The current case arose because Lai Su-ru and her appointed counsel at investigatory stage Li Yi-kwang, attorney-at-law, while requesting to examine the detention case file, claimed that the Taiwan High Court criminal ruling from the year 2013 No. 616, hereinafter the final ruling, might be unconstitutional in applying Article 33 Paragraph 1 of the Criminal Procedure Code. Upon application for constitutional interpretation, the Grand Justice Council granted a writ of certiorari and according to Article 13 Paragraph 1 of the Constitutional Interpretation Procedure Act asked petitioners as well as the concerned authorities including the Judicial Yuan (Criminal Division) along with the Ministry of Justice to appoint representatives and attorneys for an oral hearing at the Constitutional Court on March 3, 2016 and also invited expert examiners to attend and deliver their opinions.
Petitioner Lai Su-ru and her counsel Li Yi-kwang claimed that Article 33 Paragraph 1 Criminal Procedure Code violated Articles 8, 16 and 23 of the Constitution for following reasons: 1. Allowing the counsel to examine the dossier during the process of detention hearing helps the public prosecutor to comply with his obligation and does not conflict with the principle of investigatory secrecy. 2. The principle of due process of law implied in Articles 8 and 16 of the Constitution should guarantee the accused the right of full defense; since the detention process at the investigatory stage is adversarial, the principle of equality of arms also applies here. 3. Limiting the accused as well as his or her counsel’s right of examining the detention dossier concerns the accused’s right to institute legal proceedings, personal freedom, and the counsel’s right to work as well as its defense function in the judicial sector. Furthermore, while Article 33 Paragraph 1 of the Criminal Procedure Code is not an approach of minimum harm, it violates the intention of Articles 8 and 16 of the Constitution. 4. The reasons for detention listed in Article 101 Paragraph 1 and Article 101-1 Paragraph 1 of the Criminal Procedure Code are necessarily related to the issue in the present case and should be within the scope of this Interpretation. 5. The Grand Justice Council should hold that petitioner Lai Su-ru is entitled to criminal indemnity or state compensation … etc.
The agency concerned, namely, the Criminal Division of the Judicial Yuan, argued summarily that: 1. Article 16 of the Constitution clearly provides that people have the right to institute legal proceedings, in the course of a prosecutor’s application to detain the accused at the investigatory stage, the accused nevertheless enjoys procedural safeguards which enable him to fully and effectively exercise his right of defense. The principle of equality of arms aims at realizing the accused’s right of defense. In need of such defense, the state should provide institutional and procedural safeguards which give the accused the same position as the prosecutor representing the state. 2. The right to examine the dossier lies at the heart of the defendant’s fundamental right to institute legal proceedings. Given the important meaning of the right to defend, and in accordance with the Constitution, the defendant’s counsel should be allowed to access the dossier in the process of detention hearing. The consideration of investigatory secrecy might limit the above right but should not forbid the right completely. Article 33 Paragraph 1 of the Criminal Procedure Code, which completely prevents the counsel from examining the dossier before indictment, does not comply with this principle. Article 101 Paragraph 3 of the Criminal Procedure Code is not enough to realize the accused’s right of defense, etc.
The agency concerned, namely, the Ministry of Justice, argued summarily that: 1. The principle of investigatory secrecy serves to implement the presumption of innocence, to guarantee related human rights, and to maintain the efficacy of investigation etc.; putting limitations on the counsel’s right to examine the dossier reflects the emergency and secret nature of preventive proceedings at investigatory stage. Allowing counsel to examine the dossier at investigatory stage would not help the investigation and litigation procedure but rather harm and even contradict the purpose of detention. 2. The principle of equality of arms does not apply at the pretrial investigatory stage. 3. The Criminal Procedure Code of this country already fully protects the accused’s right of defense at the investigatory stage, including Articles 2, 27, 34, 34-1, 95, 96, 163, 219-1, Paragraph 4 of Article 228, Paragraph 3 of Article 101, and 245 etc. of the Criminal Procedure Code. Whether Article 33 Paragraph 1 of the Criminal Procedure Code violates the Constitution depends on the overall respective protection of the defendant’s right to counsel during investigation; since the Criminal Procedure Code already provides sufficient protection as mentioned above, including appropriate disclosure to the accused, Article 33 Paragraph 1 of the Criminal Procedure Code does not violate the Constitution.
The Judicial Yuan has in its deliberation taken into account all arguments made by the parties and made this interpretation with the following reasons:
Article 5 Paragraph 1 Subparagraph 2 of the Constitutional Interpretation Procedure Act provides:“The grounds on which the petitions for interpretation of the Constitution may be made are as follows: ... 2.When an individual, a legal entity, or a political party, whose constitutional right has been infringed and remedies provided by law for such infringement have been exhausted, has questions on the constitutionality of the statute or regulation relied thereupon by the court of last resort in its final judgment.”Its purpose is to allow those persons, whose fundamental right has been harmed, to petition this Court for interpretation of the Constitution. There are two petitioners in the present case: the accused (who should be called a criminal suspect before indictment, but the current Criminal Procedure Code calls the suspect the accused, hereinafter the suspect), and her counsel. As the suspect is not the person who filed an interlocutory appeal of the final ruling, the counsel was appointed by the suspect to help effectively exercise her constitutionally protected right to institute legal proceedings（see J.Y. Grand Justice Interpretation No. 654）； the counsel is the actual person who filed an interlocutory appeal and was appointed by the suspect to help exercise her right to defense by examining the dossier prepared by the prosecutor during the process of detention hearing. These two petitioners jointly filed for interpretation of the Constitution in accordance with the above-mentioned requirements for constitutional interpretation. The petitioners in this case only question whether Article 33 Paragraph 1 of the Criminal Procedure Code violates the Constitution without claiming that Article 101 Paragraph 3 of the Criminal Procedure Code violates the Constitution, since this clause was not applied in the final ruling. This institution, which allows people to petition for constitutional interpretations, not only protects the fundamental rights of the parties but also aims at clarifying the true meaning of the Constitution to maintain the constitutional order. Hence the scope of interpretation may include any statute necessarily related to the specific case and is not limited to articles cited by the petitioner or applied in the final ruling（see J.Y. Grand Justice Interpretation No. 445）. If it is impossible to review the petition without incorporating uncited statutes into the petition, the uncited statutes should be viewed as necessarily related to the petition, and fall within the scope of interpretation. Although the petitioners in this case asserted the suspect and his or her counsel have the right to examine the dossier, the essence of this constitutional question is whether the suspect as well as his or her counsel are entitled to know the specific reason and evidence for detention to effectively exercise the right of defense and to prevent the illegal invasion of the suspect’s personal freedom by way of examining the dossier in the pretrial detention process or other means. As a result, in addition to reviewing Article 33 Paragraph 1 of the Criminal Procedure Code, also Article 101 Paragraph 3 of the same Code shall be included in the review in order to overall assess whether the suspect as well as his or her counsel are entitled to know the specific reason and evidence for detention to effectively exercise the right of defense. It is noted in advance that the necessarily related Article 101 Paragraph 3 of the same code is within the scope of this Interpretation.
Personal freedom, which is the necessary premise for people to enjoy each and every type of freedom listed in the Constitution, is an important fundamental right, which deserves full protection. It is clear from Article 8 of the Constitution that a deprivation or limitation of personal freedom must meet the requirements of due process of law in addition to complying with the law（see J.Y. Grand Justice Interpretation Nos. 384, 436, 567, 588）. Besides, Article 16 of the Constitution, providing that people have the right to institute legal proceedings, enshrines the core idea that people whose rights are infringed may seek remedies from the court in accordance with due process of law, and the state should provide an effective institution to safeguard the right（see J.Y. Grand Justice Interpretation No. 574）. Detention is a compulsory measure which restricts the personal freedom of the suspect or the accused by holding him or her in custody before the verdict is final. This preventive proceeding ensures the successful implementation of the investigatory process and that the state can carry out its power to punish. Since detention deprives the suspect or the accused of personal freedom, isolating the suspect or the accused from family, society, and career not only causes serious physical and psychological harm but also greatly affects his reputation, credibility and personality rights, therefore, detention should be ordered cautiously on the premise that no other alternative method is available （see J.Y. Grand Justice Interpretation Nos. 392 and 653）. The process of detention hearing at investigatory stage begins with a written motion filed by the public prosecutor specifying the reason for detention and respective evidence. The reason and respective evidence in a detention motion are the bases for a judge to decide whether or not to detain, to deprive a criminal suspect of personal freedom. Based on the constitutional principle of due process of law, it is necessary to timely inform the suspect and his counsel in appropriate manners of the reason and evidence for detention so that the right of defense can be exercised effectively. However, in order to ensure that the state’s power to punish can be implemented, when there are facts sufficient to justify an apprehension that the suspect might destroy, forge, or alter evidence, or conspire with a co-offender or witness, etc., which jeopardizes the purpose of investigation or the life or body of others, the law may limit or forbid the suspect to access evidence relating to the motion for detention.
Whether or not the current process of detention hearing at investigatory stage satisfies the previously mentioned requirements of the constitutional principle of due process of law must be decided based on an overall evaluation of related articles in the Criminal Procedure Code, instead of judging a specific article alone. Article 33 Paragraph 1 of the Criminal Procedure Code, provides that: “A defense attorney may examine the case file and exhibits and make copies or photographs thereof.”Article 101 Paragraph 3 of the same code provides that: “The accused and his defense attorney shall be informed of the facts based to support the detention of an accused as specified in section I of this article. The same shall be stated in the record.” These provisions, which allow the suspect and his or her counsel at investigatory stage to know only the facts based on which a detention motion was filed, excluding the specific content of the reason and respective evidence of the public prosecutor’s detention motion, do not comply with the above-mentioned constitutional principle of due process of law regarding deprivation of personal freedom. The authorities concerned should revise the related articles of the Criminal Procedure Code in accordance with the ruling of this Interpretation within one year from the issuance date of this Interpretation. The court in charge of detention should follow this ruling in the process of detention hearing if the amendment is not timely completed. The method how the suspect and his or her counsel may know the reason and respective evidence based on which the public prosecutor filed the detention motion, either by granting the counsel the right to examine the dossier or by making copies and photographs thereof, or by the judge pointing out, notifying, handing over the related dossier to be read, or by other appropriate ways, falls within the legislature’s scope of discretion. No matter what method is adopted, the previously mentioned constitutional requirements of due process of law must be satisfied.
The principle of investigatory secrecy of criminal procedure law is an important institution for the state to exercise its power of criminal punishment properly and effectively, as well as for the constitutional rights protection of the suspect and related persons. Giving the suspect and his or her counsel access to necessary information in the process of detention hearing at investigatory stage is part of the due process of law, which is necessary to protect the suspect’s constitutional human rights. As regards the scope of access to information granted to the suspect and his or her counsel, the above-mentioned interpretation has referred to exceptional provisions to balance the constitutional rights protection of the suspect and the relators and the correct exercise of the state’s power to punish. Under these circumstances, the principle of investigatory secrecy does not impede the implementation of due process of law. Whether the principle of equality of arms applies in the process of detention hearing, depends on whether the adversarial process applies. Since the current criminal procedure law does not adopt the adversarial process, there is no question arising from the principle of equality of arms.
Given that pretrial detention, which deprives people’s personal freedom prior to indictment, is the most serious compulsory measure, the best procedural protection should be granted in the detention hearing. It is concurrently noted that the authorities concerned should, when amending the code, simultaneously consider if it necessary to expand the mandatory defense institution to the process of detention hearing at the investigatory stage.
In addition, petitioners’ claim that the reasons for detention listed in Article 101 Paragraph 1 and Article 101-1 Paragraph 1 of the Criminal Procedure Code should be interpreted in this Interpretation is denied since there is no final ruling applying those articles and there is no material connection with this case. The petitioners’ other remedies claiming state compensation or criminal indemnity etc. go beyond the jurisdiction of the Grand Justice Council. Since those claims do not comply with Article 5 Paragraph 1 Subparagraph 2 of the Constitutional Interpretation Procedure Act, they are dismissed according to Paragraph 3 of the same Article.
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＊ Translated by Ming-woei CHANG.