Statement Regarding the Participation of Taipei Investigation Office Deputy Director Ts'en Heng-lin, Task Force Director Wan Chia-fo, and Section Chief Lou Jen-chien in the Press Conference Entitled 'Lawyers in Jeopardy, the Public in Imminent Danger'

Article 245

Investigations shall not be public.

The defense counsel of a defendant or suspect may be present and listen to the proceedings when the prosecutor, prosecutor-investigator, judicial police officer, or judicial police interrogates the defendant or suspect, and shall not be segregated.

During the aforementioned interrogation, defense counsel may state factual or legal opinions, apply for the investigation of evidence, raise objections to improper interrogation at any time, and request that these be recorded in the minutes.

Before or during the interrogation referred to in the second paragraph, defense counsel may at any time request to consult with the defendant for a reasonable duration or be informed of their due rights, and the provisions of Article 34, paragraph 2 shall apply.

Prosecutors, prosecutor-investigators, judicial police officers, judicial police, defense counsel, attorneys for private prosecutors, or other personnel performing duties according to law during the investigation procedure shall not publicly disclose matters learned through the performance of their duties during the investigation, unless necessary according to law, for the maintenance of the public interest, or for the protection of legitimate rights and interests.

When interrogating a defendant or suspect during an investigation, the date, time, and location of the interrogation shall be notified to defense counsel; provided, however, that this shall not apply in urgent circumstances.

Article 245

Investigations shall not be public.

The defense counsel of a defendant or suspect may be present when the prosecutor, prosecutor-investigator, judicial police officer, or judicial police interrogates the defendant or suspect, and may state opinions. However, if there are facts sufficient to recognize that their presence would endanger state secrets, destroy, forge, or alter evidence, collude with accomplices or witnesses, or endanger the reputation of others, or that their improper conduct is sufficient to affect the order of the investigation, they may be restricted or prohibited.

Prosecutors, prosecutor-investigators, judicial police officers, judicial police, defense counsel, attorneys for private prosecutors, or other personnel performing duties according to law during the investigation procedure shall not publicly disclose matters learned through the performance of their duties during the investigation, unless necessary according to law, for the maintenance of the public interest, or for the protection of legitimate rights and interests.

When interrogating a defendant or suspect during an investigation, the date, time, and location of the interrogation shall be notified to defense counsel; provided, however, that this shall not apply in urgent circumstances.

1. Paragraph 1 remains unamended.

2. Under the provisions of paragraph 2 of the current law, the defense counsel of a defendant or suspect may be present when the prosecutor, prosecutor-investigator, judicial police officer, or judicial police interrogates the defendant or suspect, and may state opinions. By its wording, there is inherently no restriction on time or space. However, investigative and police authorities have sometimes misunderstood when implementing the above provisions, leading to practices that substantially deprive defense counsel of the right to be present, such as separating defense counsel from the defendant with glass during interrogation, requiring defense counsel to observe the defendant from a location where the interrogation contents cannot be heard, or having defense counsel watch a silent closed-circuit television. Therefore, paragraph 2 is amended to explicitly prohibit the segregation of defense counsel when interrogating a defendant or suspect, so as to prevent investigative authorities from arbitrarily restricting defense counsel's presence.

3. The substantive meaning of the right to be present for defense counsel is not merely demanding that lawyers show up for passive 'witnessing'; rather, it entails actively exercising the right to defense upon arrival to safeguard the defendant's procedural rights. Therefore, in order to make defense counsel's presence functionally effective, paragraph 3 is explicitly added to stipulate that defense counsel may state factual and legal opinions during the investigation, apply for the investigation of evidence, and raise objections to improper interrogation at any time, among other defense actions.

4. To enable defense counsel to effectively assist the defendant in exercising their rights, defense counsel must be granted the opportunity to consult with the defendant—this constitutes defense counsel's right to consultation. According to Article 14, paragraph 3, subparagraph 2 of the International Covenant on Civil and Political Rights adopted by the United Nations General Assembly Resolution 2200 at its 21st session in 1967, anyone charged with a criminal offense shall be entitled to adequate time and facilities for the preparation of their defense and to communicate with counsel of their own choosing. As our country was a member state of the United Nations at that time, it naturally should abide by the contents of the Covenant. Therefore, paragraph 4 of this Article is added to grant defense counsel who is present when a prosecutor, prosecutor-investigator, judicial police officer, or judicial police interrogates a defendant or suspect the right to request a consultation with the defendant or to inform the defendant of their due rights at any time before or during the interrogation, in compliance with the aforementioned Covenant provisions. Furthermore, the confidentiality of the conversations and consultation contents between defense counsel and the defendant must also be safeguarded during their consultation. Consequently, the latter part of this Article stipulates the application of Article 34, paragraph 2, prohibiting prosecutors or judicial police officers from conducting prohibitions, restrictions, or audio recordings.

5. The contents of paragraphs 3 and 4 of the original article remain unamended and are renumbered as paragraphs 5 and 6.

Article 41

Interrogations of defendants, private prosecutors, witnesses, expert witnesses, and interpreters shall be recorded in minutes on the spot, setting forth the following particulars:

1. The interrogations of and statements made by the person interrogated.

2. The reasons why a witness, expert witness, or interpreter has not taken an oath, if applicable.

3. The year, month, day, and location of the interrogation.

The minutes referred to in the preceding paragraph shall be read aloud to or made available for review by the person interrogated and their defense counsel, and they shall be asked whether there are any errors in the record.

If the person interrogated and defense counsel request additions, deletions, or modifications to the record, their statements shall be appended to the minutes.

The minutes shall require the person interrogated to sign, seal, or press a fingerprint immediately following the final line of the record.

Article 41

Interrogations of defendants, private prosecutors, witnesses, expert witnesses, and interpreters shall be recorded in minutes on the spot, setting forth the following particulars:

1. The interrogations of and statements made by the person interrogated.

2. The reasons why a witness, expert witness, or interpreter has not taken an oath, if applicable.

3. The year, month, day, and location of the interrogation.

The minutes referred to in the preceding paragraph shall be read aloud to or made available for review by the person interrogated, and they shall be asked whether there are any errors in the record.

If the person interrogated requests additions, deletions, or modifications to the record, their statements shall be appended to the minutes.

The minutes shall require the person interrogated to sign, seal, or press a fingerprint immediately following the final line of the record.

Originally, based on the power of procedural agency, defense counsel was naturally entitled to act on behalf of the defendant in procedural acts such as having the minutes read aloud, reviewing them, or requesting corrections. However, in practice, it is frequently held that the Code of Criminal Procedure does not explicitly stipulate that defense counsel may perform the aforementioned acts on behalf of the defendant. Consequently, when a defendant with a lawyer requested their defense counsel to act on their behalf to confirm the contents recorded in the minutes, they were repeatedly rejected by the interrogator, thereby failing to perfectly safeguard the defendant's procedural rights and interests. Therefore, to avoid the aforementioned controversies and enhance the effective exercise of a lawyer's right to defense, paragraphs 2 and 3 are amended to stipulate that the minutes shall be read aloud to, made available for review by, or allowed to be corrected upon request by the person interrogated and their defense counsel.