This Court has repeatedly issued interpretations to the effect that a final and conclusive judgment should be deemed as an order and thus subjected to judicial review if any precedent is cited and invoked in reaching the judgment. (see J.Y. Interpretations Nos. 154, 271, 374, and 569) The petition at issue concerns a final and conclusive criminal judgment, namely, Supreme Court Criminal Judgment 89-Tai-Shang-2196 (2000). Though the judgment did not formally specify the reference numbers of the aforesaid five interpretations, it did describe in the reasoning that the criminal facts regarding the Petitioner were determined and sustained by the judgment rendered by the court of the second instance (Taiwan High Court Criminal Judgment 88-Shang-Keng-Wu-145 (1999)). Such facts were all established by the confessions given by the co-defendants of the Petitioner at the time of interrogations conducted by the police and prosecution, as well as parts of the confessions given at the appellate trial; that such confessions were consistent with the circumstances surrounding the kidnapping and ransom and stolen car as alleged by the parents of the victim to the offense of kidnapping for ransom and the victim to the offense of theft; that other witnesses also testified unambiguously as to the course of the crime committed by the Petitioner and the co-defendants; that the judgment was also based on additional material evidence and documentary evidence attached to the case file; and that the court of second instance, in addition to hearing the foregoing confessions of the co-defendants, had also done everything in its power to investigate any other essential evidence related to the offenses allegedly committed by the Petitioner. The foregoing, in our opinion, is in line with the five precedents cited in the petition at issue both in form and in substance, which apparently signifies that the aforesaid judgment has cited and invoked the precedents at issue as the basis for its decision. Since the Petitioner has considered such precedents to be unconstitutional, they are unquestionably subject to review by this Court. Therefore, under Article 5, Paragraph 1, Subparagraph 2 of the Constitutional Court Procedure Act, this petition should be accepted (see J.Y. Interpretation No. 399).
Article 16 of the Constitution provides for the people’s right to judicial remedy. As far as a criminal defendant is concerned, he should enjoy the right to adequately defend himself under a confrontational system, according to adversarial rules, to ensure a fair trial (see J.Y. Interpretations Nos. 396 and 482). The right of an accused to examine a witness is a corollary of such right. As early as July 28, 1928, Article 286 of the then-effective Code of Criminal Procedure, as well as the subsequent amendment to Article 273 of the same Code promulgated on January 1, 1935, already provided, “Upon the conclusion of questioning of a witness or an expert witness by the presiding judge, the party concerned or his defense attorney may file a motion with the court to have the presiding judge examine such witness or expert witness or to examine the same directly. (Paragraph 1) If a witness or an expert witness is called to testify by means of motion, he shall first be examined by the party calling him or the party’s defense attorney, then cross-examined by the counter-party or the counter-party’s defense attorney, and then re-examined by the party calling him or the party’s defense attorney; provided that the re-direct examination shall be limited in scope to the matters revealed during the cross-examination. (Paragraph 2)” Subsequently, Article 166 of the Code of Criminal Procedure as amended and promulgated on January 28, 1967, preserved the same provision. And, more detailed provisions were added to the said Code when it was amended on February 6, 2003, namely, Article 166 through Article 167-7 thereof. Such right of a criminal defendant is universally provided — whether in a civil law country or a common law jurisdiction, and whether an adversarial system or an inquisitorial setting is adopted in administering a state’s criminal justice system. (see, e.g., 6th Amendment to the United States Constitution, Article 37, Paragraph 2 of the Japanese Constitution, Article 304 of the Code of Criminal Procedure of Japan, and Article 239 of the Code of Criminal Procedure of Germany) Article 6, Paragraph 3, Subparagraph 4 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, effective on November 4, 1950, and Article 14, Paragraph 3, Subparagraph 5 of the International Covenant on Civil and Political Rights, passed by the United Nations on December 16, 1966, and enter into force on March 23, 1976, both provide, “everyone charged with a crime shall be entitled to the following minimum guarantees: … to examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him …” Apparently, it is the universal and fundamental right of an accused to examine a witness. Under the Constitution of this nation, such right is not only covered by the fundamental right to judicial remedy as safeguarded by Article 16 of the Constitution, but is a right concerning the people’s body and freedom, which is also protected by the due process of law concept embodied in Article 8, Paragraph 1 of the Constitution, providing, among other matters, that “no person shall be tried and punished otherwise than by a court of law in accordance with the procedure prescribed by law.” (see J.Y. Interpretation No. 384).
Under the principle of due process of law, the facts related to a criminal should be determined pursuant to evidence during a criminal trial. (see J.Y. Interpretation No. 384, Article 282 of the Code of Criminal Procedure promulgated on July 28, 1928, Article 268 of the said Code as amended and promulgated on January 1, 1935, the first half of Article 154 of the said Code as amended and promulgated on January 28, 1967, and the first half of Paragraph 2 of the identical Article of the said Code as amended and promulgated on February 6, 2003). The doctrine of strict proof is the core of the principle of judgment per evidence. In other words, any evidence that is inadmissible or that has not been lawfully investigated shall not form the basis of a decision as to criminal facts. (see Article 155, Paragraph 2 of the Code of Criminal Procedure, as amended and promulgated on January 28, 1967, and amended again on February 6, 2003). Admissibility refers to the capacity of any evidence that may be admitted in a court of law for purposes of investigation and determination of criminal facts. Such capacity will not be achieved unless the evidence and the facts to be proved are naturally related to each other, in conformity with statutory formalities and not subject to legal prohibitions or exclusions. For instance, a witness should sign an affidavit to tell the truth, or his testimony will not be admitted into evidence. (see ex-Grand Review Yuan Precedent Fei-10 (1915); Supreme Court Criminal Precedent 34-Shang-824 (1945); and Article 158-3 of the existing Code of Criminal Procedure). In addition, the confession of an accused shall not be induced by unjust means, or it will not be admissible in court. (see Article 280, Paragraph 1 of the Code of Criminal Procedure promulgated on July 28, 1928; Article 270, Paragraph 1 of the said Code as amended and promulgated on January 1, 1935; and Article 156, Paragraph 1 of the said Code as amended and promulgated on January 28, 1967). A lawful investigation should denote the procedure implemented by a trial court in accordance with the principles prescribed by the Code of Criminal Procedure and other applicable laws (such as direct hearing, oral argument, open trial), as well as various means of investigation prescribed by law. Moreover, if a witness is under investigation, his presence should be made available pursuant to law, and his signing an affidavit to tell the truth and making truthful statements should be ordered after informing him of his obligation to sign an affidavit to tell the truth and of the punishment for perjury. The witness should then be examined by the parties concerned or be questioned by the presiding judge. Upon conclusion of arguments between the parties, defense attorneys and other relevant individuals regarding the examination and/or questioning, the court should come up with its own belief as to the evidence. [Refer to the provisions contained in Part I, Chapter 13 (Witnesses) and Part II, Chapter 1, Section 3 (Trial of the First Instance) of the Code of Criminal Procedure prior to its amendment and promulgation on January 28, 1967; and Part I, Chapter 12, Section 1 (Evidence－General), Section 2 (Witnesses) and Part II, Chapter 1, Section 3 (Trial of the First Instance) of the said Code subsequent to said amendment and promulgation].
In light of the above, a defendant’s right to examine a witness is not only a right to defend himself in a legal action brought against him, but also a right guaranteed under constitutional due process of law. Such institutional safeguard for a constitutional right is conducive to the fulfillment of a fair trial (see J.Y. Interpretations Nos. 442, 482 and 512) and the discovery of truth, so as to achieve the purposes of criminal procedure. In order to ensure the defendant’s right to examine any witness during a trial, a witness (or any other person eligible to testify) should appear in court and sign an affidavit to tell the truth in accordance with statutory procedure as to witnesses. And, it is not until the witness is confronted and examined by the defendant that the witness’s statement may be used as a basis upon which decisions as to the defendant’s criminal culpabiltiy can be made. As for the statements of anyone other than an accused (including a witness or co-defendant) made outside the court, if admissible under any special provision of law (see Article 159, Paragraph 1 of the Code of Criminal Procedure), the examining procedure should still be carried out during the trial unless examination is not feasible under the circumstances. In order both to discover the truth and protect human rights, proper criminal procedure requires that, unless otherwise provided by law, anyone be under an obligation to testify in a trial against another. A criminal co-defendant situation exists only for reasons like economy of lawsuits, which result either from the merger or addition of complaints filed by a public or private prosecutor, or from the merger of trials initiated by a court of law. The respective defendants and the facts related to their respective crimes, however, still exist independently of each other. Therefore, a co-defendant is, in essence, a third-party witness in the case concerning another co-defendant. Whether a co-defendant’s in-court or out-of-court statement may be admitted into evidence against another co-defendant should be determined by applying the aforesaid principle. Thus, the merger of cases should not affect the aforesaid constitutional rights of such other co-defendant. Article 106, Subparagraph 3 of the Code of Criminal Procedure promulgated on July 28, 1928, Article 173, Paragraph 1, Subparagraph 3 of the said Code as amended and promulgated on January 1, 1935, and December 16, 1945, and Article 186, Subparagraph 3 of the said Code as amended and promulgated on January 28, 1967, provided, “A witness shall not be ordered to sign an affidavit to tell the truth if he is a co-defendant or suspect in the case at issue.” The legislative intent thereof is nothing other than to prevent a witness who is a co-defendant or suspect in a case from incriminating himself or involving himself with the offense of perjury while testifying at the trial for the accused after signing an affidavit to tell the truth. This provision, however, was deleted on February 6, 2003, because the admission of a statement given by a person without signing an affidavit to tell the truth against an accused is not only detrimental to the discovery of truth, but also damaging to the effective exercise of the right of an accused to examine a witness. Nevertheless, prior to the deletion of the said provision, a court of law should still investigate such a co-defendant-witness in accordance with the statutory procedures as to witnesses for the purposes of discovering the truth and ensuring the right of an accused to examine the witness. In addition, a co-defendant is also an accused as far as his own case is concerned, and therefore should enjoy the same constitutional rights afforded to an ordinary criminal defendant, including, e.g., the right to make voluntary statements. If and when an accused and a co-defendant have conflicting interests while exercising their respective rights, special efforts should be made to ensure that the rights of both sides are attended to without willfully protecting one party’s right at the expense of the other. Although an accused is entitled to examine a co-defendant eligible to testify in his own case, such right does no affect the co-defendant’s exercise of his right to make voluntary statements. Thus, if the co-defendant fears that his testimony may tend to result in criminal prosecution or punishment against himself, he is entitled to refuse to give any statement. The Code of Criminal Procedure has given a witness (including a co-defendant eligible to testify as a witness) the right to refuse to testify for fear of prosecution or punishment after giving any statement (see Article 100 of the Code of Criminal Procedure promulgated on July 28, 1928, Article 168 of the said Code as amended and promulgated on January 1, 1935, and Article 181 of the said Code as amended and promulgated on January 28, 1967), which is an effective institutional design to ensure the rights and interests of an accused and a witness (including a co-defendant eligible to testify as a witness). Furthermore, although the Code of Criminal Procedure has provided that, where there are multiple defendants, one defendant may be ordered to confront another ex officio or upon request made by the accused (see Article 61 of the Code of Criminal Procedure promulgated on July 28, 1928, and Article 97 of the said Code as amended and promulgated on January 1, 1935, and January 28, 1967), such confrontation, however, merely requires that several co-defendants, in the presence of each other, take turns raising questions as to suspicious points or questioning each other for answers when they have different or contradictory stories regarding the same or related facts. No affidavits to tell the truth are signed for such statements, thus making such confrontation less effective than examination, and therefore making it impossible to replace the right to examine. If one co-defendant’s statement is adopted and admitted into evidence against another co-defendant simply because the co-defendants concerned have confronted each other, it would not only confuse the nature of the right to examine and the right to confront, but also jeopardize both the right of an accused to adequately defend himself in a legal action brought against him and the fulfillment of the court’s discovery of the truth.
It was held in Supreme Court Criminal Precedent 31-Shang-2423 (1942) that a statement made by a co-defendant against himself may be admitted into evidence supporting criminal facts related to another co-defendant, but under Article 270, Paragraph 2 of the Code of Criminal Procedure, other necessary evidence must also be investigated to determine whether such statement is in line with the facts, and that such statement alone may not be used as the sole basis for determining the guilt of another co-defendant. It has also been held in Supreme Court Criminal Precedent 46-Tai-Shang-419 (1957) that a statement made by a co-defendant against himself may be admitted into evidence supporting criminal facts related to another co-defendant; provided that such statement should not be used as the basis of determining the guilt of another co-defendant unless it is flawless and consistent with the facts discovered upon investigation into other relevant evidence. The aforesaid precedents held that a statement made by a co-defendant against himself may be admitted into evidence supporting the crime (determination of facts) related to another co-defendant, but also held that, according to Article 270, Paragraph 2 of the then-effective Code of Criminal Procedure (i.e., Article 156, Paragraph 2 of the said Code as amended and promulgated in 1967), other necessary evidence should still be investigated. Such holding clearly has treated the statement made by a co-defendant against himself as a confession made by an accused (namely, the so-called “another co-defendant” referred to in the aforesaid precedents). It has admitted a co-defendant’s statement into evidence against another co-defendant simply because of his status as a co-defendant. As far as the case of another co-defendant is concerned, such holding not only has failed to differentiate an in-court statement from an out-of-court statement, but has also denied a co-defendant the standing as a witness in the trial of another co-defendant, thus excluding the statutory investigative procedure pursuant to which a co-defendant may testify as a witness. Hence, it is in breach of Article 273 of the Code of Criminal Procedure as amended and promulgated on January 1, 1935, and has unjustly deprived such other co-defendant of the right to examine the co-defendant who should have had standing as a witness. We, therefore, are of the opinion that such holding is inconsistent with the constitutional intent first described above. Those portions of the opinions as offered in the aforesaid two precedents, as well as in other precedents with the same holding (e.g., Supreme Court Criminal Precedent 20-Shang-1875 (1931); Supreme Court Criminal Precedent 38-Sui-Te-Fu-29 (1949); Supreme Court Criminal Precedent 47-Tai-Shang-1578 (1958), which are not in line with the intent described above, should no longer be cited and applied.
As already elaborated upon earlier, under the constitutional principle of due process of law, the principles of judgment per evidence and voluntary confession were adopted as to the determination of criminal facts in a criminal trial. (see J.Y. Interpretation No. 384). Accordingly, the Code of Criminal Procedure has adopted the doctrine of strict proof, under which no defendant shall be pronounced guilty until a court of law has legally investigated admissible evidence and achieved firm belief that such evidence is sufficient to prove the defendant’s guilt. (see Articles 282 and 315 of the Code of Criminal Procedure promulgated on July 28, 1928; Articles 268 and 291 of the said Code as amended and promulgated on January 1, 1935; Articles 154, 155, Paragraph 2 and Article 299, Paragraph 1 of the said Code as amended and promulgated on January 28, 1967; and Articles 154, Paragraph 2, 155, Paragraph 2 and Article 299, Paragraph 1 of the said Code now in force.) Although a voluntary confession made by an accused may also be admitted into evidence, the said Code, nevertheless, provides that the confession of an accused shall not be used as the sole basis of conviction, and that other necessary evidence shall still be investigated to see if the confession is consistent with the facts, so as not to give undue emphasis to confession, thus negatively impacting the discovery of truth and protection of human rights. (see Article 156, Paragraph 2 of the Code of Criminal Procedure as amended and promulgated on January 28, 1967; both Article 280, Paragraph 2 of the said Code as amended and promulgated on July 28, 1928, and Article 270, Paragraph 2 of the said Code as amended and promulgated on January 1, 1935, provided, “In spite of confession made by an accused, other necessary evidence shall still be investigated to determine if the confession is consistent with the facts.”) In light of the foregoing doctrine of strict proof and restrictions on the probative value of confessions, such “other necessary evidence” must also be admissible evidence that should be legally investigated. Besides, as far as the probative value is concerned, the weight of confessions is not necessarily stronger than that of such other necessary evidence, which should not be considered only secondary or supplemental to confessions and hence flimsier. Instead, the confessions and other necessary evidence should be mutually probative of each other, leading to a firm belief after thorough judgment that the confessed crime is confirmed by such other necessary evidence. Supreme Court Criminal Precedent 30-Shang-3038 (1941), Supreme Court Criminal Precedent 70-Tai-Shang-5638 (1981) and Supreme Court Criminal Precedent 74-Tai-Fu-103 (1985) have held, respectively, that: “The term ‘other necessary evidence’ should, as a matter of course, refer to such evidence as is relevant to the criminal facts. If the confession of an accused should be abruptly overturned merely because of some pointless issues, the judgment at issue could then hardly be considered to stand on legitimate grounds.” “Even though the mere confession of an accused may not be used as the sole basis of conviction, and corroborative evidence is required to confirm such confession’s consistency with the facts, it is not necessary that the ‘corroborative evidence’ tend to prove each and every fact of the requisite elements of the crime. It would be sufficient if such corroborative evidence would support the non-fabrication of the confessed crime, and thus guarantee the truth of the confession. Additionally, the ‘corroborative evidence’ is admissible as long as it is sufficient to determine the facts related to the crime upon a thorough judgment and comparison with the confession, even if it may not directly prove that the accused carried out the crime.” “Article 156, Paragraph 2 provides, ‘In spite of a confession made by an accused, other necessary evidence shall still be investigated to determine if the confession is consistent with the facts.’ The legislative intent thereof is to endorse the truth of a confession with corroborative evidence. In other words, the existence of corroborative evidence is used to limit the probative value of confessions. And, the term ‘corroborative evidence’ should refer to any evidence, other than confessions, that is sufficient to prove, to some extent, that the confessed crime has indeed been committed. Though it is not necessary that such corroborative evidence tends to support the facts in their entirety, the corroborative evidence and confession must be mutually probative of each other, resulting in a firm belief that the confessed crime has been committed.” The foregoing precedents were intended to elaborate upon the meaning, nature, scope and degree of proof for such “other necessary evidence,” as well as its relationship with confessions. Furthermore, these precedents also stressed that such evidence should corroborate the truth of confessions so that the confessed crime can be established beyond reasonable doubt. We, therefore, are of the opinion that these precedents, as well as other precedents with the same meaning (see, e.g., Supreme Court Criminal Precedent 18-Shang-1087 (1929); Supreme Court Criminal Precedent 29-Shang-1648 (1940); Supreme Court Criminal Precedent 46-Tai-Shang-170 (1957) and Supreme Court Criminal Precedent 46-Tai-Shang-809 (1941)), do not run afoul of the constitutional intent first described above.
The Directions for the Ministry of Justice in Examining the Execution of Death Penalty Cases are not a law or regulation applied in reaching the final and conclusive judgment at issue. To the extent that the Petitioner’s petition concerns the said Directions, we find it inconsistent with Article 5, Paragraph 1, Subparagraph 2 of the Constitutional Court Procedure Act. Therefore, under Article 5, Paragraph 3 of the said Act, it shall be dismissed accordingly.
______________________
* Translation by Vincent C. KUAN
**Also available in Leading Cases of the Taiwan Constitutional Court, Vol. II (2019).