Article 77, Paragraph 1 of the Criminal Code provides: If there is evidence of repentance during the execution of imprisonment, a parole may be granted upon application by the prison authority to the Ministry of Justice after twenty-five years of a sentence to life imprisonment or after one half of a sentence to imprisonment or after two-thirds of the imprisonment of a recidivist has been served. Article 81, Paragraph 1 of the Prison Act provides: The conditional release of an inmate is to be determined in terms of his/her repentance, grade two or above in conformity with the conditions of parole, by a resolution of the parole board and after approval from the Ministry of Justice. Article 75 of the Statute of Progressive Execution of Penalty provides: The first class of inmates who are eligible for statutory parole shall promptly apply for parole. Article 76 of the Statute of Progressive Execution of Penalty provides: The second class of inmates who are fit for social life and are eligible for statutory parole, may apply for parole. The preceding regulations provide the parole eligibility requirements and procedures of approval. An inmate who objects to the denial of parole rendered by the administrative authority may file a petition against the decision to the prison supervisory authority or prison inspectors through the prison warden, or directly to the prison inspectors when they are inspecting the prison in accordance with provisions set forth in Article 6, Paragraphs 1 and 3 of the Prison Act. The Prison Act does not expressly provide other legal remedies for an inmate who wants to petition against the denial of parole rendered by the administrative authority.
The Supreme Administrative Court T.T. No. 2391 held that the regular court shall have the jurisdiction to decide a petition filed by a petitioner against the denial of parole. This holding was based on the ground that the petitioner filed the petition to the Taiwan High Court (Kaohsiung Branch) in accordance with Article 484 of the Criminal Procedure Law and both the Supreme Court T.S.T. No. 605 and the Taiwan High Court (Kaohsiung Branch) have heard the petition and dismissed it for want of legal grounds. With reference to the petition against the revocation of parole also handled by the regular court, the Supreme Administrative Court thus determined that, before the legislation is amended to provide judicial relief, the proper court to decide the petition filed by the petitioner against the denial of parole shall be the regular court. On the other hand, the Supreme Court T.S.T. No. 605 held that because the parole was not granted by the prosecutor, and the denial of parole rendered by the administrative authority was not derived from an unlawful enforcement of law by the prosecutor, the petitioner had no right to petition to the regular court for judicial relief in accordance with relevant provisions set forth in the Prison Act. The Supreme Court, therefore, held that before the legislation is amended to provide judicial relief, the proper court to decide the petition filed by the petitioner against the denial of parole is not the regular court. As a result, with regard to which court shall have the jurisdiction to adjudicate an inmate’s petition against the denial of parole rendered by the administrative authority, the Supreme Administrative Court and the Supreme Court are in conflict.
Approval of parole terminates an inmate’s term of imprisonment and ends the restrictions imposed on an inmate’s personal liberty. The design of the current parole system allows the first or second class of inmates, who have shown repentance and who are eligible for statutory parole, to apply to the Prison Parole Commission for parole. After the Prison Parole Commission decides to grant the parole, the prison will submit the decision to the Department of Justice for approval in accordance with Article 77 of the Criminal Code and Article 81 of the Prison Act. Thus the approval of parole is made by the Department of Justice. Whether to grant [a ]parole is determined by the applicant inmate’s good behavior while in prison and the applicant inmate’s compliance with relevant provisions of the Statute of Progressive Execution of Penalty. Should the prisoner not come up to the required standard, although he/she may appeal according to the stipulations of the Prison Act, yet the nature of the appeal is to instigate a review of the administrative authority’s own procedure and is not equivalent to asking a court of law for redress.Pursuant to Article 16 of the Constitution to protect the people’s right of action, the petition at issue cannot substitute for the right to obtain judicial redress (refer to J. Y. Interpretation No. 653). Thus an inmate who objects to the denial of parole rendered by the administrative authority may file a petition for judicial redress to a court. However, which court shall have the jurisdiction to hear the petition, and what type of procedure shall be adopted to resolve the issue, is to be decided by legislation after full consideration of the following matters by the legislature: the nature of the petition and relevance of the legal proceeding, immediate and effective protection of the inmate’s rights, the organization of the court and assignment of personnel, and the design of the relevant procedures and parole systems. Since a decision to grant parole is an administrative procedure in nature, the petition against denial of parole by the administrative authority shall be decided by the Administrative Court in accordance with Article 2 of the Administrative Procedure Law.
Translated by Li-Chih Lin, Esq., J.D.