COR Point 65 Administration of Justice (Articles 9, 10 and 14)
Regarding the revision of Article 376 of the Code of Criminal Procedure
According to Article 376 of the Code of Criminal Procedure, cases involving the following offenses are not appealable to the court of the third instance once judged by the court of second instance: (1) offenses with a maximum punishment of no more than three years imprisonment, detention, or a fine only; (2) the offense of theft specified in Articles 320 and 321 of the Criminal Code; (3) the offense of embezzlement specified in Article 335 and Paragraph 2 of Article 336 of the Criminal Code; (4) the offense of False Pretense specified in Articles 339 and 341 of the Criminal Code; (5) the offense of breach trust specified in Article 342 of the Criminal Code; (6) the offense of extortion specified in Article 346 of the Criminal Code; and, (7) the offense of concealing booty or swag specified in Paragraph 2 of Article 349 of the Criminal Code.
Therefore, if acquitted in the trial of the first instance and convicted by the court of the second instance, the most that a defendant can do is resort to extraordinary remedial procedures such as filing a motion for a retrial or for an extraordinary appeal. However, in Taiwan, the preconditions for retrials or extraordinary appeals are quite rigorous. The way to address the root of the problem would be to allow appeal to the court of the third instance for the offenses listed and thereby comply with the related requirements of the ICCPR.
Nevertheless, concerned agencies and the Legislative Yuan have yet to put forward any revisions or carry out any review of this provision, thereby allowing it to remain in effect to the present.
Regarding partial revision of Article 388 of the Code of Criminal Procedure
In its 1,358th meeting on May 28, 2010, Taiwan’s Constitutional Court rejected a petition to evaluate the constitutionality of Article 388’s exemption to the principle of mandatory defence.
In 2012, the Executive Yuan submitted a package of draft revisions to the Code of Criminal Procedure. The package included proposed revisions to Article 388 that intended to bring the trial of the third instance into the scope of mandatory defence. The stated reason for the revision was “(10), revise the provision regarding the applicability of mandatory defence in the trial of the third instance…… Article 14, Paragraph 3 Clause (d) of the ICCPR states: ‘(d) To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it.’ Therefore, the application of the provision for mandatory defence in Article 31 Paragraph 1 of the Code of Criminal Procedure should not distinguish between the levels of the trial: Consequently, verdicts may not be rendered for cases subject to mandatory defence under Article 31, Paragraph 1 unless the defence attorney submits an appellate brief or a statement of defence.”
Proposed revisions to this article have been submitted for review by the Legislative Yuan, but as yet have not been enacted.