Taichung District Court Judge Chang Yuan-sen (張淵森) recently found in a court application by the Criminal Investigation Bureau for a search warrant that data from the Executive Yuan’s COVID-19 tracing system were used to track the suspects.
This contradicts the Central Epidemic Command Center’s (CECC) promise that the information would only be used in the context of disease prevention.
The CECC has repeatedly reassured the public that the 1922 text message service is only used for contact tracing to curb the spread of COVID-19.
Chang decided to be a whistle-blower and in an article published on June 20 revealed that the 1922 text message system had alegedly been abused.
The CECC later repeated that the information would only be sent to the telecommunications company, where it would be kept for only 28 days and used only for COVID-19-related investigations.
As the 1922 text message service includes information about the mobile phone owner, location, and time of entry and exit to a venue, which all involve personal privacy, the issue caused heated debate.
The CECC probably did not — either actively or passively — provide the police with the information, and police officers must do all they can to find suspects, including tracing their movements.
As the text message is useful in identifying suspects, why can the information from the 1922 text message communication records not be used to make arrests?
What is more, as long as police request information in accordance with the Communication Security and Surveillance Act (通訊保障及監察法) when investigating an offense, permission would have to be issued by a prosecutor or the court, so there is no contravention of the law.
The Taichung District Court stated that it respects Chang’s personal opinion.
What this article wants to ask is: If police obtain information in an incorrect manner, should the judge reconsider whether or not the information should be admissible as evidence?
Article 158-4 of the Code of Criminal Procedure (刑事訴訟法) stipulates that the “admissibility of the evidence, obtained in violation of the procedure prescribed by the law by an official in execution of criminal procedure, shall be determined by balancing the protection of human rights and the preservation of public interests, unless otherwise provided by law.”
Also, according to Supreme Court Criminal Judgment 664 from 2004, if a piece of evidence, disregarding the circumstances, is considered inadmissible because it was unlawfully obtained, that would not be appropriate in terms of determining the truth.
Furthermore, if several pieces of evidence that are consistent with fact are excluded simply because of procedural flaws in how they were obtained — if, for example, the contravention of legal procedure is minor in a serious cases — not considering the evidence could result in the defendant being at large, then this would be contrary to public sentiment and difficult for society to accept, and it would be harmful to the conduct of a fair and just trial.
This shows that although the text message information obtained by police officers might be problematic, judges would not necessarily refuse to take it into account.
However, this is not an encouragement to law enforcement to handle cases unscrupulously, but a necessity for finding out the truth, and maintaining social security and order.
Yu Ying-fu is a lawyer.
Translated by Lin Lee-kai
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