A judge, after questioning the defendant, must find substantial suspicion and a statutory ground before ordering pretrial detention; a prosecutor alone cannot order it. Defense is mandatory at a pretrial detention review during investigation, so the court must appoint counsel if none has been retained. Counsel may inspect the case file. Bail is one way to suspend pretrial detention, and security may be returned in specified circumstances.
Why might prosecutors request pretrial detention?
After questioning the defendant, a judge may order pretrial detention only if there is substantial suspicion of an offense, one of the statutory grounds below applies, and prosecution, trial, or enforcement would plainly be difficult without pretrial detention: (1) the defendant has fled or facts indicate a risk of flight; (2) facts indicate a risk of destroying or falsifying evidence or colluding with co-offenders or witnesses; or (3) the alleged offense is punishable by death or life imprisonment or carries a minimum sentence of at least five years, and there are substantial reasons to believe one of those risks exists (Code of Criminal Procedure, Art. 101(1)). A serious charge alone does not automatically satisfy the test.
During investigation, if a prosecutor considers pretrial detention necessary after questioning, an application with the case materials must be made to the court within 24 hours of the arrest or compelled appearance (Art. 93(2)). Time attributable to statutory impediments under Article 93-1 is excluded from that calculation, but unnecessary delay is prohibited. Without an application, the defendant must be released, or less restrictive measures such as bail, entrustment, or residence restrictions may be used (Art. 93(3)).
What happens at the pretrial detention hearing?
The judge questions the defendant and tests the alleged offense and grounds for pretrial detention. The prosecutor may attend, explain the application, and present evidence (Art. 101(2)). The facts, reasons, and supporting evidence on which pretrial detention may rest must be disclosed to the defendant and counsel and recorded.
The defendant or counsel may ask the judge for suitable time to prepare a response before questioning (Art. 101(4)). Time is often short, so organizing the facts and arranging a meeting early can matter.
What if no attorney has been retained?
Defense is mandatory at a pretrial detention review during investigation. If the defendant has no chosen counsel, the presiding judge must appoint a public defender or attorney (Art. 31-1(1)). This means the process generally includes a defender even if the family has not had time to retain one.
偵查中之羈押審查程序未經選任辯護人者，審判長應指定公設辯護人或律師為被告辯護。但等候指定辯護人逾四小時未到場，經被告主動請求訊問者，不在此限。（刑事訴訟法第31條之1第1項）
Unofficial English summary (not an official translation): Under Article 31-1(1), the court appoints a public defender or attorney when no counsel has been chosen for a pretrial detention review during investigation; an exception applies if appointed counsel has not arrived after more than four hours and the defendant personally asks to be questioned.
Can counsel see the case file?
During a pretrial detention review in the investigative stage, defense counsel may, unless another law provides otherwise, inspect the case file and exhibits and copy or photograph them (Art. 33-1(1)). Counsel must not publicly disclose or misuse material received (Art. 33-1(2)). If the defendant has no counsel, the court must use an appropriate method to make the material known to them (Art. 33-1(3)).
What is bail, and how is the amount set?
When suspending pretrial detention, the court may order the defendant or a third party to give a guarantee and security in an appropriate amount, or to deposit security directly (Art. 111). The defendant, an eligible assistant, or counsel may apply to the court for suspension of pretrial detention on bail at any time. During investigation, the prosecutor may also request this (Art. 110(1)–(2)).
In certain cases the court may not reject a bail application: when the alleged offense carries at most three years’ imprisonment, short-term detention, or a fine only, except for a recidivist, habitual offender, someone who commits another offense while on parole, or someone detained under Article 101-1(1); when the defendant is at least five months pregnant or within two months after childbirth; or when illness is unlikely to improve without treatment outside pretrial detention (Art. 114). Even if pretrial detention grounds exist, the judge may instead order bail, entrustment, or residence restrictions after considering the circumstances (Art. 101-2).
Will bail security be returned?
When pretrial detention is revoked, the case receives a non-prosecution disposition, a final conviction leads to imprisonment, or pretrial detention ends by court decision, the guarantor’s obligation ends and any security not forfeited must be returned (Art. 119(1), (3)). The defendant or third-party guarantor may also request withdrawal of the guarantee, subject to approval by the court or prosecutor (Art. 119(2)).
If a defendant released on bail absconds, the court must order the guarantor to pay the designated amount and forfeit it; nonpayment is enforced. Security already deposited is forfeited (Art. 118(1)). Bail security is tied to complying with release conditions and attending when summoned.
What happens if bail conditions are breached?
After pretrial detention has been suspended, the court may order pretrial detention to resume if the defendant fails to attend a lawful summons without a valid reason, breaches residence restrictions or other court orders, or new grounds for pretrial detention arise (Art. 117(1)). During investigation, the prosecutor applies to the court for pretrial detention to resume.
When should the family seek legal advice?
Detention review is time-sensitive. Early advice can help prepare a response before questioning, assess whether to seek bail, and understand how the case file affects the defense. This guide is general information, not advice for an individual case.