I. Facts and Summary of the Petitioner's Statements
1. Facts Relevant to the Petition
The petitioner, Cheng-Hsu Chang, was subjected to a detention extension ruling approved by the Taiwan Taipei District Court at the prosecutor's request during an investigation. The petitioner's defense attorney filed an interlocutory appeal for the interests of the petitioner under Article 419, applying Article 346 of the Code of Criminal Procedure. The Taiwan High Court dismissed the interlocutory appeal in its final court ruling 109-Jhen Kang-1036 (hereinafter referred to as the Final Court Ruling) on the grounds of lack of reason. The petitioner asserts that the provision of Article 403 of the same law, which states that "(Paragraph 1) A party may file an interlocutory appeal to the direct appellate court if he/she disagrees with the court ruling, unless otherwise provided. (Paragraph 2) A witness, expert witness, interpreter, or other non-party under the ruling may also file an interlocutory appeal. " (hereinafter referred to as the Provision at Issue I) and the provision of Article 419 of the same law which states that "except otherwise stipulated in this Chapter, interlocutory appeals shall apply mutatis mutandis Chapter I of Part III regarding Appeals." (hereinafter referred to as the Provision at Issue II), as applied by the final court ruling, violate the Constitution, and petitions for constitutional interpretation.
2. Summary of Petitioner’s Statements
The petitioner argues that the provisions at issue I and II do not grant the defense attorney during the investigation phase the right to appeal against the court’s detention extension rulings for the interests of the defendant. This failure resulted in the detained petitioner being unable to obtain timely assistance from the defense attorney within the short five-day interlocutory appeal period. This infringes the right to defense and violates the constitutional guarantees of personal liberty and the right to litigation under Articles 8 and 16 of the Constitution.
II. Grounds for Granting Review and the Court’s Proceedings
The provision of Article 90, Paragraph 1 of the Constitutional Court Procedure Act clearly states that "Except otherwise provided in this Act, this Act applies to all the pending petitions before the Constitutional Court lodged before the coming into force of this Act. Notwithstanding, the admissibility of such petitions shall be decided in accordance with the Constitutional Interpretation Procedure Act, which this Act is to replace through wholesale revision." Since the petition for constitutional interpretation was filed on August 27, 2020, whether it is admissible shall be decided in accordance with the Constitutional Interpretation Procedure Act. According to Article 5, Paragraph 1, Subparagraph 2 of the same law, "Petitions for constitutional interpretation may be filed on the following grounds: (2) When an individual, a legal entity, or a political party, whose constitutional right is unlawfully violated and after exhaustion of ordinary judicial remedies, has doubts about the constitutionality of the statute or regulation applied by a final court decision of last resort." This is to ensure that individuals whose fundamental rights have been unlawfully violated can file a petition of constitutional interpretation. In this specific petition, the person subjected to the Final Court Ruling was not the petitioner, but rather his defense attorney acting to assist the defendant, also the petitioner, in effectively exercising the right of instituting legal proceedings guaranteed by the Constitution (refer to Judicial Yuan Interpretation Nos. 654 and 737). As the interlocutory appeal was for the interests of the defendant, the effect of the Final Court Ruling extends to the petitioner. Thus, the petitioner is considered a person adversely affected by the final court ruling, in line with the provisions of Article 5, Paragraph 1, Subparagraph 2 of the Constitutional Interpretation Procedure Act, and the Justices of the Judicial Yuan (the Constitutional Court) accepted the petition on October 27, 2021.
III. Legal Grounds for the Holding
1. Principles of the Review and Constitutional Rights Involved
Based on the constitutional guarantee of personal liberty and the right of instituting legal proceedings under Articles 8 and 16 of the Constitution, criminal defendants should enjoy the right to a fair trial under the principle of due process of law. Particularly in litigation, defendants should be guaranteed adequate defense rights (refer to Judicial Yuan Interpretation Nos. 582, 654, 737, 762, and 789), including the right to select trusted defense attorneys to ensure the protection of fair trial rights. The right of criminal defendants to receive assistance from their defense attorneys must be genuinely and effectively protected to fully realize the function of defense rights (refer to Judicial Yuan Interpretation No. 654). This right of defendants to receive effective assistance from defense attorneys has become a universally recognized fundamental human right in modern rule-of-law countries (refer to Article 14, Paragraph 3, Subparagraph 4 of the International Covenant on Civil and Political Rights, Article 6, Paragraph 3, Subparagraph 3 of the European Convention on Human Rights, the Sixth Amendment of the United States Constitution, and Article 37, Paragraph 3 of the Japanese Constitution). Defendants are entitled to appeal or file an interlocutory appeal against court decisions to express their dissatisfaction, which is an important defense right. Consequently, a defense attorney can appeal or file an interlocutory appeal for the interests of the defendant, unless explicitly opposed by the defendant, which is an essential component of the defendant's right to receive effective assistance from the defense attorney and should be constitutionally protected.
2. The Conclusion of the Court’s Judgment
Personal liberty is a fundamental human right that warrants comprehensive protection, as it is essential for individuals to exercise various constitutional rights and freedoms. Detention is a coercive measure imposed before a final judgment is reached, restricting a criminal defendant's physical liberty by confining him/her to a designated location. This measure ensures the smooth progression of investigations and trials, thereby enabling the state to exercise its penal authority. However, detention does limit the personal freedom of criminal defendants and separates them from their families and social and professional lives, not only causing significant physical and psychological harm but also severely impacting their reputation, credibility, and other personal rights. It is the most invasive form of coercion concerning personal liberty and should be used cautiously, only as a last resort (refer to Judicial Yuan Interpretation Nos. 392, 653, and 737). Detained defendants face significant challenges due to their isolation from the outside world, making it particularly difficult to gather favorable legal information, draft interlocutory appeals, and seek remedies. This isolation severely hinders their ability to exercise their defense rights and undermines their capacity to defend themselves in court. Moreover, the legal period for interlocutory appeals for detention rulings is limited to just five days. Under such restrictive conditions, detained defendants must rely on defense attorneys with legal expertise to provide timely and effective assistance. This assistance includes accessing case information and pursuing legal remedies, which are crucial for the effective exercise of defense rights and for ensuring the discretion and last resort of the court's decision on detention.
Regarding the decision on detention during an investigation, the initial Code of Criminal Procedure, promulgated on July 28, 1928, followed a system where the prosecutor could decide on detention after interrogating the defendant. Only the defendant had the right to submit to the concerned court for revoking or changing the prosecutor's decision on detention or its extension. Even when the Code of Criminal Procedure was amended on August 4, 1982, to include provisions for the defense attorney system during the investigation, the right to submit to the concerned court for revoking or changing detention remained exclusively with the defendant; the defense attorney did not have this right.
Later, the Code of Criminal Procedure was amended on December 19, 1997, in accordance with Judicial Yuan Interpretation No. 392. This change transferred the authority to judges who would make a ruling on detention or its extension after interrogating the defendant during investigations. The defendant, as a party to the case, could file an interlocutory appeal based on the provisions in the first paragraph of the Provision at Issue I. However, there has been debate about whether the defense attorney also holds the right to file an interlocutory appeal. Parts III and IV of the Code of Criminal Procedure outline mechanisms for appealing or filing an interlocutory appeal for court judgments and rulings, respectively. In order to enable the defense attorney to assist the defendant in exercising the right of defense effectively, Article 346 of Chapter 1 of Part III of the same law stipulates that "an agent or defense attorney in the original trial may appeal for the interests of the defendant; provided that it may not be contrary to defendant’s express will." In contrast, Part IV lacks a similar provision, raising questions about whether the defense attorney could apply mutatis mutandis Article 346 of Chapter 1 of Part III under the Provision at Issue II.
The Provision at Issue II dates back to the Code of Criminal Procedure of July 28, 1928, where Article 432 stipulated that "except otherwise stipulated in this Chapter, interlocutory appeals shall apply mutatis mutandis Chapter I of Part III regarding Appeals." The wording of this provision has remained unchanged over time, although its legislative intent is unclear due to the passage of time. Nevertheless, overall observation of the mechanisms of challenge established in Part III and IV suggests that the Provision at Issue II is likely designed to account for the similarities between appeals and interlocutory appeals, both of which seek to protect defendants' rights through the level-based trial system and ensure the accuracy and fairness of court decisions. To avoid redundancy, the stipulates of the provision shall apply mutatis mutandis regarding appeals. However, given the volume, urgency, and need for swift resolution in many court rulings, there is a necessity for specific design in Part IV, Interlocutory Appeal. Thus, if there are exclusionary special provisions in the part, those would override the general rule that applies mutatis mutandis Chapter I of Part III regarding appeals under the Provision at Issue II.
As for what constitutes a provision "otherwise stipulated in this Chapter" under the Provision at Issue II, examples include Article 404, Paragraph 1, of the current Code of Criminal Procedure, which lists the exceptions of rulings relating to jurisdiction or litigation proceedings prior to the judgment about which interlocutory appeals can be filed. Another example, according to Article 406 of the same law, is the interlocutory appeal period, which is specifically set at five days. In addition, the court of interlocutory appeal shall make a ruling within 10 days upon receiving the case file and exhibits in accordance with Article 410, Paragraph 3. Regarding who has the right to file interlocutory appeals, the Provision at Issue I only makes a distinction among those who are subject to the ruling between the parties and witnesses, expert witnesses, interpreters, or other non-parties. It does not include an exclusionary clause for the defendant's attorney. To ensure that defense attorneys can effectively assist defendants in exercising their rights, the defendant’s attorney, under the Provision at Issue II, should be able to invoke and apply mutatis mutandis Article 346 of Chapter 1 of Part III and file interlocutory appeals on behalf of the defendant. This way, the law could be in line with the constitutional intent to safeguard the right of instituting legal proceedings.
In conclusion, the Provision at Issue I only regulates the right to file an interlocutory appeal of the parties, witnesses, expert witnesses, interpreters, and other non-parties under the ruling. It does not specifically exclude defense attorneys. A holistic review of both provisions at issue suggests that the scope of who can file an interlocutory appeal should still apply mutatis mutandis Chapter I of Part III regarding the right to appeal. For the defense attorney, to effectively protect the defendant's right of instituting legal proceedings, the defense attorney is allowed to file an interlocutory appeal against the court's detention or extension of detention ruling for the interests of the defendant unless explicitly opposed by the defendant. This ensures the constitutional guarantee of personal liberty under Article 8 of the Constitution and the right of instituting legal proceedings under Article 16 of the Constitution.
IV. On Related Topics
1. To effectively safeguard the defendant's right of instituting legal proceedings, the assistance provided by a defense attorney in exercising the defendant's defense rights is constitutionally protected. In line with the intent of this judgment, a defense attorney may file an interlocutory appeal for the interests of the defendant concerning matters that the defendant is legally entitled to challenge (refer to the proviso of Article 404, Paragraph 1 of the Code of Criminal Procedure), provided that it may not be contrary to the defendant’s express will. However, the rights held by the defendant to make a petition for revocation, change, or reconsideration of the ruling, etc. (refer to Article 416, Paragraph 1 and Article 256-1 of the Code of Criminal Procedure), or other rights of exercise granted by the Code of Criminal Procedure (such as petitions for disqualifying a judge under Article 18, petitions for objecting to an expert witness under Article 200, Paragraph 1 and petitions for withdrawing the bargaining agreement under Article 455-3) are not within the scope of this petition and thus cannot be reviewed together. Nevertheless, relevant authorities shall consider studying and amending the Code of Criminal Procedure in accordance with the intent of this judgment.
2. The right to file an interlocutory appeal of the defendant’s statutory agent or spouse may apply mutatis mutandis Article 345 of Chapter 1 of Part III, in accordance with the Provision at Issue II.