I. The Stipulations under Articles 10 and 43 of the Case Assignment Directions of Criminal Divisions of the Taiwan Taipei District Court
Article 16 of the Constitution guarantees people’s right to institute legal proceedings. The core content of this constitution guarantee is to enable the people to seek for a fair trail from the courts in accordance with due process of law in order to redress their grievances when their rights or interests are infringed. To ensure a fair trail, Article 80 of the Constitution also mandates that judges shall be above partisanship, shall, in accordance with law, hold trials independently, and shall be free from any interference.
The court’s case assignment procedure through which a judge is assigned on a given case is closely related to the realization of judicial fairness and trial independence. In order to preserve the judge’s fair and independent adjudication and to enhance the operational efficiency of judicial power, as long as judges are objectively, fairly, and reasonably assigned pursuant to a predefined, abstract and generally applicable method, and when such a method is fair enough to preclude arbitrary assignments and other inappropriate interferences, the court’s case assignment procedure is not in contravention of the constitutional guarantee of people’s right to institute legal proceedings. A judge carries a duty to conduct the assigned case in a fair, legitimate, and speedy manner. Given that different courts have difference in organizational scale, case loads, and the number of judges, provided that the case assignment procedure relates a judge’s duty of independent adjudication and fair burden of workloads, without contravening to the statutes as well as regulations and administrative rules promulgated by the Judicial Yuan (see Articles 78 and 79 of the Court Organic Act), the courts may, to the reasonable and necessary extent, naturally promulgate supplemental rules on matters concerning case assignment taking into account their respective practical needs to prevent arbitrary, capricious or other inappropriate interferences and to enhance the operational efficiency of judicial power.
Among major rule of law countries around the world, the constitutional law of the Federal Republic of Germany is noteworthy. Article 101, Paragraph 1 of the Basic Law for the Federal Republic of Germany (Grundgesetz für die Bundesrepublik Deutschland) expressly provides that, “Extraordinary courts (Ausnahmegerichte) shall not be allowed, and no one may be removed from the jurisdiction of his lawful judge.” Academically, this is the so called principle of a lawful designation of judges (gesetzlicher Richter) under the constitutional law. It entails the constitutional mandates that cases shall be assigned by pre-defined abstract and general guidelines, and are not subject to the arbitrary control of any particular judge so as to interfere the adjudication. However, this principle does not preclude the assignment of cases by regulations or rules promulgated by a legally organized judicial panel (Präsidium, including the Chief Judge of the court and judges’ representatives). (See Article 21-5, Paragraph 1 of the German Organic Law of Courts.) While other rule of law countries, such as the United Kingdom, the United States of America, France, the Nederland and Denmark, whether with a written or unwritten constitution, contain no provision pertinent to the principle of lawful designation of judges. Nevertheless, without a doubt the principle that case assignment of the courts shall not be subject to arbitrary manipulation shall be the constitution principle adhered to by a rule of law country. As stated above, based upon the constitutional guarantees of people’s right to institute legal proceedings and the constitutional mandate of judges’ lawful, independent adjudications, our Constitution also embraces the same meaning and purpose.
Once a case is assigned to a certain judge, it is unavoidable in courts’ trial practices that the case may be reassigned to or be integrated with another case and transferred to a different judge due to relocation, promotion, resignation, retirement, or other causes of the originally designated judge. Article 7 of the Code of Criminal Procedure stipulates that, “Cases are deemed to be correlated if one of the following circumstances exists: (i) one person commits several offenses; (ii) several persons jointly commit one or several offenses; (iii) several persons separately commit offenses at the same time and at the same place; or (iv) the commission of concealment of offenders, destruction of evidence, perjury, or receipt of stolen property related to the primary offense.” Article 6 of the Code of Criminal Procedure stipulates that, “In the event that several cases are correlated and are subject to the jurisdiction of several courts at the same level, they may be integrated and subject to the jurisdiction of one court. (Paragraph 1) Under the circumstance in the preceding paragraph, if several cases are already pending in several courts, by consent and ruling of each respective courts, each case may be transferred to one of the courts to be integrated and tried together. If there should be disagreements, it shall be decided by the ruling of the court of common appellate level. (Paragraph 2) For correlated cases subject to the jurisdictions of several courts at different levels, they may be integrated and subject to the jurisdiction of the highest one among those courts. For cases already pending at lower courts, the court at the higher level may, with the issuance of a ruling, orders the integration and has it transferred to that court for review, provided, however, that this provision does not apply to the cases specified in Article 7, Item 3. (Paragraph 3)” The underpinning rationale of Article 6 of the Code of Criminal Procedure which allows an integration of correlated cases from different jurisdictions into one is to avoid the waste of repetitive investigations and discoveries of evidence as well as the diversity and conflicts of court opinions so as to meet the demand of litigation economy and consistency of judgments. Since the integrated litigation still applies the statutes and rules, and since the defendant may also file a motion for a judge’s recusal on certain statutory grounds, such integration does not infringe the defendants’ right to institute legal proceedings. Although the relevant statutes and regulations are silent with respect to whether and how to integrate correlated criminal cases pending before different judges of the same court may be integrated, since these questions fall under the power of allocating internal affairs of the courts, and is deemed to be the disposition of correlated cases stipulated in Article 6 of the Code of Criminal Procedure thus necessary for integrated review, by applying the above stated regulations, mutatis mutantis, with pre-defined general and abstract rules. The integration and reassignment of correlated cases from several judges to one among them does not contravene the meaning and purpose of the Constitution.
Article 79, Paragraph 1, of the Court Organic Act stipulates that, “Prior to the end of each fiscal year, Chief Judges, Division Chef Judges, and judges of courts and branch courts at each respective level shall respectively convene conferences to pre-assign the allocation of judicial affairs and acting sequence for the next fiscal year in accordance with this Act, the Regulation for Departmental Affairs, and other laws and regulations.” The Regulation for Departmental Affairs of the Courts at each level and their branches is promulgated by the Judicial Yuan under the statutory authorization of Article 78 of the Court Organic Act. The Case Assignment Directions of Criminal Divisions of the Taiwan Taipei District Court (hereinafter referred to as the DIRECTIONS AT ISSUE) were promulgated by the resolution of the meeting of divisional affairs of the court’s criminal divisions pursuant to the Court Organic Act and under the authorization of the meeting of judges of Taiwan Taipei District Court. The DIRECTIONS AT ISSUE are generally applicable, abstract and supplementary regulation to regulate in advance the affairs of assignments, integrations, deductions, reassignments and suspensions of assignments of criminal cases before the court. Article 10 of the DIRECTIONS AT ISSUE stipulates that, “For correlated cases under Article 7 of the Code of Criminal Procedure necessary for integrated review but have already been assigned to several judges, the respective judges shall consult to one another and jointly submit an integration request for the approval of the Chief Judge of the court. When there is a difficulty to reach an agreement of integration, the presiding judge of the case brought most latterly may submit a signed, written request to the Reviewing Unit of the court for resolution.” Although the term “necessary for integrated review” is an uncertain legal concept in nature, its meanings is not difficult to understand. Whether or not there is a need of integration shall be determined by showing that there is a need to void the waste of labors and costs in repeated investigations of facts and evidence, and to avoid the difference and conflicts among judgments of the court. Those presiding judges may voluntarily negotiate with one another and decide on whether there is a need of integration and enter into an agreement of integration. The Chief Judge of the court, who is also a judge (See Article 13 of the Court Organic Act.), may review the request of the agreement of integration and may decide on whether those criminal cases are related, whether there is a need of integration, and whether the agreement of integration should be approved. If the Chief Judge approves the agreement of integration, those criminal cases will then be integrated in accordance with the agreement; if the Chief Judge disapproves the agreement of integration, those criminal cases will remain in the hands of those assigned judges. Therefore, this design of case assignment and case integration will not influence the fairness of trials and the judgment of a judge in a given criminal case and will not give rise to the possibility of arbitrary manipulation of the presiding judge of any given criminal case or the possibility of the use of any inappropriate way to unjustly interfere with process of case assignments. Besides, Article 43 of the DIRECTIONS AT ISSUE stipulates that, “The Reviewing Unit under the Directions shall consist of all Division Chief Judges of all criminal divisions and shall be presided by the Division Chief Judge of the First Criminal Division. (Paragraph 1) When any Division Chief Judge (including her delegate) of any criminal division fails to attend the meeting of the Reviewing Unit, she shall appoint a judge of the same criminal division to attend. However, if the judge appointed has a conflict of interests, she shall recuse herself. (Paragraph 2) The resolution of the Reviewing Unit shall be made by the majority vote with the quorum of majority members. When there is a deadlock, the chairman of the meeting may cast her vote to break the deadlock. (Paragraph 3)” The Reviewing Unit is formed under the authorization of all judges of all criminal divisions and consists of Division Chief Judges, who are also judges (See Article 15 of the Court Organic Act.), and exercise the power on behalf of all judges of all criminal divisions. When those presiding judges of related criminal cases fail to reach an agreement of integration, only the presiding judge of the case brought most latterly has the authority to file pro se a signed, written request to the Reviewing Unit for resolution. The Reviewing Unit has no power whatsoever on its own to order case integration and to assign the case integrated to any given judge; the resolution of the Reviewing Unit is made by a majority vote. Both of these procedural limitations will be able to prevent from arbitrary alternation of the presiding judge in any given criminal case. Thus, taken the latter paragraph of Article 10 and Article 43 of the DIRECTIONS AT ISSUE together, it will be difficult to conclude that the procedure of case assignment and case integration runs afoul of the requirement of legal certainty, and hence the procedure is not in contravention of the constitutional mandates for fair trials and judicial independence.
In sum, Articles 10 and 43 of the DIRECTIONS AT ISSUE were promulgated under the statutory authorization of Articles 78 and 79, Paragraph 1 of the Court Organic Act and under the authorization of the meeting of judges of the Taiwan Taipei District Court. The DIRECTIONS AT ISSUE are reasonable and necessary supplementary regulations to lay out a procedure promulgated by the meeting of divisional affairs of all criminal divisions of the court to stipulate in advance a generally applicable, abstract rule on whether or not there is a need of integration and how to and whether to integrate related criminal cases. Accordingly, the DIRECTIONS AT ISSUE are not in contravention of the constitutional guarantee of people’s right to institute legal proceedings under Article 16 of the Constitution and of the constitutional mandate that judges shall, in accordance with law, hold trials independently and shall be free from any interference under Article 80 of the Constitution.
II. The Stipulations under Article 101, Paragraph 1, Subparagraphs 1-3 of the Code of Criminal Procedure
The first half of Article 8, Paragraph 1 of the Constitution states that, “Personal freedom shall be guaranteed to the people.” As a means of evidence preservation in the criminal proceeding, the detention of defendants is exercised to ensure the smooth process of the criminal trials so that the state’s panel authority can be realized. However, the nature of a detention is to limit the personal physical freedom of a defendant in a criminal case to a designated place and is a mandatory action which interferes the personal freedom of a criminal defendant to the largest extent and isolates her from her family, the society and her professional life. The detention of a criminal defendant not only will create a serious psychological impact upon her, but will largely affect her rights of personality such as reputation, credit, and so forth as well. Accordingly, the detention of a criminal defendant shall be as the last resort and shall not be taken lightly. (See J.Y. Interpretations No. 392, 653 and 654.) Thus, as one of the statutory elements of the detention of a criminal defendant, it is required by law that the detention of a criminal defendant shall be ordered only when the detention is consistent with the major public interest of maintaining the effective exercise of the state’s power of criminal justice and is consistent with the principle of proportionality.
Article 101, Paragraph 1, of the Code of Criminal Procedure prescribes that, “A defendant may be detained after she has been examined by a judge and the judge deem her as a major suspect of a criminal offense, and due to the existence of one of the following circumstances it is apparent that there will be difficulties in the prosecution, the trial process, or the execution of the final judgment unless the detention of the defendant is ordered: (i) She has absconded, or there are facts sufficient to justify an apprehension that she may abscond; (ii) There are facts sufficient to justify an apprehension that she may destroy, forge, or alter evidence, or conspire with accomplices or witnesses; or (iii) She has committed an offense punishable with the death penalty, life imprisonment, or a minimum punishment of imprisonment for no less than five years.” This provision shows that the purpose of detaining a criminal defendant shall be limited to the preservation of the criminal prosecution, the trial process and the execution of the final judgment. Therefore, even if the defendant may commit the felonies as indicted under Article 101, Paragraph 1, Subparagraph 3 of the Code of Criminal Procedure, when there is no evidence indicating that there is a risk of obvious difficulties with regard to the prosecution, the trial process, or the execution of the final judgment owing to the defendant’s escape or destruction of evidence, the necessary element of a statutory detention is not met. Namely, the order of a detention issued by the court solely because of the defendant’s commission of felonies will deviate from the nature of the statutory detention which is a part of the evidence preventive procedure and will run afoul of the principle of proportionality as it is against the principle of the equality of weapon and limits the full exercise of the right of defense of the defendant. Moreover, according to the principle of the presumption of innocence, it is prohibited not only to execute criminal punishments upon a defendant who is not proven guilty in a court of law, but also to impose similar criminal punishments upon a defendant solely on mere suspicion of crime commitment. If an order of a detention of a defendant issued solely based on the suspicion that she is a major suspect, the detention will constitute an execution of criminal punishments prior to a trial and will likely be deemed in contravention of the principle of the presumption of innocence. Hence, if Article 101, Paragraph 1, Subparagraph 3 of the Code of Criminal Procedure prescribed the “the crime committed carries the capital punishment, life imprisonment, or a basic penalty of no less than five-year imprisonment” as the only element of a statutory detention regardless of whether the defendant is a major suspect, of whether she is likely to escape or to destroy evidence and therefore shall be detained in order to prevent from happening, or of whether she falls into the category of the statutory limitations of detentions, the statutory language would be in contravention of the principle of the presumption of innocence, the principle of the equality of weapon, and the principle of proportionality due to its undue restriction of the defendant’s right to fully exercise her right of defense.
But, a close look of the stipulations of the Code of Criminal Procedure will reveal otherwise. If we read Article 101, Paragraph 1, Subparagraph 3, and Article 101-2 of the Code of Criminal Procedure together, it is clear that the statutory detention consists of four elements which shall be met before a court can issue an order of a detention. Those four elements are: (i) the defendant is a major suspect; (ii) there is a statutory cause of detentions; (iii) there is a necessity of a detention (i.e., there is an apparent difficulty with respect to the prosecution, the trial process, or the execution of the final judgment without ordering a detention); and (iv) there is no statutory limitation of detentions which prohibit a court order of a detention under Article 101-2 of the Code of Criminal Procedure. Therefore, even if a defendant falls under the statutory cause of detentions specified by Article 101, Paragraph 1, Subparagraph 3, of the Code of Criminal Procedure, the judge shall take into account whether she is a major suspect, whether there is a necessity of a detention, and whether there is a statutory limitation of detentions which prohibit a court order of a detention. It is a misinterpretation of law to deem that a defendant may be detained so long as there is a cause of a statutory detention under Article 101, Paragraph 1, of the Code of Criminal Procedure.
Since a defendant is a major suspect of a felony which is punishable with the death penalty, life imprisonment, or a minimum punishment of imprisonment for no less than five years and since the applicable criminal punishment is severe, it is reasonable to expect that there will be an increasing likelihood of avoidance of the execution of the sentenced criminal punishments or of obstruction of the trial process as the likelihood of a trial process increases. Thus, the statutory cause of a detention under Article 101, Paragraph 1, Subparagraph 3, of the Code of Criminal Procedure was enacted with a view to ensure that the trial process will be uninterrupted and that the state’s power of imposing criminal punishments upon nationals will not be curtailed in order to preserve the significant social order and to further material public interests. The statutory purpose of Article 101, Paragraph 1, Subparagraph 3, of the Code of Criminal Procedure is legitimate. In addition, based on the constitutional guarantee of people’s personal freedom, in order to satisfy the statutory requirements, prior to ordering a detention the trial court shall has a reasonable ground to believe that the defendant is likely to escape, to destroy, forge, or alter evidence, or to conspire with accomplices or witnesses, and at the same time the court shall has a reasonable ground to believe that the less harmful measures such as a bail, a consignment to custody, and the limitation on residence are not sufficient to preserve the prosecution, the trial process, or the execution of the final judgment. When the trial court has those two reasonable grounds, an order of the detention of a defendant in fact serves as the last and necessary resort to preserve the effective implementation of state’s power of criminal justice. Accordingly, Article 101, Paragraph 1, Subparagraph 3, of the Code of Criminal Procedure does not exceed the constitutional mandate of the principle of proportionality under Article 23 of the Constitution, and is not in contravention of J.Y. Interpretation Nos. 392, 653 and 654 and the constitutional guarantees of people’s personal freedom and of people’s right to institute legal proceedings under Articles 8 and 16 of the Constitution respectively.
III. The Stipulation Which Empowers the Prosecutor to Appeal on the Trial Court’s Ruling of Ceasing the Detention of a Defendant under Article 403, Paragraph 1 of the Code of Criminal Procedure
Article 16 of the Constitution guaranteeing people’s right to institute legal proceedings is with a view to ensure people may bring forth legal actions under statutory procedural processes and to ensure people a fair trial. With respect to the courts’ jurisdictions, litigation procedures, and related elements, all of these shall be determined by the legislative branch to enact laws to regulate them reasonably after taking into account different kinds and natures of litigation, the purpose of the litigation policy and the functions of the litigation system. (See J.Y. Interpretation Nos. 442, 512 and 574.) In accordance with the above cited J.Y. Interpretations, whether or not the prosecutor may appeal on the trial court’s ruling of ceasing the detention of a defendant is an issue falling under the domain of the criminal litigation system to be regulated reasonably by the legislative branch after taking account relevant factors.
The order of a detention is a compulsory power which statutorily reserved to the judges. Article 403, Paragraph 1 of the Code of Criminal procedure prescribes that, “Unless this Code provides otherwise, a party who disagrees with the ruling of a court may appeal to the court of its direct appellate level.” Article 404 of the Code of Criminal procedure prescribes that, “Those rulings with respect to the jurisdictions or trial procedures issued by the courts prior to handing down judgments are not appealable, but a party may appeal on one of the following rulings: * * * (ii) a ruling of a detention, a bail, a consignment to custody, the limitation on residence, a search, an attachment, a return of attached materials, having the defendant examined by a hospital or other institutes, or a prohibition or an attachment issued pursuant to Article 105, Paragraphs 3 and 4 of this Code.” Article 3 of the Code of Criminal procedure prescribes that, “The term ‘party’ as used in this Code refers to a public prosecutor, a private party plaintiff (self claimant), or a defendant.” In accordance with the foregoing statutory law, a prosecutor may certainly appeal the trial court’s ruling of ceasing the detention of a defendant. When a prosecutor appeal the trial court’s ruling of ceasing the detention of a defendant, the defendant is not deprived either of the right to equally access to information during trials, or of the exercise of the right of defense; hence there is no contravention of the principle of the equality of weapon. Furthermore, the appellate court which hears the appeal shall, in accordance with law, hold trials independently, and shall be free from any interference; hence, there is no genuine issue of infringing the principle of the separation of powers. Accordingly, Article 403, Paragraph 1 of the Code of Criminal procedure, for the relevant part which empowers a prosecutor to appeal the trial court’s ruling of ceasing the detention of a defendant, is a reasonable stipulation enacted by the legislative branch after taking into account the nature of the criminal litigation system, and is not in contravention of the constitutional guarantee of people’s right to a fair trial under Article 16 of the Constitution.
IV. The Denials of the Petition for Interpretation and for Granting a Temporary Order
The Petitioner’s petition for interpretation for the part of Articles 5, 78, 79 and 81 of the Court Organic Act and Article 4, Paragraph 2 of the Regulation of Departmental Affairs of the District Court Its Regional Branches shall be denied because those laws are irrelevant to the final and conclusive ruling and are not relied by the court, and hence are not suitable for interpretation. Accordingly, pursuant to Article 5, Paragraph 1, Subparagraph 2, and Paragraph 3 of the Constitutional Interpretation Procedure Act, the petition is denied.
The Petitioner’s petition for the part of staying the trial of the Criminal Case Gin-Tzu-Chung-Su-Tze No. 1 (2008) and of re-assigning the case pursuant to the result of the case assignment decided on December 12, 2008 is hereby denied as the disputed provisions concerning case assignment has been interpreted and is no longer necessary for review. With respect to the petition to issue for a mandamus (or writ of habeas corpus) to stay the district court’s temporary disposition to detain to release the Petitioner, the Petitioner may at any time file a petition to the trial court for ceasing the detention with bail pursuant to Article 110, Paragraph 1 of the Code of Criminal Procedure; therefore, the Petitioner has no ground to claim that she is suffering an irreparable or difficultly reparable harm due to an infringement of her fundamental rights. Thus, for the reasons stated above, the petition, for relevant parts, is in contravention of our J.Y. Interpretation Nos. 585 and 599, and hence shall be denied.
Translated by Professor Chun-Jen Chen.