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The Right to Access Case Files, Evidence and Information While in Pretrial Detention

Wen-Ping Lai/Shu-Yu Lin/Shu-Yu Lin


Paragraph 1, Article 33 of the Criminal Procedure Code states: “During trial a defense attorney may examine the case file and exhibits and make copies or photographs thereof.” According to this provision, neither the criminal suspects nor their counsels have the right to examine case files or evidence in pretrial detention proceedings. When a public prosecutor submits a detention motion, criminal suspects and their counsels have access to only the factual issues cited in the detention motion at the investigation stage, but have no right to be informed of the evidence or the reasons for which the prosecution requested detention. Consequently, even when a criminal suspect is facing the risk of pretrial detention, his or her counsel still cannot exercise the right of defense for the suspect effectively, which grossly violates the principle of due process of law required by the Constitution while depriving personal freedom. Therefore, under the Constitution, it remained unsettled whether criminal suspects and their counsels in pretrial detention proceedings were entitled to access case files, evidence and information to exercise the right of defense effectively, and how infringement of the personal freedom of the criminal suspects could be prevented.
 
On 29 April 2016, the Grand Justices issued J.Y. Interpretation 737, which invoked Articles 8 and 16 of the Constitution to protect personal freedom and the principle of due process of law. The interpretation states:
 
Given the legislative intent of Articles 8 and 16 of the Constitution to protect personal freedom and the right to institute legal proceedings, deprivation of personal freedom should comply with the principle of due process of law. During the detention hearing at the investigation stage, the criminal suspect as well as his or her counsel should be informed at a proper time and in a proper way of the grounds on which the public prosecutor applied for detention. Unless there are facts sufficient to justify an apprehension that the suspect might destroy, forge, or alter evidence, or conspire with a co-offender or witness, thereby jeopardizing the purpose of criminal investigations or other people’s life or body and hence requiring restriction or prohibition, access must be given to evidence concerning the motion to detain so that the right of defense can be exercised effectively in accordance with the constitutional requirements of legal due process. The method of access to information is not limited to examining the dossier and making copies or photographs thereof. Paragraph 1, Article 33 of the Code of Criminal Procedure reads: "During trial a defense attorney may examine the case file and exhibits and make copies or photographs thereof." Paragraph 3, Article 101 of the Code of Criminal Procedure reads: "The accused and his defense attorney shall be informed of the facts based to support the detention of an accused as specified in section I of this article. The same shall be stated in the record." Given the above provisions, giving the criminal suspect under investigation and his or her counsel only the facts leading to the detention defies the legislative intent of Articles 8 and 16 of the Constitution. The authorities concerned shall amend the relevant provisions of the Code of Criminal Procedure in accordance with the ruling of this Interpretation within one year of the issuance date of this Interpretation. The court in charge of detention should follow this ruling during detention hearing if the amendment is not completed in time.
 
Although the Grand Justices did not directly find Paragraph 3, Article 101 of the Code of Criminal Procedure unconstitutional, they still stressed the necessity of amendment. In reaction, the Legislative Yuan amended Paragraph 1, Article 33 of the Code of Criminal Procedure on 21 April 2017. The amendment reads: “A defense attorney may examine the case file and exhibits and make copies or photographs in pretrial detention proceedings, unless otherwise provided by law. A defense attorney may not publicize or disclose the case file or evidence obtained by Paragraph 1, or use it in any way irrelevant to the purpose of defense. If the criminal suspect does not retain any counsel in pretrial detention proceedings, the court shall adequately inform the criminal suspect of the content of the case file and evidence.”
 
To preserve the purpose of criminal investigation, the criminal suspects' and their counsels' right to access case files, evidence and information is not unchecked. Once there are facts sufficient to justify an apprehension that they may destroy, forge, or alter evidence, or conspire with a co-offender or witness, thereby jeopardizing the purpose of criminal investigations or other people’s life or body, the public prosecutor could, stating the reasons in another court file, request the court to, by appropriate means, circumscribe or prohibit criminal suspects' and their counsels' access to case files, evidence and information. If the criminal suspects are denied access to certain evidence and information, then such evidence and information cannot be the basis for their detention. It is also necessary to amend Paragraphs 2 and 3, Article 101 of the Code of Criminal Procedure for alignment with this amendment.
 
J.Y. Interpretation 737 and the amendment to the Code of Criminal Procedure on 21 April 2017 remedied the denial of fundamental rights enshrined in the Constitution to suspects in pretrial detention proceedings and the deprivation of the defense right in pretrial detention proceedings. However, how the courts will promulgate rules on how to exercise the right to examine case files or evidence in pretrial detention proceedings in response to the amendment remains to be seen.
 

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