Tarnished Reputations Are Hard to Clear: Non-Publicity of Investigation Must Be Strictly Enforced

In the past, the formulation of the Directions Governing the Non-Disclosure of Investigation was primarily aimed at maintaining the smooth progress of investigative procedures and protecting the reputation, privacy, and safety of relevant persons. Therefore, whether a defendant's right to a fair trial was impacted by violations of the non-publicity principle was not a core consideration in the past.

However, in response to the resolutions of the 2017 National White Paper on Judicial Reform, the Judicial Yuan announced a draft amendment to the Directions Governing the Non-Disclosure of Investigation on January 8, 2019. The biggest highlight of this amendment is explicitly listing "ensuring the defendant's right to a fair trial" as one of the core objectives of the regulations, and adding related provisions designed around this core objective.

Why is "ensuring the defendant's right to a fair trial" so important? Because the most direct and malicious consequence brought about by the violation of the non-publicity of investigation is that defendants suffer stigmatization and trial by media. The female model murder case involving Ch'en and the Mama Mouth coffee shop case are the most prominent examples.

In these two cases, Miss Liang and the coffee shop owner Lü Ping-hung both suffered malicious attacks and witch-hunts by internet users and public opinion during the investigative period due to the improper publication or disclosure of investigative information, and were labeled as "murderers" and "bad people," leading to wrongful detention.

Under the labels of "murderer" or "bad person," the defendant is no longer regarded as innocent. Consequently, defendants must struggle to prove their own innocence just to shed the garment of stigmatization. However, such an operational outcome clearly violates the basic requirements of the presumption of innocence. Furthermore, the requirement for defendants to prove their own innocence places defendants, who possess no investigative powers whatsoever, in a position of fighting prosecutors who wield state public authority completely bare-handed, leaving them utterly lacking the capacity to contend. If the presiding judge is also influenced by these labels, the defendant faces attacks from front and rear, completely losing any possibility of receiving a fair trial.

The amended Directions Governing the Non-Disclosure of Investigation further clarify the information that may not be published or disclosed, and add matters prohibited from publication or disclosure, such as "formed mental impressions," "specific statements made by defendants, juveniles, or criminal suspects," "detailed schedules and plans for verifications, on-site simulations, or appraisals," "audio and visual materials during the investigation," and "criminal record data of defendants or criminal suspects." This design avoids the improper labeling and stigmatization of defendants to ensure their right to a fair trial.

In addition to adding items that cannot be published or disclosed, the amended Directions Governing the Non-Disclosure of Investigation also stipulate that the heads of investigative agencies and auxiliary investigative agencies shall form review committees on the non-publicity of investigation to review quarterly news media reports concerning investigative cases handled by their agencies. It also requires higher-level agencies to form supervisory committees on the non-publicity of investigation to investigate when violations of the Directions Governing the Non-Disclosure of Investigation by subordinate investigative or auxiliary investigative agencies are found during investigations, take effective preventive measures, and pursue administrative, disciplinary, or criminal responsibility in accordance with the law to implement the requirements of the non-publicity of investigation.

Furthermore, the amended Directions Governing the Non-Disclosure of Investigation further require investigative agencies and auxiliary investigative agencies to independently organize educational and training programs annually to strengthen law enforcement personnel's awareness of the principle of non-publicity of investigation and its implementation during enforcement.

Compared to the old law, the draft amendments to the Directions Governing the Non-Disclosure of Investigation announced by the Judicial Yuan can be described as a significant progressive amendment for the protection of defendants' rights to a fair trial, which is highly commendable. However, as for the actual efficacy, it probably cannot be known until after observing actual operational practices. After all, police and prosecutorial authorities' long-standing, turn-a-blind-eye implementation attitude toward the principle of non-publicity of investigation shows no signs of changing at present.

Good laws do not enforce themselves; the principle of non-publicity of investigation relies on everyone's collective compliance with the law to possibly fulfill the constitutional command requiring the people's right to a fair trial. If the original attitude and operating models are maintained, even the most progressive amendments will be in vain.

※ This article was published in ettoday news cloud on 2019.2.13