Note: 
This summary constitutes no part of the Judgment but is prepared by the Department of Clerks for the Constitutional Court only for the readers' reference.
Original paragraph numbers that the summarized texts correspond to are put into lenticular brackets after each paragraph. 
In case of any conflict of meaning between the Traditional Chinese version and the translated English version, the Traditional Chinese version shall prevail.

Headnotes

The accused or criminal suspect's right to effective assistance of counsel and right to defense during the investigation should include the right of the defense counsel to be present, to take notes, and to state opinions.

Article 416, Paragraph 1 of the Code of Criminal Procedure, and other relevant provisions are unconstitutional for failing to provide the accused, the suspect, or their defense counsel with the opportunity to object or seek remedy against the prosecutor's order to restrict or prohibit the defense counsel from being present, take notes or express opinions under the circumstances stated in the proviso of Article 245, Paragraph 2 of the Code. Such failure violates the constitutional principle of ubi jus ibi remedium (where there is a right, there is a remedy), thus violating the right to institute legal proceedings under Article 16 of the Constitution.

 
Background Note

Petitioner Ming-Hsien CHEN, a defense counsel, was assisting his client in an inquiry session of a corruption case conducted by a prosecutor at the Kaohsiung District Prosecutors Office on June 15, 2016. During the prosecutorial interrogation, the prosecutor pointed out that the petitioner's notes taken during the process were too detailed and had to be stopped due to the non-disclosure of the investigation. Citing the proviso of Article 245, Paragraph 2 of the Code of Criminal Procedure (hereinafter "the Code"), the prosecutor ordered the petitioner to stop making notes of the session. The prosecutors also ordered the bailiffs to seize the notes from the petitioner. The petitioner filed for the Kaohsiung District Prosecutor's Office to return his notes but was denied. The petitioner later lodged quasi-interlocutory appeals with the Kaohsiung District Court to have his note back and get the prosecutor's order withdrawn. The Kaohsiung District Court dismissed the quasi-interlocutory appeals finally. 

After exhausting all judicial remedies, the petitioner lodged for constitutional review in September 2016.

Summary of the Judgment 

Holding

1. Article 416, Paragraph 1 of the Code (hereinafter the "disputed provision") and other relevant provisions did not provide the accused, criminal suspect, or the defense counsel with the opportunity to challenge the prosecutor's order of restricting the defense counsel from being present, taking notes, or offering legal advice in situations listed in the proviso of Article 245, Paragraph 1 of the Code. Within this scope, the disputed provision and other relevant provisions do not conform to the constitutional principle of ubi jus ibi remedium (where there is a right, there is a remedy), thus violating the right to institute legal proceedings under Article 16 of the Constitution. The competent authority should amend the Code as appropriate within a two-year grace period as of the announcement of this Judgment. 
2. Before the amendment, the accused, criminal suspects, or the defense counsel may apply Article 416 of the Code mutatis mutandis, and petition the concerned court to withdraw the prosecutor's order in the aforementioned situation. 
3. The rest of the petition shall be dismissed. 

Reasoning

1.    Principles pertaining to the review: 

    In accordance with the protection of personal freedom and the right to institute legal proceedings under Articles 8 and 16 of the Constitution, the accused should have the right to a fair trial following the due process of law, which especially entails the right of sufficient defense during trial. The constitutional protection to due process of law and the right of sufficient defense, should not be limited to the accused sub judice, but should be effectively offered to criminal suspects starting from the stage of investigation. Such protection should include the accused or criminal suspect's right to effective assistance of counsel.【12】

    The defense counsel, to protect the accused or the criminal suspect's rights effectively, should have the right to be present and provide legal assistance in a timely manner when the accused or the criminal suspect is under prosecutorial interrogation during the criminal investigation process. This entails that the defense counsel has the right to be present during interrogation, express opinions, as well as the right to memorize, comprehend, and engage in other thinking activities. Taking notes on the spot is auxiliary to such activities and is inseparable from the defense counsel's conduct of being present and offering advice on-site. Therefore, in addition to the right of choice of counsel, the accused or criminal suspect's right to effective assistance of counsel and the right to defense during an investigation should include, at a minimum, the right of the defense counsel to be present, to take notes, and to state opinions. The defense counsel should have the right to seek remedies in his or her own name for the benefit of the accused or criminal suspect unless explicitly indicated otherwise by them. 【13】

2.    Judgment of the Court:

    Article 245, Paragraph 2 of the Code stipulates: "The defense attorney of an accused or suspect may present and state his opinions, when the prosecutor, prosecuting investigator, judicial police officer, or judicial police interrogates the accused or suspect. However, such presence may be restricted or prohibited, if there are sufficient facts to support the belief that the defense attorney's presence may jeopardize national security, or may destroy, fabricate, or alter evidence, or may collude with accomplices or witnesses, or may damage other people's reputation, or whose misconduct is sufficient to affect the order of the prosecutorial investigation." The proviso clause of this provision explicitly states that, under certain circumstances, the prosecutor may restrict or prohibit the right to counsel of the accused, the suspect, or the defense counsel during interrogation at the stage of criminal investigation. Such a measure may constrain or deprive the accused or criminal suspect's constitutional right to effective assistance of counsel. However, there are no corresponding judicial remedies available under the current Code.【17】

    The disputed provision and other relevant provisions of the Code did not provide the accused, the suspect, or their defense counsel with the opportunity to object or seek remedy against the prosecutor's order to restrict or prohibit the defense counsel from being present, take notes or express opinions under the circumstances stated in the proviso of Article 245, Paragraph 2 of the Code. Within this scope, the disputed provision and other relevant provisions do not conform to the constitutional principle of ubi jus ibi remedium (where there is a right, there is a remedy), thus violating the right to institute legal proceedings under Article 16 of the Constitution. The competent authority should amend the Code as appropriate within a two-year grace period as of the announcement of this Judgment.【18】
 

Justice Tzung-Jen TSAI wrote this Judgment. 

Justice Jiun-Yi LIN and Justice Sheng-Lin JAN (joined by Justice Ming-Yan SHIEH) each filed a concurring opinion. 

Justice Jui-Ming HUANG filed an opinion concurring in part and dissenting in part. 

Justice Horng-Shya HUANG filed an opinion dissenting in part.

Justice Tai-Lang LU filed a dissenting opinion, joined by Justice Chen-Huan WU (except for Part 2 of the Holding).