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An Introduction to Restriction on Airport and Sea Port Exit under the Code of Criminal Procedure


Jack Chih-Ke Wu/ Duke Wu/Johnny Chung-Wei Liao

The amendment to the Code of Criminal Procedure concerning airport and sea port exit restriction was approved upon third reading by Taiwan’s Legislative Yuan on May 24, 2019. The Code of Criminal Procedure (“Code”) was revised to include Chapter VIII-I, titled “Restriction on Airport and Sea Port Exit” comprising Articles 93-2 to 93-6. The amendment was promulgated on June 19, 2019, and enforced six months later. Consequently, beginning December 19, 2019, there is clear legal basis for imposing exit restrictions on criminal defendants. The amendment has considerable impact on defendants, and is summarized as follows:
 
1.         Two Types of Exit Restriction
The two types of airport and sea port exit restriction are "Independent Mandatory Disposition" (Article 93-2 of the Code) and "Disposition as Substitution of Custody" (Article 93-6 of the Code). The independent mandatory disposition is issued by the court or the prosecutor ex officio and is served on the defendant in writing within six months of the imposition of the restriction. If the court or the prosecutor interrogates the defendant before the written notice is served on his/her, the disposition has to be served on the defendant in court or investigation session and in writing. Meanwhile, the disposition as substitution of custody has to be served on the defendant in court or investigation session and in writing.
 
The amended Code authorizes the prosecutors to issue dispositions of airport and sea port exit restriction sans prior approval of a court during an investigation. But where it is necessary to maintain the restriction during the investigation, the prosecutor has to petition the court having jurisdiction for a ruling. To protect the defendant’s rights, the authority to extend the term of the restriction is vested in the court.
 
2.         Prerequisites for Exit Restriction
According to Paragraph 1, Article 93-2 of the Criminal Code, the following prerequisites have to be met before a disposition of airport and sea port exit restriction may be rendered:
(1)    Where the maximum principal punishment for the offense charged is not detention (short-term imprisonment) or a fine.
(2)    The defendant is strongly suspected of having committed the offense in question.
(3)    One of the following descriptions applies to the defendant:
A.       The defendant has no fixed domicile or residence.
B.        There is probable cause that the defendant is likely to abscond.
C.        There is probable cause that the defendant is likely to destroy, forge, or tamper with the evidence, or conspire with co-offenders or witnesses.
(4)    The prosecutor or the judge finds the restriction necessary.
 
The establishment of the fact of the prerequisites is subject to the free proof doctrine rather than strict proof doctrine. That is, to establish the prerequisites, the court has to find the evidence submitted is "likely to be the truth" rather than "convincing without reasonable doubt." As for whether the restriction is needed, most Supreme Court decisions indicate that the lower court is authorized to determine such issue upon considering the stage of the proceeding and giving equal weight to protection of human rights and preservation of the public interest. All other related circumstances should also be considered. A ruling for airport and sea port exit restriction should be considered legal and proper as long as the restriction is commensurate with the purpose of the ruling, not violating the principles of proportionality, logic, or empirical law, or the ruling is issued ex officio without any abuse of discretionary power[1].
 
3.         Information Required in the Written Notice to Defendants
According to Paragraph 2, Article 93-2 of the Code, the restriction notification should be made in writing and include the following information:
(1)    Name, sex, birth date, domicile or residence, identification number of the defendant, or other features sufficient to identify the defendant.
(2)    The charges against the defendant and the relevant articles of the Criminal Code.
(3)    The reason for and term of the restriction.
(4)    The enforcement agency.
(5)    The remedy available to a defendant subject to exit restriction.
 
4.         Term of Restriction
During the investigation period
 (Paragraphs 1, 2 and 3, Article 93-3 of the Code)
During the trial
 (Paragraphs 1, 2 and 3, Article 93-3 of the Code)
(1)   The term of initial restriction may not exceed eight months.
 
(2)  The first extension of restriction shall not exceed four months; the second extension shall not exceed two months. Up to two extensions may be granted.
(3) During the investigation, the combined lengths of restriction imposed by the prosecutor shall not exceed 14 months. Such period shall not include the time the defendant eluded capture.
(1)  Each term of restriction shall be limited to eight months, with no limit on how many times the restriction can be imposed.
(2)   For one who has committed a crime with a maximum principal sentence of imprisonment of no more than 10 years, the cumulative term of restriction shall not exceed five years; for the other crimes, the cumulative term of restriction shall not exceed 10 years. Such period shall not include the time the defendant eluded capture.
 
According to Article 7-11 of the Implementation Rules of the Code of Criminal Procedure, an existing disposition of airport and sea port exit restriction shall be rendered de novo within two months of December 19, 2019, the date of enforcement of the amended Code. If such a disposition is not rendered de novo after the said time limit, it shall become invalid. The term of the disposition thus rendered de novo shall start anew in accordance with Article 93-3 of the Code. For those who have committed a crime with a maximum principal sentence of imprisonment of no more than 10 years, the term of restriction imposed during the trial and the term imposed in the original disposition shall not exceed five years in total.
 
5.         Remedies
1.       Restrictions Deemed Revoked
According to Article 93-4 of the Code, if the defendant receives a ruling not to prosecute or deferred prosecution, an acquittal, an exemption from prosecution, a punishment remitted decision, a probation, a fine, a sentence commuted to a warning, or a judgment of case not entertained as specified in Subparagraphs 3 and 4 of Article 303, the restriction should be deemed revoked, but should remain in effect if necessary during the appeal period or the appeal.
 
2.       Restrictions Petitioned to Be Revoked
According to Article 93-5 of the Code and its legislative intent, after a disposition or a ruling for airport and sea port exit is final and binding, the defendant and defense attorney may at any time petition the prosecutor or the court to revoke or revise the restriction. During the investigation or the trial, the restriction may be revoked or revised by the prosecutor or the court ex officio.

 


[1]See Supreme Court Ruling 108-Tai-Kang-Zi-1380, Supreme Court Ruling 109-Tai-Kang-Zi-244, Supreme Court Ruling 109-Tai-Kang-Zi-281, Supreme Court Ruling 109-Tai-Kang-Zi-433, and Supreme Court Ruling 109-Tai-Kang-Zi-541.
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