Statement | Firm but Pragmatic Opposition and CRPD-Based Oversight of the Custodial-Protection Amendments

On January 27, the Legislative Yuan, meeting in an extraordinary session, passed on third reading amendments to the Criminal Code, the Rehabilitative Disposition Execution Act, and the Code of Criminal Procedure, substantially changing the system of custodial protection and adding temporary placement. As civil society organizations that have repeatedly called for caution throughout the amendment process, we jointly issue the following four statements.

1. The Executive Branch Dominated the Amendments but Refused to Engage with the Public

   Since the Judiciary and Organic Laws and Statutes Committee began reviewing the relevant bills in 2020, it held two rounds of review in 2020 (November 4-5 and December 14) and four in 2021 (October 7, October 21, November 4, and November 29), for a total of six committee reviews and one public hearing (October 14), followed by two rounds of cross-party negotiations on December 15 and January 20. Although the government and legislators treated the bill as an important measure of "social defense," only a handful of legislators actually participated in the review, leaving the executive branch to dominate the direction of the amendments. Specific criticisms in the Control Yuan's investigation report and repeated warnings from civil society that the amendments were unconstitutional and ineffective were ignored. Laws and regulations profoundly affect people's daily lives. We express our deepest protest against the executive branch's arrogance.

2. Custodial Protection Without a Time Limit Cannot Protect Anyone in Taiwan

   The amendment's most serious constitutional concern is that, while retaining the existing threshold for imposing custodial protection, it removes any upper limit on its duration. Among those to whom Article 87(1) of the Criminal Code applies, more than one-third are theft cases; once paragraph 3 removes the time cap, there is a risk of indefinite deprivation of liberty. Article 46-3 of the Rehabilitative Disposition Execution Act, moreover, merely changes the timing of the pre-release transition meeting from two months to three months before release, which remains inadequate. A hastily enacted reform that has not been rigorously tested through criminal-policy research cannot protect the safety of anyone in Taiwan.

3. Fourteen Attached Resolutions Reveal the Legislature's Unease

   Civil society organizations proposed alternative language provision by provision, but because the executive branch insisted on its own approach, most of those proposals were not incorporated into the law; even the legislative reasons failed to answer outside criticism. The unusually large number of 14 attached resolutions ultimately adopted further reveals the legislature's unease. Those resolutions address, among other things, diverse treatment resources and resource allocation, the substantive capacity of evaluation panels and transition meetings, meaningful information and participation for persons subject to the measure and their caregivers or guardians, and the preparation of social reintegration plans. Without these essential elements, how can custodial protection safeguard society? We will continue to track implementation of the attached resolutions under the "highest standards" and demand concrete action from the government.

4. Encouraging Those Harmed After the New Laws Take Effect to Speak Up

   Finally, we encourage all persons subject to the new system, as well as their caregivers or guardians, to seek help and make their situations known if they are treated improperly after the laws take effect. Only by addressing concrete problems as they arise can Taiwan protect both fundamental human rights and public safety.

Our Seven Demands and Areas of Oversight Regarding the Attached Resolutions:

We will take the attached resolutions passed by the Legislative Yuan seriously, demand that the responsible authorities implement them to the "highest standards," and continue to subject their implementation to rigorous oversight.

1. Track Transparent Mechanisms and Resource Allocation for Custodial-Protection Services

   An attached resolution requires the Ministry of Justice, together with the Ministry of Health and Welfare, within three months to study the integration of medical resources-including psychiatric hospitals, equivalent facilities, appropriate forms of custodial protection, and psychiatric-evaluation capacity-and to establish an open and transparent information mechanism so that judicial authorities can promptly identify treatment appropriate to the person subject to the measure (Criminal Code Attached Resolution 1).

   We will track the establishment of this information mechanism, the disclosure of relevant information, and whether that information is genuinely accessible. We will pay particular attention to whether resources are excessively concentrated in institutional treatment at the expense of diverse community-based services, so as to ensure an appropriate allocation of resources.

2. Ensure Full Participation by Persons with Disabilities in Evaluation Panels and Transition Meetings Through Information and Procedural Safeguards

   To give effect to the Convention on the Rights of Persons with Disabilities principle "Nothing about us without us," an attached resolution requires pre-release transition meetings to include the person subject to the measure and their caregiver or guardian, so that social reintegration plans reflect real-world needs (Criminal Code Attached Resolution 2). The same principle should apply to evaluation panels: the person subject to the measure or their closest relative should be notified and allowed to attend, and this requirement should be incorporated into subsidiary regulations (Criminal Code Attached Resolution 5). Supporting measures should also refer to the United Nations' Guidelines on the Right to Liberty and Security of Persons with Disabilities and the International Principles and Guidelines on Access to Justice for Persons with Disabilities (Rehabilitative Disposition Execution Act Attached Resolution 2).

   We therefore demand that complete information be provided to the person subject to the measure and their caregiver or guardian, and that meaningful procedures for participation in evaluation panels and the development of social reintegration plans be established. The goal should be to enhance participation and enable self-determined decisions that best serve the person subject to the measure. Supporting measures should also be completed in accordance with the relevant international guidance.

3. Include Civil Society in Drafting Implementing Rules and Bring Practical Perspectives into the Judiciary

   To make implementing rules workable and responsive to real needs, an attached resolution requires the Ministry of Justice to invite civil society organizations-including caregiver groups, people with mental illness, and mental-health-rights organizations-to participate in drafting them (Criminal Code Attached Resolution 4). Because the institutional changes also make the role of judges more important, the Judicial Yuan and the Ministry of Justice are further asked to arrange courses at the Judges Academy and the Academy for the Judiciary taught by scholars, experts, and civil society groups for judicial personnel (Criminal Code Attached Resolution 3).

   We will submit concrete comments on the important implementing rules required by the new laws, demand meaningful participation by different groups in their formulation, and closely monitor the overall training arrangements for judicial personnel. The rules must be workable and complete, while giving judicial professionals access to the perspectives of frontline care practitioners.

4. Strengthen Social Reintegration Plans and Transition Procedures

   An attached resolution states that community mental-health centers and organizations providing diverse transition services should be able to enter treatment facilities, together with the person subject to the measure and their caregiver or guardian, to establish relationships. Meetings should be convened according to the social reintegration plan and the needs of those persons, with staff from community mental-health centers and other relevant bodies participating in the development of a "cross-agency social reintegration plan" (Rehabilitative Disposition Execution Act Attached Resolution 1). Recognizing the difficulty of transition, the Ministry of Justice, together with the Ministry of Health and Welfare and other relevant ministries, must also formulate the Guidelines for Transition Operations and allocate funding for community services including medical care, employment, education, long-term care, psychotherapy, and counseling (Rehabilitative Disposition Execution Act Attached Resolution 3).

   We will draw on legislation and practice from other jurisdictions, including Japan's Medical Treatment and Supervision Act, and rigorously monitor the drafting of related subsidiary regulations and guidelines. Through social reintegration plans and transition procedures, we hope to supply the diverse care perspectives omitted from the statutory text of the Criminal Code and the Rehabilitative Disposition Execution Act and make the transition system function in practice.

5. Take Seriously the Practical Planning of Security, Medical Transport, and Budgetary Support for Custodial Protection

   An attached resolution requires facilities implementing custodial protection to address both security needs and the need to transport persons for medical treatment (Rehabilitative Disposition Execution Act Attached Resolution 4). It also asks the Executive Yuan to assess the feasibility of budgetary subsidies for institutional treatment and care, as well as non-psychiatric medical care, caregiving, and living expenses (Rehabilitative Disposition Execution Act Attached Resolution 5).

   In addition to continuing to monitor security arrangements at facilities implementing custodial protection, we will press the Executive Yuan to move quickly on the budgetary support requested by the Legislative Yuan. Because custodial protection involves involuntary treatment and the cost of treatment may be substantial, shifting those costs to the person subject to the measure and their caregiver or guardian could itself create more serious social problems. Implementing meaningful subsidies is therefore both important and practical.

6. Set an Aggregate Limit on Deprivation of Liberty Through Detention and Temporary Placement

   To protect the fundamental rights of criminal defendants, and in light of the liberty-restricting nature of temporary placement, an attached resolution requires the Judicial Yuan to draw on the historical provisions of the Criminal Speedy Trial Act and promptly study an aggregate upper limit on the combined periods of detention and temporary placement (Code of Criminal Procedure Attached Resolution 1).

   We likewise focus on the liberty-restricting nature of temporary placement. We do not believe it is enough merely to set overall limits in the Criminal Speedy Trial Act and the Code of Criminal Procedure; a specific aggregate cap covering the combined periods of detention and temporary placement is still necessary to avoid gaps. We will continue to monitor the study and demand prompt enactment.

7. Complete the Substantive and Procedural Requirements for Temporary Placement and Amend the Criminal Compensation Act Accordingly

   An attached resolution recognizes that the substantive requirements for temporary placement are not sufficiently clear: merely listing examples such as expert reports, differential diagnoses, or medical records in the legislative reasons is inadequate. It also notes procedural concerns because, when detention-review procedures are applied mutatis mutandis, the prosecutor is not necessarily required to appear at the hearing. The Ministry of Justice is therefore asked to compile statistics on applications for and orders of temporary placement, make the legal requirements more concrete, and ensure accessible and timely ex ante procedural safeguards and ex post remedies. The Judicial Yuan is also asked to promptly study and propose amendments to the Criminal Compensation Act to cover temporary placement (Code of Criminal Procedure Attached Resolution 2).

   We believe the operation of the temporary-placement system should be fully disclosed after it takes effect, with transparent and accessible statistics released annually for public review. Those data should then inform adjustments to the substantive and procedural requirements, reducing concerns about legal clarity and due process. At the same time, once the new temporary-placement regime takes effect, amendment of the Criminal Compensation Act will be urgent, and we will strongly press the Judicial Yuan to propose the necessary amendments as soon as possible.

Co-signing Organizations

Eden Social Welfare Foundation
Taipei Life of Heart Association
Taiwan Mad Alliance
Prison Watch
Covenants Watch
Judicial Reform Foundation
Taiwan Association for Human Rights
Taiwan Alliance to End the Death Penalty
Taiwan Criminal Defense Lawyers Association
Taiwan Jury Association
Taiwan New Immigrants Human Rights Association
Taiwan Forever Association