Statement on the Draft Amendments to Articles 161 and 163 of the Code of Criminal Procedure

The presumption of innocence should not merely be an abstract concept in criminal procedure, but must be concretely reflected in all aspects of criminal proceedings. During public trials, the burden of proof clearly rests upon the prosecution. When the prosecution fails to prove the guilt of the accused, the accused must be presumed innocent. This is a vital embodiment of the principle of presumption of innocence. Unlike the United States and Japan, which adopt the system of "separate indictment," Taiwan's current system adopts the "dossier-transfer" system. When judges acquire a certain degree of understanding of the case at the outset of the proceedings through the documents in the case file, and find that the existing evidence clearly cannot support a guilty verdict, empowering judges with the authority to dismiss the indictment and early terminate futile proceedings not only reduces the burden on all procedural parties and prevents defendants from bearing unnecessary litigation fatigue, but also concretely implements the "principle of presumption of innocence." We believe that based on the principle of adjudication based on evidence—where a verdict of acquittal should be rendered when evidence is insufficient—if the prosecution's evidence is clearly insufficient at the time of indictment and the court can already foresee the final outcome, early declaring the dispute closed so that the suspect can escape the fatigue of litigation as soon as possible and no longer be treated as a criminal at the mercy of the state apparatus is the fullest manifestation of the "principle of presumption of innocence" and a major safeguard for fundamental human rights. Based on this, the Foundation expresses its support for creating an intermediate review procedure in Article 161 under the current system of the Code of Criminal Procedure to filter out manifestly baseless lawsuits.

The empirical results of prosecutors attending court sessions throughout the entire proceedings in the Shihlin, Miaoli, and Taipei District Courts have demonstrated that the indictment rates in these three district courts have significantly decreased while conviction rates have risen, indicating an improvement in the quality of indictments—a phenomenon gladly welcomed by all sectors. However, we cannot be complacent and content with "maintaining the status quo," because without the support of a sound system, not only can sustained effectiveness not be guaranteed, but further achievements cannot be attained. Current achievements have not yet garnered the public's full trust in the judiciary. If the effectiveness of prosecutors attending court depends solely on their individual proactive attitudes, once enthusiasm wades, attending court throughout the entire proceedings will become merely formalistic, and courtroom activities will once again be hollowed out. At that point, what does "attending court" have to do with the quality of indictments? Merely "attending court throughout the entire proceedings" cannot in itself ensure indictment quality. Only when judges retreat to a subsidiary investigative role can prosecutors be prompted to diligently gather evidence and indict with care, and can "attending court throughout the entire proceedings" fulfill its function. Based on this, we fully support amending Article 163 of the Code of Criminal Procedure to change the provision that judges "shall" investigate evidence ex officio to "may" investigate evidence ex officio.

Implementing prosecutors attending court throughout the entire proceedings nationwide is an inevitable path. Currently, only some courts are piloting this practice, and citizens enjoy different procedural treatment simply due to their place of residence, which severely violates the right to equality. Such a malformed phenomenon should naturally not be maintained for long. Expediting its realization through the amendments to Articles 161 and 163 of the Code of Criminal Procedure best serves the welfare of all citizens. The Ministry of Justice has claimed that "attending court throughout the entire proceedings" is already sufficient to solve the problem of abusive indictments, and that amendments to Articles 161 and 163 must await complementary designs. However, what "complementary measures" is the Ministry of Justice actually waiting for? The Ministry has never made this clear. If it is merely a concern regarding prosecutors' workload, we call upon everyone here that any difficulties arising from workload should be overcome through collective effort, rather than being used as an excuse to block further reform.

Prosecutors enjoy absolute power in controlling investigations and deciding whether to indict or not to indict. If they bear no responsibility whatsoever for losing a case, and when criticized for potential abusive indictments can use inadequate police investigations as a shield, and when criticized for failing to perform their duties in court can drag judges down with them under the pretext that judges share the duty of discovering the truth—thereby avoiding the responsibility of failing to complete prosecution (losing the case) or failing to fulfill the burden of proof—then the unfortunate party will forever be the defendant, the innocent citizen, and the casualties will forever be the authority of the judiciary and the public's due trust in it.

Caught in long-standing emotional entanglements, the positions of the Judicial Yuan and the Ministry of Justice regarding the draft amendments to Articles 161 and 163 of the Code of Criminal Procedure have fallen into an almost emotional opposition. Civil society organizations specially call upon the Yuan and the Ministry to return to the legal core of the issue rather than entangling old grievances and new scores. Only by squarely facing the needs of the people can a judicial system that meets public expectations be constructed.

※ Published in: Liberty Times