【Criminal Law】Criminal Procedure in Taiwan, Explained by Senior Attorney: From Investigation to Enforcement

By Ping-Hsuan Hsu, Senior Attorney at Zhe Lu Law Office, Taipei Office
LL.M in International Business Law at Erasmus University Rotterdam

Introduction

Criminal procedure is the legal process the government uses to prosecute crimes. After a crime occurs, the case moves through investigation, indictment, trial, and finally enforcement of the sentence. A different government agency is involved at each stage, and strict legal rules govern every step. This article walks you through the entire process. For each stage, it explains how the people involved (defendants, complainants, and witnesses) should prepare evidence and handle questioning and court hearings. It also gives a rough idea of how long each stage takes.
I. Overview of the Criminal Process
A criminal case generally goes through five stages: investigation, indictment, trial, appeals and other remedies, and enforcement.

• Investigation: It begins when a prosecutor or judicial police officer learns of a suspected crime.
• Indictment: If the investigation produces enough evidence that the defendant committed the crime, the prosecutor files charges.
• Trial: Once the case reaches court, a judge hears it.
• Appeals and other remedies: A party who disagrees with the judgment can file an appeal. After the judgment is final, a retrial or an extraordinary appeal may still be possible.
• Enforcement: After the judgment becomes final, the prosecutor directs how the sentence is carried out.

Each stage builds on the one before it, and each has its own legal procedures and time frames.
II. Stage One: Investigation
1. How an Investigation Begins and Which Agencies Are Involved
Investigation is the starting point of every criminal case. Article 228, Paragraph 1 of the Code of Criminal Procedure states: “Where a prosecutor learns of a suspected offense through a complaint, a third-party report, a voluntary surrender, or other circumstances, the prosecutor shall immediately begin an investigation.”
In other words, a prosecutor must open an investigation in any of these situations:

• Someone files a complaint, usually the victim.
• A third party reports the crime.
• The suspect voluntarily turns himself or herself in.
• The prosecutor learns of a suspected crime in some other way.

The main agencies involved in the investigation stage are:

1. Prosecutors: They direct the investigation, question defendants and witnesses, gather evidence, and decide whether to file charges.
2. Prosecutorial investigators: They assist prosecutors with investigations. For example, they interview complainants and witnesses, and they carry out searches and seizures.
3. Judicial police officers: This group includes police officers and agents of the Ministry of Justice Investigation Bureau. They investigate crimes, collect evidence at crime scenes, and arrest people caught in the act. They work under the direction of prosecutors.

2. Investigation Procedures and Timeline
An investigation can include:

• receiving complaints or third-party reports
• conducting preliminary inquiries
• questioning the defendant and witnesses
• carrying out searches and seizures
• conducting on-site inspections
• obtaining expert forensic examinations
• comparing DNA

How long an investigation takes depends on how complex the case is. Simple cases may be closed within a few months. Serious and complex cases, such as homicide, corruption, or financial crimes, may take many months or even years.
3. Preparing for Questioning (Suspects and Witnesses)
If you are questioned as a defendant (or criminal suspect), keep the following in mind:

1. You have the right to remain silent. Under the Code of Criminal Procedure, you may remain silent. You cannot be forced to make any statement against your will.
2. You have the right to a defense attorney. You may hire a defense attorney at any time. If you are from a low-income household or meet other eligibility criteria, you may apply for legal aid.
3. You may ask the prosecutor to investigate evidence in your favor. You can ask the prosecutor to look into evidence that supports your side.

If you are questioned as a witness, you must tell the truth. However, if your testimony could expose you to criminal prosecution, you may refuse to testify.
III. Stage Two: Indictment or Non-Prosecution
1. When and How a Prosecutor Files Charges
Article 251, Paragraph 1 of the Code of Criminal Procedure covers the end of the investigation: “If the evidence obtained by the prosecutor through investigation is sufficient to establish that the defendant is suspected of committing an offense, the prosecutor shall initiate a public prosecution.”
In other words, once the prosecutor believes the evidence against the defendant is “sufficient,” the prosecutor must file charges. To do so, the prosecutor submits an indictment to the court that has jurisdiction over the case. Under Article 264 of the Code of Criminal Procedure, the prosecutor also sends the case file and physical evidence to the court.
2. Non-Prosecution and Deferred Prosecution
The prosecutor may decide not to prosecute in either of these situations:

• There is not enough evidence that the defendant committed a crime.
• Certain other situations defined by law apply.

For certain minor offenses, the prosecutor may instead defer prosecution. The defendant must then meet specific conditions during a set period. Examples include paying a sum to the national treasury or a public-interest organization, or apologizing to the victim. If the period ends and the deferred prosecution has not been revoked, it has the same effect as a decision not to prosecute.

IV. Stage Three: Trial
1. Court Proceedings
Once charges are filed, the case moves to court. The court usually begins with preparatory proceedings. Under Article 273 of the Code of Criminal Procedure, the court may hold these before the first trial date. They can cover matters such as:

• the scope of the charges in the indictment
• whether the defendant admits guilt
• the key disputed issues in the case and the evidence
• each side’s position on whether evidence is admissible
• the scope, order, and method for examining the evidence

The case then moves to the trial proceedings. The judge examines the evidence and hears arguments from both sides. Finally, the court announces its judgment.
2. Preparing for Court (Defendants, Complainants, and Witnesses)

1. Defendants:
   • You must appear in court on time, as stated in your court notice. If you fail to appear without a valid reason, the court may issue a warrant to have you brought in.
   • Before the hearing, work out your defense strategy with your attorney.
   • Organize the evidence in your favor.
   • Make sure you understand the facts and evidence the prosecutor relied on in the indictment.
2. Complainants:
   • During the trial, you may appoint an attorney to represent you, and you may present your views to the court.
   • If you are a victim, you may also apply to take part in the proceedings under Taiwan’s victim participation system.
3. Witnesses:
   • If you are lawfully summoned, you must appear in court. If you fail to appear without a valid reason, the court may fine you or issue a warrant to have you brought in.
   • You must testify truthfully.
   • You may request a daily allowance and reimbursement of your travel expenses.

3. How Long a Trial Takes
How long a trial takes varies widely. It depends on the type of case, how complex it is, whether the defendant admits guilt, and how much evidence there is. Typical time frames are: Cases handled under summary proceedings may be decided within a few months. Under ordinary proceedings, a first-instance trial may take anywhere from six months to two years, and major cases (such as corruption, financial crimes, or homicide) can last several years. Second- and third-instance proceedings can each take anywhere from several months to several years.
V. Stage Four: Appeals and Other Remedies
1. Appeals
If you disagree with a District Court judgment, you may appeal to the High Court. If you disagree with the High Court’s judgment, you may appeal to the Supreme Court. An appeal to the Supreme Court is only allowed on grounds permitted by law, for example that the judgment violated the law.
Appeals must be filed within a legal deadline, usually 20 days. If you miss it, you lose your right to appeal.
2. Retrial and Extraordinary Appeal
Even after a judgment becomes final, two further remedies may be available in situations such as these:

• new facts or new evidence come to light
• the original judgment violated the law

In those cases, a party may petition for a retrial, or the Prosecutor-General may file an extraordinary appeal.
A petition for retrial must meet two requirements, and both are mandatory:

• Novelty: the evidence must be genuinely new.
• Reliability: the evidence must be strong enough that it could change the outcome of the judgment.

VI. Stage Five: Enforcement
Who Directs Enforcement
Once a judgment becomes final, the case enters the enforcement stage. As a general rule, a prosecutor directs enforcement. For example:

• Prison sentence: The prosecutor issues an enforcement order, and the prison carries out the sentence.
• Criminal fine: The prosecutors office collects it.

VII. How to Prepare Evidence
Whether you are a complainant, a defendant, or a witness, preparing your evidence is crucial. Here are some basic principles:

1. Preserve evidence right away. Save relevant documents, physical evidence, photos, audio and video recordings, text messages, and chat logs as early as possible so they are not lost or deleted.
2. Make an evidence list. Sort and number your evidence. For each item, explain how it relates to the facts you need to prove, that is, what it can show.
3. Ask the authorities to obtain evidence. If evidence is held by someone else, or must be obtained from a government agency, you can ask the prosecutor or the court to get it.
4. Arrange your witnesses. If you have witnesses, provide their names and addresses, and explain what facts each one can testify to.

VIII. Conclusion
The criminal process is complex. But if you understand the procedures and key points of each stage, you can handle it with confidence. If you are involved in a criminal case, we recommend getting help from a qualified attorney as soon as possible to protect your rights.
(※ This article is for general informational purposes only and does not constitute formal legal advice. ※)