Comments on the Formulation of the Regulations under Paragraph 3, Article 232 of the Administrative Litigation Act

The Judicial Reform Foundation (hereinafter referred to as the "JRF") hereby submits its comments on the formulation of the regulations under Paragraph 3, Article 232 of the Administrative Litigation Act as follows:

I. The determination criteria for "excessive distance" as stipulated in Paragraph 3, Article 232 of the Administrative Litigation Act should, in addition to administrative divisions of counties and cities, take into account actual spatial distances and transportation convenience for more nuanced categorization:

1. The preliminary planning direction for determining "excessive distance" appears to be as follows:

   Standards for Excessive Distance Between Parties and Local Administrative Courts

   	When the residence, office, official institution, principal office, or principal place of business of a party is located in one of the following special municipalities or counties (cities), it is deemed to be at an excessive distance from the competent local administrative court.
   Local Administrative Court of Taipei High Administrative Court	Special municipalities and counties (cities) other than Taipei City and New Taipei City
   Local Administrative Court of Taichung High Administrative Court	Special municipalities and counties (cities) other than Taichung City
   Local Administrative Court of Kaohsiung High Administrative Court	Special municipalities and counties (cities) other than Tainan City and Kaohsiung City

2. Regarding the aforementioned planning direction, there are essentially no questions in principle. However, the JRF suggests that apart from formal county and city administrative divisions, spatial distance and transportation convenience should still be taken into account to further establish detailed standards. Taking the southern region as an example, Houbih District, Baihe District, and Liuying District in Tainan City, as well as Namasia District and Taoyuan District in Kaohsiung City, are located approximately 80 kilometers away from the Kaohsiung High Administrative Court, with a driving time of over 1 hour and at least 2 hours by public transportation. Such actual circumstances also constitute excessive distance and should be taken into consideration to provide the court with room for concrete discretion, thereby fully safeguarding the public's right of access to court.

II. Whether to conduct trial proceedings via remote proceedings, circuit courts, or other convenient methods, when deemed appropriate by the court, should respect the parties' right to procedural choice:

1. Paragraph 2, Article 232 of the Administrative Litigation Act stipulates that in summary proceedings, if the residence, office, official institution, principal office, or principal place of business of a party on one side is located in an area at an excessive distance from the court, the administrative court shall consult their opinions and conduct the proceedings via remote proceedings, circuit courts, or other convenient methods (hereinafter collectively referred to as "convenient methods"). The legislative intent states: "...If the parties agree on a convenient method and the court deems it appropriate, such agreement shall be followed."

2. Therefore, once both parties have considered their procedural and substantive interests and chosen a convenient method appropriate for the conduct of their litigation, the court should respect this choice when it deems the parties' procedural subject status and right of procedural disposition to be proper. The intent of the aforementioned legislative rationale should be explicitly stated in the regulations. Furthermore, to enable the parties to fully understand the pros and cons of different trial methods, the court should provide appropriate clarification prior to making a decision.

III. Regarding the implementation of remote proceedings, the court may also utilize a "hybrid" approach when deemed appropriate:

1. According to Version 5.0 of the "Operational Manual for Courts Handling Remote Video Hearings" published by the Judicial Yuan, current judicial practice already encompasses a "hybrid" hearing format for remote proceedings, whereby some parties participate in the main courtroom or extension courtroom inside the court, while others participate from a courtroom outside the court. Furthermore, pursuant to Paragraph 2, Article 232 of the Administrative Litigation Act, if the location of a party on one side is at an excessive distance from the court, the court may conduct remote proceedings.

2. Therefore, when a party on one side considers their procedural and substantive interests and expresses the willingness to conduct the summary litigation via remote means, even if both parties have not reached a consensus, the court is not precluded from conducting the litigation proceedings using a "hybrid" remote trial approach when deemed appropriate, so as to balance the parties' procedural interests and the convenience of responding to the action.

3. In addition, cases conducted via remote proceedings should be supplemented by auxiliary measures such as electronic document viewing to fully ensure the parties' convenience in responding to the action.

IV. The formulation of the regulations under Paragraph 3, Article 232 of the Administrative Litigation Act should study and review the impact of remote proceedings on judgment outcomes and litigation processes:

1. Foreign studies indicate that the judgment outcomes of immigration detention cases adjudicated via remote proceedings predominantly result in forced deportation compared to in-person trials:

   • (1) U.S. scholar Ingrid V. Eagly, in her article entitled "Remote Adjudication in Immigration," empirically analyzed approximately 150,000 "adult detention cases" across U.S. states in 2011 and 2012, discovering that up to 25% of them were adjudicated via remote methods ^[1]. To understand the impact of remote proceedings, the study compared the outcomes of immigration forced deportation cases adjudicated via remote proceedings versus in-person trials.

   • (2) The study pointed out that trials conducted via remote proceedings predominantly result in forced deportation compared to in-person trials ^[2]. The reasons are as follows:

     1. Increased barriers and hurdles for defendants participating in proceedings:

        Taking unrepresented parties as an example, the preliminary preparation procedures for remote proceedings are quite complex (e.g., procedures for petitioning the court for release), and opportunities to obtain information and resources also differ from in-person trials (e.g., detention centers find it more difficult to inform detainees of relief procedures in a language they understand; relevant materials cannot be presented to the judge in the same manner as in in-person trials, nor is there any way of knowing whether they were delivered to the judge in a timely manner through the correctional facility system), thereby substantially increasing the inconvenience for parties participating in litigation ^[3].

        In cases where attorneys are retained as litigation agents, because fees for such cases are relatively low, parties and their attorneys in practice mostly meet only at the time of trial. When courts conduct in-person trials, attorneys can meet with parties in the detention room beforehand; however, when conducting remote proceedings, both parties lack this opportunity for pre-hearing communication ^[4]. Defendants in immigration cases expressed that remote proceedings give them the impression of not being a day in court, and that such methods are relatively unfair to them ^[5].

     2. Translation and interpretation issues: Due to the inability to conduct real-time synchronization and the difficulty in confirming with parties whether they understand the translation, there is inevitably a difference in translation quality between remote proceedings and in-person trials. The report jointly published in 2005 by The Legal Assistance Foundation of Metropolitan Chicago and Chicago Appleseed Fund for Justice entitled "Videoconferencing in Removal Proceedings: A Case Study of the Chicago Immigration Court" found that among 110 cases adjudicated remotely by the Chicago Immigration Court in 2004, as many as 30% of the parties could not understand the ongoing litigation due to translation issues ^[6].

2. The conclusions of the aforementioned research should serve as a reference for detention application cases in Taiwan and are beneficial to the formulation of regulations, the improvement of the remote trial system, and the expansion of its scope of application:

   • (1) The case types studied in the aforementioned literature are detention cases, and therefore should be comparable to detention cases under summary proceedings pursuant to Item 5, Paragraph 1, Article 229 of Taiwan's Administrative Litigation Act. Furthermore, even though trial methods and legal systems differ, the language barriers of parties and problems of remote proceedings present in detention cases in both the United States and Taiwan are indeed identical and can serve as a reference.

   • (2) Examining detention cases in Taiwan, due to the massive volume of cases and relatively straightforward facts, the "Online Adjudication System for Detention Cases" has been utilized in practice since 2018 to adjudicate a large number of such cases remotely. However, as can be seen from the aforementioned literature, the United States' extensive use of remote proceedings in detention cases has been criticized regarding its impact on judgment outcomes, negative perceptions by parties, and barriers of language and interpretation. The JRF suggests that Your Department should collect opinions from parties and judges regarding the currently prevalent remote adjudication of detention application cases, evaluate whether there is room for review and improvement, and use this as a reference for formulating regulations or future court deliberations on expanding their scope of application.

3. In circumstances where courts examine witnesses remotely via video equipment, attention should be paid to the fact that the credibility of witness testimony is lower than in in-person trials, and the trial method may be determined by synthesizing factors such as the nature of the case and the location of the witness:

   • (1) The article published by the Brennan Center entitled "The Impact of Video Proceedings on Fairness and Access to Justice in Court" suggests, through literature analysis and comparison, that remote proceedings have an impact on the "credibility of witness testimony":

     1. Research methods utilizing simulated trials found that when children are victims of sexual assault crimes, juries perceiving the children's testimony on-site and in person consider it to have higher accuracy and credibility than statements made via remote proceedings ^[7]. Similar research in Sweden also indicates that when juries listen to witness statements in person, they generally hold a more positive view regarding the credibility of the witness testimony ^[8].

     2. A 2017 U.S. Government Accountability Office report concerning immigration courts pointed out that judges in three out of six interviewed courts mentioned that after in-person trials, their credibility assessments previously formed through remote proceedings shifted, thereby affecting results such as whether parties were granted asylum ^[9]. Reasons for this shift can be found in psychology; because it is not face-to-face, judges not only find it more difficult to make eye contact with defendants, but also harder to perceive their emotions and body language, which is known as the "vividness effect" ^[10].

     3. Synthesizing the above, the credibility of witness testimony will vary due to different trial methods, leading judges to form completely different inner convictions. Therefore, in the design of relevant regulations, the disparity in the results of determining witness testimony during evidence investigation caused by different trial methods should still be minimized as much as possible, so as not to affect the people's right to a fair trial.

   • (2) Furthermore, according to the 2021 article by Professor Shen Kuan-Ling entitled "Online Filing and Remote Proceedings in Civil Litigation," constrained by spatial separation and the placement of video equipment lenses, video trials have a certain impact on the "quality of evidence investigation" and "formation of judicial inner conviction" [11]. In practical operations, if a witness is not located in a court or official agency, to avoid concerns such as secret recording by parties or leakage of secrets, the Intellectual Property Court mostly excludes the use of remote proceedings by deeming it "inappropriate" [12]. Therefore, even though remote proceedings do not violate the principle of immediacy, courts should still consider factors such as the nature of the case, facts to be proven, witness characteristics, and location to determine whether witness examination should be conducted via remote proceedings, thereby balancing judicial economy, the procedural interests of the parties, and the public interest in discovering objective truth [13].

   • (3) Regarding administrative litigation cases, examining witnesses remotely may also impact the quality of evidence investigation and judicial inner conviction. Therefore, when Your Department formulates the regulations, it is recommended to reference the aforementioned literature so that judges fully understand the factual impact of remote witness examination, facilitating judges in conducting trials through appropriate methods by considering factors such as the nature of the case, facts to be proven, and the witness's location.