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) upheld the constitutionality of Articles 403 and 419 of the Code of Criminal Procedure as long as it is construed that the defense attorney is eligible for interlocutory appeal under Article 403. 

Background Note

In the case of violation of the Narcotics Hazard Prevention Act, the petitioner’s detention period was extended by the Taiwan Taipei District Court during the investigation. For the petitioner’s interest, the defense attorney filed an interlocutory appeal against the extension applying mutatis mutandis of Article 346 under Article 419 of the Code of Criminal Procedure. However, the defense attorney’s interlocutory appeal was overruled by the Taiwan High Court on the ground that the defense attorney is not eligible to file for an interlocutory appeal during the investigation under Articles 403 and 419 of the Code of Criminal Procedure. 
After the exhaustion of ordinary judicial remedies, the petitioner lodged a petition for constitutional review, pointing out that when the court rules to extend the detention of the defendant during the investigation, Articles 403 and 419 of the Code of Criminal Procedure do not bestow the right to interlocutory appeal for the defendant’s interest upon the defense attorney. The petitioner argued that the said provisions made the detained defendants unable to exercise their right to effective counsel within the five-day period for interlocutory appeals, which violates the liberty and security of the person and the right to judicial remedy enshrined in Articles 8 and 16 of the Constitution. 

Summary of the Judgment 

Holding

Article 403 of the Code of Criminal Procedure (hereinafter “the disputed provision I”) stipulates that “A party may file an interlocutory appeal to the direct appellate court if he/she disagrees with the court ruling, unless otherwise provided. (Paragraph 1) A witness, expert witness, interpreter, or other non-party under the ruling may also file an interlocutory appeal. (Paragraph 2)” Article 419 of the said Code (hereinafter “the disputed provision II”) stipulates that “Except otherwise stipulated in this Chapter, interlocutory appeals shall apply mutatis mutandis Chapter I of Part III regarding Appeals.” Viewing these provisions comprehensively, the range of parties eligible for interlocutory appeal shall cover, mutatis mutandis, the provisions regarding the right to appeal in Chapter I, Part III of the Code of Criminal Procedure (hereinafter the “CCP”). The defense attorney may, to effectively protect the defendant’s right to a judicial remedy, and except when it contradicts the defendant’s expressed will, file for an interlocutory appeal against the ruling to extend the defendant’s detention for the defendant’s interest. As long as the defense attorney is eligible to file an interlocutory appeal, the disputed provisions do not violate the right to liberty and security of the person and the right to judicial remedy guaranteed by Articles 8 and 16 of the Constitution. 

Reasoning

Under Articles 8 and 16 of the Constitution, criminal defendants shall enjoy the right to due process, the right to a fair trial, and especially the full right of defense during litigation^[1], which includes the right to retain a trustworthy defense attorney. The criminal defendant’s right to counsel shall be effectively protected so that his/her right to defense can be functional.^[2] The defendant’s right to effective counsel has been recognized as a universal fundamental human right by the modern Rechtsstaat (literary "state of law")^[3].  Permitting the defendant to appeal against the decisions or judgments of the court is an integral part of the defendant’s right to defense. Except when it contradicts the defendant’s expressed will, the defense attorney’s eligibility to appeal for the defendant’s interest is a cardinal part of the defendant’s right to effective counsel, therefore shall be protected by the Constitution.【9, 10】
Detention is a compulsory measure that incarcerates the criminal defendant at a certain location before the judgment, which involves the constraint on the defendant’s physical liberty. It is the gravest compulsory measure on one’s freedom, therefore shall be conducted with caution and only when there are no other alternatives. For the reason that the detained defendants are excluded from the outer world, it is especially difficult for them to gather helpful legal information for remedy, rendering them nearly incapable of defending themselves. Furthermore, as the statutory period for interlocutory appeal against detention rulings is a fleeting five days, only with the help from defense attorneys can the defendants, under this extremely disadvantaged setting, exercise effectively and timely their right to defense, and ensure that the detention rulings are cautious and of last resort (ultima ratio). 【11,12】
In the beginning, when the CCP was promulgated on July 28, 1928, the detention of the accused during the investigation was within the competence of the prosecutor. The prosecutor may interrogate the accused and order them to be detained. It is limited to only the accused may file an appeal with the court for the revocation or altering of the prosecutor’s detention order/ extension of the detention order. Even though defense attorneys may participate in defending the accused during the stage of investigation after the amendment of the CCP in 1982, the aforementioned limitation remained. 【13】
The CCP was later amended in 1997 per the request of J.Y. Interpretation No.392, conferring the competency of deciding detention during the investigation to the court. In the said amendment, the defendant has the right to file an interlocutory appeal against the detention ruling/ ruling to extend detention under the disputed provision I. However, considering that the CCP stipulates in Article 346 ^[4], which is in the general provisions of appeals (Chapter I, Part III), that “An agent or defense attorney in the original trial may appeal for interests of the defendant; provided that it may not be contrary to defendant’s express will”; whereas the provisions regarding interlocutory appeals in Chapter IV does not stipulate such mechanism, whether the defense attorney may apply Article 346 mutatis mutandis under the disputed provision II is in doubt. 【14】
The mutatis mutandis clause in the disputed provision II was erected under the consideration of the similarity between appeals and interlocutory appeals: they both intend to protect the parties’ rights and maintain fair trial through the trial-instance system. However, given the substantial caseload in practice and the urgency of (interlocutory) rulings, there is still a need for interlocutory appeals to be distinctively designed. Therefore, Chapter I, Part III of the CCP shall not apply mutatis mutandis, if provisions regarding interlocutory appeals stipulate exclusively otherwise. 【15】
The matters stipulated otherwise under the disputed provision II are matters such as the period for interlocutory appeals, the court of interlocutory appeals…, etc. As for those eligible to file interlocutory appeals, the disputed provision I only stipulates the separate application between parties and other non-parties such as witnesses, expert witnesses, and interpreters. It does not stipulate specifically for the defense attorney to be excluded from the process. Therefore, to assist the defendants in exercising their right to defense effectively, their defense attorneys shall apply Article 346 of the CCP mutatis mutandis under disputed provision II. 【16】
In conclusion, viewing the disputed provisions I and II comprehensively, the range of those who have the eligibility to file interlocutory appeals shall cover, mutatis mutandis, the provisions regarding parties eligible to appeal in Chapter I, Part III of the CCP. As long as the defense attorney may, except when it contradicts the defendant’s expressed will, file an interlocutory appeal against the court’s detention ruling or ruling to extend detention for the defendant’s interest, the disputed provisions I and II are not in violation with the right to liberty and security of person and the right to judicial remedy guaranteed by Articles 8 and 16 of the Constitution.【17】

[1] See J.Y. Interpretation Nos. 582, 654, 737, 762, and 789. 
[2] See J.Y. Interpretation No. 654.
[3] Please refer to Article 14.3.4 of the International Covenant on Civil and Political Rights, Article 6.3.3 of the European Convention on Human Rights, Sixth Amendment to the United States Constitution, and Article 37.3 of the Constitution of Japan. 
[4] Article 346 of the CCP: "An agent or defense attorney in the original trial may appeal for interests of the defendant; provided that it may not be contrary to defendant's express will.”