Ms. Lai Su-ru petitioned for a J.Y. interpretation after she became suspected of violating the Anti-Corruption Act in 2013 and was detained after the court approved the prosecution's detention request. After Lai was detained, her counsel's requests for examination of the case files were all rejected by the Taipei District Court. Then her counsel lodged an appeal with the Taiwan High Court. After the Taiwan High Court dismissed the appeal and the ruling became final, Lai and her counsel petitioned for a J.Y. interpretation, claiming that provisions of Paragraph 1, Article 33 of the Code of Criminal Code, which entirely prohibited the counsel from accessing the case files during investigation, was against the protection of people's rights under Articles 8 and 16 of the Constitution, and her counsel also claimed that his rights to work and access the case files as a defense counsel was infringed.
On 29 April 2016, the Grand Justices issued J.Y. Interpretation 737 stating that as personal freedom and people's right to institute legal proceedings are guaranteed by Articles 8 and 16 of the Constitution, deprivation of personal freedom should be carried out according to due processes of law; hence, in pretrial detention hearing, the suspect and his/her counsel should be informed by an appropriate way of the reasons the prosecution petitioned for detention and the evidence. Thus, the Grand Justices declared that according to Paragraph 1, Article 33 and Paragraph 3, Article 101 of the Code of Criminal Procedure, a suspect in pretrial detention hearing and his/her counsel would be informed of only the facts that detention request based on, such provisions violated the aforesaid constitutional protection of people's rights.
The interpretation does not directly grant criminal suspects or their counsels the right to examine case files in pretrial detention proceedings, but recognizes their right to be informed of the reasons for which the prosecution requested detention of the suspects and the evidence. As for how to ensure the right of criminal suspects and their counsels to obtain such information, the Grand Justices did not declare Article 33 of the Code of Criminal Procedure unconstitutional, but demanded that the Code of Criminal Procedure be amended for alignment with the purpose of J.Y. Interpretation 737.
According to the German Code of Criminal Procedure before the 2009 amendment, defense counsel's request to access the case files may be denied where such access could thwart the purpose of the investigation. However, Paragraph 2, Section 147 of the German Code of Criminal Procedure as amended in 2009 states, "If the accused is in remand detention or if, in the case of provisional arrest, this has been requested, information of relevance for the assessment of the lawfulness of such deprivation of liberty shall be made available to defense counsel in suitable form; to this extent, as a rule, inspection of the files shall be granted." According to the German Code of Criminal Procedure, when an accused is in remand detention or under restriction on personal freedom, the prosecution should allow his/her defense counsel to inspect the case files rather than citing obstruction of the investigation to reject the defense counsel's request.
In the United States, the prosecution was obligated to disclose materially exculpatory evidence to the accused. See Brady v. Maryland, 373 U.S. 83 (1963). And the court generally should not have dismissed the request for bail on the basis of ex parte and in camera evidence presented by the prosecution. These rules are to ensure that the accused under pretrial detention have access to the necessary information so that the requirement of due process of law can be fulfilled.
It remains to be seen whether the Code of Criminal Procedure will be amended to expand accused's access to case files or to have evidence or information disclosed by prosecutors or judges to the accused. Nevertheless, even though the Interpretation grants the legislature the discretion, it also demands that the legislative discretion must satisfy the due process of law under the Constitution. Hence, regardless of how the Code of Criminal Procedure will be amended, the amended version should not circumscribe the accused's right to access information but in exceptional cases; otherwise, the amendment will defy the purpose of the Interpretation.