A few days after seeing Yunlin County Commissioner Su Chih-fen (蘇治芬) handcuffed, we saw former president Chen Shui-bian (陳水扁) also cuffed. Chen has repeatedly disappointed me, but as someone who teaches the Criminal Code and the Code of Criminal Procedure (刑事訴訟法), I feel I must express some viewpoints based solely on the law.
Let us first not focus on whether the detention of Chen was in line with actual requirements for detention or whether it was really necessary.
Article 89 of the Code of Criminal Procedure states clearly that, “In executing an arrest with or without a warrant, due care shall be taken of the person and reputation of the accused.”
Article 90 states: “If the accused resists the arrest made with or without a warrant or if he escapes, he may be arrested by force with or without a warrant, but such force may not be excessive.”
Therefore, handcuffing the accused should be based on necessity, which should be ascertained by looking at whether the accused might resist arrest or attempt to escape.
When prosecutors requested that Chen be placed in detention, his freedom of movement had already been greatly reduced. It is hard to imagine how he would have been able to escape and destroy evidence while under the watch of so many people.
I cannot fathom how it would be necessary to place Chen in handcuffs, unless, of course, he was so skilled in the martial arts that he could escape the large number of police officers watching him.
If the police and investigative authorities feel that handcuffing Chen was just routine practice, then this was not an isolated incident but rather it highlighted a human rights problem that is being routinely overlooked.
Director and spokesman of the Special Investigation Panel Chen Yun-nan (陳雲南) said that based on rules and regulations of the Taiwan High Court and the Taiwan High Prosecutors Office, suspects of serious crimes must be handcuffed and even shackled when necessary.
This, however, completely ignores the intent of the constitutionally enshrined principle of proportionality as it should apply to coercive measures. Chen Yun-nan’s comments also show that he lacks basic constitutional knowledge: Administrative orders should be invalidated when they violate a law or the Constitution. His comments also show that he does not understand the principle of presumed innocence.
Coercive measures by police and prosecutorial authorities violate the basic rights of citizens. Handcuffing a suspect should be treated as violence in the sense that it is used in Article 304 of the Criminal Code, which deals with coercion, as it restricts the freedom of the suspect.
The use of coercive force by police and prosecutorial authorities must be in accord with the Code of Criminal Procedure. If their actions constitute illegal use of force, I am not sure whether prosecutors with judicial qualifications should use Article 16 of the Criminal Code, which pertains to “ignorance of the law,” to reduce the legal responsibility of the authorities involved in the arrest.
It is the duty of police and prosecutorial authorities and the responsibility of the state to prosecute those guilty of crimes, but they must respect the law and the principles of basic human rights. The historic photos of Chen Shui-bian raising his cuffed hands will force us to rethink the basic human rights of suspects in criminal cases in Taiwan.
Hsu Tze-tien is an associate professor of law at National Cheng Kung University.
TRANSLATED BY DREW CAMERON
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