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 79-1, Paragraph 5 of the Criminal Code (both the September 26, 1997 and February 2, 2005 versions, hereinafter "Provision I" and "Provision III") stipulated that life-sentence parolees who got their parole revoked have to serve a fixed remaining sentence of twenty years (twenty-five years under Provision III). The provisions violated the principle of proportionality and individual liberty (personal freedom) under Article 8 of the Constitution. 

    Article 7-1, Paragraph 2 and Article 7-2, Paragraph 2 of the Enforcement Law of Criminal Code (hereinafter "Provision II" and "Provision IV"), which stipulated that the calculation of remaining sentences should apply either Provision I or Provision III depending on the time that the reason for parole revocation happened, does not pertain the principle of lex retro non agit (non-retroactivity of the law) and the protection of legitimate expectations (Vertrauensschutz).
 

Background Note

    In 1997, legislators amended Article 77 of the Criminal Code, raising the parole-eligible minimum term for life sentences to fifteen years (twenty years for recidivists) to address the rise of the recidivism rate (including new offenses) among parolees. The legislators also added Article 79-1, Paragraph 5 of the Criminal Code, stipulating that once the paroles of life-sentence parolees were revoked, they have to serve a fixed remaining sentence of twenty years, which should be discounted from the calculation for the next eligible parole date. The paragraph applies to parole revocations after the 1997 amendment. Said provisions were further amended in 2005 (implemented on July 1, 2006), raising both the length of the parole-eligible minimum term and fixed remaining sentence for life prisoners to twenty-five years. The parolee has to serve a twenty-five-year fixed remaining sentence without parole. In other words, the prisoner who started serving their sentence in 2006 must serve imprisonment until 2031 before starting serving a new sentence. After that, they must serve half of the new sentence before being eligible for parole. 

    There were thirty-six consolidated petitions filed by thirty-five people and the Supreme Court Criminal Panel No.1. The petitioners all involved criminal cases with life sentence penalties. Parole for those sentenced to life was granted but later revoked. Consequently, the petitioners must serve twenty to twenty-five years before being eligible for counting for another parole. The petitioners argued that both amendments of Article 79-1, Paragraph 5 of the Criminal Code (the 1997 and 2005 versions) and the pertaining Paragraph 2, Article 7-1, Paragraph 2 and Article 7-2, Paragraph 2 of the Enforcement Law of the Criminal Code are hard for the people to comprehend and foresee, thus violating the principle of clarity of law (the principle of clarity and precision of legal provisions). They also contend that the provisions did not distinguish the reasons for revocation and stipulated all the revoked parolees to serve twenty or twenty-five years of remaining sentences, consequently violating the principle of proportionality. 

    This case was argued on December 19, 2023. Judgment 113-Hsien-Pan-2 (2024) was announced on March 15, 2024. Justice Jui-Ming HUANG wrote this Judgement. Justice Tsai-Chen TSAI recused herself from this case. Three concurring opinions, one opinion dissenting and concurring in part, and three opinions dissenting in part were filed. 
 

Summary of the Judgment 

Holding

1. Provisions I and III stipulated that life-sentence parolees who were revoked of their paroles (hereinafter "revoked life-sentence parolees") must serve a fixed remaining sentence of twenty or twenty-five years. The provisions designated fixed remaining sentences without distinguishing whether the parole revocation was caused by a new offense or a simple violation of the Rehabilitative Disposition Execution Act (parole violation). The provisions also did not differentiate between factors such as the circumstance and severity of the new offense, or the effectiveness of the parolee's rehabilitation program. Within this scope, the disputed provisions violate the principle of proportionality and individual liberty (personal freedom) under Article 8 of the Constitution. The provisions should cease to be effective after no more than a two-year grace period. 
2. If the amendment of Provision I and III is past due, the competent authority shall decide proportionately the remaining sentences of the revoked life-sentence parolees as provided in this judgment. A fixed term of twenty or twenty-five years is not required.   
3. The final court rulings of Petitioners Nos. 5, 22 to 29, and 31 to 35 were unconstitutional and should be quashed, with their matters remitted to the Supreme Court. During the aforementioned grace period, the Supreme Court shall suspend the proceedings by rulings until the amendment may be applied. If the amendment is past due, the Supreme Court shall decide their cases following this judgment. On its original court case for the petition, the Supreme Court Criminal Panel No.1 shall also decide as such.  
4. The Prosecutor General may lodge an extraordinary appeal upon the petitioner's application or ex officio for the remaining petitioners' cases. During the aforementioned grace period, the Supreme Court shall suspend the proceedings by rulings until the amendment may be applied. If the amendment is past due, the Supreme Court shall decide following Part 2 of the Holdings.
5. Life-sentence inmates other than the petitioners serving their remaining sentences under Provisions I or III may file an objection against the prosecution's order regarding carrying out the remaining sentences after the announcement of this judgment. The courts shall suspend and only resume their proceedings regarding the objection once the amendment has been implemented. If the amendment is past due, the courts shall decide per Part 2 of the Holding. The same applies to ongoing objection reviews of the same type.
6. If, per Part 3 to 5 of the Holding, the court shortens the remaining sentence and the new adjusted sentence is shorter than the period that the inmate has already served, the inmates shall be deemed as having completed the remaining sentence from the day they have served the shortened period and begun to serve their other sentence(s), if any, from the next day. There should be no ensuing criminal compensations, state compensations, or reduction of sentences for other crimes.
7. Provisions II and IV do not pertain to the principle of lex retro non agit and the protection of legitimate expectations (Vertrauensschutz). The petitioner's complaints in this respect shall be dismissed. 
8. The rest of the complaints shall be dismissed.
    

Reasoning

1.  Parole's purpose and the constitutional rights involved:

    The parole system's purpose is to actively rehabilitate inmates who have shown repentance and are legally eligible for parole by suspending the serving of their imprisonment. Once the competent authority approves a parole, the parolee will be discharged from prison as the sentence enforcement is on halt. Should the governing authority revoke its decision and reinforce the remaining sentence(s), it not only directly restricts the parolee's individual liberty but also severely impacts the various rights and interests enjoyed by the parolee since his or her re-integration into society (See J.Y. Interpretation No. 681). Although the effect and execution of revoking parole do not amount to a new criminal sentence, requiring the parolee to return to prison and carry out the remainder of his or her sentence is still a form of constraint on individual liberty. Per the protection of individual liberty under Article 8 of the Constitution, such measure shall conform with the Article-23 proportionality principle.【28】

2.  The serving of the remaining sentence for the revoked life-sentence parolees (revoked parolee) shall be proportionate.【30】

    The revoked parolee must return to prison for institutional treatment, resulting in the deprivation of individual liberty. Although the sentence served after parole revocation comes from the remainder of the original sentence, it is still compulsory punishment that should be the last resort (ultima ratio) and shall be limited strictly. The calculation and execution of remaining sentences for revoked life-sentence parolees shall conform to the principle of proportionality so that the constitutional right of individual liberty is not deprived excessively.【33】

3.  Proportionality review of Provisions I and III: 【36】

(1)  The purposes of Provisions I and III are legitimate.【37】

    The legislators amended Provisions I and III alongside Article 77 of the Criminal Code in 1997 and 2005. The provisions regarding parole eligibility, period, revocation and ensuing effects were amended to address the then increasing recidivism rate amongst parolees. The legislators hoped that doing so may fulfill the prison’s correctional functions, ensure the rehabilitation of inmates, and further safeguard the safety of society. It is fairly legitimate to heighten the parole-eligible minimum term to prevent life-sentence parolees from committing major crimes during parole. In correspondence with the adjustment, the legislator amended Provisions I and III, clarifying the specifics of the remaining sentences to be served for life-sentence parolees after being revoked. The remaining sentences are twenty years under Provision I and twenty-five years under Provision III—both periods shall be discounted from Article 79-1, Paragraph 1 calculation for the next eligible parole date. Nonetheless, Provisions I and III still serve the purposes of rehabilitating inmates, preventing recidivism, and safeguarding social security, which are legitimate and important public interests.【38】

(2)  It is unnecessary for Provisions I and III to require a fixed remaining sentence of twenty and twenty-five years after parole revocation.【39】

    Within statutory limits (including the consideration of mitigating factors), the sentencing for the offender's culpable offense is based on the circumstances demonstrated at the time of the sentence. In this respect, factors such as retribution and prevention purposes, and consequently the correctional period estimated in prison, have all been considered when the court sentenced imprisonment.【40】

    Since criminal punishment has a retributive and deterrence purpose, its sentencing and execution should be necessary to achieve the purpose. Such a requirement for necessity reflects on the lighter treatments (e.g., parole) that may be granted in lieu of imprisonment based on rehabilitation progress and whether the punishment served so far has done justice to the offense. For example, the full length of the imprisonment sentence may be shortened depending on the inmate’s performance and correctional results under the Statute of Progressive Execution of Penalty.【41】

    Considering the necessity for the punishment to achieve its purpose, the rehabilitative potential of the sentenced person (parolee) shall be re-evaluated in light of all the circumstances prevailing at the time of parole revocation. Subsequently, within the scope of the remaining sentence length at the time of parole, the length of the remaining sentence after parole revocation must reflect the time needed to achieve the punishment's special deterrence purpose. Instead of ordering a fixed remaining sentence regardless of the circumstances involved, such consideration shall also apply to life-sentence parolees who got their paroles revoked. 【42-43】

    Provisions I and III stipulate the length of remaining sentences for revoked life-sentence parolees. Aiming to realize the purpose of the punishment, such remaining sentences are the continuation of the pronounced life sentences. In cases where the parolees committed a new offense or violated the probation terms during their paroles, re-entry into prison may be necessary. However, probation is a kind of community-based treatment for offenders or juvenile predelinquents that aims at repentance and reintegration through supervision, correction, and counseling. A simple violation of probation is distinctively different from committing a new crime intentionally, in which the latter causes direct harm to other's rights and destroys social order. The two must be treated in different degrees regarding the remaining sentences.【44】

    Circumstances of the intentionally committed new crime may differ. The necessity of continuing the sentence is different in each case. Factors such as the reasons for parole revocation, the time served, evidence of repentance that supported the parole, the parolee's efforts made for reintegration, the possibility of recidivism, etc., shall be assessed comprehensively to conform to the necessity of punishment—it is only equitable to treat the cases per their respective circumstances. Otherwise, it would violate the principle of proportionality. However, Provisions I and III require a fixed remaining sentence of twenty and twenty-five years for revoked life-sentence parolees without considering the circumstances of each case, which would deprive the parolees of their opportunity for such reassessment. There is a possibility that the revoked parolees will serve a length of sentence that exceeds the necessity. Within this scope, the provisions violated the principle of proportionality and subsequently infringed on the people's individual liberty under Article 8 of the Constitution. The provisions should cease to be effective no more than a two-year grace period.【45-46, 48】

    If the amendment is past due, competent authorities shall decide the remaining sentences following this Judgment. The length of such a sentence shall be proportionate, instead of a fixed one. The competent authorities may refer to the following guidelines and decide the remaining sentences per Part 1 of the Holding: 【49】

A.  For parole revocation under Article 78, Paragraphs 1 and 2 of the Criminal Code, the remaining sentence shall be decided based on the sentence length of the new crime committed during parole: (a) When the new crime sentence length is under five years, the revoke parolee shall serve ten years for the remaining sentence of the life imprisonment; (b) New sentence length above five (including) but under ten years, the remaining sentence shall be fifteen years; (c) New sentence length ay ten years and over, the remaining sentence shall be twenty years when applying Provision I, twenty-five years when applying Provision II.  【50】

B.  For parole revocation under Articles 74-2 and 72-3 of the Rehabilitative Disposition Execution Act, the remaining sentence shall be five years. Except when the parolee is convicted for a new crime committed during parole—the remaining sentence shall be adjusted per Guideline A. 【51】

4.  The final court rulings of Petitioners Nos. 5, 22, 23, 24, 25, 26, 27, 28, 29, 31, and 35, which applied Provisions I and III, contravened the Constitution. The rulings shall be quashed, with the matters remanded to the Supreme Court. During the grace period for amendment, the Supreme Court shall suspend their proceedings until the amendment may be applied. If the amendment is past due, the Supreme Court shall decide per Part 2 of the Holding. Supreme Court Criminal Panel No.1 shall also decide its petition's original case following the Holding.【53】

5.  As for the final court rulings of the petitioners other than those mentioned in Part 3 of the Holding, the Prosecutor General may lodge an extraordinary appeal ex officio or upon petition under Article 91, Paragraphs 1 and 2 of the Constitutional Court Procedure Act. During the grace period for amendment, the Supreme Court shall suspend their proceedings until the amendment may be applied. If the amendment is past due, the Supreme Court shall decide per Part 2 of the Holding.【55】

6.  Considering the protection of individual liberty and the uniform application of the law, inmates currently serving the remaining sentences under Provisions I and III, which are declared unconstitutional, shall have the opportunity to adjust their sentences under amended laws. After this judgment, if an inmate files an objection against the prosecutor's order to serve a remaining sentence, the court shall suspend the proceedings until it may apply the amended laws. If the amendment is past due, the court shall decide per Part 2 of the Holding. The same applies to ongoing objection reviews of the same type.【57-58】

7.  Requiring revoked life-sentence parolees to serve remaining sentences aligns with the principle of proportionality under Article 23 of the Constitution. The unconstitutional fixed sentence under Provisions I and III can be cured by offering opportunities to adjust the remaining sentences per Part 2 of the Holding or amended laws. The effect of the periods already served shall not be altered. After adjusting to a proper length of sentences, inmates who consequently served time longer than they should have shall be considered completed their sentences. Their remaining sentences shall end on the last day that they've actually served. They shall continue serving time for their other crimes, if any. There should be no ensuing criminal compensations, state compensations, or reduction of sentences for the other crimes.【60-62】

8.  Provisions I and III have more severe effects on revoked life sentence parolees compared to previously implemented regulations. Under Provisions II and IV, whether the new laws apply shall be decided based on the time that the reason for parole revocation happened. Provisions II and IV did not enable Provisions I and III to be applied retroactively to the facts that had happened before their implementation. Provisions II and IV do not concern the principle of lex retro non agit and the protection of legitimate expectations (Vertrauensschutz). The petitioner's complaints in this respect shall be dismissed.【67】