The petitioner, fourth Criminal Division of the Supreme Court (hereinafter referred to as Petitioner 1), believes that in order to address the objection and appeal case of homicide statement in the Supreme Court case 109-Tai-Kang-Zi-928, applying Article 78, Paragraph 1 of the Criminal Code (hereinafter referred to as the Act) may be unconstitutional; hence it decided to suspend the litigation process and applied to the Court for constitutional interpretation. The following is the purpose of the petition: The appellant, Lo Min-Yao, was released on parole after he served his time in prison because he was convicted of offense of homicide and sentenced to life imprisonment. On his parole, he intentionally committed an offense of unsafe driving under Article 185-3, Paragraph 1, Subparagraph 1 of the Criminal Code. Thus, he was sentenced to imprisonment for two months. Under the Act, his parole was revoked by the Ministry of Justice, and the prosecutor executed the remaining twenty-five years sentence of his imprisonment. The appellant objected to the prosecutor’s execution of his sentence, but his objection was dismissed by the Taiwan High Court in Criminal Judgment 109-Sheng-Zi-392. The appellant then objected to it and filed an appeal against the court’s decision. According to the Act, if the parolee has intentionally committed another crime and is sentenced to imprisonment, his parole shall be revoked. When revoking the parole, the court neither considers the severity of the crime and the sentence of imprisonment that the parolee was convicted of, nor takes the factors like circumstances of the crime, the type of the specific case, and the parolee’s personal special reasons into account. This would cause a problem when a parolee, who has gradually returned to society, commits a slight offense, his parole would be revoked and he has to serve his remaining sentence for twenty-five years (“slight offenses” are excluded from those exempt-from-punishment-offenses mentioned in Article 61 of the Criminal Code).Such a case which causes excessive punishment for the offender and overly harms his liberty and security would be restricted by the guarantee of personal freedom in Article 8 of the Constitution. It also violates the principle of proportionality in Article 23 of the Constitution.
The petitioner, third Criminal Division of the Supreme Court (hereinafter referred to as Petitioner 2), believes that in order to address the Punishment of Bandits Act in the Supreme Court case 109-Tai-Kangzi-778 and appeal case of objection to 109-Tai-sheng-zi-127, Regulations on the Punishment of Bandits, applying Article 78, Subparagraph 1 of the Criminal Code may be unconstitutional; hence it decided to suspend the litigation process and applied to the Court for constitutional interpretation. The following is the purpose of the petition: The appellant, Chen Huang-Pin, was released on parole after he served his time in prison because he was convicted of offenses of robbery and sentenced to life imprisonment. On his parole, he intentionally committed a hit-and-run offense under Article 185-4 of the Criminal Code. Thus, he was sentenced to imprisonment for one year and one month. Under the Act, his parole was revoked by the Ministry of Justice, and the prosecutor executed the remaining twenty-five years sentence of his imprisonment. The appellant objected to the prosecutor’s execution of his sentence, but his objection was dismissed by the Taiwan High Court Kaohsiung Branch Court in Criminal Judgment 109-Sheng-Zi-483. The appellant then again filed an appeal against the court's decision. Another person who objects to the Act is Chiang Chin-Hui, who was released on parole after he served his time in prison because he was convicted of offenses of robbery and rape, and sentenced to life imprisonment. On his parole, he intentionally committed an offense of continuously spreading advertisements that contain messages that lure people into engaging in sexual transactions under Article 29 of the pre-amended Child and Youth Sexual Transaction Prevention Act. Thus, he was sentenced to imprisonment for three months. Under the Act, his parole was revoked by the Ministry of Justice, and the prosecutor executed the remaining twenty-five years of his sentence of imprisonment. The appellant objected to the prosecutor's execution of his sentence, but his objection was dismissed by the Taiwan High Court in Criminal Judgment 109-Sheng-Zi-392. The appellant then objected to the court’s decision. Because of the Act, the parole of the offender (who committed another crime during his parole) would be revoked, without considering the severity of the crime and the sentence of imprisonment that the offender was convicted of. This would lead parolees who only committed slight offenses to return to prison and serve their remaining long-term sentences of imprisonment. Moreover, if the judgment result of the re-committed offense is the only criterion for whether to revoke one’s parole or not, it is no different to letting the Judge ignore the comprehensive evaluation of long-term observation on whether the offender has the intention of repentance during the service of his time (before he is on parole), but simply judges by the single crime that one had made. Therefore, it is hard to be deemed as a proper means, and it deviates from the purpose of helping prisoners rid themselves of prison shackles and return to society sooner, which is also not in accordance with the principle of proportionality.
The petitioner, third Criminal Division of the Supreme Court (hereinafter referred to as Petitioner 3), believes that in order to address the appeal case of objection to 107-Sheng-Zi-703 of the same court, applying the Act may be unconstitutional; hence it decided to suspend the litigation process and applied to the Court for constitutional interpretation. The following is the purpose of the petition: The appellant, Yeh Kuo-Lung, was released on parole after he served his time in prison because he was convicted of offenses of attempted robbery and rape and sentenced to life imprisonment. On his parole, he intentionally committed an offense of unsafe driving by Article 185-3, Paragraph 1, Subparagraph 1 of the Criminal Code. Thus, he was sentenced to imprisonment for two months. Under the Act, his parole was revoked by the Ministry of Justice, and the prosecutor executed the remaining twenty-five years of his sentence of imprisonment. The appellant consequently objected to the prosecutor’s execution of his sentence. The Act requires a prisoner who has a long sentence remaining serve his time if he commits a slight offense and has his parole revoked, which violates the principle of proportionality.
The petitioner, the Judge of Section Yeh of the Administrative Division of the Taiwan Tainan District Court (hereinafter referred to as Petitioner 4), believes that in order to address the appeal case of revocation of parole in the same court 109-Jian-Jian-Zi, applying the Act may be unconstitutional; hence it decided to suspend the litigation process and applied to the Court for constitutional interpretation. The following is the purpose of the petition: the plaintiff, Huang Jun-Hua, was released on parole after he served his time in prison because he was convicted of offenses of homicide and other crimes, and then sentenced to life imprisonment. On his parole, he intentionally committed an offense of unsafe driving by Article 185-3, Paragraph 1, Subparagraph 1 of the Criminal Code. Thus, he was sentenced to imprisonment for four months. Under the Act, his parole was revoked by the Ministry of Justice, and the prosecutor executed the remaining twenty-five years of his sentence of imprisonment. The plaintiff thought the revocation of parole was an unconstitutional judgment. Subsequently, he filed an administrative complaint. The revocation of parole element of the Act does not consider the factors such as situation, identity, age, the sentences that are pronounced post-crime, the crime that one committed, and the correlation between pre and post-crime situations of the parolee, and thus revokes all paroles. There is not enough room for discretion to apply different legal effects, leading to excessive punishment, over-infringement of liberty and security of person, and violation of Article 23 of the Constitution's principle of proportionality.
The petitioner Liu Pao-Ping (hereinafter referred to as Petitioner 5), was released on parole after he served his time in prison because he was convicted of the offense of homicide and sentenced to life imprisonment. On his parole, he intentionally committed an offense of compulsory sexual intercourse and an offense of causing bodily harm by Article 221, Paragraph 1 and Article 227, Paragraph 1 of the Criminal Code. Thus, he was sentenced to imprisonment for four years and two months. Under the Act, his parole was revoked by the Ministry of Justice, and the prosecutor executed the remaining twenty-five years of his sentence of imprisonment. Petitioner 5 consequently objected to the prosecutor’s execution of his sentence, but it was dismissed by the Taiwan High Court Kaohsiung Branch Court in Criminal Judgment 108-Sheng-Zi -660. Petitioner 5 then filed an appeal against the court's decision, but it was dismissed by the Taiwan High Court Kaohsiung Branch Court in Criminal Judgment 108-Kang-Zi-260, and also by the Supreme Court in Criminal Judgment (the final decision) 108-Tai-Kang-Zi-1485. Petitioner 5 thinks that the Act as applied in the final decision raises doubts about the violation of principles of constitutional due process, proportionality, and equality. It may harm liberty and security of person. Therefore, the petitioner requested a constitutional interpretation.
Before July 15, 2020, known as the Amendment to Article 134 of Execution of Prison Sentencing Law, the parolee shall not directly object to the punishment of parole revocation made by the Ministry of Justice, but can only file an objection about the parole revocation and the execution of remaining sentence ordered by the prosecutor, to the Criminal Division of Common Court, in accordance with Article 484 of the Code of Criminal Procedure. After the aforesaid Article 134 of the Execution of Prison Sentencing Law was amended and implemented, in accordance with the same Act, if “the prisoner refuses to accept the punishment of parole revocation, and then he files an appeal to judicial review but does not accept the decision”, or “the Court does not make a decision after filing a review after 2 months, or after 2 months of an extended period of review”, the prisoner’s appeal with the Administrative Litigation Division of the District Court of the prison where he stayed or where he was subjected to custody shall be dismissed.
Petitioners 1 to 3 accepted the prisoners’ objection to the execution of the remaining sentence ordered by the prosecutor’s command before the implementation of the Amendment to the aforesaid the Execution of Prison Sentencing Law. Petitioner 4 accepted that the administrative litigation of a prisoner requesting the punishment of revocation of parole by the Ministry of Justice after the implementation of the Amendment to the Law of Execution in Prison. Those petitioners are all competent courts that have rights to hear cases. Petitioners 1 to 4 all ceased the litigation procedure in accordance with the Act, and petitioned the Court for a constitutional interpretation on the basis of having a specific and objective cause that proves the Act is unconstitutional. Since the petition conforms to the requirements of the Judge’s request for the interpretation of the Constitution, which is explained in J.Y. Interpretation Nos. 371, 572, and 590, the petition shall be accepted. Moreover, since the petition filed by Petitioner 5 conforms to the requirements of Article 5, Paragraph 1, Subparagraph 2 of the Constitutional Court Procedure Act, it shall be accepted as well. The aforesaid petitions for constitutional interpretation share a common concern, so they are heard together and come to an interpretation. The reason are as follows:
The freedom of a person’s body shall be guaranteed, which is stipulated in Article 8 of the Constitution. The liberty and security of a person are indispensable preconditions for people to exercise their multiple rights guaranteed by the Constitution. If the legislature aims to protect certain important legal interests that conform to the constitutional values, it can enact laws restricting personal freedom. Yet if personal freedom is excessively deprived, it would violate the principle of proportionality in Article 23 of the Constitution, and it would not conform to the intention of protecting people’s liberty and security in Article 8 of the Constitution.
The purpose of the parole system is to stop the execution of the sentences of prisoners who serve their sentences and show actual repentance for their offenses, so that prisoners can return to society successfully and positively (referring to Article 77 of the Criminal Code, Article 116 and Article 138, Paragraph 2 of the Law of Execution in Prison.) After the parole of punishment is made by the competent authority, the parolee therefore has the execution of their sentence suspended and is released from prison. Revoking the parole and executing the remaining sentence will involve more restrictions on the liberty and security of the parolee. Moreover, it greatly affects the rights and interests he already has after he has returned to society (referring to J.Y. Interpretation No. 681.) The punishment of parole revocation would not make the parolee suffer another new punishment, yet using the execution of the remaining sentence as the main legal effect of parole revocation would make the parolee return to prison to serve their sentence again, which consequently restricts the liberty and security of the parolee. It should conform to the principle of proportionality in Article 23 of the Constitution, so that it complies with the intention of protecting people's liberty and security in Article 8 of the Constitution.
The punishment of imprisonment is one of the main ways for our nation to execute punishment for criminals. In addition to being impartial, conforming to the ethical order, and achieving general prevention, the punishment of imprisonment is mainly aimed at correcting and educating prisoners, motivating them to repent and rehabilitate, cultivating their ability to adapt to social life, and assisting them to return to society (referring to the legislative explanation in Article 1 of Execution of Prison Sentencing Law for legislative intent). The purpose of parole is also to encourage prisoners to reform and improve themselves, and to grant those who are ready and suitable to re-enter society early release from prison, and thus get back to society freely without life difficulties (referring to the legislative explanation in the Amendment to Article 77 of the Criminal Code, 1997; also Article 76 of the Regulations on Progressive Treatment of Sentences). Whether serving a sentence in prison or on parole, the purpose is in both instances helping prisoners to return to society freely. Parole is only a buffer system of early release, made for prisoners who meet certain requirements, are under custody with the supervision of the public power (referring to Article 93, Subparagraph 2 of the Criminal Code), and are in the process of changing from completely confined in the prison environment to a completely free release. In other words, the process of executing the sentence they are in is an evolution from institutional treatment to society-based treatment. Therefore, the law stipulates that during the period of serving time, if the prisoner is not suitable for early return to society, he will not be granted parole and will continue to serve his time in prison, so as to enforce the state’s power of executing punishment. During the parole period of returning to society-based treatment, if the parolee is not suitable to return to society, the parole will be revoked, and the parolee will be returned to prison for institutional treatment.
The Act clearly stipulates: “During the period of parole, if the offender has intentionally committed another crime for which he is sentenced to an imprisonment of more than six months by a final judgment, his parole shall be revoked.” The purpose is to make parolees who are not suitable for society-based treatment return to prison for institutional treatment, so as to enforce the state's power of executing punishment. The purpose is certainly to protect certain important legal interests that conform to constitutional values. However, whether the prisoner is suitable for parole, so that he can be released from prison early and return to society, should take into account of the circumstances of the crime, behavior in prison, criminal record, effectiveness of educational and correctional treatment, rehabilitation plan, other related matters, etc., so as to judge their states of repentance comprehensively (referring to Article 116, Paragraph 1 of Execution of Prison Sentencing Law, and Article 3 of Measures for the Implementation of Parole.) Once the parole is granted, it means that the parolee is suitable to be released from prison early and return to society under custody with the supervision of the public power. Therefore, if the parolee has intentionally committed another crime for which he is sentenced to imprisonment, whether his parole should be revoked and return to prison for institutional treatment should be decided based on whether he is still suitable for social life. That means to consider whether the revocation will go against the original intention of parole, so that the purpose of parole revocation and the protection of the liberty and security of the parolee can be appropriately achieved. Regarding the situation that the parolee is sentenced to probation or imprisonment of less than six months for another intentional offense, if the punishment is temporarily suspended, or can be commuted to a fine or community service (referring to Article 41 and Article 74, Paragraph 1 of the Criminal Code), then while considering whether to change the society-based treatment that was originally pronounced to institutional treatment, it is necessary to respect special prevention, which takes into account specific circumstances (such as “the harm that parolee would cause to society”, “the possibility of re-offending”, and “whether the parolee is repentant”, etc.). The parole shall not be revoked just because the offense committed during parole is a sentence of imprisonment or a more severe punishment. This would lead those who are on probation or sentenced to imprisonment of less than six months and without the need for special prevention to return to prison and serve their remaining sentence.
In conclusion, the Act does not consider whether the parolee is on probation or sentenced to imprisonment of less than six months, whether it is based on special prevention, or whether there are specific circumstances necessary to return to prison and serve his remaining sentence. The Act revokes the parole simply because the later offense is a sentence of imprisonment or a more severe punishment, causing those parolees who are on probation or sentenced to imprisonment of less than six months and without the need for special prevention to return to prison and serve their remaining sentence. In that case, the means adopted are not necessary to achieve the purposes, and it violates the principle of proportionality in Article 23 of the Constitution and the intention of protecting people’s liberty and security in Article 8 of the Constitution. It shall lose its effectiveness from the date of announcement of this Interpretation. Before the amendment of the Act, if the relevant authorities need to decide whether to revoke the parole of those who are on probation or sentenced to imprisonment for less than six months due to intentionally committing crimes during their parole, the authorities should decide on a case-by-case basis in accordance with the intention of this Interpretation.
Regarding a case in which the petitioner requests an explanation, but the criminal responsibility of the crime that the offender committed is not probation or imprisonment of less than six months, then it is not covered by this Interpretation (relevant authorities shall consider whether to revoke one’s parole on a case-by-case basis in accordance with the intention of this Interpretation).
*Translated by Kuo-Hsing HSIEH