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2024-01-02

| How to lift restrictions on leaving the country or going to sea?

The freedom of residence and migration is a constitutional guarantee provided to the people. However, freedom is not an unrestricted right that can be infinitely expanded. To maintain social order and promote public interest, the law can impose necessary restrictions on the right of people to reside and migrate under certain specific circumstances. But if one does not agree with these restrictions, how should they protect their own rights?

 

 

What circumstances would lead to restrictions on leaving the country or going to sea?

To prevent defendants from fleeing and affecting the progress of criminal litigation, investigation, and trial, Article 93-2, Paragraph 1 of the Criminal Procedure Law states: "If the defendant is suspected of a serious crime and one of the following conditions exists, the prosecutor or judge may restrict them from leaving the country or going to sea when necessary. However, this does not apply if the most severe punishment for the crime committed is detention or a specialized fine:
1. The person does not have a definite residence or place of living.
2. There are sufficient reasons to believe that there is a risk of escape.
3. There are sufficient reasons to believe that there is a risk of destroying, forging, altering evidence, or colluding with accomplices or witnesses."
 
From the above article, it is evident that to restrict a criminal defendant from leaving the country, a prerequisite of "serious suspicion" is required. How "serious suspicion" is determined depends on a comprehensive judgment based on the nature of the crime, the punishment, and the individual circumstances of the case.

 

 

How long does the restriction on leaving the country or going to sea usually last?

According to the various provisions of Article 93-3 of the Criminal Procedure Law, the duration of travel restrictions can be categorized and summarized as follows based on whether it is during the investigation or trial phases.

Case Status

Duration of Restriction

During Investigation

The restriction must not exceed 8 months, and the prosecutor may extend it up to two times.
First extension: Must not exceed 4 months
Second extension: Must not exceed 2 months

During Trial

Each time must not exceed 8 months, and there is no limit on the number of extensions.
 
If the case involves a crime punishable by a fixed-term imprisonment of less than ten years, the total duration of restrictions must not exceed five years; for other crimes, the total duration must not exceed ten years.
 
It is important to note that during the trial phase, although there is no limit to the number of times the defendant's travel can be restricted, there is still a cumulative time limit. Moreover, according to the same article, Section 4, the court must provide the defendant and their defense attorney an opportunity to express their opinions before extending the travel restriction. This is to ensure that the defendant's rights are not infringed upon.
 
 
 

How to lift restrictions on leaving the country or going to sea?

  1. During Investigation: If restricted from leaving the country by the prosecutor during the investigation phase and you disagree, you can apply to the court for revocation.
  2. During Trial: If restricted from leaving the country by the court during the trial phase and you disagree, you can file an appeal within ten days of receiving the decision.
 
 
 
 

 

 

Experience from Past Cases of Our Firm

District Court: Restriction on Leaving the Country or Going to Sea

The Taipei District Court ruled that defendant A, accused of crimes related to the Securities Exchange Act and prosecuted by the prosecutor, was found to have a serious suspicion of crime by the trial judge after questioning. Despite defendant A's denial of the crime and the case not yet being final, there was sufficient evidence to suspect tampering with evidence and colluding with witnesses or accomplices. However, detention was deemed unnecessary, hence the court ordered that defendant A be restricted from leaving the country or going to sea.
 

High Court: Original Ruling Revoked

Upon investigation and assessment by our firm, defendant A had already posted bail of 800,000 NT dollars in this case and consistently attended court sessions on time, actively engaging with the judiciary. Additionally, considering the advanced age of defendant A's parents who rely on their care, it was evident that there was no likelihood of absconding. Furthermore, as the original trial had concluded arguments and all evidence had been investigated, it was difficult to believe there was a possibility of tampering with evidence or colluding with witnesses. The original ruling, based solely on defendant A's denial of the crime and the case being unresolved, ordered restrictions on leaving the country or going to sea without clearly stating the reasons or necessity, nor explaining the basis for believing that defendant A might still tamper with evidence or collude with witnesses. Consequently, after our firm's advocacy, the High Court overturned the original decision and sent it back to the Taipei District Court, successfully protecting the rights of defendant A.

 

 

Common Issues with Travel Restrictions(Q&A) 

Q：Are only criminal defendants subject to travel restrictions?

A：Administrative procedures also have provisions for travel restrictions! Examples include unpaid fines, taxes owed, or the most common issue of military service. These can all lead to travel restrictions. If one disagrees with travel restrictions imposed by administrative procedures, the remedy is to follow the administrative litigation process, starting with an appeal and, if unsuccessful, proceeding with an administrative lawsuit.
 

Q：How can I know if I am subject to travel restrictions?

A：Taiwanese nationals who are registered residents can prepare an application for inquiry (they can authorize someone else to act on their behalf, but a power of attorney is required) along with the original and a copy of their identification document. They can process this at the service stations of the National Immigration Agency in various counties and cities. It's also possible to check online on the National Immigration Agency's Control Section website using a Citizen Digital Certificate.
 
 
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