Note: 
This summary constitutes no part of the Judgment but is prepared by the clerks of the Taiwan Constitutional Court only for the readers' reference.
Original paragraph numbers that the summarized texts correspond to are put into lenticular brackets after each paragraph.

Headnotes

In this Judgment, the Taiwan Constitutional Court (TCC) declared Article 205-2 of the Code of Criminal Procedure unconstitutional. The TCC ruled that said provision, by empowering the public prosecuting affairs official, judicial police office, or judicial policeman to collect urine specimens against the accused or the suspect's will for criminal evidence without written permission signed by a public prosecutor, fails to satisfy the requirement of due process, consequently infringes upon the suspect's right to information privacy and freedom from bodily and mental harm. 

Background Note

The petition of this case was filed by the Criminal Division No.17 of the Taiwan New Taipei District Court. In hearing a drug offense case, the petitioner believed that the pertaining Article 205-2 of the Code of Criminal Procedure has violated the Constitution. The petitioner suspended the proceeding of the case and lodged a petition regarding the constitutionality of the disputed provision with the Judicial Yuan in 2014.

 
Summary of the Judgment 

Holding

1. Article 205-2 of the Code of Criminal Procedure (hereinafter the “disputed provision”) stipulates that “A public prosecuting affairs official, judicial police officer, or judicial policeman may, for the purposes of investigating the circumstances of an offense and collecting evidence, if necessary, gather …, against the suspect's will  [text adjusted to avoid gender bias] … samples of … urine … if there is probable cause to believe … can be used as the evidence of crime.” The disputed provision can only be construed as the authorization for the prosecuting affairs official, judicial police officer, or judicial policeman to gather urine specimens through non-invasive measures. However, even so construed, said provision does not adhere to the due process required by the Constitution, consequently violating the suspect's right to information privacy and freedom from bodily and mental harm protected under Article 22 of the Constitution. The disputed provision shall cease to be in force after two years from the announcement of this Judgment. For open cases that have conducted urine specimen collection following the disputed provision before the announcement of this Judgment, current regulations shall apply.
2. The competent authority shall amend pertaining provisions as appropriate within the two-year grace period, during which non-invasive urine specimen collection under the disputed provision shall require prior written permission from the public prosecutor. Where the situation is urgent, urine specimen collection under the disputed provision shall be reported to and permitted by the public prosecutor within 24 hours of its enforcement. If deemed impermissible, the prosecutor may revoke the action within three days. The suspect who is subjected to said measure may appeal to the court for revocation within ten days.

Reasoning

Under the disputed provision, the collection of urine specimens is conducted on the human body to perpetuate criminal evidence, which amounts to physical examination (in the criminal procedure), and has the same compulsory nature as a search under Chapter 11, Part 1 of the Code of Criminal Procedure (hereinafter the “CCP”).【11】

The compulsory collection of urine specimens may be divided into two categories in terms of its methods: invasive and non-invasive. The two types of measures essentially cause the same amount of infringement on the suspect's information privacy: they both may acquire information on the suspect's behavior and personal life through data contained in urine specimens. However, for the reason that invasive urine specimen collection is enforced through the method of inserting a catheter compulsorily in the suspect's private parts, during which the suspect's right to information privacy and freedom from bodily and mental harm will be violated severely. Furthermore, as invasive urine specimen collection imposes severe infringement on the (legally arrested) suspect’s fundamental right, it is unreasonable, illegitimate, and in conflict with due process to authorize judicial police officers or judicial policemen to enforce it. Therefore, the disputed provision shall be applied only to urine specimen collection through non-invasive methods.【11-13】

The suspect's information privacy and bodily freedom will inevitably be violated even though his/her urine specimen is collected through a non-invasive method. Therefore, evidence perpetuation through non-invasive urine specimen collection (hereinafter the “stated measure”) shall follow the necessary procedure to conform to the requirement of due process under the Constitution.【15】
Given the stated measure's non-consensual, criminal investigative nature, its authorizing provision, in order to be constitutional, should adhere to an equal standard of due process as other similar physical examinations of compulsory nature. Considering that collection of urine specimens causes less damage to the suspect's information privacy compared to the collection of blood samples, conferring the public prosecutor with the competence to authorize non-invasive, non-harmful urine collection, and to decide whether to enforce the stated measure non-consensually in individual cases, satisfies the requirement of due process under the Constitution.【17】

Under the disputed provision and for the purpose of evidence perpetuation, judicial police officers or judicial policemen may, with prior written permission from the public prosecutor, enforce non-invasive urine collection upon suspects who are legally arrested and detained.【18】

Unpermitted non-invasive urine collection by a judicial police officer or judicial policemen is lawful only if it is out of urgency for the perpetuation of criminal evidence, and it must be reported and permitted by the public prosecutor ex post facto. In the said circumstances, the individual subjected to the stated measure shall have the opportunity to remedy in front of a court. 【20】

The disputed provision is unconstitutional, as it authorizes judicial police officer or judicial policemen to conduct non-consensual urine specimen collection on the lawfully arrested sans permission from a public prosecutor, without specifying its urgency; as it does not require ex post facto supervision from the public prosecutor; and as it does not provide a remedy for the individual subjected to such measure—rendering it in violation with the due process in protecting the suspect's information privacy and freedom from bodily and mental harm.【20】