Achievable Justice is an Undeniable Duty—Explanation of the Draft Amendment to Article 7-11 of the Enforcement Act of the Code of Criminal Procedure

Establishing a "Retrial" Procedure to Provide Relief for Past Cases within Two Years

In the past, Article 376 of the Code of Criminal Procedure restricted minor offenses from being appealed to the Supreme Court, meaning that if a defendant was acquitted in the first instance but convicted upon appeal in the second instance, they lost at least one opportunity for appellate relief. This was declared unconstitutional by Judicial Yuan Interpretation No. 752, prompting the Legislative Yuan to amend Article 376 of the Code of Criminal Procedure. However, the recent legislative amendment failed to devise a relief pathway for citizens whose right to appeal had previously been stripped away. This represents a regrettable shortfall in the protection of citizens' constitutional right to litigation.

Examples of pairing legislative amendments with transitional period provisions in order to safeguard vital rights of the people are ubiquitous. For instance: (1) The provisions of Article 7-8 of the Enforcement Act of the Code of Criminal Procedure fully apply retroactively to all past cases with respect to the amendment expanding the grounds for retrial. The legislative intent behind this article was to realize the Code of Criminal Procedure's purpose of reforming the retrial system to discover the truth and achieve substantive justice. Consequently, cases where applications for retrial were dismissed prior to the amendment can still be refiled under the new law, serving as an appropriate precedent for the retroactivity of the Code of Criminal Procedure^[1]; (2) Judicial Yuan Interpretation No. 670 declared Article 2, Subparagraph 3 of the Wrongful Imprisonment Compensation Act (predecessor to the Criminal Compensation Act) unconstitutional, with the unconstitutional provision losing effect no later than two years after the announcement of the interpretation. Nevertheless, the legislature considered that cases prior to the loss of effect of the unconstitutional provisions (including those before the announcement date) should also be uniformly covered, thus adding paragraph 2 to Article 39 of the Criminal Compensation Act to address this. The legislative intent was that if victims suffered special sacrifices exceeding the general tolerable threshold due to the state's realization of its public interest in punitive power, and subsequent applications for wrongful compensation were dismissed by the competent handling agency applying unconstitutional laws, it would result in unfairness, and an exceptional opportunity for relief ought to be granted^[2]; (3) In 2015, to reform the abuses of payment orders, the Legislative Yuan added Article 4-4 of the Enforcement Act of the Code of Civil Procedure, allowing all victims of payment orders to apply for a retrial under the Enforcement Act within a two-year transitional period. These precedents effectively resolved past injustices and perfected the values of human rights protection.

Basic rights conferred by the Constitution may only be restricted by the legislature, not deprived. To remedy past injustices, this proposal specifically adds Article 7-11 of the Enforcement Act of the Code of Criminal Procedure, establishing a two-year transitional period to allow past cases to apply to the Supreme Court for "retrial" relief.

Achievable Justice: The Judicial Yuan Bears an Unshirkable Responsibility

During the recent legislative amendment process for Article 376 of the Code of Criminal Procedure, the Judicial Yuan's version did not include transitional period provisions, under the rationale that it would be difficult to set a time point and the Supreme Court might be unable to handle the caseload.

However, according to the Judicial Yuan's statistical data, over the five-year period from 2012 to 2016, there were around 300 cases annually where defendants were acquitted in the first instance but convicted upon appeal in the second instance. Additionally, according to the Supreme Court's statistics on closed criminal cases, the number of closed cases dropped from 9,177 in 2007 to 4,975 in 2016—a nearly 50% decrease—while the number of Supreme Court judges remained largely comparable to the past (see table below). Extrapolating from this, even if all cases from the past 20 years were to file for retrial, it would amount to approximately 6,000 to 8,000 cases. Given the Supreme Court's current staffing allocation, it is entirely within its capacity to review them. Furthermore, most of these cases are summary in nature, and it can be anticipated that individual cases would not take long to process. Coupled with the passage of time, the actual number of applications for retrial can be projected to be far lower.

(Source: Reforming the Appellate System to Prevent Finalized Judgments of Acquittal Being Overturned to Convictions—Judicial Yuan Data from the National White-Collar/Judicial Reform National Father/State-of-the-Art Conference)

(Source: 2016 Judicial Statistics Annual Report, Actual Number of Supreme Court Personnel)

(Source: 2016 Judicial Statistics Annual Report, Supreme Court Criminal Case Receipt and Disposition Status)

In the past, Article 376 of the Code of Criminal Procedure restricted people's right to appeal, and the legislative intent was precisely to reduce the burden on the Supreme Court. Today, however, the Supreme Court possesses the capacity to resolve historical injustices. Both the Judicial Yuan and the Supreme Court bear an unshirkable responsibility to deliver achievable justice and restore opportunities for relief to citizens whose right to appeal was previously stripped away.

Designing Proper Complementary Measures: No Reason Not to Act

Since the Supreme Court is a court of law, citizens require legal assistance from attorneys to effectively file statements of reasons for appeal. To this end, it is stipulated that appeals for such cases shall retain attorneys as representatives, and those lacking financial resources may apply for legal aid attorneys, thereby alleviating the workload burden on judges.

The Amendment to the Enforcement Act Does Not Violate the Legal Principle Against Retroactivity

The principle of non-retroactivity of laws aims to maintain legal stability, preventing it from being disrupted by subsequent changes in the law while protecting people's reliance on vested rights. However, legal updating is a regular feature of the legal order, and reliance on the continuous validity of the legal order must constitute a specifically protectable interest in individual cases to serve as the basis for preventing laws from applying retroactively. Otherwise, so-called reliance on the continued validity of the legal order is merely a general legal rationale underlying the principle of legal stability^[3].

Furthermore, exceptions to the principle of non-retroactivity do exist; when beneficial to the parties, the most favorable law should apply^[4]. For instance, Judicial Yuan Interpretation No. 582 points out that this principle is not without exception. Particularly when constitutional rights such as people's right to life and bodily freedom are infringed upon by criminal proceedings violating universal basic human rights, exceptional provisions must apply. Regarding criminal liability, only the principle of legality and penal laws disadvantageous to the defendant may not be retroactive^[5], rather than laws safeguarding a defendant's right to litigation being subjected to such restrictions.

In short, the "principle of non-retroactivity of laws" protects people's "rights," not state organs' "powers." Since the Grand Justices already determined in Interpretation No. 752 that the old Article 376 of the Code of Criminal Procedure was unconstitutional and improperly deprived people of their right to litigation, based on human rights protection, the principle of non-retroactivity should yield to prioritize the protection of citizens' litigation rights.

Criminal Convictions Involve Personal Reputation and Freedom; at Least One Opportunity to Fight for Innocence Should Be Granted

A criminal conviction not only hinders individuals in job searches and entry/exit clearance, but if the second-instance judgment is unfortunately a miscarriage of justice, the individual's reputation is severely impacted, casting a lifelong shackles over their life. Taking Dr. Huang Hui-fu's (黃慧夫) case as an example, hospital promotion and advanced study eligibility criteria stipulated that those with criminal records could not apply, and his ongoing research in burn care and limb reconstruction was shelved. The second-instance conviction ruined his career. Another appellant saw their previous parole revoked because of a finalized second-instance conviction, forcing them to serve a full life sentence. This demonstrates that even minor offenses still inflict massive impacts on individuals, making it imperative to return an opportunity for relief to these citizens.

Following the recent amendment to Article 376 of the Code of Criminal Procedure, many citizens whose appeal rights were stripped away have stepped forward to protest the government's neglect of their rights, pouring out their blood, tears, and grievances over being wronged. Without procedural justice, there is no substantive justice. Those stripped of their right to appeal will not willingly submit to judicial rulings. If past injustices can be corrected, the judiciary has no reason not to do so. Only by upholding procedural justice can the judiciary truly win the sincere trust of the people.