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

    Article 17, Subparagraph 8 of the Code of Criminal Procedure, which required judges to recuse themselves if participated in the decision at a previous trial (of the same case), is constitutional. The term "previous trial" should be interpreted as "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 (level) before being quashed." Within this parameter, J.Y. Interpretation No. 178 needs no supplementation. 

    In situations where the retrial or extraordinary appeal judges have participated in the previous final decision of the same case, the Code of Criminal Procedure is unconstitutionally insufficient for lacking specific provisions requiring the judges to recuse themselves. 

   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, Subparagraphs 1 and 2 of Supreme Court's Implementational Standards on the Allocation of Criminal Cases (2018 and 2020 versions), and Resolution of the Eighth Joint Meeting of Presiding Judges of Criminal Panels of the Supreme Court of 1994 (December 1, 1994), which stipulated that cases that have been quashed thrice and those that concern major crimes should be assigned to the judge who previously quashed the cases on final appeal (the Supreme Court), are constitutional. These provisions are internal standards stipulated by the Supreme Court under the protection of judicial autonomy and do not violate the right to judicial remedy. 

    Supreme Court Criminal Precedent 29-Shang-3276 (1940), which ruled that the judges at the first or second instance who have participated in previous trials are allowed, under Article 17, Subparagraph 8 of the Criminal Code, to hear the case as a retrial judge of the same level after a higher court quashed and remitted the case, is constitutional. The disputed precedent does not infringe on the defendant's interest in appeals under the right to judicial remedy.

Background Note

    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) Any of the retrial or extraordinary appeal judge has participated in trials of previous instances; (B) Any of the final appeal 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) Any of 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 participate in the cases in aforementioned situations, the following provisions and decisions unconstitutionally violated the principle of a lawful designation of judges (gesetzlicher Richter), 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 (hereinafter "Code Provision I"); (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) (hereinafter "Standards Provision I"); (3) Article 9, Paragraph 1, Subparagraph 1 and 2 of Supreme Court's Implementational Standards on the Allocation of Criminal Cases (2018, 2020 versions) (hereinafter "Standards Provision II-1" and "Standards Provision II-2"); (4) Resolution of the Eighth Joint Meeting of Presiding Judges of Criminal Panels of the Supreme Court of 1994 (December 1, 1994) (hereinafter "the Supreme Court Resolution 1994"); and (5) Supreme Court Criminal Precedent 29-Shang-3276 (1940) (hereinafter "the Supreme Court Precedent 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 hearing 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.

Summary of the Judgment 

Holding

1. The term "where the judge had participated in the decision at a previous trial" in Code Provision I, should be construed as where the appellate judge of the case had participated in "the decision (of the case) at a previous trial of a lower level," and does not include the situations where the judge "had participated in the decision at a previous trial of the same level before being quashed." So long as the provision is construed as such, it does not violate the protection of people's right to judicial remedy under Article 16 of the Constitution. J.Y. Interpretation No. 178 needs no supplementation or adjustment within this scope. 
2. Retrial and extraordinary appeal judges should recuse themselves if they had participated previously in the final decision of the case. The Code of Criminal Procedure lacks the abovementioned recusal provisions, thus unconstitutionally violates the protection of the right to judicial remedy under Article 16 of the Constitution. The competent authority should amend the Code as appropriate within a two-year grace period. Before the amendment, newly lodged cases and cases underway should be tried per the requirements of this Judgment.
3. Standard Provisions I and II-1 stipulate that when a criminal case was previously appealed and quashed thrice by the Supreme Court, it should be assigned to the last judge that quashed the case, on the fourth and later appeals to the Supreme Court. The provisions do not contradict the protection of the right to judicial remedy under Article 16 of the Constitution. 
4. Standards Provision II-2 and the decision of Supreme Court Resolution 1994 provide that quashed major criminal cases should be assigned, on their later appeals, to the judge that quashed it. The provision and the resolution do not contradict the protection of the right to judicial remedy under Article 16 of the Constitution.
5. The Supreme Court Precedent 1940 ruled that the situation where the "retrial judge at the second instance had participated in previous trials of the same level before a higher court quashed and remitted the case," does not constitute a ground for recusal because the trials are of the same level, which is different from the situation where the judge of the previous level joins the case on appeal. The precedent does not contradict the protection of the right to judicial remedy under Article 16 of the Constitution. 
6. The petitions of Petitioner No.1, and Petitioners Nos. 4 to 52 are meritless and shall be dismissed. 
7. In terms of Petitioner No. 3's constitutional complaint, Supreme Court Criminal Order 111-Tai-Kang-657 (2022) is unconstitutional. It shall be quashed, with its matter remitted to the Supreme Court. 
8. Petitioner No. 39's constitutional complaint towards the Supreme Court Criminal Judgment 111-Tai-Shang-2479 (2022) shall be dismissed. 
9. All of the petitioners' motions for preliminary injunction shall be dismissed. 

Reasoning

1. Constitutional rights pertaining to this Judgment:

    In principle, important matters concerning the right to judicial remedy should be stipulated by law under consideration of the types, nature, and purpose of the court cases, and the limited resources of the judiciary. This Court shall defer to legislative discretion when it comes to forming the substantial content of the judicial procedural system. However, the deference does not extend beyond when it comes to the core of the right to a judicial remedy. Especially when it comes to criminal procedures, which concerns the pursuit of crimes, the realization of criminal justice, and important rights such as the defendant's individual liberty (liberty and security of person). Compared to civil and administrative litigation, criminal judicial procedures should be reviewed by a stricter standard under the constitutional principle of due process of law.【56】

    The purpose of the recusal of judges is to ensure a fair trial so that the functions of judicial remedy may be maintained. It is an important matter in judicial proceedings and should be stipulated by law passed by the legislature. Article 17 and Article 18, Paragraph 2 of the Code of Criminal Procedure provide the legal reasons for recusal, sua sponte or initiated by the parties of the case. Whether said reasons involve the constitutional protection of the right to judicial remedy should be reviewed individually.【57】

    According to J.Y. Interpretation No. 761, judges must recuse themselves in two situations to uphold the core protection of the right to a fair trial as required by the constitution: (1) that a conflict of interest is present between the judge's performance of duty and personal interest; (2) that the judge's participation in previous trials of the same case (either at a lower/higher court or at prior proceedings) may lead to prejudice that infringes the defendant's right to appeal. However, in the latter situation, whether the probability of prejudice would inevitably infringe upon the defendant's rights lies in the following key factor: whether it will lead to the judge reviewing his or her own decision of previous trials on the same case and substantially compromise the function of remedy of the appeal or retrial.【58-59】

    Because "conflict of interest" and "reviewing one's own decision" are abstract concepts, the legislators may determine the scope and content of judicial recusal, considering its purpose and allocation of judicial resources. When it is not expressly stipulated by law, courts at all levels may, following the principles of judicial self-governance, stipulate supplementary rules that do not contradict higher norms. The Constitution does not prohibit legislators or courts to stipulate recusal reasons (by law or the courts' implementational standards on the allocation of cases) other than the abovementioned two to expand the protection of people's right to judicial remedy. Whether the specific reasons, scope and content for recusal are sanctioned by the Constitution, should be subject to constitutional review following the constitutional right to judicial remedy and the due process of law.【61-62】

2. In terms of Part 1 of the Holding: Code Provision I is constitutional; J.Y. Interpretation No. 178 needs no supplementation or adjustment.

    The Code Provision I has listed "having participated in the decision at a previous trial" as a reason for the judge to recuse himself or herself sua sponte. Following J.Y. Interpretation No.178, the term "a previous trial" means "a previous trial of a lower court."【67】

    Said recusal provision aims at safeguarding the defendant's interest in appealing through the judicial tier system in criminal procedures. Therefore, the term "(had participated in) a previous trial" should be construed as precluding situations where "a judge in extraordinary appeal has participated in a previous trial before the final court decision", and where "a judge in the trial of remission has participated in a previous trial at the same instance." This interpretation also aligns with to J.Y. Interpretation No. 761, which affirms that the right to appeal through the judicial tier system lies in the core of the right to judicial remedy. In this regard, Code Provision I does not violate the constitutional protection of people's right to judicial remedy. J.Y. Interpretation No.178 needs no supplement or adjustment.【70】

3. In terms of Part 2 of the Holding: Retrial and extraordinary appeal judges should recuse themselves if they had participated previously in the final decision of the case.

    "Previous trials" refers to the trials held at a lower court within ordinary trials and appeals. Therefore, for extraordinary proceedings or retrials, the "previous trials," as worded in Code Provision I, apparently do not cover trials taking place within the ordinary trials and appeals.【72】

    However, retrial and extraordinary proceedings are to review the final decision of general proceedings. If the judge of such proceedings has participated in the final decision of the case, it is no different from allowing the same judge to review his or her own ruling. For the parties involved, it is unreliable for the judge to find and correct his or her errors. Such a situation does not appear to be a fair trial, and it is sufficient to cast doubts about the judge's fairness and the probability of criminal defendants seeking remedy through retrial and extraordinary proceedings.【76】

    Administrative litigation and civil proceedings have already required judges who participated in the general or appeal proceedings to recuse themselves in retrial (at least once). Similar mechanisms cannot be found in the provisions of criminal procedure. Considering that criminal procedures usually affect more on the defendant's major rights such as individual liberty and right to life, criminal procedures should have more (or at least not less) protections than administrative litigation and civil proceedings in terms of due process of law and right to judicial remedy. The current Code of Criminal Procedure is insufficient in protecting the right to judicial remedy and should be amended quickly.【74, 77】

    Under the principle that the judge should not review his or her own decisions and to protect the defendant's interest in special relief litigations, retrial and extraordinary appeal judges should recuse themselves sua sponte if they have "participated in the decision reviewed by the retrial or extraordinary appeal." The number of times for such recusal should not be limited. 【78】

    Considering the nature of retrial/extraordinary appeals and the probability of lodging multiple times, such a recusal rule should not apply to judges who have participated in past decisions before the final court decision or extraordinary appeal judges who have participated in a previous extraordinary appeal.【80】

    The Code of Criminal Procedure lacks the abovementioned recusal provisions, thus unconstitutionally violates the protection of the right to judicial remedy under Article 16 of the Constitution. The competent authority should amend the Code as appropriate within a two-year grace period. Before the amendment, newly lodged cases and cases underway should be tried per the requirements of this Judgment.【83】

    However, if courts at all levels do not have any staffing difficulties, and further require in their case allocation rules that judges who have participated in previous trials before the final decision should also recused themselves, or require that judges who have attended the final decision can no longer hear the case even after the decision is quashed in extraordinary appeal, so as to expand the protection of people's right to judicial remedy, then this would be a choice made by the court based on judicial autonomy and self-governance of judges. It is also allowed by the Constitution.【84】

4. In terms of Part 3 and Part 4 of the Holding: The disputed Standard Provisions (I, II-1, and II-2) and Supreme Court Resolution 1994 are constitutional. 

    Under the spirit of J.Y. Interpretation No.665, courts of all levels may, providing that they do not contradict higher norms, stipulate supplementary rules regarding the allocation of cases. Aside from the fundamental requirement of the rules to be "predefined" and "applicable generally," they should also lead to reasonable arrangements under the consideration of professionality, efficiency, special procedures, caseload, the function and level of the court, etc. To ensure that the principle of lawful case designation is met, it is not necessary for every case allocation to be conducted through a random, blind raffle.【99】

    The disputed Standard Provisions (I, II-1, and II-2) and Supreme Court Resolution 1994 are case allocation rules stipulated by the Supreme Court. They are not laws but regulations prescribed under the specific authorization of Article 79, Paragraph 1 of the Court Organization Act. Such allocation rules concern the very essence of judicial administration. In this sense, they fall under the protection of judicial autonomy following the constitutional principle of separation of powers. 【100】

    "Standard Provisions I and II-1" (which stipulates that cases quashed thrice should be assigned to the judge who quashed it last) and "Standard Provision II-2 and the disputed Resolution" (which stipulates that major crimes should be assigned to the judge who quashed it last) are all general rules predefined by the Supreme Court before cases reach final appeal. They are not stipulated for specific cases. Instead, they could help elevate the efficiency of adjudication and the function of unifying legal opinions at the highest court. Furthermore, the affected cases have already been assigned randomly at least one time upon appeal to the Supreme Court, which meets the requirement of the principle of a lawful designation of judges (gesetzlicher Richter).【101】

    Under the disputed Standard Provisions (I, II-1, and II-2) and Supreme Court Resolution 1994, the "previous trial" in the provisions refers to the "(previous) trial at the same level before the decision was quashed," instead of the "previous trial at a lower court." When Supreme Court judges are assigned a case in which they previously participated in the third instance, their role is to review the decision made by a lower court, rather than review their own decision from the previous trial. In this sense, the problem of the judge reviewing his or her own decision would not arise. Such a situation does not meet the reason for recusal under Code Provision I and J.Y. Interpretation No. 178. 【104-105】

    Furthermore, the Supreme Court quashing the decision for retrial is not necessarily unfavorable for the defendant. Allowing the Supreme Court judge who quashed the case to hear the case on appeal after retrial won't necessarily lead to biased prejudgment towards the defendant. On the contrary, it could increase efficiency and avoid the case being dragged on. Moreover, the Supreme Court's reason for quashing binds both the retrial court (vertical stare decisis) and itself when reviewing the retrial's legal opinion (horizontal stare decisis). If the Supreme Court judge who quashed the case made the same legal opinion when rehearing the case upon appeal, it should also be the result of horizontal stare decisis.【107】

    As the staffing of judges is comparatively limited in the Supreme Court, it is impossible to assign the same case to different judge(s) without repeating on each appeal. On top of that, since the Supreme Court is the court of final appeal, it should seek to form stable and consistent legal opinions on various important legal issues so that it can unify the opinions of lower courts through its decisions. If the expectation is that the Supreme Court would have different legal opinions on the same issues of the same case due to differences in the assigned judges, and if this becomes a reason for recusal, it would instead undermine the crucial function of the Supreme Court as the court of final appeals to unify legal opinions.【108】

5. In terms of Part 5 of the Holding: The Supreme Court Precedent 1940 is constitutional. 

    Under the Supreme Court Precedent 1940, the judge who participated in the case on the first appeal hearing the same case at the same level (second instance) after it was quashed for retrial, is a coincidental result from random case allocation. From this perspective, this precedent does not concern the principle of a lawful designation of judges (gesetzlicher Richter).【112】

    In terms of the interest in appealing through the judicial tier system, when a case is quashed on the last appeal (third instance), it is actually reopening the process of the previous level (second instance). For criminal defendants, they can once again have the chance to be trialed in the second instance in this situation. The judge who retrials the quashed case at the second instance is only reviewing the decision of a lower court, instead of the decision he or she made that has been quashed. It does not necessarily infringe on the defendant's interest in appeal in this situation, therefore not violating the constitutional protection of the right to judicial remedy.【113】

    The hazard of the tunnel vision to a fair trial, which was argued by the petitioners, is not baseless. However, the judge's prejudgment formed during previous trials is not necessarily damaging to the defendant. One cannot presume that the judge is biased and call for his or her recusal under the Constitution, solely because the judge has formed a previous understanding of the case. The parties involved should provide specific evidence demonstrating how, from the perspective of a rational third party, it is sufficient to believe that the trust for a fair trial has been shaken and the judge's fairness is in doubt.【115-117】

    Furthermore, the question of the judge reviewing his or her own decision upon retrial does not arise after the decision was quashed by a higher court—de jure, the decision no longer exists after cassation. Not to mention that the judge will be bound by the reasons why the decision was quashed, thus not necessarily able to completely repeat his or her previous findings and opinions. On the contrary, as the previous judge would be more familiar with the case, he or she hearing retrial may be more beneficial in yielding a more efficient and appropriate decision, which in the end protects the defendant's right to a speedy trial.【118】

    Considering the above, the term "had participated in a previous trial" in Code Provision I (enumerated circumstances for recusal) shall be interpreted as precluding situations where the previous judge (second instance) hears the case on retrial after his or her decision of the same case was quashed on final appeal. The disputed precedent conforms to said provision and the protection of the right to judicial remedy.【120】

6. In terms of Part 7 of the Holding regarding the constitutional complaint filed by Petitioner No.3:

    Supreme Court Criminal Order 111-Tai-Kang-657 (2022) dismissed Petitioner No.3's interlocutory appeal on the account that "(…) due to the limited staffing in each court, recusal of retrial judge(s) should be limited to once when the judge in question has participated in the final decision of the same criminal case." Said Criminal Order also noted in its reasoning that "recusal in retrials should be limited to once applies only to first retrials…further retrials of the same case does not require the judge(s) who participated in the final decision to recuse because the judge(s) has already done it once." The abovementioned legal opinion contradicts Part 2 of the Holding, consequently violating the constitutional protection of the right to judicial remedy. The Criminal Order should be quashed, with its matter remitted to the Supreme Court.【130】