Preventing defendants from fleeing the country has become a headache for the judiciary.
Former Global Funeral Service Corp president Chu Guo-rong (朱國榮) fled Taiwan after jumping bail of NT$517 million (US$15.9 million) while awaiting a Supreme Court ruling in September last year. The size of the bail did not stop him from fleeing.
Detention has become a more preferable way to prevent defendants from escaping. However, to uphold the principle of presumption of innocence and avoid being accused of forcing detainees to confess under duress, detention should be the last resort. Using electronic monitoring equipment has become one way of stopping defendants from fleeing.
To plug the loopholes, the Legislative Yuan in June 2019 amended the Code of Criminal Procedure. Apart from adding restrictions on departing the nation, Article 116-2 on the suspension of detention was also amended.
The article states that in granting the suspension of detention, the court may, after considering the protection of human rights and public interests, and deeming it necessary, order the defendant to report to the designated authority periodically.
The court may also order the defendant to hand over their passports and travel documents; not to leave a certain area without the permission of the court or prosecutor; and to accept appropriate monitoring by technical equipment, it says
These means, which are intended to replace detention, could be applied concurrently and are also applicable when the judge orders that the accused be released on bail, or to the custody of another, or with a limitation on their residence if detention is deemed unnecessary.
In August 2020, the Judicial Yuan and the Executive Yuan drew up regulations governing electronic monitoring for defendants in criminal cases under probation.
In March 2022, the High Prosecutors’ Office set up the Electronic Monitoring Center, which is responsible for electronic monitoring.
In late 2019, former Nissan chief executive Carlos Ghosn skipped bail and escaped to Lebanon while awaiting trial on charges of financial misconduct. Even though the court set bail at ￥1.5 billion (US$10 million), limited his residence and ordered him to hand over his passports, he still managed to be smuggled out of Japan in a container on a private jet.
Last year, Japan amended its Code of Criminal Procedure, adding an article stipulating the use of electronic monitoring equipment could be used for defendants facing criminal charges. It is to be implemented by 2028.
Taiwan appears to be a few steps ahead of Japan in enacting legislation on electronic monitoring. Since the law was amended, about NT$100 million has been spent to set up an electronic monitoring system, with about 50 criminal defendants being monitored. The cost-benefit ratio seems to be disproportional.
Apart from what it could mean in terms of human rights when a defendant’s GPS position is monitored around the clock, the decision is for the judiciary to make.
Electronic monitoring does not mean it does not involve human resources. Prosecutors, judges and police have to be aware of whether defendants leave certain areas without permission. This puts huge pressure on the system.
How to make use of new technology, such as artificial intelligence, to alleviate the burden on the judiciary is an important issue worth discussing.
Wu Ching-chin is a professor at Aletheia University’s Department of Law and director of the university’s Criminal Law Research Center.
Translated by Fion Khan
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