2017.4.26
Jenny Chen
The President promulgated Articles 93 and 101, as amended, and Articles 31-1 and 33-1, as added, of the Code of Criminal Procedure (hereinafter, the “Law”) via the Hua-Zhong-One-Yi-10600052341 Directive of April 26, 2017. Except for Article 31-1, which will go into effect on January 1, 2018, the rest of the provisions came into effect on the day of their promulgation.
In reference to the gist of Judicial Interpretation No. 737, a case file acquisition right and a mandatory defense system are added to the Law. Article 33-1 of the Law as amended specifically provides that defenders basically enjoy the same comprehensive right to review case files as they do during trial for the detention review procedure in the course of investigation. For the accused without any defender, the court should allow the accused to learn about the contents of the case file in proper manners. However, since such case is still under investigation, the evidentiary materials obtained by defenders shall not be publicized, disclosed or used for unjustified purposes. In addition, Article 93, Paragraph 2 and Article 101, Paragraph 2 of the Law contain additional accommodating requirements. When a case file may potentially undermine the purposes of investigation or jeopardize the lives or bodies of other people, a prosecutor may request the court to limit or exclude the case file from the accused and his/her defenders and shall state the reasons for, and scope of, such restriction or exclusion during the detention review procedure at the court. Article 101, Paragraph 3 of the Law provides that the gist of all the facts, specific details about all grounds and relevant evidence relied on by the prosecution for detention and accepted by the court shall be communicated to the accused and his/her defenders to allow effective exercise of their defense right and shall be noted in the transcripts to provide a basis for interlocutory appeal by the parties. However, for the case file whose access is restricted to the accused and his/her defenders, since the exercise of their defense right is completely deprived, such case file shall not serve as the basis for detention review.
In addition, the highest degree of procedural safeguard should be provided since a prosecutor’s application to the court to detain the accused in the course of investigation is the most severe compulsory disposition which limits personal freedom before indictment. Article 31-1 of the Law as amended extends the mandatory defense system to the court review and remedy procedures for examining the prosecutor’s motion to detain the accused, extend their detention or detain the accused again. If the accused have not appointed any defender, the presiding judge shall designate a public defender or attorney to defend the accused. However, this restriction does not apply if a designated defender is absent for over four hours and the accused voluntarily request examination. This portion, which involves relevant budgeting and accommodating measures, will go into effect on January 1, 2018.