July 2022
Frank Sun and Yuki Chiang
In the past, there was once a defender of a criminal defendant who was present during the defendant’s interrogation, but the prosecutor prohibited the defender from recording the interrogation and seized the interrogation notes taken by the defender in accordance with the second proviso of Article 245 of the Code of Criminal Procedure. The above defender filed a motion with the court to cancel the seizure in accordance with Article 416, Paragraph 1, Subparagraph 1 of the Code of Criminal Procedure, but the court denied the motion on the grounds that the motion was inconsistent with the circumstances enumerated under the subparagraphs of Article 416, Paragraph 1 of the Code of Criminal Procedure. Asserting that such provision of the Code of Criminal Procedure is allegedly unconstitutional, the aforementioned defender applied for constitutional interpretation in September 2016.
The Constitutional Court of Taiwan handed down the 111-Xian-Pan-7 Decision of May 27, 2022, holding that “since Article 416, Paragraph 1 and other provisions of the Code of Criminal Procedure do not provide the defendant, the crime suspect, or his or her defender with remedies when the prosecutor prohibits or limits the defender from being present, taking notes, or stating his/her opinions during the interrogation in accordance with the proviso of Article 245, Paragraph 2 of the same law, such provisions are inconsistent with the constitutional principle that remedies shall be provided to defendants and crime suspects and violate the gist of protecting litigation rights under Article 16 of the Constitution of the Republic of China (Taiwan), and related agencies are required to properly amend the Code of Criminal Procedure with appropriate provisions according to the gist of this decision within two years after the promulgation date of this decision.”
The authors concur with the above opinion of the Constitutional Court that criminal defendants are entitled to a fair court trial under the principle of due process pursuant to Articles 8 and 16 of the Constitution of the Republic of China (Taiwan), which protect personal freedom and litigation rights, and that the defendant should also have an adequate right of defense in litigation. To carry out a criminal defendant’s constitutional right of defense, the defendant or suspect has the right to be effectively assisted and defended by a defender. The so-called “Effective Representation” requires that the defender be given the opportunity to be actually present, take notes, or present his or her opinions; otherwise, the defendant or suspect may be restricted or deprived of his or her relative rights due to procedural barriers. When a defendant, suspect, or his or her defender objects to the prosecutor’s restriction or prohibition against the defender’s presence, note-taking, or statement of opinions during interrogation, the defender should be granted the right to seek remedies in his/her own name on behalf of the defendant or crime suspect.
After the release of the Constitutional Court’s decision and before the completion of the legal amendment, the defendant, crime suspect, or his or her defender may mutatis mutandis apply the procedure stipulated under Article 416 of the Code of Criminal Procedure in filing a motion to the competent court to revoke the prosecutor’s disposition rendered in accordance with the proviso of Article 245, Paragraph 2 of the same law to restrict or prohibit a defender’s presence, note-taking, or statement of opinions during the interrogation of the defendant or crime suspect.