Calmly Address the Pre-Trial Detention Controversy

Calmly Address the Pre-Trial Detention Controversy
China Times editorial (Taipei, Taiwan, ROC)
A Translation
January 5, 2009

Chen Shui-bian has again been detained on charges of corruption and money-laundering, This has provoked controversy over the legal process. Some say privileged individuals have been recipients of favoritism. But it would be more accurate to say that an unprecedented case has attracted unprecedented attention. Within this highly-charged political atmosphere, the justice system has been accused of all sorts of political bias.

The reason the justice system has come under suspicion is poor institutional arrangements. Chen Shui-bian should neither receive better treatment than ordinary citizens, nor worse treatment. We must re-evaluate the pre-trial detention system, in order to avoid anyone being subjected to unconstitutional treatment.

Needless to say, the existing system of pre-trial custody labors under the authoritarian premise that one is "guilty until proven innocent, thefore one must be detained until one is proven innocent." We must not be cavalier about this. To prove either guilt or innocence requires fair trials. Presuming either guilt or innocence during the trial process, is the difference between a police state and a democratic nation under the rule of law. A system that clings to the premise that one is "guilty until proven innocent" does not meet the minimum standards for the rule of law. Fourteen years ago, the Grand Justices ruled that it was unconstitutional for prosecutors to detain suspects. This was the first step in getting rid of the premise of "guilty until proven innocent." Prosecutors who have decided to prosecute a suspect, are not going to presume that the suspect is innocent. Therefore, judges must make that presumption. Judges must examine the justifications for pre-trial detention. Pre-trial detention must be the exception, not the rule. The Grand Justices' interpretation of the Constitution led to changes in the system. Unfortunately, the justice system has yet to abandon the premise of "guilty until proven innocent, thefore one must be detained until one is proven innocent."

Not long ago, the Grand Justices declared detention unconstitutional. Article entered into evidence number one: The legal system must not operate under the assumption of "guilty until proven innocent, thefore one must be detained until one is proven innocent." It must not presume that the suspect is guilty before he is convicted but still under detention. In fact detention requires further justifications. The justifications for detention determine the methods of detention. For example, if there is no fear that the suspect may flee or commit suicide, then there is no need for restraints such as handcuffs. The purpose of pre-trial detention is to ensure the successful conduct of the trial. Not all suspects are automatically detained. Only those who obstruct the trial process should be detained. Current laws cling to the premise of "guilty until proven innocent, thefore one must be detained until one is proven innocent."

First of all, pre-trial detention by the prosecution requires justifications. These justifications and evidence that a crime has been committed are two different matters. One cannot charge someone with a crime by relying solely upon accusations, without sufficient evidence. If one has sufficient evidence of guilt, one can indict. If one can prosecute, where is the need for detention? If the prosecution becomes accustomed to asking the court to detain suspects when the evidence is insufficient, it cannot escape the suspicion that suspects are being detained to extract evidence.

The most important reason for pre-trial detention is to prevent flight. If the defendant has flown the coop, obviously it will be difficult to conduct a trial. But even though a suspect has been indicted, one cannot always assume that the suspect will flee. The fact that Chen Chin-hsing or Wang You-tseng fled, can not be used to prove Chen Shui-bian or others will flee. Flight risk cannot be based merely on prosecutors' fears or suspicions. They must be based on evidence that the suspect is fleeing or preparing to flee. Barring the suspect from leaving the country or demanding bail are preferable to detention. Chou Chan-chung or Tsai Shou-hsiung may have been too lenient about detention in the past. But that is no reason to detain Chen Shui-bian or any other person. Instead, Chou and Tsai should be criticized for being lax gatekeepers in the past.

Detaining suspects to prevent collusion or the destruction of evidence is also plagued with problems. Practically speaking, the court has no clear definition of "collusion." To detain a suspect for fear of "collusion" is a serious threat to the suspect's rights. If we cannot clearly distinguish between the two, we may violate the suspect's constitutionally guaranteed rights. Destruction of evidence is itself a crime. But again, until the suspect has been tried, he must also be presumed innocent. If the prosecution can prove that the suspect is at risk of destroying evidence, it can seize the evidence or demand an indictment. The prosecution cannot detain suspects because it suspects the defendant might destroy evidence. For the same reason, the prosecution needs evidence to detain a felony suspect. It needs justifications to detain a suspect. Detaining everyone charged with a felony or accused of destroying evidence, negates the presumption of innocence, and is unconstitutional.

Pre-trial detention is a grave matter. Indiscriminate detention undermines fair trials. When the prosecution provides evidence to justify detention, it must give the suspect an opportunity to defend himself. The prosecution, not the defendant, is obliged to keep the investigation confidential to protect the defendant's reputation. Confidentiality cannot be used to prevent the defendant from arguing on his own behalf. If the prosecution denies the defendant the right of discovery, it has denied the defendant's right to defend himself, and is inconsistent with due process.

The power and responsibility to detain a suspect after indictment, rests with the trial court. If the court is unconcerned about whether the trial can continue, then it may not detain the suspect. Allowing the prosecution to appeal to a higher court, and consider whether to detain the suspect, is also a very strange arrangement. Frankly it is the same premise of "guilty until proven innocent, thefore one must be detained until one is proven innocent."

Our remarks are not directed at the Chen Shui-bian corruption and money laundering case. Our remarks are an attempt to ensure that the trial process for everyone, innocent or guilty, remains fair. Suspects must not be put behind bards merely because they have been accused. The time has come for a comprehensive review of pre-trial detention. Just because Chen Shui-bian is about to stand trial, we should not turn a blind eye to the problem.


中時電子報
中國時報 　2009.01.05
平心靜氣談「審前羈押」爭議
中時社論

陳水扁因被控貪汙洗錢而被兩度審前羈押，引起不少司法程序爭論。與其說是特權人物使然，不如說是這樁空前的案件吸引了空前的檢視目光。這種高度敏感的政治氛圍，讓扁案的司法審判必須面對各種政治成見或質疑的考驗。

司法所以引起質疑，往往緣於制度安排不善。阿扁不該得到比他人更優越的司法待遇，其受審被押也不該出現比一般平民更差的待遇。我們必須重新檢視審前羈押制度，以免任何人受到不合憲法正當程序的對待。

不必諱言，現行審前羈押制度飽受「被控有罪就抓起來」的威權觀念支配；於是被控有罪的人被迫去證明自己清白；且在證明自己清白之前註定被關。然而此事不容 馬虎，證明有罪或是清白，需要公正審判的過程，過程之中假設有罪還是無罪，恰是警察國家與民主法治國家的分野。不能拋棄「被控有罪就該收押」的制度，就還 不符合法治國家的最低標準。十四年前大法官宣告檢察官有權羈押被告為違憲，就是破除觀念的第一步。檢方起心動念追訴犯罪，不會假設被告無罪；所以要讓法官 假設無罪，審視有無審前羈押的理由。審前羈押是刑事審判的異態，不是常態。當年的憲法解釋促成了制度改變，可惜改制後的審前羈押制度，仍未擺脫「被控有罪 就該收押」的觀念箝制。

不久前大法官又再宣告羈押法違憲，即為證明一例；法律不能受到「被控有罪就該收押」的影響，忽略審前羈押不在判處被告有罪。羈押其實需要另有理由；羈押的 理由足以決定羈押的手段。例如不虞逃亡、自殺的被告，就無施以手銬戒具的必要。審前羈押的目的，是保全審判的進行；不是所有被控有罪的人當然都該收押；而 是那些會阻礙審判進行的被告，才有羈押的理由。而現行法律規定的羈押事由，卻仍是「被控有罪就該收押」的思維產物。

首先，審前羈押要由檢方證明具羈押的理由，與犯罪的證據還是兩回事。有罪證據不足，當然不能只靠指控犯罪就要押人；如果有罪證據足可起訴，起訴即可，何必羈押？檢方如果總是起訴的證據尚不充分就慣於請求法院押人，當然難逃押人取供的懷疑與指責。

審前羈押最主要的理由是逃亡；被告逃亡，審判即難進行。但即使已起訴，也不能一概假設被告都會逃亡。陳進興或王又曾逃亡，不能用來證明陳水扁或無關的人也 會逃亡。虞逃羈押，不是基於檢方單純的擔心或猜想，而是被告確有逃亡可能（如正在逃亡或已準備逃亡）的證明。限制出境或具保，也恆應是取代虞逃羈押的優先 選擇！周占春或是蔡守訓過去，允許羈押過於寬鬆，不是羈押陳水扁或任何人的理由。他們該為過去把關不嚴受到批評指責。

串供或滅證羈押的制度也不大有問題。法院實務上並無「串供」的明確定義；「串供羈押」嚴重威脅被告的辯護防禦權利。如果不能畫出兩者的界限，就會違反憲法 保障的辯護權。「淹滅證據」本身就是犯罪，未經審判也該假設無罪。檢方如能證明被告有滅證之虞，可去扣押證據也可逕行起訴，制度下不能因檢方握有證據指被 告滅證就可押人。同理，重罪羈押也須在檢方舉證有罪之外，另有必要理由始可羈押。被控滅證或重罪者一概收押，否定無罪推定，即是違憲!

審前羈押事關重大，羈押過濫會動搖審判公平。檢方舉證聲押，要讓被告充分防禦。偵查不公開是檢方的法定義務，用來保護被告的名譽，不是被告的義務，更不能藉以限制被告辯護。檢方聲押時不許辯方閱卷質證，辯護權不能有效行使，不符正當程序。

起訴後的羈押，權責均在審判法院。法院不虞審判不能繼續，決定不予羈押時，讓檢方抗告到上級法院，越俎代庖思考應否羈押，制度安排也頗古怪。說穿了，仍是「被控有罪就該收押」的幽靈作祟。

我們不是針對陳水扁的個案說話，而是從審視個案中，看到所有的人──無論是否無辜，都該受到公平程序審判，不該因為被控有罪就要身陷囹圄。通盤檢討審前羈押制度的時候到了；請勿因為陳水扁正在受審，就對不該存在的現象，視而不見。