Bail and Custody: Prosecutors and Judges have a Responsibility

Bail and Custody: Prosecutors and Judges have a Responsibility
United Daily News editorial (Taipei, Taiwan, ROC)
A Translation
July 19, 2011

The White Rose Movement has been reborn. This time the impetus came from Banqiao District Court Judge Judge Lu Chun-chieh. Lu allowed a taxi driver named Hsieh to go free on 50,000 NT bail. Hsieh is suspected of sexually assaulting a female university student from Japan. Netizens are demanding that Lu step down. Controversy over incompetent "dinosaur judges," out of touch with the expectations of society, is once again shaking up the judicial system.

People are angry. They pity the Japanese woman who came to Taiwan, only to be sexually assaulted. They are outraged by cavalier oversights within the judicial process. The result has been a rapidly accelerating, unstoppable snowball. Public anger is intense and warranted. But detention procedures, the conditions of detention, judgments about their purpose, must be subjected to rational review. Public sentiments must be directed at the problem. Only then can we prevent their recurrence.

The driver, whose surname is Hsieh, was arrested for sexual assault then released on bail. First of all, the prosecutor failed to provide sufficient proof of his guilt. Before prosecutors can detain a suspect, they must present sufficient evidence. When required, this evidence must appear on their reports. They must convince a judge that the defendant must be detained. This is necessary to ensure both the public welfare and the victim's rights.

Detaining a suspect does not imply that he is either guilty or not guilty. Its purpose is to enable an investigation or trial to proceed. It temporarily restricts a defendant's personal freedom. When a crime takes place, one must begin with the presumption of innocence. Judges must be cautious about detaining a defendant. The seriousness of the crime cannot be the sole justification for detaining a defendant. Other considerations, such as flight risk, the possibility that perpetrators might coordinate their testimony, or that perpetrators might repeat their offenses, must all be taken into consideration, to protect the rights of the defendant.

In the Hsieh case, the only reason the prosecutor cited for detaining Hsieh was the seriousness of the crime. No one from the prosecutor's office appeared in court. No one suggested that Hsieh might be a flight risk. No one suggested that the police adopt "preventive detention" measures. Still less did anyone suggest that Hsieh was a repeat offender, with a record for sexual assault. Should such a sexual assault suspect be detained?

Prosecutors failed to provide evidence of guilt. The judge rejected demands that he be detained. Even if prosecutors refile motions to have the defendant detained, they are unlikely to escape blame. Still less can they argue that judges have the authority and obligation to investigate, and use that as a defense. Otherwise, what is the point of having prosecutors? One may as well turn all cases over to the judges, and have them investigate. This last line of defense was incorporated into the Code of Criminal Procedures to ensure justice and fairness. It was never intended as a pretext for prosecutorial indolence. Prosecutors who have not laid the proper groundwork to detain a suspect have only themselves to blame. Meanwhile, the decision whether to detain a suspect, remains the responsibility of the gatekeepers -- the judges. Public safety and human rights are in a constant tug of war. We must not rush to judgment. We must defend to the death the provisions of the law. We must approach every case based on the facts.

In the Hsieh case, the prosecutor cited only the seriousness of the crime as a reason to detain the suspect. This was in violation of the requirements of justice. The prosecutors were negligent. But Hsieh is a taxi driver. He has many opportunities to come in contact with women. If he repeats his offense, that is no trivial matter. Given these questions, the judge failed to ask the prosecutor to provide additional information. He too was negligent. The victims of sexual assault may or may not be Japanese women. Regardless, judges should show greater empathy.

This process reveals how prosecutors and judges routinely handle such cases. The word "detain" on the whiteboard in the bailiffs' room means that someone has lost his freedom and his reputation. If prosecutors want to take someone into custody and hold him at a detention center, they need to do more than check a few boxes on an indictment form. But prosecutors rarely argue their case in court. They are often slapdash in their case preparation. They desperately need oversight. The judge has little time in which to decide whether a defendant should be detained. He must understand the requirements for detention. He must be experienced in his interactions with prosecutors. He must be seasoned and tough. But unless the case is a major case or a media case, in practice judges invariably "allow the cattle to graze." They allow the first instance judges to take on cases alone. Are these judges sufficiently well trained? That remains to be seen.

Another issue warrants concern. That is the impact of public indignation on court cases. Justice requires avoiding human influences. human biases. It requires listening to statements by different parties, and arriving at a judgment based on the evidence. But in the Hsieh case, the media has spoken on behalf of the victim alone. It has painted Hsieh as a demon. It has already convicted him. Netizens meanwhile, immediately painted the judges as "dinosaur judges," without bothering to first understand the problems with custody. The White Rose Movement has used this opportunity to rise again. It is unhappy about the sexual assault bill proposed by the administration. It is also exterting enormous pressure on the judges to detain Hsieh.

Therefore if Hsieh is eventually detained, it will be impossible to tell whether it was due to "public opinion," or to judges exercising their judicial autonomy. Public outrage may result in pressure. But it may not lead to the truth. If the judicial system is negligent in its handling of cases, it will lead to a public backlash. It will invite public contempt.

The public is disappointed with the justice system. Prosecutors and the courts must not blindly succumb to public pressure. They must not pass the buck in order to relieve the pressure on themselves. They must work together to improve the system as a whole. Only by this can they address public concerns. They must take advantage of public discontent to improve the system. The public may vent its anger because it is dissatisfied with the justice system. But it should return to the issue of how to change the system. Only this will prevent populist sentiment from influencing the administration of justice. Only this will allow the public to feel secure in the administration of justice.

交保又收押 檢察官與法官都有責任
【聯合報╱社論】 2011.07.19

白玫瑰運動風雲再起，這回的動力，來自板橋地方法院法官盧軍傑讓涉嫌性侵日本女大學生的謝姓司機以五萬元交保，網民串連要盧下台，恐龍法官風暴再度襲擊司法界。

民眾之憤，來自對隻身來台日本女子疑受性侵際遇的憐憫，以及司法處理過程輕率疏漏的不滿，因而在短時間內匯集成巨大的能量，銳不可擋。民憤之銳，其來有自，不過，事涉羈押程序進行責任的歸屬，羈押條件、目的的判斷，仍應理性討論，激憤的群情才能對準問題發威，避免事件重演。

謝姓司機涉嫌性侵交保案中，首先被忽略的是檢察官的舉證角色。檢察官發動羈押的聲請，應提出證據資料，必要時還應出庭論告，以說服法官，為什麼要羈押被告，這是基於公益，也在保護被害人的權益。

羈押不在決定被告有罪、無罪，而是為了偵查、審判順利進行或將來執行的必要，而暫時限制被告的人身自由。刑案才剛發生，基於無罪推定原則，法官羈押被告必須十分審慎，大法官也才作出第六六五號解釋，要求不能以被告涉犯重罪，作為羈押的唯一理由，必須另搭配逃亡、串證或再犯的可能性，以保護被告的權益。

謝案中，檢察官僅勾選謝涉重罪的聲押事由，人未到庭論告，亦未提出謝可能逃亡的其他說明，且未採警方以「預防性羈押」聲押謝的建議，更別說提供謝有無其他性侵、性騷擾前科的事證，難道性侵疑犯就應予羈押？

檢察官未盡舉證之責，遭法官駁回羈押聲請，縱再提抗告，也難辭其咎，更不能以法官有職權調查義務作為抗辯，否則設檢察官何用，全部交給法官去查好了。刑事訴訟法的公平正義防線，不是為檢察官偷懶怠職而定，未能做好羈押聲請準備的檢察官，首先應該負責。然而，決定羈押與否，負責守門的法官，於公共安全與人權的拉鋸戰中，也不能馬虎判斷，死守法條文義，仍須結合每一件個案事實去判定。

謝案中，檢察官僅以重罪一由聲請羈押，違反大法官的要求，雖有疏漏；但謝是計程車司機，有許多與女性接觸的機會，若再犯，情況非同小可；有這些疑問，法官卻未請檢察官補正資料，也太掉以輕心了。不管性侵被害人是否為日本女子，法官都應多一點同理心。

這些過程，顯露檢察官、法官制式化辦案的一面。法院法警室白板上「羈押」兩字，代表一個人自由名譽的淪喪，檢察官要把一個人押進看守所，可不是打幾個勾的簡單事，但檢察官很少到法庭上力辯，資料準備容易流於草率，極需檢討。至於法官必須在短時間內決定是否羈押被告，對羈押要件的掌握，與檢察官的互動和經驗，更需要相當的歷練與火候。然而，除非是社會特別矚目或重大案件，實務上都「放牛吃草」，讓一審法官獨自面對案件，法官的訓練是否足夠，亦應檢討。

另一值得注意的是，民氣義憤對司法個案的影響。司法的可貴，本在於避免人云亦云，失之偏頗，聽取各方陳述，以證據資料作判斷。但在謝案中，媒體站在被害人立場發聲，以色魔運將稱謝，已然將之定罪；而網民直衝法官恐龍，亦未必全然理解羈押問題的所在；白玫瑰運動借勢再起，雖是對政府提出性侵法案的不滿，同樣對法官重新決定羈押謝，產生了巨大壓力。

因而，謝姓司機最後遭羈押，已分不清是「民意所向」或是司法自主重新判斷的結果。民氣義憤雖會產生力量，卻也可能看不見真相；但司法若輕忽審酌，引來民意反撲，亦可謂是自取其辱。

民意對司法失望，檢院不是一味屈服於民意，彼此推卸責任，釋放自我壓力就好，而應共同從制度面改善，化解民意的憂慮，借民意為改進的力量；至於民氣因對司法個案不滿出發，也應回歸制度面督促改變，才能避免民粹因素扭曲司法，俾讓國人皆能安心在司法制度運作中找到正義。