Dear Friends:

The Taiwan President promulgated on 15 January 2020, an amendment to the Code of Criminal Procedure ("CCP") and further an amendment to the Implementation Rules of the Code of Criminal Procedure.  Except for articles related to access to court files, written records, arresting procedure, interpreters, request for photocopies of seized objects, witness interrogation and oral debates on sentencing, which will take effect on 16 July 2020, the remaining amended articles has become effective as of 17 January 2020.

The key points under the amendment is to fulfill the merits of the International Covenant on Civil and Political Rights and the International Covenant on Economic Social and Cultural Rights, to enhance the protection on human rights under the procedure of arrest, interrogation and trial, and to introduce the procedure for oral debates of sentencing (under which the parties, complainants and victims will be given the opportunities to address their opinions on the range of sentencing).  

In addition, to be in line with the amendment to the Court Organic Act, the terms adopted in relevant articles in the original CCP such as "magistrates", "chair of prosecutors" and "chief prosecutors" are respectively changed to the "judges", "chief prosecutors" and "prosecutors general".  Furthermore, the amendment extends the appealing period  for re-consideration of non-prosecution or prosecution probation from seven (7) to ten (10) days, and the appealing period and the period to supplement the reasoning for appeal from ten (10) days to twenty (20) days.  We summarize the key points below.

1. Code of Criminal Procedure (or CCP)

(1) The amendment specifically provides that the defending attorney may assist the defendants in reviewing the records of interrogation and can address opinions on accuracy of the records.  (Article 41)

(2) The amendment supplements that when a defendant or suspect is arrested with or without warrant, he/she shall be informed of the reasons thereof, and the title of the criminal offence and right to remain silence provided under Paragraph 1, Article 95 of the CCP.  In addition, the agency implementing the arrest activates shall inform the defendants or suspects and the appointed relatives or friends, in writing of the reason of the arrest.  (Article 89)

(3) The amendment permits the adoption of the restraint tools for arresting or transferring, provided that the use thereof shall be in line with the principle of proportionality, and take the defendant's or suspect's reputation and body into account, as well as avoid any exposure of the tools.  The amendment further authorizes the Executive Yuan and Judicial Yuan to establish rules thereof.  (Article 89-1)

(4) If the defendant has any handicap in hearing or speaking, or any language barrier, an interpreter shall (instead of "may" before amendment) be appointed to assist in communication and/or translation.  (Article 99)

(5) The amendment provides that preventive detention is also available to the defendants charged with felony which has high recidivism rate (e.g. arson, hijacking public transportation, severe assault, homicide), infringement of personal autonomy (e.g. human trafficking, robbery, kidnapping), or infringement of sexual autonomy (e.g. aggravated rape, physical sexual harassment stipulated in Article 25 of the Sexual Harassment Prevention Act) and aggravated fraud.  (Article 101-1)

(6) The owner, holder or custodian of the seized objects under seizure may request for the copies of the seized objects, if he/she has justifiable reason and prepays fees.  (Article 142)

(7) Although a victim or a complainant does not fall under the scope of the "parties" under Article 3 of the CCP, he/she is in practice the person closest to the fact of the crime.  The amendment thus permits his/her participation in the proceeding during the trial proceeding, by addressing his/her opinion on the investigation of the evidence to the prosecutor and ask the prosecutor to apply for evidence investigation with the court.  (Article 163)

(8) It happens from time to time in the past practice that the suspects were summoned as witnesses, so as to circumvent the protections to the defendants provided under the CCP.  On the merits to prohibit forced confession and to ensure human right protection, the amendment provides that the prohibitions from improper interrogation and interrogation recording/videoing shall apply mutatis mutandis to the interrogation of witnesses.  (Article 192)

(9) After a complainant receives non-prosecution or prosecution probation decision, or a defendant receives revocation of prosecution probation decision, he/she may appeal against the decision for re-consideration.  To provide the complainant/defendant with sufficient time to prepare the pleading with supportive reasoning, the appealing period for re-consideration is extended form seven (7) days to ten (10) days; for the same concern, the appealing period and the period to supplement the reasoning (including those applying to the appeal to the supreme court) is also extended from ten (10) days to twenty (20) days.  (Article 256, 256-1, 349 and 382)

(10) As sentencing will render material impact on the rights and benefits of the defendants, and is as much important as the finding of facts, the amendment introduce the oral debate proceeding on sentencing, so that parties and the defending attorney may proceed with debates thereon.  In addition, the complainant, victim or his/her relatives or other person who is given the right to address his/her opinion by applicable law, if attending the trial proceeding, may address their opinion before the debates on sentencing, so that the process for sentencing will become more dedicated and appropriate.

2. Implementation Rules of the Code of Criminal Procedure

(1) The newly extended appealing periods (i.e. ten (10) days or twenty (20) days, respectively) shall apply to those cases where such periods have yet expired when the amendment becomes effect. 

(2) The new twenty (20) day period for supplementing the appealing reasoning for the third instance shall apply where the judgments have yet to be rendered.

Paul Hsu / Alex Li