The Petitioner En-Pen Lu (hereinafter “Petitioner 1”) has been sentenced to imprisonment for one year through the final judgement of Criminal Judgment 97-Shang-su-tzu-1368 (2008) made by the Taiwan High Court Taichung Branch Court since he had committed Offenses of Opportunistic Obscenity of Article 225, Paragraph 2 of the Criminal Code. He has then sentenced to imprisonment for three years and five months which had combined the crime mentioned above and another crime of offenses of forced obscenity. He went to prison on March 26, 2008. Within the period of imprisonment, after Kaohsiung Prison, Agency of Corrections, Ministry of Justice had conducted mental treatment and tutoring education, Petitioner 1 after-punishment compulsory treatment was suggested to be imposed since he had committed offenses against morality and rape multiple times, given that he had a specific criminal model after committing the crime and did have a medium to high probability to commit again. The prosecutor imposed upon Petitioner 1 compulsory treatment according to Article 91-1, Paragraph 1 of the Criminal Code. The Taiwan High Court Taichung Branch Court ordered Petitioner 1 to take compulsory treatment after the punishment, until his danger of committing the offense again decreased significantly. During the treatment, the authorities should examine and evaluate the necessity of stopping the treatment mentioned above. Petitioner 1 objected to the order and filed the interlocutory appeal against it. The Supreme Court made Criminal Order 100-Tai-Khang-457 (2011) (Final Order 1) as its final rejection of the appeal. Soon after, on June 26, 2011, the day that the punishment finished, Taiwan Changhua District Prosecutors Office sent Petitioner 1 to Pei Te Hospital under Taichung Prison, Agency of Corrections, Ministry of Justice in the name of the Executive Order of Rehabilitative Measures 100-Chih-Pao-Keng-10 (2011). Petitioner 1 filed the motion of objection, but was dismissed by the Taiwan High Court Taichung Branch Court. Petitioner 1 objected and filed an interlocutory appeal against it, but was dismissed by the Supreme Court through the making of Final Order of Criminal Order 100-Tai-Khang-835 (2011) (Final Order 2), and soon stopped the compulsory treatment on November 9, 2010. Petitioner 1 alleges that Article 91-1, Paragraph 1 of the Criminal Code, which was applied in Final Orders 1 and 2, does not provide a maximum duration for compulsory treatments, and is thereby a violation of the principle of proportionality in the Constitution and the protection of liberty and security of person.
The Petitioner Fang-Cheng Chang (hereinafter “Petitioner 2”) committed the crime of rape under Article 221, Paragraph 1 of Criminal Code, and therefore was announced guilty by Taiwan Taoyuan District Court on May 24, 2005, and was sentenced to imprisonment for ten years. Before the punishment was to conclude, he should go to a specific establishment to enforce the treatment until he was totally cured, but the duration could not be longer than three years. Petitioner 2 objected and appealed, then the appeal was dismissed by Taiwan High Court, and he was imprisoned. After the mental and body treatment and education during the imprisonment in Taichung Prison, Agency of Corrections, Ministry of Justice, Petitioner 2 was considered to have high danger of committing the offense again, and therefore was suggested to undergo compulsory treatment. The prosecutor pointed out that Petitioner 2 was the perpetrator of rape before June 30, 2006, which means that the part of Article 91-1 of the Criminal Code regarding compulsory treatment, which had been amended on July 1, 2006, did not apply to Petitioner 2. However, after appraisal and evaluation, Petitioner 2 was reasoned to have danger of committing the offense again, and the prosecutor therefore applied to have Petitioner 2 go to a specific establishment to enforce the compulsory treatment through Article 22-1, Paragraph 1 and 3 of the Sexual Assault Crime Prevention Act. Taiwan Taoyuan District Court ordered Petitioner 2 to go to a specific place to accept compulsory treatment after the punishment until the danger decreased significantly. Petitioner 2 objected and filed an interlocutory appeal. Taiwan High Court dismissed the appeal through Criminal Order 103-Ching-Khang-12 (2014) (Final Order 3). The compulsory treatment was soon stopped on March 31, 2020. Petitioner 2 argues that the provisions applied in Final Order 3, namely the second and the third Provisions at issue, which stipulate an indefinite treatment period until the risk of recidivism is significantly reduced, deprive the judge of the authority to determine the duration of treatment in the individual case, thereby violating the constitutional principles of due process and judicial discretion and raising concerns regarding the infringement of personal liberty. Therefore, Petitioner 2 requested a constitutional interpretation.
The Petitioner Shu-Cheng Tseng (hereinafter “Petitioner 3”), was previously convicted of the offense of forced obscenity from Article 224, Paragraph 1 of the Criminal Code. The Taiwan High Court sentenced him to two years of imprisonment on May 20, 2002. Before the punishment, he was ordered to undergo treatment in a specific establishment. Petitioner 3 objected and filed an interlocutory appeal against this decision, but the Supreme Court dismissed his appeal in Taiwan Supreme Court 91-Thai-4641 (2002), thus confirming the order for the treatment. Furthermore, Petitioner 3 committed the offenses of robbery and rape from Article 332, Paragraph 2, Subparagraph 2 of Criminal Code, and thus was sentenced to imprisonment of fourteen years through Criminal Judgment 91-Chung-Shang-Keng-187 (2002) made by the Taiwan High Court, which was a final judgment since he did not appeal. The two offenses mentioned above should in total lead to imprisonment of fifteen years. Before the enforcement, he should enter a certain place to accept the treatment. The treatment started from September 17, 2002, to September 16, 2005. Petitioner 3 then went to the prison for enforcement of the punishment, which would originally end on May 12, 2014. During the imprisonment, Petitioner 3, who had been through the treatment, did not pass the evaluation from the Committee of Treatment Evaluation under the Taipei Prison, Agency of Corrections, Ministry of Justice, which means he was considered to still have danger of committing the offense again. Therefore, the prosecutor thought there was necessity for Petitioner 3 to undergo the treatment again and applied to impose the compulsory treatment on Petitioner 3 according to Article 22-1, Paragraphs 1 and 3 of the Sexual Assault Crime Prevention Act. Taiwan Shilin District Court made Criminal Order 102-Sheng-Liao-2 (2013) to order the Petitioner 3 go to a specific establishment to enforce the compulsory treatment until the danger of committing the offense again decreased significantly. Petitioner 3 objected and made an interlocutory appeal, but the appeal was dismissed by the Taiwan High Court through Criminal Order 102-Khang-884 (2013). Petitioner 3 alleges that Criminal Order 102-Khang-884 (2013) provided that the treatment could not end until the danger decreased significantly without providing limitation on the maximum duration of the treatment, depriving the right of judge to determine the duration of the treatment of the individual, violating the principle of due process of law and the constitutional protection of liberty and security of person, thus applying for constitutional interpretation.
The Petitioner Ping-Hsiung Tsao (hereinafter “Petitioner 4”) was convicted of the offense of sexual assault against a female under fourteen, as stated in Article 227, Paragraph 1 of Criminal Code by Taiwan Changhua District Court through Criminal Judgement 99-Tzu-1444 (2010), and was sentenced to imprisonment of three years and two months. The Petitioner 4 objected and appealed, but the appeal was dismissed by the Taiwan High Court Taichung Branch Court and Supreme Court. During imprisonment, the Taichung Prison, Agency of Corrections, Ministry of Justice suggested to impose the after-punishment compulsory treatment on Petitioner 4 after they evaluated the offenses of Petitioner 4 as having high danger of committing the offenses again. The prosecutor applied to have Petitioner 4 go to a specific establishment and undergo the compulsory treatment according to Article 91-1, Paragraph 1 of the Criminal Code. On August 12, 2015, the Taiwan High Court Taichung Branch Court ordered Petitioner 4 to go to a specific establishment to conduct the compulsory treatment after the punishment until the danger of committing the offenses again decreased significantly. During the treatment, Petitioner 4 was to be appraised and evaluated every year as to whether or not there was necessity to stop the treatment. Petitioner 4 objected and filed an interlocutory appeal, but the appeal was dismissed by the Supreme Court through Criminal Order 104-Tai-Khang-687 (2015). Soon Petitioner 4 applied to the Taiwan High Court Taichung Branch Court to stop the treatment, which was dismissed on the ground that there existed no reason to support the appeal. Petitioner 4 objected and made an interlocutory appeal, but was dismissed by the Supreme Court through Criminal Order 106-Tai-Khang-889 (2017). Soon after, on January 22, 2018, the compulsory treatment was stopped. Petitioner 4 alleges that Article 91-1, Paragraph 1 and 2, First Sentence of the Criminal Code and Article 481, Paragraph 1 of the Code of Criminal Procedure as applied in Criminal Order 104-Tai-Khang-687 (2015) and Criminal Order 106-Tai-Khang-889 (2017) violate Article 16 of the Constitution, thus applying for constitutional interpretation.
The applications mentioned above were in accordance with Article 5, Paragraph 1, Subparagraph 2 of the old Constitutional Court Procedure Act, and thus were determined to be accepted and heard.
During the trial of 105-Sheng-Liao-1 (2016), the judge from Section Cheng, the First Criminal Court of Taiwan Yunlin District Court (the Petitioner, hereinafter “Petitioner 5”), submitted that there is no verbal hearing procedure for applying the first Provision at issue and the fourth Provision at issue on the orders, which did not protect the right of the persons liable to penalty to defend themselves in person or by lawyers. The evaluation of whether or not the offender had the danger to commit the offense again was not regularly conducted by the court, which violated the due process of law of Article 8 and the principle of proportionality of Article 23 of the Constitution. Thus, the Taiwan Yunlin District Court ordered to stop the procedure of the judicial remedy and applied to this Court for constitutional interpretation.
During the trial of 106-Sheng-Liao-4 (2017), the judge from Section Liang, the Sixth Criminal Court of Taiwan Yunlin District Court (the Petitioner, hereinafter “Petitioner 6”), a case regarding the compulsory treatment, submitted that the first Provision at issue and the fourth Provision at issue provided the compulsory treatment for offenders who have danger of committing the sexual offenses again limited the liberty and security of person; however, their elements covered were too wide and did not provide differentiated treatment, duration and method for different degrees of danger of committing the offenses again, which may lead to lifetime-imprisonment. Furthermore, the fifth Provision at issue neither uses the procedure of oral argument nor provides compulsory defense for the persons with disabilities, which violates the principle of the essential due process of law, void-for-vagueness doctrine, and the principle of proportionality, violating Articles 8 and 23 of the Constitution, and thus the Taiwan Yunlin District Court ordered to stop the judicial remedy and applied to this Court for constitutional interpretation.
The judge-applied cases listed above are in accordance with the elements of judges applying for constitutional interpretations provided in J.Y. Interpretations Nos. 371, 572 and 590, and thus should be accepted and heard.
The six cases listed above were in regard to the first through the fifth Provisions at issue, about the compulsory treatment for sexual offenders. They all address same constitutional issues and thus were combined, accepted, and heard.
After announcing matters of oral argument in accordance with Article 13, Paragraph 1 of the Constitutional Interpretation Procedure Act, we informed the Petitioners 1 to 3, 5, 6, and relevant authorities, including representatives and agents from the Ministry of Justice, the Ministry of Health and Welfare, and Judicial Yuan (Criminal Department) to conduct the procedure of oral argument in the Constitutional Court, R.O.C., on the morning of November 3, 2020 (Petitioner 4 was not informed since he only applied for the constitutional interpretation after the announcement). In addition, this Court also invited appraiser and amicus, National Human Rights Commission, to address the Court.
Petitioners 1 to 3 allege that those provisions of the Criminal Code and Sexual Assault Crime Prevention Act in this case are all unconstitutional. They argue that:(1) The first Provision at issue did not provide the definition of “specific establishment” and the method of implementing compulsory treatment, which meant the petitioners could not foresee how they would be treated in the future. The definition of “have the danger of committing the offenses” was vague. And the decision of “the risk of recidivism is significantly reduced” in the fourth Provision was a value judgment instead of a medical judgment, which violates the void-for-vagueness doctrine of the Criminal Code.(2)The compulsory treatment provided under Article 91-1 of the Criminal Code essentially imprisons the person liable to penalty, whose food and life have no difference with criminals. This amounts to a form of punishment. Moreover, separating them from the society would cause them lose the ability to live, which would not only lack the legitimation of the goal, but also lose the balance between the depletion of social medical resources and extremely limited treatment results for specific cases. People who were convicted would tend more to accept the treatment which might not be proportional to their viciousness, which violated the principle of proportionality.(3)The third and fourth Provisions at issue neither provided the maximum length of time for the compulsory treatment nor had the court examine whether to stop the treatment. Furthermore, they did not give the party or the agent of the party the right to express themselves during the procedure of appraisal, evaluation, and stoppage the compulsory treatment. These all violate the Richtervorbehalt principle, the protection of liberty and security of person from Article 8 of the Constitution and the principle of proportionality from Article 23 of the Constitution.(4)The second Provision at issue provided the compulsory treatment to Petitioners, which also applied to the sexual offenders in Article 91-1 of the Criminal Code before July 1, 2006, which was the date the amended Criminal Code was announced. This violates the principle of non-retroactivity of the law and the principle of reliance protection.
Petitioners 5 and 6 allege that those provisions of the Sexual Assault Crime Prevention Act at issue partially violated the Constitution. They argue that:(1)Under the current legal system, the term “certain place” in the first Provision at issue is no different from prison.(2)Petitioner 6 alleges that the range of “danger of reoffending” in the first Provision at issue and “the risk of recidivism is significantly reduced” from the fourth Provision at issue are too wide. Besides, the degree of the danger did not need to be distinguished, making it easier to randomly enforce the law, which had already violated the void-for-vagueness doctrine and the protection of liberty and security of person from Article 8 of the Constitution. However, Petitioner 5 alleges that the phrase “the risk of recidivism is significantly reduced” in the fourth Provision at issue does not violate the principle of legal certainty.(3)The third and fourth Provisions at issue fail to specify the maximum duration of compulsory treatment or the difference between treatments, which violates the protection of liberty and security of person under Article 8 of the Constitution and the principle of proportionality under Article 23 of the Constitution.(4)Procedures of appraisal and evaluation did not provide the chance for the party to appear either before the order was made or during the procedure. They also did not ask the court to interrogate or provide any provision about choosing lawyers or reading documents and evidence. Only part of the Richtervorbehalt principle was adopted, which led to the result that if the person liable to penalty did not make interlocutory appeal after ordered to accept compulsory treatment, the court could not intervene. This obviously violated the principle of due process of law under the Constitution.(5)The second Provision at issue imposes upon the perpetrator compulsory treatment, which could date back to July 1, 2006, the time that the new Article 91-1 of Criminal Code was announced, which is not “really retroactive”, and thus did not violate the principle of non-retroactivity and the principle of reliance protection, but still violates the principle of proportionality.
The Ministry of Justice argues that the provisions of the Criminal Code and the Sexual Offenses Prevention Act at issue are constitutionally valid. The reasons can be summarized as follows:1. Article 91-1 of the Criminal Code, which provides for the restraint of personal liberty, is not unforeseeable from the perspective of the wording and legislative purpose of the law. It can also be judged based on social common sense and confirmed through judicial review. Therefore, it does not violate the void-for-vagueness doctrine.2. The compulsory treatment stipulated in Article 91-1 of the Criminal Code serves a specific preventive purpose rather than punishment. In order to achieve the goal of treatment, it is necessary to adopt institutionalized treatment measures that involve restraining the person subject to the disposition. Moreover, the decision to impose compulsory treatment is made by the court after professional appraisal and evaluation. If the person subjected to compulsory treatment disagrees, they still have the right to seek legal remedies, which does not violate the principle of due process of law and the protection of personal liberty under Article 8 of the Constitution.3. Considering the legislative purposes of the third and the fourth Provisions at issue regarding compulsory treatment, it is not possible to set a specific duration before the treatment starts. The assessment of when to cease the treatment should be based on the effectiveness of the treatment after its implementation. Although there is no explicit maximum time limit for compulsory treatment, it is a reasonable and necessary measure adopted to protect significant public interests. Moreover, there is no alternative method that would cause less infringement, and it does not violate the proportionality principle under Article 23 of the Constitution.4. The second Provision at issue is a retrospective provision based on significant public interests protected by the Constitution, and it has a legitimate reason to be considered constitutional. It cannot be argued that it is prohibited by the Constitution.
The Ministry of Health and Welfare argues that the relevant provisions of the Sexual Offenses Prevention Act at issue are constitutional. The reasons can be summarized as follows:1. Article 22-1 of the Sexual Offenses Prevention Act provides for a security disposition of a civil nature, rather than a criminal punishment. Therefore, the criminal procedure does not apply, and individuals subjected to compulsory treatment cannot demand all the rights applicable to criminal proceedings. Although the duration of the compulsory treatment is indefinite, the provision specifies that the disposition period is until the risk of recidivism is significantly reduced. The appraisal and evaluation are carried out annually by the professionals following specific procedures, and both the purpose and means are clear and proportionate. Therefore, it does not violate the void-for-vagueness doctrine, proportionality, and the protection of personal liberty under Article 8 of the Constitution.2. When perpetrators of sexual offenses complete their prison term and are assessed as having a significant risk of reoffending, they must undergo compulsory treatment in a suitable establishment, temporarily isolated from the community, to assist in their treatment, counseling, and prevention of reoffending. This is considered the best way to balance human rights and social security, and there are currently no alternative methods that would cause less infringement of personal liberty.3. Although the third and the fourth Provisions at issue do not explicitly stipulate that the annual assessment and evaluation results should be subject to court review or provide an opportunity for the party involved or their appointed representative to express their opinions, individuals subjected to compulsory treatment can independently request a court ruling to cease the treatment upon receiving notification. They can also raise objections if they believe that the prosecutor’s orders are improper. If they are dissatisfied with the objection outcome, they can file an appeal and further appeal according to the law. Since there are remedies available, it does not violate the principle of due process of law under the Constitution.4. Although the second Provision at issue applies to sexual offenders before the enactment of Article 91-1 of the Criminal Code on July 1, 2006, it does not constitute a second prosecution as the compulsory treatment procedure is not considered punitive in nature. Therefore, there is no issue of double punishment, and it does not violate the principles of non-retroactivity of the law and protection of legitimate expectations.
The Judicial Yuan (Criminal Division) argues as follows: According to the current system in our country, after the court issues a disposition of indefinite duration for compulsory treatment, the executing agency is responsible for annual assessment and evaluation to determine whether to apply to the court for cessation of the treatment. Although the procedural regulations are relatively lenient, when considering the essential nature of the matters of execution and comparing them with criminal punishments and other security dispositions, it is difficult to hastily conclude that the fifth Provision at issue violates the safeguards of the right to a hearing and the principle of judicial discretion. However, regarding the annual assessment, evaluation, and review procedures, an opportunity should be provided for the person subjected to the disposition or their representative to express their opinions, in order to ensure that all stages of compulsory treatment comply with the principle of due process of law under the Constitution.
After considering the arguments presented in the full debate, this Court issues the following Interpretation:
1. Standard for reviewing restrictions on personal liberty:
The protection of personal freedom, as guaranteed by Article 8 of the Constitution, is a prerequisite for the exercise of other constitutionally protected liberties and should be adequately safeguarded. According to previous Interpretations by this Court, whenever the physical freedom of individuals is constrained and their bodies are confined to specific places, regardless of whether it involves criminal punishment, it must be based on legal provisions and adhere to due process of law. Furthermore, such provisions must be clear and comply with the relevant conditions set forth in Article 23 of the Constitution. When determining whether the restriction on personal liberty violates the Constitution, the corresponding standard of review should be based on the manner, purpose, extent, and impact of the actual limitation (referring to Interpretations No. 384, No. 690, No. 708, and No. 710 of this Court).
2. Significant limitation on personal liberty in the context of compulsory treatment:
The first Provision at issue (i.e., Article 91-1, Paragraph 1 of the Criminal Code) stipulates that individuals convicted of offenses under Articles 221 to 227, Article 228, Article 229, Article 230, Article 234, Article 332, Paragraph 2, Subparagraph 2, Article 334, Paragraph 2, Subparagraph 2, Article 348, Paragraph 2, Subparagraph 1, and their specific laws may be subjected to compulsory treatment in an appropriate facility if they meet either of the following conditions: (1) assessed and evaluated to be at risk of reoffending after receiving counseling or treatment before the completion of their imprisonment term, or (2) assessed and evaluated to be at risk of reoffending after receiving mental or physical therapy or educational counseling according to other legal provisions. This provision pertains to post-conviction compulsory treatment and constitutes a form of security measure. Its implementation falls under the scope of the Execution of Security Measures Act and relevant regulations. The establishments for compulsory treatment can be public or private medical institutions, which are authorized by law to provide suitable supervision, management, and surveillance of individuals under compulsory treatment (referring to Articles 15, 21, 23, and 78 of the Execution of Security Measures Act). Regarding the individuals under treatment, they should receive supervision within limits that do not hinder their treatment. The use of restraints should be carried out in accordance with Article 12 of the Regulations on the Supervision of Security Measures Facilities. While it is permitted for individuals under compulsory treatment to have visits from their family and friends, such visits may be denied if they are deemed to hinder the discipline of the facility or the interests of the individual under compulsory treatment. Visits should be monitored, and if any circumstances arise during the visit that fall under the aforementioned reasons for denial, the visit should be terminated. The compulsory treatment establishment should designate specific areas where individuals under treatment are allowed to engage in limited periods of free outdoor activities (referring to Points 11, 12, 18, 19, and 21 of the Operational Guidelines for Post-Conviction Compulsory Treatment of Sexual Offenders issued by the Ministry of Justice). In conclusion, the implementation of the prescribed compulsory treatment under the first Provision at issue already constitutes a significant limitation on personal liberty.
Implementation of compulsory treatment under the disputed provision: The disputed provision (i.e., Article 22-1, Paragraph 1, Item 1 of the Sexual Offenses Prevention Act) states that if an offender, before the completion of their imprisonment term, undergoes counseling or treatment and was appraised and evaluated to be at risk of reoffending, and if the provisions of Article 91-1 of the Criminal Code do not apply, the prison or military prison may submit relevant assessment reports to the prosecutor’s office of the competent local court or the military prosecutor’s office and request the court or military court to issue a ruling to compel the offender to enter a medical institution or another designated facility for compulsory treatment. This provision also falls under the scope of post-conviction compulsory treatment. According to Paragraph 5 of the same article, the procedures for application, executing agencies, facilities, execution procedures, methods, funding sources, procedures for requesting the termination of compulsory treatment, methods, and the composition of the Assessment and Evaluation Committee shall be determined by the competent authority in charge of legal affairs in conjunction with the central competent authority and the defense competent authority. The Ministry of Justice, Ministry of the Interior, Ministry of Health and Welfare, and Ministry of National Defense jointly formulated and promulgated the Operational Guidelines for Article 22-1 Compulsory Treatment of Offenders of Sexual Offenses on December 30, 2011 (pursuant to Announcement No. 1020141353 issued by the Executive Yuan on July 19, 2013. As stipulated in Article 2, Item 3 of the aforementioned guidelines, the responsibilities listed under the “Ministry of the Interior” were transferred to the “Ministry of Health and Welfare” starting from July 23, 2013). Therefore, the treatment facility is entrusted by the Ministry of the Interior (changed to the Ministry of Health and Welfare on July 23, 2013) to designated medical institutions or other facilities designated by the Ministry of Justice and the Ministry of National Defense. The treatment facility, for the purpose of treatment, may restrict the place of residence or movement of individuals under compulsory treatment and should adhere to the principle of gender separation and implement it within necessary limits. The treatment facility may also install monitoring devices within the necessary range to ensure the safety of individuals under compulsory treatment, but they should inform the individuals about their presence. In addition, in cases of emergency violence, accidents, suicide or self-harm prevention, or other necessary management, individuals under compulsory treatment may be physically restrained or have their freedom of movement restricted within specific facilities, but it should not exceed the necessary time or be carried out in an inappropriate manner (referring to Article 7 of the aforementioned Operational Guidelines). In conclusion, the implementation of compulsory treatment as defined in the disputed provision also constitutes a significant limitation on personal liberty.
The compulsory treatment system should meet the requirement of clear differentiation under the Constitution:
The purpose of subjecting sexual offenders to compulsory treatment after the completion of their sentence is to reduce the risk of reoffending among individuals who pose a high risk of committing sexual crimes. This is done through a compulsory treatment process led by professionals, where individuals under treatment are in the position of “patients” receiving treatment with the aim of effectively reducing their risk of reoffending and protecting public safety. It is not intended as a criminal punishment for the individuals under treatment. Therefore, the establishment of the compulsory treatment system should primarily focus on providing effective treatment to the individuals under treatment, with the ultimate goal of facilitating their successful reintegration into society upon regaining their freedom. This core objective clearly distinguishes the compulsory treatment system from the punitive nature of criminal sanctions. As a result, the specific formation of the compulsory treatment system, including the regulation of the system and its actual implementation, such as the treatment facility (including spatial planning and facilities), treatment procedures, management, and allocation of professionals, requires a clear differentiation from the execution of criminal punishments in order to comply with the Constitution. If the compulsory treatment system meets the requirement of clear differentiation under the Constitution, it does not infringe upon the principle of legality of crimes and punishments, which include the principle of legality in crime and punishment or the prohibition of double jeopardy.
The compulsory treatment system, in terms of the treatment establishment (including spatial planning and facilities), should clearly distinguish itself from correctional institutions where punishments are executed, and it should be visually identifiable as non-prison by the general public. Regarding the management of the daily lives of the individuals undergoing treatment, the disciplinary requirements for their living conditions and behavior should be limited to what is necessary to achieve the treatment objectives. While ensuring the implementation of the treatment, efforts should be made to allow the individuals to have a normal life to prepare for their reintegration into society, and there should be a clear distinction from the treatment and correctional measures for incarcerated prisoners. In terms of the treatment approach, the treatment should be led by professionals based on professional and individual principles. It should be tailored to the specific circumstances of the individuals undergoing treatment, with the overarching goal of effectively reducing their risk of reoffending and facilitating their successful reintegration into society.
Fourth, the restrictions on personal liberty resulting from the implementation of compulsory treatment should adhere to the requirements of the void-for-vagueness and proportionality doctrines.
Although the essence and purpose of compulsory treatment lie in therapy rather than criminal punishment, it is difficult to avoid imposing significant restrictions on the personal liberty of the individuals undergoing treatment during its actual implementation, which may have effects similar to the deprivation of personal liberty associated with criminal punishment. Therefore, in light of the constitutional protection of personal liberty, any restrictions on personal liberty resulting from compulsory treatment should meet the requirements of the void-for-vagueness and proportionality doctrines.
The first and fourth Provisions at issue in question do not violate the void-for-vagueness doctrine.
The requirement of the void-for-vagueness doctrine does not simply refer to the specific and detailed wording of legal provisions. When formulating laws, legislators must consider the complexity of the factual circumstances governed by the law and the appropriateness of their application to individual cases. Uncertain legal concepts can be appropriately used in legislation. If the meaning of the legal provisions is not difficult to understand from the perspective of the legislative purpose and the overall legal system, and if it can be reasonably foreseen by those subject to the regulations whether their specific circumstances fall within the scope of the law, and if it can be determined and judged through judicial review, then it does not violate the principle of void-for-vagueness doctrine (referring to J.Y. Interpretations Nos. 432, 521, 594, 602, 690, and 794). Furthermore, according to Article 8 of the Constitution, if a law restricts the personal liberty of the people in a manner similar to serious physical restraint and has effects similar to criminal punishment, the statutory requirements must meet the principle of legal certainty, and thus a higher level of scrutiny is required (referring to J.Y. Interpretations Nos. 636 and 690). However, although compulsory treatment restricts personal liberty by confining individuals to certain places, it differs in nature from criminal punishment, as its purpose is to protect people’s lives and physical health. Moreover, it involves medical expertise, so a moderate standard should be applied in its scrutiny.
The first Provision at issue sets forth the requirements for mandatory treatment imposed on sex offenders. It is limited to the enumerated offenses and necessitates assessment and evaluation to determine the risk of reoffending. Regarding the specification of the offenses, the first Provision at issue clearly lists them one by one, leaving no ambiguity. Furthermore, the term “risk” used in the first Provision at issue refers to the possibility of a certain unfavorable event occurring. It is a common expression in everyday language and is widely used in various legal contexts, and its meaning is understandable to the general public. When the first Provision at issue refers to the “risk of reoffending,” it means the possibility of committing the sex offenses listed in the Provision at issue in the future. The fourth Provision at issue (Article 91-1, Paragraph 2, first half of the Criminal Code) stipulates that “the disposition [treatment] shall continue until the risk of recidivism is significantly reduced...” The term “the risk of recidivism is significantly reduced” refers to a significant reduction in this possibility, which is not difficult for those subject to regulation to comprehend. Moreover, the causes of sexual offenses are diverse, and each case has its own unique characteristics. The extent or state at which the “risk of reoffending” specified in the first Provision at issue necessitates mandatory treatment and the extent or state at which the “the risk of recidivism is significantly reduced” specified in the fourth Provision at issue requires cessation of treatment depend on the reasons for the sexual offense and require a case-by-case determination. However, this does not mean that it cannot be determined and judged by experts based on their professional knowledge and common societal understanding, and it can be confirmed through judicial review. Therefore, there is no lack of clarity in these provisions (referring to J.Y. Interpretation No. 545). Hence, the first and the fourth Provision at issue respectively establish the declaration of the “risk of reoffending” and the requirement of “the risk of recidivism is significantly reduced” as conditions for mandatory treatment and cessation of treatment for sex offenders, without violating the void-for-vagueness doctrine.
The provision at issue does not violate the proportionality principle of Article 23 of the Constitution.
According to the mandatory treatment system provided by the first Provision at issue, it is based on the consideration that sexual offenses cause significant harm to victims and that there is a high reoffending rate among offenders. The purpose of imposing mandatory treatment on the offenders is to correct their abnormal personality and behavior, enabling them to acquire self-control and prevent reoffending (referring to the reasons for the Amendment of Article 20 of the Sexual Offenses Prevention Act, promulgated on February 5, 2005, and the reasons for Amendment of Article 91-1 of the Criminal Code, promulgated on February 2, 2005). However, according to this provision, the mandatory treatment for sex offenders unavoidably restricts the personal liberty of the individuals undergoing treatment. Whether this violates the proportionality principle should be examined with strict scrutiny (referring to J.Y. Interpretation No. 690). It is found that although the individuals undergoing treatment have their personal liberty restricted due to the mandatory treatment, the purpose of such restriction is to ensure the effective implementation of treatment and to prevent them from reoffending during the treatment period. This is based on considerations of defending the safety of society. The purpose is to safeguard the special and important public interests of personal safety, sexual autonomy, and personality rights of the general public, which is deemed legitimate. As for the current methods of implementing mandatory treatment, it involves confining the individuals undergoing treatment to a fixed location. Although there are arguments advocating for the use of a combination of fixed-location treatment and community-based treatment or the use of electronic monitoring devices as an alternative to mandatory hospitalization, there is no widely recognized model that can achieve the same level of social prevention effects as mandatory treatment in a fixed location, while imposing a lesser restriction on the personal liberty of the individuals undergoing treatment. Therefore, the imposition of mandatory treatment under the first Provision at issue, resulting in a restriction on the personal liberty of the individuals undergoing treatment, represents the minimum necessary infringement and does not violate the proportionality principle under Article 23 of the Constitution.
The third and fourth Provisions at issue, regarding the duration of mandatory treatment until the risk of recidivism is significantly reduced, do not violate the proportionality principle under the Constitution. However, there may be constitutional concerns regarding long-term mandatory treatment in certain exceptional circumstances. The relevant authorities should make effective adjustments and improvements in accordance with the spirit of this Interpretation.
Mandatory treatment is aimed at preventing the treated individuals from committing further sexual offenses that could harm public safety. By assessing the continued risk of reoffending for individuals undergoing mandatory treatment, society can be protected from the threat of their future criminal behavior. On the other hand, due to the compulsory nature of mandatory treatment, various freedoms, especially personal liberty, of the treated individuals will be significantly restricted during the treatment period. The longer the treatment period, the greater the degree of restriction on the individual’s freedom. Therefore, while mandatory treatment serves a legitimate purpose of safeguarding special public interests, the setting of the duration for mandatory treatment should be limited to what is necessary. In accordance with the requirement of proportionality, the legislature should seek the maximum possible balance between the protection of public safety and the limitations imposed on the personal freedoms of the treated individuals. It is important to consider the reasonable expectations and the limits that can be reasonably placed on individuals undergoing mandatory treatment to comply with the proportionality principle under the Constitution.
The third and fourth Provisions of the disputed regulations at issue both stipulate that the treatment period should last “until the risk of recidivism is significantly reduced”. The duration of mandatory treatment is not specifically determined or limited. Considering that the causes of sexual offenses are diverse and heavily dependent on the individual’s personal and mental conditions, it is difficult to abstractly generalize or identify common factors for sexual offenses that can be detached from the individual context. Therefore, to prevent individuals who have committed sexual offenses from engaging in such behavior again after the completion of their punishment and causing harm to the public, it is necessary to administer individualized mandatory treatment tailored to their specific circumstances. The most suitable treatment methods and procedures should be designed and planned based on their specific sexual offending tendencies and characteristics so the risk of recidivism is significantly reduced, thus safeguarding public safety. The required treatment duration should vary from person to person and cannot be standardized. Therefore, it is reasonable for the legislature not to establish a specific or maximum duration for mandatory treatment but to determine the cessation of treatment based on the individualized condition that the risk of recidivism is significantly reduced after undergoing treatment. This approach is necessary to strike a balance between the protection of public safety and the limitations imposed on personal freedoms, including the freedom of the treated individuals. Furthermore, the objective of mandatory treatment is to reduce the risk of reoffending for the treated individuals, and this goal should be recognized by the individuals themselves. Therefore, it is generally reasonable to consider the achievement of the treatment goal as the time frame for mandatory treatment, and it can be reasonably expected for individuals undergoing treatment to endure such limitations. In conclusion, within this scope, the third and fourth Provisions of the disputed regulations at issue do not violate the proportionality principle under the Constitution.
Indeed, the causes of sexual offenses are complex and varied, and the effectiveness of treatment for individuals with such offenses can differ from person to person. Therefore, it is possible that some individuals undergoing mandatory treatment may not achieve or be unable to achieve the treatment goal of reducing risk of recidivism significantly, due to their abnormal personality or mental condition. In such cases, if mandatory treatment continues without any differentiation, it would be tantamount to indefinite mandatory treatment, resulting in the treated individuals being de facto deprived of their personal freedom for an indefinite period. This situation could be perceived as a form of lifelong imprisonment. From the perspective of the treated individuals, it would exceed the reasonable expectation of what they can endure. Within this context, the existing provisions are imbalanced, as they fail to maintain a proportional relationship between the public interest in ensuring social safety and the limitations imposed on personal freedom endured by the treated individuals. This imbalance raises concerns about a violation of the proportionality principle and the lack of proportionality between the benefits of public interests and limitations of the treated individuals, which may potentially conflict with the Constitution.
To avoid concerns about violating the Constitution, if there is a genuine and specific need for long-term mandatory treatment of individuals, the legislature should establish comprehensive mechanisms or measures within the system that facilitate their ability to cease mandatory treatment and regain their freedom, reintegrating them into society. As the duration of mandatory treatment increases, the range and precision of supportive mechanisms or measures to assist or facilitate the cessation of mandatory treatment should also be expanded. Only by doing so can we ensure that the system of mandatory treatment, which restricts the personal freedom of the treated individuals, aligns with the requirements of the proportionality principle of the Constitution while safeguarding the special public interests of protecting social safety, sexual autonomy, and personal rights.
The comprehensive mechanisms or measures required in the system for imposing long-term compulsory treatment on patients should prioritize the core indicator of the patients’ ability to regain freedom and reintegrate into society. In terms of physical aspects, lawmakers should particularly review the introduction of diverse intervention measures for patients who have undergone long-term treatment but have not achieved or cannot achieve their risk of recidivism being significantly reduced as the treatment goal. These measures should serve as assistance or supplements to the standard treatment procedures in preparing patients for their reintegration into society.
In terms of procedural aspects, considering that long-term compulsory treatment in a fixed location for patients may lead to treatment fatigue or diminishing effectiveness, and even result in the gradual social neglect or self-abandonment of long-term patients, thereby making it difficult for them to actively safeguard their own rights, it is necessary for judges to review and decide whether to continue the treatment when a certain period of mandatory treatment has been reached. The frequency of judicial review should be determined based on the duration of the compulsory treatment; the longer the period, the higher the frequency of regular judicial reviews should be.
As explained above, the third and fourth Provisions at issue, regarding the duration of compulsory treatment until the risk of recidivism being significantly reduced is achieved, do not violate the constitutional principle of proportionality. However, there may still be constitutional concerns regarding long-term compulsory treatment in certain exceptional circumstances. The relevant authorities should make effective adjustments and improvements in accordance with the spirit of this Interpretation.
The second Provision at issue does not violate the principle of non-retroactivity of the law and the principle of reliance protection.
The second Provision at issue stipulates: “Before the completion of the imprisonment term, if the offender receives counseling or treatment and is assessed to pose a risk of recidivism, and therefore the provisions of Article 91-1 of the Criminal Code do not apply, the prisons or military prisons may submit relevant assessment reports to the prosecutor’s office of the competent local court or the prosecutor’s office of the military court, requesting the court or military court to issue an order for the offender to undergo compulsory treatment in a medical institution or other designated facility.” This provision was enacted and promulgated on November 9, 2011. The legislative rationale states: “To address the loophole in the prevention and control work resulting from the inability to apply the post-sentencing mandatory treatment provisions of Article 91-1 of the Criminal Code as amended and enforced after July 1, 2006, to offenders who committed sexual offenses prior to June 30, 2006, and who pose a high risk of recidivism after receiving treatment in prison... Therefore, this provision was added.” In order to comply with this amendment, the Ministry of the Interior revised and issued the Enforcement Rules of the Sexual Offenses Prevention Act on February 3, 2012, which included Article 12-1 stating: “The offender specified in Article 22-1, Paragraph 1... refers to those who committed sexual offenses before June 30, 2006, in the Republic of China.” It can be seen that the purpose of enacting the disputed second Provision at issue is to regulate cases where compulsory treatment cannot be applied in accordance with Article 91-1 of the Criminal Code before its enactment and enforcement on July 1, 2006.
The application of compulsory treatment under the disputed the second Provision at issue is not automatic for offenders who have previously committed sexual offenses before the amendment and enforcement of Article 91-1 of the Criminal Code on July 1, 2006. It is applicable only for those offenders who are still serving their sentences after the enactment of the law and who are assessed to pose a risk of recidivism at the time of the court’s ruling based on evaluation and assessment. The purpose of this provision is to ensure a more accurate identification and assessment of the future risk of recidivism for offenders. It considers the past criminal behavior of sexual offenders and evaluates their condition at the time of the ruling after receiving treatment and counseling, to determine whether compulsory treatment measures should be implemented in order to prevent further sexual offenses by these offenders, which pose a serious threat to the safety of society. In other words, the intention of the provision is to establish the continued presence of the risk of recidivism as a prerequisite for the imposition of compulsory treatment. Conversely, after the evaluation and assessment, if there exists no risk of recidivism, then there is no basis for applying the provision. Therefore, it is difficult to argue that the provision violates the principle of non-retroactivity of law.
However, for offenders who were already serving their sentences in prison for sexual offenses before the amendment and enforcement of the disputed second Provision at issue on November 9, 2011, it would indeed be difficult for them to foresee the imposition of post-sentence compulsory treatment as stipulated in the provision. Specifically, if the sexual offense was committed before the amendment and enforcement of Article 91-1 of the Criminal Code on July 1, 2006, there was no legal basis for applying the provision, since the system of post-sentence compulsory treatment was not in place at the time of the offense (referring to the latter part of Article 1 and the first Paragraph of Article 2, amended and enforced on July 1, 2006). Therefore, these inmates not only could not anticipate the content of the amendment to the second Provision at issue on November 9, 2011, but also had a legitimate expectation that they would not be subject to compulsory treatment in a designated facility after completing their sentences, as they were not subject to the application of Article 91-1 of the Criminal Code amended and enforced on July 1, 2006. Moreover, even before the amendment and enforcement of Article 91-1 of the Criminal Code on July 1, 2006, there was a system of compulsory treatment before serving the sentence for offenders of sexual offenses. If it was deemed necessary to impose compulsory treatment before the sentence for an offender who committed a sexual offense before July 1, 2006, the pre-sentence compulsory treatment system was applicable. Although this pre-sentence compulsory treatment could be deducted from the sentence and had a duration of three years, it did not require further compulsory treatment after completing the sentence, allowing for a legitimate expectation on the part of the offender. Overall, for sexual offenders whose offenses were committed before the amendment and enforcement of Article 91-1 of the Criminal Code on July 1, 2006, it can be argued that it is legitimate and worthy of protection for them to gradually reintegrate into normal social life without being subject to compulsory treatment in a designated facility after completing their sentences, as it corresponds to their legitimate and deserving reliance interests.
However, the second Provision at issue is specifically aimed at offenders who have been assessed and evaluated as posing a risk of reoffending. Its purpose is to reduce the significant risk of reoffending after the release of these inmates through compulsory treatment, in order to safeguard the safety of the general public. This serves the special and important public interest recognized in the Constitution and should take priority over the reliance interests of the individuals receiving treatment. Considering that sexual offenses often cause significant harm to the personal safety, sexual autonomy, and dignity of victims, resulting in irreparable damage, and that victims are usually unable to prevent such offenses in advance, particularly in cases of random crimes, they pose a great threat to the safety of the general public. This threat does not differ based on whether the sexual offense occurred before or after the amendment and enforcement of Article 91-1 of the Criminal Code on July 1, 2006. Therefore, based on the special and important public interest of protecting the safety of the general public, there is a legitimate and necessary justification for imposing compulsory treatment on offenders who pose a risk of reoffending after the completion of their sentences. The individual reliance interests of sexual offense inmates should give way to these considerations. In conclusion, the second Provision at issue does not violate the principle of reliance protection. Its purpose, which is to protect the safety of the general public, justifies the imposition of compulsory treatment on offenders with a risk of reoffending.
Sixth, neither the Code of Criminal Procedure nor the Sexual Offenses Prevention Act provides for the right of the person under disposition to personally appear or appoint a defense counsel in court to express their opinions regarding the application for declaration or cessation of compulsory treatment procedures. Furthermore, in cases where the recipient of treatment has a mental disorder or other mental impairment that prevents them from making a complete statement, a defense counsel should be appointed to advocate on their behalf. Within this scope, the current provisions do not comply with the principle of due process under the Constitution. The relevant authorities should review and amend these issues within two years from the date of promulgation of this interpretation. Until the amendments are completed, the court should handle the procedures for the declaration and cessation of compulsory treatment in accordance with the intent of this interpretation.
When it comes to imposing compulsory treatment on sex offenders, it constitutes a significant restriction on the personal freedom of the recipients of treatment. In addition to being subject to judicial review and determination, other appropriate legal procedures should be followed. In particular, the recipients should have the opportunity to personally appear or appoint a defense counsel in court to express their opinions during the procedures for the declaration and cessation of compulsory treatment. If the recipients are unable to provide a complete statement due to mental disorders or other mental impairments, a defense counsel should be appointed to advocate on their behalf. Only then can the principle of due process of law under the Constitution be upheld.
The fifth Provision at issue (Article 481, Paragraph 1, Second Sentence of the Code of Criminal Procedure) stipulates: “. ... shall be determined by the court that renders the final judgment on the criminal facts of the case, upon the prosecutor’s motion. The same shall apply to the imposition of compulsory treatment under Article 91-1, Paragraph 1, and the cessation of compulsory treatment under the same article, Paragraph 2.” The aforementioned second and third Provisions at issue (Article 22-1, Paragraph 3, of the Sexual Offenses Prevention Act) state: “The period of compulsory treatment under the preceding two paragraphs shall continue until the risk of reoffending significantly decreases. During the period of execution, an appraisal and evaluation of the necessity to cease treatment shall be conducted at least once a year. If, based on the assessment and evaluation, it is determined that there is no longer a need for compulsory treatment, the offender, the prosecutor of the district court having jurisdiction, the military prosecutor, or the competent authority of the special municipality or county (city) may request the court or military court to order the cessation of compulsory treatment.” Both provisions clearly state that the declaration and cessation procedures for compulsory treatment under the Sexual Offenses Prevention Act require a ruling from a court or military court. However, neither the Code of Criminal Procedure nor the Sexual Offenses Prevention Act specify that the person under sanction should be granted the opportunity to personally appear or appoint defense counsel to present their opinions during the application for declaration or cessation of compulsory treatment procedures. Additionally, if the recipient of treatment has mental disorders or other mental impairments that prevent them from making a complete statement, defense counsel should be provided to advocate on their behalf. Within this scope, the current provisions do not comply with the constitutional principle of due process. The relevant authorities should review and amend these provisions within two years from the date of this interpretation. Until the amendments are completed, the courts should handle the procedures for the declaration and cessation of compulsory treatment in accordance with the intent of this Interpretation.
Seventh, the fifth Provision at issue does not violate the spirit of the constitutional protection of the right to litigation.
Although it explicitly states that the cessation of compulsory treatment should be requested by the prosecutor to the court and does not provide for the recipient of treatment to make such a request, according to the provision in Article 91-1, Paragraph 2 of the Criminal Code, if the annual assessment and evaluation conclude that the significant reduction in the risk of reoffending has not been achieved and the treatment needs to continue, the recipient of treatment can still raise objections to the prosecutor’s decision to continue compulsory treatment in accordance with Article 484 of the Code of Criminal Procedure. This allows the appraisal and evaluation conclusion regarding the failure to achieve a significant reduction in the risk of reoffending to be reviewed by the court. Therefore, it is difficult to argue that the disputed fifth Provision contradicts the spirit of the constitutional protection of the right to litigation.
Eighth, the current system of compulsory treatment has the potential to approach punishment over time, which contradicts the constitutional requirement of a clear distinction between the execution of punishment and treatment. The relevant authorities should make effective adjustments and improvements within three years from the date of this Interpretation to ensure that the results of the compulsory treatment system align with the constitutional requirement of a clear distinction.
The construction and actual implementation of the compulsory treatment system must comply with the constitutional requirement of a clear distinction from punishment and its execution, as mentioned earlier. While the requirements and time limits for the implementation of the compulsory treatment system established under Article 91-1 of the Criminal Code do not pose a constitutional concern in terms of legal norms, the actual operation of the compulsory treatment system heavily depends on the directives and decisions of the executing authorities. Due to limited administrative resources and the fact that the executing authorities for compulsory treatment are the same as those for punishment, there is a possibility that the long-term operation of the system may approach the execution of punishment, deviating from the constitutional requirement of a clear distinction. Therefore, to avoid future constitutional challenges to the compulsory treatment system, the relevant authorities should make effective adjustments and improvements within three years from the date of this Interpretation in the following three aspects, ensuring that the results of the compulsory treatment system align with the constitutional requirement of a clear distinction.
First, the specific implementation of compulsory treatment as defined in Article 91-1 of the Criminal Code is currently governed only by the Execution Act of Security Measures, which provides limited regulations. The Execution Act of Security Measures is a general legal framework for the execution of various security measures under the Criminal Code and its direct applicability to the provisions regarding compulsory treatment is quite limited. There are only four specific provisions directly addressing compulsory treatment, and their content is relatively brief. Given the substantial differences in the nature and purpose of compulsory treatment compared to other types of security measures, the regulations governing its specific implementation, such as the requirements for treatment facilities, treatment procedures, internal management and discipline requirements, and qualifications and staffing of professionals, should be more comprehensively and specifically addressed in the law to align with the nature and purpose of treatment.
Furthermore, Article 91-1 of the Criminal Code only stipulates that compulsory treatment should be administered in a suitable establishment, without providing further details. The Execution Act of Security Measures specifies that the establishment for compulsory treatment should be a public or private medical institution. Currently, the compulsory treatment establishments are located within prison settings and serve as annex hospitals providing medical services to inmates. These establishments share the same building infrastructure as the prison. As a result, it becomes difficult to distinguish visually between an establishment for punitive purposes and an establishment for compulsory treatment. The consistent control and establishment measures imposed on the external aspects of the building also subject the individuals receiving treatment to similar restrictions to those of inmates. Additionally, the shared internal security measures may further contribute to a similar treatment experience between individuals undergoing compulsory treatment and inmates. Consequently, locating compulsory treatment establishments within prison annexes can result in a convergence of experiences between individuals undergoing treatment and those serving sentences, making it challenging to clearly differentiate the implementation of compulsory treatment from punitive measures. Moreover, it is not evident whether individuals receiving medical services at these establishments are undergoing compulsory treatment or are inmates, leading to potential misunderstandings due to the appearance of the prison annex establishments. These factors collectively violate the requirement for a clear distinction as mandated by the Constitution. Therefore, compulsory treatment establishments should have distinct and recognizable management and spatial separation from prisons and their annex medical institutions.
In addition, the current implementation of compulsory treatment, as outlined in the Ministry of Justice’s Operational Guidelines for Post-Sentencing Compulsory Treatment of Offenders Convicted of Sexual Offenses, still emphasizes a uniform management approach and lacks specific guidelines regarding individualized treatment methods and procedures. However, since the goal of compulsory treatment is to prevent individuals from reoffending in the future rather than punishing them for their past sexual offenses, the implementation should differ from the execution of punitive measures, where fairness and consistency are generally applied to inmates. To fulfill the requirement for a clear distinction as mandated by the Constitution and in line with the future enactment of relevant statutory regulations for the execution of compulsory treatment, the executing authorities should adhere to the principles of individuality and expertise. They should assess and evaluate the specific circumstances of the individuals undergoing treatment, develop individualized treatment plans, and provide appropriate treatment. Additionally, they should strive to assist and facilitate the individuals in achieving the treatment goal of significantly reducing the risk of reoffending, thereby regaining their freedom and reintegrating into society. This includes the establishment of progressive treatment indicators that are commonly applicable, allowing individuals to anticipate the indicators and corresponding easing measures at each stage of their treatment, with the positive expectation of the day when the treatment will be discontinued. At the same time, the limitations imposed on the personal liberty of individuals undergoing treatment during the treatment period, such as restrictions on personal privacy, freedom of communication, and visitation, should only be applied within the appropriate and necessary scope of individual cases. This should be distinct from the execution of punitive measures, aiming to protect the safety interests of society while appropriately safeguarding the constitutionally protected personal freedom and other liberties of the individuals undergoing treatment.
In addition, the compulsory treatment system and its practical implementation, as stipulated in Article 22-1 of the Sexual Offenses Prevention Act, also raise concerns similar to those mentioned regarding Article 91-1 of the Criminal Code, which may be subject to constitutional challenges. The relevant authorities should, within three years from the date of this Interpretation, make effective adjustments and improvements based on the aforementioned Interpretation, to ensure that the results of the compulsory treatment system comply with the constitutional requirement of clear distinction.
The nature of post-sentencing compulsory treatment and its supervisory authority should be examined and evaluated.
According to Article 91-1 of the Criminal Code, post-sentencing compulsory treatment is essentially a therapeutic procedure led by professionals, where the individuals undergoing treatment are placed in the position of “patients” receiving treatment. The objective of compulsory treatment is to effectively reduce the risk of reoffending for the individuals undergoing treatment, rather than imposing criminal punishment on them. This forms the basis of the present interpretation. Therefore, the relevant authorities should review and assess whether post-sentencing compulsory treatment should continue to be classified as a security measure under criminal regulations and determine the appropriate supervisory authority based on the foundation of this Interpretation.
Non-Admission of Certain Claims
Furthermore, the Petitioner 5 claims that Article 14 of the Code of Civil Procedure violates certain provisions of the Constitution, while the Petitioner 6 argues that Article 91-1, Paragraph 1, Subparagraph 2 of the Criminal Code contradicts certain provisions of the Constitution. It is noted that these provisions are not the applicable laws in the present case under consideration. Therefore, with respect to these two claims, they do not meet the requirements for requesting constitutional interpretation as outlined in J.Y. Interpretations Nos. 371, 572, and 590, and thus they should not be admitted.
*Translated by Kuo-Hsing HSIEH