歐洲聯盟與我國羈押制度比較──以歐洲人權公約第5條為討論核心

A Comparative Study on Detention Systems in European Union and Taiwan-Article 5 of the European Convention on Human Rights as the Core of Discussion

羈押，係判決確定前對被告人身自由最激烈尖銳與不可逆轉之基本權干預處分，故倘國家濫用羈押權，被告人身自由將遭受莫大斲傷。因此，各國憲法與國際條約不僅高舉大纛宣示保障人身自由，同時亦致力規範更詳盡之羈押要件、理由、執行與損害賠償，試圖調和羈押與人身自由二者間之緊張關係。蓋完善之羈押制度，不僅得以降低對人身自由之衝擊，更藉由制度規範，間接保護人身自由。就此，歐洲人權公約第5條即係最具代表性之條文，且歐洲人權法院透過大量判決，闡明本條所標示之各項標準，逐步形塑較為理想之羈押制度，於我國甚具參考價值。本文區分為二大部分。第一部分係歐洲人權公約第5條與其相關判決釋義分析，主要討論範圍涵蓋第1項第1句第（c）款之羈押理由、第3項專屬被羈押人之特別程序保障、第2項及第4項被拘禁人之一般程序保障，以及第5項損害賠償請求權，將針對第5條所有羈押之規範逐一詳細說明。第二部分以歐洲人權公約第5條作為觀察對象，與我國羈押制度相互映證比較，其涉及範圍涵蓋我國憲法第8條所宣示保障之人身自由、刑事訴訟法第101條以下羈押要件及其相關規定，如偵查中羈押之閱卷權與替代羈押之處分、刑事妥速審判法第5條羈押最長時間，以及刑事補償法第1條及第2條違法羈押補償請求權，將以歐洲人權公約第5條所列之標準，檢視我國羈押制度。最後，總結上述二大部分，並提出具體建議作為未來修法參考。

Detention is the most drastic and irreversible interference of fundamental rights with the defendant's right to personal freedom before a definitive judgement, so the state abuses the detention, and the defendant's right to personal freedom will suffer great harm. Therefore, the constitutions of various countries and the international conventions not only stipulate and declare the right to personal freedom, but also strive to regulate more detailed the detention requirements, reasons, execution and the right to claim compensation, trying to reconcile the tension between the detention and the right to personal freedom. A consummate detention system not only reduces the impact on the right to personal freedom, but also indirectly protects the right to personal freedom through institutional regulations. In this regard, Art. 5 of the European Convention on Human Rights (ECHR) is the most representative article, and the European Court of Human Rights (ECtHR) has clarified the standards provided by this article through a large number of judgments, gradually shaping a more ideal detention system, which has a great reference value for Taiwan. The goal of this study is Art. 5 of the ECHR and compare it with the detention law of Taiwan. The text is divided into two parts for the further discussion. The first part focused on the interpretation of Art. 5 of the ECHR and the analysis of relevant court judgments, which included the reasons for detention in para. 1 subs. (c), special procedural guarantees for persons deprived of liberty in para. 3, general procedural guarantees for persons deprived of liberty in para. 2 and 4, and the right to claim damages in para. 5. A detailed and thorough statement of all the detention regulations with respect to Art. 5 is addressed in the first part of this article. In the section that followed, it took Art. 5 of the ECHR as the reference to compare to the detention system in Taiwan in various norms and standards. It covered the right to personal liberty guaranteed in Art. 8 of the Constitution of Taiwan and the essential elements of detention in Art. 101 of Taiwan Code of the Criminal Procedure, as well as the relevant regulations such as the right to access to case files during investigations and the disposition of alternative detention. Additionally, the maximum duration of detention in Art. 5 of the Criminal Speedy Trial Act of Taiwan and the right to claim compensation for the damages due to unlawful detention in Art. 1 and 2 of the Criminal Compensation Act of Taiwan are also elaborated and compared to Art. 5 of the ECHR in this part. In other words, a complete review of the detention system in Taiwan based on Art. 5 of the ECHR is presented in the second half of this article. At the end, on the foundation of the comparison between the ECHR and Taiwan's detention system, the article has proposed concrete legislative suggestions for the legislators.