As a matter of practice in criminal cases, the accused has no right to review the evidence obtained by the prosecutor that is unfavorable to the accused, and no exception is allowed for pretrial detention proceedings.  Paragraph 1 of Article 33 of the Code of Criminal Procedure provides that a defense attorney may examine the case file and evidence and make copies or photographs thereof during trial.  This rule has been applied in practice to allow a defense attorney to access the file only after the prosecutor has decided to bring the case to the court for trial.  The practice of prohibiting access to the file during detention proceedings is based on the principle of the confidentiality of criminal investigations.  At the same time, Paragraph 3 of Article 101 of the Code of Criminal Procedure also provides that an accused and his/her defense attorney shall be informed of the facts upon which the detention of the accused is based, and such facts shall be stated in the record.  However, an order of detention in pre-trial proceedings normally only record facts in summary form, often making it difficult for the accused and his/her defense attorney to obtain the detailed facts and evidence resulting from the investigation.  The above practice limits the accused’s right to institute legal proceedings during pretrial detention proceedings.

In June of 2013, in the case of Taipei Twin Towers bribery case, the accused Lai Su-ru was detained during investigation, and her defense attorney filed a motion to examine the case file and was rejected.  The accused then filed a petition with the Justices of the Constitutional Court (“Grand Justices”) seeking an interpretation of the Constitution on the grounds that Paragraph 1 of Article 33 of the Code of Criminal Procedure violates the guarantee of the right of personal freedom, the right of instituting legal proceedings enshrined in the Constitution, and the principle of proportionality and due process of law.  The Grand Justices accepted the petition and held oral arguments on March 3, 2016, in which the petitioner and representatives from the Ministry of Justice and the Judicial Yuan (at the invitation of the Grand Justices) all participated.

After the hearing, the Grand Justices issued J.Y. Interpretation No. 737, affirming the principle that the protection of personal freedom is a prerequisite for the exercise of various rights protected by the Constitution.  According to Articles 8 and 16 of the Constitution, any deprivation or limitation of personal freedom shall be constrained by due process of law, and the state shall secure the rights of the people to seek judicial review when their rights are being infringed.  During the detention proceedings in the investigation stage, the judge decides whether to detain the accused (thereby depriving the accused of his/her personal freedom) based on the reasoning and relevant evidence provided by the prosecutor.  Therefore, according to the above provisions of the Constitution, the relevant case file and evidence are to be timely provided to the accused and his/her attorneys in an appropriate manner, in order to allow the accused and his/her attorneys to effectively exercisethe rights of defense and to seek judicial review.  Access to case files and evidence should not be prohibited in all cases.  However, in order to balance a defendant’s personal freedom against thestate’s interest in enforcing the criminal law, the Grand Justices held that a party may be restricted or prohibited from obtaining the evidence relating to detention, if there are sufficient facts showing the possibility that the accused might destroy, fabricate, alter evidence, or form a conspiracy with a co-offender or witness to undermine the investigation, or otherwise endanger the lives and physical safety of others.

Based on the foregoing, the Grand Justices held that Paragraph 1 of Article 33 and Paragraph 3 of Article 101 of the Code of Criminal Procedure hinder an accused’s exercise of the right to defend himself/herself, and violate the principles of due process and personal freedom under the Constitution.  The relevant authorities were ordered by the Court to amend the said articleswithin one year of the announcement of J.Y. Interpretation No. 737.  The said articles remain valid law before such amendment.  If the relevant authorities fail to amend the said articles within one year, J.Y. Interpretation No. 737 shall apply with respect to the right of the accuseds and their attorneys to access the case file and evidence in detention proceedings during the investigation stage.  The Grand Justices’ ruling represents a major breakthrough in the protection of defendants’ rights in Taiwan’s criminal proceedings.