Constitutional Court Amicus Curiae Brief | The "Remand and Re-trial Recusal Clause" Case

Main Case Number

Hui-Tai-Tzu No. 13254

Amicus Curiae

Judicial Reform Foundation

Taiwan Association for Human Rights

Joint Counsel

Attorneys Ch'ou Yu-hsiu

Lü Cheng-yen

Pursuant to Article 20, Paragraph 1 of the Constitutional Court Procedure Act, this amicus curiae brief is submitted regarding the petition for constitutional review of legal norms filed by the people:

I. Disclosures Required for Submitting an Amicus Curiae Brief:

1. Pursuant to Article 20, Paragraph 3 and Article 19, Paragraph 3 of the Constitutional Court Procedure Act, individuals or organizations other than the parties or interested parties who submit professional opinions or materials shall disclose whether they have a division of labor or cooperative relationship with the parties, interested parties, or their agents, or any financial remuneration or subsidy, including the amount or value thereof.
2. The procedural opinions in this amicus curiae brief were drafted by counsel Ch'ou Yu-hsiu and Lü Cheng-yen after discussions with the Taiwan Alliance to End the Death Penalty, the Judicial Reform Foundation, the Taiwan Association for Human Rights, the Covenants Watch, and the Taiwan Criminal Defense Lawyers Association.
3. This amicus curiae brief has not received any financial remuneration, subsidy, amount, or value from, nor does it have any command or supervisory relationship with, the applicants (including the Liu Cheng-che case under Hui-Tai-Tzu No. 13254 and its consolidated cases, hereinafter referred to as the "Present Case"), parties to the underlying cases, interested parties, or their agents. This is hereby stated for the record.
4. Counsel Ch'ou Yu-hsiu was retained by the applicants in the consolidated cases, Shih Chih-yuan, Wang Po-ying, and Liu Jung-san, to petition this honorable Court for a constitutional review of legal norms. The scope of his retainer is: the constitutionality of Article 33, Subparagraph 1, Article 226-1, Article 271, Paragraph 1, and Article 332, Paragraph 1 of the Criminal Code regarding the death penalty as a statutory penalty, which does not extend to the subject matter of criminal judges' recusal. He has not received any financial remuneration, subsidy, amount, or value from, nor does he have any command or supervisory relationship with, the applicants (including the Liu Cheng-che case under Hui-Tai-Tzu No. 13254 and its consolidated cases), parties to the underlying cases, interested parties, or their agents. Should this honorable Court determine that counsel Ch'ou Yu-hsiu may not serve as an amicus curiae agent, this honorable Court is requested to prohibit him from acting as such.

II. Purpose of Submitting the Amicus Curiae Brief

1. For the adjudication of the Present Case, this honorable Court attached relevant documents and issue outlines, notifying the principal applicant and some of the consolidated case applicants—namely Liu Cheng-che, Tseng Sheng-hao, and Huang Chun-chi (3 persons in total)—to designate agents to attend the "Briefing" at the Court and state their opinions on October 24, 2022.

2. Upon inquiry on October 21, 2022, regarding the aforementioned "Briefing" convened by this honorable Court, the relevant procedures were as follows:
   • (1) Except for the aforementioned 3 persons, all other parties and their agents did not receive notification of the "Briefing" prior to this honorable Court's public announcement on its website on October 12, 2022.
   • (2) Continuing from (1), all other parties and their agents were not summoned to appear and explain at the "Briefing."
   • (3) Continuing from (1), all other parties and their agents only learned of the written materials and important legal opinions related to the "Briefing" after this honorable Court announced them on its website on October 14, 2022.
   • (4) Furthermore, it was only announced on this honorable Court's website on October 14, 2022, that the aforementioned briefing would be live-streamed at 10 a.m. that same morning.

3. 3. Following the full adoption of judicialized and court-trial procedures in our constitutional interpretation system upon the implementation of the Constitutional Court Procedure Act on January 4, 2022, and pursuant to the intent of Article 16 of the Constitution of the Republic of China (hereinafter the "Constitution") safeguarding the people's right to litigation, the requirements of due process must be fulfilled to safeguard the people's right to be heard. Therefore, in adjudicating the Present Case, this honorable Court should naturally conduct the proceedings in a manner fully known to every party and their agent, and it is necessary to fulfill due process through the following methods:

   • (1) Regarding the "Briefing" held by this honorable Court on October 24, 2022, at least those applicants whose underlying cases involve sentences of death should be permitted to jointly participate in the said "Briefing" to express their opinions.
   • (2) If time is too pressing to accomplish this, a public court procedure should be held to afford other applicants whose underlying cases involve sentences of death the opportunity to state their opinions for this honorable Court's consideration.
   • (3) Should this honorable Court ultimately decide to hold oral argument on the issues of the "Briefing," then at least all applicants whose underlying cases involve sentences of death shall naturally have the right to retain litigation counsel during oral argument to express opinions and engage in attack and defense.

III. Opinions and Reasoning on Procedural Matters of the Present Case

1. The procedure of the "Briefing" convened by this honorable Court this time departs from the intent of Article 16 of the Constitution safeguarding the people's right to litigation, and fails to fully comply with the requirements of due process:
   • (1) Judicial Yuan Interpretations and judgments of this honorable Court have repeatedly revealed that the content of the protection of the right to litigation includes the protection of due process, public trial, and a certain right to procedural participation:
     1. As stipulated in Article 16 of our Constitution, "The people shall have the right of petition, of lodging complaints, and of instituting legal proceedings."

     2. Furthermore, as stated in the joint partial concurring opinion by Grand Justices Hsu Yu-hsiu, Lin Tzu-gih, and Hsu Tsung-li in Judicial Yuan Interpretation No. 610:

        Due process guarantees the people the right to reasonable and fair participation in legal proceedings, including the protection of objective possibilities of participation and the protection of subjective possibilities of participation. The so-called protection of subjective possibilities of participation means enabling the right-holder to know the possibility of the existence of the right to participate. Because knowing the existence of a right is a prerequisite for exercising that right, this possibility of knowing information about the right to participate—namely, the opportunity for the right-holder to acquire information about the right—may be called the right to acquire procedural information. Then, according to the principle of due process, how should the right to acquire procedural information be protected? Generally speaking, this is nothing less than ensuring avenues for acquiring information about rights and conferring statutory periods for acquiring information about rights. The avenues for notifying rights and the statutory preclusion periods for exercising rights prescribed by law serve this very purpose. Ensuring avenues for acquiring information about rights is intended to protect the subjective possibility of exercising rights, while preclusion periods for exercising rights simultaneously ensure both the subjective and objective possibilities of exercising rights.

     3. It can be seen from the above that the Grand Justices have consistently held that the right to litigation is protected by the Constitution, and that when people suffer infringements upon their rights, they may request prompt relief from the courts in accordance with due process, which constitutes the core content of the right to litigation. Among these, safeguarding the people's participation in legal proceedings is a core element of due process.

   • (2) Furthermore, since the amendment of the Law of Adjudication by the Grand Justices of the Judicial Yuan and the transition of the constitutional review system from a meeting format to a court format, this honorable Court should adhere to more rigorous procedural requirements in adjudicating cases:

     1. From the "Council of Grand Justices" to the "Constitutional Court," both Judicial Yuan interpretations and this honorable Court have recognized that abstract legal norm constitutional review is also a facet of implementing the protection of the right to litigation under Article 16 of the Constitution. Therefore, since the Constitutional Court Procedure Act requires the Constitutional Court to conduct case adjudication in a judicialized manner in accordance with due process and render decisions accordingly, it is only then that the intent of Articles 16 and 80 of the Constitution will be fulfilled.

     2. Pursuant to the provisions of the Constitutional Court Procedure Act, procedurally, the Grand Justices may decide whether to accept a case through a review panel; in cases concerning petitions by individuals for constitutional review of legal norms and judgments, they may decide whether to conduct oral argument, and may conduct necessary investigations or preparatory proceedings prior to the oral argument (refer to Article 34 of the Constitutional Court Procedure Rules). During the era of the Council of Grand Justices, the Grand Justices often invited expert scholars, applicants, relevant agencies, or other people's organizations to express opinions through closed "briefings." For instance, the reasoning of this honorable Court's Constitutional Judgment No. 2 of 2022 once mentioned:

        Applicant 1 submitted a petition on August 12, 2015, which met the requirements prescribed in Article 5, Paragraph 1, Subparagraph 2 of the then-applicable Law of Adjudication by the Grand Justices of the Judicial Yuan (refer to the proviso of Article 90, Paragraph 1 of the Constitutional Court Procedure Act). The Grand Justices resolved to accept the case on October 9, 2019, and held a public briefing on March 24, 2020, inviting Applicant 1, the Ministry of Justice as the competent authority for civil law, and expert witnesses to appear at the court to state their opinions, while also inviting the Taiwan Judges Association, Taiwan Bar Association, and Taipei Bar Association to appear at the court as amici curiae to state their opinions.

        However, although this honorable Court called it a public "briefing," in reality, outsiders had no way of knowing that the "briefing" was being held, let alone claiming a right to attend.

     3. Under the current Constitutional Court Procedure Act, this honorable Court still appears to conduct "briefings" based on Article 19 of the same Act and Article 28 of the Constitutional Court Procedure Rules. For example, in Constitutional Judgment No. 8 of 2022, this honorable Court invited applicants, interested parties, and expert scholars to express opinions via a "briefing" during the adjudication, which substantively already constitutes the adjudication of a pending case.

   • (3) When dealing with the controversy of this case through the procedure of convening a "briefing," this honorable Court must still thoroughly implement the intent of Article 16 of the Constitution safeguarding the people's right to litigation, so as to provide complete procedural protection:

     1. Compared to litigation procedures in ordinary courts (including civil, criminal, administrative, and disciplinary proceedings for public functionants), the "briefings" held by this honorable Court are indeed unprecedented in court proceedings. Since the Constitutional Court Procedure Act does not explicitly stipulate the procedure for "briefings," based on the aforementioned spirit of the protection of the right to litigation, the principle of due process, and party participation, disputes arise when this honorable Court conducts "briefings" pursuant to Article 19 of the Constitutional Court Procedure Act and Article 28 of the Constitutional Court Procedure Rules, yet creates disparate treatment among parties to cases with identical legal controversies regarding their knowledge of case information and progress.

     2. Although the briefing for this case was subsequently explained, its relevant materials made public, and live-streamed by this honorable Court on its website between October 11 and 14, 2022, it remains doubtful whether parties who only learned of the briefing information after the aforementioned explanations could objectively have sufficient opportunity to express their opinions, and such treatment is not entirely equal to that received by applicants who were informed from the outset. Therefore, regarding the execution of subsequent proceedings, this honorable Court should fully protect the procedural rights of the applicants and fairly and appropriately provide opportunities to participate in the proceedings.

2. Since many applicants in this case are individuals sentenced to death, the intent to protect the right to litigation and due process must be all the more thoroughly implemented, and more rigorous trial procedures must be conducted:

   • (1) Upon inquiry, among the 44 cases consolidated and adjudicated by this honorable Court under Hui-Tai-Tzu No. 13254, the following 34 cases involve applicants sentenced to death:

     • 111-Xian-Min-Zi No. 900335
     • 111-Xian-Min-Zi No. 900335
     • 109-Xian-Er-Zi No. 142
     • 107-Xian-Er-Zi No. 171
     • 107-Xian-Er-Zi No. 214
     • 107-Xian-Er-Zi No. 221
     • 107-Xian-Er-Zi No. 230
     • 107-Xian-Er-Zi No. 236
     • 107-Xian-Er-Zi No. 238
     • 107-Xian-Er-Zi No. 242
     • 107-Xian-Er-Zi No. 264
     • 107-Xian-Er-Zi No. 267
     • 107-Xian-Er-Zi No. 269
     • 107-Xian-Er-Zi No. 293
     • 107-Xian-Er-Zi No. 43
     • 107-Xian-Er-Zi No. 48
     • 107-Xian-Er-Zi No. 49
     • 107-Xian-Er-Zi No. 71
     • 107-Xian-Er-Zi No. 82
     • Hui-Tai-Tzu No. 10550
     • Hui-Tai-Tzu No. 11556
     • Hui-Tai-Tzu No. 12319
     • Hui-Tai-Tzu No. 12418
     • Hui-Tai-Tzu No. 13204
     • Hui-Tai-Tzu No. 13205
     • Hui-Tai-Tzu No. 13324
     • Hui-Tai-Tzu No. 13460
     • Hui-Tai-Tzu No. 13481
     • Hui-Tai-Tzu No. 13583
     • Hui-Tai-Tzu No. 13593
     • Hui-Tai-Tzu No. 13596
     • Hui-Tai-Tzu No. 13597
     • Hui-Tai-Tzu No. 13601
     • Hui-Tai-Tzu No. 13770

   • (2) In judicial practice in Taiwan, trials involving the death penalty have already adopted "super due process."

     1. The United Nations Human Rights Committee, in General Comment No. 36 published in 2018 regarding the International Covenant on Civil and Political Rights, enumerated multiple opinions regarding the procedures for imposing the death penalty in countries that have not abolished it, with a view to rigor. General Comment No. 32, published in 2007, clearly pointed out: "In cases of trials leading to the imposition of the death penalty scrupulous respect of the guarantees of fair trial is particularly important." (Refer to Attachment 1) This is what legal doctrine refers to as trials in death penalty cases having requirements higher than ordinary due process, which must comply with "super due process."

     2. The death penalty is a punishment that permanently deprives a person of the right to life and a series of freedoms and rights. Since 2012, the Supreme Court, which exercises legal review, has proclaimed that oral argument shall invariably be held in all cases involving a sentence of death to demonstrate prudence and provide the most rigorous and prudent procedural protection. Therefore, regarding the constitutional controversies generally existing in death penalty cases, the Constitutional Court should naturally provide the most rigorous and prudent procedural protection, conducting public and oral arguments and trials.

   • (3) Although the Constitutional Court has discretion over whether to hold oral arguments in cases, regarding the portion of this case involving death penalty sentences, there is no longer any room for discretion not to hold oral arguments:

     1. Article 25 of the Constitutional Court Procedure Act provides: "Judgments in cases under Chapters V and VI shall be rendered based on oral arguments. Except for the cases listed in the preceding paragraph, judgments may be rendered without holding oral arguments." Its legislative reasoning states: "Oral argument is an important part of court trial procedures; however, the facts and issues of cases vary in complexity, and considering the uniqueness of the Constitutional Court, it is appropriate for the Grand Justices to decide whether to hold oral arguments based on the needs of individual cases. The text of the latter part of Paragraph 1 of original Article 13 concerning oral argument is amended and relocated to this Article."

     2. Furthermore, Article 24 of the same Act's amendment bill submitted by the Judicial Yuan to the Legislative Yuan for deliberation on August 19, 2022, provides: "The Constitutional Court may consolidate and adjudicate multiple petitions filed separately, and may consolidate judgments; where they are consolidated and adjudicated, it may designate one or several of the petitioned cases to hold oral arguments." From this, it can be seen that this honorable Court should have discretionary authority over whether to hold oral arguments in cases. Even if different cases are consolidated and adjudicated due to similar legal issues, this honorable Court may still select appropriate consolidated cases to hold oral arguments, rather than being required to do so for all of them.

     3. However, as stated above, in our judicial practice regarding death penalty cases, holding oral argument is currently deemed necessary at this stage, and no exceptions exist. With reference to the requirements of the aforementioned General Comment No. 32, it can be seen that this honorable Court indeed deems it necessary to hold oral arguments in its adjudication of the consolidated death penalty cases in the Present Case.

IV. Conclusion

1. Regarding the execution of subsequent proceedings in the Present Case, this honorable Court should fully protect the procedural rights of the applicants and fairly and appropriately provide opportunities to participate in the proceedings.
2. Regarding the "Briefing" held by this honorable Court on October 24, 2022, it is necessary to conduct it in a public court; other consolidated case applicants should be enabled to timely obtain relevant case files and evidence; and at least those applicants whose underlying cases involve sentences of death should be permitted to jointly participate in that "Briefing" to express their opinions.
3. If time is too pressing to accomplish this, a public court procedure should be held to afford other applicants whose underlying cases involve sentences of death the opportunity to state their opinions for this honorable Court's consideration.
4. Should this honorable Court ultimately decide to hold oral argument on the issues of the "Briefing," then at least all applicants whose underlying cases involve sentences of death shall naturally have the right to retain litigation counsel during oral argument to express opinions and engage in attack and defense.

Attachment

Chinese Version of General Comment No. 32 Published by the United Nations Human Rights Committee in 2007 Regarding the International Covenant on Civil and Political Rights (Excerpt)