Note: 
This summary constitutes no part of the Judgment but is prepared by the Department of Clerks for the Constitutional Court only for the readers' reference.
Original paragraph numbers that the summarized texts correspond to are put into lenticular brackets after each paragraph. 
In case of any conflict of meaning between the Traditional Chinese version and the translated English version, the Traditional Chinese version shall prevail.

Headnotes

    The Taiwan Constitutional Court (TCC) upheld the constitutionality of Article 181, Paragraph 5 of the Military Trial Act (1999 version), which limits ground of appeal (to the civilian court) for military personnel to the contravention of laws. 

    To prevent miscarriage of justice, the TCC established a new ground for retrial. Where the military court convicts the accused soldier based on primarily the same evidence which the civilian court has acquitted the soldier's civilian accomplice with, the accused soldier may motion for retrial on the basis that the two separate trials contradict with each other on their finding of facts.  

Background Note

    In 1997, the petitioner of this case, then active-duty soldier Jui-Feng WANG, was accused of robbery with a civilian accomplice, CHEN (full name withheld). Under criminal procedures at that time, the suspects were put into different criminal proceedings, with CHEN tried by a civilian court and WANG by a military court (court-martial). CHEN was later found not guilty by the Taiwan High Court because of insufficient evidence. WANG, on the contrary, was found guilty and sentenced to five-year imprisonment by the Military Southern District Court and High Military Court on appeal, which created a contradiction in the civilian and military courts’ findings in joint evidence. Believing his judgments are not supported by evidence and consist of errors of facts, WANG appealed to the Taiwan High Court under Article 181, Paragraph 5 of the Military Trial Act (MTA, the 1999 version), which allows certain defendants of military trials to seek judicial remedy from civilian courts in the third instance. His case was later dismissed by the court for such an appeal is limited to cases where the judgments contravene the laws and regulations. 

    The petitioner lodged a constitutional complaint arguing that Article 181, Paragraph 5 of the MTA has violated his right to judicial remedy under Article 16 of the Constitution. The petitioner also argued that J.Y. Interpretation No. 436 should be supplemented. 

    Before this Judgment, Taiwan changed the jurisdiction of military courts in 2013 and stipulated that only wartime active duty military personnel who commit crimes under the Criminal Code of the Armed Forces or special codes concerned should be court-martialed. Under this context, Judgment 112-Hsien-Pan-6 (2023) has paved the way for previously court-martialed defendants who might have been wrongfully accused to petition for a retrial with the civilian court.
 

Summary of the Judgment 

Holding

1. Article 181, Paragraph 5 of the MTA stipulated that "When the defendant disagrees with the imprisonment sentences announced by the appellate High Military Court, he or she may appeal to the High Court under the reason that the judgment is in contravention of the laws and regulations." This provision does not contradict the right to judicial remedy under Article 16 of the Constitution. 
2. The petitioner may motion for a retrial with the Taiwan High Court Kaohsiung Branch Court within the peremptory period of thirty days after the service of this Judgment.
3. The rest of the requests are dismissed. 

Reasoning

1.    Scope of this Judgment: 

    The disputed provision only allows defendants (of military trials) to appeal to the High Court when their judgments contradict laws and regulations, excluding appeals based on an error of fact. The provision thus concerns the limitation on active-duty soldiers' right to judicial remedy. 【9】

    The MTA and relevant laws did not provide military personnel the opportunity to appeal in situations where the court-martial finds the involved soldiers guilty whereas the civilian court finds their civilian accomplices innocent for the same criminal incident. This also raises the question as to whether the protection of the right to judicial remedy is unconstitutionally insufficient in the current legal framework. This case also concerns the matter of supplementing J.Y. Interpretation No.436. 【9】

2.    Relevant constitutional rights and the principle of review:

    The military court system holds military trials (court-martial) under the MTA, which is a special litigation procedure that concerns military personnel's freedom and right to judicial remedy. Where the military court convicts the accused soldier based on primarily the same evidence which the civilian court has acquitted the soldier's civilian accomplice with, a dis-accord in evidence appears and the convicted soldier shall have a way to judicial remedy. Said way has to meet the requirements of the right to a fair trial under the constitutional principle of due process. 【17】

3.    In terms of Part 1 of the Holding:

    The disputed MTA provision only regulates that the defendants of military trials may appeal to the High Court (which is a civilian court) on the grounds that the judgment has contravened the law. The provision does not stipulate for the defendants to appeal to the High Court on the basis of errors of fact. This is how the judicial tier system is designed. The Prosecutor General may initiate an extraordinary appeal to the Supreme Court if he or she considers the High Court's ruling of the appealed case inappropriate. 【21】

    Viewing from the disputed provision's ratio legis, its purpose is to realize J.Y. Interpretation No. 436. The Interpretation allows military trial defendants sentenced to more than an imprisonment sentence to appeal to civilian courts on the grounds that the judgment has contravened the law. The provision does not concern other grounds of appeal. Therefore, one cannot argue that the provision is unconstitutional simply because it did not stipulate on relevant appeals to the High Court based on error of facts.【21】

4.    In terms of Part 2 of the Holding:

    Objectively, guilty and innocent cannot be deduced from the same facts at the same time. If offenders of the same criminal case that shared the critical evidence were sentenced separately by the civilian court and the military court as one guilty and one innocent, this contradiction in nature would go against the general public's sense of justice (Rechtsgefühl). Ergo, for the same criminal case, if the civilian court has found one of the offenders not guilty (and the case finalized) while the military court has found the other offender guilty, the former's decision is sufficient to raise reasonable concerns over whether the fact-finding of the latter is accurate. Per the requirements of the principle of presumption of innocence and the principle of in dubio pro reo under the rule of law (Rechtstaat principle), where contradiction in fact-finding as such arises, the person who was found guilty should have an opportunity to motion for a retrial. Considering this kind of contradiction arises from the two-track system of civilian and military courts, the doubt in one of the court's fact-finding only appears to be more apparent, so much so that this situation should be listed as an individual ground for retrial. To prevent miscarriage of justice, ensure soldiers' right to judicial remedy, and meet the requirement of the right to a fair trial, the limitation of retrial in Article 420, Paragraph 1, Subparagraph 6 of the Code of Criminal Procedure should not apply to this situation. 【24】

    Relevant laws failed to meet the requirement of due process and the subsequent right to a free trial for not providing legal grounds for retrial in the aforementioned situation, consequently infringing the soldier's right to judicial remedy under Article 16 of the Constitution. 【25】

    Under Article 1, Paragraph 2 and the proviso of Article 237, Paragraph 1, Subparagraph 2 of the current MTA, soldiers in the aforementioned situation should motion for retrial with the civilian court with jurisdiction.【26】