Sun, Oct 18, 2009 page8

• The appeal system for detention is not fair

  • By Wu Ching-chin 吳景欽
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  The Supreme Court sent the Taiwan High Court’s judgment to extend former president Chen Shui-bian’s (陳水扁) detention back to the High Court last week, saying its reasons were inadequate. But the collegiate panel handling the case at the High Court decided to extend Chen’s detention anyway, citing almost exactly the same reasons.

  This has again highlighted the nation’s problematic custody system. Can the same collegiate panel be expected to overrule a decision it has made previously? Can the High Court simply ignore the concerns cited by the Supreme Court?

  Article 17, Section 8 of the Code of Criminal Procedure (刑事訴訟法) says that “a judge shall disqualify himself from the case concerned on his own motion and may not exercise his functions” if he or she “has participated in the decision at a previous trial.”

  The collegiate panel should have recused itself from Chen’s detention case after the Supreme Court sent the case back to the High Court because it cannot be expected to overturn its previous decision. This is the main reason for Article 17.

  The current practice when reviewing the prosecution’s request to extend custody is to focus on protecting people and objects.

  The members of the panel believe they are protecting evidence by extending Chen’s detention and that they do not have to disqualify themselves from the case.

  A look at the latest custody review, however, reveals that this is no longer a matter of simply preserving evidence, but now involves the actual case against Chen.

  Given that the custody review and the trial are being handled by the same court, it has a good understanding of all the evidence, so it would be difficult to justify the claim that the High Court has not already reached an evaluation of the evidence.

  It is also contrary to the Code of Criminal Procedure and ignores its goals, one of which is to use mandatory recusal to ensure an impartial court and protect the rights of the accused.

  Even if impartiality could be maintained when a decision is returned to the same collegiate panel, lower courts should be bound by the decisions of higher courts, lest the appeal system become pointless.

  Since a court does not want to embarrass itself by overturning its own decision, it will often try to find a new piece of evidence to defend its initial decision.

  When this happens, the appeal system becomes pointless. A detainee can easily be caught up in a vicious cycle of being put in custody, appealing and having the decision sent back to the deciding court, where the same decision is reached.

  The goals of a custody review and the court case it is related to are not one and the same. This means that ideally, the decision to detain someone should not be made by the same collegiate panel handling the court case in question lest detention become a means to pressure the accused into confessing.

  Because of limited judicial resources, the current practice is to accept that this sometimes is not attainable.

  However, by letting the same collegiate panel review its own decision — and virtually ignore the concerns of the Supreme Court — the accused effectively loses recourse to challenge a court’s decision.

  A just legal system cannot rely on a court’s self discipline. Doing so is a recipe for an arbitrary judiciary that stifles human rights.

  Wu Ching-chin is an assistant professor in the Department of Financial and Economic Law at Alethia University.

  TRANSLATED BY DREW CAMERON
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