The protection of the people’s right to litigation under Article 16 of the Constitution means the people have the right to seek remedy in courts when their rights have been infringed (see J.Y. Interpretation No. 418), and such right to litigation cannot be deprived due to one’s social status (see J.Y. Interpretation Nos. 243, 382, 430, 462 and 653). As to the substantive contents of the right to litigation, it shall be realized through the enactment of relevant statutes consistent with due process by the legislature. As to whether the relevant procedural rules are appropriate, apart from considering whether the Constitution has any specific provisions and the various categories of fundamental rights involved, determination must be made based on a comprehensive consideration of the field the case is involved in, the severity and scope of the infringement on the fundamental rights, the public interests desired to pursue, the availability of alternative procedures and the costs of various possible procedures, among other factors (see J.Y. Interpretation Nos. 639, 663 and 667).
The purpose of the parole system is to allow the halt of sentence enforcement for those imprisoned who has demonstrated repentance with concrete evidence and fulfilled the legal requirements and for the convicted to be actively reintegrated into the society (see Article 77 of the Criminal Code and Article 81 of the Prison Act). Once the governing authority decides to grant parole, the parolee will then be discharged from prison as the enforcement of sentence is on halt. Should the governing authority revoke its decision and reinforce the remaining sentence(s), it not only directly restricts the parolee’s physical freedom but also severely impacts the various rights and interests enjoyed by the parolee since his/her re-integration into the society. Thus, any governing authority‘s decision concerning the revocation of a parole must follow certain due process and determined with due care. Thus, in a parole revocation decision, the parolee must be afforded remedial procedures to seek a fair trial in accordance with due process of law in court such that opportunity for redress may be timely and effectively obtained and the intention to protect the people’s right to litigation under the Constitution is not contravened.
The Joint Conference of the Presiding Judges of the Supreme Administrative Court in February 2004 resolved that, “[T]he revocation of parole is a link in the enforcement of criminal judgments - a judicial administrative disposition in the broad sense. The remedial procedures for any disagreement shall be in accordance with Article 484 of the Code of Criminal Procedure, that is, if and when the prosecutor have enforced the remaining sentence(s) following the revocation of parole, the prisoner, his/her legal representative or spouse who files a motion to object such revocation in the original court that rendered the criminal judgment may not bring forth an administrative litigation.” Article 484 of the Code of Criminal Procedure stipulates that, “[A] prisoner, his/her legal representative or spouse who deems the prosecutor’s enforcement inappropriate may file a motion to object in the court that rendered the criminal judgment.” [These rules] do not deprive the people of the opportunity to seek remedies in court for the revocation of parole in accordance with the law and thus does not contravene the right to litigation as protected under the Constitution. However, once the parole is revoked, the parolee, under the above-indicated rules may only seek remedies in court after the prosecutor has enforced the remaining sentence(s). This is not a complete protection of the parolee’s right to litigation. The relevant authorities shall promptly review and reform the regulations such that parolees who disagree with the revocation of their parole may timely seek remedies in court prior to serving the remaining sentence(s).
Finally, one of the petitioners was of the view that Article 74-2, Paragraphs 1 and 2, and Article 74-3, Paragraph 2 of the Rehabilitation Penalty Enforcement Act violate Article 78 of the Criminal Code and the doctrine of presumption of innocence and are inconsistent with the protection of physical freedom under Article 8 of the Constitution and J.Y. Interpretation No. 392. Another petitioner was of the view that Article 405 and Article 415, Paragraph 2 of the Code of Criminal Procedure, and Article 16 of the Statute for Narcotics Elimination, as amended on July 27, 1992, violate the principle of new rules take precedent in the litigation procedures and are inconsistent with Articles 7 and 16 of the Constitution. These are all contentions over the adequacy of a court’s finding of facts and the application of law based on subjective personal views, and they have failed to specify exactly the rules that objectively contravene the Constitution, thus, is inconsistent with Article 5, Paragraph 1, Subparagraph 2 of the Constitutional Interpretation Procedure Act and [this part of the petition] shall be dismissed pursuant to Article 5, Paragraph 3 of the same Act.
Translated by Alex C.Y. Tsai, Esq. and Chien Yeh Law Offices.