Newsletter
CODE OF CRIMINAL PROCE-DURE AMENDED
An amendment to the Code of Criminal Proce-dure received its third reading in the Legislative Yuan on 17 January 2002, and was promulgated by the President on 8 February. Fifteen existing articles were amended, and nine new articles added. Through the amendment, a modified adversarial system and a suspended prosecution system are introduced into the ROC's criminal justice system, and the rules governing searches without warrant are tightened up in order to protect basic human rights. The main points are as follows:
The requirement for search warrants is strengthened, and a reporting system is intro-duced. The amended Article 131 defines the situations in which premises may be searched without a warrant, as follows: (1) where there is sufficient reason to believe that a person charged with a crime, suspected of a crime, or being pursued in flagrante delicto, or an escaped prisoner, is inside; (2) where there is clear and sufficient reason to believe that a crime is in progress inside and there is an urgent need for action; and (3) where a public prosecutor in the course of an investigation has good reason to believe that if a search is not conducted promptly, evidence may be falsified, altered, destroyed or concealed within 24 hours.
The same article requires that within three days after a search, a prosecutor must report to the competent court. If the court believes that the search should not have been allowed, it should declare it invalid within five days. If a search has not been reported to the competent court or has been declared invalid by the court, the court may declare at the time of trial that items seized in the search will not be admitted in evidence.
Indictment review system is adopted. The amended Article 161 makes it the responsibility of prosecutors to present evidence of the ac-cused's guilt, and requires them to indicate the intended means of evidence. If prior to the date set for the first hearing, the court believes that the means of evidence indicated by the prosecutor is clearly insufficient for there to be any prospect of a conviction, the court should instruct the prosecutor to indicate further means of evidence within a specified time period; if the prosecutor fails to do so, the court may dismiss the charges. Once a ruling to dismiss a prosecution becomes irrevocable, no further prosecution may be brought in the same case except under one of the various circumstances defined in Article 260.
The adoption of a modified adversarial system redefines the division of powers between prosecutors and the court. Henceforth it is the duty of prosecutors to collect evidence of a crime on their own initiative, while the court will adopt a neutral position, and conduct hearings within a procedural framework whereby the parties to a case conduct their own attack and defense. Only when the truth cannot be found after the inves-tigation of evidence led by the parties, the court may, at its discretion, supplementally conduct an investigation of evidence. The amended Article 163 stipulates that, the court may conduct an investigation of evidence to find the truth, pro-vided that, the court should only do so if it is necessary for maintaining the justice or for pro-tecting the fundamental rights of a defendant.
A suspended prosecution system is introduced, to screen prosecutions and give people accused of minor offences an opportunity for rehabilita-tion. Where a person is accused of an offence other than one punishable by death, life impris-onment or a minimum prison sentence of at least three years, the prosecutor, after weighing the factors listed in Article 57 of the Criminal Code and the public interest, may, if he considers it appropriate, suspend prosecution for a period of one to three years, subject to certain conditions (e.g.: the accused apologizing to the victim; making a written declaration of regret; paying appropriate damages to the victim for property and non-property losses; paying a defined sum of money to the National Treasury, a designated charitable organization or a local government body; providing 40 to 240 hours of voluntary service to a designated charitable organization, or local government body or community; com-pleting a course of substance abuse treatment, psychiatric treatment, psychological counseling, or other appropriate remedial measures; com-plying with orders necessary to protect the safety of the victim; complying with orders necessary to prevent any recurrence of offence, etc.).
If, during the period of suspension, the accused deliberately commits, and is charged with, a further offence punishable at least by imprison-ment; or is sentenced to at least a term of im-prisonment for another, previous offence; or if the accused fails to fulfill the conditions attached by the prosecutor, then the prosecutor may re-verse the decision to suspend prosecution.
To protect victims' rights, a complainant who does not accept a decision not to prosecute or to suspend prosecution, may petition for a review of the decision. If not satisfied with the outcome of the review, the complainant may further peti-tion the court to rule that the case be brought to trial.