Strengthening Crime Victim Protections! Three Readings Passed for Crime Victim Litigation Participation and Protection

In criminal trials, the parties refer specifically to the prosecutor, private prosecutor, and defendant. Consequently, except in privately prosecuted cases, crime victims are often left to have their voices represented solely by the prosecutor. Furthermore, victims may suffer secondary victimization during trials or investigations due to the exposure of their privacy or past trauma.

During the 2017 National Congress on Judicial Reform, a resolution was passed requiring the state to establish a "crime victim protection mechanism." To achieve this goal, the Legislative Yuan passed the amendments to the Code of Criminal Procedure on December 10, 2019, International Human Rights Day. This legislative milestone aims to genuinely embody the victim's agency in the courtroom without violating the fundamental principles of criminal procedure or sacrificing the defendant's right to a defense. The key highlights of this legislative amendment are as follows:

1. Restorative Justice

   According to newly added Articles 248-2 and 271-4 of the Code of Criminal Procedure, prosecutors and judges may, upon the application of the defendant and the victim, refer the case to an appropriate institution for restorative processes. In traditional criminal courts, victims are usually summoned only to testify as witnesses, and judicial proceedings serve merely to punish the offender—failing to truly heal the victim's pain and anxiety.

   Compared to the traditional criminal justice model, restorative justice places greater emphasis on how the state can repair fractured social relationships following a crime. It aims to enable offenders and victims to engage in meaningful dialogue within an atmosphere of mutual respect and understanding, seeking justice through truth-seeking, apologies, comfort, accountability, and rehabilitation, thereby instilling a brand-new connotation in the judicial system.

   In fact, Taiwan has been piloting restorative justice programs across district prosecutors' offices nationwide since 2012, accumulating considerable practical experience. Follow-up surveys conducted by the pilot prosecutors' offices revealed that a majority of victims "felt justice had been realized," and most offenders agreed that they "would make every effort to prevent such cases from happening again." This demonstrates the tremendous value of restorative justice in healing victims' emotional trauma and repairing substantive harm, justifying its formal legalization.

   JRF Commentary

   The JRF affirms the government's efforts in promoting restorative justice and believes that this legislative amendment marks a crucial step forward for post-crime societal healing in Taiwan. Meanwhile, to ensure the systematic integrity of restorative justice within our legal framework, we also hope that these provisions will eventually be incorporated as substantive and comprehensive statutory articles within the Code of Criminal Procedure, thereby better serving to comfort victims' minds within the judicial system.

2. Victim Protection

   1. Accompaniment

      Following victimization, victims are in urgent need of physical and psychological reconstruction. During investigation and trial proceedings, they may require specific individuals to accompany them to help stabilize their emotions and prevent secondary victimization. Therefore, in addition to the victim's statutory agent, spouse, lineal relatives, collateral relatives by blood up to the third degree, head of household, family members, or physician, the new law adds psychotherapists, counselors, and trusted individuals of the victim. With the victim's consent, these individuals may accompany the victim during investigations. Furthermore, newly added Article 271-3 extends the accompaniment mechanism to trial proceedings as well.

      JRF Commentary

      The amendment to Article 248-1 of the Code of Criminal Procedure was modeled after Article 406f, Paragraph 2 of the German Code of Criminal Procedure. However, the German Code of Criminal Procedure makes finer distinctions regarding qualifications for accompaniment; specifically, it limits the accompaniment by a trusted individual of the victim to one person and denies them the right to express opinions, distinguishing them from other accompanying persons. Our draft law imposes no numerical limit and grants opportunities to express opinions. Whether the opinions expressed by accompanying persons genuinely reflect the victim's intent remains to be observed through future practical developments. Additionally, with the enactment of the Enforcement Act of Judicial Yuan Interpretation No. 748, same-sex couples may now also accompany victims in the capacity of a spouse.

   2. Isolation

      Based on the resolution of the National Congress on Judicial Reform mandating the protection of victims' privacy to uphold their dignity, the new law stipulates that during investigation and trial proceedings, prosecutors and judges may, depending on the victim's physical and mental condition and the circumstances of the case, utilize shielding screens or other methods to isolate the victim from other persons, thereby avoiding increased psychological burdens or even secondary victimization.

3. Enhancement of Victim Agency

1. Application to Participate

   In criminal proceedings, apart from privately prosecuted cases, victims are not included in the tripartite relational structure of litigation. To enable victims to better understand the litigation process and uphold their human dignity, newly added Article 455-38 of the Code of Criminal Procedure provides that victims and their relatives may, after the prosecutor has instituted a public prosecution and before the conclusion of oral arguments in the second instance, apply to the court to participate in the litigation. Such applications may be submitted to the court via written briefs at each instance, and victims may appoint a litigation agent at any time. If there are multiple participating persons, one or several may be selected to act as representatives.

   Consequently, in cases involving infringement upon a victim's life, bodily integrity, personal freedom, sexual autonomy, or other violations severely impacting human dignity, victims may apply to the court to become participating litigants pursuant to the new law. Judges shall consider the circumstances of the case, the relationship between the applicant and the defendant, and the stage of the proceedings to grant or dismiss the application.

2. Inspection of Case Files

   Once a victim's application to participate in litigation is approved by the court, newly added Article 455-42 grants participating litigants the right to inspect case files and evidence, enabling them to fully understand the progress of the case, effectively communicate with the prosecutor, and comprehend the prosecution's litigation strategy. However, where case files involve the privacy of parties or third parties, the court may restrict the inspection of such files.

3. Expression of Opinions

   As agents of the public interest, prosecutors remain under a legal obligation to pay equal attention to circumstances both favorable and unfavorable to the defendant, meaning their stance still differs from that of the victim and their family. Therefore, the new law grants participating litigants the opportunity to express opinions during preparatory proceedings, evidence investigation, and the determination of sentencing scope.

   JRF Commentary

   The JRF acknowledges the necessity of enhancing victims' agency under the new law; however, we also believe that the new law must simultaneously account for the defendant's right to a defense to prevent defendants from facing a "two-against-one" situation in court, which would otherwise place them at an extreme disadvantage. In this regard, the JRF proposes the following recommendations:

   First, newly added Article 455-43 stipulates that judges shall hear the opinions of participating litigants during preparatory proceedings. Implementing this provision presents practical difficulties; specifically, if the opinions of the participating litigant and the prosecutor diverge, it will place the judge in a dilemma and require the defendant to prepare a twofold defense. Therefore, this Foundation recommends that after the new law takes effect, prosecutors should actively consult participating litigants and, through thorough communication, consolidate the positions of both the prosecutor and the participating litigant before presenting them in court.

   Second, newly added Article 455-46 grants participating litigants the right to debate the probative force of evidence and to express opinions after the investigation of each piece of evidence. While the JRF affirms the justified legislative intent behind this provision, the expression of opinions by participating litigants lacks substantive guarantees such as swearing an oath; utilizing such opinions as evidence would deprive the defendant of the right of cross-examination. Furthermore, the new law risks enabling participating litigants to directly intervene in the evidence investigation process, turning the courtroom into a two-against-one dynamic. The JRF recommends that prosecutors contact participating litigants prior to evidence investigations to discuss methods of evidence investigation and cross-examination matters in order to reach a consensus. This will strike a balance between the participating litigant's right to express opinions and the defendant's right to a defense, while enhancing trial efficiency.