Response to 66 and 67 of the ICCPR Secondary Report. 56 of Concluding Observations and Recommendations suggested that “Taiwan intensify its efforts towards abolition of capital punishment and, as a first and decisive step, should immediately introduce a moratorium on executions”. However, neither the ICCPR Secondary Report, its Concluding Observations and Recommendations, nor the actions of the government have shown any concrete policies, measures, research or work timeline have been dedicated to reaching this goal within the past 3 years. Contrastingly, the government have continued to use public support as an excuse to continue capital punishment whenever a serious criminal case draws media attention. This shows the government does not understand nor respect its duty to uphold the values of the ICCPR.
The 2014 survey conducted by Academia Sinica (A survey on public attitudes and opinions towards the death penalty and related issues), for which 2039 people were interviewed, shows that 85% of the public oppose repealing the death penalty. However, after more careful observation it becomes apparent that when the public are given more information about the death penalty, including its systematic flaws, they become more inclined towards abolition. Also, if other options are given, whether life imprisonment without parole or a life sentence with the potential for release, the public will be less inclined to support the death penalty.
<table class="table table-bordered table-hover table-condensed"> <thead> <tr> <th></th> <th>Do you support abolishing the death penalty？</th> <th>Would you support the death penalty being replaced with life imprisonment or a life sentence with the potential for release after a mandatory 25 years and good behavior, if the rate of recidivism was low?</th> <th>Would you support the death penalty being replaced with life imprisonment without parole, with the offender working in prison to support victims’ families?</th> </tr> </thead> <tbody> <tr> <td>Yes</td> <td>12%</td> <td>41%</td> <td>71%</td> </tr> <tr> <td>No</td> <td>85%</td> <td>55%（only 17% strongly oppose）</td> <td>27%</td> </tr> </tbody> </table>Response to 68 of the ICCPR Secondary Report. In 2009, Minister of Justice Wang Ching-feng invited representatives from civil society and researchers to establish the “Research and Implementation Group on the Gradual Abolishment of the Death Penalty (The Research and Implementation Group or The Group)” to meet the requirements of the covenants.40 On December 22nd, 2012, the Ministry of Justice announced “We have always stood for ‘performing administrative duties according to the law’ when it comes to the death penalty and have absolutely never publicly promised abolition or ‘ending the death penalty’.” Several members of the Research and Implementation Group openly accused the Ministry of Justice of lying and therefore resigned from the Group on December 25th, 2012. We suggest the government restart The Group and invite suitable experts to participate.
Response to 68 of the ICCPR Secondary Report. The Research and Implementation Group agreed to prioritize the strengthening of victim protection, yet since December 2012, there has been no action regarding this resolution, nor any further meetings of The Group.
Besides the suggestion of restarting the Research and Implementation Group, the Ministry of Justice, the authority in charge of crime victim protection matters, should draft a national blueprint for victim protection policy. They should actively work on a system to console and compensate victims and to set up a case management system. They should assist the integration of related resources and ensure appropriate services and support are offered for the many, diverse needs of victims. They should continue to practice restorative justice for victims and offenders, and specify tactics for educating and training justice practitioners (including police). The crime victim protection implementation services should fulfill victims’ right to information and inform them of their other rights and the litigation process, to decrease the gap between victims and their case information.
Response to 63 of ICCPR Secondary Report. Aside from the problems raised by NGOs with Cheng Hsing-tse's case, in 2014 the Control Yuan conducted an investigation that concluded Cheng had confessed under torture. When the pro bono lawyers requested a retrial from the high court, the judge who tried the second hearing and sentenced Cheng to death made the decision on whether to open a retrial or not. The judge did not recuse himself and furthermore rejected the plea, highlighting a constitutional problem of the recusal of a judge with the retrial procedure.
In March 2016, a prosecutor of the Taichung High Prosecutor's Office requested a retrial for Cheng Hsing-tse on grounds of new forensic evidence. The pro bono lawyers also filed a retrial, which set a historical record for both sides professing the accused to be innocent. The Taichung high court confirmed Cheng would be given a retrial on March 2nd, and the next day the Taichung High Prosecutor's Office announced detention would not be necessary, allowing him to finally be released after 14 years. Another retrial is currently being processed by the high court of Taichung.
Chiou Ho-shun was accused of involvement in the Lu Zheng and Kehung Yu-lan murder cases of 1988. There was no evidence to convict Chiou, other than his confession obtained under torture, and no way to refute his alibi. The officers that tortured Chiou were convicted in 1998, yet after 23 years in detention, Chiou was still given the death sentence in 2011. 57 of Concluding Observations and Recommendations specifically mentions Chiou Ho-shun, pointing out “the death penalty must never be imposed on the basis of a confession extracted by torture, as in the cases of the Su Chien-ho trio or of Chiou Ho-shun… The Experts strongly recommend the commutation of the death sentence in all such cases.” In 2015, the police officers who witnessed the torture also testified that Chiou was innocent, yet up to this day all special pleas have been rejected by the court. The Prosecutor-General, Yen Da-ho, filed an extraordinary appeal for Chiou on July 15th, 2016 and the Supreme Court has not made a decision yet.
In 2000, there was a double murder case in Tainan. The police arrested Kuo Jun-wei and Hsieh Chih-hung, and found the murder weapon and victim's phone in Kuo's house. However, Hsieh's fingerprints were not found on the murder weapon, nor were the victim's bloodstains found in his car or on any of his clothes. No scientific evidence has been found to convict Hsieh of the crime. Hsieh “confessed” to the double murder and sexual assault of the female victim at the police station, however, forensic reports indicate that no evidence pointed to Hsieh sexually assaulting the female victim. Once out of police monitoring, Hsieh wholly denied his guilt and furthermore admitted to being tortured. To confirm whether he had been tortured or not, the court requested a recording of the police interrogation, but the recording had purportedly been lost. In the end, the court still used Hsieh's confession to convict him and sentenced him to death in 2011. Special appeal measures taken by the lawyers have still not been accepted by the court or the Grand Justice. Hsieh's pro bono lawyers have pleaded seven times for the Prosecutor-General to make extraordinary appeals, yet all were rejected. There have also been three appeals to the Grand Justice for a constitutional interpretation, all of which have been rejected. A fourth request is still being processed by the Grand Justice of the Judicial Yuan. Meanwhile, this case was sent to the Control Yuan for further investigation.
In March 2016, the Ministry of Justice issued a press release stating that the Prosecutor's Office of the Supreme Court would establish a working group for special appeals in death penalty cases. This was for confirmed yet highly disputed death penalty cases to be thoroughly checked through. The NGOs hold the establishment of this group in high regard, but suggest before establishing a group for emergency reassessment of death penalty cases, there should be consultation with the NGOs and the academics. The function of the group and to what standards such highly disputed cases will be reviewed should be explained clearly. The group must understand the demands of the ICCPR clearly before proceeding with re-examinations. The cases of Chiou Ho-shun and Hsieh Chih-hung must also take priority.
Although granting amnesty or commutation are administrative powers, the judicature can conduct investigations and according to Article 6 (4) of the ICCPR, “the right to amnesty and sentence commutation of the accused and condemned” is indeed a right, not a special power at the President's discretion. The Human Rights Committee also agrees with where Article 2 states, “where there is a right there must be a remedy”. There is an empty space in the Amnesty Act, where there are procedural obstructions when the accused and condemned actually request amnesty.
Response to 190 of Concluding Observations and Recommendations and 53-56 of the ICCPR Secondary Report. International experts concluded in 57 of the primary Concluding Observations and Recommendations that the executions of the death penalty violate the rights to amnesty and sentence commutation. Although 26 individuals with death penalty convictions made amnesty pleas to the President in 2013, Ma Ying-jeou not only procrastinated on the issue, but also executed at least four of those people.41 In 57 of the primary Concluding Observations and Recommendations report, international experts concluded that the process for amnesty pleas set out in the ICCPR “seems to be violated” by our government. This, however, was purposely translated as “may violate” which gave the government a larger scope for excuses. The behaviour of the government evidently disregards the ICCPR and professional advice in Concluding Observations and Recommendations. The Amnesty Act is highly flawed with regards to plea procedure and examination mechanisms. We expect the international experts will give clearer and more severe comments in the upcoming conclusions report.
The President is expected to state publicly the number of amnesty pleas, how they are being dealt with, and if there are opportunities for administrative remedies after the ratification and implementation of the two covenants. On the legislative level, we suggest:
regulations be set for amnesty plea procedures for death sentence cases,
<li><p>the government establish an advisory body for amnesty pleas and sentence commutation,</p></li> <li><p>before the Amnesty Act is amended, the Ministry of Justice must deliberate and implement the rules for reviewing amnesty pleas during the transitional period, in order to mend the gaps in the current Amnesty Act.</p></li> </ol>One of the aims of ICCPR Article 14 (2) on the presumption of innocence is to protect the accused from facing a “media trial”. High profile murder cases in Taiwan always receive a great deal of media attention which often contaminates public opinion. Take the 2012 murder of a school boy at an arcade in Tainan as an example. During interrogation by the prosecutor, the accused stated, “Killing one or two people does not get you the death sentence?” He merely posed a question to the prosecutor. However, because the interrogation was leaked to the media, who reported it as “arrogantly threatening”, the court had a difficult time with investigation, clarifying the original meaning of what the accused said, and the motivation of his offense. The media infringed upon the defendant’s right to the presumption of innocence which appears to have affected his trial.
The 2013 Hsieh Yi-han case is a specific example of where the right to presumption of innocence was seriously violated. From when prosecutors of the Shilin District Prosecutor's Office commanded the police to search and immediately detain a suspect on March 6th 2013, up until prosecutors brought a lawsuit upon Hsieh Yi-han for murder and burglary on April 12th of the same year, many media channels reported the investigation process at great lengths, even including the photograph from the case file, related records and the contents of the investigation report. This already violated the principal of private investigation in the code of criminal procedure (Art. 245: An investigation shall not be public.). Personnel involved in investigation processes or the execution of the law clearly hold the blame for leaking information from investigations. We believe the Judicial Yuan, Executive Yuan, Ministry of Justice and related government departments should take effective measures to investigate the people who leaked case information to the media, in order to protect the right to presumption of innocence. Also, according to the explanation of 59 of the ICCPR General Comments No.32, if the right to a fair trial (Article 14) is violated in a death penalty case, the court cannot rule execution, otherwise this violates the “deprivation of life” clause in Article 6. Therefore, the investigation of death penalty cases must be met with “the highest standards of due process”. When similar media trials happen using damaging information, the court must not rule execution. The investigation process of the aforementioned case violated the innocence principal and the court still handed the accused a death sentence, violating both articles 6 and 14 of the covenant.
The Supreme Court debate, the defendant’s right to present at court hearings and the other factors of unfair trials
Response to first part of 71 of the ICCPR Second Report. There have been different practices at the Supreme Court in the past three years regarding death sentence cases, such as if there were pretrial procedures and debate procedures or not. For example, some cases have only the debate procedure42, while some have not processed anything43, and there are no strict guidelines for debate procedures. In 2016, there were a number of second instance death penalty cases (the Huang Lin-kai and Li Hung-ji cases for example) where appeals to the Supreme Court did not go through a legal debate. Although most of these cases were sent back from the Supreme Court, the lack of going through a legal debate will actually limit the legal arguments for one case, whether it’s on the first two instances for the trial on matters of fact, or on the third instance for the trial of law. We suggest the Supreme Court assures all cases go through proper legal debate involving both the prosecution and defendant, and shows respect for the right to life. The penal litigations related to third hearings should be reexamined regarding death penalty cases to at least comply with the minimum standards set by the ICCPR.
<table class="table table-bordered table-hover table-condensed"> <caption>Cases debated in the Supreme Court since 2012</caption> <thead> <tr> <th></th> <th>Year</th> <th>Defendant</th> <th>Case type</th> <th>Pre-trial Procedures</th> <th>Debate</th> <th>Judgement</th> <th>Court appearance</th> <th>Remarks</th> </tr> </thead> <tbody> <tr> <td align="right">1</td> <td align="right">2012</td> <td>Wu Min-Cheng</td> <td>Murder</td> <td>Ｏ</td> <td>Ｏ</td> <td>Revoked，later given life imprisonment</td> <td>Ｘ</td> <td> </td> </tr> <tr> <td align="right">2</td> <td align="right">2013</td> <td>Chen Yu-an</td> <td>Domestic violence homicide</td> <td>Ｘ</td> <td>Ｏ</td> <td>Death sentence</td> <td>Ｘ</td> <td> </td> </tr> <tr> <td align="right">3</td> <td align="right">2013</td> <td>Wu Chi-hao</td> <td>Domestic violence homicide</td> <td>Ｏ</td> <td>Ｏ</td> <td>Life imprisonment</td> <td>Ｘ</td> <td> </td> </tr> <tr> <td align="right">4</td> <td align="right">2013</td> <td>Lin Yu-ru</td> <td>Domestic violence homicide</td> <td>Ｘ</td> <td>Ｏ</td> <td>Death sentence</td> <td>Ｘ</td> <td> </td> </tr> <tr> <td align="right">5</td> <td align="right">2013</td> <td>Chiou He-cheng</td> <td>Kidnap for ransom and murder</td> <td>Ｘ</td> <td>Ｏ</td> <td>Death sentence</td> <td>Ｘ</td> <td> </td> </tr> <tr> <td align="right">6</td> <td align="right">2013</td> <td>Lin Guo-cheng</td> <td>Rape and murder</td> <td>Ｘ</td> <td>Ｏ</td> <td>Life imprisonment</td> <td>Ｘ</td> <td> </td> </tr> <tr> <td align="right">7</td> <td align="right">2013</td> <td>Chen Kun-ming</td> <td>Murder</td> <td>Ｘ</td> <td>Ｏ</td> <td>Revoked，later given life imprisonment</td> <td>Ｘ</td> <td> </td> </tr> <tr> <td align="right">8</td> <td align="right">2013</td> <td>Peng Jian-yuan (1sttime at the Supreme Court)</td> <td>Murder</td> <td>Ｘ</td> <td>Ｏ</td> <td>Revoked</td> <td>Ｘ</td> <td> </td> </tr> <tr> <td align="right">9</td> <td align="right">2013</td> <td>Zhang He-ling</td> <td>Domestic violence homicide</td> <td>Ｏ</td> <td>Ｏ</td> <td>Revoked，sentence currently being commuted to life imprisonment at the high court</td> <td>Ｘ</td> <td> </td> </tr> <tr> <td align="right">10</td> <td align="right">2013</td> <td>Shen Jiang-tian</td> <td>Domestic violence homicide and other crimes</td> <td>Ｏ</td> <td>Ｏ</td> <td>Revoked</td> <td>Ｘ</td> <td> </td> </tr> <tr> <td align="right">11</td> <td align="right">2013</td> <td>Chen Yong-zhi</td> <td>Murder</td> <td>Ｏ</td> <td>Ｏ</td> <td>Revoked</td> <td>Ｘ</td> <td> </td> </tr> <tr> <td align="right">12</td> <td align="right">2013</td> <td>Sun Kuo-huang<br/>(1st time at the Supreme Court)</td> <td>Murder</td> <td>Announced but not heard</td> <td>Ｘ</td> <td>Revoked</td> <td>Ｘ</td> <td> </td> </tr> <tr> <td align="right">13</td> <td align="right">2014</td> <td>Lin Ji-hsiong</td> <td>Murder</td> <td>Unannounced</td> <td>Unannounced</td> <td>Revoked</td> <td>Ｘ</td> <td>Died of illness in detention center</td> </tr> <tr> <td align="right">14</td> <td align="right">2104</td> <td>Peng Jian-yuan<br/>(2nd time at the Supreme Court)</td> <td>Murder</td> <td>Ｏ</td> <td>Ｏ</td> <td>Death sentence</td> <td>Ｘ</td> <td> </td> </tr> <tr> <td align="right">15</td> <td align="right">2104</td> <td>Shen Wen-bin<br/>(1st time at the Supreme Court)</td> <td>Murder</td> <td>Ｏ</td> <td>Ｏ</td> <td>Revoked</td> <td>Ｘ</td> <td> </td> </tr> <tr> <td align="right">16</td> <td align="right">2015</td> <td>Sun Kuo-huang<br/>(2nd time at the Supreme Court)</td> <td>Murder</td> <td>Ｏ</td> <td>Ｏ</td> <td>Revoked</td> <td>Ｘ</td> <td> </td> </tr> <tr> <td align="right">17</td> <td align="right">2015</td> <td>Hsieh Yi-han<br/>(1st time at the Supreme Court)</td> <td>Burglary, murder and other crimes</td> <td>Ｘ</td> <td>Ｏ</td> <td>Revoked</td> <td>Ｘ</td> <td> </td> </tr> <tr> <td align="right">18</td> <td align="right">2015</td> <td>Tseng Zhi-zhong</td> <td>Domestic violence homicide</td> <td>Ｏ</td> <td>Ｏ</td> <td>Revoked, later given life imprisonment</td> <td>Ｘ</td> <td> </td> </tr> <tr> <td align="right">19</td> <td align="right">2015</td> <td>Chen You-shu</td> <td>Kidnap for ransom and murder</td> <td>Ｏ</td> <td>Ｏ</td> <td>Revoked</td> <td>Ｘ</td> <td> </td> </tr> <tr> <td align="right">20</td> <td align="right">2015</td> <td>Hsieh Yi-han<br/>(2nd time at the Supreme Court)</td> <td>Burglary, murder and other crimes</td> <td>Ｏ</td> <td>Ｏ</td> <td>Revoked</td> <td>Ｘ</td> <td> </td> </tr> <tr> <td align="right">21</td> <td align="right">2015</td> <td>Shen Wen-bin<br/>(2nd time at the Supreme Court)</td> <td>Murder</td> <td>Ｏ</td> <td>Ｏ</td> <td>Revoked</td> <td>Ｘ</td> <td> </td> </tr> <tr> <td align="right">22</td> <td align="right">2016</td> <td>Li Hung-ji</td> <td>Domestic violence homicide and other crimes</td> <td>Ｘ</td> <td>Ｘ</td> <td>Revoked</td> <td>Ｘ</td> <td> </td> </tr> <tr> <td align="right">23</td> <td align="right">2016</td> <td>Huang Lin-kai</td> <td>Rape and murder and other crimes</td> <td>Ｘ</td> <td>Ｘ</td> <td>Revoked</td> <td>Ｘ</td> <td> </td> </tr> <tr> <td align="right">24</td> <td align="right">2016</td> <td>Cheng Jie</td> <td>Murder</td> <td>Ｏ</td> <td>Ｏ</td> <td>Death sentence</td> <td>Ⅴ</td> <td> </td> </tr> </tbody> </table>All legal debates in the Supreme Court since 2012, except in the Zheng Jie case where he was summoned to court, have faced the ambiguous situation of the accused being absent. The accused have had no way of interacting with the defense council in court. This has led to an ineffective defense and the accused being deprived of their rights to be present and heard. The right to be heard is at the core of litigation rights and even though the third hearing is a legal review, the accused should be present as a matter of principal, especially for cases of the death penalty or life imprisonment. The right to be heard cannot be arbitrarily deprived. Article 389 of the Code of Criminal Procedure states a debate only at the discretion of the court is depriving the accused of the right to a fair and public trial which violates article 14 (1) of the ICCPR.
The Supreme Court deals with civil appeals and criminal cases refused by the high court and its branches upon first hearing, those refused by the high court and its branches upon second hearing, those adjudicated and protested by the high court and its branches, and cases with extraordinary appeals. There are 10 courts that deal with criminal cases in the Supreme Court. When the same case goes through the Supreme Court and the verdict is revoked and appealed again, the same group of judges rehears the trial, and the judges will often give the same conviction to protect their initial decisions. This violates the right to a fair trial and thus the death penalty should not be given in these cases.
Neglecting the right to be heard, and the situation where same groups of judges retry the same case at the Supreme Court, violate article 14 of the ICCPR (right to a just court and right to a fair trial), article 6 (right against the deprivation of life) and the advice of experts in Concluding Observations and Recommendations. These violations should be amended and the judicial constitution should be changed. In order to be cautious about giving death verdicts, the Court Organization Act should be amended. The verdict should be made unanimously, unless there are other regulations.
Response to 187-189 of the Concluding Observations and Recommendations. According to the binding powers of The Commission on Human Rights since 2005 (2005 resolution 59), the state must not sentence to death or execute persons with mental or intellectual disabilities. However, since 2013, the sentencing of person with mental or intellectual disabilities has been commonplace.44 Wang Jun Chin who had an IQ of only 66 was executed by firing squad in 2015. We believe no person with mental or intellectual disabilities should be executed, and this principle should be added to article 57 of the penal code, and article 465 of the sentencing laws.
Response to 219 of the ICCPR primary report. To help the accused with extraordinary appeals and relief related to a retrial of their death penalty case, defense lawyers requested to examine the case files from the Supreme Court Prosecutor's Office, including a CD copy and transcript of the recording tape. They were refused on the grounds of the Personal Data Act and the Government Information Disclosure Law. The refusal violates the rights of the defendant and the lawyer, to which the Article 90-1 of the Court Organic Act should apply to.
The government openly stated they hold the utmost standards of precision when implementing the death penalty. However, according to Implementation Guidelines for Reviewing Enforcement of Death Sentences, verification is limited to ensuring there will be no relief programme or reason to stop the execution, which is reckless and unbridled. For example, according to the Guidelines, if any reason for amnesty exists, no execution should be carried out. However, the Ministry of Justice has time and time again executed the death sentence even before the president has reacted to the amnesty request.
The Death Penalty Execution Deliberation Committee called together by the Ministry of Justice appears to have followed no strict standards. According to the minutes of committee meetings between 2010 and 2014, only one meeting was chaired by the Minister of Justice in 2014. Between 2010 and 2013 only one meeting was held for each execution with an average time of under two days between meetings and executions. The longest recorded meeting since 2014 has been 2 hours. Supposing each meeting held between 2010 and 2013 was also two hours long, with 21 executions within that time period, total meeting time would have been around 8 hours. This signifies the decision time period per execution was no more than 24 minutes. Even though 5 meetings were held for each execution in 2014, the total time spent meeting was 7 hours, and the decision time period per execution was no more than an hour and a half. This means decisions are made hastily and carelessly.
Liu Yan-kuo was alleged to have killed a police officer and a female homeowner in 1997. Liu was given a life sentence, but a family member of one of the victims testified that Liu was not the killer. Liu was still not relieved of his conviction. There were many areas of doubt in this case; for example, no gunpowder residue was found on Liu's clothing. The “on-site ballistics identification” was only conducted 12 years after the incident happened and the house had already been resold and rebuilt by this time. There was no clear way of knowing who killed the female homeowner. This case has been passed back and forth between 64 judges and remanded 7 times.
On April 29th 2014, the media published news of an upcoming execution, and at 4pm on that day, lawyer Chiu Hsien-Chih faxed Liu Yan-kuo's extraordinary appeal to the Supreme Court Prosecutor's Office. Before 2 hours has passed, the proxy chief of the Prosecutor's Office rejected it and on the same day executed Liu. This shows the ministry of justice had not substantially checked over the plea and it shows how imprecise the Implementation Guidelines for Reviewing Enforcement of Death Sentence is.
The Du brothers were accused of murder in China, where the investigations also took place. Their death sentences were carried out in Taiwan in April 2014. The problematic verdict was watched intently by academic and legal spheres. The most prominent issue was that the accused were handed the death sentence without the evidence and witnesses being examined and presented in Taiwanese courts or a legal debate. The key pieces of evidence were Chinese police records and evaluation reports. All other evidence was circumstantial and neither the judge nor the accused had a chance to question the witnesses in court. They never had the opportunity to see the evidence during the trial either. The penalty was dealt out without respecting Ministry of Justice executive procedures. We believe the code of criminal procedure's heresy and evidential rules should be amended. We ought to reexamine the Mutual Legal Assistance Agreement and the investigation and judgement procedures in overseas cases.
On May 21st 2014, Cheng Jie was accused of killing 4 and injuring 24 in the Taipei MRT. The Supreme Court announced he was to face the death penalty on April 22nd. He was executed on May 10th. What drew controversy was the execution taking place only 2 weeks after the judgement without notifying the family or defense lawyers, and with no time to prepare an extraordinary appeal. The entire investigation, whether during police and custody questioning, prosecutor’s questioning, search and arrest or mental health assessment, was conducted without the presence of defense lawyers. During the psychiatric evaluation, the physician injected the accused with drugs, claiming it was to help him talk, which was extremely invasive. Without written consensus, this violates self-incrimination laws and rules of general medical practice, and the prohibition of unlawful questioning. Therefore, the forensic psychiatric report written by National Taiwan University Hospital was a production of many questionable conducts. Although the accused was called to the Supreme Court, it was ruled that he committed the most serious crime and the court believed that rehabilitation was neither possible nor foreseeable, and therefore the death penalty was given. This shows the court did not deal with the case according to sentencing regulation, and neglected due process of law and the ICCPR to make their judgements.
Response to 200-203 of the ICCPR Secondary Report. Response to 178 of Concluding Observations and Recommendations. Taiwan's prisons are in need of drastic improvement. Before executions, prisoners’ families are not informed, and prisoners themselves are only informed just beforehand. Cheng Jie was executed very quickly beyond normal procedure. Since there is no knowing about when executions will be carried out, death row inmates are in a constant state of anxiety which is considered torture and inhumane and degrading treatment. In addition, mentally unstable inmates usually refuse treatment and abstain from recognising their own illness. When put on death row or caught between long court procedures, their health deteriorates rapidly. The Agency of Corrections is reluctant to solve the problems. The fact that the Agency of Corrections is not taking the death row inmates’ rights to mental health care seriously can also lead to inhumane treatment.
After the national compensation was paid to the family, slight progress regarding the compensation claim against the implicated military officers has also been made. Nevertheless, the investigation of the criminal responsibility of the military officers involved in this major misconduct continues to be extremely difficult. Duty lawyers have been assisting Chiang’s mother with making requests to prosecute the 9 high ranking military officers implicated - which includes the then Operations Commander Chen Chao-min – for murder. After four years of proceedings, the Taipei District Prosecutors Office made the third non-prosecutorial disposition on November 6th, 2011, and transferred the case to the Taiwan High Prosecutors Office for reconsideration. In agreement with the Taipei District Prosecutors Office’s ruling, the Taiwan High Prosecutors Office dismissed the case. Citing expiry of the 10-year statute of limitations, prosecutors refused to open cases based on “coercion” and “intimidation and endangerment”. However, according to the second investigative report conducted by the Control Yuan, the duty attorneys believe that] the implicated military officers were involved in a case of homicide, to which the statute of limitations is inapplicable. Thus, the attorneys have applied to the Taipei District Court for trial setting. Currently, the case is pending.
In its analysis, the Judicial Reform Foundation argued that the difficulty of investigating the criminal responsibilities of the officers lies in that - despite the statute of limitations on misdemeanors has expired - limitations on felonies are still valid. There is room for filing serious charges against Chen Chao-Min and the remaining parties; yet the prosecution is reluctant to do so. This could be perceived as the result of a lack of transitional justice mechanisms being applied to the justice system.
There has been a long history of the justice system harboring malicious prosecutions carried out at courts-martial. Shortly after the imposition of martial law, the Judicial Yuan Interpretation No. 272 was made to legitimize military trials of civilians. After the martial law was lifted, Justice of the Constitutional Court - referring to the Interpretation No. 272 - held that criminal cases adjudicated in the military tribunals during the period of Martial Law may not be appealed to the ordinary courts subsequent to the abolishment of martial Law. This has resulted in the high threshold of rehabilitating victims of miscarried military justice. Throughout the Martial Law period, even the Justices of the Constitutional Court have contributed to authoritarianism, let alone general judges and prosecutors. The mind-set of conniving state violence is deeply rooted in the hearts of members of the judiciary, yet to be erased.
In preventing the prosecution’s abusive use of non-prosecutions in harboring state violence, a thorough inventory of the prosecution personnel and a reform of the bureaucratic structure should be carried out. In addition, a supervisory mechanism of non-prosecutorial dispositions should also be introduced, which includes the abolishment of the Code of Criminal Procedure Article 260, which will make the effectiveness of non-prosecution-paper no longer technically equivalent to court decisions. Secondly, in the investigation stage, crime victims and/or their representatives should be given access to case files, or through other means, be satisfied with their right to information. This would increase the transparency of the prosecution process. Last but not least, for supervision purposes, files of non-prosecution dispositions should be released under the premise of privacy protection. In particular, copies of autopsy reports should be given to the family of the deceased when the case is closed, so that they can know whether the death of their beloved ones was unnatural or not.
Response to Page 17, Paragraph 79-80 of the State Report. “The Act Governing the Use of Police Weapons” currently in force is just an abstract set of regulations and is not in line with the concrete demands of the United Nations’ “Basic Principle on the Use of Force and Firearms by Law Enforcement Officials” (referred to below as Basic Principles). The State Report lays out only one case where police have been prosecuted for shooting and killing civilians, but is not clear on whether or not there are other such cases where police did not get prosecuted. The information provided is not satisfactory and not in accord with the effective report and investigation procedures demanded by Basic Principles.
Article 11 of Basic Principles includes: (a) Rules explaining the different situations where law enforcement personnel are permitted to carry firearms, and the types of firearms and ammunition they are permitted to carry. (b) Instructions of under which circumstances it is suitable to use firearms, and to avoid causing unnecessary harm as much as possible. However, the rules for using police equipment are less concrete, and lack specific regulations for conducting training on the circumstances where carrying firearms is permissible, which firearms are appropriate to carry, and how to avoid causing unnecessary harm. In the case given by the State Report, the officer was incapable of complying with the judge's demands to confirm whether the use of firearms was appropriate or not, nor was he able to provide a clear datum for judgement.
We suggest the government establishes a mechanism for heeding to the effective report and investigation procedures stipulated in Article 22 of Basic Principles. The government should also establish a set of work procedures, professional equipment and training programmed for a professional workforce (for investigating, forensics etc.) to deal with shooting cases.
The criminal compensation judgement of the case of Su Chien-ho has violated the Twin Covenants. It contradicts the principle of trial on merit, and fails to fulfil the principle of proportionality.
In response to Paragraph 61 and 62, page 13 of the, the Wu Ming-han lethal case of Hsichih District has been dragging on for 21 years, where the accused trio were detained for 4,170 days. After their acquittal in 2012, the trio made a NT$60 million criminal compensation request. However, the Taiwan High Court was of the opinion that the trio have to take the responsibilities of their 2 previous confessions of guilt, and reduced the total amount of compensation to NT$15.846 million.
The original verdict concluded that the confessions of the trio were obtained through torture, and were thereby excluded from trial. However, the Compensation Ruling of the Taiwan High Court claimed that the original judgment “did not confirm the trio were tortured by the police” and required the trio to take the responsibilities for their statements acquired during interrogation, which is clearly unlawful and erroneous. Furthermore, the calculated amount of NT$5.282 million renders an average compensation of merely NT$1,300 per day. The amount is tremendously low when compared with the compensation of up to NT$5,000 per day as stipulated in the Criminal Compensation Act, and has obviously failed to meet the principle of proportionality.
General Comments No. 32 of the International Convention of Civil and Political Rights has made it clear that “the burden is on the state to prove that statements made by the accused have been given of their own free will.” Hence, the Taiwan High Court should not blame the victims for not being able to prove that they were tortured, or reduce the amount of compensation they were entitled to.
Article 7 of ICCPR has stated “No one shall be subjected to torture or to cruel, inhumane or degrading treatment or punishment”, and under Article 14(6), victims of the miscarriage of justice are entitled to compensation. General Comment No. 13, point 18 of the ICCPR gave the warning, “many countries did not abide to or respect this right, or did not provide sufficient safeguards.” The Taiwan High Court has “ignored” the correlation between “confessions” and “reasons behind confessions”: it seems to be of the opinion “once the defendant confessed” and is under detention, “attributable grounds” will exist, thereby disregarding whether confessions were made because of threats, bribery, intimidation, coercion or even torture. Therefore, not only does this judgment breach principles of logic and empirical rules, it also contradicts the spirit of Articles 7 and 14(6). The exemption of most liabilities on the part of the nation, and the lack of sufficient protection to the victims, has led to injustice.
Su Chein-Ho and the others have expressed their discontent with the judgment, and have applied for a review of the case at the Criminal Compensation Court. Nevertheless, the Judicial Yuan has copied the original reasons of judgement and dismissed the appeal. Obviously, the Judicial Yuan has failed to fulfill its duty as a superior court.
- The Ministry of Justice invited experts, NGO representatives and government officials to establish the “Research and Implementation Group on Gradual Abolishment of Death Penalty” in 2010. The first two key goals were, as explained: “For effective policy on gradual abolition, and to reach the end goal of complete abolition, the Ministry of Justice plans to establish the “Research and Implementation Group on Gradual Abolishment of Death Penalty” as a permanent. “The two covenants and the Act to Implement the ICCPR and ICESCR have been passed by the Legislative Yuan and the covenants have been ratified by the President. Abolishing the death penalty is at the core of protecting human rights. To make strides towards it, our policies must actively promote abolition, the permanent research group must be established, there must be mechanisms to actively promote abolition, we must encourage other ministries to implement supporting measures, we must receive the recognition of the public and victims groups, achieve our end goals, follow the international trend of abolition and start implementing a human rights safeguard.” These are the primary intentions of the Research and Implementation Group and the reasons why the members of civil society wish to participate in it.（http://www.taedp.org.tw/story/2432）
- The 4 people are Wang Jun-chin, Dai Wen-ching, Wang Hsiu-fang and Liu Yan-kuo.
- Example: Chen Yu-an case, Taiwan Supreme Court 2013, Verdict No. 446; Lin Yu-ru case, Taiwan Supreme Court 2013, Verdict No. 2392
- Example: Lin Ji-hsiong case, Taiwan Supreme Court 2014, Verdict No. 807 and the latest Li Hung-ji case, Taiwan Supreme Court 2016, Verdict No. 480
- For example, Lin Yu-ru, Chen Yu-an and Peng Jian-yuan.