New dedicated chapters for restriction on leaving this country or putting to sea are added to the Code of Criminal Procedure (Taiwan)

2019.5.24
Oli Wong

The Legislative Yuan adopted the partial amendments to the Code of Criminal Procedure by three readings during the 15th Meeting of the 7th Session of the 9th Term on May 24, 2019.  The amendments were subsequently promulgated by the President via the Hua-Zhong-One-Yi-Zi-10800059991 Presidential Decree of June 19 of the same year.  The newly amended law will go into effect six months after its promulgation.  This article merely highlights the provisions relating to restriction on leaving Taiwan and putting to sea under these amendments.

There are neither corresponding criteria or procedures concerning the methods of enforcing restriction on leaving Taiwan or putting to sea under the Code of Criminal Procedure before amendment nor any definite duration of such restriction.  Therefore, a defendant in practice is often not aware that he/she is subject to an exit restriction until the time of exit, and this has caused constraints and major inconveniences to a defendant’s freedom of movement.  To carry out escape prevention mechanisms, safeguard the rights and interests of the people, and address the practical needs of investigation and trial, these amendments clarify the procedures for restricting exit and putting to sea by adding a whole new chapter which includes such procedures.  On one hand, the chapter stipulates independent compulsory enforcement, and if there is ground but no necessity for detaining a defendant, this chapter regulates this scenario on the other hand by alternative means equivalent to bail, consignment to custody or limitation of residence.

1. Restriction on leaving Taiwan or putting to sea as a general independent compulsory disposition:

Article 93-2, Paragraph 1 of this law as amended grants a prosecutor or judge with the authority to impose a restriction on leaving Taiwan or putting to sea on a defendant seriously suspected of a crime or subject to ground of restriction on leaving Taiwan or putting to sea (pursuant to, for example, Article 93-2, Paragraph 1, Subparagraphs 1 through 3) with necessity to impose a restriction on leaving Taiwan or putting to sea, the prosecutor in the course of investigation or judge may elect to impose a restriction on leaving Taiwan or putting to sea to prevent the defendant from escaping overseas.  However, if the principal punishment for the crime committed is detention or a fine, restriction on leaving Taiwan or putting to sea shall not be imposed directly.

A notice for the above-mentioned restriction on leaving Taiwan or putting to sea shall be served within six months after the restriction is imposed at the latest except when the notice cannot be served since the defendant’s domicile or residence is unknown.  However, if a prosecutor or judge has examined the defendant before the notification, the defendant shall be informed of the restriction and provided with a document for the restriction on the spot during the court hearing to facilitate the defendant’s initiation of the judicial remedy procedure (Article 93-2, Paragraphs 2 and 3).  In addition, a defendant who has learned that he/she is restricted from leaving Taiwan or putting to sea before the notification (e.g., the defendant does not know about the restriction on leaving Taiwan or putting to sea until arrival in an airport or port) may also request the delivery of a written notice concerning the restriction on leaving Taiwan or putting to sea to facilitate the subsequent initiation of the judicial remedy procedure (Article 93-2, Paragraph 4).

2. Such restriction as an alternative disposition in lieu of detention:

Under Article 93-6 of the law as amended, restriction on leaving Taiwan or putting to sea is specifically stipulated as an alternative disposition equivalent to bail, consignment to custody or limitation on residence, and Article 93-2, Paragraph 2 and Article 93-3 through Article 93-5 shall apply mutatis mutandis.  However, unlike the nature of the above independent compulsory measures, a judge or prosecutor may, without a buffer period for notification within six months after the restriction is imposed, notify a defendant immediately during a court hearing or serve a written notice upon the defendant if concluding there is ground but no necessity to detain the defendant after examining the defendant.

3. Timing for the restriction on leaving Taiwan or putting to sea:

Under Article 93-3, Paragraph 1 of the law as amended, the period in which a defendant is restricted from leaving Taiwan or putting to sea by the prosecutor in the course of investigation shall not exceed eight months.  However, if it is necessary to continue the restriction after the eight-month period expires, the prosecutor shall file a motion with the court for a ruling through a written submission indicating satisfaction with relevant criteria at least 20 days prior to the expiration of the period. The transcript of the motion should be delivered to the defendant and his/her defender to safeguard the defendant’s right to express his/her opinions.

In addition, Article 93-3, Paragraph 2 of the law as amended provides that if the court issues a ruling to grant an extension to the restriction on leaving Taiwan and putting to sea, the first extension shall not exceed four months and the second shall not exceed two months.  The extension may be filed not more than twice during investigation.  In short, the period in which a defendant under investigation is restricted from leaving Taiwan or putting to sea should be no longer than fourteen months.  A restriction on leaving Taiwan or putting to sea during trial should not exceed eight months each time, and the cumulative duration of such restriction for an individual who has committed an offense with a maximum principal penalty of up to ten years in prison should not exceed five years, while the cumulative duration for other felonies should not exceed ten years.

4. Remedies for restriction on leaving Taiwan or putting to sea

Under Article 93-5 of the law as amended, a defendant seeking remedies for the above restriction on leaving Taiwan or putting to sea may file an interlocutory appeal against a court’s ruling or file a motion to object, set aside or amend measures taken by the judge or prosecutors.

5. Lifting of the restriction on leaving Taiwan or putting to sea in case of non-prosecution or acquittal

Under Article 93-4, Paragraph 4 of the law as amended, if a defendant is subject to a non-prosecution disposition or a deferred prosecution disposition, a judgment of acquittal, dismissal, exemption from punishment, probation or a fine, or alternatively to an admonition, or case rejection under Article 303, Subparagraph 3 or 4, the restriction on leaving Taiwan or putting to sea shall be deemed cancelled.  However, the restriction on leaving Taiwan or putting to sea may continue, if necessary, during the period of appeal or when appeal is pending, since the original decision may still be reversed.

6. Effective date and re-rendition of dispositions

Under Article 7-11 of the Implementation Law of the Code of Criminal Procedure, the provisions on the restriction on leaving Taiwan or putting to sea under Chapter VIII-1 of this law shall go into effect six months after the promulgation of its amendments, i.e., December 19, 2019.  For those who are restricted from leaving Taiwan or putting to sea during investigation or trial before these amendments become effective, a new disposition shall be rendered in accordance with Chapter VIII-1 of the Code of Criminal Procedure within two months after the effective date.  The original disposition shall become invalid in case of failure to re-render a disposition within such period.

In addition, after a new disposition is rendered, the period of restriction on leaving Taiwan or putting to sea shall be recalculated in accordance with Article 93-3 of the law as amended.  However, the duration of restriction on leaving Taiwan or putting to sea before and after the amendments to the law during trial for a case involving a maximum principal penalty of up to ten years in prison shall be combined with a combined period of not more than five years.