Introduction to the Constitutional Court of Taiwan’s Death Penalty Judgment

Written by Clarence Chou, Expert Counsellor Environment, Business, Death Penalty Abolition, LAWASIA Human Rights Committee Member.

Introduction to the Constitutional Court of Taiwan’s Death Penalty Judgment (113-Hsien-Pan-8 on September 20th, 2024) 臺灣憲法法庭死刑判決簡介

Background

I. In 2024, there were 37 death row inmates in Taiwan. The NGO, Taiwan Alumni to End the Death Penalty (TAEDP), had been working towards abolition for two decades. In 2022, the Constitutional Court Procedure Act came into force, prompting the filing of a constitutional challenge against the death penalty system by July 4, 2022 under Article 92, Paragraph 2. By that date, the individuals filed petitions for constitutional review, arguing that the existence and execution of the death penalty violated the right to life, the principle of proportionality, and due process protected by the Constitution.

II. On January 25, 2024, the Constitutional Court announced it would hear the case, designating the eldest death row inmate, Wang Hsin-Fu（王信福）, as the lead petitioner, consolidating the cases of the other 36 inmates. The Court outlined the two key issues for deliberation:

A. First, whether the death penalty as a statutory punishment is unconstitutional.
B. Second, if deemed constitutional, whether procedural safeguards should be enhanced or the scope of applicable crimes narrowed; and if deemed unconstitutional, what alternative measures should replace the death penalty.

III. On April 23, 2024, the Court held oral argument. Of the 15 Grand Justices, three recused themselves due to prior involvement in related cases, leaving 12 to deliberate and render a decision.
IV. On September 20, 2024, the Constitutional Court issued Judgment No. 111-Hsien-Pan-8, ruling that while the death penalty itself is constitutional, its application must be limited to cases where the crime’s circumstances are “most serious” and the criminal procedure meets the “strictest” legal standards. The Court also found certain provisions mandating the death penalty for specific crimes to be unconstitutional.

Summary of the Court’s Reasoning

I. Constitutional Protection and Review Standards of the Right to Life

1. Nature of the Right to Life:
   Although Taiwan’s Constitution does not explicitly protect the right to life, this right is considered an inherent human entitlement, forming the basis for realizing other fundamental rights. It should be adequately safeguarded. The Constitution aims to prevent unlawful infringement of this right by the state and obligates the state to protect individuals’ right to life from violations by others.
2. Limitations on the State’s Use of Legal Power:
   When the state legitimately exercises force, such as through military or police actions, there may be instances of loss of life. When such actions comply with legal requirements and due process, they are considered lawful. Furthermore, cases where an individual causes another person’s death in self-defence are generally not treated as intentional killing.
3. Controversies Surrounding Abortion and Euthanasia:
   Whether the law should allow women to terminate pregnancies or individuals to end their lives due to illness raises modern societal and medical issues that require careful consideration. These matters cannot be simply resolved based solely on the right to life. The Court rules that the right to life is not absolutely inviolable.
4. Prohibition of Murder and Criminal Sanctions:
   The state, within the framework of culpability and due legal process, can impose criminal sanctions on acts of intentional killing to uphold social order. Although legislators have some discretion over applicable punishments, the application of the death penalty requires utmost caution due to its irreversible impact in cases of judicial error.
5. Procedural Fairness and the Principle of Rule of Law:
   Any encroachment on life, liberty, and property must adhere to due legal process. State-imposed restrictions on rights should meet the principles of legal reservation, proportionality, and procedural fairness [1]. The legitimacy of these restrictions should be evaluated by considering factors such as the nature of the rights involved, the scope of the infringement, public interest, and the feasibility of alternative options.
6. Highest Safeguards for the Death Penalty:
   As the ultimate penalty that deprives an individual of life, the death penalty must follow the strictest due process to prevent errors and injustice, ensuring the accuracy of such judgments. All processes in death penalty cases, including investigation, trial, and execution, must undergo rigorous scrutiny to align with constitutional protections for the right to life.

II. c Constitutional Review of the Death Penalty as the Most Severe Punishment

1. Legislative Purpose and Societal Recognition of the Death Penalty
   o The death penalty applies to the most serious crimes involving intentional killing, aiming to punish offenders, maintain social order, and serve as a deterrent.
   o Although the death penalty lacks a special preventive function, given Taiwan’s historical and social context, it is still considered to serve a significant public interest and is supported by the majority of the population. Therefore, its legislative purpose is deemed constitutional.

[1] Article 23 of Taiwan’s Constitution provides: 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.

1. Scope of Application and Constitutional Principles
   o The death penalty deprives the defendant of life, terminates their legal personhood and rights, and has irreversible consequences. Therefore, its application should be strictly limited to the most severe crimes.
   o Under the constitutional principle of proportionality between crime and punishment, the death penalty should only be applied to completed intentional homicides that cause severe social harm.
   o While legislators may choose to use the death penalty as a sanction, it should be reserved for exceptional cases and must comply with the strictest legal procedures to prevent misuse.
2. Subjective Requirements for the Death Penalty
   o The death penalty should only be applied in cases where the perpetrator acted with direct intent, generalized intent, or alternative intent and successfully completed the homicide.
   o If the crime was committed with indirect intent (where the perpetrator merely tolerated or accepted the possibility of death), it does not meet the threshold for “the most serious crimes” and should not warrant the death penalty.
   o Therefore, courts must assess the offender’s subjective intent toward the resulting death before imposing the death penalty.
3. Factors to Consider in Sentencing
   o The court should further evaluate the motive, method, and consequences of the crime to determine whether the circumstances are particularly egregious, such as:
    Criminal Motive: Whether the act involved premeditated mass killing or indiscriminate murder with extreme malice.
    Means of Crime: Whether the offender used excessively cruel methods or highly dangerous weapons, such as bombs, biochemical agents, or poison.
    Outcome of the Crime: Whether the offence resulted in multiple deaths or targeted vulnerable individuals such as children, pregnant women, or persons with disabilities.
   o If the case does not meet these standards, the death penalty should not be applied.
4. International Human Rights Standards and Constitutional Interpretation
   o According to Article 6 of the International Covenant on Civil and Political Rights (ICCPR), the death penalty should only be applied to “the most serious crimes,” though the definition remains ambiguous.
   o International human rights bodies have emphasized that this should be strictly interpreted to include only extremely grave crimes involving intentional killing, while excluding cases where death was not directly and intentionally caused.
   o While the ICCPR does not bind Taiwan’s Constitutional Court, it may reference its principles to interpret the law in a manner that enhances human rights protections.
5. Legal and Policy Recommendations
   o Judicial authorities should regularly review the scope of the death penalty and consider alternatives, such as extraordinary life imprisonment without parole or more extended fixed-term imprisonment, as substitutes for capital punishment.
   o Additionally, this ruling only reviews the specific death penalty provisions related to this case. It does not extend to other statutes imposing the death penalty, such as those for drug-related crimes.
6. Conclusion
   o This ruling holds that the death penalty, as the most severe punishment, should only apply to cases of direct, generalized, or alternative intent homicide where the crime is exceptionally serious and meets the strictest legal procedural requirements to align with constitutional protections of the right to life.
   o In sentencing, courts must comprehensively assess the circumstances of the case, ensuring that the death penalty is used only as a last resort, thereby upholding the constitutional principles of culpability and human rights protection.

III. Constitutional Review of Article 348, Paragraph 1 of the Criminal Code (Disputed Provision Five: Mandatory Death Penalty)

1. Provision Content and Distinction
   o The April 21, 1999 amendment to Article 348, Paragraph 1 of the Criminal Code (Disputed Provision Five) mandates the death penalty as the only statutory punishment for qualifying offenses.
   o Its legal elements are identical to those of Disputed Provision Four, both applying to intentional homicide. However, their sentencing outcomes differ:
    Disputed Provision Four: Allows for either the death penalty or life imprisonment (providing sentencing discretion).
    Disputed Provision Five: Mandates the death penalty as the only punishment (eliminating sentencing discretion).
2. Violation of the Constitutional Principle of Culpability
   o According to the reasoning in Item One of the Court’s ruling, the death penalty should be imposed only in cases of direct intent, generalized intent, or alternative intent homicide and only when the circumstances are the most severe.
   o While Disputed Provision Five applies to serious cases of intentional homicide, the court must still individually assess whether the circumstances warrant the death penalty.
   o By mandating the death penalty in all cases without considering the severity of individual circumstances, the provision is excessively harsh and violates the constitutional principle of culpability.
3. Conclusion
   o Automatically imposing the death penalty as the sole punishment without considering whether the crime meets the “most severe circumstances” violates the constitutional protection of the right to life, making it unconstitutional.

IV. Procedural Safeguards for the Application of the Death Penalty

1. Constitutional Protection of the Right to Life and Strict Requirements for Death Penalty Procedures
   • The right to life is protected by the Constitution, and the imposition and execution of the death penalty must comply with the strictest due process to prevent wrongful convictions and miscarriages of justice.
   • Defendants in death penalty cases must be ensured full defence rights throughout the criminal investigation, prosecution, and trial stages.
   • Judges deciding on the death penalty must conduct the most cautious and rigorous deliberation to ensure that the punishment is applied only as a last resort in line with the principle of culpability.
2. Right to Legal Assistance During Investigation and Prosecution
   • Current Issue: While mandatory defence representation is required during the trial phase, suspects in death penalty cases do not have a guaranteed right to a lawyer during the investigation and police interrogation stages. Many defendants lack legal representation during these critical early proceedings.
   • Historical Cases: Taiwan has experienced wrongful death penalty convictions due to procedural flaws in police interrogations and investigations, such as coerced confessions, fabricated crime narratives, and failure to consider exculpatory evidence.
   • Constitutional Standard: Given the irreversibility of the death penalty, suspects in capital cases should have a constitutional right to legal assistance during police interrogations and investigations.
   • Legislative Amendment Requirement by the Court: Authorities must amend the law within two years to ensure that suspects in capital cases have a mandatory right to legal counsel at all stages of the criminal investigation.
3. Mandatory Legal Representation in the Third Instance (Final Appeal)
   • Current Issue: Taiwan’s Criminal Procedure Code does not mandate legal representation for defendants in third-instance (final appeal) cases, leaving many death row defendants without legal assistance.
   • The Constitutional Standard: While third-instance courts focus on legal interpretations rather than fact-finding, death penalty cases require stricter procedural protections than other criminal cases.
   • Legislative Amendment Requirement by the Court: The ruling invalidates the current legal provision, requiring authorities to revise the law within two years to guarantee mandatory legal representation in third-instance courts for capital cases.
4. Mandatory Oral Arguments in Third-Instance Trials
   • Current Issue: The Criminal Procedure Code allows third-instance courts to issue rulings without holding oral arguments, meaning judges can decide on upholding or overturning a death sentence without directly hearing from the defence or prosecution.
   • The Constitutional Standard: Given the irreversible nature of the death penalty, third-instance courts must conduct oral hearings before issuing or affirming a death sentence to ensure thorough and fair deliberation.
   • Legislative Amendment Requirement by the Court: The ruling invalidates the current law, requiring authorities to amend the law within two years to mandate oral arguments in third-instance trials for death penalty cases.
5. Unanimous Decision by Judges for Death Sentences
   • Current Issue: Under Taiwan’s current system, judicial panels can issue death sentences based on a simple majority vote rather than requiring unanimous agreement among the judges.
   • International Standards: Taiwan’s Citizen Judges Act already requires a two-thirds majority vote to impose the death penalty when citizen judges participate in a case.
   • The Constitutional Standard: Given the irreversibility of capital punishment, death penalty cases must require unanimous agreement among judges, ensuring that the decision is made with the highest level of scrutiny.
   • Legislative Amendment Requirement by the Court: The ruling invalidates the current law, requiring authorities to amend the law within two years so that death sentences can only be imposed if all judges unanimously agree.
6. Conclusion
   • This ruling establishes that death penalty cases must comply with the strictest due process protections, including:
   A. Mandatory legal representation during investigations and police interrogations.
   B. Mandatory legal representation in third-instance (final appeal) trials.
   C. Mandatory oral arguments in third-instance courts before imposing or upholding a death sentence.
   D. Unanimous judicial agreement before issuing a death sentence.
   • Authorities must amend the law within two years to comply with constitutional protections of the right to life and due process.

V. Restrictions on the Application of the Death Penalty for Individuals with Mental Disorders or Other Cognitive Impairments

1. Individuals Lacking Full Legal Awareness at the Time of the Crime Cannot Be Sentenced to Death
   • According to the constitutional principle of culpability, criminal punishment must be based on individual responsibility. If a person lacks the ability to recognize the illegality of their actions due to a mental disorder or cognitive impairment, they should not be punished (Article 19, Paragraph 1 of the Criminal Code).
   • Article 19, Paragraph 2 of the Criminal Code (Disputed Provision Eight) allows for mitigation of sentences for individuals with significantly diminished legal awareness but does not require mandatory sentence reduction, leaving discretion to the court.
   • The Constitutional Standard: If an offender’s legal awareness is significantly reduced, their culpability is lower than that of an individual with full legal awareness. Therefore, they should not be subjected to the death penalty, as this would violate the principle of culpability.
   • Legislative Amendment Requirement by the Court: Courts must not impose the death penalty on such defendants, and authorities must amend the law within two years to align with constitutional protections.
2. Individuals Unable to Defend Themselves During Trial Cannot Be Sentenced to Death
   • Current Issue: Some defendants may have had legal awareness at the time of the crime, but due to mental disorders or cognitive impairments, they lack the ability to understand legal proceedings and defend themselves effectively during trial.
   • The Constitutional Standard: If a defendant is unable to reason logically, communicate effectively with their lawyer, or comprehend the legal implications of a death sentence, the fairness and reliability of the trial process are compromised. Sentencing such individuals to death could constitute cruel and inhuman punishment, which is unconstitutional.
   • Legislative Amendment Requirement by the Court: Courts must not impose the death penalty on such defendants, and authorities must amend the law within two years to clearly define sentencing standards for these individuals.
3. Individuals Lacking Execution Competency Cannot Be Executed
   • Current Issue: The Criminal Procedure Code prohibits executing individuals who have lost their sanity, but there is no provision for individuals with mental disorders or cognitive impairments who do not meet the threshold of insanity yet lack the ability to understand the reasoning behind their death sentence and its execution.
   • The Constitutional Standard: The execution of a death sentence must comply with due process and human dignity. If an individual cannot comprehend the rationale behind their execution, enforcing the death penalty would amount to cruel and unconstitutional punishment.
   • Legislative Amendment Requirement by the Court: Authorities must amend the law within two years to ensure that individuals who lack execution competency cannot be executed. Until legal revisions are completed, judicial authorities must comply with this ruling.
4. Conclusion
   • Individuals with significantly diminished legal awareness at the time of the crime cannot be sentenced to death.
   • Individuals unable to effectively defend themselves during trial cannot be sentenced to death.
   • Individuals lacking execution competency cannot be executed.
   • Authorities must amend the law within two years to ensure compliance with constitutional protections of the right to life and due process.