Article 8, Paragraph 1, of the Constitution provides: “Physical freedom shall be guaranteed to the people. Except in case of flagrante delicto as provided by law, no person shall be arrested or detained otherwise than by a judicial or a police organ in accordance with the procedure prescribed by law. No person shall be tried or punished otherwise than by a law court in accordance with the procedure prescribed by law…;” and Article 8, Paragraph 2, of the Constitution provides: “When a person is arrested or detained on suspicion of having committed a crime, the organ making the arrest or detention …shall, within 24 hours, turn him over to a competent court for trial. The said person, or any other person, may petition the competent court that a writ be served within 24 hours on the organ making the arrest for the surrender of the said person for trial.”Our Interpretation No. 392 held that the authority to detain the accused is vested in the court because the court that renders judgments independently in accordance with laws is an appropriate procedural institution designed to protect physical freedom constitutionally. The reasoning part of the said Interpretation further stated: “In a procedural sense, a court (a court in a restrictive definition) is equated with a judge. Both of them refer to a body exercising adjudicative power and are interchangeable,” and “as to matters of exercising adjudicative power, the judge is on a par with the court in most statutory provisions.” As a result, the “court” provided in Article 8 of the Constitution includes a judge who exercises adjudicative powers independently in accordance with laws. Pursuant to Paragraphs 1 and 2 of Article 279 of the Criminal Procedure Code, which respectively provide: “An associate judge may be commissioned in a preliminary process to prepare for the trial of a case which should be tried by a panel of judges;” and “A judge so commissioned shall have the same power as the court or presiding judge to prepare for the trial in a preliminary process,” the commissioned judge authorized by a panel of judges is entitled to exercise adjudicative power in a preliminary process. Therefore, Articles 279 and 416, Paragraph 1, Subparagraph 1, which permit a commissioned judge to detain, do comply with the context of Article 8 of the Constitution, and there is no doubt the said Articles do not conflict with the Constitution.
Both Article 416, Paragraph 1, Subparagraph 1, which provides: “A person who disagrees with one of the following measures taken by a presiding judge, commissioned judge, requisitioned judge, or public prosecutor may apply to the court to which such officer is attached to have such measure set aside or altered: 1. the measure relating to detention…;” and Article 418, Paragraph 1, which provides: “An interlocutory appeal may not be taken against a ruling by a court upon an application pursuant to Article 416,”and “Where an interlocutory appeal may be taken pursuant to provisions of this part and taking such an appeal was mistaken for an application for setting aside or alteration, an interlocutory appeal shall be deemed to have been taken. Where an application for setting aside or alteration may be filed and filing such an application was mistaken for an interlocutory appeal, an application for setting aside or alteration shall be deemed to have been filed,” are designed to accelerate the procedure, and to provide immediate remedial opportunities for those whose freedom is directly affected. Although the said Articles prohibit the detained from seeking remedies with an appellate court, our Interpretations have repeatedly held that it is not unconstitutional for the legislative authority to restrict the availability of higher instance, considering the type, nature and purpose of the legal actions, the function of litigious systems, the efficient distribution of judicial resources and so forth, since the number of trial instances is not the core part of the right to trial（See Interpretations Nos. 396, 442, 512, and 574）. The aforementioned Articles are reasonable restraints based upon legislative concerns about procedural economy and do not go beyond the legislature’s authority to determine; hence there should be no violation of Articles 16 and 23 of the Constitution.
While our Interpretations held that physical freedom is an important fundamental human right, which deserves full protection, and any deprivation thereof and limitation thereon should comply with due process（See Interpretations Nos. 384, 436, and 567）, in determining whether the related procedural rules are due and reasonable, in addition to the specific requirement provided by the Constitution and the related fundamental human right, the legislature must take into consideration the field to which the case relates, the strength and scope of fundamental right infringement, the public interests pursued, the substitute, and possible procedural costs case by case before any decision is made. According to Articles 416, Paragraph 1, Subparagraph 1, and 418 of the Criminal Procedure Code there is no remedy for a procedural measure. Based upon the specific status of physical freedom in the field of human rights protection of Article 8 of the Constitution, the Criminal Procedure Code provides an exceptional remedy. Even though the detained is not allowed to appeal to an appellate court, it is reasonable to have another panel of judges, other than the detention-deciding one, review the decision as an independent adjudicative body. As a whole, the said rules have already provided the detained with reasonable procedural protections, hence there is no violation of the due process clause of Article 8 of the Constitution.
Pursuant to Articles 403, 404, Subparagraph 2, 416, Paragraph 1, and 418, a decision to detain may be made either in the form of a ruling by the court or a measure by a judge, and different remedial approaches are provided respectively. A ruling may be appealed to an appellate court, while a measure may be set aside or altered by another panel of judges of the same court to which the deciding judge is attached. Whether such difference violates the equal protection clause of Article 7 of the Constitution, therefore, becomes a question. In a case which should be tried by a panel of judges, a decision to detain made by a presiding judge, a commissioned judge, or a requisitioned judge, is named a measure; in other cases, a decision to detain, filed by a public prosecutor during an investigative process, made by one or three on-duty judges or by a judge or a panel of three judges in the trial is called a ruling of a court. Article 416, Paragraph 1, provides a different remedial approach from an interlocutory appeal based upon the form in which the decision to detain is made. Although different approaches to remedy relate to restraint on physical freedom, while trial instances are not at the core of protection of the right to trial, having a decision to detain reviewed by the upper instance, or by another panel of judges of the same court, both of which would independently exercise adjudicative power, makes little difference in remedy. It is not necessary to adopt a more stringent way to examine. The said rules only allow the detained to apply to another panel of judges of the same court to which the deciding panel is attached to have such measure set aside or altered, instead of appealing to an appellate court. The legislature’s goal in designing the said rules is warranted based upon its concerns to promote procedural economy and to maintain the consistence of the trial system. And the aforementioned standard to classify and the approach to differentiate reasonably relate to the purposes. As a result, Articles 416, Paragraph 1, Subparagraph 1, and 418 of the Criminal Procedure Code are within the legislature’s authority to determine; hence there should be no violation of Article 7 of the Constitution.
*Translated by Professor Dr. Ming-woei Chang