Prosecutors can act on hearsay; if they think there is a flight risk, they can ban a person from leaving the nation by making a telephone call, sending a fax or submitting an official document. They can even do so without having questioned them.
After going through the Code of Criminal Procedure (刑事訴訟法) from cover to cover, the phrase “restrict from leaving the country,” cannot be found, nor can any legal basis for doing so.
Following current practice, courts or prosecutors restrict people from leaving Taiwan based on the phrase “limitation on residence” in Article 93 of the code. This became possible in 1984, when the Supreme Court ruled that “restrictions on leaving the country is a way of ordering residential restrictions” on a person.
This has now been the practice for 33 years. One can only wonder if the judiciary is riding roughshod over the legislature or simply ignoring its legislative rights, or if it is a matter of indifference.
There is no legal basis for using residential restrictions as a basis for restricting a person’s movements, and it is all decided at the discretion of a judge or prosecutor.
The arbitrary and opaque practice should not be continued, and it is high time that it was reviewed and stopped. Restrictions on leaving Taiwan must be formally legalized and clearly written into law.
Based on my experience, having served as a judge, a prosecutor and director of a branch office of the Administrative Enforcement Agency, the fluidity and urgency of an investigation means that a prosecutor must have the authority to restrict a person’s movements, rather than placing that power in the hands of a judge.
If a court has to approve such decisions in advance, this failure to differentiate would make investigations powerless and weaken the judiciary, which is not in the public interest.
A decision to restrict someone’s movements must be limited to a reasonable period and applied in different ways for different offenses.
For example, the period in the case of asset-related offenses and serious offenses could be calculated by applying double or triple the detention period in connection to an investigation and trial. It must be a requirement that restrictions are issued in writing and that the reason is included.
The number of times a person can be restricted from leaving Taiwan and the validity of the order should be clearly stipulated by the legislature, and it should be based on stages of an investigation, so that prosecutors can restrict a defendant or suspects while an investigation is ongoing, with each order valid for three months, with a one-month extension allowed, thus limiting the validity of such an order to six months.
If further restrictions are required, it should be necessary to obtain court permission and the person targeted by the restriction should be allowed to request that the restrictions be lifted prior to their expiration.
If the restrictions have been in place for a specified period of between six months and one year, and if authorities deem it necessary to extend them, the restricted person should be allowed to request that they be allowed to post bail, which should be accepted by the prosecutor and court.
Such differentiation on the validity period for restrictions on leaving Taiwan together with the requirement that courts participate and provide the possibility to post bail would be a balanced mechanism that considers both the investigation and the trial, as well as guaranteeing personal freedom.
Liou Pang-shiow is a prosecutor at the New Taipei City District Prosecutors’ Office.
Translated by Perry Svensson
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