TAEDP Report 2010(EN)

A blow to human rights: Taiwan resumes executions The Death Penalty in Taiwan, 2010

Annual report by the Taiwan Alliance to End the Death Penalty March 28, 2011

[TAEDP Report 2010]

Taiwan Alliance to End the Death Penalty, TAEDP ADD: 104 台北市松江路 90 巷 3 號 7 樓 7F., No.3, Ln. 90, Songjiang Rd., Zhongshan Dist., Taipei City 104, Taiwan TEL: +886 (0)2 25218870 / FAX: +886 (0)2 25319373 BLOG: www.taedp.org.tw / E-MAIL: taedp.tw@gmail.com

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Summary Taiwan’s government has over the past decade asserted that it is “gradually” moving toward abolition. Despite this, it has neither offered a timeline for abolition nor proposed concrete steps toward that goal. It continues to carry out executions and does not see a moratorium as necessary to move toward abolition. Thus, after a four-year hiatus, in 2010, Taiwan resumed executions.

On April 30, the Ministry of Justice executed four people. Although the government said the executions were “in line with the law,” civic groups and academics believe they violated Articles 6 and 14 of the ICCPR, which Taiwan incorporated into domestic law in 2009.

On May 28, the Constitutional Court dismissed three applications for judicial review submitted by the TAEDP on behalf of death row inmates. In doing so, the justices avoided reaching a consensus on a controversial issue.

As of the end of 2010, 44 people were at imminent risk of execution. Four persons saw their death sentences finalized during 2010 and four were executed.

We urge the government to take the following steps: 1. Impose a moratorium on executions.

2. Propose concrete steps toward abolition, including a timeline and alternative measures, and seek public support for abolition.

3. Strengthen assistance and protections for victims of crime.

4. Introduce the following legal amendments: (1) A death sentence should require a unanimous decision by the bench. (2) The Supreme Court should hear oral arguments for death penalty cases. (3) The right to counsel should be extended to the final trial. (4) The Amnesty Act should be amended. (5) Other relevant legislation that violates the ICCPR should be amended.

5. Increase the transparency of the death penalty. This includes informing families prior to executions and releasing the time of execution and names of those to be killed. The government should also issue statistics on the death penalty, including demographic information on persons sentenced to death; the prevalence of mental illness; the incidence of prosecutors seeking the death penalty; relevant crimes rates; and other key information.

6. Increase education for judges and prosecutors concerning international human rights law.

7. Strengthen education programs in prisons.

8. Set up a strict system for parole review and rehabilitation programs for persons on parole.

9. Ensure humane treatment of prisoners awaiting execution.

10. Reconsider whether organ donations through executions are ethical.

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Contents Summary Contents

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Introduction

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Government policy since 2000

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The first executions in four years

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Violations of the ICCPR

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Applications for judicial review

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Overview of the death penalty in Taiwan Legal provisions Death sentences and executions Method of execution Profile of inmates sentenced to death Four years without executions, crime rates unaffected

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Conclusion and recommendations

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TABLES

Table 1: Death sentences and executions, 2000-2010 Table 2: Crime rates, 2000-2009

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Appendix: About the TAEDP

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A blow to human rights: Taiwan resumes executions The Death Penalty in Taiwan, 2010 Annual report by the Taiwan Alliance to End the Death Penalty March 28, 20111

Introduction The Taiwan Alliance to End the Death Penalty (TAEDP) was founded in 2003. In 2005 it aided the International Federation for Human Rights (FIDH) in carrying out a survey of the death penalty in Taiwan and publishing its 2006 report, “The Death Penalty in Taiwan: Towards Abolition?” It also assists Amnesty International with its annual report on the death penalty worldwide.

In Taiwan, as in most countries, a majority of the public favor retaining the death penalty.2 At the same time, although a survey by Taiwan’s central research institute, the Academia Sinica, puts support for retention at 76%, support for abolition has risen from 9 percent to 21 percent in the past 10 years of polling.3 We believe that access to transparent information on capital punishment and Taiwan’s death penalty system is key to building support for and eventually achieving abolition. To that aim, the TAEDP is issuing its first annual report on capital punishment in Taiwan and will in future release annual reports each March.

Government policy since 2000 In 2000, Taiwan saw its first democratic transition of government, with the Democratic Progressive Party’s (DPP) candidate Chen Shui-bian winning the presidency. On May 28, 2000, in a meeting with Cardinal Paul Shan Kuo-hsi, who urged Chen to abolish the death penalty, Chen said he agreed “in principle,” but would have to ask the Ministry of Justice to “research the possibility of achieving this.”

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The main author of this report is Lin Hsin-yi, executive director of the Taiwan Alliance to End the Death Penalty. The English translation is by Celia Llopis-Jepsen.

2 The general public perception is that criminals sentenced to life in prison will in reality be released after 10 years. Under a 2006 amendment to the Criminal Code, however, persons sentenced to life in prison may not seek parole until they have served 25 years, at which point parole may or may not be granted.

Compared with other countries, this is a high threshold.

3 Chiu Hei-yuan. “Crime deterrence, the value of life and the death penalty: Public attitudes toward capital punishment in Taiwan,” Taiwanese Journal of Sociology, 2006, 37:133-167.

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A year into the new government’s term, Minister of Justice Chen Ding-nan told a press conference he hoped to abolish the death penalty “within three years.”

In September 2003, the head of Taiwan’s Judicial Yuan (its judicial branch of government), Weng Yueh-sheng, told the legislature that “abolishing the death penalty is part of judicial reform.”

Since then, Taiwan has had a relatively clear policy on ending capital punishment.

Despite these pledges, the courts have continued to hand down death sentences and the government has continued to carry out executions. There have been no active measures to end capital punishment.

Chen Ding-nan not only failed to honor his commitment to scrap the death penalty in three years, he also signed execution orders for more than 30 prisoners during his term.4 On Sept. 8, 2005, his successor, Shih Mao-lin, introduced a policy of “moving gradually toward abolition.”5 He continued to order executions until late 2006.6 In 2008, Taiwan saw another transition of government, with the Chinese Nationalist Party (KMT) winning back the presidency. During the election race, KMT candidate Ma Ying-jeou proposed a human rights policy centered on the UDHR, ICCPR and ICESCR (collectively called the International Bill of Human Rights). Ma proposed “to make Taiwan an international model of human rights by implementing its commitments under the International Bill of Rights within Taiwan.”

In May of 2009, Taiwan ratified the ICCPR and ICESCR. Later that year, the two UN covenants took effect under domestic law when the Act to Implement the ICCPR and ICESCR came into force on Dec. 10 (Human Rights Day).7 When Ma took office, the new minister of justice, Wang Ching-feng, continued her predecessor’s policy of not issuing execution orders. However, in early 2010, a controversy erupted over this and Wang stepped down on March 11. She was replaced by Tseng Yung-fu, who quickly approved four executions. On April 30, 2010, Chang Chun-hong, Hong Chen-yao, Ko Shih-ming and Chang Wen-wei were put to death. This brought an end to more than four years without executions that had spanned two administrations across party lines.

On the whole, Taiwan’s policy since 2000 has been “gradual” abolition, but executions have continued, and the government has not regarded a moratorium as an integral step toward its

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Chen served as minister of justice from May 2000 to January 2005.

This policy statement is available in English and Chinese on the Ministry of Justice website: http://www.moj.gov.tw/ct.asp?xItem=27083&ctNode=28252&mp=001.

6 The last execution order signed by Shih Mao-lin was for Chong De-shu in 2006. The execution order was not carried out, however, and no more executions were carried out under the Chen administration. The last execution carried out under the Chen administration was therefore in December 2005. Chongʼs story is recounted in the booklet “Staving Off the Executioner: Taiwanʼs Unofficial Moratorium,” published by the Legal Aid Foundation and the TAEDP. 7 As Taiwan is not a member of the UN, the Act to Implement the ICCPR and ICESCR was passed to give the covenants legal force within Taiwan.

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professed goal.8 The first executions in four years In February 2010, while Minister of Justice Wang Ching-feng was answering questions in the legislature, Legislator Wang Yu-sheng demanded that she put to death the 44 persons awaiting execution nationwide. A controversy erupted over whether to abolish the death penalty, and Wang Ching-feng was compelled to resign on March 11. Tseng Yung-fu replaced her shortly thereafter.

Between April 21 and April 27, the Ministry of Justice held four public hearings on the death penalty with the goal of “listening to public opinion and working toward consensus.” On April 28, a day after the last hearing, Tseng ordered four executions, which were carried out on April 30.

On May 1, the TAEDP issued a press statement calling the executions reckless and wrongful.9 Family members of the prisoners were not informed in advance of their execution and were thus deprived of a final chance to see their loved ones.

In addition, the prisoners had been given a May 3 deadline to file for judicial review at the Constitutional Court. On the day of the executions, the TAEDP had already received power of attorney from one of the four inmates, Chang Chun-hung, to file the necessary paperwork. By acting before the May 3 deadline, the ministry violated the law.

Three of those executed did not have lawyers or public defenders at their final trials, thus violating the right to due process. This is one of the points that the TAEDP had submitted to the Constitutional Court for judicial review.10 Without waiting for the court’s response, the minister of justice proceeded with the executions. In effect, the minister overstepped his authority and unilaterally decided that the lack of legal representation was constitutional.

Violations of the ICCPR The executions violated a number of stipulations in the ICCPR. When the Act to Implement the ICCPR and ICESCR took effect in 2009, the content of the ICCPR became domestic law.

As mentioned above, three of those executed did not have legal representation at their final trials.

Article 14 of the ICCPR provides for the right to a fair trial, and the UN Human Rights Committee has repeatedly emphasized that countries with the death penalty must ensure that defendants receive effective legal counsel for the full duration of the judicial process.

Article 6, Paragraph 4 of the ICCPR states that “anyone sentenced to death shall have the right to seek pardon or commutation of the sentence. Amnesty, pardon or commutation of the sentence of death may be granted in all cases.” Under Taiwan’s Amnesty Act, meanwhile, “anyone sentenced 8

In 2007, 2008 and 2010, the UN General Assembly passed Resolutions Nos. 62/149, 63/168 and 65/206, calling for a global moratorium on executions.

9 The press statement is available in Chinese on the TAEDP website: http://www.taedp.org.tw/index.php?load=read&id=683 10 The law in question is Article 388 of the Code of Criminal Procedure, which cancels the guarantee to legal representation for criminal trials once they reach the Supreme Court.

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to death shall have the right to apply for a pardon or commutation. However, the Act does not stipulate any procedures for seeking a pardon or commutation and thus in terms of protecting the right of the condemned to apply for these, fails to comply with the ICCPR. In particular, it is crucial that an applicant must not be executed while his or her application for a pardon or commutation is pending. Doing so clearly nullifies any potential decision to grant a pardon or commutation.

In the complaint Chikunova v. Uzbekistan, the UN Human Rights Committee found that Uzbekistan had violated Article 6, Paragraph 4 of the ICCPR by carrying out an execution without responding to the prisoner’s application for amnesty.

On March 29, 2010, the TAEDP aided Taiwan’s 44 death row inmates (including the four executed a month later) in applying to President Ma Ying-jeou for commutations. To date, none of the inmates, their family members, their lawyers or the TAEDP have received any response concerning the applications.

It remains unclear whether Ma has reached decisions on any of the applications, and if so, how he reached those decisions and whether the Ministry of Justice was informed. Or is it possible that the Ministry of Justice decided on Ma’s behalf not to grant commutations to those executed last year? These questions make clear that the current Amnesty Act is inadequate and violates the ICCPR. Since 2000, the administrations of Chen Shui-bian and Ma Ying-jeou have repeatedly vowed to take steps toward abolition. In 2006, Taiwan stopped carrying out executions, and in 2009 it incorporated the ICCPR into domestic law. The executions on April 30, 2010, were a complete about-face.11 Although the Ministry of Justice has repeatedly said that the ICCPR does not require it immediately to abolish capital punishment, international observers believe this argument violates Article 6, Paragraph 6 of the ICCPR12: “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.”

Applications for judicial review In March and April 2010, the TAEDP submitted three applications for judicial review on behalf of death row inmates. These were dismissed on May 28.13 The main points we raised in the applications were as follows: • Article 388 of the Code of Criminal Procedure violates the right to counsel and conflicts 11

At the time of this reportʼs release, Taiwan had executed nine people in less than a year. On March 4, 2011, Minister of Justice Tseng Yung-fu ordered the executions of Chong De-shu, Kuan Chung-yen, Wang Chih-huang, Chuang Tien-chu and Wang Kuo-hua.

12 Lehrfreund, Saul. “The Progressive Development of International Human Rights Standards Restricting the Scope and Application of the Death Penalty Towards its Eventual Abolition,” footnote 13. Presented to a workshop at the Judges and Prosecutors Training Institute in Taipei on Nov. 17, 2009.

13 Constitutional Court Decision No. 1358.

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with ICCPR Article 14 (the right to effective legal counsel for the duration of the judicial process). Article 388 cancels the guarantee to legal counsel for criminal cases once they reach the Supreme Court level.

• Articles 289 and 389 of the Code of Criminal Procedure do not provide separate procedures for presenting arguments and weighing evidence at the sentencing stage. As a result, sentencing is an inscrutable and arbitrary process, even where a potential death sentence calls for the utmost caution and rigor. This violates Article 6 of the ICCPR, which states that “no one shall be arbitrarily deprived of his life.” It further violates safeguards in Taiwan’s own Constitution, including due process, the right to equality, the right to life and the principle of proportionality.

• As the ICCPR now carries at the very least the force of domestic law, the right to apply for a commutation or pardon is a legal right of anyone sentenced to death (as is also stated in the Amnesty Act). As Taiwan does not have set procedures for the application process, this violates the law.

• Decisions Nos. 263, 329, 476 and 512 of the Constitutional Court concerning the death penalty should be altered or supplemented by new decisions in order to reflect the legislative developments and other changes since then.

The TAEDP further asked the Constitutional Court to hold hearings during the course of these judicial reviews and invite the submission of amicus curiae briefs. This would have been a turning point in the discourse on capital punishment, allowing for a profound debate of the issues at stake.

Unfortunately, the Constitutional Court dismissed the applications, thereby declining to declare the death penalty either constitutional or unconstitutional and shirking its responsibility as a guardian of human rights.

Overview of the death penalty in Taiwan (1) Legal provisions As of the end of 2010, Taiwan’s legal codes contained a total of 52 provisions allowing for the death penalty.14 Of these, only 20 involve violent crimes resulting in death. The other 32 involve non-deadly crimes. Since 2006, no crimes carry a mandatory sentence of death.

(2) Death sentences and executions In 2010, seven people were sentenced to death at their first trials, thirty-one were sentenced to

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These provisions are found in the Criminal Code, the Criminal Code of the Armed Forces, the Penal Act of Offenses Against National Currency, the Punishment of Smuggling Act, the Drug Control Act, the Punishment of the Crime of Genocide Act, the Child and Youth Sexual Transaction Prevention Act, the Act Governing the Control and Prohibition of Guns, Cannons, Ammunition, and Knives, the Act Governing the Punishment of Offences Against Military Service, the Irrigation Management Law, and the Civil Aviation Act.

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death at their second trials, and four were sentenced to death at their final trials.15 The total number of people who were sentenced to death for the first time was nine.16 As of the end of 2010, the total number of people sentenced to death (including both ongoing and finalized cases) was 73.

Forty-four of these were at imminent risk of execution, all of whom were male. Four people were executed during 2010.

TABLE 1: DEATH SENTENCES AND EXECUTIONS, 2000-201017 2000 2001 2002 2003 2004 2005 First trial 36 34 28 41 27 26 Second trial 110 107 74 93 94 91 Final trial 22 11 7 6 7 8 Executions 17 10 9 7 3 3

2006 5 71 11 0

2007 6 71 5 0

2008 8 43 3 0

2009 7 35 13 0

2010 7 31 4 4

Under the Drug Control Act, the crimes of “manufacturing, transporting, or selling first-grade narcotics” and “using violence, coercion, deception or other illegal methods to make another person use a first-grade narcotic” are all punishable by death. Since 2002, however, although there have been cases of defendants sentenced to death for these crimes at their first or second trials, as of the end of 2010, none had been sentenced to death by the Supreme Court.

(3) Method of execution According to Article 3 of the Ministry of Justice’s Regulations for Carrying out Executions, executions shall be carried out by gunshot or lethal injection. In practice, however, all executions are carried out by gunshot, with a single gun fired at close range at the inmate’s heart from behind.18 For prisoners who have agreed to donate organs, the gun is aimed at the back of the head.

(4) Profile of inmates sentenced to death There has been ample research abroad investigating the link between the application of the death penalty and disadvantaged minorities or social classes. In Taiwan, however, such research is rare.

A study released by the government’s Research, Development and Evaluation Commission in 1994 was perhaps the most comprehensive to date.19 The study used data for the country’s 48220 executions between the years of 1955 and 1992 and found the following traits to be predominant: those executed were between 18 and 30 years old, their education level was junior high-level, they were manual laborers or were unemployed, and the crime involved was murder.

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Death penalty cases must undergo three trials, the last of which is at the Supreme Court, which either finalizes the sentence or remands the case for retrial at the High Court.

16 It is possible for a defendant to go through two trials within a year (either the first and second trials or the second and final trials).

17 Source: Judicial Yuan website 18 The gun is fired by a bailiff.

19 The study was titled “An investigation of whether to retain or abolish the death penalty.”

20 This figure refers to civilian executions. Most executions during this period were not civilian, as Taiwan was under martial law until 1987.

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This conclusion shows that the death penalty at that time was being used mostly against persons with a low education who were blue-collar workers or unemployed. In order to understand whether this has changed at all, in January 2010 the TAEDP launched a survey with the help of Prison Fellowship Taiwan of the 44 persons awaiting execution at that time. A total of 38 questionnaires were received.

Key findings were similar to the 1994 study: About 70 percent of the inmates had a junior high or elementary school education. Less than 10 percent had attended university. Eighty percent were blue-collar, manual labor workers and just under 10 percent were unemployed.

The TAEDP paid particular attention to whether the inmates had received adequate legal counsel.

It found that few inmates had been able to retain lawyers on their own. A little more than 50 percent had either public defenders or had lawyers assigned by the Legal Aid Foundation. After reading the case files of all 44 of the inmates, the TAEDP found that 27 had not had any legal representation at their final trials.

(5) Four years without executions, crime rates unaffected During the four years without executions, the general crime rate and the rate of violent crime both declined. In 2008 and 2009, general crime and violent crime were at their lowest in a decade.

These figures indicate that public order was at its best in ten years.

Academics have long debated the influence of the death penalty and executions on crime rates. In Taiwan’s case, stopping executions did not have a negative impact on public security.

TABLE 2: CRIME RATES, 2000-200921 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 General crime rate 818.7 808.0 826.9 703.3 781.5 912.6 1004.2 1160.1 1179.2 1135.1 (population)* General crime rate 1976.7 2196.6 2241.0 2192.8 2306.3 2442.2 2246.8 2146.0 1971.7 1672.9 (cases)* Violent crime rate 46.5 64.1 66.3 57.5 56.1 62.9 53.6 41.6 35.3 29.3 (cases)* * ‘General crime rate (population)’ indicates the number of crime suspects per 100,000 people. ‘General crime rate (cases)’ indicates the number of reported crimes per 100,000 people. ‘Violent crime rate (cases)’ indicates the number of reported violent crimes per 100,000 people.22

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Statistics from the National Police Agency website.

Intentional homicide, robbery, kidnapping for ransom, rape, aggravated extortion, and causing severe bodily injury.

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Conclusion and recommendations Although the government has ratified the ICCPR, it has also sped up executions. Looking back at 2010, we see blood and tears. Yet for four years, Taiwan stopped executions and crime rates did not rise. At the same time, through the efforts of civic groups, a dialogue had begun concerning better assistance and safeguards for crime victims as well as alternatives to the death penalty.

Since resuming executions, however, public discussion has focused on little more than “which one we should kill next.� More important questions have been drowned out.

The TAEDP believes that until society has reached a consensus, a moratorium is needed. A five or 10-year moratorium would serve as a period of transition, monitoring and preparation. During this period, the government should set to work on alternative measures, strengthening safeguards for crime victims, and improving prison education programs. It should also increase public dialogue on the death penalty.

The moratorium would give the public a window on society without capital punishment, and allay concerns by allowing the public to see how crime rates are affected. Many countries have used moratoriums as a transition toward abolishing the death penalty. Taiwan should follow the same path.

The TAEDP therefore recommends: 1. Impose a moratorium on executions.

2. During the period of moratorium, propose concrete steps toward abolition, including a timeline and alternative measures, and seek public support for abolition.

3. Strengthen assistance and protections for victims of crime.

4. Introduce the following legal amendments: (1) A death sentence should require a unanimous decision by the bench. (2) The Supreme Court should hear oral arguments for all trials in which the defendant faces the death penalty. (3) The right to counsel should be extended to the Supreme Court for death penalty cases. (4) The Amnesty Act should be amended. (5) Other relevant legislation that violates the ICCPR should be amended.

5. Increase the transparency of the death penalty and executions. This includes informing family members of the inmates prior to their execution, and making public the scheduled date and time of execution and names of those to be executed. At the same time, the competent bodies should issue statistics regularly on the death penalty. This should include the crimes, gender, age and socioeconomic background of persons sentenced to death; the incidence of repeat offenders on death row and prevalence of mental illness or intellectual disability; the incidence of prosecutors seeking the death penalty and of judges handing down death sentences; and relevant crime rates.

6. Invite experts and academics to speak to judges and prosecutors about global developments related to capital punishment. Increase education for judges and prosecutors

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concerning international human rights law.

7. Strengthen education programs in prisons.

8. Set up a strict system for parole review and effective rehabilitation programs for persons on parole.

9. Ensure humane treatment of prisoners awaiting execution.

10. Reconsider whether organ donations secured through executions are ethical.

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Appendix

About the TAEDP The Taiwan Alliance to End the Death Penalty was founded in 2003 by a coalition of NGOs and research institutes. Its key members include the Taiwan Association for Human Rights, the Judicial Reform Foundation, the Fujen University John Paul II Peace Institute, the Taipei Bar Association, the Chang Fo-chuan Center for the Study of Human Rights at Soochow University, Amnesty International Taiwan, and the Green Party. Its board consists of lawyers, academics and activists and meets monthly.

The TAEDP offers legal counsel to death row inmates; researches the application of capital punishment in Taiwan; identifies problems with the death penalty system and seeks to address these; and raises public awareness through film festivals, seminars, forums and publications.

The TAEDP is a member of the World Coalition Against the Death Penalty and the Anti-Death Penalty Asia Network.

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