Case News
For immediate release
September 20, 2024

The TCC delivers its Judgment 113-Hsien-Pan-8 (2024)

    The Taiwan Constitutional Court (TCC) delivered its Judgment on the Constitutionality of the Death Penalty Case (TCC Judgment 113-Hsien-Pan-8) on September 20, 2024.

    Considering the importance of the issues concerned, this case news is prepared for immediate release at the announcement of TCC Judgment 113-Hsien-Pan-8 (2024) for the international audiences' reference. 

Facts, Issues, and Procedure of the Case

    In Taiwan, there were currently about 50 provisions in several separate criminal statutory laws that stipulated capital punishment as the maximum punishment. Under the Criminal Code, the maximum punishment for certain crimes (e.g., homicide, homicide during robbery, rape and homicide, homicide during extortionate kidnapping) is the death penalty. The TCC has formerly upheld the constitutionality of the death penalty applicable under special criminal law provisions in J.Y. Interpretation Nos. 194 (1985), 263 (1990), and 476 (1999). The most recent execution of the death penalty in Taiwan took place in 2020. After twenty-five years from the announcement of J.Y. Interpretation No. 476 (1999), the question of whether the death penalty is constitutional—and if so, what are the substantive and procedural requirements—arises again upon the petitions filed by petitioners in this case. 

    Insofar there are thirty-seven death row inmates in Taiwan; all of them are petitioners in this case. The petitioners were found guilty of at least one of the following four crimes: (1) homicide (offense of Article 271, Paragraph 1 of the Criminal Code), (2) homicide during rape and aggravated rape ( offense under the First Clause of Article 226-1 of the Criminal Code), (3) homicide during robbery (offense of Article 332, Paragraph 1 of the Criminal Code), and (4) homicide during kidnapping for ransom (offense of Article 348, Paragraph 1 of the Criminal Code, both the current and the April 21, 1999 version). The petitioners were all found guilty and sentenced to death in their respective final court decisions between 2000 and 2020. After exhausting all ordinary judicial remedies, the petitioners filed for constitutional reviews respectively. They argued mainly that: (1) The punishment of the death penalty or mandatory death penalty, applicable under the said criminal provisions that they were found guilty of, was unconstitutional for violating their right to life; (2) The criminal procedures they underwent violated the due process of law, as such procedures had left them without effective assistance of counsel and without proper oral argument during their last appeal; (3) Article 19, Paragraph 2 of the Criminal Code was unconstitutional insofar as it did not prohibit death penalty from being sentenced or executed on those defendants with mental disorders. 

    The petitioners' cases were consolidated and argued on April 23, 2024. Justice Jau-Yuan HWANG authored this Judgment. Justice Jeong-Duen TSAI, Justice Tsai-Chen TSAI, and Justice Po-Hsiang YU recused themselves and took no part in the deliberation, oral arguments or the decision of this case. Justice Sheng-Lin JAN, Justice Tai-Lang LU, Justice Hui-Chin YANG, Justice Tzung-Jen TSAI, and Justice Fu-Meei JU each filed an opinion dissenting in part. 

Decision of the Court

    In this Judgment, the TCC held that the right to life shall be protected at the highest level under the Constitution. Nevertheless, such protection is not absolute. The State may punish the offense of homicide to protect the lives of people for the purposes of just retribution and maintain social order, so long as the punishment conforms with the principle of culpability (nulla poena sine culpa) and the due process of law. The TCC emphasized that because the death penalty was the most severe punishment and irreversible in nature, its application and procedural safeguard (from investigation to execution) should be reviewed under strict scrutiny. 

    The TCC confined its scope of review to the said four crimes and their accompanying procedural issues. This Judgment did not address the constitutionality of death penalty in general or imposed on other offences (e.g., treason, drug crimes). 

     The decision of the TCC in this case can be summarized into four major aspects. 

    The first aspect concerned the constitutionality of death penalty applicable under the abovementioned four specific provisions in the Criminal Code:

1. The TCC upheld the constitutionality of the death penalty as the most severe punishment under Article 271 (Paragraph 1), 226-1 (the part concerning homicide during Article 221 rape and Article 222 aggravated rape), 332 (Paragraph 1), and 348 (Paragraph 1) of the Criminal Code. The TCC ruled the capital punishment constitutional to the extent that it was applied to the most serious crimes and conformed with the strictest requirements of due process in terms of the criminal procedure.【Part 1 of the Holding】
2. The TCC declared unconstitutional Article 348, Paragraph 1 of the Criminal Code, as amended April 2, 1999, which imposed mandatory death penalty on the offense of homicide during extortionate kidnapping. This provision, though no longer effective after January 30, 2002, was the law applied in the cases filed by Petitioners Nos. 36 and 37, both sentenced to death thereunder. The TCC ruled that the provision did not conform to the constitutional principle of culpability, for failing to take into account whether the circumstances of a specific offense in a given case did meet the threshold of "the most serious" crime. 【Part 2 of the Holding】

    The second aspect addressed the constitutionality of current criminal procedural safeguards for sentencing the death penalty on the offenses of the said four criminal provisions (hereinafter the "cases in question"): 

1. The TCC ruled that the Code of Criminal Procedure was unconstitutional insofar as it lacked specific provisions requiring mandatory counsel for the suspects of the cases in question during criminal investigation. In contrast, the defendants of the cases in question have the right to mandatory counsel during trial under the Code of Criminal Procedure. The TCC pointed out that the lack of such procedural safeguard during investigation violated the suspect’s right to life, right to defense, and the due process of law. Authorities concerned were given a two-year grace period to amend relevant provisions as appropriate.【Part 3 of the Holding】
2. The TCC declared Article 388 of the Code of Criminal Procedure unconstitutional for excluding the application of mandatory counsel to defendants of the cases in question upon their final appeal. The TCC found the said Article unconstitutional for violating the defendant’s right to life, right to defense, and the due process of law. The said Article shall cease to be effective upon the announcement of this Judgment. Mandatory counsel shall apply to final appeals for the cases in question immediately. Authorities concerned were given a two-year grace period to amend relevant provisions as appropriate.【Part 4 of the Holding】
3. The TCC declared Article 389, Paragraph 1 of the Code of Criminal Procedure unconstitutional for not requiring oral arguments for cases in question upon their final appeal. The TCC pointed out that such death penalty cases shall comply with the strictest requirements of due process, and that oral arguments upon the final appeal were necessary for the courts to determine whether the circumstances of an offense were to be considered the most serious, and therefore justified the sentence of a death penalty. This Article shall cease to be effective upon the announcement of this Judgment. Oral arguments shall be required upon the final appeal for the cases in question immediately. Authorities concerned were given a two-year grace period to amend relevant provisions as appropriate. 【Part 5 of the Holding】
4. The TCC ruled that the Court Organization Act was unconstitutional insofar as it lacked specific provisions requiring the death penalty for the cases in question to be sentenced only by a unanimous decision from a collegial panel of professional judges. The TCC elaborated that this strictest procedural requirement would ensure the panel had no doubt as to whether there had been aggravating factors for death penalty in a given case. Authorities concerned were given a two-year grace period to amend relevant provisions as appropriate. 【Part 6 of the Holding】

    The third aspect concerned the constitutionality of imposing death penalty to defendants with mental disorders or mental deficiencies (hereinafter "mental conditions") in the cases in question:

1. Under Article 19, Paragraph 2 of the Criminal Code, the court may reduce the punishment for an offender whose mental conditions did lead to a significant reduction in his/her ability of judgment at the time of offense. The TCC held that, under the principle of culpability, the defendants of the cases in question shall be prohibited from being sentenced to death if they were in the aforementioned situation. Authorities concerned were given a two-year grace period to amend relevant provisions as appropriate.【Part 7 of the Holding】
2. On top of the said Part 7 of its Holding, the TCC further prohibited imposition of death penalty on those defendants with mental conditions, even if their mental conditions did not influence their offense in the cases in question. Referring to the General Comment No. 36 of Human Rights Committee under the International Covenant on Civil and Political Rights (ICCPR), the TCC held that, to the extent that such defendants of mental conditions were incompetent to stand trial, they shall not be sentenced to death. Authorities concerned were given a two-year grace period to amend relevant provisions as appropriate. Before the amendment, death sentences shall not be imposed in such cases. 【Part 8 of the Holding】
3. The TCC ruled that, in the cases in question, death-row inmates should not be executed if they had mental conditions to the extent that have impeded their competency for execution. The TCC declared the Code of Criminal Procedure and the Prison Act unconstitutional insofar as both laws fell short of the said protection. Authorities concerned were given a two-year grace period to amend relevant provisions as appropriate. Before the amendment, death-row inmates who lack such competency shall not be executed. 【Part 9 of the Holding】

    The fourth part concerned the post-judgment remedies for petitioners of this case:

1. All petitioners may file for extraordinary appeal with the Attorney General, if the laws applied in their final court decisions were found unconstitutional in Parts 1, 4, 5, 6, or 8 of the Holding. The Attorney General may also lodge an extraordinary appeal, upon the petitioner's application or ex officio, for their cases. 【Parts 10, 12, and 13 of the Holding】
2. Petitioners Nos. 36 and 37 may file for an extraordinary appeal with the Attorney General, as the criminal provision applied in their final court decisions, i.e., Article 348, Paragraph 1 of the Criminal Code, as amended April 21, 1999, was declared unconstitutional. The Attorney General may also lodge, ex officio, an extraordinary appeal for their cases. 【Part 11 of the Holding】
3. Per Part 8 of the Holding, Petitioners Nos. 12, 13, and 14 shall not be sentenced to death if their mental disorders or mental deficiencies had significantly reduced their competency to stand trial when they were tried. After the competent authorities amend the relevant criteria for the competency to stand trial, these three Petitioners may file for extraordinary appeal with the Attorney General. The Attorney General may also lodge, ex officio, an extraordinary appeal for their cases after the said amendment. 【Part 14 of the Holding】
4. In cases where the Supreme Court approves the extraordinary appeal by quashing the final court decision and remitting the case, the adjudicating court of the remitted case shall determine whether to order detention, restrictions from going abroad or necessary measures against the petitioners according to relevant laws. Under such circumstances, the length of the detention period stipulated in the Criminal Speedy Trial Act (maximum of accumulative five years for detention per Article 5; maximum of accumulative eight years for applying the maximum punishment prescribed in each applicable provision) shall be recalculated from the time when the final court decision is quashed. 【Part 15 of the Holding】
    

Notes:
1. The full texts of the TCC Judgment as well as the concurring and dissenting opinions of individual Justices are available on the TCC website in Traditional Chinese. An English summary of this Judgment will be available later on the TCC English website.
2. The TCC's Case News is prepared by the Department of Clerks for the Constitutional Court (Judicial Yuan) for information only and does not constitute as a part of the decision. 
3. In case of any conflict of meaning between the Traditional Chinese version and the translated English version, the Traditional Chinese version shall prevail.