The Code of Criminal Procedure Provisions on Exit and Offshore Bans Take Effect!

In the past, exit and offshore bans were not explicitly stipulated in the Code of Criminal Procedure. In practice, restrictions on residence—an alternative to detention—were mostly used as the basis for restricting criminal defendants from leaving the country or sea. Because exit and offshore bans restrict people's freedom of movement, they were often criticized for lacking explicit statutory provisions and violating the principle of legal reservation. Therefore, the Legislative Yuan added a dedicated chapter on exit and offshore bans to the Code of Criminal Procedure. After being passed in three readings by the Legislative Yuan, promulgated by the President on June 19, and taking effect on December 19, exit and offshore bans have become an independent type of compulsory disposition. The following are the key points of this amendment:

1. Refinement of the Principle of Legal Reservation

   Using restrictions on residence as the basis for exit and offshore bans in past practice was actually highly problematic, because the fundamental rights restricted by residence restrictions and exit/offshore bans are not entirely the same: the former pertains to the freedom of residence, while the latter pertains to the freedom of movement. Therefore, this amendment establishes independent legislation for exit and offshore bans to put an end to controversies.

2. Balancing the Penal Power and Due Process of Law

   1. Enhancement of the State's Penal Power

      According to Article 228 of the old law, prosecutors were required to first summon the defendant for questioning before issuing an exit ban. However, in practice, there was no shortage of cases where defendants absconded abroad immediately upon receiving a summons. Article 93 of the new law explicitly establishes exit and offshore bans not only as alternatives to detention, but under certain circumstances, exit and offshore bans can also become independent compulsory dispositions. That is, if there is a strong suspicion against the defendant and a risk of fleeing, even if the prosecutor does not apply to the court for detention, they may separately apply to the court for an exit ban. Prosecutors or judges may even directly restrict the defendant from leaving the country or sea. At the same time, this makes exit bans an independent compulsory disposition rather than merely an alternative to detention.

   2. Protection of the Defendant's Due Process Rights

      However, while these measures improve the efficiency of state investigative procedures, in order to avoid a corresponding infringement on the defendant's freedom of movement and due process, Article 102-1 of the new law imposes a written notification obligation on the state. Unless notification is impossible because the defendant's address is unknown, notification must be given no later than 6 months after the restriction is imposed; if the exit ban is announced orally in court after questioning, a written notice must be given at the same time. After receiving the exit ban notice, the defendant may also request the prosecutor or court to lift, revoke, or modify the original disposition, rather than being forced to passively await the court's decision.

      Meanwhile, Article 404 of the new law provides for the defendant's right to interlocutory appeal or quasi-appeal. Furthermore, Article 93-4 stipulates that if the defendant receives a disposition of non-prosecution or suspension of prosecution, or a judgment where imprisonment is not required, the exit ban disposition shall be deemed revoked, thereby improving the protection of the defendant's rights.

3. Embodiment of the Principle of Proportionality

   Article 93-3 of the new law establishes the duration of exit and offshore bans, preventing the possibility of a mismatch between the means of disposition and the purpose of the disposition. This can be divided into the following two situations:

   1. Duration Restrictions During Investigation

      A prosecutor directly restricting a defendant from leaving the country or sea shall not exceed eight months. A ruling to extend the disposition reverts to the principle of judicial reservation; the prosecutor must apply to the court for an extension—up to four months for the first extension, and two months for the second, with only two extensions permitted. In other words, during the investigation stage, a prosecutor may restrict a defendant from leaving the country or sea for a maximum of fourteen months. A duplicate copy of the application for extension must also be served on the defendant simultaneously.

   2. Duration Restrictions During Trial

      Similar to the investigation stage, the restriction shall not exceed eight months, and extensions are also capped at a maximum of eight months each time. However, the maximum duration of restriction varies depending on the maximum statutory penalty of the offense committed: if the maximum statutory penalty is imprisonment for less than ten years, the cumulative duration shall not exceed five years; for more serious crimes, the cumulative duration shall not exceed ten years. Before issuing an extension ruling, the court must give the defendant an opportunity to make a statement to re-evaluate the necessity of the restriction.

      JRF Commentary

      In this newly added chapter, the authority to decide on exit and offshore bans is entrusted to prosecutors or judges. However, as prosecutors are criminal prosecutors, they may prioritize investigative convenience and the securing of penal power while neglecting the infringement of exit and offshore bans on the defendant's rights, potentially leading to abuses of power. Therefore, this Foundation believes that exit and offshore bans should universally adopt the principle of judicial reservation, and all cases involving exit and offshore bans should be decided by the court. Only then can a proper balance be struck between securing the state's penal power and protecting the defendant's due process rights.

      Nevertheless, in cases of urgent circumstances where a prosecutor has no time to apply for a judicial ruling, the prosecutor may first issue an exit or offshore ban disposition to accommodate investigative timeliness. However, the prosecutor must apply to the court for a retroactive ruling within a specified period after implementing the disposition in order to comply with due process. This approach is also known as the "relative principle of judicial reservation."