Newsletter
The Amendments to Habeas Corpus Act will Take Effect on 8 July 2014
The amendments to the Habeas Corpus Act have been promulgated by the presidential order on 8 January 2014 and will take effect on 8 July 2014. The purpose of the amendments is not only to exactly carry out "due process of law" prescribed in Article 8 of the ROC Constitution and Article 9 of the International Covenant on Civil and Political Rights, but also to reflect the principle that "anyone who is deprived of his liberty, no matter on suspicion of having committed a crime or not, shall be entitled to instantly take proceedings before a court to review the lawfulness of his detention" affirmed in Judicial Yuan Interpretation Nos. 708 and 710. Major aspects of the amendments of Habeas Corpus Act are as follows:
1. Clearly defining the person under arrest or detention, no matter on suspicion of having committed a crime or not, has the right to petition for habeas corpus: (Article 1)
The amendments to the Habeas Corpus Act clearly define that where a person is arrested or detained by an organ other than the court, the person has the right to petition for habeas corpus. The amendments also prescribe that the expenses for a petition or an interlocutory appeal are waived.
2. Revising the matters to be informed by the organ that made the arrest or detention so that the person under arrest or detention may instantly take action (Article 2):
In order to let the person who is arrested or detained know the right to petition for habeas corpus, the amendments revise the matters to be informed by the organ that made the arrest or detention. Furthermore, if the person under arrest or detention, or his relatives or friends, do not understand Chinese, it will be difficult for him to exercise the right to petition for habeas corpus. Thus, the amendments prescribe that the written notice shall be supplemented in the language used by those who are to be notified.
3. Simplifying the requirements of the petition for habeas corpus and making the petition more convenient (Article 3):
The amendments simplify the requirements of the petition for habeas corpus, which may be made either in writing or orally. If the requirements are found lacking, the court shall investigate on the lacking requirements on its own initiative.
4. The organ that made the arrest or detention shall instantly deliver up the arrested or detained person to the court (Article 7):
The court to which a petition for habeas corpus is made shall instantly issue a writ of habeas corpus. On the receipt of the writ of habeas corpus, the organ that made the arrest or detention shall instantly deliver up the arrested or detained person to the court. If any special circumstance renders it difficult for the delivering-up, the court may directly proceed with the remote examination via two-way transmission of audio and video signals.
5. In order to carry out "due process of law", the amendments prescribe that the court shall grant an opportunity to be heard to the petitioner (Article 8):
When reviewing the legality of the arrest or detention, the court shall grant an opportunity to be heard to the petitioner, the person under arrest or detention, and the organ that made the arrest or detention. This provision will assist the court to make the correct determination.
6. Revising the determinations of the court (Article 9):
Upon determining the arrest or detention to be devoid, the court shall immediately release the person by a ruling. Upon determining the arrest or detention with a legal basis, the court shall deny the petition, and order the return of the person to the organ that delivered-up the person.
7. Stipulating the procedure of interlocutory appeal so as to provide further human right protection (Article 10):
Where the court denies the petition, the person may take an interlocutory appeal to the immediate superior court. In order to prevent the delay of proceedings, nonetheless, a ruling made by the immediate superior court is not reviewable.
8. Stipulating the criminal punishment for the violation of duties (Article 11):
Personnel of the organ that made the arrest or detention who violated the duties of informing, delivering-up or replying prescribed in Habeas Corpus Act shall be sentenced to a fine or an imprisonment. This will strengthen the function of Habeas Corpus.