The petitioner, the Fifth Criminal Division of the Taiwan High Court Taichung Branch, was adjudicating 108-Shang-Su-495 concerning a defendant charged with violating Article 12, Paragraph 2 (hereinafter referred to as "Disputed Provision 1") of the Narcotics Hazard Prevention Act (hereinafter referred to as the “Narcotics Act”). The court questioned whether the exclusion of offenses under Disputed Provision 1 from the penalty reduction clause in Article 17, Paragraph 2 of the same Act (hereinafter referred to as "Disputed Provision 2") was in conflict with Articles 8 and 23 of the Constitution. Accordingly, it ruled to suspend the proceedings and filed a petition with the Constitutional Court for interpretation.
The petitioner, the Second Criminal Division of the Hsinchu District Court, was adjudicating 106-Su-94, where the defendant was charged with violating Disputed Provision 1. The court raised concerns that the exclusion of offenses under Disputed Provision 1 from the penalty reduction clause in Disputed Provision 2 might be in conflict with Article 7 of the Constitution. Therefore, the court ruled to suspend the proceedings and filed a petition with the Constitutional Court for interpretation.
The petitioner, the Second Criminal Division of the Taiwan High Court, was handling 108-Shang-Su-1861 in which the defendant was charged with violating Disputed Provision 1. The court raised concerns that the exclusion of offenses under Disputed Provision 1 from the penalty reduction provision in Disputed Provision 2 might conflict with Articles 7 and 23 of the Constitution. As a result, the court decided to suspend the proceedings and filed a petition with the Constitutional Court for interpretation.
The petitioner, Xian-Zhang Huang, intended to manufacture the second-grade narcotic drug cannabis for personal use and cultivated cannabis on his home's balcony. After the prosecutor filed public charges, the Taiwan Tainan District Court in 106-Su-725 and the Taiwan High Court Tainan Branch in 107-Shang-Su-408 convicted him. His appeal was subsequently rejected in the Supreme Court's Criminal Judgment108-Tai-Shang-1050, which became final. The petitioner contends that the application of Disputed Provision 1 in the final judgment, along with the related Disputed Provision 2, raises concerns about potential violations of the proportionality principle under Article 23 and the equal protection guarantee under Article 7 of the Constitution, and thus requests an interpretation.
In the cases mentioned above, the judges filed petitions to suspend the litigation proceedings and, based on objective grounds, formed a firm belief that the law was unconstitutional. Consequently, they requested a constitutional interpretation from the Constitutional Court. After review, it was determined that these petitions met the requirements for judicial requests for constitutional interpretation as outlined in J. Y. Interpretations No. 371, No. 572, and No. 590 by the Constitutional Court. Therefore, the petitions were accepted. Additionally, the petitions filed by the individuals were found to meet the requirements of Article 5, Paragraph 1, Item 2 of the Judicial Yuan Constitutional Court Procedure Act and were also accepted.
Furthermore, the subject matter of the judicial petitions in the cases mentioned above is the same. The subject matter of the petitions filed by the individuals includes both Disputed Provisions 1 and 2, which partially overlap with the judicial petitions. Therefore, the cases are consolidated for joint review.
After examination, the Constitutional Court issued this interpretation, with the following reasoning:
1. Regarding Disputed Provision 1
The freedom of an individual's body should be protected, as explicitly stated in Article 8 of the Constitution. Personal liberty and security are a crucial fundamental human right guaranteed by the Constitution. As the legislative body is allowed to restrict personal freedom through criminal penalties to protect specific and significant legal interests, such restrictions are not prohibited by the Constitution. However, criminal penalties are a last resort and a form of coercive measure, thus they must be strictly limited (refer to Constitutional Court Interpretations No. 646, No. 669, and No. 775). In particular, the severity of the statutory penalty should be proportionate to the harm caused by the act and the degree of the offender's responsibility in order to align with the principle of proportionality in punishment under the Constitution, and in order to comply with the proportionality principle in Article 23 of the Constitution (refer to Constitutional Court Interpretations No. 544, No. 551, No. 646, No. 669, No. 775, and No. 777).
Disputed Provision 1 stipulates: "Anyone who cultivates cannabis with the intent of manufacturing narcotics shall be sentenced to imprisonment of no less than five years, and may also be fined up to NT$5 million." The purpose of this provision is to prevent actions that occur in the preliminary stages of drug manufacturing, in order to safeguard the physical and mental health of citizens (refer to the Legislative Yuan Bulletin, Vol. 84, Issue 65, p. 198). This is an important interest protected by the Constitution. Although cultivating cannabis is a precursor to drug manufacturing, it already poses a certain level of danger to life and bodily integrity. To protect these critical legal interests, the legislative body has adopted criminal penalties with a general deterrent effect, which can be considered as contributing to the achievement of an important public welfare goal. Furthermore, since there are no alternative measures equally effective as the criminal penalty, but with a lesser infringement, the use of this penalty is also deemed necessary.
However, the term "cultivating cannabis" in Disputed Provision 1 encompasses a wide range of situations, from small-scale cultivation to large-scale operations. Given the aim of preventing crime, although the legislature can set higher statutory penalties through special criminal laws, the application of a minimum sentence of five years' imprisonment, regardless of the severity of the offender's actions, makes it difficult for courts to consider the specific degree of harm caused by the violation. For cases with minimal violations (such as growing a very small amount for personal use), even if the court applies Article 59 of the Criminal Code to reduce the sentence, the minimum penalty still results in a prison term of at least two years and six months. This does not allow for the appropriate consideration of the offender's minimal responsibility, making it difficult to impose alternatives such as fines or suspended sentences. As such, the punishment may be disproportionate to the offense, potentially constituting an overly harsh penalty and failing to achieve a balance of substantive justice. Disputed Provision 1 does not provide a mechanism for reducing the penalty or offering a more suitable penalty for offenders with minor circumstances. Within this scope, the restriction on the personal freedom guaranteed by Article 8 of the Constitution is incompatible with the principle of proportionality in punishment under the Constitution and violates the proportionality principle in Article 23 of the Constitution. Relevant authorities are required to amend the provision in accordance with this interpretation within one year of its publication. If no amendment is made within that time, courts may, for minor cases, reduce the statutory penalty by up to half based on this interpretation. For cases that are clearly deserving of leniency, the court may still reduce the sentence still further under Article 59 of the Criminal Code.
2. Regarding Disputed Provision 2
The equal protection rights guaranteed by Article 7 of the Constitution do not automatically prohibit any differential treatment. Legislators and relevant authorities, in alignment with the values of the Constitution and legislative goals, may reasonably differentiate based on the nature of the regulated matters. Whether a regulation complies with the principle of equality should be assessed based on whether the purpose of the differential treatment is constitutional, and whether there is a reasonable connection between the classification made and the achievement of the regulatory purpose (refer to Constitutional Court Interpretations No. 682, No. 750, No. 768, and No. 788).
Disputed Provision 2 stipulates: "Those who confess to crimes under Articles 4 to 8 during investigation and trial shall have their sentence reduced." This provision concerns sentence reduction based on the defendant's confession but does not include confessions for crimes under Disputed Provision 1, leading to differential treatment. However, the determination of which crimes and under what circumstances a sentence may be reduced is a matter of criminal policy, and in principle, falls within the legislative discretion to form laws. Therefore, if the purpose of the differential treatment established by the sentence reduction provision is to pursue legitimate public interests, and if there is a reasonable connection between the means employed and the achievement of that purpose, it does not violate the principle of equality.
The legislative intent behind Disputed Provision 2 is to expedite the criminal litigation process for drug manufacturing, trafficking, or transportation cases, encouraging defendants to confess and take the path of rehabilitation (refer to the Legislative Yuan Bulletin, Vol. 98, Issue 26, p. 197). This goal is legitimate. The provision specifies that a defendant's sentence may be reduced if they confess to crimes such as drug manufacturing, trafficking, or transportation under Article 4 of the Narcotics Hazard Prevention Act; possession of drugs with intent to sell under Article 5; using force, threats, deception, or other illegal means to make others use drugs under Article 6; inducing others to use drugs under Article 7; or transferring drugs under Article 8. The constituent elements of Disputed Provision 1 involve the intention to cultivate cannabis for the purpose of manufacturing drugs. The evidence gathering, investigation, and determination of criminal facts for this offense are generally easier than for the crimes specified in Articles 4 to 8 of the Narcotics Act. As a result, the connection between whether a defendant who commits Disputed Provision 1 confesses and the prompt resolution of the criminal procedure is relatively weak. Consequently, the legislature, considering factors such as investigation and trial costs, did not include those who confess to crimes under Disputed Provision 1 in the category eligible for sentence reduction. Instead, it is left to the court's discretion to consider the defendant's post-offense attitude under Article 57 of the Criminal Code. This differential treatment is not inherently unreasonable.
In summary, the provision in Disputed Provision 2 regarding sentence reduction does not include those who commit the offense under Disputed Provision 1. This does not violate the intent of equal protection under Article 7 of the Constitution.
3. Parts Not Accepted
The petitioner, the Second Criminal Division of the Taiwan High Court, raised concerns about the constitutionality of Article 17, Paragraph 1 of the Narcotics Act. However, this provision is not applicable to the case being adjudicated, and therefore, in accordance with the requirements for judicial requests for constitutional interpretation as outlined in Constitutional Court Interpretations No. 371, No. 572, and No. 590, this request does not meet the criteria and will not be accepted.
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*Translated by Mong-Hwa Chin.