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(釋字第 653 號 )      友善列印PRINT  
Interpretation
J.Y.
Interpretation
NO.653 
Date 2008/12/26
Issue Whether article 6 of the Detention Act and article 14 of its Enforcement Rules denying a detainee opportunity to litigate in court for judicial remedies are unconstitutional?
Holding Article 6 of the Detention Act and article 14, paragraph 1, of the Enforcement Rules for the same Act denying a detainee opportunity to litigate in court for judicial remedies is contradictory to the intent of article 16 of the Constitution guaranteeing people the right of instituting legal proceedings. The government shall study and revise the Detention Act and relevant regulations within two years from the date of publication of this Interpretation to provide the detainee a timely, effective remedy in accordance with the intention of this Interpretation.
Reasoning Article 16 of the Constitution guaranteeing people the right of instituting legal proceedings means that a person shall have right to litigate in court for legal remedies when his personal right is infringed (in reference to Interpretations No.418 of this Court). Based on the principle - where there is a right, there is a remedy, when a person’s right is infringed, the state shall provide such a person an opportunity to institute legal proceedings in court, to request a fair trial by due process of law, and to obtain timely and effective remedies. This is the core substance safeguarded by the right of action (in reference to Interpretations No. 396 and No. 574 of this Court), which shall not be deprived of by reason of the status of a detainee (in reference to Interpretations No. 243, No. 266, No. 298, No. 323, No. 382, No. 430, No. 462 of this Court). When weighing factors such as type and nature of cases, policy and purposes of litigation, effective distribution of judicial resources, for enacting laws to impose limitation on the tier of courts for appeal, procedures, and relevant requirements to be followed in seeking remedy through lawsuit or authorizing a government agency to issue administrative orders for the same purpose, the Legislature should do in compliance with the requirements of article 23 of the Constitution so as not to contradict the intent contemplated by the Constitution in guaranteeing people’s right to sue. (in reference to Interpretations No. 160, No. 378, No. 393, No. 418, No. 442, No. 448, No. 466, No. 512, No. 574, No. 629, No. 639).

Detention is a compulsory sanction imposing restriction on personal freedom of criminal defendants and putting them in custody at a specific place. The purpose of this preservative procedure is to ensure smooth continuance of legal proceedings and to realize the State’s penal power. Detaining a criminal defendant and restricting his personal freedom to the extent that he is isolated from his family, society, and occupational life constitutes not only serious psychological impact, but also detrimental effect to the detainee on his personal rights of reputation and credibility. It is a maximum sanction against personal freedom. Therefore, it should be done prudently as the last resort of preservative proceeding. Unless the court is convinced that all legal requirements have been met, and that it is necessary to do so, detention shall not be taken lightly (in reference to Interpretation No. 392). After a criminal defendant is taken into detention, the detainee’s personal freedom as well as any constitutional rights based on his personal freedom may be restricted to the extent necessary for achieving the purposes of detention and maintaining order at the place of detention. However, beyond the scope of this restriction, based on the principle of presumption of innocence, the detainee’s constitutional protection is basically no difference from others. Therefore, if any decision made on a detainee by the detaining authority involves constitutionally protected rights, it must conform to Article 23 of the Constitution. If the detainee believes that the adverse decision made by the detaining authority has exceeded the scope necessary for achieving the purpose of detention or for maintaining order at the place of detention, thereby unlawfully jeopardizing his constitutionally protected rights, he shall be permitted to bring an action in court for remedies so that the intention of Article 16 of the Constitution guaranteeing people right of instituting legal proceedings will not be violated.

Article 6, paragraph 1, of the Detention Act prescribes: “A criminal defendant who is being treated inappropriately in the detention house may complain to a judge, prosecutor, or inspector”. Paragraph 2 of the same article prescribes: “The judge, prosecutor, or inspector receiving such a complaint shall report to the Chief Judge of the court or the Chief Prosecutor immediately”. Article 14, paragraph1, of the Enforcement Rules for the same Act also prescribes: “A complaint brought by a defendant who disagrees with the disciplinary action taken by the detention house shall be dealt with in pursuance of the provisions set forth below: 1. A defendant who disagrees with the disciplinary action taken by the detention house may submit an oral or written complaint within ten days of the disciplinary action. An oral complaint shall be entered in a book of complaints by the officer in charge of the detention house, with details of fact noted in the book. A written complaint shall state the name of the complainant, crime of which he is suspected, and the crime charged, fact and date of the disciplinary action, reason for contention with the disciplinary action, and it must be signed, sealed, or fingerprinted, with the date of complaining. 2. An anonymous complaint shall not be entertained. 3. The officer taking the original disciplinary action shall cancel it and take another appropriate action if he finds the complaint well-grounded. If the officer finds the complaint is not supported by a good cause, he shall report it to his supervisory authority. 4. If the supervisory authority finds defendant’s complaint is supported by a good cause, the supervisory authority may order suspension, revocation, or change of the original disciplinary action. If the supervisory authority finds no good cause exist, it shall notify the defendant accordingly. 5. An inspector who has received a complaint may conduct necessary investigation and report the results to the authority which he works for. Except it is deemed necessary by the inspector, no officers of detention house shall be present at the scene of investigation. 6. The detention house shll not exercise discrimination or punish a defendant for his bringing a complaint. 7. The supervisory authority shall have the final say in the case of a defendant’s complaint.” The abovementioned provisions constitute a system of complaint designed by the Legislature and the competent administrative agency to cope with cases of complaint brought by a detainee who disagrees with the treatment or disciplinary action taken by a detention house. The system provides the detaining authority an opportunity of self-reflection and review of its actions for the purpose of correction and also provides a timely remedy for the detainee. Although the scheme of design was within the scope of legislative power, yet it may not deprive a defendant of the right to institute legal proceedings in court for remedies.

Article 6 of the Detention Act was enacted in 1946. Subsequent revisions had been made only to change the titles of the officers handling complaints. While article 14, paragraph 1, of the Enforcement Rules for the Detention Act was established in 1976, subsequent revisions thereof had made no change to the text of said article. In view of the circumstances surrounding original legislation, it was thought that the detainee and detention house were in a special power relationship. If a detainee disagreed with the treatment applied or disciplinary action taken by the detention house, institution of a complaint would be his sole remedy. The detainee did not enjoy a right to institute legal proceedings in court for judicial remedies. Based on such a general understanding, the legal profession always thought that a detainee disagreeing with the treatment applied or disciplinary action taken by the detention house could only resort to the filing of a complaint in accordance with the abovementioned provisions, with no further right to file a suit with the court for remedies. However, the nature of complaint is to provide a means for internal review and correction of the agency. It is not tantamount to judicial trial by filing with the court an action for remedies, and certainly can not be deemed to replace totally the judicial system under which the detainee may apply to the court for remedy. Therefore, the abovementioned provisions disallowing detainees to litigate in courts is contradictory to the intent of Article 16 of the Constitution guaranteeing people the right of instituting legal proceedings in court.

Whether a detainee who disagrees with the treatment or disciplinary action of detention house and is entitled to institute legal proceedings for jucidical remedy should opt for a criminal procedure, an administrative procedure, or a special procedure, he will have to take into consideration many factors such as the nature of the matter in dispute and its relation with the criminal action in which he is involved, the length of the period of detention, timely and effective protection of his rights, the organization and personnel assignment of the court. The design of the procedures and system in relation with such factors require a certain period of time before a sound planning can be made. However, to protect the detainee’s right of action, the government should review and revise the Detention Act and its related laws and regulations and should establish appropriate rules to provide detainees a timely and effective remedy in accordance with the essence of this Interpretation, no later than two years from the date of publication of this Interpretation.

It is hereby pointed out incidentally that, although the system of complaint provided in Article 6 of the Detention Act and Article 14, paragraph 1, of the Enforcement Rules for the same Act does is functional, the provisions regarding its nature, organization, procedure, and connections between each other, etc. are not clear. When reviewing and revising the abovementioned judicial remedy system, the government should also look into issues regarding soundness of the system of complaint, relationship between complaint and the institution of judicial remedy, etc.

Translated by Prof. Huai-Ching Tsai.
Opinion
(Files)
Chinese only
 

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