Case News
The TCC delivers its Judgment 112-Hsien-Pan-14 (2023)
TAIPEI, November 16, 2023. The Taiwan Constitutional Court (TCC) delivered its Judgment of the "Case on the Recusal of Judges in Retrials and Appeals of Criminal Cases" on August 14, 2023.
Principal Facts, Issues, and Procedure of the Case
This case concerns the rules of recusal for judges in criminal procedure when it comes to retrials, appeals against re-tried cases, and extraordinary appeals. There are a total of fifty-two petitioners in this case, thirty-seven of whom are currently on death row (two of them were deceased at the time of this Judgment). One of the petitioners was petitioning on behalf of his two brothers executed in 2014.
During the petitioners' respective criminal trials, retrials, or appeals, they were all faced with similar situations where the judges in the proceedings were the same as in their previous trials. Their situations can be classified into three main categories: (A) The retrial or extraordinary appeal judge has participated in trials of previous instances; (B) The last instance judge is the same as the judge who previously quashed the case for retrial (This happens when the case has been quashed thrice or when it concerns a major crime); and (C) The retrial judge at the first or second instance has participated in previous trials of the same instance before a higher court quashed and remitted the case.
The petitioners filed for constitutional review respectively. They mainly argued that by allowing judges of previous trials to not recuse themselves in aforementioned situations, the following provisions and decisions unconstitutionally violated the principle of a lawful judge, due process of law, and consequently infringed their rights to a fair trial and judicial remedy: (1) Article 17, Subparagraph 8 of the Code of Criminal Procedure; (2) Article 2 of Supreme Court's Implementational Standards on the Allocation of Civil and Criminal Appeal Cases Quashed Twice Previously (1991, 2009, and 2012 versions); (3) Article 9, Paragraph 1, Subparagraph 1 and 2 of Supreme Court’s Implementational Standards on the Allocation of Criminal Cases (2018, 2020 versions); (4) Resolution of the Eighth Joint Meeting of Presiding Judges of Criminal Panels of the Supreme Court of 1994 (December 1, 1994); and (5) Supreme Court Criminal Precedent 29-Shang-3276 (1940). For the same reason, the petitioners also called for J.Y. Interpretation No.178 to be supplemented. In addition, two of the petitioners (Petitioners Nos. 3 and 39) lodged for constitutional review against their final criminal court decisions.
The petitions from fifty-two petitioners were consolidated. The TCC held a public briefing and summoned related parties for opinions on October 24, 2022. The briefing was attended by the attorneys of three of the petitioners, representatives from the Supreme Court, and the Criminal Department of the Judicial Yuan.
Judgment 112-Hsien-Pan-14 (2023) was announced on August 14, 2023. Justice Jau-Yuan HWANG wrote this Judgment. Justice Jeong-Duen TSAI, Justice Horng-Shya HUANG, and Justice Jiun-Yi LIN recused themselves from this case. Justice Ming-Cheng TSAI and Justice Jui-Ming HUANG each filed a concurring opinion. Justice Sheng-Lin JAN, Justice Ming-Yan SHIEH, Justice Tai-Lang LU, and Justice Hui-Chin YANG each filed an opinion dissenting in part.
Decision of the Court
The TCC upheld the constitutionality of Article 17, Subparagraph 8 of the Code of Criminal Procedure. The TCC ruled that "where the judge had participated in the decision at a previous trial" in said provision means "the decision at a previous trial of a lower court", and does not include the situation where the judge "had participated in the decision at a previous trial of the same instance before being quashed." The TCC ruled that, within this parameter, J.Y. Interpretation No. 178 needs no supplementation.
However, for abovementioned Category A situations (please refer to paragraph 2 of the previous section "Principal Facts, Issues, and Procedure of the Case"), the TCC indicated the Code of Criminal Procedure unconstitutional due to the lack of provisions requiring judges from previous trials to recuse themselves. The TCC requested the competent authority to amend the Code as appropriate within a two-year grace period. Before the amendment, relevant criminal cases shall be tried per the requirements of this Judgment.
For abovementioned Category B situations, the TCC upheld the constitutionality of Article 2 of Supreme Court's Implementational Standards on the Allocation of Civil and Criminal Appeal Cases Quashed Twice Previously (1991, 2009, and 2012 versions), Article 9, Paragraph 1, Subparagraph 1 and 2 of Supreme Court's Implementational Standards on the Allocation of Criminal Cases (2018, 2020 versions), and Resolution of the Eighth Joint Meeting of Presiding Judges of Criminal Panels of the Supreme Court of 1994 (December 1, 1994). The TCC ruled that the disputed provisions of the two Implementational Standards concern important interests of elevating efficiency and maintaining consistency of Supreme Court decisions. The TCC pointed out that the provisions are internal standards stipulated by the Supreme Court under the protection of judicial autonomy, and they did not violate the principle of a lawful judge.
For Category C situations, the TCC upheld the constitutionality of Supreme Court Criminal Precedent 29-Shang-3276 (1940). The TCC ruled that the defendant's interest in appeals is not infringed in Category C situation, because the same judge participated in the same instance for the retrial itself instead of the appeal for a retrial. Therefore, the TCC deemed the Precedent did not violate the defendant's right to judicial remedy.
The TCC declared Supreme Court Criminal Order 111-Tai-Kang-657 (2022) (criminal case of Petitioner No.3) unconstitutional and quashed the case back to the Supreme Court.
The TCC dismissed the rest of the petitions.
Notes:
- Full texts of the Judgment and Opinions are available on the TCC website here (Traditional Chinese). An English summary of this Judgment will be available later on the TCC English website.
- The TCC's Case News is prepared by the Department of Clerks for the Constitutional Court (Judicial Yuan) for information only and does not bind the Court.
- In case of any conflict of meaning between the Traditional Chinese version and the translated English version, the Traditional Chinese version shall prevail.