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  • Interpretation
  • No.528
  • Date
  • 2001/06/29
  • Issue
    • Is Article 3 of the Organized Crime Prevention Act, which imposes a term of 3 to 5 years of forced labor upon those who engage in organized crime, consistent with the protection of physical freedom guaranteed by Article 8 of the Constitution and not in violation of the principle of proportionality provided in Article 23 of the Constitution?
  • Holding
    •       Based upon the educational and remedial goals embodied in the criminal law, forced labor as one kind of rehabilitative measure is designed to reeducate criminals, who have been accustomed to committing crimes, trained professionally as criminals, or have become criminals because of long-term joblessness or homelessness, to cultivate their work ethic and learn skills so that they can live independently once they re-enter the society. Article 3, Paragraph 3, of the Organized Crime Prevention Act (hereinafter the “Act”) prescribes that such persons, after serving their sentences or being pardoned, shall reenter the work environment for a probationary period of three years, under Paragraph 1, and for a probationary period of five years, under Paragraph 2. The Act is enacted to target criminal groups of more than three members, whose goals are to commit crimes, or whose members commit organized crimes with regularity, compulsion, and violence. Despite the role differentiations between group members in initiative, coordination, control, command, and participation, these criminal groups all use their organizations to commit crimes, establish internal hierarchical structures, and have solid controlling relationships among group members. As a result, organized crimes committed by these criminal groups have a much greater impact on our society and are a much more serious threat to our democratic system than other crimes. Thus, Article 3, Paragraph 3, of the Act prescribing forced labor is designed to address the inefficiency of criminal sentences and to help resocialize criminals and thus, should be considered as appropriate for the prevention of organized crimes and necessary for the maintenance of the social order and the protection of human rights. Furthermore, in case there is no necessity to require forced labor in given individual circumstances, Paragraphs 4 and 5 permit the suspension of execution or the continuance of forced labor and should be considered as sufficient for the courts, guided by the fundamental principle of protecting human rights, to make appropriate, necessary, and rational judgments and as a result, consistent with the protection of physical freedom guaranteed by Article 8 of the Constitution and not in violation of the principle of proportionality (Verhältnismäßigkeitsprinzip) provided in Article 23 of the Constitution.
  • Reasoning
    •       Based upon the principle of special protection and with a special focus on the dangerous nature of criminals who may put the society at risk, the dual system of criminal sentences and rehabilitative measures in the criminal law provides various kinds of rehabilitative measures for criminals in addition to punitive sentences in an attempt to correct deviant and/or anti-social behavior. Similarly, for educational and remedial purposes, forced labor as one kind of rehabilitative measure is designed to reeducate criminals who have been accustomed to committing crimes, trained professionally as criminals, or become criminals because of long-term joblessness or homelessness to cultivate their work ethic and learn skills so that they can live independently when they reenter the society.
      
    •       To prevent organized crimes and to protect the social order and individual rights, the Act stipulates the effects of its violations: Article 3, Paragraph 1, states that the persons who initiate, coordinate, control or command criminal organizations shall be sentenced to no less than three years and no more than ten years of forced labor and may be fined up to the amount of one hundred million New Taiwan dollars, and that the persons who participate in these organizations shall be sentenced to no less than six months and no more than five years of forced labor and may be fined up to ten million New Taiwan dollars. Article 3, Paragraph 2, prescribes that if the persons, who committed the crimes mentioned in Paragraph 1 and have served their sentences or been pardoned, commit those crimes again, those who initiate, coordinate, control or command organized crimes shall be sentenced to no less than five years of forced labor and may be fined up to the amount of two hundred million New Taiwan dollars, and those who participate in these crimes shall be sentenced to no less than one year and no more than seven years of forced labor and may be fined up to twenty million New Taiwan dollars. Article 3, Paragraph 3, states that the persons who commit the crimes prescribed in Paragraph 1, after serving their sentences or being pardoned, shall reenter the work environment for a probationary period of three years, and that for those who violate Paragraph 2, the period of forced labor shall last for five years. Accordingly, Article 3 provides criminals with forced-labor orders in addition to criminal sentences. Article 2 of the same Act targets criminal groups of more than three members, with internal hierarchical structures, whose goals are to commit crimes, or whose members commit organized crimes with regularity, compulsion, and violence. Thus, it differs from Article 19, Paragraph 1, of the Act Governing the Control and Prohibition of Gun, Cannon, Ammunition, and Knife, which prescribed forced labor for all criminals regardless of the nature of their crimes and the necessity of requiring rehabilitative measures to prevent potential social threats, and therefore, was declared, in J.Y. Interpretation No. 471, unconstitutional and inconsistent with the protection of physical freedom guaranteed by the Constitution. Despite the role differentiations between group members in initiative, coordination, control, command, and participation, these criminal organizations structure their organizations as private enterprises with divisions of labor to commit crimes and serve their unlawful purposes. They establish internal hierarchical structures and have solid controlling relationships among group members. Membership in these criminal organizations is regular and secret. The types of crimes these organizations commit vary, including even the unlawful trading of guns and weapons and manipulating democratic elections by threatening or intimidating voters besides other offenses; thus, they have a much greater impact on our society and pose a much more serious threat to our democratic system than other crimes. Article 3, Paragraph 3, of the Act prescribing forced labor is designated to address the inefficiency of criminal sentences and to help resocialize criminals and thus, under the goals of policy regarding general prevention of crime, should be considered as effective in diminishing the number of criminal organizations and deterring the development of organized crime and necessary for the maintenance of the social order and the protection of human rights. Furthermore, in case there is no necessity to require forced labor given individual circumstances, Article 3, Paragraph 4, states that prosecutors may file applications with facts and evidence to the courts for the suspension of forced labor after the criminals have served their sentences or been pardoned. Paragraph 5 prescribes that if the period of forced labor has lasted for more than one year and six months and the executing agency considers continuation unnecessary, the executing agency may file applications with facts and evidence to the prosecutors for their appeal to the courts for the termination of the sentence. As the provisions permit the suspension of execution or the continuance of forced labor, prosecutors may take into consideration various individual circumstances to file applications for suspensions and the courts, guided by the fundamental principle of protecting human rights, shall make appropriate, necessary, and rational judgments. As a result, Article 3, Paragraph 3, of the Act prescribing that the persons who commit the crimes mentioned in Paragraph 1, after serving their sentences or being pardoned, shall reenter the workforce for a probationary period of three years, under Paragraph 1, and for a probationary period of five years, under Paragraph 2 does not violate the protection of physical freedom guaranteed by Article 8 or contravene the principle of proportionality (Verhältnismäßigkeitsprinzip) provided in Article 23 of the Constitution.
      
    • *Translated by Dr. Wen-Chen Chang.
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