(Staff Reporter)
To ensure human rights protection, the Judicial Yuan on February 29th, 2012 convened a meeting to discuss the intended amendment to Article 388 of the Code of Criminal Procedure. It was hoped that ideas from various sources could be gathered through discussion to perfect the amendment.
Since it was first established in 1935, the mandatory defense system has been amended five times and the scope of its application was expanded as a result of each amendment, including reduction of statutory penalties against corresponding crimes and extension of mandatory defense for mentally retarded people incapable of providing complete statements and defendants from lower-income families. The adoption of mandatory defense was moved up to the investigation period. These were progressive moves in the legal defense system. Currently, according to Paragraph 1, Article 31 of the Code of Criminal Procedure, the court is required to appoint a defense lawyer for unrepresented defendants in cases involving a minimum of three years of imprisonment or those of first instance under the jurisdiction of the High Court, defendants who are incapable of providing complete statements due to mental retardation, or defendants of lower-income status who do not have a defense lawyer and request the court to appoint one. However, Article 388 of the same law stipulates that Article 31 does not apply to third instance trials. This creates an imperfection in the mandatory defense system and has drawn doubts about the infringement on protecting the defense dependence right of defendants.
In light of this, the Judicial has held two public hearings about mandatory defense since 2010. The judges, prosecutors, defense lawyers, and scholars attended in these hearings reached the consensus that mandatory defense ought to be extended to third instance. They concurred that the legislative purpose of the regulation on mandatory defense set forth in Paragraph 1 of Article 31 was to ensure the protection of the legal interests of defendants and enforcement of the due criminal procedure. Hence, mandatory defense should be consistently provided regardless of the instance level and therefore should be adopted also for third instance cases. Only then would it comply with the principle of human rights protection prescribed in the International Covenant on Civil and Political Rights.
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