Detention for murder suspects?

By Wu Ching-chin 吳景欽  / 

Sun, Mar 24, 2013 - Page 8

The recent double murder that in Bali Township (八里), New Taipei City (新北市), has received a lot of attention. After three suspects were released on bail, prosecutors immediately filed an appeal. However, the court still ordered that the suspects be released on bail on condition that they stay at a permanent address. This has raised doubts about the prosecutors’ abilities, and given rise to another question — whether suspects in a murder case must always be held in detention.

According to Article 101, Subparagraph 1, Clause 3 of the Code of Criminal Procedure (刑事訴訟法), detention can be requested for suspects of crimes that warrant a prison sentence of five years or more, life imprisonment or the death penalty, even if they do not represent a flight risk or are in no danger of destroying evidence.

Since the accused in the Bali case are facing charges of murder as defined by Article 271, Subparagraph 1 of the Criminal Code, and given that the statutory sentence for the crimes of which they are accused is more than 10 years in prison, life imprisonment or the death penalty, it would seem that the court should have ordered them to be placed in detention.

The idea that detention is necessary for those accused of murder is based on the belief that murder is a serious crime, or felony, and that it is more likely than with other crimes that the accused will try to abscond or destroy evidence. However, a possibility or likelihood is not sufficient grounds to deny a suspect’s habeas corpus rights.

When the court was reviewing the application for detention of the suspects in the Bali case, investigators were still searching for, and mulling over, evidence, so the court could only make a judgement based on the limited evidence presented by the prosecutors and by the criminal accusations stated in the indictment.

If judges are not vigilant in handling such a matter, it could easily allow prosecutors to force the accused to confess by citing the seriousness of the crime as grounds for detention.

Moreover, since homicide cases like this draw a lot of public attention, they might put pressure on prosecutors, who may then ask for detention in response to public opinion and concern. This may have the effect of transferring the pressure onto the courts and undermine the credibility of the judiciary.

For this reason, the Council of Grand Justices’ Interpretation No. 665 clearly states that the serious nature of a felony is not in itself sufficient justification for detaining a suspect. It also states that in such circumstances, prosecutors must show that there is a strong likelihood that the suspect is guilty. It says that the court should investigate whether the accused presents any risk of absconding, destroying evidence or conspiring with accomplices or witnesses, which would cause difficulties in the prosecution, the trial process, or the execution of the final judgement.

The interpretation further states that if defendants are placed in detention solely because of the seriousness of the crime of which they are accused, this will restrict the right of the accused to conduct a defense, which runs counter to the principle of equality of arms that requires each party be given a reasonable opportunity to present their case under conditions that do not place them at a great disadvantage. Furthermore, this would deviate from the original purpose of detention, which is to prevent suspects from absconding and to ensure that evidence is preserved; instead, it would become a means for punishing suspects before they have been tried and convicted, which contravenes the principle of the presumption of innocence.

Experience would suggest that it is highly improbable that one woman, acting alone, could have committed the double murders in Bali, but this kind of reasoning is not admissible as evidence in a court of law.

It is true that in requesting detention, prosecutors do not need to prove that the facts of the case establish the accused’s guilt beyond reasonable doubt. They only need to provide adequate evidence to show that there are sufficient grounds to strongly suspect that the accused is guilty.

However, when applying for the detention of the accused in the Bali case, prosecutors failed to produce key evidence, such as a murder weapon or bloodstained clothes. They had also found no trace of evidence in the vehicle that they suspected was used to transport the corpses. Perhaps, the prosecutors thought that the contradictory statements of the main suspects, some scraps of paper, or conjecture about what appears to be “obvious,” or rumors are enough to support their case. If so, the evidence will be highly unconvincing, and they will find it very hard to build a case against the accused. This also exposes the bad practice that prosecutors have of detaining suspects first, and then looking for evidence against them.

Based on the principle of the presumption of innocence, detention should not be the first choice for securing the accused and preserving evidence. Rather, it should be the last resort. If such an approach gives some people an opportunity that they can exploit to their own advantage, the blame should not fall on judges, but rather on investigative departments that are not proactive or professional enough, as well as prosecutors who are too hasty and careless about applying for suspects to be placed in detention.

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

Translated by Drew Cameron