Press Release | Initiating Code of Criminal Procedure Amendments to Enhance Criminal Human Rights Protections in Searches and Defendant Interrogations
Last edited: 2026-08-21
Whenever major criminal cases make media headlines, discussions regarding searches and interrogations inevitably arise. Especially during the sparring between prosecutors and defense counsel, debates and controversies surrounding the methods employed by prosecutors and investigative authorities are a frequent occurrence.
In fact, controversies surrounding search and interrogation procedures and the resulting concerns over the protection of defendants' rights to a defense are not confined to high-profile cases alone; they are part of the daily routine of investigations. We believe that this not only fails to adequately protect defendants' rights, but also undermines the credibility of investigative agencies with each successive media report, ultimately evolving into a skepticism of the entire judicial process.
In response to this, the Judicial Reform Foundation, after consulting experts, attorneys, and scholars, proposes the following four legislative recommendations along with a complete civil-society draft for amendments. We hope to resolve and clarify several common procedural issues currently in practice and improve the protection of human rights for criminal defendants:
1. Defendants should be granted the right to have defense counsel present during searches.
2. When a search is conducted and a defendant's freedom is restricted, the defendant must be brought before a court within 24 hours.
3. Prosecutors, police, and investigative officers must not use physical restraints when interrogating defendants.
4. Absent special circumstances, judges and prosecutors are prohibited from conducting nighttime interrogations.
1. Defendants should be granted the right to have defense counsel present during searches
According to Article 150 of the Code of Criminal Procedure, lawyers are only permitted to be present during searches during the court trial stage. Conversely, if a case is still being investigated by prosecutors, police, or investigative agencies and has not yet been transferred to the court, lawyers are not allowed to be present.
In fact, the original Code of Criminal Procedure did not contain the aforementioned restriction; it was introduced during the 1982 legislative amendments. The historical context at the time was that Taiwan was about to introduce the system of "counsel during investigation," and the legislature believed that allowing lawyers to be present during searches would compromise the "non-disclosure of investigation," leading to the legislative ban.
Clearly, whether viewed from the perspective of the principle of non-disclosure of investigation or ensuring the completeness and legality of search procedures, the legislative amendment at that time was untenable. Examining provisions such as Article 106 of the German Code of Criminal Procedure and Article 113 of the Japanese Code of Criminal Procedure, neither prohibits the presence of lawyers. Accordingly, it is necessary to amend the aforementioned provisions to allow defense counsel to be present during searches in the investigative stage. Should a lawyer's presence disrupt the execution of the search, they can still be excluded in accordance with the law, presenting no insurmountable operational difficulties.
2. When a search is conducted and a defendant's freedom is restricted, the defendant must be brought before a court within 24 hours
Regarding situations where individuals are searched by investigative personnel at their residences, they are not necessarily arrested or subjected to freedom restrictions on the spot. However, current laws also lack a requirement to inform them whether their freedom has been restricted, thereby forcing individuals unfamiliar with the law to remain present. Consequently, this unduly extends the duration during which individuals have their personal freedom restricted.
Article 8 of the Constitution of the Republic of China (Taiwan) stipulates that persons arrested or detained must be brought before a court for interrogation within 24 hours. However, under the aforementioned circumstances, because the defendant has "formally" not had their freedom restricted, the 24-hour period may only begin to run after the search concludes (in practice, searches can last for several hours) and they are asked to be brought in for questioning. Regarding the operational results in practice, some scholars have criticized this, arguing that it hollows out the provisions of Article 8 of the Constitution of the Republic of China (Taiwan).
To address this, we believe that when a defendant is subjected to a search, the executing personnel must clearly inform the defendant whether their personal freedom is concurrently restricted. If it is not restricted, they must be informed that they are free to leave; if their personal freedom is restrained, the 24-hour period for police, prosecutorial, and investigative interrogation must begin immediately, in order to fulfill the intent of Article 8 of the Constitution of the Republic of China (Taiwan) in protecting the personal freedom of the people.
3. Prosecutors, police, and investigative officers must not use physical restraints when interrogating defendants
According to Article 2 of the current "Directions for Prosecutors' Offices to Direct Guard Personnel on the Use of Handcuffs and Physical Restraints on Suspects and Defendants": "When a defendant is being interrogated in the investigative courtroom, handcuffs shall be removed to facilitate free statement. If it is deemed necessary to maintain security, additional court bailiffs may be dispatched based on actual needs to strengthen guarding." However, regarding police questioning, practice lacks a uniform approach.
To prevent miscarriages of justice, ensuring the voluntariness of a defendant's statements is necessary not only in court. Rather, when individuals are placed directly under the physical control of police, prosecutors, and investigators, it is even more imperative to guarantee a certain degree of bodily freedom for the defendant.
It must be clarified that, generally speaking, during interrogation defendants are already placed under the physical control of investigative personnel, and security risks have already been eliminated; upon the conclusion of interrogation, physical restraints may naturally be used in accordance with the law to prevent escape or resistance. Conversely, if security concerns persist, the environment and conditions are simply not yet suitable for conducting police questioning. In this regard, this legislative amendment does not additionally restrict the timing for frontline investigative personnel to use physical restraints during law enforcement.
4. Absent special circumstances, judges and prosecutors are prohibited from conducting nighttime interrogations
Article 100-3 of the Code of Criminal Procedure explicitly prohibits nighttime interrogation. However, paradoxically, under current regulations, the prohibition on nighttime interrogation applies in principle only to police officers. If permitted by a judge or prosecutor, however, nighttime interrogation may be conducted. In this regard, some scholars hold the view that prohibiting only judicial police from conducting nighttime inquiries while permitting nighttime interrogations authorized by judges and prosecutors presents a logical contradiction.
To ensure the voluntariness of defendants' statements and confessions and to avoid the disadvantages of fatigue interrogation, we believe the law should be amended to delete the exception for "permission by judges and prosecutors." It must be clarified that following the deletion of this exception, other exceptions remain intact. Therefore, when a defendant explicitly consents or in urgent circumstances, nighttime interrogations may still be conducted exceptionally.
When judges interrogate defendants in detention hearings, to prevent fatigue interrogation and simultaneously ensure that judicial personnel do not make momentous decisions regarding detention while physically and mentally exhausted, the same legal principle should apply, and nighttime proceedings should be prohibited in principle. However, current law only prohibits "late-night interrogation," forcing defendants to undergo interrogation until 11 PM at night. To address this, we believe this part should be standardized to prohibit "nighttime interrogation," and the provisions concerning "late-night" should be deleted.
Finally, to align with modern daily routines, the definition of nighttime is changed uniformly from "after sunset and before sunrise"[1] to "8:00 PM to 8:00 AM."
Regarding the aforementioned direction for amending the Code of Criminal Procedure, the Foundation has already begun explaining the reform philosophy of the draft to the offices of legislators across all political parties at the start of the current legislative session. Currently, the Taiwan People's Party has expressed support for the aforementioned amendment direction. Beyond the Taiwan People's Party, we hope that members of all parties in the Legislative Yuan will provide bipartisan support to further enhance criminal human rights protections in searches and interrogations.
Press Contact
Elvin Lu, Director of the Law and Policy Department, Judicial Reform Foundation
Telephone: 02-2523-1178#37
Email: elvin@jrf.org.tw
Footnote
- Depending on the season, the time range spans approximately between 5:00 PM–6:30 PM and 5:00 AM–6:30 AM.
This article is an AI-generated translation of the original Chinese text. In the event of any discrepancy, the Chinese version shall prevail.