Newsletter
Highlights of June 2014 Amendments to Criminal Laws: (I)
The following criminal laws were amended and promulgated by the President in June 2014: The Criminal Speedy Trial Act, the Code of Criminal Procedure, the Witness Protection Act and the Criminal Code of the Republic of China. The key points of the amendments are as follows:
1. The Criminal Speedy Trial Act
i. Addition of Paragraph 5 to Article 5: "For an offense that carries a maximum principal punishment of 10 years’ imprisonment, the cumulative length of travel bans during the trial shall not exceed eight years. The length of time during which the accused is at large and being wanted is excluded from this calculation."
The travel ban is to ensure the accused's attendance of the court hearings, which facilitates the litigation proceedings and enforcement of the criminal penalty. Prior to the amendment, there was no limitation on the maximum length of the travel ban imposed during the trial. An unchecked restriction on the length of the travel ban violates two principles protected and advocated by Article 23 of the Constitution and the Grand Justice Interpretations, which are necessity and mitigation of infringement of people's rights.
Furthermore, the legal effect of a travel ban does not deprive the accused of the right to move freely domestically; the accused is merely banned from leaving the country. In contrast, the effect of detention is much severer. Therefore, it would be inequitable to treat travel ban the same as detention, with disregard for the crime's severity, and to indiscriminately set the travel ban limit at eight years for all crimes. Consequently, the final version of paragraph 5 passed by the Legislative Yuan stipulates that the limit on travel ban applies only to "an offense that carries a maximum principal punishment of 10 years’ imprisonment" and not to severer criminal offenses.
ii. Amendment to Article 7: "Where no final judgment is made eight years after the date the case commenced in the first instance, except for cases where not-guilty judgment shall be rendered, the court shall reduce the sentence if, upon the request of the accused or of its own volition, the court considers the following factors and concludes the accused’s right to a speedy trial has been grossly infringed and remedies shall be provided: 1. Whether the delay in litigation proceedings is caused by the accused. 2. Whether the complexity of the case in terms of the relevant laws and facts is commensurate with the delay in the proceedings. 3. Other similar factors germane to a speedy trial."
Under the original Article 7, a punishment may be reduced at the court's discretion even if any of those three factors applies. When it is certain that the accused's right to a speedy trial is egregiously infringed, and the accused's sentence can be reduced is still at the sole discretion of the court, it is likely that "the accused's right to a speedy trial is grossly infringed while not being compensated by a reduced sentence," which contradicts the legislators' intent to compensate the accused whose right to a speedy trial has been impinged with reduced sentences.
2. The Code of Criminal Procedure
i. Addition of Article 119-1:
Return of interest on cash bail bonds was added to the Code of Criminal Procedure under Article 119-1. The bail bond is deposited for exemption from or to end detention. Bail bonds are held by an authorized bank. Unless it is forfeited, the bail bond belongs to the depositor. Referring to Article 12 of the Lodgment Act, bail bonds should generate interest.
The accrued interest will be calculated at the savings account interest rate published by the Bank of Taiwan and returned together with the bail, according to Point 12 of the Guidelines on National Treasury Affairs Entrusted by Central Bank of the Republic of China to Financial Institutions. According to the new Article 7-7 of the Enforcement Rules of the Code of Criminal Procedure, the new provision stipulating interest on the bail bond will come into force six months after the date of the public announcement of the amendment. The Judicial Yuan will work in tandem with the Executive Yuan to enact the Regulations Concerning the Deposit, Calculation of Accrued Interest, and Return of Bail to prescribe the complementary measures.
ii. Addition of Paragraphs 2 and 3 to Article 370
The amendment pertains to the application of the Prohibition against Harsher Sentence on Defendant upon Appeal. Under the amendment, the application of the Prohibition covers the sentences pronounced by the court and the sentences to be executed for multiple offenses (Paragraph 2). The Prohibition shall also apply mutatis mutandis to cases where the judgment in the first or second instance holding consolidation of multiple offences is appealed, and the appellate court renders an order on the sentence to be executed after it decides to partially revoke the judgment of the lower court (Paragraph 3).
3. Witness Protection Act
i. Addition of Paragraph 16 to Article 2:
Article 13-2 of the Trade Secrets Act was incorporated into the Witness Protection Act. In January 2013, the Trade Secrets Act was amended and criminal liabilities were added under Article 13-1, while the penalty of using trade secrets in foreign jurisdictions is stipulated in Article 13-2. Considering the difficulties of evidence taking due to the complexity of and specialized knowledge required to review such cases, it is imperative the law encourages witnesses to testify, hence the amendment.
ii. Addition of Paragraph 3 to Article 14: "If the accused or suspect is not a principal or accomplice in the criminal offenses set forth in Paragraph 1, but he/she testifies against the accessory before the fact or the accessory after the fact, or on the connections pertinent to the crime, which enables the prosecutor to prosecute offenders that committed the crimes listed in Article 2, and the crimes the offenders committed are severer than the crime the accused or suspect is involved in, his/her sentence may be reduced or lifted with the prosecutor's consent.
Paragraph 3 was added "to uphold the legislative intent of maintaining public safety and eradicating criminal organizations." To elaborate, in cases where the prosecutor agrees not to prosecute in exchange for the confession of the accused or the suspect, but later prosecutes the case, the amendment empowers the court to reduce or lift the sentence.
To be continued in HIGHLIGHTS OF JUNE 2014 AMENDMENTS TO CRIMINAL LAWS: (II).