20 July 2021
The Grand Justices of the Judicial Yuan rendered Judicial Interpretation No. 801 of February 5, 2021 (hereinafter, the “Interpretation”), holding that the provision that the number of detention days short of one year before a final decision is rendered shall not be counted as part of the sentence that has been carried out for a parole on a life sentence in Article 77, Paragraph 2 of the Criminal Code as amended and promulgated on November 26, 1997 violates the principle of equality under Article 7 of the Constitution and shall be invalid.
According to the fact underlying the Interpretation, Applicant A was sentenced to life in prison by the Taiwan High Court for murder (recidivism). After the appeal was finally rejected by the Supreme Court, Applicant A has been committed to prison ever since. The Applicant stated his objection to the Taiwan High Court concerning the number of detention and commutation days in the execution instructions, asserting that although he had been detained for 985 days before and after the final decision, only the 620 days obtained by deducting the one-year period from the above number of detention days could be included as part of the sentence that had been carried out for the parole under Paragraph 1 of Article 77 pursuant to Article 77, Paragraph 3 of the Criminal Code in violation of his right protected under the Constitution. After the Taiwan High Court issued a criminal ruling to reject the objection, the Applicant filed an interlocutory appeal, and rejection of the objection became final after the Supreme Criminal Court issued a ruling stating that the interlocutory appeal was not valid. Therefore, the above criminal ruling of the Supreme Court became final. The Applicant asserted that the above provision applied in the final ruling could potentially violate Articles 7, 8 and 23 of the Constitution and, therefore, applied to the Grand Justices of the Judicial Yuan for interpretation.
The Interpretation pointed out that according to the principle of equality under Article 7 of the Constitution, legislators should treat the same things the same way, and treat different things differently; and if they treat the same things differently without justification, or treat different things the same way, they violate the principle of equality under Article 7 of the Constitution. Whether a legal provision meets the principle of equality, the determination should be based on the constitutionality of the purpose of different treatments under such legal provision and the certain degree of connection between the categorization so adopted and the regulatory objective. Since the detention involves major restrictions on personal freedom, if the legislators adopt different treatments regarding whether the number of detention days can be included as part of the sentence that has been carried out, a medium standard should be adopted to review this in order to determine if the objective is to pursue important public interests, and if there is any substantive connection between the pursuit of the means and the objectives of the different treatments in order to meet the principle of equality under the Constitution.
It was further indicated in the Interpretation that Article 77, Paragraph 2 of the Criminal Code amended and promulgated on November 26, 1997 (which was subsequently moved to Paragraph 3 of the same article when the same article was amended and promulgated on February 2, 2005 with only literary adjustment and the same gist of regulation) specifically provides: “The number of detention days in excess of one year before the decision on the life sentence becomes final is included as part of the sentence that has been carried out as mentioned in the preceding paragraph.” Therefore, when an inmate whose life sentence is being carried out applies for parole, only the previous number of detention days in excess of one year before the decision became final is included as part of the sentence that has been carried out, but the number of detention days short of one year is not. However, an inmate under a fixed term prison sentence who applies for parole is not subject to such restriction. Therefore, the provision at issue contains different treatments between prisoners under life sentence and fixed term prison sentence. Although detention before a final decision consists of general detention and preventive detention, still regardless of whether the defendant is subject to a life sentence or fixed term prison sentence, since there is no difference in the restrictions and actual unfavorable influences on the defendant’s personal freedom, there is no need to make any different assessment. Although there is room for the legislators to form the requirement concerning if the number of detention days can be included as the part of the sentence that has been carried out for purposes of parole, if a policy decision has been made to include that, there is no need to deliberately differentiate life sentence from fixed term prison sentence and to provide an obviously unfavorable and different treatment to life sentence prisoners. With respect to the provision that the number of detention days short of one year before the decision becomes final is not included as part of the sentence that has been carried out, it is difficult to conclude that there is any substantive connection between the means of different treatments and the achievement of the fairness objective through different standards for the execution of a life sentence and a fixed term prison sentence. Since this aspect violates the principle of equality under Article 7 of the Constitution, it should become invalid on the day the Interpretation was rendered. To wit, the number of detention days before the decision on life sentence becomes final shall be entirely included as part of the sentence that has been carried out for the purpose of parole.
For further information, please contact:
Nora Shih, Lee Tsai & Partners
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