A FEW DAYS ago, the Council of Grand Justices handed down constitutional interpretation No. 653. In it, they demanded that the government “review and amend the Detention Act (羈押法) and related regulations, and establish appropriate regulations for a litigation system for prompt and effective relief for detained defendants.”
In other words, this interpretation declares that in the future, prisons, detention houses and other places that are less strictly regulated by law will no longer be dark places lacking human rights protection.
In light of the attention and public criticism heaped on the detentions of many politicians recently, the grand justices’ interpretation may be hard advice for the authorities to take, but it is said that criminal procedure is a constitutional touchstone that also highlights how civilized a society is. There is indeed room for review and improvement on Taiwan’s detention system and its language.
While the facts of a case are still under investigation, Taiwanese law authorizes state institutions to temporarily restrict the individual freedom of suspects. Both the Universal Declaration of Human Rights and the International Covenant On Civil and Political Rights state that no one shall be subjected to arbitrary arrest or detention. According to the Council of Grand Justices’ reasoning: “If a defendant in a criminal case is detained, he or she will de separated from family, society and professional life. This will be a heavy psychological blow to the defendant and it will also have a big impact on his or her individual reputation, credibility and other individual rights. It constitutes the most forceful restriction of individual freedom and must as a matter of course only be used as a last resort.”
In other words, it might be necessary to restrict a person’s freedom prior to the trial process, but there must be legitimate grounds.
Compared to the Japanese and US systems, there is room for Taiwan to improve its detention regulations for major crimes. Determining whether or not to detain someone based on the severity of the crime is tantamount to reviving the medieval practice of punishment based on suspicion in that a suspect is detained merely based on the subjective judgment of the investigating authorities. This is rash and careless and violates two key principles that procedural justice demands -- presumed innocence and that verdicts be based on evidence.
According to the intent of the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment adopted by UN General Assembly resolution 43/173 on Dec. 9, 1988, if a suspect is detained because his or her deposition differs from the direction of the investigation, the investigating authority is abusing its power in violation of the law and is infringing on fundamental human rights.
Because of this, and to be able to put an end to the judicial authorities’ prejudiced use of the term “detention” to obtain a confession, and to implement the Council of Grand Justices’ constitutional interpretation No. 392 issued on Dec. 22, 1995, which says that arrest and detention “differ only in terms of purpose of action, method used and length of period,” the current use of the term “detention” should be changed to “arrest” to restore the original intent of holding someone after arrest.
If we want to follow the international community in its protection of human rights, the law must be amended so that prosecutorial rights to restrict someone’s individual freedom through arrest should be returned to the courts together with the right to order searches and audio surveillance.
Lin Yu-shun is an associate professor in the Department of Criminal Investigation at Central Police University.
TRANSLATED BY PERRY SVENSSON
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