The facts and the essential points of the petitioner's statement are as follows:
(1) Relevant facts of the underlying case
In this case, the petitioner, in his capacity as defense counsel for the criminal defendant, was present during the prosecutor's questioning of the accused. During the questioning process, the prosecutor, citing the petitioner's detailed note-taking as a reason, invoked the proviso clause of Article 245, Paragraph 2 of the Code of Criminal Procedure. The prosecutor instructed the courtroom police to seize the interrogation notes prepared by the petitioner, prohibited the petitioner from continuing to take notes on the content of the interrogation, and explicitly recorded these actions in the seizure and interrogation records. The petitioner disagreed with this decision and, invoking Article 416, Paragraph 1 (hereinafter referred to as disputed provision one), Subparagraph1, sought the court to revoke it. The case, after a final order by the Taiwan Kaohsiung District Court Order 105-Sheng-2531(2016) (hereinafter referred to as the final order), was dismissed on the grounds that petitioner's request did not match the matters listed in disputed provision one and the decision could not be further appealed. The petitioner contends that disputed provision one and Point 28 of the Points to be Observed by the Prosecuting Authorities in Handling Criminal Proceedings which was amended and promulgated by the Ministry of Justice on June 23, 2004 by Fa-Ling-0930802186 (hereinafter referred to as disputed provision two), applied in the above order, raise constitutional doubts. Accordingly, on September 29, 2016, the petitioner, pursuant to Article 5, Paragraph 1, Subparagraph 2 of the Constitutional Interpretation Procedure Act (hereinafter referred to as the Constitutional Interpretation Act), requested a constitutional interpretation.
(2) Summary of the petitioner's statement
The petitioner's main arguments can be summarized as follows: Disputed provision one does not classify the prosecutor's actions, as stipulated in the proviso clause of Article 245, Paragraph 2 of the Code of Criminal Procedure, “restricting or prohibiting the defense counsel's right to be present” and “the compulsive measures limiting or prohibiting the defense counsel from taking notes on the content of the interrogation” as grounds for people to file an interlocutory appeal. This results in a loophole in protecting the rights of the people and contradicts the spirit of Article 16 of the Constitution, which safeguards the people's right to institute judicial proceedings. Additionally, disputed provision two imposes restrictions on the defense counsel's right to be present during the investigation, which exceeds what is legally permissible. This violates the spirit of Article 15 and Article 16 of the Constitution, which protect people's freedom of profession and right to institute legal proceedings, and is inconsistent with the constitutional principle of legal reservation (Gesetzesvorbehalt) under Article 23 of the Constitution.
2. Examination of the criteria for acceptance
In accordance with the Constitutional Court Procedure Act (hereinafter referred to as the Constitutional Procedure Act) as amended and implemented before the case is concluded, unless otherwise specified by the law, the provisions after the amendment shall apply. However, whether a case can be accepted shall be decided according to provisions before the amendment entered into force, as expressly stipulated in Article 90, Paragraph 1 of the Constitutional Procedure Act. Upon examination, it is found that this petition was pending before the implementation of the amendment to the Constitutional Procedure Act. Apart from determining its admissibility based on Article 5, Paragraph 1, Subparagraph 2 of the Constitutional Interpretation Act, relevant provisions of the Constitutional Procedure Act should be applied .
Regarding the part of disputed provision one, upon investigation, it is found that the petitioner is the person subject to the final order. The petitioner argues that the right of defense counsel to be present during the prosecutor's interrogation of the accused and to take notes of the interrogation content is a right protected by the Constitution. The petitioner claims that this right has been violated by the prosecutor's restrictions and prohibitions, and no remedy can be filed with the courts. After exhausting the existing levels of appeal, the petitioner filed this constitutional interpretation petition. The petitioner's application aligns with the requirements stipulated in Article 5, Paragraph 1, Subparagraph 2 of the Constitutional Interpretation Act, and therefore, it is accepted. The reasons for the decision are set forth in the following part 3.
As for disputed provision two, it is noted that this provision has not been subject to substantive review or application in the final order, and therefore, it cannot be considered an object of the petition. Moreover, this provision has been replaced by Point 28 of the Points to be Observed by the Prosecuting Authorities in Handling Criminal Proceedings, as amended and promulgated by the Ministry of Justice Letter Fa-Chien-10804510780of March 20, 2019. There is no longer a need for further examination. Therefore, this part of the petition does not align with the requirements stipulated in Article 5, Paragraph 1, Subparagraph 2 of the Constitutional Interpretation Act and should not be accepted.
3. Examination of the admissible part
(1) Principles of Review
In accordance with the protection of personal freedom and the right to institute legal proceedings under Articles 8 and 16 of the Constitution, criminal defendants should enjoy the right to a fair trial based on the principle of due process of law. In litigation, particular emphasis should be placed on safeguarding their right to sufficient defense (see Judicial Yuan Interpretation Nos. 384, 582, 636, 654, 762, and 789 for reference). The constitutional protection of these principles of due process of law and the right to sufficient defense is not limited to the stage when criminal defendants are under trial by the court. It should be effectively protected starting with the initiation of criminal investigation when individuals become crime suspects and should include the right of the accused or criminal suspect to effective assistance and defense by legal counsel (see TCC Judgment 111-Hsien-Pan-3 for reference) .
The right of the accused or criminal suspect to receive effective assistance and defense includes not only the right to choose their defense counsel but also the opportunity to receive free legal representation when financially unable. The defense counsel has the right to timely express legal opinions in a timely manner and to provide legal assistance at all stages of criminal proceedings to help the accused or criminal suspect effectively safeguard their rights. In terms of the criminal investigation process, when the accused or criminal suspect is questioned by the prosecutor, given their potential lack of legal knowledge, they may make improper or unfavorable statements or fail to assert timely claims favorable to themselves. To effectively safeguard their rights, their defense counsel should have the right to be present, hear the questioning, and express legal opinions in a timely manner or provide legal assistance on-site for the benefit of the accused or criminal suspect. Furthermore, defense counsel providing legal professional assistance has the right to be present during questioning, express opinions, as well as the right to memorize, understand, analyze and engage in other thinking activities. Taking notes on the spot is an auxiliary activity related to their memory and thinking activities and is inseparable from being present and stating opinions. Therefore, the right of the accused or criminal suspect to receive effective assistance and defense during the investigation should include, at a minimum, the right of the defense counsel to be present, the right to take notes, and the right to state opinions, in addition to the right of choosing a defense counsel. Moreover, as defense counsel acting in a legal professional capacity assists the accused or criminal suspect in protecting their rights during the investigation, in case the right to defense is infringed during investigation defense counsel, based on the constitutional protection of the accused or criminal suspect's right to effective assistance and defense, should have the right to seek remedies in his own name for the benefit of the accused or criminal suspect, unless explicitly indicated otherwise by the accused or criminal suspect.
Article 16 of the Constitution safeguards the people's right to institute legal proceedings, ensuring that individuals have the right to seek judicial remedies when their rights are violated. Based on the constitutional principle of where there is a right, there is a remedy, when people's rights are infringed upon, they must be afforded an opportunity to bring their case to court, request a fair trial based on due process of law, and obtain timely and effective remedies. This is the core content of the protection of the right to institute legal proceedings (refer to Judicial Yuan Interpretations Nos. 736, 752, 755, and 785). Therefore, if individuals find their rights violated and relevant laws do not provide for judicial remedies, leaving the aggrieved party with no recourse to initiate legal proceedings for a fair trial in accordance with due process of law, the absence of such legal provisions is inconsistent with the constitutional principle of where there is a right, there is a remedy. This deficiency violates the spirit of the Constitution, which safeguards the people's right to institute legal proceedings .
(2) The Court's Judgment
Examining Article 245, Paragraph 2 of the Code of Criminal Procedure: “The defense counsel of the accused or the criminal suspect may be present when the prosecutor, prosecuting investigator, judicial police officer, or judicial police questions the accused or criminal suspect and may state opinions. However, if there are sufficient grounds to believe that the defense counsel's presence may jeopardize national secrets, or may destroy, forge, or alter evidence, or may collude with accomplices or witnesses, or may harm the reputation of others, or if his behavior is improper enough to affect the order of investigation, it may be restricted or prohibited.” The preceding section explicitly stipulates that the defense counsel of the accused or the criminal suspect, during questioning by the prosecutor, has the right to be present and state opinions. This right is a concrete manifestation of the accused or criminal suspect's constitutional entitlement to effective assistance and defense, emphasizing the important legal provisions that showcase the legitimate legal procedures and the protection of sufficient defense rights under the constitutional principle of fair trial. As mentioned earlier, the contents of this right should include the defense counsel's right to be present, the right to take notes, and the right to state opinions during the investigation, all of which fall under the protection of the constitutional right to defense .
However, the aforementioned proviso clause of the provision explicitly states that even during the questioning of the accused or criminal suspect by the prosecutor, the defense rights that the accused, criminal suspect, or their defense counsel should enjoy during the investigation can still be restricted or prohibited under certain conditions. Consequently, the constitutional right of the accused or criminal suspect to receive effective assistance and defense from their defense counsel may be limited or deprived as a result. Currently, the Code of Criminal Procedure does not provide corresponding remedies for this situation. In light of this, if the accused, criminal suspect, or their defense counsel disagrees with the prosecutor's restriction or prohibition of the defense counsel being present, taking notes, or stating opinions during questioning, and believes that it has violated their constitutional right to effective assistance and defense, they have no judicial remedy available to seek effective protection of their rights. In this regard, the constitutionally protected right of the accused, criminal suspect, or their defense counsel to institute legal proceedings, based on the constitutional principle that the existence of a right implies the availability of a remedy, has clearly been infringed upon .
In summary, regarding disputed provision one and other provisions of the Code of Criminal Procedure, concerning the prosecutor's restriction or prohibition of the defense counsel being present, taking notes, or stating opinions during questioning according to the proviso clause of Article 245, Paragraph 2 of the same law, and the failure to grant the accused, criminal suspect, or their defense counsel the opportunity before court to declare objection or seek remedies to this effect, within this scope, it contradicts the constitutional principle of where there is a right, there is a remedy, violating the essence of Article 16 of the Constitution that safeguards the right to institute legal proceedings. The relevant authorities are required, within two years from the announcement of this judgment, to appropriately amend the Code of Criminal Procedure in accordance with the spirit of this judgment. Until the completion of the amendment, the accused, criminal suspect, or their defense counsel may apply the specified procedures in disputed provision one, and file a request with the relevant court to revoke the measures restricting or prohibiting defense counsel to be present during the questioning of the accused or criminal suspect imposed by the prosecutor in accordance with the proviso clause of Article 245, Paragraph 2 of the same law .