Hsu Hongwei, the petitioner, was sentenced to life imprisonment in the Taiwan High Court Criminal Judgment 92-Shang-Zhong-Geng(1)-39 (2003) for committing murder (as a recidivist). His appeal to the Supreme Court was dismissed in the Supreme Court's Criminal Judgment 92-Tai-Shang-6570 (2003), which thus affirmed his conviction. He was then imprisoned on Taiwan High Prosecutors Office Command Instructions for Execution 92-Zhi-Wu-503 on December 9, 2003. The petitioner objected to the Taiwan High Court regarding the calculation of his pre-conviction detention days and their inclusion in the execution period of his life sentence. He claimed that he had been detained for a total of 985 days from March 11, 1990, to November 20, 1992, before the final judgment was finalized. But due to Article 77, Paragraph 3 of the Criminal Code, one year (365 days) was deducted from the total number of days of pre-conviction detention. Only the remaining 620 days could be counted as part of the period of execution required for parole prescribed in Paragraph 1 of the same article, a provision which infringes on the rights guaranteed by the Constitution. After the Taiwan High Court dismissed the motion of objection in its criminal order 105-Sheng-2049, the petitioner filed an interlocutory appeal. This interlocutory appeal was dismissed for lack of merit in Supreme Court criminal order 105-Tai-Kang-683, and High Court’s dismissal was finalized. The petitioner filed a petition to this Court, arguing that the above provisions applicable to the final order potentially violate Articles 7, 8 and 23 of the Constitution.
The petitioner seeks constitutional interpretation of Article 77, Paragraph 3 of the Criminal Code. However, the first paragraph of Article 7-2 of the Enforcement Law of the Criminal Code stipulates: “Where the offense was committed after the amendment and promulgation of the Criminal Code on November 26, 1997, but before the amendment and promulgation of the Criminal Code on January 7, 2005, the parole of the offender shall be in accordance with the provisions of paragraph 1 of Article 77 as amended and promulgated on November 26, 1997.” Upon examining the petitioner's true intention, considering the consistent meaning of the legal provisions before and after the amendment, and to effectively protect the petitioner's rights, this Court determines that the subject matter of this case is Paragraph 2 of Article 77 of the Criminal Code as amended and promulgated on November 26, 1997 (hereinafter referred to as 'the disputed provision'). When this article was amended and promulgated on February 2, 2005, the provision was moved to Paragraph 3 of the same article, with only textual adjustments but with the same regulatory intent. This clarification is necessary at the outset.
In addition, although the disputed provision is not the basis for the Supreme Court's final order, the petition involves issues concerning how pre-conviction detention is counted as part of the executed period for life imprisonment and how it is deducted from fixed-term imprisonment. In order to effectively protect the petitioner's rights, this interpretation is made in accordance with Article 5, Paragraph 2, Subparagraph 1 of the Constitutional Court Procedure Act. The grounds for this interpretation are as follows:
Based on the principle of equality stipulated in Article 7 of the Constitution, legislators should treat like cases alike and different cases differently. If similar situations are treated differently without justifiable reason, or different situations are treated identically, such treatment violates the principle of equality in Article 7 of the Constitution (J. Y. Interpretation Nos. 666, No. 687, and No. 793 for reference). The assessment of whether legal norms comply with the principle of equality should be based on determining whether the differential treatment serves a legitimate constitutional objective and whether the classification employed bears a reasonable relationship to the attainment of that objective. Since pre-conviction detention involves significant restrictions on personal freedom, when legislators determine whether pre-conviction detention periods can be counted as part of the execution period required for parole, any differential treatment should be subjected to the moderate scrutiny standard. The purpose of such differential treatment must be to pursue important public interests, and the means adopted must be substantially related to the achievement of that purpose. Only then would such treatment comply with the constitutional principle of equality.
According to Article 37-2, Paragraph 1 of the Criminal Code: 'The number of days of pre-conviction detention as determined by the judgment shall be deducted from fixed-term imprisonment at the rate of one day per day...' Article 77, Paragraph 1 of the Criminal Code, as amended and promulgated on November 26, 1997, stipulates: 'An inmate who shows evidence of repentance may be granted parole by the Ministry of Justice upon the prison's recommendation, provided that the inmate has served at least 15 years of a life sentence (at least 20 years for recidivists), or at least one-half of a fixed-term sentence (at least two-thirds for recidivists).' Paragraph 2 of the same article (the disputed provision) clearly states: 'The number of days of pre-conviction detention exceeding one year before the life imprisonment judgment becomes final shall be counted as part of the execution period referred to in the preceding paragraph.' For individuals sentenced to life imprisonment, only pre-conviction detention periods exceeding one year are included in the execution period for parole eligibility. In contrast, no such restriction applies to fixed-term prisoners. This discrepancy highlights unequal treatment in how pre-conviction detention is accounted for between these two categories. This creates a disparity in how pre-conviction detention is treated when counting as part of the execution period required for parole between life-imprisoned and fixed-term prisoners.
The disputed provision was added when the Criminal Code was amended and promulgated on January 28, 1994. During the legislative process, there was initially a consensus among members of the Judiciary Committee of the Legislative Yuan that pre-conviction detention days should be counted as part of the execution period required for parole in life imprisonment cases (see Legislative Yuan Gazette, Volume 83, Issue 8, Committee Records pages 370-371, 374-377, 386-390). The original proposal suggested that pre-conviction detention should be fully credited at a one-to-one ratio, similar to fixed-term imprisonment (see Legislative Yuan Gazette, Volume 83, Issue 8, Committee Records pages 395-396). However, at that time, Article 77, Paragraph 1 of the Criminal Code stipulated that a person sentenced to life imprisonment showing evidence of repentance could be granted parole after serving at least 10 years. The Ministry of Justice, as the competent authority, expressed concern that if all pre-conviction detention days were counted toward this execution period, there would be little practical difference between the execution of life imprisonment and fixed-term imprisonment sentences, creating a significant imbalance in the punishment system (see Legislative Yuan Gazette, Volume 83, Issue 8, Committee Records pages 373, 375-376). Following internal committee deliberations and negotiations, the proposal was modified to the current calculation method, which received majority support during the third reading (see Legislative Yuan Gazette, Volume 83, Issue 7, Plenary Session Records pages 208-210). The legislative rationale stated: 'For life imprisonment, it is explicitly stipulated that only pre-conviction detention periods exceeding one year before the judgment becomes final shall be counted as part of the execution period referred to in the preceding paragraph.' This clearly indicates that different standards should apply to life imprisonment versus fixed-term imprisonment, and that counting pre-conviction detention periods exceeding one year was considered a fair compromise.
If a legislative provision allows pre-conviction detention periods exceeding one year to be counted as part of the execution period required for parole in life imprisonment cases, this inclusion should be carefully considered in comparison with fixed-term imprisonment judgments. Counting pre-conviction detention days acknowledges that the prisoner was already deprived of freedom before the judgment was finalized, ensuring a reasonable balance in the limitation of personal freedom. However, legislators recognize that when including pre-conviction detention in the execution period, distinctions between life imprisonment and fixed-term imprisonment are necessary. Different standards should apply based on the sentence type to maintain fairness. This differential treatment aims to preserve the distinction between life imprisonment and fixed-term imprisonment, as well as the fundamental nature of the fixed-term imprisonment system. Since maintaining this distinction serves an important public interest, such differential treatment is difficult to deem unconstitutional. Although the execution periods required for parole differ between life imprisonment and fixed-term imprisonment, their institutional purpose remains the same: to allow incarcerated individuals who demonstrate evidence of repentance and meet parole conditions to be released early, facilitating their reintegration into society and enhancing rehabilitation. Regarding formal parole eligibility requirements, the provisions in question were first introduced in Article 77 of the Criminal Code, as amended and promulgated on January 28, 1994. Since then, the parole eligibility period for life imprisonment has undergone two amendments. The first amendment, promulgated on November 26, 1997, extended the minimum period before parole eligibility from the original 10 years (as set in the 1994 amendment) to 15 years, and to 20 years for recidivists. Subsequently, the second amendment, promulgated on February 2, 2005, and effective as of July 1, 2006, further extended the minimum parole eligibility period for life imprisonment to 25 years, which remains in effect today.
In other words, under the current legal framework, incarcerated individuals who demonstrate evidence of repentance must serve at least 25 years of a life sentence before becoming eligible for parole. In contrast, those serving fixed-term sentences must complete at least half of their sentence—typically a maximum of 10 or 15 years, as stipulated in Article 33, Paragraph 3, and Article 51, Paragraph 5 of the Criminal Code. For recidivists, at least two-thirds of the sentence must be served before becoming eligible for parole. These clear distinctions in parole eligibility periods for life imprisonment and fixed-term imprisonment eliminate any potential for confusion. This differentiation underscores that legislators have deliberately established distinct parole requirements for life and fixed-term imprisonment, reflecting different assessments of their respective legal and rehabilitative implications.
Second, when the legal system considers pre-conviction detention periods, there may be inherent differences between general detention and preventive detention. However, regardless of whether the defendant is ultimately sentenced to life imprisonment or fixed-term imprisonment, the restrictions on personal freedom during pre-conviction detention and the resulting adverse effects remain identical, which eliminates any rational basis for differential treatment. While legislators maintain discretion in determining whether pre-conviction detention periods can be counted as part of the execution period required for parole, once such a policy is established, there is no legitimate reason to create a distinction between life imprisonment and fixed-term imprisonment that places those sentenced to life imprisonment at a significant disadvantage.
In addition, under current law, if a person sentenced to life imprisonment is detained before the final judgment, the total cumulative period of pre-conviction detention during investigation and trial may not exceed 5 years and 4 months (referencing Article 108, Paragraph 5, and Article 5, Paragraph 3 of the Criminal Procedure Law). However, before the amendment promulgated on June 19, 2008, and its implementation on June 19, 2019, the maximum pre-conviction detention period was 8 years and 4 months under the same provisions. Furthermore, according to Articles 75 and 76 of the Regulations on Progressive Execution, a prisoner must reach at least the second level of progressive execution before becoming eligible to apply for parole. Since the relevant amendment to Article 77 of the Criminal Code, individuals sentenced to life imprisonment—whether under the Progressive Execution Regulations at that time or under later versions (Articles 19 to 21 and Article 10 of the Implementation Rules)—are still required to serve a significant period in prison before reaching the second level and becoming eligible for parole. Even if the entire pre-conviction detention period were counted as part of the execution of a life sentence, it would be impossible for a life-sentenced prisoner to reach the second level within just six months of actual imprisonment, which is a prerequisite for parole eligibility. In contrast, a person serving a fixed-term sentence can apply for parole after serving at least six months of imprisonment (as per Article 77, Paragraph 1, Subparagraph 2 of the Criminal Code). This creates a potential imbalance in the parole system between life imprisonment and fixed-term imprisonment.
In summary, the disputed provision stipulates that pre-conviction detention periods of less than one year prior to the final judgment shall not be counted as part of the execution period required for parole eligibility in life imprisonment cases. While distinct standards may justifiably apply to life imprisonment versus fixed-term imprisonment execution, there is no substantial connection between excluding detention periods of less than one year and the legitimate purpose of maintaining fairness in the criminal justice system. Therefore, this provision violates the principle of equality under Article 7 of the Constitution and shall become invalid from the date of publication of this interpretation. As a result, the entire duration of pre-conviction detention served before the final judgment in life imprisonment cases shall be counted as part of the execution period required for parole eligibility.
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* Translated by Chia-Wen LEE