The applicant, the Criminal CourtRoom 1 of the Supreme Court (hereinafter referred to as Applicant 1), handled the case of the Supreme Court 107-Tai-Shang-2237 (2018) of the Organized Crime Prevention Act, and found that the provision of Article 3(3) of the Organized Crime Prevention Act which requires that those who participate in a criminal organization, regardless of the severity of the circumstances, all be sent to a labor facility for educational compulsory labor for three years before the execution of the sentence, violates Article 8 of the Constitution on due process of law as well as the principle of proportionality under Article 23. The rehabilitative measure of liberty and security of persons should be subject to consideration of the case's circumstances by the trial court to determine whether or not to declare it and its content to conform to the substantive due process of law and the concept of a fair court, as well as to maintain the balance between punishment and rehabilitative measure. J.Y Interpretation No. 528 also ruled that it was necessary to make changes due to the amendment of the Organized Crime Prevention Act and suspended the litigation process for constitutional interpretation.
The Criminal CourtRoom 3 of the Taitung District Court in Taiwan, the applicant (hereinafter referred to as Applicant 2), handled cases of violation of the Organized Crime Prevention Act which are the Taitung District Court 107-Su-31, 63, & 157 (2018), and found that the provision of Article 3, Paragraph 1 of the Organized Crime Prevention Act, which requires that those who participate in a criminal organization, regardless of the severity of the circumstances, all be sent to a labor facility for educational compulsory labor for three years before the execution of the sentence, did not give judges discretion in individual cases and may lead to a suspicion of overbroad coverage, which may cause an imbalance in the severity of cases and violate Article 8 of the Constitution on due process of law and the principle of proportionality under Article 23. Therefore, they suspended the litigation process for constitutional interpretation.
In the criminal case with the docket number 107-Jin-Su-10, which was heard in Criminal Court Room 4 of the Taiwan Nantou District Court, the applicant (hereinafter referred to as Applicant 3), raised concerns regarding the application of Article 3, Paragraph 3 of the Organized Crime Prevention Act. The court imposed a three-year sentence of educational compulsory labor on the defendant without adequately considering the severity of the offense or the necessity for prevention and correction. While J.Y. Interpretation No. 528 previously deemed this provision constitutional, subsequent amendments to the Organized Crime Prevention Act have introduced changes such as the inclusion of "pre-trial educational compulsory labor" and an expanded definition of criminal organizations. As a result, the constitutional basis of J.Y. Interpretation No. 528 is now under question. Consequently, the court has suspended the proceedings and submitted a request to this Court for a constitutional review.
The judge presiding over cases including 109-Yi-318, 109-Shien-169, and 108-Jin-su-269 in Criminal CourtRoom 5 of the Taiwan Taichung District Court (hereinafter referred to as applicant 4) has expressed concerns regarding the application of various provisions under the Organized Crime Prevention Act. These provisions include Article 90, Paragraphs 1 and 2 of the First Sentence of the Criminal Code, Article 3, Paragraph 1 and Article 5, Paragraph 1 of the Rehabilitative Measures for Burglar and Fence Criminals Act, as well as Article 3, Paragraph 3 of the Organized Crime Prevention Act. The applicant argues that these provisions, which allow for the imposition of educational compulsory labor in addition to imprisonment, have a strong punitive nature and restrict the protected liberties and security of individuals under Article 8 of the Constitution. The imposition of educational compulsory labor as a rehabilitative measure, separate from the execution of punishment, involves a dual evaluation process that infringes upon the due process of law and the principle of proportionality as outlined in Article 8 and Article 23 of the Constitution, respectively. In light of these concerns, the court has decided to suspend the proceedings and seek a constitutional review from this Court. It is therefore requested that J.Y. Interpretations No. 471 and No. 528 of the Judicial Yuan be amended accordingly.Furthermore, in the larceny case 109-Yi-1917, the court has similarly suspended the proceedings based on the same grounds pertaining to Article 90, Paragraphs 1 and 2 of the First Sentence of the Criminal Code and Article 3, Paragraph 1 and Article 5, Paragraph 1 of the Rehabilitative Measures for Burglar and Fence Criminals Act.
The four applications filed by Applicants 1 to 4 are all in compliance with the requirements for judges to request constitutional interpretations as set forth in J.Y Interpretations Nos. 371, 572, and 590. Therefore, they are accepted. The cases to be reviewed and the subject matter of the constitutional interpretation accepted for each petition are listed in Appendix 1.
Applicant Ssu-Hai Ke (hereinafter referred to as Applicant 5) claims that the provision of Article 90 of the Criminal Code, as applied in the final and conclusive judgment as shown in Appendix 2, is unconstitutional in his case of fraud. The reason is that "refusing to work" is a right protected by the Constitution, and the nation cannot force the people to work by law. Given that the punishment for continuous offenses was abolished in the Criminal Code, there is no need to consider supplementing insufficient penalties with educational compulsory labor provisions. Therefore, the system of educational compulsory labor no longer has the rationality and legitimacy to continue to exist, and the provision violates Article 8 and Article 23 of the Constitution. Applicant Hung-Yang Fang (hereinafter referred to as Applicant 6) claims that the provision of Article 90 of the Criminal Code, as applied in the final and conclusive judgment as shown in Appendix 2, is unconstitutional in the case of fraud. Applicant Lung-Sheng Wang (hereinafter referred to as Applicant 7) claims that the provision of Article 90 of the Criminal Code, as applied in the final and conclusive judgment as shown in Appendix 2, is unconstitutional in the case of fraud. Applicant Chih-Lin Chou (hereinafter referred to as Applicant 8) claims that the provision of Article 90 of the Criminal Code, as applied in the final and conclusive judgment as shown in Appendix 2, is unconstitutional in the case of robbery and other crimes. Applicant Pi-Fu Chen (hereinafter referred to as Applicant 9) claims that the provision of Article 90 of the Criminal Code, as applied in the final and conclusive judgment as shown in Appendix 2, is unconstitutional in the case of aggravated fraud and other crimes. Applicant Hsin-Chih Chen (hereinafter referred to as Applicant Ten) claims that the provision of Article 90 of the Criminal Code, as applied in the final and conclusive judgment as shown in Appendix 2, is unconstitutional in the case of aggravated fraud and other crimes. The reason is that the final and conclusive judgment imposed imprisonment and also declared three years of educational compulsory labor under the provision, and although Article 98, Paragraph 2 of the Criminal Code provides that after the execution of the educational compulsory labor punishment or partial exemption, the entire or partial execution of the punishment may be exempted, in reality, it is rare to exempt the entire or partial execution of the punishment, making the provision meaningless. The accumulation and progression of the punishment cannot be continued, and there is no relief for educational compulsory labor without the possibility of legal remedy, which violates the principle of proportionality and the principle of preventing double jeopardy and only authorizing one punishment under the Constitution.
The applicants Xin-Yao Huang, Chiao-Hsien Huang, Yin-Tzu Lu, Li Yu, Chia-Ming Hsu, Wei-Chih Kuo, Yun-Ming Peng, Ching-Wen Chen, Tsung-Li Kuo, Yi-Chung Yen, Chia-Chang Lu, Yu-Ying Hsien, I-Wei Chan, Kuo-Wen Lin, Wen-I Li, Ying-Hao Chou, Tzu-Chien Wang, Cheng-Nan Wu, and Lung-Hui Shih (referred to as applicants 11 to 29), contend that the application of Article 3, Paragraph 1 or Paragraph 5 of the Theft and Robbery Punishment Act, as listed in Annex 3, in final and binding judgments is unconstitutional. They present the following arguments: With the abolition of the provision on Successive Offense, the Criminal Code has adopted the principle of one crime, one punishment. However, in the final and binding judgments, imprisonment and a declaration of three-year educational compulsory labor are imposed for the same criminal act. Moreover, during the imprisonment period, offenders can also participate in various skills training. The execution of educational compulsory labor is indistinguishable from that of imprisonment. However, educational compulsory labor cannot be credited toward the sentence, nor can it continue after the imprisonment period. Therefore, the imposition of educational compulsory labor beyond imprisonment violates the principle of preventing double jeopardy, excessively encroaches upon the liberty and security of individuals, contravenes the constitutional principles of equality and proportionality, and fails to provide remedies for rejecting the continuation of educational compulsory labor and exempting sentence execution, thereby violating the principle of due process of law. Applicant 25 also requests a constitutional interpretation of the provisions of Article 90, Paragraphs 1 and 2 of the First Sentence of the Criminal Code.
Applicants Shu-Ting Huang, Ssu-Han Wang, Sheng-Ju Tang, Hung-Liang Peng, Chia-Wei Tsai, Ching-Wen Chan, and Kuan-Chang Su (referred to as applicants 30 to 36) have all been convicted of violating the Organized Crime Prevention Act. They contend that the application of Article 3, Paragraph 3 of the Organized Crime Prevention Act, as listed in Annex 4, in the final and binding judgments is unconstitutional. Their argument can be summarized as follows: Regardless of the severity of the crime committed, the regulation imposes a mandatory three-year educational compulsory labor without considering whether the offenders require preventive measures or correction of their social risks. This results in a deprivation of their liberty and security, and the punishment exceeds the illegal nature of their actions, as it does not offset the prison term and effectively duplicates the execution of imprisonment, thereby violating the principle of proportionality. Furthermore, the execution of imprisonment already includes training programs within regular prison settings, which serve the same purpose as educational compulsory labor. It is also argued that the shortcomings in the punishment function should not be rectified by imposing educational compulsory labor on a small subset of individuals.
The applicants from the fifth to the thirty-sixth cases have all met the requirements stipulated in Article 5, Paragraph 1, Subparagraph 2 of the Act Governing the Implementation of the Constitution of the Judicial Yuan (hereinafter referred to as the Grand Justices Act), and therefore their applications are accepted. The final judgments and the subject matters of the constitutional interpretation in the aforementioned cases are listed in Appendix 2 to 4, and the contents of the constitutional interpretation are listed in Appendix 5.
The 39 applications filed by the 36 applicants all relate to the constitutional controversy of whether educational compulsory labor can be imposed on criminal offenders. As there are common issues involved, the cases are consolidated for joint consideration. After announcing the matter for oral argument, the applicants numbered one to eight, eleven to twenty-seven, and thirty to thirty-five, as well as representatives from the Ministry of Justice and the Judicial Yuan (Criminal Department) and their attorneys, were notified to appear for oral argument on October 12, 2021, in accordance with Article 13(1) of the Act on the Organization of the Constitutional Court. The parties numbered nine, ten, twenty-eight, twenty-nine, and thirty-six were not notified to appear for oral argument as their applications were filed after the period for the announcement of the oral argument. Additionally, expert witnesses and amici curiae from the Control Yuan and the National Human Rights Commission were invited to give their opinions. After the conclusion of the oral argument, the applicants Tsung-Li Kuo et al., filed a motion on October 21, 2021, requesting a further oral argument. However, after considering the evidence obtained during the hearing process, the Constitutional Court found no need to hold a further oral argument, and this is hereby stated.
The summary of the statements made by the applicants and relevant agencies during the oral argument hearing is as follows:
Applicant 2 asserts that the provision stated in Article 3, Paragraph 3 of the Organized Crime Prevention Act, which imposes a mandatory three-year educational compulsory labor sentence regardless of the gravity of the offense, significantly curtails the discretion of the trial judge. They argue that this inflexible approach may result in potential problems of disproportionality and violation of the proportionality principle. In light of these concerns, they advocate for subjecting this case to the strictest scrutiny test, emphasizing the need for careful examination and evaluation of its constitutionality.
Applicants 5 and 6 or their representatives argued in the oral argument that educational compulsory labor violates the principle of proportionality. First, from the perspective of suitability, the causes of criminal habits are diverse and complex. It is not effective to rely on educational compulsory labor as the only means, i.e. to provide skills training to the person subject to the disposition during the punishment period to solve the problem of criminal habits. The key point may be how to help the person in custody find a job after release. In addition, educational compulsory labor is not the minimum invasive means. There are other means, such as employment services including vocational training and matching, protective restraint, or community treatment, which are equally effective for correcting the person subject to the disposition as well as less invasive. Moreover, from the perspective of cost-benefit analysis, declaring educational compulsory labor for 3 years across the board may result in shorter-term offenders having to undergo compulsory labor for a longer period, which may result in an imbalance of severity in individual cases. It is also argued that there is no clear distinction between educational compulsory labor and punishment in terms of purpose, function, institutional norms, or practical implementation. It is further argued that educational compulsory labor violates human dignity and the principle of prevention of double jeopardy. The provisions in the disputed issue in Appendix 5 violate the principle of legal certainty, etc.
The Ministry of Justice argues as follows regarding relationship agency: Some applicants misunderstand the practical operation of educational compulsory labor. In reality, educational compulsory labor is a benevolent law and intention of the state toward specific criminals. The training programs are established for individuals subject to educational compulsory labor. If there are extra slots available, inmates are allowed to participate in learning together. It should not be considered a violation of the principle of clear distinction simply because individuals subject to educational compulsory labor and inmates participate in the same training courses. Based on empirical data, educational compulsory labor does indeed achieve the effect of reducing recidivism, which is in line with the principle of proportionality. As for the execution of the distinction, it is currently being gradually improved, but this flaw does not render the entire system of educational compulsory labor unconstitutional.
The Judicial Yuan (Criminal Department), as the relevant judicial authority, asserts that the declaration of educational compulsory labor, the suspension of execution, and the exemption from punishment are all accompanied by adequate safeguards through procedural remedies. It maintains that there is no insufficiency in the protection provided by these measures.
This court has thoroughly examined the constitutional petition, engaged in comprehensive debate, considered expert opinions, reviewed the opinions of the amici curiae, and conducted an on-site investigation of the Taiyuan Skills Training Center of the Agency of Corrections, Ministry of Justice on October 29, 2021. Based on these proceedings, this interpretation is made, with the following reasons presented:
First. The Principle of Review
The restriction on liberty and security of persons should meet the requirements of the constitutional principle of proportionality.
The protection of personal liberty and security, as enshrined in Article 8 of the Constitution, is of the utmost importance as it forms the foundation for individuals to exercise other constitutionally guaranteed freedoms. According to previous interpretations by this Court, any restrictions imposed on personal liberty and security that are akin to criminal punishment, regardless of whether they are classified as such, must be governed by law and adhere to the principle of proportionality as outlined in Article 23 of the Constitution. When assessing the constitutionality of limitations on personal liberty and security, the appropriate standard of review should be determined based on the manner, purpose, extent, and impact of the specific restriction, as established in J.Y. Interpretation Nos. 384, 690, 708, 710, and 799 of this Court.
As detailed in Appendix 5, the provisions in question, specifically provisions 1 to 7 concerning educational compulsory labor, are not explicitly classified as criminal punishment. They encompass both pre-trial and post-sentence compulsory work. However, these provisions do involve the deprivation of personal liberty and security and exhibit a distinct punitive nature (referring to the legislative intent stated in Article 1 of the Criminal Code, as amended and promulgated on February 2, 2005). Implementation of these provisions takes place within labor facilities established by the Ministry of Justice, where individuals are isolated from society, and the conditions closely resemble those experienced by prisoners (as referenced in Article 15, Paragraph 1, Article 21, and Articles 52-63 of the Rehabilitative Disposition Execution Act). Consequently, there exists a substantial restriction on the liberty and security of individuals liable to penalty. Determining whether this restriction violates the principle of proportionality necessitates rigorous scrutiny (referring to J.Y. Interpretation No. 799 issued by this Court). The purpose of this restriction should be to pursue a particularly important public interest, the means adopted should contribute to achieving the purpose, and it should be the minimum infringement on the rights of the person liable to penalty. The sacrifice of private interests for the pursuit of public interests should be proportional.
The norms and implementation of rehabilitative measures restraining liberty and security of persons should adhere to the constitutional principle of clear distinction.
In our country's criminal law system, there is a dual-track legislative framework for punishment and rehabilitative measures. The legislature, in dealing with individuals engaged in criminal behavior that poses a social risk, not only imposes punishment for their criminal acts according to the law but also applies various rehabilitative measures to address their antisocial or dangerous characteristics. The purpose is to improve and rehabilitate their deviant personalities and safeguard the safety of the general public. In other words, rehabilitative measures are not intended as punishment for the past criminal behavior of individuals but rather as corrective measures aimed at preventing future crimes and protecting society from potential harm posed by individuals with a propensity for criminal behavior. The constitutional basis and limitations of rehabilitative measures differ fundamentally from those of punishments. Therefore, the specific formulation of rehabilitative measures, including their design standards actual implementation, especially those measures that restrict liberty and security of persons, must be clearly distinguished from punitive measures in order to be constitutionally permissible (referring to J. Y Interpretation No. 799 by the Court).
Educational compulsory labor serves as a rehabilitative measure aimed at addressing individuals with a significant level of social risk due to criminal offenses. In addition to imposing criminal penalties, the legislature may opt to impose educational compulsory labor as a means to facilitate the improvement and correction of deviant behaviors, thereby promoting public safety. It is crucial, however, to establish clear differentiation between the regulations and execution of educational compulsory labor and the imposition and execution of criminal sanctions, in line with the constitutional principle of clear distinction.
Second. Article 90 of the Criminal Code Stipulates the Role of Educational Compulsory Labor.
The pre-trial educational compulsory labor prescribed in Article 90, Paragraphs 1 and 2 (of the First Sentence) of the Criminal Code, as amended and promulgated in 1994, violates the constitutional principle of proportionality under Article 23 and is inconsistent with the spirit of safeguarding liberty and security of persons under Article 8 of the Constitution.
On February 2, 1994, the amended Criminal Code (referred to as the "1994 Amended Criminal Code'') was promulgated and effective from July 1, 1995. Article 90, Paragraphs 1 and 2, First Sentence of the 1994 Amended Criminal Code explicitly states the following: "(Paragraph 1) Any person who is a habitual criminal or commits an offense because of habits of loitering or vagrancy, before execution of punishment, shall be committed to a labor establishment to perform educational compulsory labor." "(Paragraph 2, First Sentence) The period for educational compulsory labor prescribed in the preceding paragraph shall be three years." The provision applies to individuals who have a habitual criminal tendency or commit crimes due to vagrancy or laziness, and the punishment period is uniformly set at three years, to be carried out before the execution of the sentence. The purpose of this provision should be to cultivate a habit of diligence and a work ethic through educational compulsory labor, acquire vocational skills, and correct the criminal habits, vagrancy, or laziness of the individuals subject to the punishment, thereby preventing them from recommitting crimes and endangering public security upon completion of their sentence. It embodies an active intention for specific crime prevention. Safeguarding public security and preventing crime are crucial tasks of the State, and the purpose pursued by this disputed provision can be considered as a particularly important public interest.
Disputed Provision #1 pertains to the utilization of educational compulsory labor as a means to achieve the aforementioned objectives. Prior to the execution of the penalty on the individual responsible for the offense, their personal liberty and security are restricted, and they are confined to designated labor facilities (referring to Articles 2 and 52 of the Rehabilitative Disposition Execution Act) to participate in assigned work or receive specialized skill training. While the effectiveness of this approach in rectifying the individual's behavioral patterns, such as habits, vagrancy, or laziness, and preventing future recidivism may be viewed with skepticism, it is reasonable to assume that acquiring vocational skills would assist the individual in leading a normal life post-release and contribute to reduction of the likelihood of reoffending to some extent. Therefore, the disputed provision does not contravene the principle of suitability.
As for the necessity of the disputed provision which adopts educational compulsory labor, while the purpose of the provision is to pursue special (crime) prevention and has its legitimacy and importance, special (crime) prevention is one of the important purposes of punishment, and the imposition and execution of various punishments including imprisonment are means to achieve the purpose of special (crime) prevention. It is not necessary to adopt an educational compulsory labor measure independent of the punishment measures, which restricts personal liberty and security to a degree not less than that of punishment, in order to achieve the purpose of special (crime) prevention. In addition, regarding the content of educational compulsory labor imposed by the disputed provision, whether it is an educational course designed to promote civic responsibility, various projects designed to learn a skill, train for livelihood skills, and develop work habits, or general operations conducted in factories when there is no skill training course, objectively speaking, they can all be implemented during the execution period of the punishment of the person liable to penalty. Furthermore, according to current prison sentencing execution practices, many prisons have already opened various skill training courses, and the person liable to penalty can receive appropriate skill training during the execution of the punishment, making it unnecessary to impose educational compulsory labor separately for this purpose. Moreover, the disputed provision imposes pre-trial educational compulsory labor, and after the completion of the educational compulsory labor period, the person liable to penalty is still required to enter prison to serve a period of imprisonment, rather than being directly returned to society. Therefore, the skills learned during the educational compulsory labor period may have been abandoned or forgotten by the time of release from prison, which greatly reduces the effectiveness of educational compulsory labor in helping the person liable to penalty reintegrate into society, or may even be difficult to complete. On the other hand, if educational compulsory labor is imposed on the person liable to penalty (prisoner) during their imprisonment period, through educational courses, skills training, and general work, they can directly apply what they learned in prison to their normal social life upon release. This not only achieves the desired goal more effectively, but also causes less harm, since the liberty and security of the person liable to penalty is not subjected to significant long-term restrictions before the execution of the imprisonment. Additionally, the legislature has established a rehabilitation protection system for those who are released from prison to assist and protect them in reintegrating into society, promoting their self-reliance and preventing recidivism to maintain social order (referring to Article 1 of the Rehabilitation Protection Act). This system directly benefits the achievement of the goal pursued by the disputed provision and does not require the restriction of the liberty and security of those who receive rehabilitation protection. Therefore, the disputed provision, which imposes pre-trial educational compulsory labor, is not the least invasive means and is not necessary to achieve the purpose, violating the principle of essentiality.
Furthermore, according to the provision in question, the punishment period for educational compulsory labor is uniformly set at three years. This is even though, according to the same provision, the court may only suspend the execution of the punishment upon the prosecutor's request if one year and six months of the sentence has been served and it is deemed unnecessary to continue the execution of the sentence (referring to Article 481, Paragraph 1 of the Code of Criminal Procedure). The disputed provision is designed to correct the bad habits of individuals with a habitual criminal tendency or those who commit crimes due to vagrancy or laziness and to prevent them from reoffending. However, regardless of the nature and severity of the criminal behavior of the individuals subject to the punishment, they are all compelled to work for three years. In terms of achieving its intended purpose, it is evident that this provision is not the least intrusive means of minimizing harm to the individuals subject to the punishment.
To sum up, the provision in question violates the constitutional principle of proportionality under Article 23, and it is inconsistent with the spirit of safeguarding liberty and security of persons under Article 8 of the Constitution in terms of the restriction on the liberty and security of persons subject to the punishment.
The post-sentence educational compulsory labor prescribed in Article 90, Paragraph 1 of the Criminal Code, as enacted and promulgated on January 1, 2015, and effective from July 1, 2015 (referred to as the "Pre-1994 Amendment"), violates the constitutional principle of proportionality under Article 23 and is inconsistent with the spirit of safeguarding liberty and security of persons under Article 8 of the Constitution.
On January 1, 2014, the Pre-1994 Amended Criminal Code was enacted and came into effect on the same day. Article 90, Paragraph 1 of the Pre-1994 Amended Criminal Code, which is Disputed Provision #2 states: "Those who have a habitual criminal tendency, engage in criminal activities as a profession, or commit crimes due to vagrancy or laziness may be compelled to work in a labor establishment after the completion of the sentence or after being granted amnesty." The execution of educational compulsory labor as prescribed in this provision takes place after the completion of the sentence or after amnesty, which is different from the provision in question. However, there is no difference in the legislative purpose and the implementation content of educational compulsory labor between the two provisions. The execution of the educational compulsory labor punishment takes place after the completion of the sentence or amnesty, allowing the individuals subject to the punishment to reintegrate into society after the completion of the educational compulsory labor punishment, and during the period of educational compulsory labor, they may acquire vocational skills that can directly contribute to their rehabilitation and social adaptation. However, the purpose and content of the educational compulsory labor punishment can be achieved within the period of sentence execution, as mentioned earlier. Therefore, the fact of whether educational compulsory labor is implemented before or after the execution of the sentence does not make a difference. The educational compulsory labor prescribed in the disputed provision is not the least intrusive and indispensable means to achieve its purpose for the individuals subject to the punishment. Therefore, in terms of the restriction on the liberty and security of persons of the individuals subject to the punishment, it does not meet the requirement of necessity and violates the constitutional principle of proportionality under Article 23 and is inconsistent with the spirit of safeguarding liberty and security of persons under Article 8 of the Constitution.
Third. The Educational Compulsory Labor Part of the Rehabilitative Measures for Burglar and Fence Criminals Act.
Disputed Provision #3 concerns Article 3, Paragraph 1 of the Rehabilitative Measures for Burglar and Fence Criminals Act as amended and promulgated on July 29, 1992. The provision states that "Burglars and fence criminals who are habitual offenders over the age of 18 and meet one of the following conditions shall be ordered to perform educational compulsory labor in a labor establishment prior to the enforcement of their sentencing: (1) being a habitual criminal; (2) engaging in the habitual commission of larceny or possession of stolen property as a profession." The provision was amended on May 30, 2006, and effective from July 1, 2006. The revised provision stipulates that "Burglars and fence criminals who are habitual offenders over the age of 18 shall be ordered to perform educational compulsory labor in work premises prior to the enforcement of their sentencing." According to Article 5, Paragraph 1, First Sentence of the Act, which is also part of Disputed Provision #5, the enforcement period for the pronounced disposition of educational compulsory labor under this Act is three years. This special rehabilitative measure, included in the Criminal Code, aims to rectify the deviant mindset of habitual burglars and fence criminals who seek illicit gains without effort, with the objective of preventing their re-offending and safeguarding public security upon their release. Therefore, its legislative purpose serves the purpose of special (crime) prevention and constitutes a matter of significant importance to the public interest under the Constitution. While the means of educational compulsory labor adopted by this provision is not entirely devoid of benefits or inconsistent with the principle of suitability for achieving its legislative purpose, as mentioned in the previous explanation (above), it is not the least intrusive means nor necessary to achieve its intended purpose. It does not serve as the minimum necessary means to achieve the objective and cannot be replaced for the person liable to penalty.
In addition, according to Disputed Provision #3 and #4, individuals who are subject to forced educational compulsory labor are usually already sentenced to longer imprisonment terms due to the nature of their crimes (such as habitual offenders, serial offenders, multiple offenses, and recidivists) in theft or cases of possession of stolen property. Therefore, their period of incarceration may exceed the three-year period of educational compulsory labor. It can be seen that the content of the educational compulsory labor punishment prescribed in the third and fourth provisions can be fully implemented during the period of sentence execution and effectively achieve the desired purpose without imposing significant restrictions on the liberty and security of persons before the execution of the sentence.
As for Disputed Provision #5, which states that the execution period of educational compulsory labor is uniformly set at three years, even if according to the provision's subclause, the court may only suspend the execution of the punishment upon the prosecutor's request after one year and six months of execution and when it deems it unnecessary to continue its execution (in reference to Article 5, Paragraph 1, Subclause of the same regulation). Regardless of the circumstances of the theft or possession of stolen property committed by the individuals subject to the punishment and the nature and severity of their previous offenses, it is apparent that the three-year execution period is not the least intrusive and necessary means to achieve the desired purpose for the individuals subject to the punishment.
In summary, the third through fifth provisions in dispute place constraints on the personal liberty and security of the individual subject to penalty, thereby infringing upon the principle of proportionality enshrined in Article 23 of the Constitution and running counter to the essence of Article 8, which safeguards personal liberty and security.
Fourth. The Educational Compulsory Labor Provision Stipulated in Article 3, Paragraph 3 of the Organized Crime Prevention Act.
The provisions in Article 3, Paragraph 3 of the Organized Crime Prevention Act enacted in 1996 (referred to as the "1996 Act") and amended in 2017 (referred to as the "2017 Act") violate the requirement of the proportionality principle under Article 23 of the Constitution and are inconsistent with the spirit of protecting liberty and security of persons under Article 8 of the Constitution. J.Y. Interpretation No. 528 has determined that changes should be made within the relevant scope.
The provision in dispute, Article 3, Paragraph 3 of the 1996 Act, enacted on December 11, 1996, stipulates the following: "Those who commit the offense specified in Paragraph 1 shall be compelled to engage in educational compulsory labor in a labor establishment for a period of 3 years after the completion of their sentence or being granted amnesty. Those who commit the offense specified in the preceding paragraph shall be subjected to educational compulsory labor for a period of 5 years." Accordingly, anyone who initiates, directs, controls, commands, or participates in a criminal organization is required to undergo educational compulsory labor for 3 years after the completion of their sentence or being granted amnesty. If they commit the same offense again after the completion of their sentence or being granted amnesty, the period of educational compulsory labor is extended to 5 years. However, the 2017 Act, amended and promulgated on April 19, 2017, modified Article 3, Paragraph 3 of the Act as follows: "Those who commit the offense specified in Paragraph 1 shall be compelled to engage in educational compulsory labor in a labor establishment for a period of 3 years before the execution of their sentence." It only changed the timing of the execution of the educational compulsory labor punishment to before the execution of the sentence and deleted the provision that extended the period of educational compulsory labor to 5 years for repeat offenders. The other provisions were not amended. The disputed provision in the 2017 Act was not amended when the Organized Crime Prevention Act was revised and promulgated on January 3, 2018. Considering that the provisions in question, both in the 1996 Act and the 2017 Act, directly target those who commit the offenses specified in Paragraph 1 of the Organized Crime Prevention Act, the purpose is to prevent organized crime (as stated in Article 1 of the Organized Crime Prevention Act and the legislative reasons for the provision in Article 3, Paragraph 3 of the 1996 Act enacted on December 11, 1996). It is deemed to serve a particularly important public interest under the Constitution, and its purpose is still legitimate.
Regarding the measures of educational compulsory labor under the sixth and seventh provisions, they are essentially similar to the measures of educational compulsory labor prescribed by the first through forth provisions. All of these provisions entail the restriction of personal liberty and security by confining the person liable to penalty to specific labor facilities and imposing a rehabilitative measure requiring them to undertake assigned tasks or receive specialized skill training. In terms of their effectiveness in achieving their intended objectives, it cannot be definitively concluded that they are entirely ineffective, and they do not appear to contravene the principle of suitability. However, individuals who have committed offenses under Article 3, Paragraph 1 of the Organized Crime Prevention Act, the subjects of educational compulsory labor under Disputed Provision #6 and #7, are already subject to corresponding criminal punishment and sanctions for their criminal behavior, including the execution of such punishment. The purpose of punishment also includes deterring organized crime. In terms of achieving this objective, it may not be necessary to resort to measures of educational compulsory labor that deprive individuals of their personal liberty and security outside of the scope of punishment. Furthermore, the specific objectives and content of educational compulsory labor can be accomplished during the execution of the punishment, regardless of whether it is implemented before or after the execution. Additionally, Rehabilitation Protection, which does not entail the deprivation of personal liberty and security, can directly assist criminal offenders in adjusting to social life and preventing reoffending after completing their sentence and reintegrating into society. As mentioned above, it is sufficient to demonstrate that the measures of educational compulsory labor adopted under Disputed Provision #6 and #7 are not the least restrictive means to achieve the intended purpose and cannot be substituted, thereby violating the principle of necessity.
Moreover, the types and methods of criminal activities that criminal organizations defined in the Organized Crime Prevention Act may engage in are quite diverse. Recently, new forms of organized crime have emerged that incorporate the use of technology. The number of individuals who initiate, direct, control, command, or participate in criminal organizations is significant, and there are considerable differences in their personality traits, expertise, social experiences, and backgrounds.
However, Disputed Provision #6 and #7 do not take into account the age, personality traits, criminal motives, and social experiences of those who commit the offenses specified in Article 3, Paragraph 1 of the Organized Crime Prevention Act, nor the necessity to correct their character through educational compulsory labor. They also do not consider whether the nature of the work carried out during the period of educational compulsory labor can effectively prevent recidivism and thereby deter crime. In this regard, it is arguable that the means of educational compulsory labor adopted by Disputed Provision #6 and #7 are not the least intrusive necessary measures against the individuals subject to the punishment in pursuit of the objective of preventing organized crime.
Furthermore, Disputed Provision #6 prescribes a uniform period of 3 years for educational compulsory labor, which is extended to 5 years for repeat offenders. Disputed Provision #7 prescribes a uniform period of 3 years for educational compulsory labor. Even then, according to the relevant provisions, after the execution of 1 year and 6 months, and if it is deemed unnecessary to continue the execution, the court may, upon the prosecutor's request, exempt the individual from the execution of the punishment (referring to Article 3, Paragraph 5 of the 1996 Act, Article 3, Paragraph 4 of the 2017 Act, applying Article 90, Paragraph 2, subparagraph of the Criminal Code, and Article 481, Paragraph 1 of the Code of Criminal Procedure). At a minimum, the execution (of the punishment) should still be carried out uniformly for 1 year and 6 months. Regardless of any circumstances, both Disputed Provision #6 and #7 do not differentiate between the types and severity of the criminal behaviors of the individuals subject to the punishment. In terms of achieving their intended purpose, they are clearly not the least intrusive necessary measures against the individuals subject to the punishment.
In conclusion, the provisions pertaining to educational compulsory labor under Disputed Provision #6 and #7 fail to meet the criteria of being the least restrictive and indispensable means necessary to achieve the intended objective. Consequently, the restrictions imposed on the liberty and security of the persons liable to penalty violate the requirement of the principle of necessity and are in breach of the proportionality principle enshrined in Article 23 of the Constitution. Moreover, these provisions are incompatible with the spirit of Article 8 of the Constitution, which safeguards personal liberty and security. Therefore, it is imperative that J.Y. Interpretation No. 528 of this Court be amended accordingly, within the appropriate scope.
The provisions of Article 3, Paragraph 3 of the Organized Crime Prevention Act in 1996 and 2017 are inconsistent with the requirement of the clear distinction principle under the Constitution and violate the spirit of Article 8, which safeguards personal liberty and security.
Disputed Provision #6 and #7 prescribe educational compulsory labor as a punishment for individuals who commit the offense specified in Article 3, Paragraph 1 of the Organized Crime Prevention Act. There are no separate criteria established for imposing educational compulsory labor; it is uniformly applied to all offenders who meet the requirements of the offense. In comparison, Disputed Provision #1 and #2 impose educational compulsory labor on individuals with criminal habits or those who commit crimes due to vagrancy or laziness. Disputed Provision #3 and #4 target habitual thieves or possessors of stolen goods, and they impose educational compulsory labor on individuals with deviant personalities in addition to the criminal penalties for their criminal behavior. However, Disputed Provision #6 and #7 lack the limitation of individual deviant personalities of the offenders. Forced labor is imposed on all individuals who commit a crime. Considering the rationale, Disputed Provision #6 and #7 should serve as supplementary and extended punishments to deter organized crime and enhance the deterrent effect of punishment (referring to Article 1 of the Organized Crime Prevention Act and the legislative reasons for Article 3, Paragraph 3 of the 1986 Act). However, educational compulsory labor, as a restriction on liberty and security of persons, regardless of its purpose or function, is distinct from the punitive sanctions imposed on criminal behavior. It is not intended to pursue the purpose of punishment as a deterrent. Moreover, the targets of educational compulsory labor under Disputed Provision #6 and #7 are individuals who fall within the scope of Article 3, Paragraph 1 of the Organized Crime Prevention Act. Thus, the individuals subject to the punishment are those who should already be subject to criminal sanctions according to that provision. Consequently, subjecting them to educational compulsory labor, which is essentially a deprivation of liberty and security of their persons, in addition to the deprivation of liberty and security of their persons as a criminal penalty, raises concerns about dual punishment without a distinction in purpose and criteria. Therefore, the pursuit of punishment as a deterrent through the means of educational compulsory labor is inconsistent with the requirement of clear distinction under the Constitution and violates the principle of prevention of double jeopardy, thereby conflicting with the purpose of safeguarding liberty and security of persons under Article 8 of the Constitution.
Fifth. The Current Implementation of Educational Compulsory Labor Does Not Meet the Requirement of Clear Distinction under the Constitution.
The purpose of educational compulsory labor is to improve and rehabilitate individuals with socially dangerous criminal behavior, aiming to prevent recidivism. Essentially, educational compulsory labor should be a treatment process led by professionals, rather than a criminal punishment for the person liable to penalty. Therefore, the establishment of the educational compulsory labor system should focus on providing effective treatment to the individuals, facilitating their skill development, and assisting in improving their deviant characteristics, which is fundamentally different from criminal punishment. Consequently, the specific implementation of the educational compulsory labor system, including the regulation of the system itself and its practical execution, involving the designated labor facilities (including spatial planning and facilities), the procedures, management, and involvement of professionals, should be clearly distinct from the execution of punishment, in accordance with the requirements of the Constitution.
According to the current regulations on the implementation of educational compulsory labor, the provisions regarding the guard and control of the person liable to penalty are similar to those outlined in the Prison Act regarding custody and security of inmates (referring to Article 2 of the Regulations Governing the Security of Rehabilitation Institutions and Article 21 of the Prison Act). The regulations concerning the use of restraints or confinement in a tranquil room for the person liable to penalty are also similar to those regarding the use of guard instruments, protective restraints, or placement in a protective cell for inmates (referring to Article 5 of the Regulations Governing the Security of Rehabilitation Institutions and Article 23 of the Prison Act). Additionally, the person liable to penalty is allowed to have visits and correspondence with their family and friends, but the frequency, duration, and content of such visits and correspondence are regulated (referring to Articles 22 to 25 of the Rehabilitative Disposition Execution Act), which is not fundamentally different from the regulations governing visits and correspondence for inmates (referring to Articles 67 to 74 of the Prison Act and Articles 55 to 58 of the Statute of Progressive Execution of Penalty). It can be seen that there is no substantial difference between the two in terms of the restriction of liberty and security of the persons involved.
Furthermore, in current practice, individuals subjected to measures under Disputed Provision #1 through #7 are concentrated in the same facility, regardless of gender. In addition to the individuals subjected to measures, there are a larger number of other prisoners serving their sentences in the same facility. Due to limitations of space and resources, the facility implementing the educational compulsory labor program has limited capacity to provide skills training courses. As a result, individuals subjected to measures may not have equal opportunities to receive skill training during the educational compulsory labor period. Instead, they engage in short-term skill training or general tasks similar to other prisoners, such as origami, mending fishing nets, or assembling components. In daily activities including management, tasks, courses, and skill training, there is no distinction between individuals subjected to these measures and other prisoners. Moreover, there is no specific assessment and correction mechanism dedicated to correcting the criminal habits of individuals subjected to these fit. Therefore, the current implementation of educational compulsory labor does not comply with the principle of clear distinction required by the Constitution.
Sixth. Conclusion
In conclusion, Disputed Provision #1 to #7 are inconsistent with the spirit of Article 8 of the Constitution, which safeguards the liberty and security of the person. Disputed Provision #1, #4, #5, and #7 shall be deemed inoperable from the date of the promulgation of this interpretation.
From the date of the promulgation of this interpretation, any educational compulsory labor that has been determined by the final judgment of the court but has not been executed or completed shall be exempted from execution. For individuals who are liable to penalty and sentenced to both educational compulsory labor and imprisonment, from the date of the promulgation of this interpretation until the date of the prosecutor's command to execute the imprisonment, the period during which they await the execution of the imprisonment at the original labor facility or a similar place shall be counted as part of the imprisonment period.
Until Disputed Provision #2, #3, and #6 become ineffective due to legal amendments, and until Disputed Provision #1, #4, #5, and #7 become ineffective based on the interpretation herein, they remain valid laws promulgated and implemented in accordance with the law. Judges in all levels of courts should base their judgments on these provisions and are not allowed to refuse their application directly (Referring to J.Y. Interpretation No. 371 of this Court). Furthermore, J.Y Interpretation No. 471 did not negate the constitutionality of the educational compulsory labor system as stipulated in Disputed Provision #2 and #3, and J.Y Interpretation No. 528 even recognized that the relevant provisions of Disputed Provision #6 regarding educational compulsory labor are not in conflict with the spirit of constitutional protection of human rights, thus having binding effect on all government agencies and the people nationwide (Referring to J.Y Interpretation No. 185). Courts, in accordance with Disputed Provision #1 to #7, declare educational compulsory labor, which is legal and valid. This interpretation does not create any substantive illegalities. Even if it is declared unconstitutional by this interpretation, it takes effect from the day of its announcement, and it does not negate the fact that the past legal orders complied with constitutional requirements and served public interests. In this particular situation, the applicants numbered 5 to 36 as listed in Appendix 2 to 4 cannot rely on this interpretation to request the revocation of the declaration of educational compulsory labor unless through extraordinary appeal procedures.
Seven. Specific Instructions
In dealing with individuals who exhibit deviant behavior leading to significant social risks, the legislature may impose appropriate rehabilitative measures to restrain their liberty and security of person, in addition to imposing corresponding criminal sanctions. The purpose of these measures is to improve and correct their deviant behavior and prevent social risks. Regardless of the specific terminology used, it is imperative to objectively assess the necessity of preventing and correcting their social risks. Therefore, the imposition of measures to restrain liberty and security of persons should be uniformly applied. Moreover, the regulations and specific implementation of such rehabilitative measures must comply with the requirement of the Constitution to clearly distinguish and separate these measures. This is hereby clarified.
Eighth. Partial Non-Acceptance.
Applicant number four has not provided specific reasons objectively demonstrating the unconstitutionality of the remaining provisions of the Theft and Robbery Act, Article 90, Paragraph 2 (latter part), Paragraph 3, and Article 98, Paragraph 2 of the Criminal Code, apart from Disputed Provision #4 and #5. Therefore, according to J.Y Interpretation Nos. 371, 572, and 590 of this Court, the aforementioned part of the petition should not be accepted.
Regarding the applications of the other applicants, except for applicants numbered one to four, the remaining applications either do not pertain to laws or interpretations applicable to final judgments or fail to specifically indicate the objective constitutional violations of those provisions. Therefore, they do not comply with Article 5, Paragraph 1, Subparagraph 2 of the Court Organization Act and should not be accepted in accordance with Paragraph 3 of the same article. As for the petition for unified interpretation, it does not point out the conflicting interpretations expressed by different courts applying the same law in final judgments. Consequently, it does not comply with Article 7, Paragraph 1, Subparagraph 2 of the Court Organization Act and should not be accepted in accordance with paragraph 3 of the same article.
Note: The Organized Crime Prevention Act of 1985 provides a mechanism for exemption from the execution of educational compulsory labor after the completion of the imposed punishment or granting of amnesty (referring to Article 3, Paragraph 4). Similarly, the Organized Crime Prevention Act of 2017 also includes a mechanism for exemption from imprisonment after the completion of educational compulsory labor (referring to Article 3, Paragraph 4, with reference to the provisions of Article 98, Paragraphs 2 and 3 of the Criminal Code). This allows individuals who have been sentenced to both educational compulsory labor and imprisonment to serve only one of the penalties. However, in practice, it is rare to obtain a court ruling exempting the execution of educational compulsory labor or imprisonment based on the aforementioned provisions. Therefore, it is difficult to argue that the adjustment provisions for execution can establish that Disputed Provision #6 and #7 are the least restrictive means of penalty for the person liable to penalty.
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*Translated by Chih Chieh Lin