Article 16 of the Constitution provides people with the right to litigate. Its purpose is to safeguard the people’s right to a fair trial so that a criminal defendant is entitled to full right to defend under due process of law, which includes, among other things, the selection of an entrusted counsel. The right to defend cannot be functional until a criminal defendant receives concrete and effective protection by exercising the right to counsel assistance. Consequently, the essence for counsel to assist the criminal defendant in exercising the right to defend lies in their free and unrestricted communications, and is subject to constitutional protection. While exercising the aforementioned right of free and unrestricted communications may, under certain circumstances, be limited by law, such limitations must comply with the principle of proportionality under Article 23 of the Constitution and must be concrete and precise in accordance with the meaning and purpose of the Constitution so that it is not contradictory to Article 16 of the Constitution.
While the physical freedom or other constitutional rights of a detainee are limited by law because of the detention, under the doctrine of presumption of innocence, the detainee nevertheless enjoys, in principle, other constitutional rights outside of the scope [of such limitations] as an ordinary person (see J. Y. Interpretation No. 653). Isolated from outside world, the only means for a detainee to engage in free and unrestricted communications so as to safeguard the right to defend is through counsel’s visitation. Article 23, Paragraph 3 of the Detention Act provides that Paragraph 2 on “under surveillance” shall apply in the event the counsel visits a detainee. Taking into consideration the meaning and purpose of Detention Act and its Implementation Rules as well as the totality of the legal system, the term “surveillance” entails not only on-site monitoring by the detention facility personnel, but also eavesdropping, recordation and audio-recording, among other acts. Under current practices, counsel visitation is routinely monitored and recorded pursuant to the aforementioned statutory provisions. These provisions, which allow a detention facility to conduct surveillance and audio-recording without considering whether it achieves the purpose of detention or is necessary in maintaining the order of the detention facility, has hindered the exercise of the right to defend and exceeded the scope of necessity, thus violates the principle of proportionality under Article 23 of the Constitution and is inconsistent with the meaning and purpose of the Constitution to protect the right to litigate. However, for the need to maintain order in the detention facility, the mere visual monitoring without probing into the contents does not contradict the meaning and purpose of the Constitution concerning the protection of the right to litigate. .
Article 28 of the Detention Act provides: “Any statement, demeanor, or contents of correspondence sent or received by the defendant suitable for references during investigation or on trial, shall be submitted to the prosecutor or the district court.” It enables the information obtained by surveillance and audio-recording during visitation pursuant to Article 23, Paragraph 3 be admitted into evidence against the accused during investigation or on trial, thus impinges upon the exercise of the right to defend by the accused and contradicts the right to litigate stipulated in the Constitution Balancing the protection over the right to litigate and the necessary adjustment of the related [governing] agencies, the aforementioned Article 23, Paragraphs 3, and Article 28 of the Detention Act not in conformity with this judicial interpretation shall be ineffective as of May 1st, 2009. Any law that limits the right to exercise free and unrestricted communications between a criminal defendant and counsel must be stipulated in concrete and precise manner and is subject to the determination of the court together with relevant judicial remedies, related procedures and the design of mechanism being provided, such as the necessity, manner, time and disposition under urgent circumstances to restrict in accordance with the meaning and purpose of this judicial interpretation. All relevant laws shall also be reviewed and revised based on this judicial interpretation.
Article 1, Paragraph 2 of the Organization Principles of Detention Facilities provides that: “Matters concerning the detention of the accused are subject to the supervision of the district court and its prosecutory office in the same venue.” The facilities are those where detention are taking place, and their staff are responsible only for the actual enforcement of detention. The enforcement of detention is under the command of the prosecutor during an investigation, but under the supervision of the presiding judge or other associate judges on the case (see Article 103 of the Criminal Procedural Law). The Organization Principles of Detention Facilities [only] governs the organizational structure, internal units having matters under its [respective] jurisdiction, personnel and responsibilities; Article 1, Paragraph 2 merely states that the district court or prosecutor also has concurrent authorities to supervise the enforcement the detention, which is strictly internal supervisions within the administrative agency, not stipulation on the authorization of eavesdropping or audio-recording, and, therefore, does not incur any issue on its constitutionality.
The petitioner of this case was suspicious of committing the crime under Article 4, Paragraph 1, Section 5 of the Anti-Corruption Statute and was charged by the prosecutor at the Taiwan Banchiao Prosecutory Office on November 3rd, 2008. The petitioner was arraigned on November 6th, 2008, and was released on bail by the Taiwan Banchiao District Court. He now moves for temporary disposition in accordance with the aforementioned Article 23, Paragraph 3, and Article 28 of the Detention Act. Since this motion is inconsistent with the meaning and purpose of J. Y. Interpretations No. 585 and 599, and, therefore, lacks sufficient ground to receive protection. The motion is denied..
Translated by Li-Chih Lin, Esq., J.D.