August 2017
The requirement that a crime suspect cannot apply to review case files in the detention procedure is declared unconstitutional by Judicial Interpretation No. 737 of the Judicial Yuan(Taiwan)
Emily Chueh
The Grand Justices of the Judicial Yuan rendered Judicial Interpretation No. 737 (hereinafter, the "Interpretation") during the 1442nd Meeting of April 29, 2016 to declare that Article 33, Paragraph 1 and Article 101, Paragraph 3 of the current Code of Criminal Procedure, which only allow defendants and their defenders to be informed of the facts relied on for detention reasons instead of allowing defendants and their defenders to learn about the reasons and relevant evidence for a motion to detain, do not meet the objectives of the Constitution. The Code of Criminal Procedure is required to be properly revised within one year after the promulgation date of the Interpretation. If the legal amendment is not completed within the required period, the detention procedure in the course of a court's investigation should be conducted pursuant to the gist of the Interpretation.
According to the Interpretation, Article 8 of the Constitution provides that "due process" should be followed if personal freedom is to be deprived or restricted. Article 16 of the Constitution specifically provides that the people have the right to litigate, meaning that the state should provide institutional safeguard if court remedies are sought via due process. The detention arraignment procedure during that stage of investigation is a procedure by which a prosecutor submits a motion specifying detention reasons and relevant evidence to the court for approval. Under the principle of constitutional due process, crime suspects and their defenders should be informed of the detention reasons and relevant evidence in proper and timely manners so that they can effectively exercise their right of defense. However, if sufficient facts suggest that investigation objectives may be compromised due to likely destruction, fabrication or alteration of evidence or collusion with accomplices or witnesses or if the lives and bodies of others are threatened, relevant evidence for a motion to detain can certainly be restricted or prohibited from disclosure.
The Grand Justices further indicated that if a crime suspect and his/her defendant are informed only of the "facts" relied on for the motion to detain under Article 33, Paragraph 1 of the current Code of Criminal Procedure, which provides: "A defender may review, copy or photograph case files and evidence during trial," and Article 101, Paragraph 3 of the same law, which provides: "The facts relied on in the subparagraphs of Paragraph 1 shall be communicated to the defendant and the defendant thereof and such communication shall be indicated in transcripts," and cannot learn about the specific reasons and relevant evidence concerning the prosecutor's motion to detain, this does not meet the objective of following the due process when personal freedom is deprived under the Constitution.
The Grand Justices also indicated that whether the defenders are allowed to review and copy or photograph case files and evidence directly or whether relevant case files and evidence will be presented, communicated or handed over for review by judges or whether other appropriate approaches are to be taken so as to allow crime suspects and their defenders to learn about the reasons and evidence for a prosecutor's motion to detain falls within the scope of legislative discretion. However, the above due process principle of the Constitution should be followed. Therefore, it was declared that the relevant authorities shall revise the Code of Criminal Procedure based on the gist of the Interpretation within one year after the promulgation date of the Interpretation. If the legal amendment is not completed within the required period, the detention procedure in the course of a court's investigation should be conducted pursuant to the gist of the Interpretation.
The Grand Justices of the Judicial Yuan rendered Judicial Interpretation No. 737 (hereinafter, the "Interpretation") during the 1442nd Meeting of April 29, 2016 to declare that Article 33, Paragraph 1 and Article 101, Paragraph 3 of the current Code of Criminal Procedure, which only allow defendants and their defenders to be informed of the facts relied on for detention reasons instead of allowing defendants and their defenders to learn about the reasons and relevant evidence for a motion to detain, do not meet the objectives of the Constitution. The Code of Criminal Procedure is required to be properly revised within one year after the promulgation date of the Interpretation. If the legal amendment is not completed within the required period, the detention procedure in the course of a court's investigation should be conducted pursuant to the gist of the Interpretation.
According to the Interpretation, Article 8 of the Constitution provides that "due process" should be followed if personal freedom is to be deprived or restricted. Article 16 of the Constitution specifically provides that the people have the right to litigate, meaning that the state should provide institutional safeguard if court remedies are sought via due process. The detention arraignment procedure during that stage of investigation is a procedure by which a prosecutor submits a motion specifying detention reasons and relevant evidence to the court for approval. Under the principle of constitutional due process, crime suspects and their defenders should be informed of the detention reasons and relevant evidence in proper and timely manners so that they can effectively exercise their right of defense. However, if sufficient facts suggest that investigation objectives may be compromised due to likely destruction, fabrication or alteration of evidence or collusion with accomplices or witnesses or if the lives and bodies of others are threatened, relevant evidence for a motion to detain can certainly be restricted or prohibited from disclosure.
The Grand Justices further indicated that if a crime suspect and his/her defendant are informed only of the "facts" relied on for the motion to detain under Article 33, Paragraph 1 of the current Code of Criminal Procedure, which provides: "A defender may review, copy or photograph case files and evidence during trial," and Article 101, Paragraph 3 of the same law, which provides: "The facts relied on in the subparagraphs of Paragraph 1 shall be communicated to the defendant and the defendant thereof and such communication shall be indicated in transcripts," and cannot learn about the specific reasons and relevant evidence concerning the prosecutor's motion to detain, this does not meet the objective of following the due process when personal freedom is deprived under the Constitution.
The Grand Justices also indicated that whether the defenders are allowed to review and copy or photograph case files and evidence directly or whether relevant case files and evidence will be presented, communicated or handed over for review by judges or whether other appropriate approaches are to be taken so as to allow crime suspects and their defenders to learn about the reasons and evidence for a prosecutor's motion to detain falls within the scope of legislative discretion. However, the above due process principle of the Constitution should be followed. Therefore, it was declared that the relevant authorities shall revise the Code of Criminal Procedure based on the gist of the Interpretation within one year after the promulgation date of the Interpretation. If the legal amendment is not completed within the required period, the detention procedure in the course of a court's investigation should be conducted pursuant to the gist of the Interpretation.
