Case News
The TCC delivers its Judgment 113-Hsien-Pan-1 (2024)
TAIPEI, February 2, 2024 — The Taiwan Constitutional Court (TCC) delivered its Judgment of the "Case on the Extended Confiscation of Criminal Proceeds in Narcotic Cases" on January 26, 2024.
Principal Facts, Issues, and Procedure of the Case
In 2020, Taiwan adopted the "extended confiscation" scheme in the amendment of Paragraph 3, Article 19 of the Narcotics Hazard Prevention Act (hereinafter "Provision I" and "NHPA"). To prevent drug-related crimes, the provision allows for confiscation of the illicit gains from unlawful activities other than those for which the accused is convicted with. Furthermore, Paragraph 2, Article 2 of the Criminal Code (hereinafter "Provision II") stipulated that confiscation of proceeds shall apply the law in force at the time of judgment. Provisions I and II combined made it possible in practice for courts to order extended confiscation in narcotic cases before 2020.
The petitioner of this case, I-Hui CHI, was seized with her spouse for manufacturing Category Two narcotics in 2019. During the investigation, the police also seized NTD 97,093,700 in cash. The court of first instance found the petitioner guilty and ruled that NTD 92,870,000 were illicit profits obtained from other illegal activities. The court ordered the said amount be confiscated under Provisions I and II. This decision was upheld by the appellate court and was finalized after the petitioner's appeal was dismissed by the Supreme Court. The petitioner lodged a constitutional complaint against Provisions I and II, arguing that (1) Provision I is of penal nature but was unclear in its wording; (2) Provision I lowers the standard of proof for the prosecutor to secure a court-ordered confiscation; and that (3) Applying Provision II with Provision I will result in retroactive application of Provision I, which violates the principle of lex retro non agit (principle of non-retroactivity).
Judgment 113-Hsien-Pan-1 (2024) was announced on January 26, 2024. Justice Sheng-Lin JAN wrote this Judgement. Two concurring opinions and three dissenting opinions were filed.
Decision of the Court
The TCC upheld the constitutionality of the disputed provisions.
The TCC ruled that Provision I is not penal, thus not concerning the principle of principle of nulla poena sine lege, the principle of nulla poena sine culpa (Schuldprinzip), and the principle of presumption of innocence. The TCC pointed out that "other illegal acts" in Provision I can be deduced as criminal activities. The TCC further elaborated the standard of proof and proper procedure of extended confiscations. In conclusion, Provision I did not violate the principle of certainty of the law (the principle of the clarity of law), the principle of proportionality, and the right to a fair trial, consequently conforming to the protection of property rights and the right of instituting legal proceedings under the Constitution.
In terms of Provision II, the TCC emphasized that it is a law with a false-retroactivity effect (unechte Rückwirkung) that serves the purpose of restoring the proprietary status quo ante disrupted by unlawful conducts. The TCC concluded that Provision II does not violate the principle of lex retro non agit (principle of non-retroactivity) and the principle of legitimate expectation.
The TCC also reviewed the constitutionality of the petitioner's final court decision, which the TCC ruled was not in violation of the Constitution.
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.