disadvantaged. Prosecutors who insist on conviction and raise the case to an
appeal court at all cost should not be allowed in litigation in a modern country
under the rule of law. The Judicial Yuan should consider the legislative intent of
Articles 8 and 9 of the Criminal Speedy Trial Act to “restrict the appeal against
a not-guilty judgment” in order to protect the defendant’s right to seek a fair,
valid and speedy trial under Article 16 of the Constitution.
The Principle of Lawful Designation of Judges
91.
As related criminal cases may be indicted successively, assigned to different
judges for trial, and then combined for a joint trial, there can be a change of
the presiding judge, and this affects the parties’ litigation right that is protected
under Article 16 of the Constitution. Since the court’s procedure for a
combined trial is not disclosed to the public and no remedy mechanism is
available, some may speculate that these cases are very likely under the
influence of a specific person and assigned intentionally to a specific judge for
ruling. This situation casts a doubt as to whether there has been violation of
the principle of lawful and unprejudiced designation of judge (gesetzlicher
Richter). Based on the requirements for combining cases referred to in Article
6 of the Code of Criminal Procedure, it is not allowed for a concerned party to
state an opinion before the decision to combine cases is rendered. After the
cases are combined, there is no interlocutory appeal for remedy available
either, according to Article 404 of the same Code. Therefore, the Judicial Yuan
should thoroughly discuss amendments to the laws and regulations involving
combining related cases for trial, such as the Code of Criminal Procedure, in
order to protect the people’s constitutional litigation rights and to ensure the
constitutional basis by which judges should conduct trials independently, as
referred to in Article 80 of the Constitution.
Defense Attorneys
92.
Currently, no relevant requirements or procedures are expressly defined to
allow prosecutors to restrict or prohibit any attorney-at-law for the defense
from being present onsite or recording notes during an investigation.
Nonetheless, there is a need for the Ministry of Justice to further clarify these
requirements and procedures so that when prosecutors issue restrictions or
injunction orders, they record in the statement precisely what facts cannot be
made public. This will provide express specifications helping both prosecutors
and attorneys-at-law perform their duties. Upon investigation and subsequent
follow-up by the Control Yuan, the Ministry of Justice amended and
promulgated Point 28 of the Cautions for Prosecutors in Bringing Criminal
Actions, on March 20, 2019, which in principle allows defense attorneys to be
present, state opinions, and record the questioning, and expressly provides that
the record should not be seized, unless otherwise provided in the law.
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