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CONSTITUTIONAL COURT MANDATES CLEAR REASON NECESSARY FOR SPOT CHECKS|大法官解釋 警方臨檢應舉證明確事實

Good Morning Taiwan
2017-03-21
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Now This had led to discussion on public security versus human rights. Lawyers say this incident is a valuable education in correct process. When undertaking spot checks, police should tell the person clearly what basis they are being inspected on. If police are unable to explain then they should stop the inspection so as not to raise accusations of infringement of human rights.

Feeling that the man looked suspicious, police asked to see his ID and found drugs. Spot checks are a useful tools helping police to crack many criminal cases. However, they are also open to accusations of infringement on human rights. Constitutional Court Justices' interpretation of the constitution number 535, states that police need to prove clearly that there is reasonable belief of risk to person or property to make a check. Thus the Legislative Yuan set a legislative basis for rights for police work, requiring police to have specific reason to investigate. For example, if the person runs away, this constitutes such a reason.

==KAO JUNG-CHIH lawyer==
This is a good example, to clarify how police should work. People can refuse to show their documents and if the police don't have good reason to check them, then the person can leave.

The Police Reform Association also took Minister Lee's case as an example to say that Lee did not disclose his identity and police acted legally in asking him to do so. If Lee was unhappy at the police request, he could appeal or bring a judicial case as a test case.

==MA ZAI-CHIN Spokesperson, Police Reform Assn.==
If you want to you can use the usual channels to appeal and let it become a test case in the hope that the Police Administration will use the opportunity to make sure that all officers take this as an example. It would be good and a positive step for police reform.

Ma said that police spot checks have often led to disputes and lead to a feeling of discontent from the general public towards the police. If Lee's case established specific scope for police checks then it had an educational purpose. Kao also suggests that more training be given on the procedure for spot checks. General public response is that police should not do spot checks based on clothing or appearance so that when criminal activity comes to light there is no suspicion of human rights infringement.

TRANSLATED BY:CLARE LEAR

客委會主委李永得拒絕警方攔查事件,今天也引發維護治安,或是侵犯人權的討論。律師認為,這次的事件,是帶有教育意義的案例,臨檢當下,警方就應該跟民眾說明,臨檢的依據是什麼,如果無法說明,就要停止盤查的動作,減低侵犯人權的疑慮。

看到男子很可疑,要求進行盤查,意外發現毒品,臨檢、盤查已是警方破獲犯罪、爭取績效的一個方法。可是如何確保沒有侵犯到人身自由?大法官535號釋憲案闡明,警方應該舉證明確,證明已達「致生危害或有產生危害」的程度,立法院也因而訂立警察職權行使法,要求警察得有相當理由的認定條件,如果嫌犯看到警察就跑,就構成攔檢條件。

==律師 高榮志==
這是一個好的案例
釐清警察應該怎麼發動
那人民是可以拒絕
那如果說不出一個道理來
警察就應該讓人民走

而警改會也以李永得的情況為例說,李永得當下沒有表明身分,警方也是依法行政,雙方各有堅持,假若李永得不滿警方臨檢依據,可提起訴願或透過司法判決,成為案例!

==警改會發言人 馬在勤==
你要嘛 就按照正常管道
你訴願 異議
然後讓他成為一個案例以後
希望警政署 多多宣達這樣的案例
讓所有的員警 一體適用
很好呀 這對警察改革
邁出一大步

馬在勤認為,警方臨檢引起爭議,往往會勾起民眾對警方盤查的不滿,李永得的案例若能建立規範,才有教育意義;高榮志也建議,臨檢的實務操作是需要被訓練、被界定的,警方臨檢,不能只依據服裝儀容或行跡等等理由,就懷疑有犯罪嫌疑,才能減低侵犯人權的疑慮。

記者 陳佳鑫 張梓嘉 台北報導