【Retrial System for Criminal Procedure】Enhancement of Remedial Procedure in Response to Erroneous Establishment of Facts by Criminal Sentences
The judicial system is tasked to ensure that the perpetrators assume criminal liabilities through fair trials. However, no miscarriage of justice is allowed in the process of punishing the guilty wrongdoers.
To assist the innocent in seeking remedy to miscarriage of justice, the Judicial Yuan had proposed the amendment to the Code of Criminal Procedure regarding the retrial system. (The amendment was passed by the 176th session of the Judicial Yuan and the third reading by the Legislative Yuan on December 10, 2019). It was promulgated on January 8, 2020 by the President. The main content of the amendment is as follows:
▍1. The applicant who submits a petition for a retrial is granted the right to retain a lawyer as his/her agent and the right to access case files and evidence.
The applicant who submits a petition for a retrial may retain a lawyer for assistance and request the court or the public prosecutor's office for complete information on case files and evidence. (Article 429-1 of the Code of Criminal Procedure)
▍2. In principle, the court should inform the applicant and his/her representative, to attend the proceedings so that the applicant has the opportunity to express his/her opinion.
In the past, the retrials were typically processed by the court with document reviews. In the new system, the court should open a session so that the applicant and his/her representative can fully express the reason for the retrial application. (Article 429-2 of the Code of Criminal Procedure)
▍3. The applicant who submits a petition for a retrial is granted the right to apply to the court for an investigation of evidence, and the court may conduct an investigation of evidence based on whether the application has a reasonable ground.
For the evidence which the applicant relies on for the retrial, he/she may not necessarily be able to obtain or present such evidence if it is in possession of other organizations or entities. Under this circumstance, the applicant may request the court to access the evidence or the court may proactively seek to access the evidence. (Article 429-3 of the Code of Criminal Procedure)
▍4. The court should first ask the applicant who submits a petition for retrial to amend the deficiency in the adherence to statutory procedures if necessary.
In the past, the court might simply dismiss a petition for retrial if the statutory procedures were incomplete. In the new system, the court should first ask the applicant who submits a petition for retrial to amend the deficiency in the adherence to the statutory procedures first. If the applicant fails to make amendment, the court may dismiss the petition for retrial on the ground of incomplete procedures. (Article 433 of the Code of Criminal Procedure)
- Release Date : 2020-01-08
- Update : 2021-07-09