[Legal Life] Ch4 Prosecutor, Do You Just Detain Whoever You Say?

After enduring a series of interrogations by the prosecutor in the investigative division, Ch'en Chun-ming was deemed by the prosecutor to indeed require detention, and a request for his detention was immediately filed with the judge. Having just finished the interrogation, Chun-ming was immediately arrested and informed that he might be detained. Dragging his exhausted body, Chun-ming began discussing strategies with his lawyer on how to protect his rights...

What is Detention?

Detention is somewhat different from sending a criminal to prison to serve a sentence. Detention is the act of confining a defendant in a detention center prior to a definitive judgment (including during investigation or trial). In other words, it means locking you up temporarily before a judge formally convicts you. Then why restrict a person's personal liberty when it has not yet been determined whether they have committed a crime? Generally speaking, there are several possible purposes:

1. To prevent the defendant from fleeing, which would subsequently make it impossible to conduct judicial proceedings or for the prosecutor to prosecute the crime.
2. To prevent the defendant from destroying evidence or colluding with others, thereby hindering the prosecutor's investigation of the facts of the crime.
3. To protect the defendant from harming others again, with the purpose of safeguarding public safety.

Therefore, in principle, detention is not a punishment, but a temporary restriction of personal liberty to ensure that future judicial proceedings can proceed smoothly or to protect public safety.

Requirements for Detention

Detention must be preceded by a lawful arrest or apprehension; this is also known as the principle of prior arrest (or apprehension)

According to the provisions of the Code of Criminal Procedure, one scenario is that the defendant is first lawfully arrested or apprehended, after which the prosecutor directly applies for detention after the interrogation (Article 93, Paragraph 2). The second scenario occurs when the defendant voluntarily appears; after the interrogation, the prosecutor may first arrest the defendant and then subsequently apply to the judge for detention (Article 228, Paragraph 4). Regardless of either scenario, an application for detention must be submitted to the judge within 24 hours of the arrest. This time limit not only allows individuals to promptly see a relatively neutral judge, but is also a fundamental right protected by Article 8 of the Constitution. If the time limit is exceeded without justifiable reason, the judge should directly dismiss the application for detention. The aforementioned justifiable reasons—such as physical discomfort making interrogation impossible, or the time spent waiting for a lawyer or interpreter to arrive—are not counted within the 24 hours.

The reason for the requirement of prior arrest or apprehension is that the requirements for arrest or apprehension must first be met; people cannot simply be seized and detained at will. Furthermore, only after a formal arrest or apprehension can the aforementioned 24-hour limit be clearly calculated, preventing the police and prosecutors from detaining individuals indefinitely.

In other words, in order to allow a relatively neutral judicial organ—the court—to review the legality of the apprehension and the necessity of detention, judicial review is utilized to protect the personal liberty of defendants or criminal suspects. If the court deems the prior apprehension or arrest illegal, it will not issue a decision for detention.

Statutory Grounds for Detention

To detain a person beforehand, in addition to strong suspicion that the defendant has committed a crime, more importantly, there must be statutory grounds for detention. As mentioned above, the purpose of detention is not to make a criminal serve a sentence in advance, but to ensure the progress of judicial proceedings or to protect public safety. Therefore, detention can only be ordered when these purposes cannot otherwise be safeguarded.

1. Flight or Facts Giving Rise to a Well-Founded Fear of Flight
   Article 101, Paragraph 1, Subparagraph 1 of the Code of Criminal Procedure stipulates that to prevent a defendant from fleeing and thereby causing future criminal proceedings to become impossible, individuals who have already fled and been caught or who are highly likely to flee may be subjected to an application for detention. For example, Hsiao-hua originally had no plans to go abroad, but very impulsively bought a one-way ticket to Panama; or Hsiao-hua, who originally lived a life of luxury in a luxury mansion in Taipei, suddenly went to a fishing village to inquire if there were any fishing boats available to go out to sea for night squid fishing to supplement household expenses, and this was uncovered by the prosecutor. At this point, it might be considered that there is a "fear of flight," and the prosecutor can use such facts to apply to the judge for detention.
   
2. Facts Giving Rise to a Well-Founded Fear of Destroying, Forging, or Altering Evidence, or Colluding with Accomplices or Witnesses
   Article 101, Paragraph 1, Subparagraph 2 of the Code of Criminal Procedure stipulates that if a defendant is highly likely to destroy evidence or collude in testimonies with others—such as sending text messages instructing the secretary to quickly shred and clear away "those" things, or frantically calling accomplices to get them out for coffee and gossip—the prosecutor can apply for detention based on these facts. The purpose of this provision is to prevent subsequent difficulties for the prosecutor in investigating evidence, safeguard the realization of social justice, and preserve evidence.
   
3. Detention for Major Crimes?
   Article 101, Paragraph 1, Subparagraph 3 of the Code of Criminal Procedure stipulates: "Those who have committed offenses punishable by the death penalty, life imprisonment, or imprisonment for a minimum term of five years or more." This subparagraph uses involvement in a major crime as a statutory ground for detention, which has no direct relationship with the aforementioned purpose of detention to ensure smooth proceedings. For example, an elderly grandfather, unable to bear watching his elderly grandmother suffer from illness, ends her life and turns himself in at a police station. Although the crime is serious in this case, there is no fear at all that the grandfather will run away, so there is no reason to detain him in advance. Therefore, Judicial Yuan Interpretation No. 665 held that although persons who commit major crimes are generally more likely to flee or destroy evidence, even if a defendant commits a major crime, there must still be reasonable grounds to believe that there are other reasons such as flight or destruction of evidence to be considered together. If we were to detain a person simply because of a major crime, it would raise concerns of pre-judgment punishment and potentially violate the principle of legality (nullum crimen, nulla poena sine lege). Therefore, major crimes cannot solely serve as the statutory ground for detention.
   
4. Preventive Detention
   So-called preventive detention refers to the provision in Article 101-1 of the Code of Criminal Procedure, where a defendant commits certain crimes causing harm to others (e.g., compulsive rape, arson, etc.) and continuously repeats the same crime. In such cases, it is deemed that they are highly likely to commit the crime again. If we continue to condone their actions, other members of society will suffer harm. Therefore, in order to protect others in society from being harmed again by the defendant's repeated criminal behavior, we temporarily restrict their personal liberty—this is known as preventive detention.
   
5. Necessity of Detention
   In addition to the aforementioned "grounds for detention," because restricting personal liberty is an extremely severe means of infringing upon fundamental rights, detaining a person is permissible only when it is strictly necessary and no other better alternatives exist. In other words, it must be determined that "if detention is not imposed, the prosecutor will obviously be unable to continue prosecuting the crime in the future," or "if detention is not imposed, the safety of others in society will probably be difficult to safeguard."
   However, under certain circumstances, the court may deem that restricting the defendant's personal liberty is not strictly necessary to safeguard the conduct of criminal proceedings, and therefore alternative measures may be used instead (prosecutors may also adopt these measures after interrogation without applying to the court for detention). These alternative measures include:
   
   • Bail: Ordering the defendant to provide a certain guarantee or pay a certain sum of money to guarantee that they will definitely not flee. In this way, with the money in the court's hands, you perhaps will not dare to run around haphazardly. The phrase often heard in news cases about "being released on bail of XX ten-thousand NT dollars" refers to this situation of bail.
   • Custody to a Suitable Person (Zeh Fu): The court requests a family member or an appropriate person within the local jurisdiction (such as a village warden) to supervise the defendant. This person is responsible for receiving court documents for the defendant and urging the defendant to appear in court.
   • Restriction of Residence: Limiting the defendant's scope of movement or residence. Common examples include restricting the defendant from leaving the country or the sea, or requiring the defendant to report regularly to a police station.

If all the aforementioned requirements (grounds for detention + necessity of detention) are met, the judge will issue a detention warrant in accordance with Article 102 of the Code of Criminal Procedure and detain you.

Procedural Regulations for Detention

Upon receiving the prosecutor's application, the court should immediately interrogate the defendant to see whether the requirements for detention are met. In addition, judicial interrogation should, in principle, avoid nighttime interrogation to ensure that the defendant's statements are made with a clear mind and without excessive fatigue. Currently, many courts have prepared resting places for defendants subject to detention applications who prefer not to undergo nighttime interrogation. Furthermore, detention during the investigative stage cannot exceed two months and may only be extended once, meaning a maximum of four months. Detention during the trial stage cannot exceed three months; for major crimes, it can be extended an unlimited number of times, whereas for lesser crimes, there are limits on the number of extensions. All these restrictions are designed to make detention more cautious and non-excessive, considering they have not yet been truly convicted.

Remedies for Detention

1. Appeal (Kang-kao)
   According to Article 404 of the Code of Criminal Procedure: Against a court ruling on detention, the defendant may file an appeal to a higher court to review once more whether it is a lawful detention. If the higher court dismisses the appeal, that is the end of the matter; if the higher court considers the appeal well-founded, it will usually remand the case back to the original court for a new decision. However, the defendant will only truly be released when the original court dismisses the prosecutor's application for detention.
   
2. Suspension of Detention
   The party concerned may also apply midway to the court for bail to replace detention. In other words, you can tell the judge, "Just let me provide money as a guarantee that I will not run away, and do not lock me up in a tiny cell." Moreover, if the committed crime is a lesser offense punishable by imprisonment for three years or less, detention, or a fine exclusively, or if you are pregnant for five months or more, or have given birth within the past two months, or are ill and must go to the hospital for treatment, the court must, in principle, grant the application when bail is requested.
   

Related Legal Provisions

• Article 8 of the Constitution: "(Paragraph 1) The personal freedom of the people shall be guaranteed. Except for the arrest of flagrant offenders as otherwise provided by law, no person shall be arrested or detained except by judicial or police organs in accordance with legal procedures. No person shall be tried or punished except by a court in accordance with legal procedures. Any arrest, detention, trial, or punishment not conducted in accordance with legal procedures may be resisted.
  (Paragraph 2) When a person is arrested or detained on suspicion of a crime, the organ making the arrest or detention shall in writing inform the person so arrested or detained, and the designated relatives or friends of such person, of the grounds for arrest or detention, and shall, within twenty-four hours at the latest, turn over the person to the competent court for trial. The person arrested or detained, or any other person, may also petition the competent court to institute a writ of habeas corpus within twenty-four hours against the arresting organ.
  (Paragraph 3) The court shall not reject the petition mentioned in the preceding paragraph, nor shall it order the arresting or detention organ to make a preliminary report prior to acting. The arresting or detention organ shall not refuse or delay compliance with the court's writ of habeas corpus.
  (Paragraph 4) When a person is illegally arrested or detained by any organ, such person or any other person may petition the court for an investigation, which the court shall not refuse, and shall make an investigation against the arresting or detention organ within twenty-four hours, and deal with the matter in accordance with law."
• Article 93 of the Code of Criminal Procedure: "(Paragraph 1) A defendant or criminal suspect brought in pursuant to apprehension or arrest shall be interrogated immediately.
  (Paragraph 2) If, after interrogation during the investigation, the prosecutor deems it necessary to detain the defendant, the prosecutor shall, within twenty-four hours from the time of apprehension or arrest, state the reasons for detention and apply to the competent court for detention.
  (Paragraph 3) In the circumstances of the preceding paragraph, if no application is made, the prosecutor shall immediately release the defendant. However, if the prosecutor deems that any of the circumstances specified in the subparagraphs of Article 101, Paragraph 1 or Article 101-1, Paragraph 1 exists, but there is no need to apply for detention, the prosecutor may directly order bail, custody to a suitable person (Zeh Fu), or restriction of residence; if bail, custody to a suitable person, or restriction of residence is impossible and there is a necessary circumstance, the prosecutor may still apply to the court for detention.
  (Paragraph 4) The provisions of the preceding three paragraphs shall apply mutatis mutandis when a prosecutor receives a defendant transferred by a court pursuant to the Juvenile Justice Act or by a military judicial organ pursuant to the Military Trials Act.
  (Paragraph 5) Upon receiving an application for detention under the preceding three paragraphs, the court shall interrogate the defendant immediately. However, if the interrogation is not completed by late night, or if the application is received late at night, the defendant, defense counsel, and persons entitled to act as the defendant's assistant may request the court to conduct the interrogation during daytime on the following day. The court shall not refuse unless there is justifiable reason.
  (Paragraph 6) ‘Late night’ referred to in the proviso of the preceding paragraph means from 11:00 p.m. to 8:00 a.m. of the following day."
• Article 93-1 of the Code of Criminal Procedure: "(Paragraph 1) The twenty-four hours specified in Article 91 and Paragraph 2 of the preceding article shall exclude the time elapsed under any of the following circumstances. However, unnecessary delay shall not be permitted:
  1. Unavoidable delay caused by traffic obstacles or other force majeure events.
  2. Time spent on transit escort.
  3. Circumstances where questioning is prohibited pursuant to the provisions of Article 100-3, Paragraph 1.
  4. Inability to interrogate in fact due to sudden health issues of the defendant or criminal suspect.
  5. Interrogation not conducted because the defendant or criminal suspect expressed the intention to retain defense counsel and was waiting for defense counsel to arrive. However, the waiting time shall not exceed four hours. The same shall apply to failure to interrogate due to waiting for a lawyer to arrive pursuant to Article 31, Paragraph 5, or due to waiting for a person notified to accompany and be present pursuant to Article 35, Paragraph 3 because the individual is unable to make a full statement due to mental disorders or other mental defects.
  6. Interrogation not conducted because the defendant or criminal suspect required an interpreter and was waiting for the interpreter to arrive. However, the waiting time shall not exceed six hours.
  7. A defendant ordered by the prosecutor to provide bail or custody to a suitable person, while awaiting bail or such custody. However, the waiting time for bail or custody shall not exceed four hours.
  8. The period during which a criminal suspect is subjected to a writ of habeas corpus by the court.
  (Paragraph 2) No interrogation shall be conducted during the elapsed time of the circumstances in the subparagraphs of the preceding paragraph.
  (Paragraph 3) If the defendant cannot be transferred to the competent court within twenty-four hours due to statutory obstructive causes under Paragraph 1, the prosecutor shall state such causes when applying for detention."
• Article 101 of the Code of Criminal Procedure: "(Paragraph 1) After a judge interrogates a defendant and deems that there is strong suspicion that the defendant has committed a crime, and any of the following circumstances exists, making it manifestly difficult to conduct prosecution, trial, or execution unless the defendant is detained, the defendant may be detained:
  1. Flight or facts giving rise to a well-founded fear of flight.
  2. Facts giving rise to a well-founded fear of destroying, forging, altering evidence, or colluding with accomplices or witnesses.
  3. The offense committed is punishable by the death penalty, life imprisonment, or imprisonment for a minimum term of five years or more.
  (Paragraph 2) When conducting the interrogation under the preceding paragraph, the prosecutor may be present to state the reasons for applying for detention and submit necessary evidence.
  (Paragraph 3) The facts upon which the subparagraphs of Paragraph 1 are based shall be notified to the defendant and defense counsel and recorded in the protocol."
• Article 101-1 of the Code of Criminal Procedure: "(Paragraph 1) After a judge interrogates a defendant and deems that the defendant is strongly suspected of committing any of the offenses in the following subparagraphs, and there are facts giving rise to a well-founded fear of repeatedly committing the same crime, and detention is necessary, the defendant may be detained:
  1. Arson offenses under Article 174, Paragraph 1, Paragraph 2, Paragraph 4, Article 175, Paragraph 1, Paragraph 2, or quasi-arson under Article 176 of the Criminal Code.
  2. Compulsive rape under Article 221, compulsive obscenity under Article 224, aggravated compulsive obscenity under Article 224-1, sexual assault or obscenity taking advantage of another's state of helplessness under Article 225, sexual intercourse or obscenity with young males or females under Article 227, or injury under Article 277, Paragraph 1 of the Criminal Code. However, this shall not apply to offenses requiring a complaint where no complaint has been filed, the complaint has been withdrawn, or the statutory period for filing a complaint has expired.
  3. Offenses against personal liberty under Article 302 of the Criminal Code.
  4. Compulsion under Article 304 or intimidation endangering safety under Article 305 of the Criminal Code.
  5. Theft under Article 320 or Article 321 of the Criminal Code.
  6. Robbery under Article 325 or Article 326 of the Criminal Code.
  7. Fraud under Article 339 or Article 339-3 of the Criminal Code.
  8. Extortion under Article 346 of the Criminal Code.
  (Paragraph 2) The provisions of Paragraph 2 and Paragraph 3 of the preceding article shall apply mutatis mutandis to the circumstances of the preceding paragraph."
• Article 108 of the Code of Criminal Procedure: "(Paragraph 1) The detention of a defendant shall not exceed two months in the investigative stage and three months in the trial stage. However, if there is a necessity to continue detention, the court may, before the expiration of the period and after interrogating the defendant pursuant to Article 101 or Article 101-1, extend the detention by ruling. An extension of the detention period during the investigation shall be applied for by the prosecutor with specific reasons to the court for a ruling at least five days prior to the expiration of the period.
  (Paragraph 2) Except where pronounced in court, the ruling mentioned in the preceding paragraph shall take effect upon the service of the original text of the ruling to the defendant prior to the expiration of the period. If the detention period expires and the ruling extending detention has not been lawfully served, the detention shall be deemed revoked.
  (Paragraph 4) During the extended detention period, the detention shall not exceed two months in the investigative stage and shall be limited to one extension. In the trial stage, each extension shall not exceed two months; if the maximum statutory punishment for the offense committed is imprisonment for ten years or less, extensions shall be limited to three times for the first and second instances, and once for the third instance."
• Article 110 of the Code of Criminal Procedure: "(Paragraph 1) A defendant, persons entitled to act as the defendant's assistant, or defense counsel may at any time apply to the court for bail to suspend detention.
  (Paragraph 2) A prosecutor may apply to the court during the investigation to order the defendant to provide bail to suspend detention."
• Article 115 of the Code of Criminal Procedure: "(Paragraph 1) A detained defendant may be suspended from detention without bail by being placed in the custody of persons entitled to act as the defendant's assistant or other appropriate persons within the competent jurisdiction."
• Article 116 of the Code of Criminal Procedure: "A detained defendant may have their residence restricted to suspend detention without ordering bail."
• Article 228 of the Code of Criminal Procedure: "(Paragraph 1) A prosecutor who learns of a suspected crime through complaint, accusation, surrender, or other circumstances shall immediately commence an investigation.
  (Paragraph 2) In the investigation under the preceding paragraph, the prosecutor may order court-investigative officers, judicial police officers under Article 230, or judicial police under Article 231 to investigate the circumstances of the crime and collect evidence within a specified time limit, and submit a report. When necessary, relevant case files and evidence may be forwarded together.
  (Paragraph 3) The implementation of an investigation shall not unnecessarily precede the summoning of the defendant.
  (Paragraph 4) Where a defendant has been summoned, surrendered, or appeared voluntarily, the prosecutor may, after interrogation, order bail, custody to a suitable person, or restriction of residence if the prosecutor deems that any of the circumstances specified in the subparagraphs of Article 101, Paragraph 1 or Article 101-1, Paragraph 1 exist but there is no necessity to apply for detention. However, if the prosecutor deems detention necessary, the prosecutor may arrest the defendant and, after informing the defendant of the facts upon which the arrest is based, apply to the court for detention. The provisions of Article 93, Paragraph 2, Paragraph 3, and Paragraph 5 shall apply mutatis mutandis to the circumstances of this paragraph."
• Article 404 of the Code of Criminal Procedure: "(Paragraph 1) No appeal may be taken against a ruling prior to judgment regarding jurisdiction or procedural matters. However, the following rulings are exceptions:
  1. Where there are express provisions permitting an appeal.
  2. Rulings concerning detention, bail, custody to a suitable person, restriction of residence, search, seizure or return of seized items, physical examination, communication surveillance, sending a defendant to a hospital or other place for appraisal, prohibition or seizure made pursuant to Article 105, Paragraph 3 and Paragraph 4.
  3. Rulings restricting defense counsel from meeting or exchanging correspondence with the defendant."