he or she shall perform his or her work on the premises of the court and in the presence of the judge, the attorney, and the representative of the BAS, provided that they respond to the judge’s invitation, and the investigating judge or other persons charged with executing the investigative measure; (4) following the review of the content of the electronic device, the judge shall carry out questioning by means of mutatis mutandis application of point (6) of the preceding Paragraph of the reasoning of this Decision and decide which data contained in the electronic device are to be handed over to the investigators and in what manner, as well as which data are to be returned to the attorney or, if a copy of the [content of the] storage medium has been made to secure data, which data are to be destroyed immediately.
 
62. The appeal referred to in Paragraph 60 of the reasoning of this Decision is to be decided by the competent higher court in accordance with Point 4 of the operative provisions of this Decision. In the appeal, the attorney and the representative of the BAS who objected to the review of a document or electronic device and their seizure in order to protect the privacy of attorneys may also invoke the unconstitutionality or illegality of the court order authorising the investigative act.
 
63. All persons who during investigative measures or in legal remedy proceedings acquaint themselves in any manner with the content of data that has been determined to be protected by the privacy of attorneys, and thus investigators are not entitled to review or seize it, have to protect such data as confidential.
 
64. On the basis of the manner of implementation determined in Points 3 and 4 of the operative provisions of this Decision, it shall be ensured that, until the legislature remedies the established unconstitutionalities, interferences with the privacy of attorneys on the basis of a court order authorising investigative measures will only take place when and to the extent to which such are admissible with regard to the aim pursued by the interference and only when and to the extent to which such is absolutely necessary for the institution or course of criminal proceedings. It is essential that a judge has the final say on whether it is admissible to review and seize documents or electronic devices containing data and information protected by the privacy of attorneys. The guarantee of a court decision is a guarantee intended to ensure an impartial decision in a conflict between the investigators and the attorney at issue or the representative of the BAS that appropriately respects, on the one hand, the interests of individual criminal proceedings that are constitutionally protected, and, on the other hand, the interest in protecting the privacy of attorneys, which enjoys special constitutional protection grounded in the fact that an attorney’s right to privacy also entails by its very nature his or her duty to protect rights, including the human rights of his or her clients. Moreover, an appeal has been introduced as an effective legal remedy intended to ensure the review of court decisions authorising interferences with the privacy of attorneys by higher instance courts or judicial control of police decisions regarding the seizure of documents and devices. An appeal has been introduced against the court order, which must respect the constitutional restrictions on authorising investigative measures in accordance with the positions from this Decision, as well as against a decision of the competent judge that investigators are entitled to review an individual document or data and to seize them. 
 
 
B – VIII
 
Decision on the Constitutional Complaint
 
65. The constitutional complaint against three Ljubljana District Court orders (listed in Point 5 of the operative provisions of this Decision) that refer to investigative measures against attorneys who are not suspected of having committed a criminal offence has been accepted for consideration. The investigating judge issued the first order for a search of the premises at the business address of the law firm Odvetniška družba Jernejčič – Peternelj in partnerji (hereinafter referred to as the Jernejčič law firm), at the address of the apartment of the attorney Andrej Jernejčič, and for a search of his personal vehicle. The order authorised the investigators to seize and review certain objects and documents, namely documents in paper form as well as electronic devices. The investigating judge issued the second order for a search of the premises at the business address of the law office Odvetniška pisarna Vladimir Bilić (hereinafter referred to as the Bilić law office), at the address of the apartment of the attorney Vladimir Bilić, and for a search of his personal vehicle. The order authorised the investigators to seize and review certain objects and documents, namely documents in paper form as well as electronic devices. The third order was issued for a search of the premises at the business address and the apartment of the attorney Alja Markovič Čas, and for a search of her personal vehicle. The order authorised the investigators to seize and review certain objects and documents, namely documents in paper form as well as electronic devices.
 
66. Following the acceptance of the constitutional complaint, the BAS extended the constitutional complaint so as to also include the new court orders (listed in Point 8 of the operative provisions of this Decision), by which the investigating judge ordered that all of the electronic data seized from the Bilić law office and from the attorney Bilić be reviewed by professionally trained police staff within the determined period of time and extended such time period. The first Ljubljana District Court Order was in force until 8 December 2014, and the second until 12 March 2015. The period during which the orders by which the investigating judge ordered the electronic data storage media seized from the attorney Vladimir Bilić to be unsealed and searched thus expired. Consequently, no further investigative measures may be carried out on the basis of these orders. Such would only be possible on the basis of a new order of an investigating judge, which, however, could not be issued due to Constitutional Court Order No. Up-218/14, dated 11 December 2014. As the orders have no further legal effects, it has to be deemed that the complainant (i.e. the BAS) no longer has a legal interest in obtaining a Constitutional Court decision regarding these orders. The Constitutional Court therefore rejected the constitutional complaint insofar as it refers to the two mentioned orders on the basis of the second indent of the first paragraph of Article 55b of the CCA (Point 8 of the operative provisions).
 
67. The Constitutional Court reviewed the following police documents: minutes No. D2582398 K 1454072, dated 20 November 2013, regarding the search of the apartment of the attorney Andrej Jernejčič, confirming the seizure of two of the attorney’s files containing different documents; confirmation of the entry into an apartment and other premises No. D2582398 K 1454072, dated 20 November 2013, regarding the car of the attorney Andrej Jernejčič; minutes No. D2582398 K 1454072, dated 20 November 2013, regarding the search of the business premises of the Jernejčič law firm, confirming the seizure of an attorney’s file and data from a personal computer; minutes regarding the securing of data from electronic devices No. D2582398/K1454072 (227-25), dated 20 November 2013, confirming that the content of a personal computer of the Jernejčič law firm was copied onto a hard drive belonging to the police and that the drive was sealed; minutes No. D2582398/K1454072 (227-23), dated 20 November 2013, regarding the search of the apartment and the car of the attorney Vladimir Bilić, confirming the seizure and sealing of the personal computer of attorney Vladimir Bilić; minutes No. D2582398/K1454072 (227/71), dated 20 November 2013, regarding the search of the business premises of the Bilić law office, confirming the seizure of eleven items of documentation in paper form (binders or spiral-bound documents) and the seizure of certain data that the investigators copied onto two DVDs and a hard drive; minutes No. 503/2576991/D2582398/K1454072/6622491, dated 20 November 2013, regarding the securing of data from an electronic device, confirming that the investigators copied the content of the hard drive of a personal computer of the Bilić law office and some data from the server of the Bilić law office onto their own data carriers (the copies created were sealed); minutes No. D2582398/K1454072 (227-25)/6707497, dated 20 January 2014, confirming that investigators copied the content of the hard drive of a laptop of attorney Vladimir Bilić onto their own hard drive and sealed the copy; minutes No. D2582398/K1454072-23, dated 20 November 2013, regarding the search of the apartment of the attorney Alja Markovič Čas, minutes No. D2582398/K1454072-23, dated 20 November 2013, regarding the search of the car of the attorney Alja Markovič Čas and minutes No. D2582398/K 1454072-23, dated 20 November 2013, regarding the search of the business premises of the attorney Alja Markovič Čas, confirming the seizure of various documents in paper form, a personal computer, a laptop, an external drive, and the fact that the investigators copied data from the mentioned electronic devices or data carriers onto a police hard drive; minutes No. 503/2178880/D2582398/K1454072/662240, dated 20 November 2013, regarding the securing of data from an electronic device, confirming that the investigators copied the content of a personal computer, a laptop, and an external drive of the attorney Alja Markovič Čas onto a police hard drive, and sealed such.
 
68. The listed documents show which persons attended the individual investigative measures and what objections they raised against the investigative measures. The representative of the BAS did not attend any of the searches of the complainants’ apartments or cars. He did, however, attend all searches of the attorneys’ offices and all instances where data from electronic devices were secured, except for the securing of the content of the laptop of the attorney Vladimir Bilić. All complainants attended the searches of the attorneys’ offices in which they practise the profession of attorney or such attendance was possible (but they chose not to be present during the entire duration of the investigative measure). The complainants were further provided the possibility of delaying the commencement of the investigative measure until the arrival of their attorney. Attorneys representing the complainants attended the investigative measures executed against the complainants, except as regards the search of the business premises of the Jernejčič law firm, the apartment and car of the attorney Andrej Jernejčič, and the securing of the data from the personal computer of the Jernejčič law firm, as the attorney Andrej Jernejčič did not request that an attorney attend the mentioned investigative measures as his representative.
 
69. During the securing of the data from electronic devices, the attorney Andrej Jernejčič requested that the copied data be sealed until a court decides on the legality of the search. He objected to the search, as he was not suspected of having committed a criminal offence, thereby stressing the violation of the confidentiality of the data regarding his clients who where not involved in the investigation. During the search of the business premises of the Bilić law office, the representative of the BAS opposed the execution of the search of the premises, alleging that such should have been carried out against the relevant clients. Attorney Vladimir Bilić added that a great majority of the documents contained in the Velenje Coal Mine case file did not refer to the purpose of the search of the premises, which should be taken into account when reviewing its content. During the seizure of the laptop of the attorney Vladimir Bilić, his attorney drew attention to the fact that the laptop had been used in practising the profession of attorney, which should be taken into account when reviewing it. Before the content of the hard drive of the laptop of the attorney Vladimir Bilić had been copied, the attorney Vladimir Bilić and his attorney objected to the copying of the entire content of the hard drive, as it allegedly also contained data that referred to other clients of the attorney Vladimir Bilić or that concerned his private life. The mere transfer of these data onto other storage media was allegedly inadmissible. In their opinion, a representative of the BAS should have also attended the copying of the data. Attorney Vladimir Bilić and his attorney further strongly objected to the possibility that the police could subsequently review the copied data by themselves, as a review of the data could allegedly only be conducted in their presence and the presence of a representative of the BAS, and should be limited to the acts and the persons named in the order for the search of the premises. Therefore, attorney Vladimir Bilić and his attorney required that the police drive containing the copied data be sealed in order to ensure its integrity, and that it be subsequently treated in accordance with the CrPA, the AttA, and the Constitution. During the search of the attorney’s office of the attorney Alja Markovič Čas, her attorney required that the seized documents in paper form be placed in an envelope and sealed and that they should not be reviewed. The seized documents allegedly referred to the confidential relationship between the attorney Alja Markovič Čas and one of her clients. The investigators did not grant her request that the documents be placed in a separate envelope. With regard to the securing of the data from the electronic devices of the attorney Alja Markovič Čas, her attorney emphasised that the attorney Alja Markovič Čas only agreed that the data be secured, but not that they be reviewed, and thus required the preparation of a new consent form.
 
70. The Constitutional Court suspended the execution of the challenged Ljubljana District Court orders and determined the manner of implementation of its decision by prohibiting any further investigative measures in connection with the seizures conducted on the basis of the challenged orders until the final decision of the Constitutional Court. The Constitutional Court emphasised that it also prohibited investigative measures on the basis of Ljubljana District Court Order [No. III Kpd 6446/2014], dated 8 October 2014, and instructed the National Bureau of Investigation to halt further investigative measures on the basis of the mentioned court order and to reseal the electronic data carriers that have been unsealed, in the presence of a representative of the BAS and the attorney whose electronic data carriers have been unsealed; potential copies of the data created when these were unsealed were to be destroyed.
 
Violations of the Privacy of Attorneys
 
71. The complainants assert inter alia that searches of attorneys’ offices may only be allowed in exceptional circumstances, and even then access to attorneys’ documentation may only be allowed if such is consented to by all of their clients whom the documentation refers to. The complainants thus in fact assert that searches of attorneys’ offices are in principle prohibited and only admissible in exceptional instances. As follows from Paragraph 40 of the reasoning of this Decision, the effective prevention, discovery, and prosecution of criminal offences, and the institution or course of criminal proceedings are constitutionally admissible aims for interferences with the human rights and fundamental freedoms of attorneys by means of investigative measures – regardless of whether the defendant is an attorney, a client thereof, or even any other person. Searches of attorneys’ offices (and searches of electronic devices in these offices) are admissible, unless a court order for an investigative measure is issued or an investigative measure is executed against an attorney representing a defendant in a pre-trial investigation or in criminal proceedings with regard to data concerning the confidential relationship between an attorney acting as a defence attorney and a defendant (Paragraph 41 of the reasoning of this Decision).
 
72. Although there exists a constitutionally admissible aim for investigative measures against attorneys, with the exception of data that refer to an attorney’s function as a defence attorney in criminal proceedings, the essential question in deciding on the justification of the alleged violations of human rights is whether the requirement of the necessity of the interference was satisfied. It is evident that the complainants (who are attorneys) have for the most part surrendered the documents and electronic devices demanded by the investigators, thus preventing to a certain degree even more extensive interferences with the privacy of attorneys. However, they concurrently substantively objected that the individual interferences with such were unjustified.
 
73. The Court agrees with the complainants’ statement that the representative of the BAS only attended the searches of the attorneys’ offices but not the searches of their apartments and cars. It follows from Paragraph 50 of the reasoning of this Decision that also a representative of the BAS must be provided the possibility to attend all stages of the execution of an investigative measure that interferes with the privacy of attorneys. The mandatory attendance of a representative of the BAS is the primary condition for preventing the disclosure of confidential documents, data, and objects that are not the admissible subject matter of the investigative measure authorised by an order. As is evident from Paragraph 68 of the reasoning of this Decision, this requirement was not completely satisfied. Such already prevented the effective protection of the privacy of attorneys in the relevant part, in particular from the perspective of an attorney’s clients.
 
74. In instances where a representative of the BAS was present and when either he or she or the attorney whose premises were being searched objected to an interference with the privacy of attorneys, such objections were not effective. It follows from Paragraphs 49 and 51 of the reasoning of this Decision that the challenged regulation, on the basis of which the challenged investigative measures were carried out, does not provide the attorney or the representative of the BAS with procedural tools that would enable them to effectively exercise their role as guardian of the privacy of attorneys. Such primarily entails that in light of the regulation currently in force the attorney and the representative of the BAS cannot raise objections that in the cases at issue the investigative measures inadmissibly encompassed data that were not the target of the search in a manner that would prevent the investigators from accessing the data until an impartial body decided thereon and prevent irreparable consequences as regards the privacy of attorneys. The unconstitutionality of the statutory regulation was also reflected in the execution of the investigative measures in the operations carried out on the basis of the challenged orders. As the Constitutional Court summarised in Paragraph 69 of the reasoning of this Decision, during the execution of the investigative measures the complainants raised objections regarding their scope, the seizures, and the review of the data. However, these objections neither halted the work of the investigators nor transferred, immediately and with suspensive effect, the competence to decide on the scope of the execution of the investigative measure to a judge. The investigators merely recorded the objections. The fact that they subsequently executed the intended investigative measures against the attorneys in their entirety leads to the conclusion that they de facto rejected the complainants’ objections, even when such was not expressly recorded in the minutes regarding the seizure of documents and electronic devices.[58] It was thus the police who by themselves decided which documents and electronic devices would be seized, and no judicial protection was provided against such decision. The seized objects, documents, and electronic data are thus still in the possession of the investigators, who were able to freely access them (especially the documents) until the decision of the Constitutional Court to suspend the execution of the order authorising the investigative measures. Thereby, they have already interfered with the privacy of attorneys in an irreversible manner, as data or the content of a confidential relationship cannot be “restored to the previous state” once it has been disclosed. Investigative measures against the complainants (who are attorneys) were undoubtedly carried out on the basis of an unconstitutional statutory regulation (Points 1 through 4 of the operative provisions of this Decision),[59] which lead to the described unconstitutional interferences with the privacy of attorneys (Article 35, the first paragraph of Article 36, and the first paragraph of Article 37 of the Constitution).
 
Violation of the Right to Judicial Protection and the Right to a Legal Remedy
 
75. The decision on the interference with the complainants’ privacy of attorneys was left entirely to the investigators, and not to a judge who would have impartially decided on the dispute between the attorneys or the representative of the BAS and the police officers conducting the investigative measures. Consequently, the complainants’ right determined by the first paragraph of Article 23 of the Constitution was violated. 
 
76. The complainants further alleged a violation of the right to a legal remedy determined by Article 25 of the Constitution, as they could not appeal against the order authorising the house search. Such allegation is also substantiated. The complainants, who were not suspected of criminal offences, could not avail themselves of any legal remedy against the order authorising the investigative measure or the manner of its execution. As the legislation does not provide for a review of the correctness of an order authorising an investigative measure and the correctness of its execution at the request of an attorney or representative of the BAS by a second instance court, the interference with the right to a legal remedy determined by Article 25 of the Constitution is unconstitutional (see Paragraph 57 of the reasoning of this Decision). Such resulted in a violation of the complainants’ right to a legal remedy also in the proceedings in which the constitutional complaint originated. A constitutional complaint against the challenged court orders is namely not a legal remedy through which the right determined by Article 25 of the Constitution is ensured, but a special legal remedy that may only be lodged after the appeal has been exhausted (the third paragraph of Article 160 of the Constitution and Article 51 of the CCA).
 
* * *
 
77. In light of the above, it has to be concluded that the human rights of the complainants determined by Article 35, the first paragraph of Article 36, the first paragraph of Article 37, and the first paragraph of Article 23 of the Constitution were violated in the execution of the investigative measures, which had an unconstitutional statutory basis. Due to the absence of a special appeal against the court order on which the investigative measures were based, their right determined by Article 25 of the Constitution was also violated.
 
Establishment of Human Rights Violations
 
78. If the Constitutional Court establishes in constitutional complaint proceedings that the adoption of an individual act violated human rights or fundamental freedoms, as a general rule, it abrogates the individual act in whole or in part and remands the case to the authority competent to decide thereon (the first paragraph of Article 59 of the CCA). However, in some instances it does not act in such manner, but only adopts a decision establishing that the challenged individual act violated human rights.[60] It does so when the challenged act ceased to be in force before it was decided on, whereby in exceptional circumstances the Constitutional Court nevertheless recognises the complainant’s legal interest to file a constitutional complaint (Article 47 in conjunction with the first paragraph of Article 49 of the CCA). A declaratory decision is based on the competences accorded to the Constitutional Court in constitutional complaint proceedings by the CCA. As the Constitutional Court has the power to abrogate the challenged act (the first paragraph of Article 59 of the CCA), it also has the power to adopt a less severe measure – namely to merely establish that the act violated an individual human right or fundamental freedom (the first paragraph of Article 47 or the first paragraph of Article 48 in conjunction with the first paragraph of Article 49 of the CCA). In any event, a declaratory decision must contribute to improving the complainant’s legal position.
 
79. The challenged court orders have a specific nature. Firstly, they have already been executed to a significant extent. In the part in which they have been executed they may no longer produce effects. Therefore, the question of whether they are still in force arises. Searches of attorneys’ offices, apartments, and cars were carried out, some documents in paper form were seized and sealed, some data from electronic devices were secured and sealed, and during the seizure of the documents and the securing of the data on the electronic devices the investigators reviewed the seized documents, the secured data, and other data, from among which they selected those that they deemed to be legally relevant in light of the aim of the search. In this part, due to the nature of things, the effects of the challenged orders cannot be nullified by abrogating the orders and remanding the case to the investigating judge. The aim of the challenged orders was to achieve an effect of surprise for the purpose of instituting or conducting criminal proceedings. In addition, the constitutional requirement of a prior court order applies to the execution of investigative measures (see Paragraph 33 of the reasoning of this Decision). Neither the former nor the latter could be ensured in proceedings to decide the case anew. However, as was already stressed in Order No. Up-218/14, dated 11 December 2014, the challenged orders continue to produce further legal effects. Their effects are legal as well as actual. Therefore, it cannot be claimed that the challenged orders are in their entirety individual legal acts that ceased to be in force. If they were abrogated in part and their effects for the future were thus nullified, such would lead to a situation in which all of the unconstitutional interferences with the privacy of attorneys that have already taken place would be preserved. At this time it is also impossible to assess whether they in fact entail interferences that could be admissible had they been carried out with due consideration of all substantive and procedural safeguards. We are thus, on the one hand, faced with the fact that an inadmissible interference with the privacy of attorneys has already occurred, even if only in its initial moments, with regard to attorneys who were not suspected of having committed a criminal offence. On the other hand, the effectiveness of the constitutional complaint requires that further interferences with the privacy of attorneys through a review of the seized documents and electronic devices be prevented. It has to be taken into account that such interferences were prevented by the adoption of Constitutional Court Order No. Up-218/14, dated 11 December 2014, and that such state will continue until a final decision on the constitutional complaint. With regard to the first paragraph of Article 59 of the CCA, even a partial abrogation of the challenged orders, with the intention of preventing further interferences, would require that the case be remanded for new adjudication in the relevant part. However, also with regard to that part it has to be taken into account that an order authorising a search of premises and the investigative measures linked to such, i.e. a prior court order issued before an investigative measure has been carried out, cannot be remedied retroactively. The order must be constitutional and legal already at the moment of its adoption.
 
80. In light of the above, the Constitutional Court is dealing neither with a case that would allow it to abrogate the challenged provisions on the basis of the first paragraph of Article 59 of the CCA and remand the case for new adjudication, nor with a case involving acts that have ceased to be in force and regarding which the Constitutional Court only in exceptional circumstances adopts a decision (merely) establishing a violation of human rights. In the case at issue, the competences of the Constitutional Court determined in the first paragraph of Article 59 and the first paragraph of Article 48 in conjunction with the first paragraph of Article 49 of the CCA have to be interpreted in a manner that will ensure the effectiveness of the decision on the constitutional complaint. From the perspective of the interferences with the privacy of attorneys that have already occurred, the case requires a decision establishing that human rights have been violated (Point 5 of the operative provisions of this Decision), as in this regard no other decision is possible and in constitutional complaint proceedings the consequences of the human rights violation cannot be remedied in any other manner (the fourth paragraph of Article 15 of the Constitution). Such a decision is necessary in order to protect the complainants from further interferences with the privacy of attorneys. There would be no need for such protection in the absence of established human rights violations. Consequently, a declaratory decision improves the legal position of the complainants.
 
The Prohibition of Further Violations of Human Rights
 
81. The establishment of the violations thus entails merely a decision on the admissibility of the interferences with the privacy of attorneys in the part in which investigative measures had already been carried out before Order No. Up-218/14, dated 11 December 2014. As in light of Paragraph 79 of the reasoning of this Decision the challenged orders may not, insofar as they are still in force, be partially abrogated and in that part remanded to the competent investigating judge for new adjudication, effective protection of the privacy of attorneys from further interferences had to be ensured. The Constitutional Court therefore prohibited further interferences without due respect for the safeguards that are required by the Constitution and which the Constitutional Court clarified in its decision on the review of the constitutionality of the CrPA and the AttA in this Decision (Point 6 of the operative provisions).
 
The Manner of Implementation of the Prohibition of Violations
 
82. However, the mentioned prohibition by itself does not suffice to alleviate the situation that resulted from the fact that before the above cited Constitutional Court Order investigative measures had been carried out on the basis of a statutory regulation that did not provide guarantees ensuring adequate respect for the privacy of attorneys and preventing inadmissible interferences therewith. Therefore, the Constitutional Court also determined the manner of implementation of this decision on the basis of the second paragraph of Article 40 in conjunction with the first paragraph of Article 49 of the CCA.
 
83. With the manner of implementation determined in Point 3 of the operative provisions and Paragraphs 60 through 63 of the reasoning and Point 4 of the operative provisions of this Decision, the Constitutional Court established the minimum safeguards that must be included in the regulation of investigative measures against attorneys and an appeal against an order authorising a seizure, in which, inter alia, allegations regarding the constitutionality and legality of the court order authorising an investigative measure can be invoked. Such manner of implementation of the Decision establishing the inconsistency of the CrPA and the AttA with the Constitution will remain in force with regard to all future instances of investigative measures against attorneys until the established inconsistency is remedied. It also applies to the complainants insofar as the Constitutional Court did not establish a different, i.e. specific, manner of implementation of the Decision with regard thereto in Point 7 of the operative provisions of this Decision. The Constitutional Court acted in such manner as at the time of this Decision being issued some of the investigative measures against the complainants (who are attorneys and law firms) have already begun but have not yet been completed. They were halted by Constitutional Court Order No. Up-218/14, dated 11 December 2014. In accordance with the manner of implementation of the Decision determined in Point 6 of the operative provisions of this Decision, the complainants will be able to invoke their objections in proceedings for deciding on whether the review of individual documents and data from electronic devices that were seized is admissible and, in instances where the competent judge makes the final decision regarding a seizure, against the issued court orders (Point 7 of the operative provisions). While the violations that have already occurred may not be remedied in such manner due to their irreversible nature (thus the violations have only been established in Point 5 of the operative provisions of this Decision), it does enable the prevention of their perpetuation.
 
 
C
 
84. The Constitutional Court adopted this Decision on the basis of Article 48, the second paragraph of Article 40, the first paragraph of Article 48 in conjunction with the first paragraph of Article 49, the second paragraph of Article 40 in conjunction with the first paragraph of Article 49, and the second indent of the first paragraph of Article 55b of the CCA, and the second indent of the third paragraph in conjunction with the fifth paragraph of Article 46 of the Rules of Procedure of the Constitutional Court (Official Gazette RS, Nos. 86/07, 54/10, and 56/11), composed of: Mag. Miroslav Mozetič, President, and Judges Dr Mitja Deisinger, Dr Ernest Petrič, Jasna Pogačar, Dr Jadranka Sovdat, and Jan Zobec. Judge Dr Dunja Jadek Pensa was disqualified from deciding on the case. The Constitutional Court adopted the Decision unanimously.
 
 
Mag. Miroslav Mozetič
President
 

[1] The fourth paragraph of Article 223a of the CrPA.
[2] According to the first paragraph of Article 219a of the CrPA, electronic devices include electronic devices and equipment connected to them as well as electronic data storage media, such as a telephone, fax, computer, floppy disc, optical media, and memory cards.
[3] The second and third paragraphs of Article 219a of the CrPA.
[4] The seventh paragraph of Article 219a of the CrPA.
[5] The seventh paragraph of Article 219a and the sixth paragraph of Article 223a of the CrPA.
[6] Cf. Š. Horvat, Zakon o kazenskem postopku s komentarjem [The Criminal Procedure Act with Commentary], GV Založba, Ljubljana 2004, p. 508.
[7] In the framework of practising the profession of an attorney, an attorney provides legal advice, represents clients before courts and other state authorities, drafts documents, and represents clients in their legal relationships (the first paragraph of Article 2 of the AttA).
[8] The leading decisions in this regard are Constitutional Court Decisions No. U-I-25/95, dated 27 November 1997 (Official Gazette RS, No. 5/98, and OdlUS VI, 158), and No. U-I-40/12, dated 11 April 2013 (Official Gazette RS, No. 39/13, and OdlUS XX, 5).
[9] Constitutional Court Decision No. U-I-272/98, dated 8 May 2003 (Official Gazette RS, No. 48/03, and OdlUS XII, 42), Paragraph 37 of the reasoning. The Constitutional Court reiterated this position in Paragraph 23 of the reasoning of Decision No. Up-1293/08, dated 6 July 2011 (Official Gazette RS, No. 60/11), and in Paragraph 27 of the reasoning of Decision No. U-I-40/12.
[10] Constitutional Court Decision No. Up-32/94, dated 13 April 1995 (OdlUS IV, 38).
[11] Constitutional Court Decision No. U-I-40/12.
[12] Cf. Constitutional Court Decisions No. U-I-25/95 and No. U-I-272/98.
[13] Cf. Constitutional Court Decision No. Up-430/00, dated 3 April 2003 (Official Gazette RS, No. 36/03, and OdlUS XII, 57).
[14] Constitutional Court Decision No. U-I-40/12.
[15] G. Klemenčič in: L. Šturm (Ed.), Komentar Ustave Republike Slovenije, dopolnitev – A [Commentary of the Constitution of the Republic of Slovenia, Supplement – A], Fakulteta za državne in evropske študije, Ljubljana 2011, p. 522.
[16] Ibidem.
[17] The Constitutional Court has already emphasised the importance of the profession of attorney in ensuring the rights of an attorney’s clients. With regard to the independence of attorneys, it thus, for example, explained that such independence is a constitutional requirement that does not constitute a special right of attorneys, but is determined to the benefit of the constitutional role accorded to attorneys and therefore to the benefit of their clients (see Constitutional Court Decision No. U-II-1/09, dated 5 May 2009, Official Gazette RS, No. 35/09, and OdlUS XVIII, 20).
[18] Cf. D. Van Gerven, Professional Secrecy in Europe, in: Professional Secrecy of Lawyers in Europe, Compiled by The Bar of Brussels, Cambridge University Press, Cambridge 2013, p. 1.
[19] There is no uniform definition of the professional secrecy of attorneys. It is, however, generally accepted that the professional secrecy of attorneys is a necessary condition for ensuring that individuals can freely obtain advice and assistance in legal proceedings. Ibidem, p. 3.
[20] Cf. Constitutional Court Decision No. Up-2530/06, dated 15 April 2010 (Official Gazette RS, No. 42/10, and OdlUS XIX, 13).
[21] Cf. Constitutional Court Decision No. U-I-319/00, dated 11 September 2003 (Official Gazette RS, No. 92/03, and OdlUS XII, 74).
[22] Constitutional Court Decision No. U-II-1/09.
[23] It follows from recent ECtHR case law that in instances when a search is aimed at evidence that originates in the sphere of an attorney (in such function, and not as a private individual), the Court does not deem the safeguards linked to the privacy of attorneys to be relevant only with regard to searches of the attorney’s office, but also with regard to all premises used by the attorney. It has thus reviewed the legitimacy of searches performed in, e.g., an attorney’s apartment, the apartment of an attorney’s deceased parents, and in attorneys’ vehicles (Petri Sallinen and others v. Finland, Judgment dated 27 September 2005, Mancevschi v. Moldova, Judgment dated 7 October 2008, Kolesnichenko v. Russia, Judgment dated 9 April 2009, Xavier Da Silveira v. France, Judgment dated 21 January 2010). It went even further and held that the content of the seized documentation is decisive for the protection of the privacy of attorneys. It namely deemed that the protected subject matter also includes communication with an attorney located on the premises of the client and seized during a search conducted against the client (Vinci Construction and GTM Génie Civil et Services v. France, Judgment dated 2 April 2015).
[24] See Constitutional Court Decision No. U-I-18/02, dated 24 October 2003 (Official Gazette RS, No. 108/03, and OdlUS XII, 86).
[25] Constitutional Court Decision No. U-I-40/12.
[26] Ibidem, Paragraph 29 of the reasoning.
[27] The Constitutional Court already stressed in Decision No. Up-2530/06 that from the ECHR there follows the obligation to provide special safeguards with regard to the regulation of searches of attorneys’ offices.
[28] The Constitutional Court already adopted such a position in Decisions No. Up-2530/06 and No. U-I-190/00, dated 13 February 2003 (Official Gazette RS, No. 21/03, and OdlUS XII, 7). In both cases, it adopted such a position in relation to an order authorising a search of premises and its subsequent execution, however it equally applies to the other two investigative measures – i.e. the review of electronic devices and the seizure of objects. In the first Decision cited above, the Constitutional Court also emphasised that with regard to a search of an attorney’s office not only the spatial aspect of privacy which protects the inviolability of an attorney’s office, but also those aspects of privacy that are related to the nature of the relationship between an attorney and his or her clients have to be protected.
[29] Cf. Constitutional Court Decision No. U-I-18/02.
[30] Article 235 of the CrPA.
[31] Article 236 of the CrPA.
[32] The first paragraph of Article 74 of the CrPA.
[33] The confidential relationship between a defence attorney and an alleged perpetrator enjoys the highest level of protection. Such also follows from Directive 2013/48/EU of the European Parliament and of the Council of 22 October 2013 on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings, and on the right to have a third party informed upon deprivation of liberty and to communicate with third persons and with consular authorities while deprived of liberty (OJ L 294, 6. 11. 2013), which in Article 4 determines that the Member States shall respect the confidentiality of communication between suspects or accused persons and their attorney. 
[34] In Mancevschi v. Moldova, the complainant was the defence attorney of the person under investigation in another criminal case. Due to this circumstance, the ECtHR stressed that searching for documents and objects that the complainant obtained as the defence attorney of the person under investigation would have manifest consequences for the defendant’s right arising from Article 6 of the ECHR, i.e. the right to a fair trial.
[35] Cf. Constitutional Court Decision No. U-I-83/11, Up-938/10, dated 8 December 2012 (Official Gazette RS, No. 95/12).
[36] Regarding this interpretative argument, see M. Pavčnik, Teorija prava: prispevek k razumevanju prava [Theory of Law, a Contribution to Understanding the Law], 5th revised and supplemented edition, GV Založba, Ljubljana 2015, pp. 311–312.
[37] Constitutional Court Decision No. U-I-25/95.
[38] The ECtHR emphasises that the scope of a search must be reasonably limited already in the search order issued. It reviews whether the order contains a statement of the reasons why it is necessary to (also) search an attorney’s office and why other investigative measures are not sufficient, as well as how broad the authorisations of investigators in connection with the inspection and seizure of files, documents, and electronic communications are; it also considers the severity of the criminal offence at issue as a criterion for the admissibility of the issued order. The ECtHR thus held that the search at issue was envisaged too broadly, that the order accorded the investigators too broad powers, and that it did not clearly follow from the order which documents were being sought in its Judgments in Roem and Schmit v. Luxembourg, dated 25 February 2003, Iliya Stefanov v. Bulgaria, dated 22 May 2008, André and others v. France, 24 July 2008, Mancevschi v. Moldova, Aleksanyan v. Russia, dated 22 December 2008, and Kolesnichenko v. Russia.
[39] When a seizure is performed as part of another investigative measure, the authorisation for the seizure (of objects or data) is included in the court order for the search of premises or the search of electronic devices.
[40] Even if it were carried out by the investigating judge him- or herself, such could be questionable, considering the nature of this function in light of the statutory regulation of the judicial investigation.
[41] It is difficult to imagine an interference with privacy that would be more invasive than the search of an electronic device. Especially in the era of electronic communication, electronic devices by their very nature enable easy access to an unprecedented amount of information. Access to such data is easy and instantaneous. It is more difficult for the user of an electronic device to control the collection of the huge amounts of data that these devices can store, while at the same time a greater number of users connect through such devices, which additionally weakens an individual user’s control over the collected data. (Cf. Decision of the Supreme Court of Canada in R. v. Vu, 2013 SCC 60, [2013] 3 S. C. R. 657, Para. 24.)
[42] Thus, for example, the French Code of Criminal Procedure (Code de procédure pénale), in Articles 56-1 (investigation of flagrant criminal offenses) and 96 (regular investigation), determines that the search of an attorney’s premises and his or her place of residence may only be conducted by a court official in the presence of the president of the bar association or his or her substitute. A search may only be conducted on the basis of a reasoned court order that has been adopted by that court official and which states the criminal offence under investigation, the reasons for the search, and the subject of the search. Only the court official and the president of the bar association or his or her substitute may acquaint themselves with the documents located at the place that is searched before the documents are seized. Documents that refer to criminal offences other than the ones listed in the order may not be seized. The results of a search carried out in violation of these rules on the execution of searches are null and void. The court official searching the premises must ensure that the search does not interfere with the freedom to practise the profession of an attorney. The president of the bar association or his or her substitute has the right to oppose the seizure of any document that the court official intends to seize if he or she deems that such seizure would be inadmissible. The document has to be sealed and this has to be recorded in the minutes that are kept separate from the case file. The minutes and the sealed document, together with the case file, have to be immediately presented to a judge for liberties and detention, who decides on the interference within a short deadline. To this end, the judge questions the court official who conducted the search and, if necessary, the public prosecutor, the attorney whose premises were searched, and the president of the bar association or his or her substitute. In addition, the judge may open the sealed document before these persons. If the judge for liberties and detention finds that it would not be appropriate to seize the document, he or she immediately orders the return of such document and the destruction of the minutes regarding its seizure as well as, if necessary, the deletion of all references regarding this document or its content that are contained in the case file. In Belgium, according to legal custom, an investigating judge has to personally attend a search of premises, after having previously informed the president of the bar association thereof and requested that he or she attend the search in person or through another member of the association acting as his or her substitute. Only the seizure of documents that refer to the criminal offence is allowed, and not documents that are covered by the duty to protect confidentiality, especially correspondence between the attorney and his or her client or the attorney’s personal notes. The president of the bar association or his or her substitute verifies that professional secrecy is observed during the search and seizures. When the attorney is not a suspect, the rights of the defence take precedence over searches of premises and seizures of documents. In such instances, it is not possible to review or seize any document that has to be protected as a professional secret, except in instances of abuses of this institute.
[43] The ECtHR reviews the appropriateness of a search of an attorney’s office from the perspective of Article 8 of the ECHR, which guarantees the right to respect for private and family life, the home, and correspondence. In recent case law, it has proceeded from the premise that the persecution and harassment of attorneys strike at the very heart of the Convention system (cf., e.g., the Judgments in Aleksanyan v. Russia and Kolesnichenko v. Russia). Therefore, searches of attorneys’ premises must be subjected to especially strict scrutiny, and the ECtHR also expressly requires that national law must determine special procedural safeguards that guarantee appropriate and effective protection from abuse and arbitrariness (Judgment in the Xavier Da Silveira v. France). The ECtHR reviews, on the one hand, whether national legislation provides for such safeguards and, on the other, whether they were in fact effectively exercised in the proceedings. If national law provides for the possibility of searches of attorneys’ offices, such must therefore comply with the special procedural safeguards at the statutory level as well as with regard to their execution.
[44] A search of an electronic device comprises three stages: seizure, securing, and reviewing (see Paragraph 17 of the reasoning of this Decision).
[45] A search of an attorney’s office is also a form of a search of premises.
[46] See paragraphs seven through nine of Article 219a of the CrPA.
[47] With regard to the execution of a search, the ECtHR considers in particular whether the search was carried out in the presence of an independent observer who could ensure that documents protected by the professional secrecy of attorneys were not seized. In the Judgment in Golovan v. Ukraine, dated 5 July 2012, the ECtHR held that domestic law did not provide appropriate procedural safeguards and that domestic law was not sufficiently foreseeable, and in the Judgments in Aleksanyan v. Russia and Kolesnichenko v. Russia it held that there were no safeguards for the protection of documents protected by the professional secrecy of attorneys. Last but not least, the ECtHR reviews the extent of the possible repercussions of a search for the work and reputation of the persons affected by such (cf. the Judgments in Wieser and Bicos Beteiligungen GmbH v. Austria, dated 16 October 2007, Iliya Stefanov v. Bulgaria, and Kolesnichenko v. Russia). On the contrary, in the Judgment in Sérvulo & Associados - Sociedade de Advogados, RL, and Others v. Portugal, dated 3 September 2015, the ECtHR held that a number of procedural safeguards provided by domestic law with regard to search and seizure operations in attorneys’ offices, which had been observed in the case at issue, ensure appropriate and sufficient protection against abuses and breaches of the privacy of attorneys and that therefore there had been no disproportionate interference with the right to the protection of one’s private life (Article 8 ECHR).
[48] As regards procedural safeguards, the ECtHR devoted special attention to the presence of an independent observer who shall ensure that no evidentiary material that is subject to the professional secrecy of attorneys is seized. Throughout the development of its case law and having regard to the circumstances of the cases it considered, it clarified this safeguard from different perspectives. It has repeatedly stressed that the presence of two lay witnesses does not suffice as a safeguard against excessive interferences by the police with the professional secrecy of attorneys, but the independent observer must have an education in law in order to effectively participate in the procedure (cf. the Judgments in Iliya Stefanov v. Bulgaria, Kolesnichenko v. Russia, and Yuditskaya and others v. Russia, dated 12 February 2015). In addition, according to ECtHR case law, the independent observer must also be have a duty to protect the professional secrecy of attorneys in order to ensure the confidentiality of evidentiary material subject to such, as well as [the protection of] the rights of third parties. He or she must also be accorded sufficient powers to be able to prevent an attorney’s duty to protect professional secrecy from being breached during the collection of evidence (the Judgment in Golovan v. Ukraine), and he or she must moreover have the possibility to actually exercise his or her supervisory function (the Judgment in Wieser and Bicos Beteiligungen GmbH v. Austria).
[49] See Constitutional Court Decision No. Up-540/11, dated 13 February 2014 (Official Gazette RS, No. 20/14, and OdlUS XX, 33).
[50] Constitutional Court Decision No. U-I-219/03, dated 1 December 2005 (Official Gazette RS, No. 118/05, and OdlUS XIV, 88), Paragraph 28 of the reasoning.
[51] Constitutional Court Decision No. Up-258/03, U-I-74/05, dated 22 September 2005 (Official Gazette RS, No. 90/05, and OdlUS XIV, 99), Paragraph 8 of the reasoning.
[52] Constitutional Court Decision No. Up-353/02, dated 20 May 2004 (Official Gazette RS, No. 62/04), Paragraph 6 of the reasoning. The Constitutional Court summarised the mentioned positions in Decision No. U-I-74/14, dated 17 June 2015 (Official Gazette RS, No. 48/15).
[53] Cf. Constitutional Court Decision No. U-I-339/98, dated 21 January 1999 (Official Gazette RS, No. 11/99, and OdlUS VIII, 13).
[54] Cf. also Paragraph 6 of Constitutional Court Decision No. U-I-190/00.
[55] As follows from Paragraph 55 of the reasoning of this Decision, the purpose of his or her presence is to ensure that the confidentiality of documents and objects that are not the subject of the search is observed and thus that the interests of third parties (i.e. the attorney’s clients) are protected.
[56] Thus, e.g., in the event of a search of an electronic device, also of the fact that data were secured or reviewed etc.
[57] The securing of the data contained in the electronic device comprises the storage thereof on a different appropriate storage medium or the creation of an identical copy of the storage medium in its entirety or, if neither of those are technically possible, the sealing of the electronic device.
[58] As regards attorney Alja Markovič Čas, the investigators recorded the decision rejecting her objection in the minutes.
[59] The Constitutional Court already stated that the CrPA and the AttA are inconsistent with the Constitution as they do not limit interferences with the privacy of attorneys to the lowest possible degree and thus allow for excessive interferences. It based its review on the finding that the legislation does not provide for the possibility of attorneys and a representative of the BAS attending all stages of the execution of investigative measures, that, even when the presence of the attorney and representative of the BAS is ensured, it does not provide them with effective procedural tools through which they could prevent with immediate effect (further) interferences with the privacy of attorneys or prevent investigators from accessing data without justification, and that the admissibility of the review and seizure of data and documents is not decided on by an independent court before the data and documents are reviewed and seized.
[60] See, e.g., Constitutional Court Decision No. U-I-50/09, Up-260/09, dated 18 March 2010 (Official Gazette RS, No. 29/10, and OdlUS XIX, 2), No. Up-1116/09, dated 3 March 2011 (Official Gazette RS, No. 22/11), No. Up-6/14, dated 5 March 2015 (Official Gazette RS, No. 19/15).
Type of procedure:
review of constitutionality and legality of regulations and other general acts
constitutional complaint
Type of act:
statute
individual act
Applicant:
Bar Association of Slovenia, Ljubljana, and others
Date of application:
17. 3. 2014
Date of Decision:
21. 1. 2016
Type of decision adopted:
decision
Outcome of proceedings:
establishment – it is inconsistent with the Constitution/statute
establishment of a human right violation
rejection
Published:
Official Gazette RS, No. 8/2016
Document:
AN03794

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