For victims acquitted by final adjudication, in the event their detention is based on Article 101, Paragraph 1 of the Criminal Procedure Code or Article 102, Paragraph 1 of the Military Justice Act because of intentional or reckless conduct on their part, no damage award is available in accordance with Article 2, Section 3 of the Act of Compensation for Wrongful Detentions and Executions. Such across-the-board denial does not take into consideration whether the victim’s conduct that caused the detention was to commit the crime or was to obstruct or mislead the investigation or the trial, nor consider the degree of culpability from the act that caused the detention and the losses resulted from the detention of the victim.  Given that it is not a necessity to avoid inappropriate or abusive indemnification, and is not in compliance with the legislative meaning and purpose of the Constitution on the protection of people’s physical freedom and right of equal protection by which statutory indemnification is available under the Act of Compensation for Wrongful Detentions and Executions for an individual who has endured special sacrifices more than ordinary degree while the public interest through the exercise of the state’s penal authority was realized, it contradicts the principle of proportionality under Article 23 of the Constitution and shall become invalid no later than two years since the issuance of this Interpretation .

    This Yuan has repeatedly issued Interpretations regarding the fact that the state shall provide indemnification in accordance with the law for the people’s property rights,  protected under Article 15 of the Constitution, that have been specially sacrificed because of the need of the public interest (see J.Y. Interpretation Nos. 400, 425, 516, and 652).  This Yuan has also repeatedly issued Interpretations regarding the fact that the people’s right of physical freedom protected under Article 8 of the Constitution is the prerequisite [basis] for the exercise of other freedoms and rights protected under the Constitution, and is deemed to be a critical fundamental human right that requires special protection (see J.Y. Interpretation Nos. 384 and 588). Thus for any individual whose specific physical freedom subject to legitimate restrictions by the public authority and for public interest, such as detention, custody, or constrain, but under the special circumstances has exceeded the degree that should be endured by people under ordinary condition, and constitute special personal sacrifice, there shall be the right to petition for reasonable indemnification in accordance with the law so as to comply with the meaning and purpose of the Constitution on the protection of people’s physical freedom and right of equal protection.

    Article 1, Paragraph 1 of the Act of Compensation for Wrongful Detentions and Executions stipulates: “For cases filed and received under the Criminal Procedure Code, Military Justice Act, Juvenile Proceeding Act, or Gangster Prevention Act, the victim may petition for state compensation if one of the following conditions is met: (1) that he/she has been detained before the final non-prosecutorial disposition or acquittal; (2) that he/she has been detained, placed under custody, served a sentence or compelled to work before the final non-prosecutorial disposition, acquittal, or cancellation of compulsory work in a retrial or an extraordinary appeal proceeding; (3) that he/she has been placed under custody before the final dismissal of the case or protective disposition; (4) that he/she has placed under custody or served the juvenile correction program before the final dismissal of protective disposition in a retrial proceeding; (5) that he/she has been confined before the final dismissal of correction disposition; or (6) that he/she has been confined or subjected to correction program before the final dismissal of correction disposition in a retrial proceeding.”  The state compensation stipulated under this provision is not premised on the intentional or negligent unlawful infringing conduct on the part of the public official in the capacity of carrying out public authority.. Thus, as a matter of form, the Act of Compensation for Wrongful Detentions and Executions is the special statute of the State Compensation Act, and the state compensation provided in this provision is in fact a statutory financial compensation to indemnify specific individual whose freedoms and rights protected under the Constitution endured more than ordinary degree of restrictions that constitute special sacrifices while the state, in realizing its penal authority or exercising the public interest through education or correction, put that specific individual under detention, custody, confinement, sentence serving, or corrective measures (the compensation in this provision is hereafter referred to as indemnification).

    When a statute provides indemnification to individuals whose freedoms and rights endure special sacrifices that exceeded the ordinary degree  because of public interests, for the sake of avoiding inappropriate or abusive indemnification, such indemnification right may be excluded or reduced under different circumstances if the victim is culpable for the creation or expansion of damages.  Yet it has to be necessary to achieve the statutory purpose so that there is no violation of the principle of proportionality under Article 23 of the Constitution.  Article 2, Section 3 of the Act of Compensation for Wrongful Detentions and Executions (hereinafter the disputed provision), on the part that prohibits those who are detained because of intentional or reckless conduct from seeking indemnification, as far as  detention under Article 101, Paragraph 1 of the Criminal Procedure Code or Article 102, Paragraph 1 of the Military Justice Act is concerned, it does not take into consideration whether the victim’s conduct that caused the detention was to commit the crime or was to obstruct or mislead the investigation or the trial (such as escape, tampering with a witness, destruction of evidence or false confession, among other things), nor consider the degree of culpability from the act that caused the detention and the losses resulted from the detention of the victim.  Given that it is not a necessity to avoid inappropriate or abusive indemnification, and is not in compliance with the legislative meaning and purpose of the Constitution on the protection of people’s physical freedom and right of equal protection by which statutory indemnification is available under the Act of Compensation for Wrongful Detentions and Executions for an individual who has endured special sacrifices more than ordinary degree while the public interest through the exercise of the state’s penal authority was realized, it contradicts the principle of proportionality under Article 23 of the Constitution. The relevant government agencies should conduct a thorough review and provide proper revisions within two years since the issuance of this Interpretation, and based on the meaning and purpose of this Interpretation, on whether the right to indemnification shall be restricted, whether such restriction shall be across-the-board exclusion or partial reduction, among other things, while taking into consideration circumstances such as the victim’s conduct that caused the detention, the degree of culpability and the resulted damages, in association with the relevant provisions of the Act of Compensation for Wrongful Detentions and Executions. The disputed provision shall become invalid if no amendment is made within this period.

Translated by Professor Dr. Ming-woei Chang