Regarding the reform of Law of Compensation for Wrongful Detentions and Executions, the latest State Report quoted Paragraph 134 in the first State Report on ICCPR, mentioning that the Law of Compensation for Wrongful Detentions and Executions was amended in 2011. But the new law is still flawed, and some victims of wrongful conviction are still unable to receive compensation.
The current Law of Compensation for Wrongful Detentions and Executions creates 3 categories of claimants: “intentional or grossly negligent Laws,” “attributable” and “non-attributable”. If a claimant who has been in custody, detained, or in compulsory services due to his intentional or grossly negligent Laws, he may not recover compensation. The non-attributable case will be compensated $NT3000-5000 per day, while the attributable case will only be compensated $NT1000-3000 per day. However, the concept of “attributable” is obscure and it violates the principle of clarity, it allows the authority to continue to assign a measure of guilt under the category of “attributable,” and to make it as the justification for an inferior standard of compensation. For the victim who has already been acquitted, this is rather adding insult, which violates the constitutional principles of prohibition on repeated prosecution, protection against double jeopardy and presumption of innocence. It conflicts with the rights protected in Article 22 of the Constitution, and Article 9 Paragraph 5 and Article 14, Paragraph 6 of the ICCPR.
Moreover, according to Article 7 in the Law of Compensation for Wrongful Detentions and Executions, the amount of compensation is determined by the vague notion of “common sense.” In the case of the “Hsichih Trio,” when Su Chien-ho, Chuang Lin-hsun and Liu Bin-lang petitioned for compensation, the Taiwan High Court approved the application. But in the decision it noted that, since their wrongful detention were caused by their own confession, it was attributable; and considering their occupation and level of education by the time they got detained (which were vocational high school graduate, household electric appliances worker; junior high dropped-out, plumber; high school graduate, unemployed), they were only compensated $NT1300, $NT 1200 and $NT1300 per day. Setting the “price” of the freedom of a person on their occupation and education by the so-called “common sense,” is an obvious deviation from the intent of the ICCPR.
The current Law of Compensation for Wrongful Detentions and Executions only allows the compensation for punishments which limit the freedom of person, such as detention of accused, detention of an accused for expert examination, custody; or punishments including monetary fines or labor exactions. For those whose punishment was never executed, there is no compensation. The harm of miscarriage of justice cannot be compensated just because the sentences had not been carried out. In the case of Chen Long-Qi, he was sentenced harshly to 4 years for offenses against sexual autonomy. Although he was later acquitted, he couldn’t claim any compensation to the state because his freedom hadn’t been deprived. Such omission under the current Law of Compensation for Wrongful Detentions and Executions should be amended.
In Article 9 Paragraph 1 of ICCPR, it addresses that “everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.” In Paragraph 4, it addresses that “anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.” There have been many cases and disputes over the issue of the state detaining mental patient based on his mental condition, including what procedure should be followed and the role of the courts in making such determinations. In Taiwan, the existing Mental Health Act regulates that a doctor can file an application to send a patient to compulsory hospitalization based on the following conditions:
if the case meets the standard of a “severe patient,” in which the patient exhibits extremely unusual behavior that makes him unable to care for himself .
Regarding the implementation of Article 9 Paragraph 1 of ICCPR, “no one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law,” the United Nations Human Rights Committee has highlighted in General Comment No. 35 that, to improve the freedom of person of mental patients, forced detention can only be the last resort, and due process is needed in order to protect the rights to express himself beforehand, and to seek remedy afterward. Therefore, there are legal procedures in Article 41 Paragraph 2 and Article 42 Paragraph 2 of Mental Health Act, requiring that the application of compulsory hospitalization should be approved by the mandatory examination of 2 specialist physicians and the Review Committee under Ministry of Health and Welfare consisting of specialists from multiple backgrounds. In addition to the discussions of the Committee, the patient can also make declarations or statements through video, and submit his own thought on the legal requirements, such as risk of violence and the necessity of full-time hospitalization.
However, it is doubtful that the Review Committee can promote due process of law, and fulfill its function of filtering out the cases that do not satisfy the requirements. For example, according to the statistics of Ministry of Health and Welfare, the rate of approval of detentions by the Review Committee has been above 90%. Such a high rate of approval indicates that the Committee’s proceedings have become a mere formality, and in particular that the questions of risk of violence and the necessity of full-time hospitalization are not strictly reviewed. In other words, if the function of review is weakened in the Committee, the decision of compulsory hospitalization can be arbitrary, and a patient can be easily assumed as in need of hospitalization just because he has mental illness or disability. Such condition contradicts the Article 9 of ICCPR.
According to Article 9 Paragraph 4 of ICCPR and General Comment No. 35, the concept that “anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court,” includes the rights of the patient expressing his unwillingness to detention, the necessity of taking proceedings before a court on the detention; and the power of the court to cancel the decision of detention and order release if the detention is not lawful. This is the “right of arraignment” protected by Article 8 Paragraph 2 in the Constitution. Before 2014, the “severe patients” who were forcibly hospitalized could only seek to appeal for the termination of compulsory hospitalization according to Article 42 Paragraph 3 in Mental Health Act. Therefore, the court can only examine on the necessity of continuing hospitalization, but not on the legitimacy of the decision made by the Review Committee under the Ministry of Health and Welfare. Although the Ministry of Health and Welfare has claimed that patients could raise administrative appeals against such decisions, the Executive Yuan rarely accepts any such appeals. As a result, the measures that deprive the freedom of the patient were never been examined by a court, which is obviously contravenes Article 9 Paragraph 4 of the ICCPR.
After the amendment of Habeas Corpus Act in 2014, persons who were deprived freedom for non-criminal reasons were allowed to appeal for arraignment before a court. This also covers the severe patients who were forcibly hospitalized, so that they are now able to appeal for a judicial examination of the legitimacy of compulsory hospitalization. According to the spirit of right of arraignment in ICCPR, the range of examination should include both procedural and substantive considerations, that is both whether the process of deciding the compulsory hospitalization was legitimate, as well as whether the case meets the legal conditions for compulsory hospitalization. However, although the law has been amended for over a year, very few actual arraignments have taken place; and there has been no case of the court determining a decision of compulsory hospitalization was unlawful and ordering the release of the patient. This indicates that the psychiatric institutions haven’t provided sufficient resources and assistance to enable the patients to file such appeals, so that many patients are unable to execute this right in practice. It might also because patients often cannot receive professional legal assistance. Moreover, in the few cases that have been heard so far, the court has usually only examine the procedural legitimacy of the detention, without investigating the substantive elements. The courts so far seem unwilling to listen to the different points of view from patients, such as explanations for violent behavior, to carry out further investigation (such as requesting the presence of doctors to explain their comments, asking the family of patients their condition at home, etc.), and to evaluate whether other less coercive measures could be sufficient. Such careful procedures and measures are both part of the protection of the liberty of person under the ICCPR; international human rights laws also highlight that States shall not overuse detentions in psychiatric institutions, and that patients in custody shall be provided proper avenues of appeal. However, when there is still no precedent of a court-ordered release of a patient, it seems that there is still much work to be done to realize the protection of freedom of mental patients.
<li><p>if there is the possibility of the patient’s hurting himself or others.</p></li> <li><p>if there is the necessity of full-time hospitalization.</p></li> <li><p>if the patient refuses to accept hospitalization or if the patient is unable to express his will.</p></li> </ol>In reply to Paragraph 126 of the second State Report on ICCPR, regarding the duration of detention before trial, the current Code of Criminal Procedure states that it may last as long as 4 months. This contradicts the concept of the protection of liberty of person in Article 8 of the Constitution and Judicial Yuan Interpretation No. 392. Besides, in the phase of detention before trial, the prosecutor has the power to apply for detention, and the judge is responsible for examining the conditions of detention, which are different from each other. However, the roles of prosecutor and judge are overlapping and confused. For instance, there are cases in which, when a detention due to expire, the judge actively inquired whether the prosecutor intended to prolong the detention50. In addition, Interpretation No.665 requires that the court must examine the necessity of detention when considering detention of a suspect due to the severity of the crime or the possibility of escape; however, some judges ignore such requirements and neglect the importance of limiting restrictions on freedom of person of criminal defendants51.
The case of detention application of Wei Yang happened on day after the forcible dispersal of the assembly at the Executive Yuan on March 24th, 2014. Since the government had announced that they would strictly punish the “villains” who occupied the Executive Yuan, the prosecutor immediately accused Wei Yang of the crimes of public assembly, damage, obstructing governmental operations and stealing documents, and applied to detain him immediately after the interrogation. The court turned down the application due to the lack of evidence to fit the conditions of detention. This is a typical case of a prosecutor abusing the power of applying for detention. Especially when compared to the prosecutors’ passive attitude toward investigating the case of injuries caused by the police during the same incident, it also illustrates the issue of selectively choice of cases to investigate.
In reply to Paragraph 127 in the second State Report on ICCPR, , although according to the law a warrant is needed to arrest a criminal suspect, in practice suspects are usually forced to “voluntarily cooperate” with the police regardless of the law. According to Resolutions No.6, 7, and 8 of the Prosecutor Evaluation Committee in 2013, a prosecutor surnamed Wu issued blank warrants before an arrest, and ordered the investigators in Hualien to bring the suspect to Taipei for straight-face test. The suspect was told that he had to stay with the officers because they held a warrant. After the suspect refused to take the test, he was sent back to Hualien and then interrogated by prosecutor Wu. Only after this process, was the suspect formally arrested; however he had been already been forced to cooperate for more than 10 hours. On this case, the Prosecutor Evaluation Committee did not determine that this was unlawful, commenting that “such phenomenon happens often in practice; therefore, a single prosecutor should not bear all responsibility.”. This reveals that such “voluntary cooperation” is a common practice used by prosecutors to circumvent the rule laid down by Article 8 of the Constitution.
Paragraph 128 in State Report mentions in Article 38 of Immigration Act, Judicial Yuan Interpretations No. 708 and 710 that, the Code of Administrative Procedure has amended on February 5th, 2015 and included a new chapter 4 to address the procedure, categories of petition on custody cases, the court in charge and the procedure of the trial. The involved person or family can appeal for an objection, and request an arraignment. However, according to the statistics, the was 6.3% of cases will be released. The trial usually only examines on the laws but the fact, and it never consider the necessity of “custody.” Article 38 of Immigration Act addresses that, only when a compulsory exit order is difficult or impractical to enforce, a defendant can be temporary detained. Therefore, it shall be considered in the court that whether detention is the ultimate measure.
There were 8 Hydis workers arrested in a sit-in protest to express themselves in the evening of June 9th, 2015. They were arrested. The was Mandarin and English, but there wasn’t any Korean in the disciplinary action documents. Also, the workers could only receive the documents right before their repatriation, and they couldn’t understand the content at all.
No asylum-seeker in Taiwan had received any legal aid when he was detained in the alien detention centers for the crime of illegal entry or overstay. Since Legal Aid Act has regulated that only the “legally entry and resident” aliens can be assisted, the illegally entered or overstayed aliens would not receive any aid. Plus, since Refugee Law hasn’t passed in Taiwan, all asylum-seekers would be considered as illegal immigrants, and would be excluded from all legal aid.
In reply of Article 134 in the second Nation Report on ICCPR. Firstly, although the Foundation for Compensation Wrongful Trials on Charges of Sedition and Espionage During the Martial Law Period is transparent on the number of cases and the amount of compensation, the competent authorities, such as the Preparatory Office of the National Human Rights Museum, hasn’t provide the further information regarding the content of the files like the standard that the Foundation followed when examining the compensation cases. The concrete content is not only concerning the rights of the victims and their families, but the compensation is provided from taxes. Therefore, the content of the permissions/ dismissals and the standard of compensation shall be revealed, so that the civil society can keep the authorities accountable.
Secondly, the propose of “keeping the important human rights historical memories of the state” is not saving the files in the institutions, but should include civil participation, so that the goal of “education in human rights, collecting of the historical materials in the Martial Law period, research and popularization” can be achieved. Although the competent authorities have allowed access of the files to the victim groups, civil researchers and professionals, the legal professionals have questioned whether the decision is conformed to the regulation in Article 22 of Archives Act. Until now, the Ministry of Culture hasn’t taken any active action on both the protection of the privacy and the education in human rights.
- According to Resolution No. 5 in 2015 of the Prosecutor Evaluation Committee, the brief facts of the case were: a judge surnamed Chen actively sent an inquiry to the prosecutor whether he intended to prolong the detention; moreover, before the prosecutor submitted the application, judge Chen had begun the interrogation of prolonging. Although such actions are against the Code of Criminal Procedure, according to the Committee they are very common in practice.
- According to request of evaluation of a Taiwan High Court Judge surnamed Wang submitted by the Judicial Reform Foundation on December 16th, 2015, Wang, had mistaken that the defendant had a circular order and prolonged his detention. In the second hearing regarding the detention prolongation, the defendant reminded the judges of the mistake. However, the judges still made the decision to prolong the detention due to the circular order (which doesn’t exist) as well as the severity of the crime. The defendant made an interlocutory appeal to the Supreme Court, but the Supreme Court only noted the mistake and dismissed the appeal after the High Court corrected it.