Speedier Trials, but Are They Fair? Critiques of the Judicial Yuan's Draft Criminal Speedy Trial Act

Article 1
This Act is enacted to guarantee the people's right to a fair, lawful, and speedy trial in litigation.

Matters not provided for in this Act shall be governed by other laws.

※ The types of cases to which this draft applies should include both civil and criminal cases.

This article does not specify the types of litigation procedures to which this Act applies. However, a comprehensive review of the draft shows that it is limited to criminal cases. Yet, civil cases also suffer from prolonged trials, with many cases remaining pending and unresolved for over ten years. Therefore, civil litigation cases should also be included within the regulatory scope of this Act.

Article 2
When accepting and handling cases, courts shall investigate evidence swiftly and thoroughly in accordance with the law, and carefully ascertain facts to serve as the basis for adjudication.

Courts shall render judgments swiftly without infringing upon the legitimate rights and interests of parties and victims, and shall ensure that procedures are fair and appropriate.

※ It is recommended to incorporate this into the Judicial Code of Conduct.

This provision lacks penalty mechanisms for violations and serves merely as a declaration, resulting in poor functionality.

※ It is recommended that Article 3 of the draft be deleted.

Article 3 stipulates that parties and others shall not abuse rights or unjustifiably delay proceedings. However, based on practical experience, the initiative and direction of the proceedings rest with the court. If a judge is not active in handling a case, how can a party "lead" the judge to delay the proceedings? Why are judges, who are most likely to cause delays in litigation procedures, not regulated by this article?

Furthermore, this article stipulates that parties shall "exercise their procedural rights in accordance with the principle of good faith." However, defendants have the right against self-incrimination and the right to remain silent, while the prosecution—including prosecutors, private prosecutors, and victims' attorneys—has the obligation to prove the defendant's guilt. Asking parties to exercise their right to litigation in accordance with the principle of good faith puts the cart before the horse.

In truth, the Code of Criminal Procedure already provides relevant remedial effects for the abuse of rights and delay of litigation procedures by parties; for violations of a serious nature, ethical regulations for various professionals already provide punitive rules. What then is the purpose of this article? Will its effects vary due to differences in various laws? All these raise doubts. Therefore, this Foundation recommends deleting this article to avoid conflicts between different legal provisions.

※ It is recommended to incorporate this into the Judicial Code of Conduct.

This provision lacks penalty mechanisms for violations, serving only a declarative effect and lacking functional efficacy. The legislative reasoning of Articles 273 and 279 of the current Code of Criminal Procedure already states that the new criminal procedure system should adopt centralized trials. If preparatory proceedings are currently ineffective in practice, the Judicial Yuan should proactively propose concrete solutions and review improvements, rather than building a structure upon a structure and enacting redundant provisions.

Article 5
(Plan A) For cases involving defendants in detention, courts shall prioritize and conduct consecutive trial hearings in an exceptionally prompt manner. When trial proceedings must be adjourned for any reason, such intervals shall not exceed seven days, barring special circumstances.

(Plan B) For cases involving defendants in detention, courts shall prioritize and conduct consecutive trial hearings in an exceptionally prompt manner. When trial proceedings must be adjourned for any reason, such intervals shall not exceed fourteen days, barring special circumstances.

※ This article should not be restricted solely to "trial proceedings."

The phrase "...trial proceedings must be adjourned..." in this article should not be limited strictly to trial proceedings; it should also encompass preliminary proceedings (such as preparatory proceedings). Otherwise, if the limitation of this article is evaded through the conversion between preparatory and trial proceedings, this article will be rendered a dead letter.

Regarding the interval period between Plan A and Plan B, this Foundation recommends adopting Plan A, which is more favorable to the parties.

Article 6
(Plan A) For cases that have remained pending and unresolved for more than ten years from the date they were first docketed in the court of first instance, the court may, upon reviewing the following matters and deeming it appropriate, rule to dismiss the prosecution:

1. The equilibrium relationship between the legal and factual complexity of the case and the stagnation of the litigation procedure.
2. The difficulty in investigating important witnesses and evidence relevant to the facts of the case.
3. Other matters related to the speedy trial of the case.

When a higher court issues the ruling mentioned in the preceding paragraph, the judgment of the lower court shall be deemed revoked.
The provisions of the preceding paragraphs shall not apply if the failure to render a final judgment in the case is attributable to the defendant, defense counsel, or assistant to the defendant.

The provisions of Article 161, Paragraphs 3 and 4 of the Code of Criminal Procedure shall apply mutatis mutandis to the circumstances in Paragraph 1.

(Plan B) For cases that have remained pending and unresolved for more than twelve years from the date they were first docketed in the court of first instance, the court may, upon reviewing the following matters and deeming it appropriate, rule to dismiss the prosecution:

1. The equilibrium relationship between the legal and factual complexity of the case and the stagnation of the litigation procedure.
2. The difficulty in investigating important witnesses and evidence relevant to the facts of the case.
3. Other matters related to the speedy trial of the case.

When a higher court issues the ruling mentioned in the preceding paragraph, the judgment of the lower court shall be deemed revoked.
The provisions of the preceding paragraphs shall not apply if the failure to render a final judgment in the case is attributable to the defendant, defense counsel, or assistant to the defendant.

The provisions of Article 161, Paragraphs 3 and 4 of the Code of Criminal Procedure shall apply mutatis mutandis to the circumstances in Paragraph 1.

※ It is foreseeable that Article 6 will be difficult to apply.

According to the legislative reasoning of this article, "if a case has been pending for ten years from the date it was docketed in the court of first instance without a final judgment, it means the prosecutor has exhausted formidable public authority and still cannot convict the defendant after a prolonged time..." and so forth. The defendant should naturally be acquitted; how can a ruling to dismiss infringe upon their right to a judgment of acquittal? Furthermore, under this setup, if paired amendments to other relevant laws (such as the Compensation Wrongful Detentions and Executions Act) are not made, courts may choose to dismiss prosecutions via rulings in cases where acquittals ought to be rendered based on substantive case facts, purely to evade massive state compensation payouts. This will severely impair defendants' rights to receive wrongful imprisonment compensation.

The provision allowing courts to rule to dismiss prosecutions under specific circumstances for cases that remain undecided after a certain period following docketing is too abstract, and whether judges will be willing to apply it in practice is highly doubtful. As for Subparagraph 3 ("other matters related to the speedy trial of the case"), if a judge prioritizes "speed" over "fairness" causing delays, or prioritizes "fairness" over "speed" resulting in rough trials, could this subparagraph ironically become an excuse for failing to balance both? Referring to the experience of Article 161, Paragraph 2 of the Code of Criminal Procedure regarding dismissal of prosecution—which is currently virtually a dead letter—this provision has virtually no operational possibility in current practice.

Article 9
(Plan A) Where a case has been pending since the court of first instance for more than six years and has been remanded by the Supreme Court for the third time or more, a judgment of acquittal rendered by the second-instance court upon retrial shall not be subject to a further appeal to the Supreme Court.

Where a case has been pending since the court of first instance for more than six years and has been remanded by the Supreme Court for the third time or more, except in the circumstances of the preceding paragraph, an appeal may be lodged with the Supreme Court, and the grounds for appeal shall be limited to the following:

1. The laws applied in the judgment contravene the Constitution.
2. The judgment violates interpretations of the Judicial Yuan.
3. The judgment violates precedents.

The Supreme Court shall prioritize reviewing whether the aforementioned cases are subject to Article 6, Paragraph 1.

The provisions of Articles 377, 378, 379, and 393, Subparagraph 1 of the Code of Criminal Procedure shall not apply to the trial of cases under Paragraph 1.

(Plan B) Where a case has been pending since the court of first instance for more than six years and has been remanded by the Supreme Court for the third time or more, the grounds for appeal shall be limited to the following:

1. The laws applied in the judgment contravene the Constitution.
2. The judgment violates interpretations of the Judicial Yuan.

The Supreme Court shall prioritize reviewing whether the aforementioned cases are subject to Article 6, Paragraph 1.

The provisions of Articles 377, 378, 379, and 393, Subparagraph 1 of the Code of Criminal Procedure shall not apply to the trial of cases under Paragraph 1.

※ Regarding the content of this article, only Paragraph 1 of Plan A is acceptable.

Under Plan A, the provision in Paragraph 1 stipulating that cases resulting in a second-instance acquittal cannot be further appealed to the Supreme Court protects people's right to a fair, lawful, and speedy trial and deters prosecutors from filing frivolous appeals. This is commendable.

In cases where facts still cannot be clarified after dragging on for many years, the defendant should be acquitted in accordance with the presumption of innocence and the principle of lenity (in dubio pro reo). How can it instead be closed by restricting the defendant from appealing questions of fact to the third instance? The legislative reasoning of this article—which states that "given that a case has gone back and forth between the second-instance court and the Supreme Court for retrial multiple times, the general factual and legal disputes should already be clear"—is vastly contrary to external perceptions and lacks empirical basis. The Judicial Yuan should conduct rigorous empirical research on cases that have remained undetermined for many years, clarify the causes of delays, and deliberate further thereafter. Before doing so, hastily enacting clauses that restrict defendants' appeals to the third instance is akin to setting traps as a collective pitfall.

This Foundation believes that such cases should be handled by a special division organized by the High Court under special procedures. Such special procedures should incorporate elements of the single-charge-sheet principle and lay participation systems.

Article 11
Where a prosecutor or defense counsel who is an attorney violates the presiding judge's orders regarding litigation procedures, or unjustifiably delays the trial, thereby obstructing the speedy progression of litigation procedures, the court may order said prosecutor or defense counsel to explain the reasons.

In the circumstances of the preceding paragraph, if the court deems it necessary, it may respectively notify the person exercising supervisory authority over the prosecutor or the bar association to which the defense counsel belongs to take appropriate measures.

Upon receiving the notification mentioned in the preceding paragraph, the person exercising supervisory authority over the prosecutor or the bar association to which the defense counsel belongs shall promptly notify the court of the measures taken.

The content of this provision should properly be stipulated in professional codes such as prosecutor codes of conduct and attorney ethics.

If the prolongation of litigation procedures is caused by factors attributable to the court, why is it absent from the draft regulations? Could this be an intentional evasion?

Article 14
To promote the enhancement of trial efficiency, implement preparatory proceedings, conduct centralized trials, and enrich the direction of litigation, the Judicial Yuan may enact litigation rules.

Parties, agents, defense counsels, and other persons participating in litigation procedures shall observe the litigation rules mentioned in the preceding paragraph.