Copying Audio Recordings is a Right of Litigants, Not a Favor from the Court

The Judicial Yuan recently issued a press release proposing a draft amendment to the Regulations Governing Court Audio Recordings, which stipulates that litigants applying to copy court audio recording discs must obtain the court's permission. Such an amendment not only unreasonably deprives litigants of their right to access complete litigation materials, but also opens a backdoor for courts to evade public scrutiny. Furthermore, it contradicts the Judicial Yuan's current policies and relevant regulations, making it highly inappropriate. We hereby express our opposition with the following points:

1. In current litigation practice, trial-date proceedings serve as evidence exclusively through court minutes (please refer to Article 47 of the Code of Criminal Procedure and Article 219 of the Code of Civil Procedure). Therefore, court minutes often have a decisive impact on the rights and interests of litigants. To elaborate, when a party makes a statement, a single word's difference naturally carries the consequence of a criminal confession or a civil admission; moreover, a witness's testimony frequently determines the success or failure of a lawsuit. Furthermore, a judge's direction of proceedings in court not only sways the outcome of the lawsuit, but when their in-court words and actions reveal hostility or prejudice toward a party, it is often necessary for the party to petition for the judge's recusal in order to ensure a fair trial. Given that all of the above rely exclusively on court minutes as evidence, the importance of the minutes goes without saying. However, in current litigation practice, court minutes are prepared by court clerks under the direction of the judge, capturing the gist of statements made by participants in the proceedings. Since they are not recorded verbatim, there is clearly a risk as to whether they can accurately present the full picture of the court proceedings at the time. Therefore, audio recording the entire court proceedings for the subsequent verification of the minutes is indeed necessary. Because court audio recordings are necessary for litigants to verify and subsequently request the correction of minutes, they naturally constitute a part of the litigation materials, falling within the scope of the litigants' right to information or right to inspect case files, and form part of their right to access remedies guaranteed by the Constitution. Since it is a right, its exercise naturally does not require the court's permission. The draft amendment adds the requirement of court permission, stripping litigants of this right and forcing them in the future to beg the judge for mercy in order to obtain court audio recording discs. In the future, when a party applies to copy a disc on the grounds of verifying the minutes, will the judge feel displeased at being accused of "recording inaccurate minutes" and consequently dismiss the application? Will the parties themselves refrain from making such applications out of fear of offending the judge? These are probably scenes that can be anticipated soon after the passage of the draft. This draft amendment adequately demonstrates the official mindset that the provision of litigation materials is still viewed as a favor bestowed upon litigants by the court, rather than a right of the litigants. Such a conservative and outdated mindset deserves to be criticized and condemned by all sectors of society.
2. In particular, there are still no shortage of concrete cases where judges' words and actions go off the rails in court—arbitrarily reprimanding, mocking, or insulting litigants or witnesses, or even expressing an intention to engage in ex parte communications with a party—to an extent that constitutes grounds for a recusal petition. However, unless the judge in question is out of their mind, expecting them to direct a clerk to record their own "criminal evidence" is akin to asking a tiger for its skin. In such cases, if a party wishes to petition for a judge's recusal, it is often difficult to succeed without court audio recordings; yet how could one possibly expect a judge to provide the evidence against themselves? If litigants truly must obtain court's permission before acquiring court audio recording discs, this amendment will inevitably become a safe haven in the future for certain judges to evade supervision by the Judicial Yuan, the Control Yuan, and even the public. Its impropriety is thus all the more evident.
3. Furthermore, in order to improve the current problem where relevant personnel frequently stare intently at the clerk's note-taking inputs displayed on courtroom screens during trials, causing disruptions to the progress of litigation, the Judicial Yuan has been piloting the turning off of courtroom screens during trials in certain courts, with the preparation of minutes outsourced to be handled after court. One of the reasons it has offered to support this policy is that the current Regulations Governing Court Audio Recordings allow litigants to subsequently obtain court audio recording discs to verify the accuracy of the prepared minutes. By doing so, relevant parties no longer need to stare intently at the screens during trials, which would otherwise disrupt the proceedings. If the Judicial Yuan were to amend the Regulations Governing Court Audio Recordings to essentially prohibit litigants from obtaining court audio recording discs, it would clearly contradict the aforementioned policy. We must ask: is the Judicial Yuan truly willing to sacrifice the policy of facilitating litigation for the sake of a few individual cases?
4. The acquisition of audio recording discs is closely intertwined with the people's litigation rights and interests, which are protected by Article 16 of the Constitution. If the Judicial Yuan intends to impose restrictions, it must comply with the principle of legal reservation and provide for them by law. However, the current Regulations Governing Court Audio Recordings were enacted based on statutory authorization; it is already questionable whether they can add restrictions not provided for by law. Moreover, Paragraph 3 of Article 100-1 of the Code of Criminal Procedure stipulates: "The methods for 'safekeeping' the audio and video recording data referred to in Paragraph 1 shall be determined by the Judicial Yuan and the Executive Yuan, respectively." In other words, the legal authorization obtained by the Judicial Yuan is limited to determining "safekeeping methods" and does not allow it to arbitrarily add restrictions not provided by law upon the people's right to litigation. The draft amendment to the "Regulations Governing Court Audio Recordings" proposed by the Judicial Yuan clearly violates the principle of legal reservation and should be deemed unconstitutional.