The Petitioners are three judges in the fifth tribunal of Criminal Division, the Taiwan High Court Kaohsiung Branch Court while reviewing case 103-Sheng-831 (2014), which was a petition for adjustment in punishment for recidivism (The inmate Tsung-Ju Ho was convicted of drug manufacturing and sentenced by the court to imprisonment. When he was serving prison time, the prosecutor found that he was a recidivist and petitioned the court for an order to adjust his punishment.) Another Petitioner is a judge in Subdivision Shen, the fifth tribunal of Criminal Division, Taiwan Changhua District Court while reviewing case 103-Sheng-539 (2014), which was a petition for adjustment in punishment for recidivism (The inmate Jui-Cheng Yu was convicted of drug trafficking and sentenced by the court to imprisonment. When he was serving prison time, the prosecutor found that he was a recidivist and petitioned the court for an order to adjust his punishment.) The other Petitioner is a judge in Subdivision Sung, the fifth tribunal of Criminal Division, Taiwan Hualien District Court while reviewing case 107-Sheng-430 (2018), which was a petition for adjustment in punishment for recidivism (The inmate Ching-Shui Lin was convicted of receiving stolen property and sentenced by the court to imprisonment. When he was serving prison time, the prosecutor found that he was a recidivist and petitioned the court for an order to adjust his punishment.) The Petitioners above considered that the laws which shall apply to their cases, including Article 47, Paragraph 1 as well as Article 48, First Sentence of the Criminal Code, and Article 477, Paragraph 1 of the Code of Criminal Procedure in regard to adjustment in punishment for recidivism (hereinafter disputed Provisions A, B, and C), are unconstitutional, and petitioned for a constitutional interpretation.
Another Petitioner is a judge in Subdivision Sung, the fifth tribunal of Criminal Division, Taiwan Hualien District Court while reviewing 107-Hua-Yuan-Yi-7 (2018), which was a case of violation to the military service system. (The defendant Tzu-Wei Chou was previously convicted of driving unsafely and sentenced by the court to imprisonment. Within five years after he had served prison time, he was prosecuted for not following an order of educational mobilization, stipulated by the Punishment Act for Violation to Military Service System.) The Petitioner considered disputed Provision A, which shall apply to his case, unconstitutional and petitioned for a constitutional interpretation.
As for all the four petitions above made by judges, their courts had decided to discontinue the proceedings and petitioned this Court for a constitutional interpretation, by providing concrete reasons for objectively believing the statue to be unconstitutional. These petitions have fulfilled the requirements, which are explained in J.Y. Interpretation Nos. 371, 572, and 590, for judges filing a petition for a constitutional interpretation, and hence shall be heard.
Another Petitioner Pin-Jui Su was previously convicted of narcotics-related crimes and sentenced to imprisonment. Within five years after he had served prison time, he was convicted of drug trafficking and sentenced to imprisonment again, by the Taiwan High Court Tainan Branch Court Final Judgement 99-Shang-Su-1062 (2010). The Petitioner considered that disputed Provision A, which increased his principal punishment, unconstitutional and petitioned for a constitutional interpretation.
Another Petitioner Shih-Tsung Hsu was previously convicted of professional fraud and extortion and sentenced to imprisonment. Within five years after he had served prison time, he was convicted of forgery of official documents and sentenced to imprisonment again, by the Taiwan High Court Tainan Branch Court Final Judgement 102-Shang-Su-275 (2013). The Petitioner considered disputed Provision A, which increased his principal punishment, unconstitutional and petitioned for a constitutional interpretation.
Another Petitioner Yun-Ming Peng was previously convicted of larceny and sentenced to imprisonment. Within five years after he had served prison time, he was convicted of aggravated larceny and sentenced to imprisonment again, by the Taiwan High Court Taichung Branch Court Criminal Judgement 102-Shang-Yi-1368 (2013). When he was serving prison time, he was found to be a recidivist. His punishment was therefore adjusted by the Taiwan High Court Taichung Branch Court Final Order 103-Sheng-1270 (2014). The Petitioner considered disputed Provisions A and B, which were applied to increase his principal punishment, unconstitutional and petitioned for a constitutional interpretation. In addition, the Petitioner also considered it unconstitutional that the Supreme Court Final Judgment 104-Tai-Fei-176 (2015) rejected the Prosecutor General’s contention that the court shall not allow adjustment in punishment after a judgement is finalized, by applying disputed Provisions A and B to the case.
Another Petitioner Tsai-Lung Ho was previously convicted of drug-related crimes and sentenced to imprisonment. Within five years after he had served prison time, he was convicted of trafficking drugs in the second degree and sentenced to imprisonment again, by the Taiwan High Court Final Judgement 104-Shang-Su-810 (2015). The Petitioner considered disputed Provision A, which increased his principal punishment, unconstitutional and petitioned for a constitutional interpretation.
Another Petitioner Chih-Cheng Wang was previously convicted of robbery. His punishment was adjusted by the Taiwan High Court Tainan Branch Court Criminal Order 103-Sheng-562 (2014). He did not make an interlocutory appeal in accordance with the law, so he did not exhaust ordinary judicial remedies. However, the Prosecutor General filed an extraordinary appeal against this Criminal Order, but the extraordinary appeal was rejected by the Supreme Court Final Criminal Judgment 107-Tai-Fei-186 (2018) for lack of cause. The Petitioner considered disputed Provisions A and B applied in the final judgement unconstitutional and petitioned for a constitutional interpretation.
With regard to all of the five Petitions above filed by the people, we found their petitions to be complying with the requirements set forth in Article 5, Paragraph 1, Subparagraph 2 of the Constitutional Court Procedure Act, and granted review.
All of the nine Petitions above involve the same issue whether it is unconstitutional to increase the principal punishment for recidivism, or to adjust the punishment by an order after the judgement is finalized. All cases share a commonality. We therefore consolidate all of them and make this Interpretation with the following reasons:
As mandated by Article 8 of the Constitution, the people’s right to personal liberty and security shall be guaranteed. The people’s right to personal liberty and security is a fundamental human right guaranteed by the Constitution. Although the Constitution allows the legislature to restrict this fundamental right by means of criminal punishment in order to safeguard certain significant legal interests, the imposition of criminal punishment is a coercive measure that shall only be exercised as a last resort, when no alternative is available and shall be strictly restricted (see J. Y. Interpretations No. 646 and No. 669 for reference).
In addition, in terms of criminal law and punishment, given the constitutional principle nulla poena sine culpa, a person shall be subject to criminal punishment only for criminal violations and culpable acts (see J. Y. Interpretation No. 687 for reference). Criminal punishment shall be based on culpability and restricted by the principle of culpability. No punishment without culpability. Punishment should be corresponding to culpability (see J. Y. Interpretations No. 551 and No. 669 for reference). That is, the punishment imposed by the State should be corresponding to the offender’s culpability. The punishment shall not exceed the culpability. Given the constitutional principle of proportionality in sentencing (see J. Y. Interpretations No. 602, No. 630, No. 662, No. 669, and No. 679 for reference), the legislature shall measure the significance of legal interests that it wants to protect, the likelihood that offenses can be prevented, the necessity of correcting offenders after offenses, and generally take into consideration all kinds of circumstances. The law shall stipulate the categories of criminal punishment and its maximum and minimum, and be in accordance with the harm caused by criminal offenses and the degree of the offenders’ culpability, in which case it would not violate the constitutional principle of proportionality in sentencing and the principle of proportionality provided by Article 23 of the Constitution.
A. The disputed Provision A does not violate the constitutional principle of double jeopardy. Nonetheless, since it increases the minimum principal punishment in all cases without considering individual circumstances, it causes too severe punishment in particular cases. With regard to this part, the Provision violates the constitutional principle of proportionality in sentencing and the principle of proportionality.
Article 47 of the Criminal Code enacted and announced on January 1, 1935 (and enforced since July 1, 1935) provides, “A person, who commits an offense with a minimum punishment of imprisonment within five years after having served a sentence of imprisonment or having been pardoned after serving part of a life imprisonment or imprisonment, is a recidivist. The principal punishment for a recidivist shall be increased up to one half.” The rationale of this legislation is that “Recidivism after being punished is proof that regular punishment is insufficient for punishing his special mens rea. Hence it is necessary to increase his punishment.” (See the Second Volume of Proposed Legislation, edited by Revision Institute of Laws, June 1973 Tai First edition, page 29.) Then this Article was revised and announced on February 2, 2005 and enforced since July 1, 2006. The revised version constitutes the disputed Provision A, which expressly stipulates, “A person, who intentionally commits an offense with a minimum punishment of imprisonment within five years after having served a sentence of imprisonment or having been pardoned after serving part of the sentence, is a recidivist. The principal punishment for a recidivist shall be increased up to one half.” Other than the revision that recidivism only applies when it is an intentional offense, the legal outcome of recidivism is still an increase in principal punishment. The rationale of this revision is generally that “The increase in the punishment for recidivists is due to the criminal offenders’ weak responsiveness to punishment, so it is necessary to extend the period of their correction, so as to help them reenter society and also to safeguard the society.” (See the Legislative Yuan Gazette 94(5): 237). Regardless of the definition of recidivism, legislators created disputed Provision A to increase the principal punishment for the later offense, apart from the punishment originally stipulated in the violated provision. The reason is that offenders previously offended and served a sentence of imprisonment or having been pardoned after serving part of the sentence should have been deterred and therefore could have controlled themselves upon reentering society, and should not commit crimes with a minimum punishment of imprisonment again. Nonetheless, when these offenders intentionally commit a crime again, it is proof that the offenders have special mens rea and the enforcement of previous imprisonment was ineffective. The offenders’ responsiveness to punishment is obviously weak, so it is necessary to increase the principal punishment on the later offense up to one half.
Observing the above meaning of the legal text and legislative rationale of disputed Provision A, legislators consider that offenders, who intentionally commit an offense with a minimum punishment of imprisonment within five years after having served a sentence of imprisonment or having been pardoned after serving part of the sentence, have higher level of mens rea. Hence, their punishment for the later offense shall be increased up to one half. Since the punishment increased by disputed Provision A is for the later offense, rather than the former one, it is irrelevant to the constitutional principle of double jeopardy.
Nevertheless, disputed Provision A increases the minimum principal punishment in all cases without considering individual circumstances. The current practice of increase in imprisonment uses months as a unit of measurement. For instance, if the minimum principal punishment is six-month imprisonment by law, the result of increased severity for recidivism would be a minimum principal punishment of seven-month imprisonment. If the court considers a six-month imprisonment, which punishment can be converted to a fine or social services, to be sufficient for the purpose of correction or maintenance of social order (see Article 41, Paragraphs 1 and 3 of the Criminal Code for reference), it still has to pronounce a sentence of more than seven-month imprisonment, due to an increase in minimum principal punishment for recidivism. This punishment may not be converted to a fine or social services. Therefore, disputed Provision A increases the minimum principal punishment in all cases without considering individual circumstances, based on legislative reasons such as a recidivist’s special mens rea and weak responsiveness to punishment. As a result, in some particular cases, offenders are sentenced beyond their culpability when the elements of Article 59 of the Criminal Code cannot apply to their cases. With regard to this part that causes too severe infringement of personal liberty and security, thereby restricting the people’s right to personal liberty and security, guaranteed by Article 8 of the Constitution, it is inconsistent with the constitutional principle of proportionality in sentencing and contradicts the principle of proportionality provided by Article 23 of the Constitution. To this extent, the authorities concerned shall amend the relevant provisions in accordance with the ruling of this Interpretation within two years from the date of announcement of this Interpretation. Before the amendment, to prevent an event of disproportionality in sentencing as described above, the court shall consider whether or not to increase the minimum principal punishment in particular cases in accordance with the ruling of this Interpretation.
B. The disputed Provision B is inconsistent with the doctrine of non bis in idem and shall become null and void. The disputed Provision C is therefore null and void, too.
The principle of Rechtsstaat (Rule of Law) is a fundamental principle of the Constitution. It prioritizes the protection of people’s rights, the stability of legal order, and the compliance with the doctrine of legitimate expectation (see J. Y. Interpretations No. 574, No. 589, and No. 629 for reference). In addition, as Article 8, Paragraph 1 of the Constitution provides, “The people’s right to personal liberty and security shall be guaranteed. Except in case of flagrante delicto as provided by statue, no person shall be arrested or detained otherwise by a judicial or police authority in accordance with the procedure prescribed by statue. No person shall be tried or punished otherwise than by a court of law in accordance with the procedure prescribed by statue. Any arrest, detention, trial, or punishment not conducted in accordance with the procedure prescribed by statue may be rejected.” The so-called “the procedure prescribed by statue” refers to the procedure upon which a governmental organ bases its imposition of any measures restraining personal freedom and must be prescribed by statutes. The contents of the statutes must be legitimate, so that the requirement for due process of law can be fulfilled. The implementation of the criminal procedure should protect the parties’ legitimate right to judicial remedy and take into account the defendant’s trust in the effectiveness of the court decision (see J. Y. Interpretation No. 271 for reference). Hence, once a judgement has been finalized, except for the protection of crucial public interests, repetitive prosecutions, trials, and punishments for the same act are not allowed. The purposes are to prevent people from the jeopardy of repetitive trials and punishment for the same act (i.e., the prohibition against double jeopardy), to prevent people from harassment, suffering, exhaustion, pain, or wrongful conviction caused by repetitive trials, and to secure the finality of judgement. This is the doctrine of non bis in idem, which is a common principle upheld by all of the modern rule-of-law states (see Article 14, Paragraph 7 of the UN International Covenant on Civil and Political Rights, the Fifth Amendment to the United States Constitution, Article 103, Paragraph 3 of the Grundgesetz für die Bundesrepublik Deutschland (GG, Basic Law of the Federal Republic of Germany), and Article 39 of the Constitution of Japan and other provisions for reference).
The disputed Provision B expressly stipulated, “After the judgment has been finalized and an offender is found to be a recidivist, his punishment shall be increased in accordance with the provisions of the preceding article.” When the judgement has been finalized, the sentencing process of the original judgement has also been finalized. If the sentencing process was implemented again for the same offense according to disputed Provision B, and the purposes are simply to review the recidivism material, which was not discovered previously, in order to adjust the sentencing and increase the punishment, these purposes are no crucial public interests to protect. Hence, it would be an obvious violation against the constitutional doctrine of non bis in idem. The disputed Provision B shall become null and void from the date of announcement of this Interpretation.
Since disputed Provision B has been nullified with the announcement of this Interpretation, disputed Provision C, which provides “A motion to adjust a sentence pursuant to Article 48 of the Criminal Code……shall be filed by a prosecutor to the court, which makes the final judgment on facts of the offense in the said case, for a ruling.”, shall also become null and void.
C. Investigation and debates of information regarding sentencing
The increase in punishment for recidivists involves sentencing. The current Code of Criminal Procedure only stipulates that the investigation of information regarding sentencing shall be conducted after the investigation of information regarding culpability (see Article 288, Paragraph 4 of the Code of Criminal Procedure for reference), and the court shall provide the parties with opportunities to state opinions regarding sentencing range (see Article 289, Paragraph 3 of the Code of Criminal Procedure for reference). It lacks provisions how the information regarding sentencing should be investigated and how an individual debate in the sentencing process should proceed. In order for the court’s sentencing judgement to conform with the constitutional principle of proportionality in sentencing, the parties at trial shall first indicate the methods of proof regarding the facts that increase, decrease or remit their punishment (see Article 47, Paragraph 1 and Articles 59 to 62 of the Criminal Code for reference) and other information regarding sentencing (see Articles 57 and 58 of the Criminal Code for reference). The information shall be thoroughly investigated and adequately debated on. Finally, the court shall consider the information in detail according to the law and concretely explain the reasons for determining the sentence, so as to make a sentencing judgement in accordance with the constitutional principle of proportionality in sentencing. The authorities concerned shall revise the law in accordance with the ruling of this Interpretation as soon as possible, so that the law can be consistent with the constitutional protection of human rights. It is also noted here.
D. Issues on which petitions for constitutional interpretations are not granted
Whereas the Petition made by Pin-Jui Su, which is based on the Taiwan High Court Tainan Branch Court Final Judgement 99-Shang-Su-1062 (2010) and petitioned for an interpretation of Article 77, Paragraph 1 and 2 of the Criminal Code, Article 19, Paragraph 3 of the Statute of Progressive Execution of Penalty, and Article 159-5, Paragraph 2 of the Code of Criminal Procedure, the petition simply argued whether the court considered facts and applied the laws appropriately. It did not concretely and objectively articulate where Article 159-5, Paragraph 2 of the Code of Criminal Procedure violates the Constitution and infringes his fundamental rights. The rest of the above statutes were not applied in the final judgement, and therefore they are ineligible objects to support a petition for an interpretation.
Whereas the Petition made by Chih-Cheng Wang, which is based on the Taiwan High Court Tainan Branch Court Criminal Order 103-Sheng-562 (2014) and petitioned for an interpretation of disputed Provision A, we found that the Petitioner did not appeal the above order according to the law. Therefore, since the ordinary judicial remedies had not been exhausted, the above order was not a final order and is not an eligible object to support a petition for an interpretation. The Petitioner additionally petitioned for an interpretation of Article 77, Paragraph 2, Subparagraph 2 and Article 79-1, Paragraph 2 of the Criminal Code, based on the Supreme Court Final Judgment 107-Tai-Fei-186 (2018). Since the above statutes were not applied in the final judgement, they are ineligible objects to support a petition for interpretation.
The abovementioned petitions do not conform to Article 5, Paragraph 1, Subparagraph 2 of the Constitutional Court Procedure Act and are hereby denied according to Paragraph 3 of the same Article.
*Translated by Kai-Ping SU