Constitutional Council Ruling on Searches at Lawyers' Offices

Extract

[...] In the case where the search would take place, it is worth recalling that a magistrate will be present to verify the procedure for seizing documents and can quite oppose a seizure that he considers irregular. Thus, in the present case, the profession of our lawyer is precisely to defend a client who would have committed tax fraud. Nothing in the facts suggests that the lawyer would allow himself to commit tax fraud through his client's advice. Thus, due to the lack of evidence that the JLD would have, it seems difficult for him to take a search warrant against him. [...]

[...] The legislator with the adoption of the law for trust in the judicial institution has come to specify the rules that allowed guaranteeing the protection of the professional secret while also specifying the rules authorizing a possible infringement of this professional secret. Thus, in this decision concerning searches in lawyers' offices and other similar places, investigations can only be carried out with a motivated authorization from the judge of freedoms and detention he must indicate the nature of the offenses pursued, the reasons, the purpose that justify the search and it must respect the principle of proportionality. [...]

[...] In this case, a lawyer is inquiring after a decision made by the Constitutional Council because he fears that the JLD will issue a search warrant against him following the tax fraud committed by his client. This decision comes from the reminder of the importance of the guarantee of the lawyer's professional secrecy. On the other hand, as specified by Article 56-1 of the Code of Criminal Procedure, a search may take place at a lawyer's office if there are reasons to suspect that he has committed or attempted to commit an offense. [...]

[...] Solve the following case study (extract from the subject given to the terminal exam 2022-2023 for students from Mayotte): In this case, the Constitutional Council is seized October by the Court of Cassation, of a priority constitutional question (art 61-1 of the Constitution). The question posed to the Constitutional Council was as follows: Is the regime of search, visits in tax matters and seizures carried out at a lawyer's office in line with the Constitution? More precisely, does the search warrant issued by the JLD disregard the principle of impartiality of the courts guaranteed by the Constitution? (It is first necessary to recall the legal foundations. [...]