Statement of Opinions on the Draft Amendment to the Regulations on the Implementation of Prosecutor Evaluation

Recipient: Department of Prosecutorial Affairs, Ministry of Justice
Date of Issue: July 6, 2020
Document Reference No.: Szu-Kai-Tzu No. 109102
Speed: Urgent
Security Classification and Declassification Conditions or Confidentiality Period: Attachments:

Subject: Statement of opinions on the draft amendment to the Regulations on the Implementation of Prosecutor Evaluation, as detailed in the explanatory notes. Please review and respond.

Explanatory Notes:

1. This statement of opinions on the draft amendment to the Regulations on the Implementation of Prosecutor Evaluation is formulated in accordance with Official Letter Fa-Chien-Tzu No. 10904515870 issued by the Ministry of Justice on June 22, 2020, as follows.

2. According to the amendment explanation, to prevent abusive requests and the waste of limited administrative resources, Paragraph 3, Article 2 of the draft amendment stipulates: "Where a request for individual evaluation fails to comply with the procedures prescribed in Paragraph 1, the Commission may decide not to order correction."

3. Although pursuant to Article 16 and its accompanying explanation of the draft amendment to the Enforcement Rules of the Judges Act, if a request for individual evaluation is resolved not to be submitted for evaluation due to a failure to meet the procedural requirements under Paragraph 3, Article 35, mutatis mutandis, applied under Paragraph 1, Article 89 of the Judges Act, a new request may be submitted after completing the requirements, which is not subject to the principle of res judicata. However, based on our Foundation's years of experience in handling grievances, assisting citizens in preparing the required procedural documents for individual evaluation upon their initial grievance, and guiding them to fully state their substantive evidentiary grounds, is the most efficient approach to preventing abusive requests.

4. Subparagraph 5, Paragraph 3, Article 6 of the draft amendment provides that while procedural review conducted pursuant to Paragraphs 1 to 3 of Article 4 has not yet concluded, the Prosecutor Evaluation Commission may restrict or refuse applications to view, transcribe, photocopy, or audio/video-record the materials obtained through investigation. However, citizens often find it necessary to apply for the investigation of evidence when requesting evaluations because they are unable to obtain courtroom audio (video) recordings or litigation case files. If they must wait for the Evaluation Commission to investigate and obtain such materials before applying to view the file and supplement their opinions, it is easily misconstrued as lacking specific facts or evidence, resulting in a dismissal decision or a resolution not to submit for evaluation.

5. If applications to investigate evidence may be restricted or refused during the preliminary review by designated personnel and the procedural review stage of the review panel, the public will be unable to utilize the evaluation request procedure to obtain evidence. This is tantamount to depriving the public of their right to procedural participation during the review stage, exceeding Paragraph 4, Article 41-1, mutatis mutandis, applied under Paragraph 1, Article 89 of the Judges Act, and imposing restrictions not provided for by law.

6. Article 8 of the draft amendment stipulates: "When deliberating individual evaluation cases, the Commission may, as necessary to determine patterns of disciplinary breaches, or when it is known that the evaluated prosecutor has other circumstances subject to evaluation, concurrently investigate and deliberate upon professional misconduct not covered by the request. In the circumstances of the preceding paragraph, the evaluated prosecutor shall be notified and given the opportunity to state opinions." The rationale is to align with the amendment of Paragraph 6, Article 35, mutatis mutandis, applied under Paragraph 1, Article 89 of the Judges Act, which expands the investigative powers of the Evaluation Commission. In addition to safeguarding the evaluated prosecutor's right to procedural participation, opportunities to express opinions should be added for parties in other cases and crime victims to safeguard their procedural participation.

7. Article 14 of the draft amendment stipulates that where an individual evaluation is dismissed by the review panel or the handling commissioner, reasons need not be attached. Pursuant to Paragraph 4, Article 35, mutatis mutandis, applied under Paragraph 1, Article 89 of the Judges Act: "Where a request for an individual evaluation falls under any of the following circumstances, the Prosecutor Evaluation Commission shall decide not to accept it: 1. Lacking specific content or failing to state the true name or address. 2. Repeated requests based on the same grounds after the Prosecutor Evaluation Commission has resolved not to submit them for evaluation." The dismissal of an evaluation request should not be completely devoid of reasons; in addition to the main text, it should at least list the legal provisions and subparagraphs upon which it is based, and state that it "lacks specific content" or is a "repeated request following a resolution (with evaluation reference number) not to submit for evaluation."

8. Our Foundation's proposed amendments are as stated above. Please kindly adopt them, and we respectfully urge Your Ministry to broadly collect opinions from all sectors to facilitate the promotion of the new Judges Act.