COR Point 63 Administration of Justice (Articles 9, 10 and 14)
In Interpretation No. 655 issued on October 16, 2009, Taiwan’s Constitutional Court stated that “Article 101, Paragraph 1, Subparagraph 3 of the Code of Criminal Procedure stipulates that the courts may order to detain a defendant in a criminal trial when he/she is the major suspect of the crimes specified, and there is a reasonable ground to believe that the he/she may escape, may destroy, fabricate or falsify evidence, or may conspire with accomplices or witnesses, and when it becomes apparent to the courts that there will be difficulties with respect to the prosecution, the trial process, or the enforcement of the final judgment without such detention.” After the publication of this constitutional interpretation, “considerable suspicion of having committed a crime” cannot be the sole justification for detention.
In 2012, opposition DPP Legislative Caucus convenor Ker Chien-ming and 30 other lawmakers proposed to excise the provisions in Article 101 and Article 101-1 of the Code of Criminal Procedure regarding pretrial detention and detention for major crimes. However, this draft bill was opposed by the Ministry of Justice. The MOJ’s reasons included the following: (1) every country has provisions for pretrial detention and from a comparative standpoint, there are no major problems in the current provisions; and (2) the revisions would require prosecutorial agencies to expend extra time, manpower, material and expenses in order to secure evidence, prevent escape or the destruction, fabrication or falsification of evidence end would thereby impose additional and inestimable fiscal burdens on the State. Moreover, the MOJ maintained that even if there is factual “evidence” that a defendant is under suspicion for having committed major offenses, prosecutors would not be allowed to detain such a defendant and the possibility of escape would thereby increase.
However, the above mentioned draft revisions did not address the provision of Article 5 of the Criminal Speedy Trial Act of 2010 that the total accumulated period of detention cannot exceed eight (8) years. In fact, numerous defendants detained in criminal trial proceedings have been under detention for longer than eight years before this act was passed. Even if the accumulated period of detention has not exceeded eight years, this type of long-term detention actually indicates insufficient evidence. However, the MOJ has yet to submit any revisions to these provisions in contradiction to the recommendations of the Experts.
In addition, there is no shortage of cases in which when a defendant is placed under pretrial detention, courts also demand that the defendant not be allowed to receive visits or communicate with other persons (with the exception of visits or communications with his or her lawyer). Such restrictions on contact and communications often make it impossible for the defendant to have sufficient contact with the files of evidence against him or her (sometimes even the defendant’s legal counsel is not permitted to review the files of evidence). Moreover, defendants are also subject to rigorous restrictions when meeting with their lawyers and are unable to have full and free dialogue to prepare their defence. Therefore, this type of pretrial detention gravely violates the provision of Article 14 Section 3 Clause 2 of the ICCPR that every defendant should “have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing.”