Introduction

With the advancement of globalization, judicial cooperation between countries has become an important means of resolving cross-border legal issues.  In simple terms, judicial assistance procedures refer to the mutual cooperation and support between countries to effectively handle legal matters involving foreign elements, e.g. document service or evidence investigation.  Since judicial systems vary from country to country, judicial assistance procedures often face challenges.  This article will briefly introduce the judicial assistance regulations in Taiwan and explore the legal boundaries of the questioning authority of personnel from the requesting party in Taiwan-U.S. judicial assistance in criminal matters.

Judicial Assistance Regulations in Taiwan

Regarding judicial assistance, Taiwan enacted the "Law in Supporting Foreign Courts on Consigned Cases" in 1963, which serves as the legal basis for Taiwan courts to handle civil or criminal matters commissioned by foreign courts.  According to such law, when Taiwan courts are entrusted to serve documents or conduct evidence investigation, they must proceed in accordance with the provisions of Taiwan's Code of Civil or Criminal Procedure.  If the documents are in a foreign language, a Chinese translation must also be provided.

Subsequently, Taiwan has signed judicial assistance agreements or extradition treaties with various countries.  For instance, in 2002, Taiwan signed the "Agreement on Mutual Legal Assistance in Criminal Matters between the Taipei Economic and Cultural Representative Office in the United States and the American Institute in Taiwan" ("Taiwan-U.S. Mutual Agreement"), which serves as the basis for conducting criminal judicial assistance procedures between the two parties.  To further promote international criminal judicial cooperation, Taiwan also enacted the "Mutual Legal Assistance in Criminal Matters Act" in 2018, providing clear legal foundations for matters such as criminal evidence collection, service of process, search, and seizure.

The legal boundaries of the questioning authority of personnel from the requesting party in Taiwan-U.S. judicial assistance in criminal matters

Regarding whether personnel from the requesting party can be present or ask questions during the questioning/interrogation of individuals in Taiwan-U.S. criminal judicial assistance procedures, Article 17 of the Mutual Legal Assistance in Criminal Matters Act stipulates that: "[w]hen the Requesting Party requests to interview or hear an accused, a witness, an expert witness, or any other related persons in connection with the request, the pertinent facts, questions list, and their general description shall be included in the Letter of Request…the Requesting Party may, where necessary, request the Assisting Body to pose additional questions…”  Article 18 of the same act further states that: "[p]ersons from the Requesting Party may be allowed to appear at the scene of the implementation of the request, upon the consent of the Assisting Body…Paragraph 3 of the last preceding Article shall apply…"  The Taiwan-U.S. Mutual Agreement also has similar provisions.  Article 9, Paragraph 3 of such agreement states that: "[t]he authorities of the territory represented by the Requested party shall permit the presence of such persons as specified in the request during the execution of the request, and shall allow such persons to pose questions to the person giving the testimony or evidence and to make a verbatim transcript in a manner agreed to by the authorities of the territory represented by the Requested party."

The similarity in the above provisions is that they all recognize the right of personnel from the requesting party to be present during the execution of the request by the requested party.  The difference lies in that the Mutual Legal Assistance in Criminal Matters Act explicitly stipulates that the relevant questioning or interrogation shall be conducted by the requested party, while the Taiwan-U.S. Mutual Agreement specifies that the requested party shall allow the individuals indicated in the request to "question" the person testifying or providing evidence.

According to Taiwan's legal system, the Constitution holds the highest rank, followed by laws and international agreements that have been reviewed and approved by the Legislative Yuan and are legally binding domestically.  After that come administrative orders.  The Mutual Legal Assistance in Criminal Matters Act and the Taiwan-U.S. Mutual Agreement both have the same legal effect as domestic laws within the national legal system.  When regulations of the same rank overlap, the principles of special law prevailing over general law, and later law prevailing over earlier law, generally apply.  However, the premise is that these regulations must be interpreted constitutionally within the framework of the Constitution and the Code of Criminal Procedure.

From the perspective of the Code of Criminal Procedure, the actions performed by the prosecutor in a criminal proceeding are considered "investigation," and during the investigation, witnesses are "interrogated," with the verbatim record being referred to as the "interrogation record" (see Article 248 of the Code of Criminal Procedure).  On the other hand, actions taken by prosecutors' assistants, judicial police officers, or judicial police are considered "inquiries,” and during the inquiry, witnesses are "questioned,” with the verbatim record being referred to as the "questioning record" (see Article 196-1 of the Code of Criminal Procedure).  This distinction involves the exercise of criminal judicial authority and procedural safeguards, which are central to the structure of the Code of Criminal Procedure.

Therefore, the phrase in Article 9, Paragraph 3 of the Taiwan-U.S. Mutual Agreement, which allows the individuals specified in the request to "question" the person testifying or providing evidence, should be interpreted restrictively within the framework of the Code of Criminal Procedure.  That is, such "questioning" can only occur during an "inquiry" conducted by prosecutors' assistants, judicial police officers, or judicial police.  If the process is led by a prosecutor in an "investigation,” personnel from the requesting party are not authorized to directly "interrogate" witnesses in any form.  Any such action would constitute an unauthorized exercise of public authority, potentially violating the due process and protection rights guaranteed under Articles 8 and 16 of the Constitution.

Conclusion

Taiwan's judicial assistance procedures apply different legal regulations depending on the nature of the case (e.g. civil or criminal) and the requesting party (e.g. a court or investigative agency).  Given the complexity of these regulations and procedures, parties involved should seek professional legal advice to ensure the protection of their lawful rights and interests.

(The article is originally in Chinese which can be found here.)