Wednesday, December 24, 2008

Has the Special Investigation Unit Ever Considered Detaining Wu Shu-chen?

Has the Special Investigation Unit Ever Considered Detaining Wu Shu-chen?
China Times editorial (Taipei, Taiwan, ROC)
A Translation
December 24, 2008

The Taipei District Court ruled for the second time that former president Chen Shui-bian need not post bail, and need no longer be detained. The Special Investigation Unit's second appeal was overruled. This week it appealed to the High Court. We look forward to examining the Special Investigation Unit's evidence. But we would also like to ask the Special Investigation Unit, has it ever considered detaining Wu Shu-chen?

The Special Investigation Unit had sound reasons for detaining Chen Shui-bian. The reasons for doing so may be different now than before. But basically there are three reasons. One. Chen Shui-bian is a flight risk. Two. Chen Shui-bian may collude with others to destroy evidence. Three. The crimes Chen Shui-bian is charged with are felonies. Felonies mandate detention. These three reasons for detaining Chen apply equally to Wu Shu-chen.

First, let's talk about flight risk. When the Special Investigation Unit detained Chen Shui-bian a month ago, it did not cite flight risk as one of its reasons. The first time the court released Ah-Bain without bail, prosecutors did not offer any evidence he was a flight risk. When their second attempt to detain him failed, the prosecution said that Chen Shui-bian at times ordered his bodyguards away, leaving him on his own, for example, when he visited a Tarot reader. Whether or not Chen Shui-bian attempted to flee after ordering his bodyguards away, the prosecution's argument does not hold water. If it did, wouldn't any defendant without bodyguards, who might flee at any moment, have to be detained before trial? The logic is dubious. When the Special Investigation Unit determined that Chen Shui-bian was a flight risk, did they decide he would abandon Wu Shu-chen? We hesitate to suggest that Chen Shui-bian might flee on his own. But shouldn't we consider the possibility that the husband and wife might flee together? Wouldn't the possibility of successfully detaining them be higher if all the possibilities were considered?

Now let's talk about the possibility of collusion. The Special Investigation Unit is worried about Chen Shui-bian colluding with accomplices. Leave aside the fact that Chen Shui-bian has been walking around free for months, even years. The Special Investigation Unit's bill of indictment includes four major charges. All four of them involve Wu Shu-chen. Chen Shui-bian has never denied that Wu Shu-chen masterminded everything, understood everything. Others have said that Ah-Chen often took the lead. Since we are worried about Ah-Bian colluding, shouldn't we be worried about Ah-Chen colluding? The prosecution has no reason to detain Ah-Bian for crimes which involved only Ah-Chen and not Ah-Bian. Instead, it should think about whether to detain Ah-Chen. Especially since Ah-Chen has recently made some inappropriate remarks, wishing ill of a number of concerned parties. Ah-Chen's lawyer has demanded written transcripts. The prime suspect has expressed a desire to take the life of another suspect. Is that not reason enough to detain her? Her spouse, Ah-Bian, was detained for his role in the same cases. Shouldn't the Special Investigation Unit consider the possibility of detaining Wu Shu-chen as well?

Finally, detention is mandatory for a felony. This was the main reason Chen Shui-bian was detained. On four felony counts, Wu Shu-chen's offenses are more serious than Ah-Bian's. Crimes Ah-Bian committed, she committed. Crimes Ah-Bian didn't commit, she committed. Ah-Bian is guilty of felonies. Ah-Chen is definitely not guilty of mere misdemeanors. Doesn't the failure to detain Ah-Chen at the same time as Ah-Bian, constitute a major inconsistency in the application of the law?

Everyone on Taiwan with any common sense knows that Wu Shu-chen's physical condition is not the same as most peoples'. But that does not make Wu Shu-chen immune from prosecution. She is still subject to the Code of Criminal Procedure. Does one's physical condition exempt one from detention? The law is unclear on the point. Those who enter the detention center can be released for medical treatment. But they cannot be totally exempt from being detained. The main purpose of pre-trial detention is isolation. An entire medical team can be moved to the detention center in order to meet humanitarian requirements. But failure to detain a suspect for reasons of health cannot be justified by referring to the Code of Criminal Procedure.

An important objective of pre-trial detention is to ensure that the defendant appears in court. He can be either be summoned by forcible means, or detained incommunicado. These all accord with due process. No one can say they are violations of human rights. Ever since becoming a defendant in the State Affairs Fund case, Wu Shu-chen has ignored over a dozen summons to appear in court. How a defendant should be dealt with is up to the courts. A defendant has been indicted. The prosecutors of the Special Investigation Unit must consider how the defendant can be successfully prosecuted. If a felony suspect refuses to appear in court, a guilty verdict cannot be rendered, The Code of Criminal Procedure is quite clear. The Special Investigation Unit is worried about detaining Ah-Bian. But it is allowing Ah-Chen, whom it has even more reason to detain, to roam free.

Wu Shu-chen claims she is physically unable to appear in court. Yet she is able to go to the polls to vote. She is able to entertain guests at home. She was responsible for money-laundering, and for the State Affairs Fund. She had no qualms about collusion, destroying evidence, and obstructing justice, The Special Investigation Unit has wracked its brains. It had goods reason to detain Ah-Bian. But did it simultaneously allow another fish to slip through the net? It wants the support of the court, and the trust of the community. It wants to make law enforcement credible. But such a huge loophole must be plugged. Ah-Bian and Ah-Chen have been indicted. If Ah-Chen refuses to appear in court, how can the trial continue? Whether Chen Shui-bian should be detained before the trial is a trivial matter. Whether Wu Shu-chen should be detained, on the other hand, is a serious matter. It must be evaded. Has the Special Investigation Unit ever considered detaining Wu Shu-chen? If not, why not?

中國時報  2008.12.24



先談逃亡的問題。特偵組約一個月前聲押陳水扁成功時,並未以阿扁有逃亡之虞作為聲押理由。法院第一次裁定不具保釋放阿扁時,檢方也未提供他虞逃的事證。到 了第二次聲押失敗時,檢方則是主張阿扁曾有支開隨扈(例如去算塔羅牌)、單獨行動的情況。姑不論阿扁支開隨扈時並未逃亡,檢方此說如果成立,那任何無隨扈 在側而可單獨行動的被告,豈非都須交付審前羈押?其論理邏輯很有問題;重點是特偵組認定阿扁可能逃亡,難道以為他會拋下吳淑珍獨自離去?如果不是要提出阿 扁單獨逃亡的事證,要不要想想夫妻雙雙遠走高飛的可能性?是不是各種可能性都想得周全,聲押的成功率較高?

再談串供的可能。特偵組擔心阿扁會串供,姑不論阿扁從案發至今遊走在外已然累月經年,單以阿扁涉案的罪行,從特偵組的起訴書觀察,四大部分中,全都有數的 是吳淑珍,阿扁從不諱言吳淑珍運籌帷幄,瞭然一切,其他一干人等也都常謂係以阿珍馬首是瞻。既然擔心阿扁串供,似乎沒理由不擔心阿珍串供。至少在特偵組立 場僅有阿珍而無阿扁參與的部分,聲押阿扁沒有理由,就該想想聲押阿珍有無理由。何況近日傳出許多阿珍出言不遜,嫉惡若干周邊人物的消息。就像阿珍的律師要 求記明筆錄的內容一樣,主要被告表示要取其他涉案人性命,構不構成聲押的理由?相對於她同案遭到聲押的配偶阿扁涉案的程度,特偵組該不該想想聲押吳淑珍的 問題?


在台灣,當然稍有常識的都曉得,吳淑珍的身體情況,與一般常人不盡相同。但是,吳淑珍並不因此即能免於刑事訴訟法的追訴;身體狀況是否法定豁免於聲押的事 由呢?法條上看不出來,進入看守所的受押人可以保外就醫,卻不能因此就完全豁免於羈押。審前羈押的主要目的,是隔離;即使將整個醫療團隊搬進看守所,也可 符合人道的要求,但若以健康為由不予羈押,恐怕在刑事訴訟法上須要詳細交代。

審前羈押的重要目的,是確保審判的進行,如果被告拒不出庭,輕則拘提,重則羈押,都是於法有據,誰也不能說是違反人權。吳淑珍自從成為國務機要費案的被告 之後,十餘次開庭,均不出席,審判庭應該如何處置,固然由法院決定,看在特偵組檢察官的眼裡,起訴之後,能否順利完成追訴,不能不有所思考。重罪嫌犯拒不 到庭,有罪判決不能做成,刑事訴訟法有明文。特偵組聲押阿扁的同時,放著聲押理由比阿扁而言似更顯得充分的吳淑珍在庭外,難道沒有顧慮?

吳淑珍不能開庭,但是可以外出投票,也可以在家見客會友。她肩上扛著整個洗錢案、國務機要費案,尚且不虞串供、滅證,阻撓司法,在特偵組絞盡腦汁,蒐證聲 押阿扁的同時,是不是一張應該補織的漏網?想要贏得法院的支持,社會的普遍信賴,樹立執法的信用,偌大的漏洞,恐怕不能不補。阿扁阿珍均已起訴,阿珍若不 到庭,審判如何繼續,是個必須面對的問題。阿扁是否應付審前羈押事小,吳淑珍是否應付審前羈押事大,卻不容閃躲逃避。特偵組有沒有想過聲押吳淑珍?為什麼 不?

No comments: