CCS J.03

 No. 3  (Download PDF)

 2014.05.26

1. Death sentence as prescribed in Article 33 Para. 1 of the Criminal Code is unconstitutional and shall lose effect with the declaration of this judgment.

2. Death sentence imposed on a person who takes the life of another in Article 271 Para. 1 of the Criminal Code is unconstitutional and shall lose effect with the declaration of this judgment.

3. The judgment of the Supreme Court, 76 Tai-Shang No. 2533, and the judgment of the High Court, 75 Chung-Shang 2 Geng 1 No. 51, are unconstitutional and thereby vacated and remanded to the High Court for retrial.

4. Death sentences in all other final judgments that are not yet executed shall lose effect with the declaration of this judgment and thereby be remanded to the Supreme Court for retrial that shall begin in two months.

I.   Claims

A.   Background

The Petitioner, Tang Sheng, who serially committed offenses of homicide, was sentenced to death penalty and lifetime deprivation of citizen’s rights in case Taiwan Taipei District Court Criminal Decision 1986 Jong-su-tzu No. 26. After the appeal in case Taiwan High Court Criminal Decision 1986 Shan-Jong-2-su-tzu No. 30, he was still sentenced to death penalty and lifetime deprivation of citizen’s rights. In the further appeal, the Supreme Court reversed the part of homicide offenses of the original judgment, and remanded the case to Taiwan High Court. He was again convicted serial offenses of homicide, and sentenced to death penalty and lifetime deprivation of citizen’s rights in case Taiwan High Court Criminal Decision 1986 Jong-shan-2-gan (1)-tzu No. 51. In the further appeal, The Supreme Court overruled the appeal in case Supreme Court Criminal Decision 1987 Tai-shan-tzu No.2533 and the judgment became final.

The Petitioner, Tang Sheng, claims that Taiwan High Court Criminal Decision 1986 Jong-shan-2-gan (1)-tzu No. 51 and Supreme Court Criminal Decision 1987 Tai-shan-tzu No.2533 (the disputed judgments), where Article 33 (death penalty is one of the principal punishments) and Article 271 Para. 1 of the Criminal Code (a person who takes the life of another shall be sentenced to death) are applied (the disputed provisions), are in violation of the principle of equality in Article 7 of the Constitution, the principle of proportionality in Article 23 of the Constitution, and Article 141 of the Constitution which provides that the foreign policy of the Republic of China shall respect treaties. The disputed judgments also violate the purport of guaranteeing human dignity in the Constitution as well as the right of existence in Article 15 of the Constitution. The petitioner, according to Article 51 of the Simulation Constitutional Court Act, petitioned for decision of this Court and asked this Court to declare the disputed provisions and the disputed judgments in violation of the Constitution.

This Court, according to Article 17 Para. 2, Article19, Article 20, Article 21, and Article 29 of the Simulation Constitutional Court Act, held oral arguments in the open court on May 1, 2015 and May 9, 2015, notifying the counsels of the petitioner, the representatives and counsels of the Respondent Agency, the expert witnesses, and the amici curiae of appearing and stating their opinion in court.

B.   The Petitioner’s Claims

1. Article 33 clanse 1 of the Criminal Code provides that death penalty is one of the principal punishments, and Article 271 Para. 1 of the Criminal Code provides that “a person who takes the life of another shall be sentenced to death or life imprisonment or imprisonment for not less than ten years”. As human dignity is a natural right purported in our Constitution, No. 603 of J.Y. Interpretation clearly stated that “to preserve human dignity and to respect free development of personality is the core value of the constitutional structure of free democracy”. Also, the right to live is the right of existence of the body, which achieves the protection of human dignity, and hence they are closely connected with each other. As such, the principle of human dignity, in regard with the protection of the right to live, has effects of enhancement.

The purport of human dignity is to prevent any person from being an object, a pure mean, or an arbitrarily substitutive thing. Since the death penalty system considers prisoners to be the pure objects which the state power is exerted on, where the disputed provisions that deprive the people of their lives by death penalties are adopted as a mean of punishment, the guarantee of human dignity will be jeopardized due to the deprivation of the right to live.

Accordingly, cases which the decision was sought for and The Petitioner was sentenced to death penalty in, had namely compelled The Petitioner to render his dignity and violated the natural meaning of human dignity guaranteed by the Constitution; therefore, were in violation of the Constitution.

2. Article 15 of the Constitution provides that “The right of existence, the right of work, and the right of property shall be guaranteed to the people”, which clearly states the purport that the right of existence of the people shall be guaranteed by the Constitution. Given that the core value of the contemporary constitutional democracies consists in the maintenance of human dignity, that all judicial review mechanism shall exist in order to fight for the core value of human dignity, and that the right of existence is the preliminary basis where human dignity is based on, it is necessary that the right of existence be sheltered under absolute protection.

As provided by Article 3 of The Universal Declaration of Human Rights, “Everyone has the right to life, liberty and security of person”; Article 6 of International Covenant on Civil and Political Rights, “Every human being has the inherent right to life. This right shall be guaranteed by law. No one shall be arbitrarily deprived of his life”; Article 2 of Basic Law for the Federal Republic of Germany, “…Every person shall have the right to life and physical integrity. Freedom of the person shall be inviolable…”, all of which identify that the right of existence has the status of highest universal constitutional value. The protection of the right of existence embodied in Article 15 of the Constitution shall therefore have the same interpretation, thus the right to live shall be considered guaranteed by Article 15 of the Constitution.

The disputed provisions permit the state to deprive specific people of their lives, which let the constitutional protection of human dignity and all the exercisable fundamental human rights lose its meaning and possibility. It constitutes direct deprivation and violation of human dignity guaranteed by the Constitution and of the right of existence guaranteed by Article 15 of the Constitution, and thus it is necessary to review whether it is consistent with the principle of proportionality embodied in Article 23 of the Constitution.

3. Article 23 of the Constitution provides that, “All the freedoms and rights enumerated in the preceding Articles shall not be restricted by law except by such as may be necessary to prevent infringement upon the freedoms of other persons, to avert an imminent crisis, to maintain social order or to advance public welfare.” It identifies that the fundamental human rights can be restricted only when public welfare and the principle of legal reservation are met; however, Article 23 of the Constitution only vests the power of “restriction” of the fundamental human rights on condition that the law is consistent with public welfare and the principle of legal reservation. It doesn’t vest the legislative body with the power of “deprivation” of all fundamental human rights. In addition, the right to live, which human dignity is based on, shall naturally be sheltered under absolute constitutional protection. Since death penalty system deprives the people of the right of existence and all the other fundamental rights, it per se exceeds the scope of the term “restriction” in Article 23 of the Constitution and violates the principle of proportionality.

4. The disputed provisions did not consider numerous circumstances which exceptionally limit the sentencing of the death penalty based on the proportionality principle. As provided by foreign legislation, American and European countries provide distinction between “first degree murder” and “second degree murder”. In the countries where the death penalty exists, the death penalty is prohibited in second degree murder cases. The important way to differentiate as a standard lies in the “motives” of the offender during the commission of the offense. In comparison with our criminal code system, if the disputed provisions involve “dolus indeterminatus” Homicide offenders, as in this petition where the offense of The Petitioner was not a premeditated murder, and he also voluntarily turned himself in and confessed after committing the offense, which manifestly had room for compassion. Still, he was sentenced to death in the end. Because our law has no differentiation as such, when applied to individual cases, it may exceed beyond the boundary of necessity of punishments and be partially in violation of the Constitution.

5. Article 7 of the Constitution provides that, “All citizens of the Republic of China, irrespective of sex, religion, race, class, or party affiliation, shall be equal before the law.” In addition, “The principle of equality prescribed by Article 7 of the Constitution does not mean absolute and mechanical equality in formality, but is for the protection of substantive equal status under the law, which requires matters identical in nature be treated and handled identically without being subjected to differential treatment arbitrarily or for no proper justification”, which has been reiterated by J.Y. Interpretation Nos. 547, 584, 596, 605, 614, 647, 648, 666, 694; the purport of Article 7 of the Constitution is to guarantee the substantive equality of the people, and thus everyone has the right to recognition everywhere as a person before the law and is able to enjoy the right of personality. Everyone (including a state) shall not by any mean deny the recognition of other people’s personality. The death penalty system is a mean that transforms the offender from a person who has a personality into an object which does not have a personality (a corpse), hence the disputed provisions which provide the death penalty system and its enforcement have placed the right of existence of the people under an unequal condition where such right can be denied by other people. Further, permitting a state authorizing its judges or enforcers, who are also mortals, without limitation, to deny the value of existence of the other person at will and de-contextualizedly, so as to deprive a person of his/her existing life, shall be in violation of the principle of equality embodied in Article 7 of the Constitution.

6. Amnesty International announces the 2014 annual report of the death penalty on March 27, 2015, pointing out that “the impartiality of the trials in Taiwan is still worrisome, including those cases which are likely to be sentenced to the death penalty”; in addition, the Constitutional Court of South Africa delivered the judgement State v. Makwanyane & Another on June 6, 1995, declaring that the death penalty is unconstitutional. In the conclusion, it also mentioned that “arbitrary discretion and the possibility of erring to enforce the death penalty” was also the based reason of considering the death penalty to be unconstitutional. Since the disputed provisions treat the same type of offenses with either the death penalty, life imprisonment, or imprisonment for not less than ten years, the arbitrariness of discretion does highly possibly exist.

7. International conventions are sources of our Constitution. In previous practices of interpretations, J.Y. Interpretation Nos. 482, 549, 578, 582, 587, and 623 have all considered constitutional interpretations to be legally supported by international conventions. In addition, the applied international conventions are not limited to those to which our state is a signatory.

For Universal Declaration of Human Rights is the worldwide basis of the internationalization of the human rights protection since the first half of the last century, as well as the spiritual symbol of each international and regional human rights convention, it identifies that through the practices of more than 50 human rights conventions, the spirit and purport of fundamental human rights protection have already become the universal value that are accepted globally. As one of the original signatories to Universal Declaration of Human Rights, our state is naturally obligated to observe it; since Article 2 of the Universal Declaration of Human Rights provides, “Everyone is entitled to all the rights and freedoms set forth in this Declaration…”; Article 3 provides, “Everyone has the right to life, liberty and security of person”; Article 5 provides, “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment”; Article 6 provides, “Everyone has the right to recognition everywhere as a person before the law”, all of which identify that everyone enjoys the protection of the right of existence, and the right to recognition everywhere of his/her personality before the law, thus a state shall not by any mean limit or deprive of the personality of the people, or further adopt cruel treatments or punishments as the death penalty. According to Article 2, 3, 5, and 6 of the Universal Declaration of Human Rights, the death penalty system of our state has been in violation of the Constitution.

Moreover, as one of the International Bill of Human Rights, International Covenant on Civil and Political Rights (the ICCPR) substantially realizes the fundamental civil and political rights of the people. Our state signed the ICCPR as early as 1967, and the President ratified the ICCPR in person in 2009. Following the enactment of the Enforcement Act in Legislative Yuan, the ICCPR was promulgated by the President and became effective; consequently, our state is naturally obligated to observe it. Article 16 of the ICCPR provides that, “Everyone has the right to recognition everywhere as a person before the law”; Article 1 of 1989 Second Optional Protocol to the International Covenant on Civil and Political Rights further provides that, “No one within the jurisdiction of a State Party to the present Protocol shall be executed”, and “Each State Party shall take all necessary measures to abolish the death penalty within its jurisdiction”, all of which clearly identify that the death penalty system is in violation of human rights protection and shall be abolished. Since life is the basis of the existence of a personality, no life means no personality. A state promulgating and enforcing the death penalty constitutes the complete denial of a person’s personality before the law per se, hence the disputed provisions are also in violation of the provisions of the ICCPR.

In addition, Article 6 of the ICCPR further provides that, “Nothing in this article shall be invoked to delay or to prevent the abolition of capital punishment by any State Party to the present Covenant.” Regarding the interpretation of this article, United Nations Human Rights Committee reiterated that “the provision discussed the death penalty, and strongly recommend to abolish the death penalty. All measures abolishing the death penalty shall be considered the progress of the protection of the right to live.” The United Nations General Assembly also pronounced that it deems the abolishment and the termination of the enforcement of the death penalty as the ultimate goal, as well as pronounced the spirit of preserving human dignity and guaranteeing the right of existence. Moreover, other regional human rights international conventions, such as European Convention on Human Rights：Protocol 6, European Convention on Human Rights：Protocol 13, Charter of fundamental rights of the European Union, and Protocol to the American Convention on Human Rights to Abolish the Death Penalty, also have provisions regarding the abolishment of the death penalty. According to the spirit of the international conventions aforementioned, the disputed provisions, which permit the continual existence of the death penalty, are per se in violation of the Constitution.

8. Article 141 of our Constitution provides that “The foreign policy of the Republic of China shall, in a spirit of independence and initiative and on the basis of the principles of equality and reciprocity, cultivate good-neighborliness with other nations, and respect treaties and the Charter of the United Nations, in order to protect the rights and interests of Chinese citizens residing abroad, promote international cooperation, advance international justice and ensure world peace.” Although it is provided that the Republic of China shall “respect” treaties and the Charter of the United Nations, according to the original texts of the Article, it was provided that “… shall ‘observe’ treaties and the Charter…”Nevertheless, in order to preserve the eternal nature of the Constitution, the text “observe” was consequently amended to “respect”. In fact, the purport of Article 141 of our Constitution is still to identify that our state is obligated to automatically observe and fulfill treaties. Since our state has already signed International Covenant on Civil and Political Rights, adding that the two Covenants (the ICCPR and the ICESCR, together as “the two Covenants”) have also been ratified and passed by the President and the Legislative Yuan, our state is therefore obligated to observe the ICCPR and to abolish the death penalty system. Providing the death penalty, the disputed provisions violate the purport of Article 141 of the Constitution, which requires our state to observe international treaties, and thus are in violation of the Constitution.

9. The disputed provisions providing the death penalty will be in violation of the Constitution. No matter how strict the due process is, as well as the relatedly complementary measures, they cannot constitutionalize of the death penalty. The existing Taiwanese criminal procedure system manifestly raises doubts about violation of the Constitution.

(1) The existing provision of Article 388 of the Code of Criminal Procedure excludes mandatory representation by defense counsel; therefore, the defendants of death penalty cases in the court of the third instance lack protection of right to counsel. The court of the third instance is the court of law. Without the assistance from the counselors, ordinary people who do not have legal capability, as well as the defendants who are in inferior economic and intellectual condition, will not be able to gain the protection of due process, which is in violation of the principle of equality requirement embodied in Article 7 of the Constitution.

(2) Scientific evidences and witness identification are commonly used methods in practices of criminal procedure to prove the offender, especially in the significant cases such as homicide and sexual violation. Although scientific evidences and witness identification have been practiced for many years, there are plenty of defects existing in the related procedure. Moreover, the admissibility and the weight of the evidence are hard to challenge, thus raising the risk of occurrence of wrongful imprisonment.

(3) Regarding non-arbitrary confession and corroborating evidences, although the law provides that confession shall not be used as the sole basis of conviction, judicial practices still prefer confession. It narrowly understands the so-called “confession which is not obtained under the free will” as confession or statement which are extracted by violence or threat. Nonetheless, if the interrogation is carried out in a closed room, even there is any violence, it cannot be heard from the outside and it’s difficult for the party to prove. Even though the law requires the proceedings to be audio or video recorded, the car in which the accused or the suspects are taken, or the corner of the police station before the interrogation, in which there is no need of audio or video recording, will become an interstice where the officers can impose violence or threat on the accused. The unjust obtainment of the statements from the interstice as such is hardly to be proven.

(4) The existing Taiwanese death penalty system is arbitrary in its stage of sentencing. The results of the current judicial practices which sentence the death penalty or life imprisonment according to Article 57 of the Criminal Code, are totally unpredictable and merely based on the subjective judgment of the judges. Because the research of criminal substantive law of our state has for a long time put the focus mainly on the interpretation and the application of the elements of offenses, the trials of criminal cases also focus on the investigation of the facts related to the offenses and the application of the offenses, so that both the prosecutors and the attorneys seldom raise evidences regarding the factors of sentencing. The courts also scarcely conduct ex officio investigation concerning the facts of sentencing. The shift of the pivot has caused the sentencing process of homicide cases to be lacking in substantial meaning and become in mere formalities. In the end, the sentencing of death penalty cases will simply fall into the abusive exercise of judicial discretion, amounting to the arbitrary deprivation of the right to live.

(5) Regarding the execution stage in which a death-sentenced judgment is final, because the information of the execution of death penalties is not transparent, it is impossible until the same day for the prisoners, the family, or the attorneys to know when the death penalties will be executed and who are in the execution list in advance. In addition, although Ministry of Justice has enacted The Directions of Justice in Examining the Execution of Death Penalty Cases (The Directions), The Directions are merely internal administrative rules enacted and promulgated by the ministry itself, which is amendable by the ministry anytime.

Even though, according to Article 6 Para. 4 of the International Covenant on Civil and Political Rights which has had legal effect of domestic law, anyone sentenced to death shall have the right to seek pardon or commutation of the sentence, the existing pardon law does not have any related provisions regarding the channel, the competent agency, the procedure of the review, and the procedural protections of the process of the review. Consequently, although the prisoners have the right to ask for pardon, the administrative organizations can completely ignore it. The provisions of the conventions aforementioned are therefore in vain.

(6) Regarding the execution of the death penalty in Taiwan, it is the state that arbitrarily decides whether and when to execute, as well as who to be executed. The process of waiting the execution deepens mental pain of the prisoners. In addition, concerning the death-sentenced prisoners who have not been executed, Ministry of Justice has the power to issue an “enforcement order” without the authorization of the law, limiting the prisoners’ rights of interviews and corresponding, detaining them in the detention center, and prohibiting them from progressive treatment. Before the real execution, the prisoners are faced with the extreme pain caused by the incoming death for a long time, usually many years. The process of waiting death per se denies not only the value of being a human, but the prisoners’ personality and humanity, which has started from the moment of sentencing, and will not end until the moment of death execution and the real elimination of the body. From the viewpoints of the prisoners, “the process of imprisonment and waiting death” become other punishments beside the death penalty, which are the cruel, personality-humiliating, and human dignity-violating ones.

(7) In order to prevent wrongful sentences, cases of the death penalty shall be required by the highest standards from the investigation, the prosecution, the sentence, the imprisonment, to the execution. The resource and expense invested, as well as time, are higher than the cases of the non-death penalty. Even if our state raises the standards of related procedures, under the circumstances where the chilling purport cannot be proven, and the violating measure is apparently not the least kind, maintaining the death penalty system will charge high-degreed social costs, which is misplacement of resource.

C.   The Respondent Agency’s Claims

1.  The petition is not consistent with the Simulation Constitutional Court Act, hence shall not be admitted.

(1) The case Taiwan High Court Criminal Decision 1986 Jong-shan-2-gan (1)-tzu No. 51 raised by The Petitioner is not a final judgment.

(2) Regarding the issue of whether Article 271 of the Criminal Code and the provisions of the death penalty in other related regulations are in violation of the Constitution, it has been interpreted by J.Y. Interpretation Nos. 194, 263, and 476, all of which identifies that the enactment of the death penalty in Criminal Code is not unconstitutional. Since such interpretation has been made, there is no need of reinterpretation.

(3) “Applications by the people for interpretations supplementing this Yuan’s interpretation on their initial applications, once determined to be based on reasonable cause, shall be handled and interpreted. In addition, when there are doubts regarding the interpretations of this Yuan applied by the final judgments, where the parties petition for an interpretation, it should be reviewed and determined on a case-by-case basis in accordance with the related provisions of Constitutional Interpretation Procedure Act. This has already been interpreted by The Resolution of the 607th and 948th Council of Grand Justices Council” (The 1297th Council meeting on Dec. 29, 2006. J.Y. Dismissal of Petition No. 24). If The Petitioner of this case petitions for a supplementary interpretation of the aforementioned J.Y. Interpretation Nos. 194, 263, and 476, it shall be dismissed because The Petitioner in this case is not the original petitioner of the aforementioned interpretations so that it is not legal to do so.

2.  The Substantial Part

(1) The disputed provisions are not in violation of human dignity.

i. Whether the limitation on the fundamental rights is in violation of the proportionality principle and thus violates human dignity, is determined on a case-by-case basis. The Petitioner’s ground of reasons identifies that, “The related regulations limiting the right to live should specially consider the protection of human dignity which is closely connected to them… As to the death penalty, there are no existing conflicts between fundamental rights where the issue of interest-balancing arises… Under the premise where executing the death-sentenced prisoners is in violation of the proportionality principle thus violates his/her right to live, there’s a need to further examine whether the death penalty system violates human dignity which cannot be limited and deprived of. For the purport of human dignity is to prevent a person from falling as an object, a pure mean, or a freely substitutive thing…” It is apparent that the petitioner claims that the death penalty is in violation of the object rule (Objektformel) so as to violate human dignity.

ii. Not only the right to life and human dignity are not the same concept, but the right to live is also not the premise of the existence of human dignity. The meaning or core of human dignity consists in the situation where everyone, according to his/her free will, can make free choices and build his/her own desirable life, as well as take the responsibility for the consequences of his/her choices.

iii. The existence of the disputed provisions does not aim to treat the offenders of homicide as objects, but to make the offenders take the deserved responsibility for the homicide decision made by them out of free will, under the circumstances where the offenders foresee that “the offenders of homicide will be sentenced to death”. Even if it intervenes their rights to live, it does not violate their human dignity, because such decision is made under the condition that they are reasonable and fully informed of the legal effect and is out of free will. It is better to say that such decision is the exhibition of human dignity.

(2) The disputed provisions are not in violation of the principle of proportionality embodied in Article 23 of the Constitution, hence are not in violation of people’s right of existence guaranteed by Article 15 of the Constitution.

i. The so-called “civil disobedience” is that people seek support from “the concept of justice which most members of the society co-share”. The disputed provisions are the system in which the state monopolizes the power to deprive of the right to live. The people enjoy the right of asking the state to try in accordance with the law and sentence the offenders to death. Not only the victims have such right, but the parties other than the victims also ask the state to sentence the death penalty by means of the report system which starts the criminal procedure. The system is currently supported by most people of the society, which is consistent with the concept of justice of most people.

ii. Once the court declares The Article to be in violation of the Constitution, it will directly deny the concept of justice of most people. Moreover, even if people resort to legislature, the death penalty still cannot be reinstated, which forces people to adopt more intense means of “civil disobedience”. Because the people only consider those who use private punishments to take lives to be the ones who deserve the death penalty, deemed as offenses of homicide at most, it will not seriously jeopardize general legal and constitutional order. However, if the people adopt the means of “private punishments”, it will sufficiently cause most people to be shocked again, and thus influences the democratic and constitutional system and stimulates most people’s concept of justice, which will result in a transition of the “constitutional order”.

iii. Once The Article are declared to be in violation of the Constitution, the people’s conducting of “private punishments” will be in accordance with the elements of “civil disobedience”. Therefore, the purport of the existence of the disputed provisions is to prevent the people from resorting to “civil disobedience” demonstrating by means of conducting “private punishments” which shocks the society. Accordingly, revoking the power of punishments and rendering it to the state’s execution are the least intrusive means. If the demonstrators conduct “civil disobedience” through the method of “private punishments”, it will escape the trials of the courts and thus not only cause uncountable casualties of human lives but also innumerable innocent people to be hurt or killed subsequently. In comparison, after trials according to the law, executing significant offenders based on the death penalty is still in accordance with the balancing principle.

iv. The purport of the existence of the disputed provisions is to guarantee the people’s human dignity. Because when the offenders infringe “the rights to live” of the victims, they arbitrarily place themselves as the judiciary officials, trying and executing other people’s lives, which not only straightly deprives the victims of their lives, but also nullifies their rights to personal safety protected by the law of our state and violates their “human dignity”.

v. When offenders commit “the most severe crimes”, normal penalty of imprisonment cannot guarantee the victims’ human dignity. Only depriving the offenders of their rights to live can the victims’ human dignity be protected. In addition, the disputed provisions and the death penalty are tried and sentenced by the courts only when offenders commit “the most severe crimes”, hence the disputed provisions are in accordance with the least intrusive measures.

Moreover, the disputed provisions only infringe the rights to live of the offenders, not their human dignity. Since human dignity is the most supreme constitutional principle, after balancing two kinds of interests, the disputed provisions are in accordance with the balancing principle. Besides, even the state places the prisoners in the prisons for life, and no matter how strict supervision of the prisons is, there is still possibility that the offenders escape from the prisons, which exposes the people to serious threat. Therefore, the purport of the existence of the disputed provisions is also to protect the rights to life of the people. After balancing different aspects of interests, the disputed provisions are not in violation of the Constitution.

(3) According to No. 329 of J.Y. Interpretation, “Within the Constitution, ‘treaty’ means an international agreement concluded between the R.O.C. and other nations or international organizations… Its content involves important issues of the Nation or rights and duties of the people and its legality is sustained… should be sent to the Legislative Yuan for deliberation.” The identification that “shall respect treaties and the Charter of the United Nations” of Article 141 of the Constitution, is definitely defined. What The Petitioner claims, “the death penalty is in violation of the ‘global international human rights conventions’ such as International Bill of Human Rights, The Universal Declaration of Human Rights, and International Covenant on Civil and Political Rights, as well as the “regional international human rights conventions” such as European Convention on Human Rights：Protocol 6, European Convention on Human Rights：Protocol 13, Charter of fundamental rights of the European Union, and Protocol to the American Convention on Human Rights, all of which identify the worldwide values, and thus the death penalty is in violation of Article 141 of the Constitution”, is merely an interpretation based on subjective and insubstantial concepts, which is not consistent with the definition of treaty in No. 329 of J.Y. Interpretation. Therefore, such claim shall not be admitted.

(4) Article 2 of the Enforcement Act of International Covenant on Civil and Political Rights and International Covenant on Economic, Social and Cultural Rights (The Enforcement Act) provides that, “Human rights protection provisions in the two Covenants have domestic legal status.” Although Article 6 Para. 6 of the International Covenant on Civil and Political Rights provides that “Nothing in this article shall be invoked to delay or to prevent the abolition of capital punishment by any State Party to the present Covenant”, according to the purport of Para. 2 of the same article, in countries which have not abolished the death penalty, sentence of death may be imposed for the most serious crimes in accordance with the law in force at the time of the commission of the crime and not contrary to the provisions of the present Covenant and to the Convention on the Prevention and Punishment of the Crime of Genocide, which means the death penalty is not prohibited. This is again reconfirmed by the preamble of Second Optional Protocol to the International Covenant on Civil and Political Rights. Subsequently, it is sufficiently evident that what The Petitioner quotes in the ICCPR to accuse the Criminal Code of our state of being in violation of Article 141 of the Constitution, is not a proper argument.

(5) Although personal lives are valuable and cannot be deprived of at will, what the homicide offenders do is significant. If they cannot be sentenced to death, it means that the offenders can deprive other people of their lives, which is contradictory and ironic. In addition, whether the death penalty, though cruel, is in violation of the humanity and social civilization depends on different views from different people. We prefer one family’s crying to the crying of all people on the roads. Even though the courts might misjudge, it is the problem of the judicial system, which is not absolutely related to the death penalty. Especially, the courts make every effort to seek the facts and details in the cases of homicide offenses, hence the situations of mistrials are scarce.

(6) Whether the death penalty should be abolished is an issue of legislative policies, which differs from different histories and cultures of different countries, as well as from different feelings of the people toward the law. According to the domestic investigation, there are 74.3% of people in favor of the death penalty, only 4.3% of people are against it, and there are 21.4% of people are neutral. In the samples, although there are more than half of the people agree that the death penalty cannot be considered a normal mean of dealing with crimes, there are more than 80% of the people agree that the death penalty is the best method to prevent crimes, and about 90% of the people think that it is necessary that the death penalty exist, while the abolishment of it is not the best method. Accordingly, not only the death penalty is the punishment that any offense deserves, but it cannot be said that the death penalty totally has no effect of threatening or warning. Therefore, we are against the mandatory death penalty, but we are even strongly against the abolishment of the death penalty.

(7) The disputed provisions recognize that the people has the right to ask the state to deprive the offenders of their right to live by means of criminal trial procedures. For the arguable degree of this case, and the far distance between the sides in the polls, where most of the people still incline to keep the death penalty and its execution. If the constitutional court were to declare that the disputed provisions to be unconstitutional, it will trigger the explosion of “the constitutional moment”, generating new constitutional order. Although the constitutional court can again declare such “referendum” to be unconstitutional, it will continually trigger constitutional crisis, and thus violates the constitutional interpreters’ mission to guard the constitutional order. Accordingly, the constitutional interpreters should observe such constitutional order and declare the disputed provisions to be Constitutional.

This Court considers all of the claims and submissions, and delivers this judgment. The reasoning is as follows.

II.  Procedural Part

A.   This petition shall be admitted

This petition, in which the Petitioner, Tang Sheng, claims that the disputed provisions and the disputed judgments are in violation of the Constitution and asks this Court to delivered a constitutional decision, is agreed unanimously by all the justices of this Court to be admitted.

1.  This petition is in accordance with the elements to be admitted

According to Article 51 of the Simulation Constitutional Court Act, when an individual, a legal entity, or a political party, whose remedies provided by law for the contentious cases or non-contentious cases had been exhausted, has questions on the constitutionality of the statute or regulation relied thereupon by the court of last resort in its final judgment, the petition for an unconstitutional decision from this Court may be made. In addition, Article 39 of the Simulation Constitutional Court Act provides that, the petition which is not in accordance with the law, is frivolous, or is lacking in the significance of the constitutional principles, shall be dismissed by order.

The Petitioner, Tang Sheng, was sentenced to death penalty due to serial homicides in case Taiwan Taipei District Court Criminal Decision 1986 Jong-su-tzu No. 26. After the appeal in case Taiwan High Court Criminal Decision 1986 Shan-Jong-2-su-tzu No. 30, he was still sentenced to death penalty. In the further appeal, the Supreme Court reversed the part of homicide offenses of the original judgment, and remanded the case to Taiwan High Court. He was again sentenced to death penalty in case Taiwan High Court Criminal Decision 1986 Jong-shan-2-gan (1)-tzu No. 51. In the further appeal, The Supreme Court overruled the appeal in case Supreme Court Criminal Decision 1987 Tai-shan-tzu No.2533 for the reason that the original judgment was not appropriate and the judgment became final.

After the remedies provided by law had been exhausted, The Petitioner, Tang Sheng, claims that the disputed provisions and the disputed judgments are in violation of the principle of equality embodied in Article 7 of the Constitution, due process embodied in Article 8 of the Constitution, and the principle of proportionality embodied in Article 23 of the Constitution, as well as in violation of Universal Declaration of Human Rights, International Covenant on Civil and Political Rights (the ICCPR), and Article 141 of the Constitution which requires our state to observe the international conventions. According to Article 51 of the Simulation Constitutional Court Act, the petitioner asks this Court to declare that the disputed provisions and the disputed judgments are unconstitutional.

The Respondent Agency claims that Taiwan High Court Criminal Decision 1986 Jong-shan-2-gan (1)-tzu No. 51,one of the issuing cases identified by The Petitioner, Tang Sheng, is not a final judgment, hence the petition is not consistent with the Simulation Constitutional Court Act and shall be dismissed.

Referring to the final judgment in which The Petitioner, Tang Sheng, was sentenced to death penalty, such judgment is exactly Supreme Court Criminal Decision 1987 Tai-shan-tzu No.2533, but not Taiwan High Court Criminal Decision 1986 Jong-shan-2-gan (1)-tzu No. 51. Because Supreme Court not only substantially reviewed the decision made by Taiwanese High Court against The Petitioner, Tang Sheng, identifying that it was in accordance with the law, but Supreme Court also overruled the petitioner’s request for an additional expert witness regarding insanity or mental disorder. However, because the petitioner claims that both the part of investigation of facts and the part of the determination of the sentencing in the disputed judgments sentencing him to death, are in violation of due process embodied in Article 8 of the Constitution, according to the division of instances where the court of the second instance is the court of facts, and the court of the third instance is the court of law, Taiwan High Court Criminal Decision 1986 Jong-shan-2-gan (1)-tzu No. 51. is the final factual judgment in this petition, while Supreme Court Criminal Decision 1987 Tai-shan-tzu No.2533 is the final legal judgment in this petition, both of which should be taken under review regarding the issue of whether the process of sentencing the death penalty in this petition is in violation of the Constitution. Therefore, the final judgment in this petition should include both Taiwan High Court Criminal Decision 1986 Jong-shan-2-gan (1)-tzu No. 51 and Supreme Court Criminal Decision 1987 Tai-shan-tzu No.2533, which is in accordance with the meaning of final judgment stated in Article 51 of the Simulation Constitutional Court Act.

To sum up, the claims of The Petitioner that the disputed provisions and the disputed judgments are in violation of the Constitution, which substantively accuse the sentencing of the death penalty of being in violation of the principle of equality embodied in Article 7, due process embodied in Article 8, and the principle of proportionality embodied in Article 23 of the Constitution, which has violated human dignity and the right to live protected by the Constitution. It truly has constitutional significance. The statements quoting that international conventions are infringed by the sentencing of the death penalty, is also not frivolous. Accordingly, this petition is in accordance with Article 51 of the Simulation Constitutional Court Act, and has no frivolous situations identified by Article 39 of the Simulation Constitutional Court Act. It shall be admitted.

2.  There are newest developments in constitutional interpretation practices

The Respondent Agency claims that the petition shall be dismissed, for Justices of the Constitutional Court has delivered J.Y. Interpretation Nos. 194, 263, and 476, identifying that the death penalty is constitutional. Recent Justices of the Constitutional Court also for many times made decisions that dismissed the petitions for interpretation of the death penalty. For instance, in the petition The 1424th Council meeting on Nov. 21, 2014. J.Y. Dismissal of Petition No. 12177, it was stated that “whether it is constitutional to take the death penalty as the legally-prescribed punishment, it has already been interpreted by this Court in the existing J.Y. Interpretations..., and is not in violation of Article 23 of the Constitution”. Therefore, it considered that the petition was “hard to be objectively recognized that it has already made substantive accusation of … any violation of the Constitution”.

Referring to J.Y. Interpretation Nos. 194, and 263, they are the interpretations made to decide whether the mandatory death penalty is constitutional; however, the regulations of mandatory death penalty have been so far completely abolished. As for J.Y. Interpretation No. 476, it is the interpretation made to decide whether the punishments such as the death penalty and life imprisonment in Narcotics Hazard Prevention Act are unconstitutional, where Justices of the Constitutional Court considered the act to be constitutional pursuant to the principle of proportionality in Article 23 of the Constitution.

After J.Y. Interpretation No. 476 was made, Justices of the Constitutional Court considered have sequentially developed the proportionality principle with different standards of review (J.Y. Interpretation No. 577, 603, 626, 649, 689, and 711). Simultaneously, they also have confirmed the protection of human dignity and the right of personality through interpretations (J.Y. Interpretation No. 485, 490, 550, 567, 585, 603, 631, 664, 689, and 712). Also, based on due process, they have strictly reviewed the limitations imposed on personal freedom (J.Y. Interpretation No. 559, 567, 653, 665, 689, 691, 708, and 710). On the basis of the principle of equality, they have further developed different standards of review (J.Y. Interpretation No. 485, 547, 571, 618, 626, 649, 666, and 728).

The Respondent Agency further claims that the petition is asking for a supplementary interpretation concerning J.Y. Interpretation Nos. 194, 263, and 476. According to the purport of The 1297th Council meeting on Dec. 29, 2006. J.Y. Dismissal of Petition No. 24, the petition shall be dismissed because The Petitioner, Tang Sheng, in this case is not the original petitioner of the aforementioned interpretations so that it is not legal to do so.

Referring to the petitions concerning a supplementary interpretation requested by the people and made into interpretations, there are 16 of them. There are 3 of them in which the petitioner is exactly the original petitioner: J.Y. Interpretation No. 156 was petitioned by the petitioner of J.Y. Interpretation No. 148, J.Y. Interpretation No. 449 was petitioned by the petitioner of J.Y. Interpretation No. 363, and J.Y. Interpretation No. 720 was petitioned by the petitioner of J.Y. Interpretation No. 653. All the other supplementary interpretations were not petitioned by the original petitioner (J.Y. Interpretation Nos. 312, 338, 378, 503, 546, 552, 610, 640, 652, 686, 718, and 725). Therefore, the claim of The Respondent Agency that the petition for a supplementary interpretation is limited to the original petitioner, has no legal basis.

Subsequently, the accusation of the provision that the death penalty is the principal punishment in Article 33 of the Criminal Code, and the provision allowing the sentencing of the death penalty in Article 271 Para. 1 of the Criminal Code, shall necessarily be reviewed under the stricter judicial review system and standards developed by Justices of the Constitutional Court after J.Y. Interpretation No. 476 was made, in order to manifest the intent of the Constitution to guarantee the fundamental rights of the people, as well as the duty to exert the supreme judicial power of interpretation as a judicial body.

3.  International Covenant on Civil and Political Rights has been domestically legalized

The Petitioner, Tang Sheng, claims that, the Republic of China was one of the core establishing member states of the United Nations, and also took part in the drafting of Universal Declaration of Human Rights. Human dignity and the related protections of human rights, which were confirmed by the Declaration, are almost provided further in International Covenant on Civil and Political Rights and International Covenant on Economic, Social and Cultural Rights (the ICCPR and the ICESCR, together as “the two Covenants”). Our state signed them in 1967, ratified them in 2009, and passed the Enforcement Act of them in 2009, which provides in its Article 2 that the provisions identified by the two Covenants to guarantee the human rights, have the legal effect of the domestic law. Article 8 further requires the state to review related regulations and administrative measures pursuant to the two Covenants. Even before the domestic legalization of the two Covenants, the human rights protecting provisions of the Universal Declaration of Human Rights and the two Covenants had already been confirmed by Justices of the Constitutional Court and adopted as the basis of interpreting our Constitution and the related regulations (J.Y. Interpretation Nos. 372, 392, and 582). Therefore, the issue of whether the sentencing of the death penalty of the disputed provisions and the disputed judgments are in violation of the human rights, shall be considered pursuant to the related provisions of the two Covenants. (The statement of attorney Zhou, Han-Wei in May 9, 2015).

Such claim of The Petitioner truly has its legal basis. It can be demonstrated by the repeated quotes of the two Covenants by Justices of the Constitutional Court as the basis of constitutional interpretation (J.Y. Interpretation Nos. 392, 582, 709, and 710), as well as by the uniqueness of the two Covenants in the international human rights law system, that the two Covenants are the source of our Constitution.

Among all international conventions, the two Covenants are the only two international conventions which are named “covenant”. Besides, there are only the provisions of joining but no provisions of exiting. According to General Comment No. 26 of United Nations Human Rights Committee, from the perspective of the regulations and practices of long-term human rights protection, once the people enjoy human rights protection, the human rights protection is not allowed to be interrupted. Based on such uniqueness of human rights protection, International Covenant on Civil and Political Rights (the ICCPR) does not provide any provision respecting withdrawal or exit. Whether or not there is an alternation of the government or succession of states, the application of the ICCPR to the people within the territory will not be influenced, which ensure the protection of human rights. This enables each state, which were divided from the former Yugoslavia, to be bound by the ICCPR continually, guaranteeing the rights of all the people within the territory. Hong Kong was colonized by the United Kingdom which is a signatory of the ICCPR. After the transfer of the sovereignty to People's Republic of China, which is not a signatory of the ICCPR, Hong Kong is still bound and protected by the ICCPR. Therefore, the nature of the ICCPR is significantly different from other normal conventions or treaties. Its domestic legal effect in our state does not just derive only from the Enforcement Act of our state.

Besides, the two Covenants also especially focus on the protection of human dignity and the right to live. The right to live protected by Article 6 of the ICCPR, is the non-derogable right explicitly identified by Article 4 of the ICCPR. According to General Comment No. 29 of United Nations Human Rights Committee, these non-derogable rights, though still cannot be considered to be the same as jus cogens, are nevertheless helpful for the rights to be recognized, especially the regulations regarding the right to live in Article 6 and the prohibition of cruel punishments in Article 7. Once these human rights protection are recognized as jus cogens or customary international law, no matter whether it is a signatory or not, all states are obligated to guarantee these rights and not to infringe these rights.

After our state ratified the Enforcement Act of the two Covenants, we have made a national report pursuant to Article 6 of the act, and invited ten international experts of human rights to compose a team, reviewing the contents of the report. The international experts clearly identified in paragraph 56 and 57 of Concluding Observations and Recommendations, that whether the sentencing of the death penalty is in accordance with the ICCPR should be determined not only by Article 6 of the ICCPR, but also by other articles of the ICCPR, for instance, the prohibition of any form of cruel, unhuman, or humiliating punishments in Article 7, as well as the protection of due process in criminal procedure in Article 14. The international experts asked our government to ensure all the procedures and substantial protections related to the sentencing and execution of the death penalty to be prudently observed. Specifically, the insane or mentally disordered offenders cannot be sentenced to death or executed. In addition, all the death-sentenced prisoners should be protected by the right to ask for a pardon or a reduction of the penalty.

To conclude, The Petitioner, who claims that since our state has ratified the two Covenants and domestically legalized them, the court shall be pursuant to The Two Articles to review whether the disputed provisions and the disputed judgments are in violation of them and the Constitution, has proper legal basis. It cannot be said that objectively he did not substantively accuse the disputed provisions and the disputed judgments of any violation of the Constitution, and thus the petition shall be admitted.

4.  The judicial review of the violation of the fundamental rights is the duty of this Court

The Respondent Agency considers that, whether the death penalty should be abolished is an issue of legislative policies, which differs from different histories and cultures of different countries, as well as from different feelings of the people toward the law. Accordingly, they claim that this Court shall not accept the petition. The issue shall be left to the legislative body to decide depending on the tendency of polls. However, the main point of the issue in the petition, is not asking this Court to abolish the death penalty, but to make constitutional decision regarding whether the sentencing of the death penalty is in violation of the Constitution.

Referring that The Constitution is the state’s highest legal authority. Any statute that contradicts the Constitution shall be null and void. Whether a given statute contradicts the Constitution shall be interpreted by the Grand Justices of the Judicial Yuan. The above statement is obvious from the related regulations of our Constitution. Based on the constitutional principle of separation of powers, modern countries with a written constitution and rule of law have set up a judicial review system (J.Y. Interpretation No. 371). Therefore, the duty of interpreting whether the law is in violation of the Constitution exclusively belongs to the constitution interpreting body, which cannot be abolished freely, in order to preserve the effect of the Constitution as the state’s highest legal authority, and to ensure the principle of a rule-of-law country (J.Y. Interpretation No. 499).

Justices of the Constitutional Court has once in J.Y. Interpretation No. 328 declared that, “The territory of the Republic of China is according to its existing national boundaries, and the Constitution provides a special procedure for any change of national territory; …the delimitation of national territory is a significant political question, which shall not be interpreted by the constitution interpreting body that exerts the judicial power”. Beside J.Y. Interpretation No. 328, the petitions have never been dismissed merely because the consideration of whether the constitutional interpretations or the law is in violation of the Constitution, might involve different histories and cultures of different countries, or different feelings of the people toward the law. Contrarily, Justices of the Constitutional Court always insist on the intent of preserving the Constitution as the highest legal authority, indispensably clarifying the ranks between different types of regulations, making clear constitutional interpretations, and enabling the interpretations to have the effect of binding the agencies and the people nationwide pursuant to the Constitution, in order to exert the function of resolving disputes (J.Y. Interpretation Nos. 185 and 499).

As identified by The Respondent Agency, although the legislative body per se has the power to determine whether or not to wholly abolish the death penalty. However, before the legislative body abolishes it, whether the sentencing of the death penalty per se, its scope, process, and execution are in violation of the Constitution, shall still be prudently reviewed by Justices of the Constitutional Court whose duty and power are to interpret the Constitution. The practices in most of the constitutional and democratic countries are like this. For instance, although the legislative body has not yet abolished the death penalty, the Supreme Court of Japan have for many times made interpretations regarding the issues of whether the death penalty is a cruel punishment, and whether the sentencing of the death penalty toward specific offences is constitutional (referring to the expert witness opinion of Xie,Yu-Wei).

For the other instance, the constitutional court of South Korea have respectively made interpretations regarding whether the death penalty is constitutional in 1996 and 2010. For another instance, in the U.S., although maintaining the death penalty, the Federal Supreme Court have for many times made interpretations regarding the issue of the sentencing or execution of the death penalty. For example, it determined that the death penalty cannot be executed on the insane people in 2002 (Atkins v. Virginia, 536 U.S. 304). It decided that the death penalty cannot be sentenced to juveniles in 2005 (Roper v. Simmons, 543 U.S. 551). If further determined that the death penalty cannot be sentenced to the offences which do not result in death in 2008 (Kennedy v. Louisiana, 554 U.S. 407).

Besides, the judgment of the Constitutional Court of South Africa in 1995 declaring that the death penalty is unconstitutional (The State v. Makwanyane), which was rendered by the witness expert Justice Albie Sachs, is also an important proof. It is evident that the issue of whether the death penalty is unconstitutional has the significance of the constitutional principles. In addition, the related accusation of the death penalty made by the petitioner is also not frivolous. Accordingly, this petition is in accordance with Article 51 of the Simulation Constitutional Court Act, and has no frivolous situations identified by Article 39 of the Simulation Constitutional Court Act.

To conclude, this petition is in accordance with Article 51 of the Simulation Constitutional Court Act. It is necessary to strictly review whether the disputed provisions and the disputed judgments are in violation of the related regulations of the Constitution and the ICCPR. The petition shall be admitted.

B.   Admitted Scope

The Petitioner, Tang Sheng, argues that Article 33, Para. 1 of the Criminal Code, which provides death penalty as one of the principal punishments, and Article 271, Para. 1, which dictates that one who commits murder shall be punishable by death penalty, applied in the disputed judgment, are in conflict with the Constitution. The Respondent Agency did not dispute upon this scope.

Upon the review, Article 271, Para. 1 of the Criminal Code, which dictates that one who commits murder shall be punishable by death penalty, was indeed directly applied in the disputed decision, but Para. 1 of the Criminal Code, which provides the death penalty as one of the principal punishments was not shown in any Para. of the disputed judgment. However, in addition to protecting the fundamental rights of the parties, the system for people to apply for interpretation and judgment of the Constitution further contains the purpose of clarifying the true meanings of the Constitution in order to maintain the Constitutional structure. The “law and order applied by the judgment” in Article 51 of the Simulation Constitutional Court Act are not limited to those laws or regulations directly cited. If the substantive or procedure laws or regulations are substantially cited in an judgment, used as the basis of deciding its illegality, or when the regulated person, applying scope and legal effect shall be observed together, even they are not directly cited, they shall be considered materially substantially related to disputed provisions, and are able to be applied for Constitutional interpretation. (J.Y. Interpretation No. 399, 445, 535, 558, 577, 580, 582, 644 and 728, etc.) Therefore, the scope of Constitutional interpretation contains whether the content of the laws or regulations relevant and necessary to the particular event are in conflict with the Constitution.

The reason that Article 271, Para. 1 of the Criminal Code applied in disputed judgment provides death penalty as the maximum statutory punishment is that Article 33, Para. 1 of the Criminal Code first includes death penalty as one of the principal punishments. The regulation of death penalty being one of the principal punishments of Article 33, Para. 1 of the Criminal Code is the legal basis of the death penalty in Article 271. Accordingly, even the disputed judgment did not cite Article 33 of the Criminal Code to sentence the Petitioner to death, it shall be deemed that the regulation of death penalty being one of the principal punishments of Article 33, Para. 1 of the Criminal Code was substantially cited in the disputed judgment, and has necessary and inseparable relevancy to Article 271 of the Criminal Code. (The expert opinions by expert witnesses: Assistant Professor YU-WEI, HSIEH, Professor Nigel N. T. Li, and Judge JIAN-RONG, QIAN) Therefore, that the interpretation scope containing Article 33, Para. 1 of the Criminal Code (death penalty is one of the principal punishments) and Article 271, Para. 1 of the Criminal Code claimed by the Petitioner shall be approved.

To explain jointly, the Presiding Justice of this Court, Justice PING-CHENG, LO holds that according to the aforesaid Theory of Significant Nexus Test, the admitted scope of this case shall be expanded to all regulations which impose death penalty in Criminal Code and Special Criminal Code and relevant regulations including the litigation proceedings and execution of death penalty. According to his opinion, this Court has admitted the judicial review of Article 33, Para. 1 of the Criminal Code about death penalty as one of the principal punishments, once the name of the punishment is declared unconstitutional, other regulations which adopt death penalty as statutory punishment in the Criminal Code and other affiliate criminal codes will be affected by the unconstitutional effect. As most of the Justices hold that death penalty is in conflict with the Constitution, all relevant provisions regarding death penalty current laws shall all be reviewed. (Concurring opinion by Justice  PING-CHENG, LO).

However, whether a behavior shall be incriminated (whether the name of crime is adequate), and which criminal punishment shall be applied to a crime (death penalty, life imprisonment, fixed-term imprisonment or fine, etc.) (whether the name of punishment is adequate), are two different evaluation of norm and review. (Refer to YU-HSIU, HSU (2005). The Standards of Judicial Review on Penal Codes. In The Taiwan / ROC Chapter, International Association of Penal Law (AIDP) (Ed.), Democracy, Human rights, Justice: Essays in Honor of Professor Dr. Jyun-hsyong Su for His 70th Birthday (pp. 365-414). Taipei: Angle.) Whether the name of crime and the name of punishment are in conflict with the Constitution admittedly fall in the scope of Constitutional interpretation and are in relation to the Theory of Significant Nexus Test, but they are not absolutely inseparable. When a name of crime is unconstitutional, the name of punishment will be affected, but when a name of punishment is unconstitutional, the name of crime will not be necessarily affected. That is to say, when legislators incriminate a behavior, if it is in conflict of the Constitution, of course the behavior shall not be punished; however, when legislators’ incriminating a behavior is not in conflict of the Constitution, the punishment might cause itself not proportionate to the crime, and become in conflict of the Constitution because it is too strict (e.g. life imprisonment shall not be sentenced) or too loose (only be fined).

The main dispute of this case is whether death penalty is a qualified punishment, but not whether the names of crimes which lead to death penalty are in conflict of the Constitution. Plus, there are a plenty of names of crimes imposing death penalty in current laws in our state, and the relevant regulations of sentencing and execution widely spread in all relevant laws, orders, and even administrative rules that are not disclosed to the public. Since that the Petitioner claims that death penalty is not a qualified punishment, and cannot be cured by any due process, this Court is not necessary to include the regulations of sentencing and execution of death penalty into the scope.

Therefore, this Court, voting 8 to 1, limited the admitted scope to the qualification of death penalty as a name of punishment, excluding all crimes that might impose death penalty, and all other regulations of proceeding and execution relevant to death penalty.

III. Substantial part

This Court, voting 5 to 4, declares that Article 33, Para. 1 of the Criminal Code, which provides the death penalty as one of the principal punishments, is unconstitutional; voting 7 to 2, declares Article 271, Para. 1 of the Criminal Code, which provides that one who commits murder shall be punishable by death penalty, is unconstitutional.

The Presiding Justice of this Court, Justice PING-CHENG, LO, Justice WEN-CHEN, CHANG, who delivers the decision of this Court, Justice JING-YI, LIU,  Justice CHUAN-FEN, CHANG, and Justice CHUAN-HO, LI, hold that sentencing death penalty infringes human dignity and right to life which enjoy the absolute protection from the Constitution, so Article 33, Para. 1 and Article 271, Para. 1 of the Criminal Code are both unconstitutional. Justice ZHAO-HUAN, LI and Justice CHIA-HSIN, HSU hold that Article 271, Para. 1 of the Criminal Code doesn’t distinguish circumstances of crimes, so it is in conflict of the Constitution for it is over-inclusive, but Article 33, Para. 1 is not unconstitutional. The imposing of death penalty is only applicable when a name of crime and a name of punishment both meet “the most serious crimes” described in Article 6 of the International Covenant on Civil and Political Rights (CCPR). Besides, Justice SHU-ZHEN, CHEN and Justice FU-SHENG, HSU hold that Article 33, Para. 1 and Article 271, Para. 1 of the Criminal Code are not unconstitutional, but they are only applicable when meeting “the most serious crimes” described in Article 6 of the CCPR.

The majority of this Court, 5 Justices, holds that Article 33, Para. 1 and Article 271, Para. 1 of the Criminal Code are unconstitutional (hereinafter as “the disputed provisions”), and below are the reasons:

A.   The fundamental rights to be reviewed

1.  Human dignity

(1) The meaning of human dignity

Human dignity is the basis of why human is human, and it is the precondition to recognize the rational existence of every single organism and equality of personality. The establishment of modern democratic states is based on popular sovereignty. That is to recognize that every member who constitutes a state is an existence of rationality and equality, and the basis of nomocracy is also built on acknowledging rational and equal personality, or the common basis and equal protection of human rights cannot be affirmed.

To reflect on the two world wars in twentieth century, the international society is determined to establish a common rule-by-law structure that recognizes the equality of personality. The preamble of the Charter of the United Nations, adopted in 1945, also clearly indicates the purpose of establishing international normative structure is to reaffirm faith in fundamental human rights, in the dignity and worth of the human person.

(2) The absolute protection of human dignity

The affirmation and protection to human dignity are not expressly regulated in the Constitution. However, Justices of the Constitutional Court, who are responsible for the interpretation of the Constitution, have repeatedly stated that maintaining human dignity and respecting the free development of personality are the core value of constitutional structure of free democracy. (J.Y. Interpretation No. 485, 490, 550, 567, 585, 603, 631, 664, 689, 708, and 712, etc.)

As mentioned above, human dignity is the precondition of the establishment of modern democratic constitutional states. Without recognizing human’s rational existence and equality of personality, popular sovereignty-oriented democratic states are not able to be established, and further the constitutional structure based on protection of human rights are not able to be affirmed. Therefore, the affirmation of human dignity is not necessary to be expressly regulated in the Constitution, and we cannot reach the conclusion that the protection of human dignity does not exist in our constitutional structure of democracy because it is not specified in the Constitution.

As human dignity is the precondition of constitutional structure of democracy and protection of human rights, they are often mentioned in the preamble, not in the provisions, in international human rights conventions. This can be seen in the aforesaid the Charter of the United Nations, and also in the Universal Declaration of Human Rights which is adopted in the United Nations General Assembly of 1948. The Universal Declaration of Human Rights mentioned in the beginning in the preamble that the recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world. The two Covenants adopted in 1966 and came into force in 1976, also repeats the intention of equality of human dignity recognized in the Universal Declaration of Human Rights.

The way of describing human dignity in the preamble instead of in human rights list often causes a misunderstanding of whether human dignity should be protected. But, that is because the international structure after World War II was insisted to be established on affirming equality of personality. As the precondition, not the result, it should be mentioned in the preamble, instead of in the human rights list which based on the former. However, of course it does not mean that human dignity is less important than other human rights list; in contrast, the existence of human dignity is the basis for other human rights list to be affirmed.

Therefore, human dignity must not be infringed in any way, which has been repeatedly affirmed by international society, and it is not disputed by the Petitioner and Respondent Agency in this case. All Justices in this Court also own an unanimous consensus on the absolute protection of human dignity.

(3) The connection between human dignity and right to life

The Petitioner claims that the sentencing of death penalty is the direct deprivation of a person’s life from the state; human dignity cannot exist without the life. Denying the value of existence of life means denying the existence of human, and of course it means denying human dignity. And as mentioned before, human dignity is the basis of why human is human, and it is an affirmation of equality of personality, and it is the precondition of the existence of all rights. Thus, human dignity must be protected and must not be infringed. Death penalty, directly depriving a person’s life, meaning the infringement of human dignity, shall be considered unconstitutional. This opinion received approval from expert witness Professor Nigel N. T. Li (the expert opinion and the oral argument transcript dated May 1, 2015) and Judge JIAN-RONG, QIAN (the expert opinion the oral argument transcript dated May 1, 2015 and May 9, 2015), and it is the basis for South African Constitutional Court to declare death penalty unconstitutional, affirmed by expert witness Judge Albie Sachs. (the oral argument transcript dated May 1, 2015).

The minority opinion of this Court holds that death penalty is deprivation of life, and although it makes human dignity unable to exist, it does not mean infringement to human dignity. These two can be treated separately. That is, the sentencing of death penalty only constitutes the deprivation of right to life; whether it also constitutes the infringement to human dignity shall depend on if right to life is deprived unreasonably and specific circumstances. Namely, we shall further examine the sentencing of death penalty (e.g. whether there is reckless and violation of due process) and the execution method (e.g. beheading, hanging, electric chair, shooting or poison injecting), to see if they further constitute cruel and unusual punishments or inhuman punishments, and we can declare if they infringe human dignity.

For example, the Supreme Court of Japan holds that, compared to hanging and other cruel punishments, it is hard to consider current sentencing and executing of death penalty in Japan a cruel punishment. (The expert opinion by YU-WEI, HSIEH) Expert witness Michael Davis also states that death penalty itself is not a cruel punishment, and only when it is not sentenced by due process can it be considered an inhuman punishment. At the same time, customs and cultures of every state shall be considered before deciding whether death penalty is a cruel punishment; it defies generalizations. (The oral argument transcript dated May 1, 2015.) The US Supreme Court also takes this stand and holds that imposing or executing death penalty on juvenile offenders under 18 and the insane is against the Eighth Amendment to the United States Constitution because the regulation prohibits cruel and unusual punishments (Atkins v. Virginia, 536 U.S. 304; Roper v. Simmons, 543 U.S. 551), but it does not consider imposing death penalty is in violation of that regulation.

It is not easy to separate human dignity and right to life, and they shall not be separated. Human dignity is based on existence of life, and it won’t lead to the result of giving up life due to claiming human dignity. To protect human dignity, right to life shall be protected at the same time. If right to life does not receive absolute respect, it becomes meaningless to talk about the absolute protection and respect of human dignity. (ZHEN-SHAN, LI (2012). Human Dignity and Protection of Human Rights. Taipei: Angle.) If human dignity receives absolute protection, then right to life must receive the same protection, because without this basis, there are no benefits to protect human dignity and other free rights. The Minority distinguish life as “vehicle” and human dignity as “carrier.” This idea of course makes sense, but we still have to admit that a carrier cannot exist without a vehicle, because human is not hermit crab, who cannot keep living by changing into another shell. Therefore, when a state declares the absolute protection of human dignity, it means the state not only have to protect life, but it has to set the minimum standard for life status; not only guarantee that people “live,” but guarantee people the human dignity that they will not become slaves or be transacted as livestock. (The concurring opinion by Justice CHUAN-FEN, CHANG). Therefore, human dignity and right to life should be protected simultaneously.

2. Right to life

(1) The protection of right to life and its basis

Right to life is the basis of all other fundamental rights. Every freedom and right is based on life. A person’s personality cannot exist anymore without his life, and he further loses every freedom and right. He does not have freedoms such as moving and thinking, and he cannot exercise various rights, such as petitions, election or serving the public. It can clearly be seen the importance of protection of right to life.

Peoples’ right of existence shall be protected, as what specified in Article 15 of the Constitution. Without doubt, the meaning of right of existence shall include the protection of right to life, because without life, we lose the basis of existence. This can be understood when Justices of the Constitutional Court interpret the unconstitutional disputes about infringement of right to life, they use Article 15 of the Constitution as the review basis. (J.Y. Interpretation Nos. 399, 445, 535, 558, 577, 580, 582, 644 and 728.)

However, some consider that other fundamental freedoms and rights are also based on right to life, not only on right of existence. Therefore, it is not appropriate to say Article 15 of the Constitution is the basis of protection of right to life. In addition, the Presiding Justice of this Court, PING-CHENG, LO also holds that the nature of right to life is different to other fundamental rights. All rights have their core scope, but right to life itself is the core, so we should not treat right to life as general fundamental rights, and we should define it as a fundamental right which surpass the Constitution text as human dignity. (The concurring opinion by Justice  PING-CHENG, LO.)

Considering the fundamental importance of the combination of right to life and human dignity, the aforesaid reasoning which makes the protection of right to life independent of Article 15 of the Constitution is not without its ground. However, interpreting the Constitution shall still be based on the regulations of the Constitution. When the regulations in the Constitution can clearly point out the protection of fundamental rights, we should base on those regulations, and we will be able to intensify the protection to fundamental rights, making the protecting function to the fundamental rights advance with times. On the other hand, we can prevent from violating the boundary of separation of powers due to frequently interpreting the Constitution which surpasses the text and exceeds the responsibilities of the interpreting authorities. For example, when Justices of the Constitutional Court interpret freedom of contract, which is not specified in the Constitution, they state that “freedom of contract is protected respectively according to its specific contents by relevant regulations of fundamental rights in the Constitution. For instance, contracts relating to disposition of property shall be protected by Article 15 of the Constitution, and contracts relating to assembly and association shall be protected by Article 14 of the Constitution. In addition, freedom of contract also belongs to other freedoms and rights protected by Article 22 of the Constitution.” (J.Y. Interpretation No. 476) Thus, as the protection of right to life can be based on Article 15 which provides right of existence and the interpreting authority has been interpreting in this way, this Court still rely on Article 15 of the Constitution as the basis of protecting right to life.

The CCPR also expressly protect right to life. Article 6, Para. 1 of the CCPR provides, “Every human being has the inherent right to life.” “No one shall be arbitrarily deprived of his life.” It must be noted that our state signed and approved the official translated version of the CCPR, and translate the “right to life” in this Article into “right of existence.” However, since the subparagraphs of this Article put emphasis on the limitation on imposing death penalty of the state parties, it can be seen the “right to life” in this Article means “right to life.” It is also confirmed by the Human Rights Committee, which is responsible for interpreting and executing the CCPR, in its General Comments No. 6. Secondly, “Sheng ming quan bu dewu li bo duo (No one shall be unreasonably deprived of his life.)” appears in the official translation version, but it is more appropriate to interpret “wu li (unreasonably)” as “zi yi (arbitrarily)” When we translate it into “wu li (unreasonably),” it easily gives rise to misunderstandings that a person’s right to life can be deprived when some reasons are provided. In contrast, if we translate it into “zi yi,(arbitrarily)” it contains the meaning that every person’s value of life is equal, and we cannot abuse the right as human to deprive another person’s life.

(2) The absolute protection of right to life.

There are two different claims concerning the protection of right to life - absolute protection and relative protection. The Petitioner claims that right to life deserves absolute protection, and there are three reasons. First, right to life is the right for human body to exist, and it is where human dignity attaches to, so it has a close relationship to human dignity. Human dignity is the basis of equal personality for why human is human, and right to life is the vehicle for the existence of every right. Both of them are indispensable, and they are both protected absolutely by the Constitution. Second, considering the fundamental importance of combination of right to life and human dignity, right to life deserves the protection of “prohibition from infringing the core” like Article 19, Para. 2 of the German Fundamental Law. Expert witness Nigel N. T. Li and JIAN-RONG, QIAN have similar opinions. They believe Article 15 of the Constitution protects right of existence, and right to life is the core of this protection. Although right of existence is subject to relative protection by principle of proportionality in Article 23 of the Constitution, but as the core, right to life is not limited by Article 23 of the Constitution. (The oral argument transcript dated May 1, 2015 and May 9, 2015 and the expert opinions by Nigel N. T. Li and JIAN-RONG, QIAN.) Finally, he presents his argument based on the wording of Article 23 of the Constitution. Because Article 23 of the Constitution allows “limitation” of freedoms and rights, not “deprivation”, and right to life can be either protected or deprived, the deprivation of right to life shall not be accepted by Article 23 of the Constitution.

The Respondent Agency holds the view of relative protection of right to life, and believes that the principle of proportionality in Article 23 on the Constitution still applies to the protection of right to life. This opinion is also approved by expert witnesses ZHEN, YUE and SHAN-YIN, ZHENG. (The expert opinions by ZHEN, YUE and SHAN-YIN, ZHENG) Expert witness, SHAN-YIN, ZHENG also took an example of Administrative Penalty Act, which was adopted in 2005, citing the wordings which include adverse actions of a punitive nature such as “deprivation or abolition of eligibility or rights” in Article 2, to prove using legal wordings like deprivation or abolition does not necessarily exclude the possibility of deprivation or abolition. (The oral argument transcript dated May 9, 2015 and the statement of comment by SHAN-YIN, ZHENG.)

Given the great importance of right to life and the nature of its combination to human dignity, we shall acknowledge the view of absolute protection of right to life. Since without life, a person’s personality cannot no longer exist, and he further loses various freedoms and rights. Life is the foundation of the existence of every right, and if any freedom or right enjoys a core scope of not being infringed, it is enough to prove the absolute protection of right to life. Without existence of life, any protection of core rights is meaningless.

Those who are against absolute protection of right to life often use the existence of self-defense or emergency avoidance as their reasons. However, a person killing another person due to self-defense constitutes affirmative defense, and it exactly reflects the absolute protection of right to life. To protect life from being infringed, the Criminal Code exceptionally allows methods including violating life to defense immediate unlawful aggression, but if the force of defense is excessive, affirmative defense is not allowed, and the punishment may only be reduced or remitted. (Article 23 of the Criminal Code.) Please note that the Criminal Code only exceptionally allows self-defense against immediate unlawful aggression, if time has exceeded too long, even long after the violence happened, a person is not allowed to take another person’s life due to self-defense. (South African Constitutional Court, the State v. Makwanyane, Para. 138; the expert opinion by JIAN-RONG, QIAN.) Emergency avoidance is the same. Only when a person performs a conduct unavoidable to his or another’s life for averting imminent danger can he be exceptionally not punishable in the Criminal Code. (Article 24 of the Criminal Code.)

The situation of war is also the same. In the Charter of the United Nations, in which Republic of China is one of the original member states, Article 2, Para. 4 specifies that all Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, and Article 51 specifies that only when an armed attack occurs against a Member of the United Nations can the Member exercise the right of self-defense. Starting a war is a violation of international law. After World War II, several international criminal tribunals pursued legal responsibilities to persons and nations who started wars and caused mass casualties. (Phillip Alston & Ryan Goodman, International Human Rights, Oxford University Press, 120-134). According to Article 8 and 25 of the Rome Statute of the International Criminal Court (the “Rome Statute”), which was adopted in 1998 and came into force in 2002, those who start a war or use force and cause deprivation of life, cruel punishment, inhuman treatment, or serious physical or mental pain or injury, should take personal responsibility under international criminal law. Clearly, because of the absolute respect to right to life, international law prohibits starting war, and imposes the strictest criminal punishment to those who start a war; however, because of the absolute respect to right to life, Article 77 of the Rome Statute does not include death penalty as one of the principal punishments, but only set regulations of life imprisonment and fixed-term imprisonment.

Although Justice CHIA-HSIN, HSU holds that the Rome Statute excluding death penalty “not endowed with normative meanings which surpasses the Statute by all Parties,” “on the Committee before signing the Statute, the chairman read the request from some parties and pointed out that there is no international consensus on whether death penalty be abolished.” (Concurring in Part, Dissenting in Part Opinion by Justice CHIA-HSIN, HSU.) However, the Rome Statute expressly excludes death penalty; after the Statute came into force, how to define and interpret the regulations depends on international judicial systems including International Criminal Tribunal and International Court of Justice. The subjective views of the Parties on the negotiation cannot exclude relevant regulations of the Statute from further evolving into international customary laws or Jus Cogens. (Advisory Opinion on the Use of Nuclear Weapons, 35 I.L.M. 809 (1996); Article 53 and 64 of the Vienna Convention on the Law of Treaties and Article 38 of the Statute of the International Court of Justice.)

The absolute protection of right to life is also clearly specified in the CCPR. Article 4, Para. 2 of the CCPR provides that right to life which is protected by Article 6 may not be derogated even in time of public emergency which threatens the life of the state and the existence of which is officially proclaimed, in order to affirm the absolute protection of right to life. The Human Rights Committee, which is responsible for interpreting and executing the CCPR, emphasized that “war and other acts of mass violence continue to be a scourge of humanity and take the lives of thousands of innocent human beings every year. Under the Charter of the United Nations the threat or use of force by any State against another State, except in exercise of the inherent right of self-defense, is already prohibited.” (General Comment No.6, Para. 2)

Lastly, those who doubt the absolute protection of right to life may argue that right to life is not absolute by the controversy of abortion or euthanasia. Although the Human Rights Committee has not made general comments to these controversial issues, it can be assured that the Committee will take the stand of absolute protection to human dignity and absolute protection of right to life. (Manfred Nowak, U.N. Covenant on Civil and Political Rights, N.P. Engel Publishing, 2nd revised edition, 2005, 154-156). In controversy of abortion, no states have denied the protection to life of fetus, and the center of controversy is when life begins and the judgment of health conflict between fetus and the pregnant. It is the same in controversy of euthanasia. Where the true controversy lies is the judgment of conflict between the absolutely protected human dignity and the absolutely protected right to life. These difficult judgments of conflict precisely highlight the absolute protection of the combination of human dignity and right to life, and deny the possibility of the relative protection of human dignity or right to life.

(3) The protection duty to right to life of states.

Considering the fundamental importance of right to life, states should take the responsibility of protecting life. States shall not deprive people’s lives at will, and shall take comprehensive responsibility of preventing from crimes which deprive or violate people’s lives and protect people from crime victimization.

The protection duty of states is also valued and emphasized by the Human Rights Committee, which is responsible for executing the CCPR. The Committee emphasizes that the protection duty of states not only means the states shall not just against violations of people’s lives, but also against acts committed by private persons or entities that would impair people’s lives. (General Comment no 31, Para. 8) To be more specific, “states have the supreme duty to prevent wars, acts of genocide and other acts of mass violence causing arbitrary loss of life.” (General Comment No.6, Para. 2) States should “take measures not only to prevent and punish deprivation of life by criminal acts.” but also “to prevent arbitrary killing by their own security forces.” “The deprivation of life by the authorities of the State is a matter of the utmost gravity.” “Therefore, the law must strictly control and limit the circumstances in which a person may be deprived of his life by such authorities.” (Para. 3)

That is, crime prevention and protection of crime victimization are the priorities of states. States shall promote crime prevention strategies actively, and synthetically research from aspects of criminals, victims and crime situations. States shall not only put emphasis on criminals and overlook victims and crime situations. Protecting victims of crimes and prevent them from violated again can also reduce crimes. Victimization prevention and crime prevention are highly related, so it is necessary for States to strengthen both at the same time. (The Concurring in Part, Dissenting in Part Opinion by Justice FU-SHENG, HSU.)

The Crime Victim Protection Act was promulgated and came into force in 1998, aiming to establish the system of crime victim compensation and provide crime victims with protection measures. However, in the process of oral argument, expert witness ZUO-YI, LIN and Amicus Curiae WEI-CHUN, WANG applied by Respondent Agency both strictly criticize the fact that the system of crime victim in Taiwan is not complete and not implemented (the expert opinion and supplemental opinion by ZUO-YI, LIN and the Amicus Curiae Brief of WEI-CHUN, WANG); and the state evades the responsibility of crime prevention and protection of crime victimization by imposing death penalty. (The expert opinion and supplemental opinion by ZUO-YI, LIN.)

According to the material provided by expert witness ZUO-YI, LIN, the compensation scope of crime victim protection accounts a really low proportion in all crime victims; the rate of cases and number of crime victim compensation is comparatively low; up to more than 70% of victims and their families are not satisfied with decisions of crime victim compensation. (The expert opinion and supplemental opinion by ZUO-YI, LIN.) In addition to the problem of compensation, the protection measures for crime victims regulated in Article 30 of the Crime Victim Protection Act such as emergent physical and mental treatment and secure a place to stay, physical and mental treatment, or rehabilitation and occupational trainings, are not implemented too.

If a state does not implement the system of crime victim protection and fail to execute it, it becomes a serious violation of the protection duty to right to life of states, and it is not bearable in the Constitution. The government must immediately adopt appropriate and effective measures to repair and strengthen, from implementing the system of crime victim compensation, establishing supporting organizations for crime victims, guaranteeing the criminal judicial right of crime victims, and to criminal judicial reformation which emphasizes the recovery of crime victims, etc. (The Concurring in Part, Dissenting in Part Opinion by Justice FU-SHENG, HSU.)

(4) The limitation of imposing death penalty in the CCPR.

Article 6, Para. 1 of CCPR protects right to life, and provides that no one shall be arbitrarily deprived of his life. Para. 2 provides “in states which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime and not contrary to the provisions of the present Covenant and to the Convention on the Prevention and Punishment of the Crime of Genocide.” It is more appropriate to translate “the most serious crimes” into “zui yan zhong zui xing”, which means only when the name and behavior of crime are both the most serious may the death penalty be imposed. (Manfred Nowak, U.N. Covenant on Civil and Political Rights, N.P. Engel Publishing, 2nd revised edition, 2005, 141).

The Human Rights Committee, which is responsible for executing the CCPR has considered that the regulation of mandatory capital punishment set by the Parties constitutes the “arbitrary” deprivation of right to life in Article 6 of the CCPR, and it is in violation of the CCPR in the case of Carpo et al. v. the Philippines (1077/02). The Committee especially emphasized that the “arbitrary” deprivation of right to life in Article 6, Para. 1 of the CCPR has to be linked to the explanation of “the most serious crime.”

In states that have not abolished death penalty, the imposing of death penalty should be limited to the most serious crime, and it is an extraordinary exceptional judicial decision. Political criminals shall not be sentenced to death, and neither the criminals who commit economic crimes, property crimes, or crimes not involving violence. (Manfred Nowak, U.N. Covenant on Civil and Political Rights, N.P. Engel Publishing, 2nd revised edition, 2005, 141) In addition, corruption, robbery, abrupt taking, conscientious objection, or trafficking toxic or hazardous substances are not “the most serious crimes” in this Article, and imposing death penalty to which violates Article 6 of the CCPR. (Johann Bair, The International Covenant on Civil and Political Rights and its (First) Optional Protocol, 2005, 20-22.)

According to the decision of the Economic and Social Council of the United Nations dated May 25, 1984, the scope of death penalty should be limited to intentional crimes and be only limited to direct intention. Dolus eventualis or dolus indeterminatus were not included; also it should be limited to crimes that lead to death or other extreme material results. The US Federal Supreme Court also held that death penalty should not be imposed where a crime did not result in death of the victim. (Kennedy v. Louisiana, 554 U.S. 407)

It must be noted that because Article 6, Para. 2 allows imposing death penalty to “the most serious crimes,” four Justices of this Court who hold minority opinion, including SHU-ZHEN, CHEN, FU-SHENG, HSU, ZHAO-HUAN, LI, and CHIA-HSIN, HSU, therefore hold that Article 33, Para. 1 of the Criminal Code not unconstitutional, but imposing death penalty should be limited to “the most serious crimes.” However, the four Justices take different stands on whether Article 271 of the Criminal Code is unconstitutional. Justice ZHAO-HUAN, LI and CHIA-HSIN, HSU, hold that because Article 271, Para. 1 of the Criminal Code does not differentiate specific situations, and is not limited to the most serious crimes, thus it covers too broadly and is against the strict principle of legal reservation, becoming unconstitutional. While Justice SHU-ZHEN, CHEN, FU-SHENG, HSU hold that if courts apply Article 271, Para. 1 of the Criminal Code in accordance with the CCPR, and limit it to the most serious crimes, then the provision is constitutional. In addition, the four Justices all agree that the criminal judicial practices and all current laws and regulations that allow the sentence of death penalty should be reviewed and revised by legislators.

The reason why the Justices who hold minority opinion consider imposing death penalty not unconstitutional is that they take the stand of relative protection of right to life, and they think Article 6 of the CCPR does not prohibit imposing death penalty. However, although Article 6, Para. 2 provides that “in states which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime and not contrary to the provisions of the present Covenant and to the Convention on the Prevention and Punishment of the Crime of Genocide.” Para. 6 clearly specifies that ” Nothing in this article shall be invoked to delay or to prevent the abolition of capital punishment by any State Party to the present Covenant.“ As what pointed out by expert witness Nigel N. T. Li, Article 6 of the CCPR cannot be explained as for supporting abolishing death penalty, neither against abolishing death penalty. (The oral argument transcript dated May 1, 2015 and the statement of comment by Nigel N. T. Li.) What can be affirmed is that the CCPR does not prohibit interpreting authorities from considering death penalty unconstitutional by interpreting the Constitution, and it even encourages nations to abolish death penalty through legislation.

B.   The reviewing constitutional principles

As aforementioned, the five Justices holding majority opinion in this Court hold that human dignity and right to life are absolutely protected in the Constitution, and the imposing of death penalty infringes these rights and is then deemed unconstitutional; thus it is not necessary to use other constitutional principles to review the unconstitutionality of imposing of death penalty which deprives human dignity and right to life. However, because the minority Justices of this Court hold different opinions, to respond minority opinions and promote communication, below the majority opinion in contrast holds that the imposing of death penalty, under principle of equality of human dignity and that right to life shall be subject to the review of strict the principle of proportionality, it is considered unconstitutional.

1.  Human dignity and principle of equality.

Human dignity is the basis of why human is human, and it is an affirmation of equality of personality of every person. The imposing of death penalty, at the time of depriving a life, makes a personality lose its origin, and denies the protection of equality of personality. Whether it conflicts the Constitution shall be reviewed by principle of equality. (The expert opinion by Nigel N. T. Li.)

Article 7 of the Constitution specifies “All citizens of the Republic of China, irrespective of sex, religion, race, class, or party affiliation, shall be equal before the law.” The principle of equality it reveals does not mean the absolute, mechanical equality in form, but the substantive equality which protects peoples’ legal status, and requires that things that are the same in their natures shall be treated in the same manner, and no differential treatment is permitted without a good cause. (J.Y. Interpretation No. 547, 584, 596, 605, 614, 647, 648, and 666.)

Whether a law meets the requirement of the protection of right of equality depends on if the reason it takes differential treatment is constitutional, and if there is relevancy to some extent between classifications it adopts and achieving of the purpose. (J.Y. Interpretation No. 682.) The more important the fundamental freedoms and rights involved in the differential treatment are, the more relevancies between differential treatment and purposes of regulations shall be required. (J.Y. Interpretation No. 626, 649, 666, and 728.)

2.  The strict review of right to life and principle of proportionality

Justices of the Constitutional Court, who are responsible for the interpretation of the Constitution, when conducting the review of principle of proportionality according to Article 23 of the Constitution, first they consider if there is legitimacy when a state limits peoples’ rights; secondly they consider whether the means a state uses to limit peoples’ rights are effective and necessary. (J.Y. Interpretation No. 585 and 646.)

In addition, when it comes to the review of principle of proportionality, because the importance of each fundamental rights involved are different, Justices of the Constitutional Court have developed reviewing standards between strict and lenient (or the intensity of review). When rational scrutiny is adopted, it is enough when this Court deems legislative intents and means reasonable. When intermediate scrutiny is adopted, this Court has to review if the purpose that legislators pursuing is important public interest, and if there is substantial relevancy between means and purposes. Before, Justices of the Constitutional Court adopted intermediate scrutiny in the cases of protection of the visually-impaired and limitation to occupation freedom (J.Y. Interpretation No. 649), right to be educated (J.Y. Interpretation No. 659), sexual transaction and gender equality (J.Y. Interpretation No. 666), balance between privacy and freedom of press (J.Y. Interpretation No. 689), the equal protection of right of existence (J.Y. Interpretation No. 701), etc. As for strict scrutiny, it is requited that the legislative purpose shall be compelling important public interest, and the relevancy between means and purposes shall be necessary and narrowly tailored. That is, this Court has to conduct a thorough analysis on legislators’ decision. If this Court cannot be convinced that the legislators’ decision is right, it has to declare that the disputed mean does not meet the requirement of principle of proportionality. (The opinions by Justice Tzong-Li, Hsu, Tzu-yi, Lin, and Yu-Hsiu, Hsu in J.Y. Interpretation No. 584.)

The imposing of death penalty deprives a person of his life in the end. A person’s personality can no longer exist without his life and at the same time loses every freedom and right. Therefore, this practice of state power shall be subject to the strictest review of the Constitution. The imposing of death penalty can only be justified when there is compelling important public interest and the relevancy between means and purposes are necessary and narrowly tailored.

C.   The disputed provisions are unconstitutional.       

1.  The disputed provisions are against the principle of equality.

(1) The imposing of death penalty is against the principle of equality which prohibits arbitrariness.

Human dignity is the basis of why human is human, and it is the precondition of the protection of equality of personality. Everyone, including a state, cannot deny another person’s personality in any way. However, the imposing of death penalty, at the time of depriving a life, makes a personality lose its origin, and it is the deny to the equality of personality.

First, practical death penalty in our state is often imposed to give clear warnings to curb future crimes. (e.g. Supreme Court T.S.T. No. 2393 (Supreme Court, 2013), etc. The expert opinion by JIAN-RONG, QIAN.) However, according to the “Object Formula” developed by Federal Constitutional Court of Germany, the human dignity is affected when a concrete human being is reduced to an object, to a simple way, to an amount that you can dispense. A state preventing crime by depriving a person’s life is turning whom into an object and constitutes violation of human dignity. (Para. 59 of the State v. Makwanyane of South African Constitutional Court cited the opinion of Federal Constitutional Court of Germany; the expert opinion by JIAN-RONG, QIAN.)

Secondly, the current sentence of death penalty adopts a standard of “apparent impossibility of reeducability.” (The oral argument transcript dated May 9, 2015, the opinion by the representative of the Supreme Court, Judge RUI-HUA, HUNAG; the expert opinions by JIAN-RONG, QIAN and YU-WEI, HSIEH.) However, the judgment of “apparent impossibility of reeducability”, which consider a person without the basis of rational personality, is the thorough depreciating of whose personality and violates the human dignity.

More seriously, this material disqualified judgment, which even justify the deprivation of life, faces the problem that the basis of judgment cannot be clearly acknowledged and further causes arbitrary concluding. Is the judgment of apparent impossibility of reeducability based on “the past” or “the future?” If the possibility of reeducability is a prospective idea, how does a state judge if the condemned have possibility to reeducability? Five years, ten years, and fifteen years later, will the changing of mental state of the condemned produce new possibility to reeducability? (The expert opinion by YU-WEI, HSIEH.) The lack of the judging basis of possibility to reeducability also leads to the arbitrariness of imposing of death penalty: the same or similar cases may have totally different results on different judges’ different judging bases. (The oral argument transcript dated May 9, 2015, the opinion of the representative of the Supreme Court, Judge RUI-HUA, HUNAG; the expert opinion by JIAN-RONG, QIAN.) The judgment of disqualifying an inmate, depriving his life in the end, and expel whom from the community is such a significant judgment that if it goes arbitrarily, it will obviously contradicts the protection of human dignity in the Constitution.

In addition, the Respondent Agency claims that death penalty does not violates human dignity, because the imposing of death penalty does not mean to treat the killer as an object, but make the killer responsible when he can foresee that he will be sentenced to death if he kills another person, and he still make a decision to kill someone of his free will. That is, even if the imposing of death penalty hinders the right to life, it does not violate the human dignity. In contrast, it respects the decision made by the perpetrator who is rational, fully understands legal effects and of his free will. It is rather the demonstration of human dignity.

What the Respondent Agency claims is not right. In this circumstance, the so-called self-realization of the perpetrator is done by making another person an object and thoroughly depreciating whose human dignity. That is, to ensure his human dignity by violating another person’s human dignity, this is definitely impossible to be allowed in the legal structure of modern states! It is totally different from the hospice palliative care example given by the Respondent Agency, which terminally ill patients finish their lives by self-decisions without violating others’ lives or human dignity.

Death penalty reduces a person who has his personality to an object without personality by exercise of state power, which makes peoples’ equal personalities fall to unequal status that is deniable by other people. A state that allows judges or executioners, who are also ordinary people to deny another person’s life value, and further deprive his life, obviously is against principle of equality in Article 7 of the Constitution. (The expert opinion by Nigel N. T. Li.)

(2) Death penalty is a cruel punishment.

More importantly, imposing death penalty has been considered internationally a cruel punishment which violates human dignity, and it is a developing standard of International Customary Law. The international human rights experts made it clear in Para. 56 and 57 in the 《Concluding Observations and Recommendations Adopted by the International Group of Independent Experts of the Review of the Initial Reports of the Government of Taiwan on the Implementation of the International Human Rights Covenants》 that “Article 7 ICCPR prohibits in absolute terms all forms of cruel, inhuman or degrading punishment. Since even relatively lenient forms of corporal punishment have been found by the UN Human Rights Committee and regional human rights courts to constitute inhuman or degrading punishment, the question arises whether this dynamic interpretation also applies to the ultimate form of corporal punishment, namely the death penalty. Various national courts, including the Constitutional Court of South Africa, have found the death penalty to constitute cruel punishment, and the current UN Special Rapporteur on Torture identified the prohibition of the death penalty deriving from the concept of human dignity as an evolving standard of customary international law... Although the Government of Taiwan affirms (para. 94 of its initial report) that the “death penalty is brutal from the perspectives of humanity and the Covenant”, Taiwan is among a small minority of only 20 States worldwide having carried out executions in 2011.”

Some people may doubt: why the state still have to protect the human dignity of those who kill other people, depriving their lives, making them objects, and violating their human dignity when they therefore receive the punishment? That is, shall the human dignity of those who have committed the most heinous crimes be protected?

The answer is affirmative. Although for criminals who make other people objects and violate others’ human dignity, no doubt they must be punished by national penal system, and the punishment definitely violates their human dignity to some extent, when prisoners are punished, they do not lose all of their rights. They retain all the rights to which every person is entitled and absolute, natural rights relevant to personalities; in prison, prisoners are not stripped naked and bound. (Para. 143 of the State v. Makwanyane of South African Constitutional Court.)

As the aforesaid, affirming the existence of equal personalities is the precondition of establishment of legal structure for modern nations, and because of the affirmation of equal personalities, sates use criminal law to condemn and punish behaviors which deprive others’ lives and violate others’ human dignity such as killing. Therefore, all behaviors of a state, including punishing criminals, shall be restricted by this precondition. Objectifying murderers and putting them to death obviously is against this precondition. (Para. 144 of the State v. Makwanyane of South African Constitutional Court.) If we allow the precondition to be denied, the legal structure that is built on equal personalities will be devastated. We will never know on which day, the government made up of most of us will claim that anyone of us does not own the qualification to be a human, based on what kind of reasons.

Nowadays, we cannot put those who commit Genocide and Crimes against humanity as what Hitler did to death. As mentioned before, according to the regulations of the Rome Statute, we cannot impose death penalty to those who commit Genocide (Article 6), Crimes against humanity (Article 7), and War crimes (Article 8) and so on. We can only impose imprisonment for a specified number of years, which may not exceed a maximum of 30 years or life imprisonment, and life imprisonment can only be imposed when justified by the extreme gravity of the crime and the individual circumstances of the convicted person. (Article 77).

That is, we have no choice but admit that we do not have the right to deny the qualification as human of those who commit the most heinous crimes, and this is the fundamental boundary for us to establish modern democratic legal structure.

2.  The disputed provisions violate the principle of proportionality

(1) Review of purpose

The three major purpose of criminal punishment in modern states are deterrence, correction and retribution (Expert witness opinion of SHAN-YIN CHENG). Deterrence represents general prevention function of punishment posed by the modern criminal law. Correction represents special prevention function of crime through indoctrination of individual criminals. Both deterrence and correction are means of crime prevention instead of punishment. Retribution, on the contrary, represents a principle of proportionality (罪刑相當) of “an eye for an eye, and a tooth for a tooth” and where there is a crime, a corresponding of punishment should be posed. The punishment itself is the purpose, instead of the means to other purpose.

The general and special prevention posed by deterrence and correction as legislative intent, are not argued by both parties, and recognized by both parties. Whether retribution is also a legislative intent remains controversial. According to expert witness NIGEL N. T. LI, the legislative intent of old Criminal Code disclosed that retribution is not a legislative intent of death penalty; furthermore, the J. Y. Interpretation No.551 states that “the original retribution theory does not conform with the principle of proportionality in Article 23 of the Constitution” (Expert witness opinion of NIGEL N. T. LI). Nevertheless, according to expert witness SHAN-YIN CHENG, justification of criminal punishment lies in retribution, as opposed to correction or deterrence. (Expert witness opinion of SHAN-YIN CHENG). Some of the justices of this Court also hold that the most important purpose of criminal punishment is the modern retribution theory, that criminals “deserve” the punishment and the “proportionality”, that the committed crime should be proportionate to the punishment. (Opinion concurring in part and dissenting in part of Justice CHIA-SHIN HSU).

The legislative intent of old Criminal Code states, “The theories of death penalty remain disputed. The three reasons for not abolishing death penalty include (1) Legal reason: Penalty to crime is as medication to disease. Diseases cannot be cured without adequate medication based on each disease and medicine. Hence a putrid which usual medication can’t cure should be removed. Death penalties being imposed to criminals are of same reason, and should be imposed upon two conditions: extreme vicious crime and non-curable, that were the criminal law would be in vain had they not be disposed from the society. (2) Historical reason: During this era of revolution, old habits should be abandoned while those with reason should still be kept. The ‘[social] order’ (倫紀) has long been important throughout our history, that an abrupt abolishment of death penalty would hinder the law enforcement on those in violation of the [social] order. (3) Social reason. Death penalty has a long history, that the abolishment would affect the social psychology, and that the vicious criminals would act in view of the easy punishment, and citizens would fear the violation of their rights. ” (YUAN-SHENG HUANG，A compilation of penal laws from the late Qing to Republic China, Volume II，896, July 2010; Expert witness opinion of NIGEL N. T. LI.)

If we further look into the above legislative intents, “…that the vicious criminals would act in view of the easy punishment…” demonstrate its deterrence purpose, and “Penalty to crime is as medication to disease” shows its correction purpose. Whether the purpose of retribution is included remain unclear, however reading into the text of “Death penalties being imposed to criminals are of same reason, and should be imposed upon two conditions: extreme vicious crime and non-curable, that were the criminal law would be in vain had they not be disposed from the society”, we can infer that removal and quarantine of extreme criminal through death penalty somehow serve such purpose of retribution.

The J. Y. Interpretation No. 551 ruled former Article 16 of Narcotics Hazard Prevention Act, which provided that “Anyone falsely accusing others or framing others of a violation under this Act, should be charged of such violation”, should not be viewed as an exclusion of retribution, but “such punishment charging the accused of such violation it falsely accused others or framed others, is disproportionate of the purpose of the law and the crime committed”. Hence, retribution should still be considered one of the legislative intents of death penalty.

In sum, a conclusion can be drawn that deterrence, correction and retribution are all the legislative intents of penalty of the Criminal Code. Nevertheless, as afore- mentioned, such deprivation of life as death penalty should be subject to stringent proportionality review, and should serve compelling public interest.

The deterrence purpose of crime prevention being reached through deprivation of life completely instrumentalized and objectified human being, and is apparently not a justifiable public interest of modern constitutional state, or is of any importance at all. The deterrence purpose is to negate and to downgrade the humanity of criminals, especially a complete negation of a human being through the deprivation of life, which should not be allowed by modern constitutional state.

As to whether retribution should suffice as compelling public interest, depends on its substance. Should such substance be pure revenge, it cannot pass the review. Should such theory be based on the assumption of rational self-determination (Expert witness opinion of MICHAEL DAVIS), which, considering the complex underlying reason of crime with various social and contextual factors, we highly doubt, will undermine the expectation of punishing a rational man. We will later demonstrate that deprivation of life, as a means of retribution, should not pass proportionality review.

Here we should also take into account the historical and social-psychological reason of death penalty in the old Criminal Code. That is, the legal sensibility of citizens and the opinion of the majority. (Expert witness opinion of NIGEL N. T. LI.)

While preservation of tradition and habits may be a pursuable public interest, the evolution of old tradition itself can also suffice as a public interest. Hence, the pure legislative intent of legal tradition should not pass a mid-level or stringent review that requires substantive or compelling public interest.

Same rationale also applies to the public interest of legal sensibility of citizens or psychological requirement of the majority, that they may be pursuable yet wouldn't prevail the public interest of avoiding majority [tyranny] and protection of minority, as an important or compelling public interest. That most people are reluctant to pay tax doesn’t justify a massive tax cut. The same should also apply to death penalty, that “all for kill” should not justify a death penalty. Furthermore, the opinion of majority is still unclear, considering the highly diverse research results based on different research methodologies (Expert witness opinion of MAI SATO), which could also evolve when time goes by. While public opinions may be important in policy making, public opinion itself should not serve as important or compelling public interest, as compared to death penalty that deprives life.

(2) Review of means

We then review death penalty as a means to the purpose of deterrence, correction and retribution, including its suitability, necessity and reasonableness (strict proportionality).

i.  Death penalty cannot serve as a means to deter crime

Can death penalty serve as a means to deter crime? The answer is negative judging from numerous researches. (Expert witness opinions of SHAN-YIN CHENG and MAI SATO)

We quote expert witness Shan-Yin Cheng “American scholar Johan Thorsten Sellin drew a conclusion that there is not direct connection between execution of death penalty and crime rate of killing, through a comparison between the states with and without death penalty.” And “Germany has abolished death penalty over 70 years, but not actually decreased the criminal rate of killing.” Hence, “the existence and abolishment of death penalty did not show notable relation with increase or decrease of killing crime or other crime.” (Expert witness opinion of SHAN-YIN CHENG).

We quote expert witness Mai Sato “The growing academic consensus among death penalty scholars and social scientists is that existing research on the effect of capital punishment on homicides is not able to prove nor inform whether the death penalty decreases, increases or has no effect. (See review of literature in Hood, R. and Hoyle, C. (2015) chapter 9).” (Expert witness opinion of MAI SATO).

The South Africa Constitutional Court also recognized that death penalty cannot achieve the goal of deterring crime. (The State v. Makwanyane, para 119-123). The Court holds that the reasons of crimes are complicated. Severe crimes can be caused by homeless, unemployment, poverty or even emotion of defeated. There will always be people that are emotionally unstable and willing to take risk. In order to prevent crime effectively, a state should create friendly working environment, provide health and social benefit, and keep encouraging and establishing a society that truly respect human dignity.

As a matter of fact, life sentence demonstrates same effect from the perspective of deterring crime, with even less harm than death penalty. According to expert witness MICHAEL DAVIS, penalties, ranging from death, life sentence and imprisonment, all cause irrevocable harm to prisoners. (Expert witness opinion of MICHAEL DAVIS). As such irrevocable harm, a means without taking life away and restricting only freedom should better fit the principle of proportionality according to Article 23 of the Constitution.

Finally, as previously stated regarding human dignity review, the moment the legislators threaten crime with death penalty, they are treating the life of criminals as an instrument, and violates his/her human dignity.

ii. Death penalty cannot serve as a means for correction

Death penalty is obviously contrary to the purpose of correction. Imprisonment, accompanied with sufficient education measure, is the only applicable method from correction perspective. (May 9, 2015, Minutes od oral arguments, opinion of Judge JUI-HUA HUANG, representative of the Supreme Court.) The legislative intent of death penalty, according to the old Criminal Code, lies in that “Penalty to crime is as medication to disease. Diseases cannot be cured without adequate medication based on each disease and medicine. Hence a putrid which usual medication can’t cure should be removed.” Uncorrectable criminals can only be “corrected” through the utmost means of taking away their lives. Nevertheless, such “utmost correction” is apparently adverse of its purpose of correction, and cannot qualify the suitability review.

As previously stated regarding human dignity review, the court, by judging a criminal by his educability from correction perspective, has downgraded his personality and violates his/her human dignity.

iii. Death penalty cannot serve as a means for retribution

From the perspective of proportionality, can death penalty serve as a retribution for murder? First of all, we need to clarify what “retribution” means here.

As clearly demonstrated by the South Africa Constitutional Court, the modern criminal law has long abandoned the tradition of “an eye for an eye, and a tooth for a tooth”. Although “Punishment must to some extent be commensurate with the offence, but there is no requirement that it be equivalent or identical to it. The state does not put out the eyes of a person who has blinded another in a vicious assault, nor does it punish a rapist, by castrating him and submitting him to the utmost humiliation in gaol. The state does not need to engage in the cold and calculated killing of murderers in order to express moral outrage at their conduct”. (The State v. Makwanyane, para. 129). From nowadays view, mechanical or formalistic retribution is both factually impracticable and without formal basis.

Is retribution same as “revenge”? For the family and friends of the murder victim, “The righteous anger… reinforced by the public abhorrence of vile crimes, is easily translated into a call for vengeance. But capital punishment is not the only way that society has of expressing its moral outrage at the crime that has been committed… The state does not need to engage in the cold and calculated killing of murderers in order to express moral outrage at their conduct. A very long prison sentence is also a way of expressing outrage and visiting retribution upon the criminal.” (The State v. Makwanyane, para. 129) For one, retribution of “revenge” may not pass mid-level or stringent proportionality review, as the mass revengeful emotion is apparently not substantive or compelling public interest. For another, death penalty as a means of revenge cannot be considered as a more effective and less harmful means, as compared to life sentence.

As pointed out by expert witness MICHAEL DAVIS, modern retribution is based on the assumption of self-determined rational person. “Once the subject choose to act knowing the accompanying punishment, he should be viewed as choosing such punishment. Criminal justice is punishing people with respect for his rational choice.” (Expert witness opinion of MICHAEL DAVIS). Hence, modern retributory theory considers “penalty” as a response to major moral error, and the criminals “deserve” such penalty. (Opinion concurring in part and dissenting in part of Justice CHIA-SHIN HSU)

The problem here is whether such assumption stands? Are criminals clearly aware of the punishments? According to expert witness Mai Sato, a research “surveyed 278 prisoners and asked if they were cognisant of the possibility of punishments they may receive for the crime. 79% of the total, and 89% of the most violent offenders in the sample were not. This evidence shows that when individuals commit heinous offences which may be punishable by death, they are not likely to possess the knowledge and capacity for restraint that are necessary for deterrence to operate. (Anderson, D (2002) ‘Pickpocket's Hanging’, American Law and Economics Review)” (Expert witness opinion of MAI SATO) In other words, most criminals are not aware of the corresponding punishments of their behavior. Can penalty imposed to criminals still be considered retributive to their rational action?

Under modern retribution theory, how do we consider a decision to death penalty to be “deserved” and “proportionate”? In fact, all of these so called “proportionate” retribution are established under various either subjective or objective judgments of criminal behaviors and criminals. How do we limit these judgments? Should we evaluate a sexual criminal and killer considering his childhood experience being raped or bullied when deciding a “deserved” and “proportionate” punishment? Apparently no all raped or bullied people commit such crime. As the minority holds, not all murderer or felon “deserved” death penalties and are “proportionate”. When can it be considered so and when can it not? How can the modern retribution theory, which based itself on rational communication, establish a fair and meaningful benchmark for the judgment of a “deserved” and “proportionate” punishment?

Since the right to life is closely embedded with human dignity and is of great importance, even if we consider death penalty passes principle review (i.e., it effectively accomplish the goal of retribution), it may not be necessary, and may not outweigh the judgment of taking one’s life.

D.   The disputed judgments are unconstitutional

As aforementioned, five justices, as majority of this Court, hold that, a decision to death penalty is against the protection of human dignity and right to life by the Constitution, and is ruled unconstitutional. Two other justices of this Court hold that Article 271, Para. 1 of the Criminal Code, imposing death as a penalty for murder, is unconstitutional as it failed to limit such penalty to extreme felony. Hence, the decision in dispute is unconstitutional by ruling a death penalty for the Petitioner Tang Sheng, and the majority of this Court extent no further review of such decision.

The Petitioner Tang Sheng not only asserted the decision to death penalty unconstitutional, but also asserted that the legal procedure led to death penalty, both in factual investigation or in sentencing, is against the principle of due process under Article 8 of the Constitution. Had this Court agreed with such assertion, the Petitioner should be entitled to a retrial. We therefore are obligated to conduct constitutional review over such legal procedure.

This Court holds unanimously that the disputed judgments are against due process and therefore unconstitutional. Two of the justices, although hold the disputed provisions constitutional, also considered the disputed judgments unconstitutional for the death penalty should only be posed to extreme crime, which is not the case in the disputed judgments. This Court therefore holds unanimously that the disputed judgments are unconstitutional and should be revoked and remanded to the Taiwan High Court.

Reasoning is as follows:

1.  Summary of the disputed judgment

The Petitioner Tang Sheng was a senior student in the fourth grade of Taiwan   Provincial Jia-Yi Normal Junior College. He was employed by Pong through employment agency, the victim, at Pong’s laundry store from January 16, 1986 after [suspended] from school, and work seventeen hours a day till midnight. If Tang Sheng refused to work overtime, Pong would treat him violently, or call him “huan-á” (“番仔”, an offensive way of referring to indigenous tribe) . Pong held Tang Sheng’s ID, and claimed Tang Sheng owned him agent fee and refusing to return his National ID Card before he repays all agent fee whenever Tang Sheng tried to resign. On the 24th of the same month, Tang Sheng got drunk around 23:50 and Pong requested Tang Sheng to return to work. Tang Sheng then resigned. Pong paid less than half of the agreed salary and still kept Tang Sheng’s National ID Card. The two had an argument before Tang Sheng attacked Pong and Wang, Pong’s wife, with an iron claw on a washing machine. During which Pong’s daughter cried and Tang Sheng attempted to halt her. Wang made an attempt to crawl outwards, therefore Tang Sheng wrestled him on the ground and hit Wang till her fell. Wang then took his National ID Card and agency fee acknowledgement from Pong’s room and left, and the three victims were left to death. The Petitioner turned himself to the police and was sentenced to death. Though once remanded to the Taiwan High Court, the final decision of the Supreme Court still affirmed the death penalty.

The Taiwan High Court Criminal Decision 1986 Jong-shan-2-gan (1)-tzu No. 51 affirmed death penalty for the Petitioner Tang Sheng, and that “The employer treated him well, and the defendant left after working for eight days only because he could not stand the hard laundry working at night, which an ordinary employer would not accept. There was no urgent need to retrieve his National ID Card. The defendant brutally killed the employer and innocent woman and child for trivial reason, which apparently demonstrated a brutality at such young age, and more than deserved a death penalty so as to warn the society. The defendant should also be deprived of his civil rights for life. ” Supreme Court Criminal Decision 1987 Tai-shan-tzu No.2533 also held that “The employer treated him well, and the defendant left after working for eight days only because he could not stand the hard working at night. While refused by the employer, the defendant brutally killed the employer and innocent woman and child for trivial reason of retrieving National ID Card. He demonstrated a brutality at such young age, which harmed the order of the society and is so unforgivable, that should be separated from the community, so as to warn the whole society.”

Supreme Court Criminal Decision 1987 Tai-shan-tzu No.2533 also held that the remanded decision “with death penalty and deprivation of civil right, which was well grounded. The remanded decision was based on expert witness opinion of the Tri-Service General Hospital for determining the psychological status of the defendant, that he was not in the state of insanity or depression, and there’s no need for reevaluation by expert.”

2.  Review of due process

(1) Basis for due process

Article 8, Para. 1 provides that “Personal freedom shall be guaranteed to the people. Except in case of flagrante delicto as provided by law, no person shall be arrested or detained otherwise than by a judicial or a police organ in accordance with the procedure prescribed by law. No person shall be tried or punished otherwise than by a law court in accordance with the procedure prescribed by law. Any arrest, detention, trial, or punishment which is not in accordance with the procedure prescribed by law may be resisted.” “In accordance with the procedure prescribed by law” should mean that all action restricting people’s personal freedom, whether for criminals or not, the procedure the government based on should be prescribed by law. The content of the law should be legitimate and in conformity of the regulations of Article 23 of the Constitution. (J. Y. Interpretation No.384, No.392, No.582, No.708 and No.710.)

Death Penalty deprives people’s right to life, and constitutes an extreme restriction to personal freedom, which should be protected by the most stringent substantial and procedural due process. The procedure to reach a decision of death penalty should be based on sufficient due process protecting the defendant, for example, direct trial, verbalism, adversarial system, and chance for concluding statement, in accordance with the purpose of protecting human dignity, right to life (Article 15) and right to fair trial (Article 16) of the Constitution. (J. Y. Interpretation No.396)

Furthermore, according to CCPR General Comment No. 6 “(Death penalty) can only be imposed in accordance with the law in force at the time of the commission of the crime and not contrary to the Covenant.” As commented by the Human Rights Committee, such laws include right to judicial remedies (Article 2), right to fair trial (Article 14), right to protection from retroactive criminal law (Article 15) and right to equal protection (Article 26). Right to presumption of innocence, right to effective defense representation in death penalty cases, and right to appeal have all been reaffirmed. (Scott Carlson & Gregory Gisvold, Practical Guide to the International Covenant on Civil and Political Rights 69-70 (2003)) Defendants in death penalty cases should be entitled to effective defense representation (Hendricks v Guyana, Merits, Communication No 838/1998, UN Doc CCPR/C/76/D/838/1998, (2003)). No death penalty should be executed during appeal (Ashby v. Trinidad and Tobago, UN Doc. CCPR/C/74/D/580/1994 (21 March 2002)). Any violation of above rights of the defendant should be deemed violation of Article 6, paragraph 2 of the ICCPR.

(2) Due process of decision to death penalty

i.  Oral argument in court of third instance

Article 14, paragraph 1, second sentence of the ICCPR provides that “In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.” Paragraph [3], subparagraph 4 of the same Article provides that “(everyone shall be entitled) [t]o be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it.”

Article 389 of the Code of Criminal Procedure provides that. “The court of third instance may be trial without oral argument; provided that the court may order arguments if necessary.” Although it is not a requirement for court of third instance to trial in public with oral argument, when necessary courts are allowed to hold oral argument. Hence, the court should consider the due process required by the constitution and exercise its discretion on whether to hold oral argument, which is not a complete discretion of the court. The Supreme Court has been holding oral argument on sentencing of death penalty, however the defendants were never allowed for statement, that “the court failed to grant defendants chance for presence at trial and final statement before reaching a decision, without laws specifically allows such absence of defendant statement”, which should be deemed as decisions in violation of laws, according to expert witness CHIEN-JUNG CHIEN. (Expert witness opinion of CHIEN-JUNG CHIEN).

Death penalty is the most severe penalty of the Criminal Code, which constitutes utmost deprivation of life and restriction of personal freedom. The courts should trial with most stringent procedure to avoid misjudgment and injustice. For all cases decided or charged with death penalty, the court of third instance should trial in public with oral argument, so as to reach fair decision within its discretion and discover the truth.

ii. Examining witness by the accused

Article 14, paragraph 3, subparagraph 5 of the ICCPR provides that “(everyone shall be entitled) [t]o examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him.” Also according to the General Comment No.13 of the Human Rights Committee, “This provision is designed to guarantee to the accused the same legal powers of compelling the attendance of witnesses and of examining or cross-examining any witnesses as are available to the prosecution.”

The right for the accused to examine witness is the procedure prescribed by law that “No person shall be tried or punished otherwise than by a law court in accordance with the procedure prescribed by law” according to Article 8, Para. 1 of the Constitution. To ensure the right to examine witnesses by the accused, the witnesses should present and swear an honesty oath according to legal procedure during trial, and be examined by the accused, so that such statement can be a basis of identifying the criminal act of the accused.

Witness is one of the evidence means according to the Code of Criminal Procedure, and should only be adopted after due investigation according to principle of evidentiary adjudication (證據裁判原則). For investigation of witness, witness should present at the court and be informed of its obligation to swear and responsibility of perjury, swear an honesty oath, be examined by the accused and the judge, make true statement and the accused and counsels should orally argue on the results of examination so that the court can reach a decision within its discretion. (J. Y. Interpretation No.582)

iii. Separation of conviction and sentencing

To vest the accused of effective defense representation for reasonable sentencing, the procedure of conviction and sentencing should be separated, or the accused will be forced to choose between remain silent to avoid self-incrimination, and exercise right of defense. Had the accused choose the former one, the accused will be forced to plea not guilty and give up on sentencing defense, while the contrary will lead to an implication of pleading guilty. Furthermore, the court would not be able to consider all factor including the character, family, life, job, social structure and experience in sentencing, and thus unable to reach a reasonable sentence. Hence, the sentencing process should be held separately after conviction, with sufficient debate by the accused and factoring on sentence factors by the court, so as to achieve efficient defense.

iv. Unanimous decision in death penalty decision

Death penalty deprives people’s right to life and should be decided by the most stringent procedure. Article 105, Para. 1 of of the Organic Law of the Court provides that “A decision should be reach by majority.” and currently court decisions are reached by majority opinion. It is apparent such practice provides not enough for protection of right to life and lack protection of due process. Therefore, all decision of death penalty should be made though unanimous decision, including a decision rejecting appeal of death penalty, that the protection and respect can be enhanced.

The current Code of Criminal Procedure where not in conformity of the above has violated the due process protection. The Absolution Law is also not in conformity of Article 6 of the ICCPR, and the legislators should review and revise it as soon as possible. The Department of Justice may not execute death penalty before competent authority officially respond to the application for absolution.

3.  The decision in dispute is in violation of due process

As previously stated, Article 8 of the Constitution requires that restrictions to personal freedom should be regulated by the most stringent due process, which is shown in the ICCPR. Hence, the disputed judgments should strictly follow relevant procedure, or would violate the due process demonstrated by Article 8 of the Constitution and Article 6 of the ICCPR.

(1) The disputed judgment has not undergone oral argument

Death penalty is the most severe penalty of the Criminal Code, which constitutes utmost deprivation of life and restriction of personal freedom. The courts should trial with most stringent procedure to avoid misjudgment, so that the state would not become the subject of a killing. For all cases decided or charged with death penalty, the court of third instance should trial in public with oral argument by direct trial, on one hand, to protect the right to defense of the accused, so that the accused can participate in the procedure and make statement, while on the other hand, the court procedure can be examined publicly to ensure fair trial and discovery of truth.

The dispute decisions have all ruled death penalty except for the Taiwan High Court Criminal Decision Tai-shan-tzu No. 4957, due to the lack of expert opinions regarding the state of mind. As requested by the due process of Article 8 of the Constitution, decision of death penalty should be reached more carefully. Since an expert opinion regarding the state of mind has been requested, the decision clearly lacks proper consideration and should further hold public oral argument. The disputed judgment had been trialed through written materials, not public oral argument, which violated the due process of Article 8.

(2) The disputed judgment has not undergone examination of witness by the accused

The witness statement of the disputed judgment includes statement of Chiu, that the accused was employed by the victim through Shi-Ji employment agency; the statement of Wang, that the accused went drinking at a relative Wang’s, returned at around nine, and that the accused escape to Wang’s after committed the crime; the statement of Pong, that hearing his mother and sister yelling and crying and the noise and argument from the rooms and daring not exit the room, and the accused leaving the house panting by his room, carrying luggage. The witness statement also includes statement of Fang and Cheng, the two police officers on duty regarding the state of mind of the accused. The above-mentioned statements all relate to the sentencing factors of Article 57 of the Criminal Code, including motive, stipulation, means of the crime, live, character, relationship with the victim and attitude of the accused, while the police officers’ statements also account for the decision of the state of mind of the accused provided by Article 19, Para. 2 of the Criminal Code, regarding the [ability of taking responsibility] of the accused, and was crucial to the decision of death penalty. The disputed judgments however failed to request presence and swear of witness, being examined by the accused and the judge, nor did the court requested examination of the statement, and thus violated due process.

(3) The conviction process was not separated from the sentencing process

In order to achieve effective defense and representation, a need for separation of conviction and sentencing process to ensure fair sentencing has been mentioned above. The disputed judgments adopted written trial in the court of third instance and failed to conduct sufficient debate regarding conviction and factors of sentencing, and reached the decision through a single process, is thus in violation of the due process requirement.

(4) The disputed judgments failed to exercise a reasonable discretion to investigate whether the accused was in a state of depress according to due process

Article 19 of the former Criminal Code, applicable at the time of action, provides that “An offense is not punishable if it is committed by a person who is mentally disorder. Punishment to an offense may be reduced if it is committed by a person who is in mental defects.” Such law was an application of proportionally, that if the accused has no or reduced his ability to take responsibility, which the court should investigate into, the penalty should be relieved or reduced correspondingly. For a death penalty decision, the court should further stringently consider the applicability of Article 19 and whether the accused is in a state of mental disorder or defect, as such decision is crucial to the accused.

The disputed judgment holds that the accused was not in a state of mental disorder or defect in action, and no need to seek further expert opinion, based on expert witness opinion of the Tri-Service General Hospital in the lower court. However, said expert witness opinion stated that “Tang Sheng described himself as “drank one bottle of rum (600 cc with 40% alc.) and a few bottles of wine (600 cc with 16% alc.)”. The alcohol level in Tang Sheng’s body in the next morning was unable to decide unless conducted a blood test, as (1) alcohol metabolism differs by person and could be two to three times a faster, unlike the 8.8 cc as asserted by the accused; (2) alcohol metabolism is not a linear process, but faster at higher concentration and get slower at lower concentration; and (3) the mental status and alcohol concentration is not necessarily related and thus difficult to reach a conclusion. According to the original record of lower court, the accused was able to remember and describe the happening, which shows no sign of lost of memory. From the psychiatrical perspective, the accused is not unconscious after action. As to whether the accused is in a state of mental disorder or defect during action, this would need to be further expert opinion.” Hence the relation between alcohol and the accused’s mental status during action are undecided, which would require further expert opinion, and we can only tell that the accused is not unconscious after action. Apparently the expert witness was not able to decide whether the accused is in a state of mental disorder or defect, as opposed to what the disputed judgment holds that “no further need to seek expert opinion”. We should also bear in mind that expert opinions are not 100% accurate, as recently admitted by the Department of Justice and Federal Bureau of Investigation of the US that 32 people was executed for death penalty over 20 years because of exaggerated expert opinion/result. The court, in deciding a death penalty, should therefore bear in mind the limit of science, follow stringent due process, and rule for the accused if no plausible proof of the mental status of the accused.

The fact that disputed judgments are not reached through stringent due process to rule out the possibility that the accused is in a state of mental disorder or defect, and exclude the applicability of Article 19, constitutes a failure to fair trial and is in violation of due process requirement.

(5) The disputed judgment failed to investigated into whether the accused is “not educable”

Although lack of educability is one of the probable reasons for death penalty, the decisions should still lay out certain basis of such discretion. Death penalty should only be used and only be justified after confirming even separating the accused for good cannot achieve the goal of education, correction and social security. Since the lack of educability is vital sentencing factor, the court should investigate into to a higher belief in determining a death penalty, either through ways of expert witness, public oral argument, or cross-examination of the accused and the witness.

The disputed judgment stated in general that the accused was brutal and conscienceless, and thus harming social order, therefor should be separated from the society for good as punishment. The decision however failed to prove in any way that the accused is beyond educable, and is in violation of the principle of evidentiary adjudication as required by legal due process. (J. Y. Interpretation No.582).

IV. Conclusion and execution of the judgment

In sum, it is unanimously ruled that the application of judicial review of the disputed provisions and the disputed judgment by Tang Sheng should be admitted for review, and the court should therefore ruled thereto. The majority of this Court then ruled by five to four that Article 33, Para. 1, imposing death as a penalty as a law, is unconstitutional, and by seven to two that Article 271, Para. 1, imposing death as a penalty for murder, is unconstitutional.

Presiding Justice BING-CHENG LO, Justice WEN-CHEN CHANG who delivers the opinion of this Court, Justice CHING-YI LIU, Justice CHUAN-FEN CHANG and Justice CHUAN-HE LI are of the view that the decision of death penalty violates human dignity and the right to life, which are both strictly protected by the Constitution, and Article 33, Para. 1, imposing death as a penalty as a law, and Article 271, Para. 1, imposing death as a penalty for murder, are both unconstitutional. The minority opinion, Justice SHU-ZHEN CHEN, Justice FU-SENG HSU, Justice CHAO-HUAN LEE and Justice CHIA-SHIN HSU are of the view that since Article 6, paragraph 2 of the ICCPR allows death penalty to be used against extreme crimes, Article 33, Para. 1, imposing death as a penalty as a law, should still be constitutional but limited to extreme crimes. As to Article 271, Para. 1, the views of the justices remain diverse. Justice CHAO-HUAN LEE and Justice CHIA-SHIN HSU are of the view that it did not limit the application to extreme crimes, nor did it identify specific situation that a death penalty can be used, such over inclusive of death penalty therefore should be unconstitutional and violate the principle of non-delegation (or the principle of statutory reservation). Justice SHU-ZHEN CHEN and Justice FU-SENG HSU are of the view that as long as the courts limit the application to extreme crimes according to ICCPR, relevant regulation should still be constitutional. All four justices of minority opinion agree that current criminal practice and laws permitting death penalty should be subject to legislative review and amend.

Furthermore, regarding the disputed Supreme Court Criminal Decision 1987 Tai-shan-tzu No.2533 and the Taiwan High Court Criminal Decision 1986 Jong-shan-2-gan (1)-tzu No. 51, this Court ruled unanimously unconstitutional. Five of the justices hold that as death penalty are constitutional, therefore such decision too would be unconstitutional. Justice CHAO-HUAN LEE and Justice CHIA-SHIN HSU hold that Article 271, Para. 1 is constitutional, therefore such decision too would be unconstitutional. Justice SHU-ZHEN CHEN and Justice FU-SENG HSU are of the view that although relevant regulation remain constitutional, however such decision failed to demonstrate Tang Shang committed an extreme crime, and therefore should be deemed unconstitutional. This Court further holds unanimously that the trial procedure of the disputed judgment was in violation of due process and therefore unconstitutional, which should be vacated and remanded to the High Court.

All other death penalty cases that were decided but not yet executed should cease to be effective from the date hereof, as the majority opinion of this Court has ruled Article 33, Para. 1, imposing death as a penalty as a law, unconstitutional. Such decisions regarding death penalty became non-executable and should be subject to retrial within two months according to Article 51 of the Simulation Constitutional Court Act, so as to avoid further harm of personal freedom by continuous detention. All defendant decided of death penalty should be deemed as under detention, while respective courts can decide to release of further keep them under detention by discretion.

To supplement, the four justices with minor opinion, too, consider all unexecuted decision for death penalty should be reviewed as to whether the crime committed and the relevant procedures confirm with the principle of due process. Hence, all justices agreed unanimously that the Supreme Court should retrial all final judgments of death penalty within two months.

It is so ordered.

The above copy is the same as the original copy of the judgment.

Secretariat/ Secretary General JEN-HSIEN HUANG

Court Clerk CHU-HAN HSU

May 26, 2015

This decision is translated by Wu, Huan-Ting, Lee, Chia-Wen, and Lee, Chi.