Amicus Curiae Brief to the Constitutional Court | Unconstitutionality of the Statutory Fiction of Fixed Remaining Sentences Following the Revocation of Parole for Life Imprisonment
Last edited: 2026-11-03
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Main Case Number: 109-Hsien-Er-333
Amicus Curiae: Judicial Reform Foundation
Representative: Huang Hsü-t'ien (See power of attorney for details)
Counsel: Attorney Lü Cheng-yen, Attorney Lin An-tung, Attorney Ch'iao Cheng-hsiang (See power of attorney for details)
Regarding the petition for a constitutional review of legal norms filed by individuals in Case No. 333 (Year 109 of the Hsien-Er), this amicus curiae brief is hereby submitted pursuant to Article 20, Paragraph 1 of the Constitutional Court Procedure Act and the Constitutional Court's Ruling No. 333 (Year 109 of the Hsien-Er) dated September 21, 2023:
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, when individuals or organizations other than parties and intervenors submit professional opinions or materials, they shall disclose whether they have any division of labor or cooperative relationship, or monetary compensation or financial sponsorship (including the amount or value thereof) with the parties, intervenors, or their counsel.
2. This amicus curiae brief was drafted by counsel Lü Cheng-yen, Lin An-tung, Ch'iao Cheng-hsiang, and Lin Chia-en. Regarding its drafting, this Foundation, its representative, counsel, and consulted experts have not received any monetary compensation or financial sponsorship (including the amount or value thereof) from the petitioners of Case No. 109-Hsien-Er-333 and its consolidated cases, the parties to the underlying cases, the intervenors, or their counsel; nor do they have any legal interest therein; nor is there any command or supervision relationship. This is hereby stated for the record.
II. The Constitutional Court has scheduled oral argument for December 19, 2023, and announced the legal issues for the constitutional review of legal norms concerning: Article 79-1, Paragraph 5 of the Criminal Code amended and promulgated on November 26, 1997 (hereinafter "Disputed Provision I"); Article 7-1, Paragraph 2 of the Enforcement Act of the Criminal Code amended and promulgated on November 26, 1997 (hereinafter "Disputed Provision II"); Article 79-1, Paragraph 5 of the Criminal Code amended and promulgated on February 2, 2005, and taking effect on July 1, 2005 (hereinafter "Disputed Provision III"); and Article 7-2, Paragraph 2 newly added to the Enforcement Act of the Criminal Code on February 2, 2005 (hereinafter "Disputed Provision IV"). This Foundation hereby submits its opinions sequentially on the legal issues raised by the Constitutional Court as follows.
1. Are Disputed Provisions I and III unconstitutional in prescribing that where parole is revoked for a lifers, they shall in all cases serve a fixed remaining sentence, regardless of the duration of the parole period or the nature and category of the recommitted offense?
2. Following the above, where the law originally serving as the basis for sentencing life imprisonment has been abolished (such as the Statute for the Punishment of Bandits) or amended (such as Article 272 of the Criminal Code prior to the amendment promulgated on May 19, 2019) after the judgment, are Disputed Provisions I and III unconstitutional for failing to make special provisions regarding the remaining sentence to be served?
3. When the provisions concerning the serving of remaining sentences upon the revocation of parole for lifers are amended, are the provisions resulting from observing Disputed Provisions I, II, and the first segment of IV in combination, or observing Disputed Provisions III and the proviso of IV in combination, unconstitutional with respect to the laws to be applied?
III. This Foundation's Support for the Petitioners' Opinions and Reasons Therefor
1. Disputed Provisions I and III, insofar as they prescribe that lifers whose parole is revoked must in all cases serve a fixed remaining sentence regardless of the duration of the parole period and the nature and category of the recommitted offense, contravene the principle of proportionality and the principle of culpability under Article 23 of the Constitution and should be declared unconstitutional:
(1) Pursuant to Disputed Provisions I and III, regardless of the duration of the parolee's period of "maintaining good conduct" on parole or the nature and category of the recommitted offense; without reviewing the circumstances of the recommitment in the specific case to determine whether the requirements for parole premised on "concrete evidence of remorse" and the effectiveness of social reintegration have been shaken; and without considering whether the revocation of parole is due to an intentional new offense categorized as "shall be revoked" under Article 78, Paragraph 1 or "may be revoked" under Paragraph 2 of the Criminal Code, or due to "serious violation of matters to be complied with during protective custody" under Article 74-3, Paragraph 2 of the Implementation Act of An Intrumentality of Security Measures; as long as parole is formally revoked, it is uniformly evaluated as "ineffective social reintegration" requiring the service of a "fixed," long-term remaining sentence:
1. Article 77, Paragraph 1 of the Criminal Code explicitly stipulates the conditions for parole: "A person serving a sentence of imprisonment who exhibits concrete evidence of remorse may, after serving more than twenty-five years of a life sentence, more than one-half of a determinate sentence, or more than two-thirds of a sentence in the case of a recidivist, be released on parole upon application by the prison to the Ministry of Justice." Accordingly, a person undergoing imprisonment who "exhibits concrete evidence of remorse" may, after serving the requisite period, have their parole review materials filled out by the prison in a parole report form and delivered to the protective custody roster, and submitted to the Parole Review Board (hereinafter the "Parole Board") for deliberation (refer to Article 2 of the Regulations for Implementing Parole of Prisoners).
2. Continuing from the above, relevant authorities shall comprehensively evaluate factors such as the circumstances of the offense in the individual case, in-prison conduct, criminal record, effectiveness of correctional and reformative treatment, rehabilitation plan, family support, and the opinions of the victim or their surviving family members as recorded in the parole review materials, in order to make a decision on whether to grant or deny parole (refer to Article 116 of the Prison Act and Article 3 of the Regulations for Implementing Parole of Prisoners). To this end, the Ministry of Justice has established the Reference Criteria and Comparison Table for Parole Case Review, explicitly regulating two types of review formats—"lenient" and "strict"—based on dimensions such as "circumstances of the offense," "post-offense performance" (including in-prison conduct), and "recidivism risk" (including prior criminal records).
3. The Judicial Yuan (the same below) has already explained in paragraphs 9 and 10 of the Reasoning of Interpretation No. 796 that the purpose of prison execution and parole is to correct and reform prisoners and assist them in returning to a free society:
The purpose of the parole system is to enable persons serving a sentence of imprisonment who exhibit concrete evidence of remorse and meet statutory requirements to suspend the execution of their imprisonment, so as to encourage prisoners to actively reintegrate into society (refer to Article 77 of the Criminal Code, and Articles 116 and 138, Paragraph 2 of the Prison Act). ... Prison execution is one of the primary ways for the state to execute penalties against criminals. In addition to fair retribution and general prevention, prison execution primarily aims to correct and reform prisoners, prompt them to repent and improve, cultivate their ability to adapt to social life, and assist them in reintegrating into social life (refer to the legislative explanation of Article 1 of the Prison Act). The purpose of parole is also to encourage prisoners to turn over a new leaf, granting early release to prisoners who are already fit for social life to return to a free society to facilitate their rehabilitation (refer to the legislative explanation of Article 77 of the Criminal Code as amended in 1997; see also Article 76 of the Statute of Progressive Execution of Penalty). Thus, whether serving imprisonment in prison or on parole, both aim to assist prisoners in returning to a free society.
4. Furthermore, regarding parole for life imprisonment, paragraph 8 of the Reasoning of Interpretation No. 801 also points out that it shares the same purpose:
However, although the executed periods required for parole set by the Criminal Code differ between life imprisonment and determinate imprisonment, the institutional purpose is the same: both aim to enable prisoners who exhibit concrete evidence of remorse and meet the conditions for parole to prematurely suspend the execution of imprisonment, thereby reintegrating into society to promote the correctional effect of penalty execution on the prisoner. ...
5. Following the intent of the above interpretations, constitutional litigation practice also explained the purpose and meaning of parole revocation in paragraph 10 of the Reasoning of Interpretation No. 796:
... Parole is merely a buffer system for early release during the process wherein a prisoner transitions from a completely confined prison environment to a completely free release, subject to certain conditions and under the supervision of the public authority of protective custody (refer to Article 93, Paragraph 2 of the Criminal Code); that is, a diversion mechanism from institutional treatment to social treatment during the execution of a penalty. Therefore, the law provides that during the period of in-prison execution, if a prisoner is unsuited for early return to society, parole is not granted, and execution continues in prison to realize the state's penal power. During the parole period, which has transitioned to social treatment, if facts occur showing that the parolee is unsuited to return to society, parole is revoked to return the parolee to institutional treatment.
6. Viewed in this light, parole is a discretionary diversionary treatment implemented by acknowledging that a prisoner has "concrete evidence of remorse" based on considerations of the offense circumstances, in-prison conduct, criminal record, effectiveness of correctional treatment, and rehabilitation plan in the individual case, thereby enabling prisoners "fit to return to society" to actively reintegrate; whereas the purpose of revoking parole is, upon the fulfillment of certain conditions attributable to the prisoner, to evaluate the parolee as having "ineffective social reintegration" and therefore deem it necessary to return to institutional treatment. Moreover, if a prisoner's parole is revoked due to the recommitment of an offense, there are circumstances such as criminal trial, recidivism aggravation, and recommitting offenses during parole that can be appropriately evaluated.
7. However, pursuant to Disputed Provisions I and III, when parole is revoked for a lifer, regardless of the duration of the parole period or the nature and category of the recommitted offense, they shall in all cases serve a fixed remaining sentence (20 or 25 years). To put it another way, not only does it fail to review whether the circumstances of the recommitment in the specific case have shaken the effectiveness of social reintegration—meaning it fails to consider factors such as the recommitment circumstances and crime types—nor does it consider whether the reason for parole revocation is an intentional new offense falling under "shall be revoked" in Article 78, Paragraph 1, or "may be revoked" in Paragraph 2 of the Criminal Code, or falling under "serious violation of matters to be complied with during protective custody" in Article 74-3, Paragraph 2 of the Implementation Act of An Intrumentality of Security Measures; as long as parole is formally revoked, it is uniformly evaluated as "ineffective social reintegration," requiring the service of a "fixed," i.e., identical, long-term remaining sentence before consecutively executing other penalties, and only when the execution of the other penalties reaches the parole threshold may they apply for parole once again.
8. Furthermore, where the remaining sentence under Disputed Provisions I and III is as long as 20 or even 25 years, whether the prisoner realistically retains any possibility of parole is open to question. This portion is detailed from (3) on page 10 onwards.
(2) Where a lifer on parole intentionally commits a new (minor) offense during parole, or seriously violates matters to be complied with during protective custody, thereby facing the circumstance of discretionary parole revocation pursuant to Article 78, Paragraph 2 of the Criminal Code and Article 74-3, Paragraph 2 of the Implementation Act of An Intrumentality of Security Measures respectively, an appropriate evaluation must be made as to whether their "social reintegration is ineffective." Furthermore, whether it is mandatory parole revocation for intentionally committing a new (serious) offense pursuant to Article 78, Paragraph 1 of the Criminal Code, or the aforementioned discretionary parole revocation circumstances, Disputed Provisions I and III fail to review the circumstances of parole revocation based on the specific case, subjecting them uniformly to a fixed long-term remaining sentence, which should be deemed a violation of the constitutional principles of proportionality and culpability:
1. Paragraph 9 of the Reasoning of Interpretation No. 796 clarifies that revoking parole and executing the remaining sentence for a parolee still constitutes a restriction on personal freedom under Article 8 of the Constitution, and must be bound by the principle of proportionality:
... After a parole disposition is rendered by the competent authority, the parolee ceases the execution of imprisonment and is released from prison. If it is revoked and the remaining sentence is executed, not only does it directly involve a restriction on the parolee's personal freedom, but it also has a major impact on various rights they already enjoy due to social reintegration (refer to Judicial Yuan Interpretation No. 681). Thus, although a parole revocation disposition does not subject the parolee to a new penalty, with the execution of the remaining sentence as the primary legal effect of parole revocation, the parolee must re-enter prison to serve a sentence, thereby restricting their personal freedom. This must comply with the principle of proportionality under Article 23 of the Constitution to conform to the intent of Article 8 of the Constitution safeguarding the people's personal freedom.
2. Pursuant to Disputed Provisions I and III, upon parole revocation, lifers on parole (i.e., prisoners) must serve a long-term remaining sentence of 20 or 25 years within a correctional institution, which undoubtedly constitutes the exercise of state penal power. In this regard, paragraph 2 of the Reasoning of Interpretation No. 681 explicitly states that parole revocation decisions made by competent authorities should properly follow certain due process and be undertaken prudently. In this context, as parole revocation serves as a penal measure restricting personal freedom, the balancing under the principle of proportionality considers whether the reason for parole revocation is commensurate with the penal effect following parole revocation (i.e., the execution of the remaining sentence of the prior offense).
3. To put it explicitly, the review of the principle of proportionality concerning the restriction of personal freedom by parole revocation is a matter of the constitutional principle of culpability. For the exercise of state penal power involves "the existence, degree, and manner of restricting personal freedom," which hinges upon the court's determination of criminal facts and appropriate sentencing, and is bound by the principle of culpability in both legislation and individual adjudication. Meanwhile, the exercise of state penal power based on a final judgment involves "the specific content of the degree and manner of restricting personal freedom" (such as the treatment environment and space in correctional institutions, the content of correctional education, work requirements in correctional institutions, skills training for social reintegration, etc.), and after evaluating the prisoner's correction and remorse, an appropriate treatment decision is made. As stated in paragraph 10 of the Reasoning of Interpretation No. 796, parole revocation constitutes the exercise of state penal power, hinges upon the determination of relevant causes, and leads to an appropriate treatment decision. Both are based on fact-finding regarding the actor's conduct and determine the degree of restricting personal freedom. As for the treatment decision in parole revocation—serving as the specific content of the exercise of penal power, i.e., the restriction of personal freedom—its importance and degree of impact on people's rights are truly no less than the decision in a criminal trial. Therefore, a reasonable correlation must exist between the grounds for parole revocation and its subsequent treatment decision, and it is directly bound by the constitutional principle of culpability.
4. In constitutional litigation practice, the propriety of the exercise of penal power and the imposition of penalties has been elucidated multiple times through the constitutional principles of proportionality and culpability. Paragraph 12 of the Reasoning of Interpretation No. 777 states:
The people's personal freedom shall be safeguarded, as explicitly stipulated in Article 8 of the Constitution. Penalties restricting personal freedom severely restrict the fundamental rights of the people and are a last resort of last-ditch necessity. If the legislature, in order to protect specific important legal interests conforming to constitutional values, deems that imposing penalties is conducive to the achievement of the purpose, and there are no other equally effective measures infringing less upon rights available for utilization, it may restrict the physical freedom of the people through penal regulations. However, the restriction on personal freedom by penalties must still maintain a proportional relationship with the legal interests it seeks to uphold. In particular, the height of statutory penalties must be commensurate with the harm caused by the conduct and the severity of the actor's culpability to conform to the constitutional principle of culpability and not contravene the principle of proportionality under Article 23 of the Constitution (refer to Judicial Yuan Interpretations No. 544, No. 551, No. 646, No. 669, and No. 775).
Paragraph 12 of the Reasoning of Interpretation No. 775 also states:
5. Following this, if the exercise of state penal power fails to consider various circumstances and sets appropriate criminal treatment in individual cases for actors of different causes and degrees of conduct, it contravenes the constitutional principles of proportionality and culpability:
(1) Where a lifer on parole intentionally commits a new (minor) offense during parole, or seriously violates matters to be complied with during protective custody, thereby facing the circumstance of discretionary parole revocation pursuant to Article 78, Paragraph 2 of the Criminal Code and Article 74-3, Paragraph 2 of the Implementation Act of An Intrumentality of Security Measures respectively, an investigation and determination of facts regarding such grounds must be conducted first, followed by an appropriate evaluation of whether "social reintegration is effective" based upon that determination.
(2) What should be considered in this regard are the circumstances of parole revocation in the specific case, specifically whether they have shaken the effectiveness of social reintegration and necessitate restricting personal freedom through institutional treatment. Factors to be incorporated into consideration include circumstances of recommitting offenses or violating protective custody in the individual case, work status, family support, etc. Moreover, regardless of whether it is mandatory revocation (Article 78, Paragraph 1 of the Criminal Code, where an intentional new offense committed during parole results in a final conviction of imprisonment exceeding six months) or the aforementioned discretionary revocation circumstances, even if it is deemed appropriate for the parolee to temporarily return to "institutional treatment," the length of the remaining sentence that they "should (for the prior offense) continue to serve" must still be reviewed based on the specific case, so as to meet the requirements of the constitutional principles of proportionality and culpability.
(3) The above opinion can also be seen in page 6 of the Control Yuan 2020 Investigation Report No. 0076:
... Consideration should be given to amending the remaining sentence to be executed after parole revocation, meaning that the remaining sentence to be executed should be appropriately determined by comprehensively considering circumstances such as the parolee's performance during the parole period in the specific case, the circumstances of committing the subsequent offense, and whether they possess concrete evidence of remorse.
6. However, Disputed Provisions I and III require that once a lifer's parole is revoked, regardless of the reason for revocation or the degree of circumstances, they must in all cases serve a long-term remaining sentence of 20 or 25 years, which easily gives rise to cases where the punishment is disproportionate to the offense in individual cases. For example, Article 74-2, subparagraph 5 of the Implementation Act of An Intrumentality of Security Measures provides: "During the period of protective custody, a person under protective custody shall comply with the following matters: 5. Not leave the place of protective custody without permission from the person executing protective custody; leaving for ten days or more shall be approved by the prosecutor." Suppose a lifer on parole fails to obtain permission from the executing person when leaving the place of protective custody, and under extreme circumstances, this is determined to reach the degree of "serious violation" stipulated in Article 74-3, Paragraph 1 of the same Act, the warden may report to revoke parole pursuant to Paragraph 2. Taking the following circumstances of the petitioners in this case as examples can also highlight the impropriety of uniformly serving a long-term remaining sentence regardless of circumstances after parole revocation:
(1) Petitioner Yang Cheng-yung (Consolidated Case Serial No. 8)
Originally committed an offense under the Statute for the Suppression of Narcotics during the Period of Suppression of Rebellion and was sentenced to life imprisonment. Released on parole on March 24, 2006, due to committing the offenses of using Category 1 and Category 2 narcotics on September 21 and October 6, 2015, respectively, he was convicted and sentenced to a consolidated determinate sentence of 10 months of imprisonment, and parole was revoked. Pursuant to Disputed Provisions III and IV, the petitioner must continue to serve a remaining sentence of 25 years and consecutively execute the subsequent offense, and may only re-apply for parole after the execution of the subsequent offense meets the parole thresholds.
(2) Petitioner Hsieh Ch'en-hui (Consolidated Case Serial No. 10)
Originally committed an offense under the Statute for the Punishment of Bandits and was sentenced to life imprisonment. Released on parole on April 24, 2007, he committed the offenses of using Category 2 and Category 1 narcotics on December 30, 2012, and January 3, 2013, respectively, and was sentenced to 3 months and 10 months of imprisonment; he committed the offenses of fraud on December 17 and December 19, 2012, and was definitively sentenced to 5 months and 5 months of imprisonment respectively. The aforementioned offenses were consolidated into a determinate sentence of 1 year and 7 months of imprisonment, and parole was revoked. Pursuant to Disputed Provisions III and IV, the petitioner must continue to serve a remaining sentence of 25 years and consecutively execute the subsequent offense, and may only re-apply for parole after the execution of the subsequent offense meets the parole thresholds.
(3) Petitioner Lien Yung-ch'uan (Consolidated Case Serial No. 12)
Originally committed an offense under the Statute for the Punishment of Bandits and was sentenced to life imprisonment. Released on parole on November 5, 2008, he committed the offense of driving under the influence (endangering public safety) in the early morning of March 27, 2014, and was sentenced by the court to 2 months of imprisonment. Before the judgment became final, the petitioner failed to report as required on May 22, June 12, and July 7, 2014, and ignored warnings, searches, and visits, thereby resulting in the revocation of parole. Pursuant to Disputed Provisions III and IV, the petitioner must continue to serve a remaining sentence of 25 years and consecutively execute the subsequent offense, and may only re-apply for parole after the execution of the subsequent offense meets the parole thresholds.
(4) Petitioner Tsai Chien-yang (Consolidated Case Serial No. 15)
Originally committed an offense under the Statute for the Suppression of Narcotics during the Period of Suppression of Rebellion and was sentenced to life imprisonment. Released on parole on March 22, 2007, due to using Category 1 narcotics in 2011, he was sentenced to 7 months of imprisonment, and parole was revoked. Pursuant to Disputed Provisions III and IV, the petitioner must continue to serve a remaining sentence of 25 years and consecutively execute the subsequent offense, and may only re-apply for parole after the execution of the subsequent offense meets the parole thresholds.
(5) Petitioner Yang Ch'i-fang (Consolidated Case Serial No. 17)
Originally committed an offense under the Statute for the Suppression of Narcotics during the Period of Suppression of Rebellion and was sentenced to life imprisonment. Released on parole on December 28, 2006, he was subjected to observation and rehabilitation due to using Category 2 narcotics on April 18, 2013; he used narcotics twice more on December 17 and 30, 2013, and was sentenced to a consolidated determinate sentence of 4 months. Although sentenced to less than 6 months of imprisonment, the probation officer deemed him at risk of repeated use and revoked his parole. Pursuant to Disputed Provisions III and IV, the petitioner must continue to serve a remaining sentence of 25 years and consecutively execute the subsequent offense, and may only re-apply for parole after the execution of the subsequent offense meets the parole thresholds.
To summarize, Disputed Provisions I and III systematically evaluate parolees as having "ineffective social reintegration" and uniformly subject them to 20 or 25 years of remaining sentences, which evidently violates the principle of proportionality and the principle of culpability under Article 23 of the Constitution.
7. In summary, to safeguard that the exercise of state penal power complies with due process and realize the constitutional protection of personal freedom, the system could entrust courts in individual cases to review whether a prisoner should return to institutional treatment and the length of their remaining sentence. Furthermore, according to statistical results from the Ministry of Justice in August 2023 (refer to page 6 of Exhibit 2), over the 10-year period from 2013 to 2022, there were a total of 657 lifers released on parole (with 255 people violating the Narcotics Hazard Prevention Act accounting for the highest proportion at 38.8%), while the total number of prisoners released on parole over the past 10 years was 108,734 (with the number of revoked paroles totaling 18,407). Lifers released on parole accounted for only 0.6% of the total number of parole releases. In terms of the overall proportion and quantity of lifers released on parole, if the Constitutional Court declares Disputed Provisions I and III unconstitutional, recognizing that returning to institutional treatment upon parole revocation for lifers should entail appropriate treatment decisions by relevant units, and retaining the possibility of applying for parole again by law rather than uniformly serving a fixed period of ultra-long remaining sentence, it should not create difficulties at the legislative or judicial implementation levels. This is hereby stated for the record.
(3) Although the remaining sentence of life imprisonment fictionalized by Disputed Provisions I and III does not completely preclude the possibility of a prisoner's social reintegration, considering the age of the crime, the sentence served prior to parole revocation, the remaining sentence served after parole revocation, and the average life expectancy of citizens, the effect of a 25-year remaining sentence is substantially close to life imprisonment without parole, a factor that should be evaluated in conjunction:
1. Pursuant to the main text of Article 77, Paragraph 1 of the Criminal Code amended and promulgated on November 26, 1997: "A person serving a sentence of imprisonment who exhibits concrete evidence of remorse may, after serving more than fifteen years of a life sentence, or more than twenty years in the case of a recidivist, or more than one-half of a determinate sentence, or more than two-thirds of a sentence in the case of a recidivist, be released on parole upon application by the prison to the Ministry of Justice." Article 77, Paragraph 1 of the Criminal Code amended and promulgated on February 2, 2005, and taking effect on July 1, 2005, stipulated: "A person serving a sentence of imprisonment who exhibits concrete evidence of remorse may, after serving more than twenty-five years of a life sentence, or more than one-half of a determinate sentence, or more than two-thirds of a sentence in the case of a recidivist, be released on parole upon application by the prison to the Ministry of Justice." Comparing Disputed Provisions I and III, it can be seen that after parole revocation for a lifer, their prior and subsequent imprisonment combined can reach up to 50 years (calculation formula: 50 years = 25 years + 25 years).
2. In international human rights law, it has always been considered that life imprisonment without the possibility of release directly infringes upon human dignity:
(1) Article 7 of the International Covenant on Civil and Political Rights provides: "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment." This Covenant was promulgated and implemented by the President on December 10, 2009, taking effect in our country. The intent of this article aligns with Article 3 of the European Convention on Human Rights: "No one shall be subjected to torture or to inhuman or degrading treatment or punishment." Thus, the relevant judgment intents of Article 3 of the European Convention on Human Rights serve as important references for interpreting the fundamental rights of the people protected by our Constitution and the International Covenant on Civil and Political Rights.
(2) The European Court of Human Rights pointed out in the 2008 Kafkaris judgment and the 2013 Vinter and Others judgment that in determining whether life imprisonment is compatible with Article 3 of the European Convention on Human Rights, it depends on whether life imprisonment has the possibility of being compressed, meaning whether the inmate still has prospects of release and whether there is a re-examination of the necessity of maintaining imprisonment. For life imprisonment without any prospect of release or possibility of sentence review means that no matter how much the prisoner turns over a new leaf, they will never be able to atone for their crimes. Imposing life imprisonment without the possibility of release directly violates the respect for human dignity that constitutes the essence of the Convention (refer to Exhibit 3, pages 668-669).
(3) The European Court of Human Rights further elucidated: "Today, the principles of European law and international law hope to provide all inmates, including those serving life sentences, with the possibility of correction and prospects of release," and "if punishment remains one of the purposes of imprisonment, criminal policy in Europe has since emphasized the goal of resocialization, specifically aiming toward ending long-term imprisonment," highlighting that long-term imprisonment relying blindly on imprisonment while ignoring the goal of resocialization no longer conforms to the purpose of contemporary criminal policy (refer to Exhibit 3, page 670).
3. Referring to our country's criminal statistics, nearly half of the suspects in criminal cases between 2013 and 2022 fell within the age range of 30 to 49 years old (refer to Exhibit 4). Referring further to the "Abbreviated Life Table of 2022" published by the Ministry of the Interior, the average life expectancy of citizens is 79.84 years (refer to Exhibit 5). Calculations show that adding the criminal's age to the aforementioned period of imprisonment in correctional institutions mostly exceeds the average life expectancy of citizens. This is even more true in cases where parole is revoked due to intentionally committing a new offense, where after completing the remaining sentence, they must consecutively execute the imprisonment of the subsequent offense, equivalent to spending the rest of their lives growing old in a correctional institution with no possibility of returning to a free society. Setting aside the age of most criminals, if human life expectancy is used after deducting childhood, schooling, and military service, it can actually be said that the opportunity for prisoners to be paroled and reborn is completely deprived (refer to Exhibit 6).
4. To summarize, although the remaining sentence of life imprisonment fictionalized by Disputed Provisions I and III does not completely preclude the possibility of a prisoner's social reintegration, considering various realistic factors, the effect of a 25-year remaining sentence is substantially close to life imprisonment without parole. This factor should be considered in conjunction when examining whether Disputed Provisions I and III meet the requirements of the constitutional principles of proportionality and culpability.
2. Where the law originally serving as the basis for sentencing life imprisonment has been abolished or amended after the judgment, Disputed Provisions I and III fail to make special provisions regarding the remaining sentence to be executed, contravening the principles of proportionality and equality, and should be declared unconstitutional:
(1) Regarding the special circumstances shown in "Legal Issue 2," they contravene the principles of proportionality and equality. The reasons held in this brief cite pages 4-6 of the Supreme Court Criminal Division 3 Application for Constitutional Interpretation of July 16, 2020, and are supplemented as follows.
(2) The statutory penalty provisions of the Statute for the Punishment of Bandits and Article 272 of the Criminal Code prior to amendment evidently give rise to doubts of violating the principle of culpability. Therefore, when applying Disputed Provisions I and III, if the law underlying the life sentence falls under the aforementioned provisions, the impropriety of its statutory penalty will cause individual parolees applying Disputed Provisions I and III to face doubts of contravening the principles of proportionality and equality:
1. The Statute for the Punishment of Bandits evidently gives rise to doubts of violating the principle of culpability:
(1) The Statute for the Punishment of Bandits originally prescribed a implementation period of one year, with provisions for extension if necessary, and was extended past the deadline multiple times. Reasonably speaking, if not extended within the deadline, this statute should have naturally been abolished, and orders for overdue extension would not take effect. Subsequently, the Legislative Yuan deleted the provision setting the implementation period at one year. The Supreme Court inferred from this that the legislator intended to re-enact the Statute for the Punishment of Bandits to construct the legality of continuing to apply this statute. However, scholar Lin Shan-t'ien sifted through legislative facts and found that no intention of the legislator to enact an entire new law could be seen from the legislative records, meaning the Supreme Court created the legality of the Statute for the Punishment of Bandits on its own, raising doubts of illegality in its continued application (refer to Exhibit 7, pages 113-117).
(2) The Control Yuan 2019 Judicial Investigation Report No. 0009 also discusses on pages 7-14 that according to the basic legal theory of time-limited laws, upon expiration of the implementation period, the entire Statute for the Punishment of Bandits is naturally abolished and becomes ineffective, pointing out that judicial organs applying an ineffective law violates the principle of statutory penalty under Article 1 of the Criminal Code. This argument by the Control Yuan elevates the issue to the constitutional level: judicial organs continually citing the Statute for the Punishment of Bandits as the basis for judgment constitutes the application of an ineffective law, which should contravene the constitutional principle of statutory penalty.
(3) The Statute for the Punishment of Bandits was originally special legislation for suppressing bandits in China. Comparing it with the social situation in Taiwan at the time, the temporal and spatial background of rampant banditry simply did not exist (refer to Exhibit 7, page 116), raising doubts about the legitimacy of such a severe penalty. Furthermore, referring to pages 17-19 of Control Yuan 2019 Judicial Investigation Report No. 0009, it can be seen that the statutory penalty of that law was solely death or life imprisonment; comparing it with current Criminal Code provisions, there remained room for discretionary determinate imprisonment rather than solely imposing death or life imprisonment (e.g., Article 3, Paragraph 1, Subparagraph 1 of the Statute for the Punishment of Bandits: robbing boats, vehicles, or aircraft of land, water, or air transport; corresponding Criminal Code provisions are Article 185-1, Paragraph 1 and Article 328, Paragraph 1 for aircraft hijacking and robbery, with statutory penalties of death, life imprisonment, or determinate imprisonment of 7 years or more, or determinate imprisonment between 3 and 10 years); let alone instances where the statutory penalty did not include death or life imprisonment at all (e.g., Article 3, Paragraph 1, Subparagraph 6 of the Statute for the Punishment of Bandits: intending to commit robbery and instigating riots to disrupt public safety; corresponding Criminal Code provisions are Article 153 for instigating others to commit offenses or violate laws and regulations, with statutory penalties of determinate imprisonment of 2 years or less, detention, or a fine of 1,000 NTD or less).
(4) Interpretation No. 263 also pointed out:
Article 2, Paragraph 1, Subparagraph 9 of the Statute for the Punishment of Bandits, regarding kidnapping with intent to extort ransom, uniformly prescribes death as the statutory penalty regardless of crime circumstances and results, which is extremely strict legislatively... If there are circumstances where the punishment is disproportionate to the offense, there is naturally application for discretionary mitigation of punishment under Article 59 of the Criminal Code during adjudication...
This repeatedly corroborates that the statutory penalty of the Statute for the Punishment of Bandits may have unconstitutional doubts of lacking culpability, requiring the application of other penalty mitigation provisions to avoid resulting in unconstitutionality.
2. Furthermore, in 2019, the Legislative Yuan amended Article 272 of the Criminal Code, changing the statutory penalty for killing lineal blood ascendants from death or life imprisonment to aggravating the punishment by up to one-half. Regarding the legislative reasons therefor, it considered:
However, the statutory penalty of the original first paragraph was death or life imprisonment, which severely restricts the judge's discretionary power in sentencing individual cases. In cases common in judicial practice where the perpetrator has long suffered abuse from lineal blood ascendants and commits the homicide offense under this article out of an inability to endure the abuse, although their conduct is not permitted by law, if they can only be sentenced to life imprisonment or death, it might be overly harsh. Therefore, referencing provisions such as Article 250 for desecrating the corpses and graves of lineal blood ascendants and Article 280 for injuring lineal blood ascendants, the statutory penalty of the first paragraph is amended to aggravating the punishment by up to one-half, enabling judges to render appropriate sentencing based on specific case facts, offense circumstances, and motives.
From this, it can be known that the statutory penalties previously given by the legislator permitting judges to sentence only death or life imprisonment may have unconstitutional doubts of lacking culpability in individual cases, prompting the legal amendment to grant courts discretionary space in individual cases.
3. To summarize, it is evident that the statutory penalty provisions of the Statute for the Punishment of Bandits and Article 272 of the Criminal Code prior to amendment already exhibit instances of violating the principle of culpability. Pages 34-35 of Control Yuan 2019 Judicial Investigation Report No. 0009 also directly point out:
... Parole revocation or remaining sentence disposition adopts more stringent criminal policies under the new law. However, the statutory penalty of the Statute for the Punishment of Bandits enacted during the Period of Mobilization for the Suppression of Communist Rebellion does not fully accord with the principle of culpability, and the remaining sentence for revoking parole for minor offenses is still at least 25 years or more of long-term confinement, which appears imbalanced compared with cases where the Supreme Court sentenced life imprisonment for extremely grave offenses in recent years.
Thus, when applying Disputed Provisions I and III, if the sentenced person was sentenced to life imprisonment under the aforementioned overly harsh old law, this outdated and abolished law once again causes a major restriction on the prisoner's personal freedom due to the provisions on parole revocation and remaining sentences. To put it simply, the legislator abolished or amended provisions whose past statutory penalties were overly restrictive, yet because of the remaining sentence fictionalization provisions in Disputed Provisions I and III, laws with evident unconstitutional doubts once again impose major adverse restrictions on the people's personal freedom. Due to the impropriety of the statutory penalties in the aforementioned provisions, individual parolees applying Disputed Provisions I and III will face doubts of contravening the principles of proportionality and equality.
(3) If the Constitutional Court recognizes in "Legal Issue 1" that Disputed Provisions I and III contravene the Constitution, it should simultaneously instruct relevant authorities that when making appropriate treatment decisions, they shall consider circumstances where the law underlying the sentencing of life imprisonment has been abolished or amended. However, even if the Constitutional Court deems that Disputed Provisions I and III within the scope of "Legal Issue 1" do not yet contravene the Constitution, regarding "Legal Issue 2" where Disputed Provisions I and III fail to make appropriate provisions for special circumstances and impose particularly disadvantageous legal effects on the people, there remains the possibility of contravening the principles of proportionality and equality:
1. As stated above, the normative method of Disputed Provisions I and III fails to consider the reasons and circumstances for revoking the parole of lifers, uniformly prescribing a fixed execution period (20 or 25 years), which violates the constitutional principle of culpability, i.e., the principle of proportionality. In this regard, the legal issue listed in "Legal Issue 2" by the Constitutional Court arises from the lack of an appropriate evaluation mechanism commensurate with the prisoner's culpability and penalty following parole revocation.
2. In other words, the evaluation standard for the treatment of prisoners after parole revocation under Disputed Provisions I and III relies solely upon the sentence imposed upon them over a decade or even decades ago, turning a blind eye to subsequent institutional and social treatment performance and concrete evidence of remorse, thereby giving rise to the question of whether this sole standard is reasonable after the standard changes, i.e., after the law is abolished or amended. Particularly under interpretation, when a specific crime is no longer subject to life imprisonment in its statutory penalty (i.e., the circumstances described in "Legal Issue 2"), it further proves that the mechanical application of Disputed Provisions I and III evidently results in excessive infringement upon the people's personal freedom.
3. Conversely, if in cases of parole revocation for lifers, the reasons and circumstances for parole revocation are concretely reviewed in individual cases to grant appropriate treatment, it is naturally possible to consider the reasons for the prior life sentence in conjunction. However, even if the Constitutional Court deems that Disputed Provisions I and III within the scope of "Legal Issue 1" do not contravene the Constitution, regarding "Legal Issue 2" where Disputed Provisions I and III fail to make appropriate provisions for special circumstances and impose particularly disadvantageous legal effects on the people, there remains the possibility of contravening the principles of proportionality and equality.
3. Observing the legal effects of Disputed Provisions I to IV in combination results in lifers with better performance and longer duration during parole being subjected to longer periods of personal freedom restriction when parole revocation grounds occur, which runs completely counter to the purpose of the parole system. Thus, their means and purpose lack a reasonable correlation and contravene the principle of equality, and they should be declared unconstitutional:
(1) The issue of "Legal Issue 3" concerns the calculation method of remaining sentences served upon parole revocation for lifers. As stated above, it should be recognized as a restriction on the people's personal freedom:
1. Observing the legal effects of Disputed Provisions I to IV in combination, where parole revocation grounds occur for lifers prior to 1997, Article 79-1 of the Criminal Code of 1994 applies; where they occur between November 26, 1997, and January 7, 2005, Disputed Provision I applies; where they occur after January 7, 2005, Disputed Provision III applies. Furthermore, regarding successive amendments to Article 79-1 of the Criminal Code, they progressively tightened the period of serving remaining sentences after parole revocation for lifers. Thus, applying subsequently amended provisions is evidently more disadvantageous to the prisoner.
2. Therefore, depending on the time when parole revocation grounds occur during parole for lifers, the length of time their personal freedom is constrained also differs. In this regard, observing the legal effects of Disputed Provisions I to IV in combination, those with longer reintegration periods whose parole revocation grounds occur later will be subjected to more stringent restrictions on personal freedom.
(2) The application result of Disputed Provisions I to IV uses the time point when parole revocation occurs as the classification standard, causing those with longer parole periods to suffer more disadvantageous legal effects. This normative method evidently runs counter to the purpose of the parole system, and its means and purpose lack a reasonable correlation, clearly contravening the principle of equality:
1. Regarding the protection of the right to equality, Constitutional Court Judgment No. 18 of 2023 has already elucidated:
The protection of the right to equality under the Constitution does not naturally prohibit the state from enacting differential treatment; whether differential treatment made by legal norms complies with the requirements of equality protection depends on whether the purpose of the differential treatment is constitutional, and whether a certain degree of correlation exists between the classification adopted and the achievement of the normative purpose (refer to Judicial Yuan Interpretations No. 682, No. 722, No. 745, No. 750, No. 794, and Constitutional Court Judgment No. 4 of 2022).
2. True to what was stated above, the purpose of the parole system is to enable persons undergoing imprisonment who exhibit concrete evidence of remorse and meet statutory requirements to actively reintegrate into society through social treatment. During the parole period, which has transitioned to social treatment, if facts occur showing that the parolee is unsuited to return to society, parole is revoked to return the parolee to institutional treatment.
3. Viewed from the purpose of parole, if a prisoner maintains good performance after parole, the longer the parole period, the more it can achieve the effect of social reintegration. Thus, generally speaking, comparing "revocation grounds occurring immediately after parole" with "revocation grounds occurring long after parole," the latter clearly demonstrates better correctional efficacy and the possibility of social reintegration. Therefore, the design of the parole system should provide incentives to encourage paroled prisoners to maintain good performance, and at least should not impose disadvantageous effects merely because paroled prisoners maintain good performance for a long time. Viewed in this light, classifying and observing prisoner performance using "duration of parole period" is not without basis.
4. However, the effect of the aforementioned provisions causes lifers on parole, if their period of good performance during social treatment is longer and revocation grounds occur afterwards, to be more likely to fall within the scope of application of the new law, thereby receiving more disadvantageous legal effects. In this regard, the normative methods of Disputed Provisions I to IV conversely harm the purpose of "prompting prisoners to actively reintegrate into society" and confuse prisoners' correct perception of penal treatment. Thus, the means and purpose of Disputed Provisions I to IV run counter to each other and lack a reasonable correlation, thereby contravening the principle of equality.
(3) Therefore, if the Constitutional Court recognizes in "Legal Issue 1" that Disputed Provisions I and III contravene the Constitution, it should simultaneously declare Disputed Provisions II and IV unconstitutional, and instruct relevant authorities that when making appropriate decisions on treatment for prisoners after parole revocation, they shall consider the duration of the lifer's parole period and their performance. However, even if the Constitutional Court deems that Disputed Provisions I and III do not contravene the Constitution, regarding the legal effects generated by observing Disputed Provisions I to IV in combination as shown in "Legal Issue 3," there remains the possibility of contravening the principle of equality.
IV. Conclusion:
1. Although the calculation of remaining sentences under Disputed Provisions I and III seemingly appears to be merely a mechanical fictionalization of provisions for prisoners to consecutively execute other penalties, it truly and significantly imposes inappropriate restrictions on prisoners' personal freedom. Increasingly stringent long-term remaining sentences practically trap prisoners in correctional institutions without seeing the light of day, making it difficult to hope for the prospect of returning to society once again. In the past, Interpretation No. 796 did not address the unconstitutional issue of excessively harsh remaining sentence calculations caused by Article 79-1 of the Criminal Code under parole revocation disputes, which led the petitioners and others to walk into the Constitutional Court once more three years after that interpretation was rendered. This Foundation expects the Grand Justices to seriously regard the rights of prisoners, fulfill their duty to guard the Constitution, and correct this long remaining sentence that cruelly deprives personal freedom. As for recommitting serious offenses during parole, there is naturally criminal trial for such conduct to render appropriate evaluation.
2. To summarize, it is respectfully requested that the Constitutional Court declare Disputed Provisions I to IV unconstitutional, and simultaneously point out that when reviewing and amending them, relevant authorities shall enable competent authorities to consider, upon parole revocation, whether the laws underlying the sentencing of life imprisonment have been abolished or amended; and shall simultaneously consider the length of the prisoner's parole period, concrete evidence of remorse, and other re-educational circumstances to individually formulate appropriate treatment plans complying with the constitutional principle of culpability.
To
The Constitutional Court
November 29, 2023
List of Exhibits
Exhibit 1: Statistical Analysis of Prisoners Released on Parole by the Ministry of Justice, August 2023.
Exhibit 2: Wang Bi-fang, Appropriate Detention Conditions and Respect for Inmate Dignity: A Study of Relevant Judgments by the European Court of Human Rights, EURAMERICA, Vol. 45, No. 4, December 2015 (excerpt).
Exhibit 3: Criminal Investigation Bureau, National Police Agency, Ministry of the Interior (ed.), Criminal Statistics of the Republic of China 2022, published August 2023 (excerpt).
Exhibit 4: Ministry of the Interior Press Release, August 11, 2023: Average life expectancy of citizens in 2022 was 79.84 years. Last visited: November 27, 2023.
Exhibit 5: Lin Chia-ching and Ch'en Szu-kai, A Preliminary Study on the Constitutionality of Provisions in Taiwan's Criminal Code and Enforcement Act of the Criminal Code Concerning the Execution of Remaining Sentences of Life Imprisonment After Parole Revocation, Taiwan Law Review, No. 93, March 2020.
Exhibit 6: Lin Shan-t'ien, Amend the Old Law or Enact a New Law? — Reviewing the Supreme Court's Views on the Statute for the Punishment of Bandits, Taiwan Law Journal, No. 55, December 1999.
Filing Organization: Judicial Reform Foundation
Representative: Huang Hsü-t'ien
Counsel: Attorney Lü Cheng-yen
Attorney Lin An-tung
Attorney Ch'iao Cheng-hsiang
This article is an AI-generated translation of the original Chinese text. In the event of any discrepancy, the Chinese version shall prevail.