The Impact of Interpretation 665 on Felony Offenses

The Impact of Interpretation 665 on Felony Offenses
United Daily News editorial (Taipei, Taiwan, ROC)
A Translation
October 22, 2009

Chen Shui-bian petitioned for a constitutional interpretation. The Grand Justices responded with Constitutional Interpretation 665. Its most controversial aspect is the "felony detention" provision. A majority of the Grand Justices ruled that "legislating from the bench" was constitutional, but they added a separate clause. The logic of the opinion was flawed, but at the practical level, the public let out a collective sigh of relief.
The provisions of Article 1 of the Code of Criminal Procedure outlines the conditions for the detention of suspects. The law is quite clear. It can be divided into several parts. One: The defendant is questioned by a judge, who decides whether sufficient suspicion exists. Two: The judge asks whether failure to detain the person will make prosecution or trial impossible, therefore whether detention is required. Three: The judge asks whether the suspect is a flight risk, whether there reason to believe the suspect is a flight risk, whether there is reason to believe the suspect will destroy evidence, or engage in a conspiracy to commit perjury, and whether the crime is punishable by death, a life sentence, or a five year minimum sentence.

According to these provisions if a person is "under a high degree of suspicion, or requires detention, or there is reason to believe the suspect may destroy evidence or engage in a conspiracy to commit perjury," the judge may order the person detained. If the person is "under a high degree of suspicion, requires detention, is charged with a crime punishable by death, a life sentence, or a five year minimum sentence," the judge may order the person detained. This is the origin of the term "felony detention."

Clearly the term "felony detention" is likely to lead to misunderstandings. It is likely to be misundertood. People are likely to conclude that once one is suspected of a felony, one may then be detained, without considering other factors. But under current legal provisions, this is clearly not the case. As mentioned earlier, judges must also ask whether the supect is "under a high degree of suspicion," or "requires detention." Moreover, the law requires the judge to personally question the defendant before arriving at a decision. The judge must personally examine the case, listen to the suspect's words, observe the suspect's behavior, examine the prosecution's evidence, and only then arrive at a judgment. The judge's ruling must reflect the strength of the prosecution's evidence. What qualifies as "high degree of suspicion" or "requires detention?" That depends on whether the defendant might repeat the crime or threaten witnesses.

News reports over the past tell of many judges mistakenly releasing murderers, serial rapists, and armed robbers. This was the result of judge's faulty judgment while considering these conditions. Judges are human beings. Human beings will invariably be deceived or blinded by their experience, their knowledge, or the defendant's guile. When such mistakes occur, everyone denounces the judges for releasing suspects willy nilly. No one asks whether felony detention is constitutional.

Chen Shui-bian and those riding to his rescue have made an issue of felony detention. They have cleverly focused attention on the easily misunderstood term "felony custody." They have forced the Grand Justices to waste time repeatedly explaining the meaning of the term, and explaining how different judges hold different opinions on the matter. The Grand Justices ruled that the so-called "felony detention" law was constitutional. but added a separate clause, namely the aforementioned "high degree of suspicion, requires detention, death penalty, life sentence, or minimum five year sentence" clause. They also required "reason to believe the suspect was a flight risk, that the suspect is under a high degree of suspicion, requires detention, or has committed a crime punishable by death, a life sentence, or a minimum five year sentence." By doing what they did, the Grand Justices were of course "legislating from the bench." But their intention was to reduce controversy over whether the felony detention law should be eliminated. Their decision was a compromise to ensure that the law would be enforced with greater care.

The product of such compromises in legal logic can never be perfect. One dissenting judge said the law links different concepts such as "felony," "flight risk," and "conspiracy to commit perjury." Today's interpretation includes such language as "reason to believe the suspect is a flight risk" in a law pertaining to felonies. Doesn't this amount to conceptual confusion? Doesn't this suggest that the felony detention law has no basis in law, and shouldn't exist? Otherwise, why the need to add flight risk and conspiracy to commit perjury as justifications? Furthermore, the new clause requires "reason to believe the suspect is a flight risk and may conspire to commit perjury." Compare this to the clause, "evidence of a flight risk and conspiracy to commit perjury." Doesn't this amount to regression on human rights? Logically the dissenters' arguments hold water. But the Grand Justices' conclusion was that the "felony" clause was a compromise closer to society's expectations. The system has worked for so many years. Just because Chen Shui-bian is challenging it, why must his challenge be suddenly touted as a major human rights case?

Dissenters also raised the issue of foreign felony detention laws that cited case law. By contrast our own laws throw in the kitchen sink, citing the death penalty, life sentences, and minimum five year sentences. We can of course change the law. But asking the Grand Justices to amend the law is going too far. The Grand Justices' answer can be summarized in one sentence: The felony detention law must not be eliminated!

六六五號解釋對重罪羈押的見解
【聯合報╱社論】
2009.10.22 04:18 am

陳水扁聲請釋憲，大法官所作第六六五號解釋，爭議最大者就是所謂「重罪羈押」規定。大法官多數意見通過的是「大法官造法」式的結論：認定合憲，但加上了現行法律所無的條件。解釋邏輯並不完美，不過在實務認知上卻使各界鬆了一口氣。

刑事訴訟法第一百零一條規定羈押被告的條件，法律條文的構造本來就很清楚，可概分為幾部分：第一，被告經法官訊問後，認為其犯罪嫌疑重大。第二，不羈押顯難進行追訴審判或執行（即有羈押之必要）。第三，有以下三種情形之一：逃亡或有事實足認有逃亡之虞；有事實足認有滅證串證之虞；所犯為死刑、無期徒刑或最輕本刑為五年以上有期徒刑者。

依此規定，則若某人「犯嫌重大、有羈押之必要、有事實足認有滅證串證之虞」，固可由法官決定羈押；而某人「犯嫌重大、有羈押之必要、所犯為死刑、無期徒刑或最輕本刑為五年以上有期徒刑者」，亦可由法官決定羈押。這就是所謂「重罪羈押」一詞的由來。

「重罪羈押」一詞顯然容易造成誤解，被錯認是只要涉犯重罪，就可以羈押，不必計慮其他。然而，現行法律的規定卻明明不是這樣。如前所述，在重罪以外，法官還要考慮「犯嫌重大」、「有羈押之必要」這兩個條件才行。而且，這兩個條件，法律都要求法官必須在親自訊問被告後，才能作決定；亦即須由法官以直接審理，察言觀色，並審視檢方證據之後，再作出判斷。什麼是「犯嫌重大」？「有羈押之必要」？前者當與檢方證據在形式上判斷是否犯罪之強弱有關，後者則如被告可能再度犯案或威脅證人等等。

過去新聞報導不少法官誤放了殺人嫌犯、性侵慣犯、擁槍搶嫌等等案件，其實都是由於法官在考慮這兩個條件時，判斷失誤所致。然而，法官是人，是人就會受到經驗、知識、被告狡飾等限制或蒙蔽，因而發生失誤；但當發生此類事件時，大家都會罵法官亂放人，卻無人指責什麼「重罪羈押」違憲。

如今陳水扁和聲援者製造這個話題，很技巧地把焦點置於易生誤解的「重罪羈押」一詞上，結果勞動大法官費盡唇舌來解釋，還有許多不同意見。大法官雖然認定所謂「重罪羈押」合憲，卻加上了現行法律之外的條件；也就是在前述「犯嫌重大、有羈押之必要、所犯為死刑、無期徒刑或最輕本刑為五年以上有期徒刑者」之外，還要求加上「有相當理由認為有逃亡滅證串證之虞」。如此一來，大法官當然是在「造法」；但究其本意，大法官是在考慮重罪羈押不可廢的前提下，為降低批評，提高實務運作上的謹慎程度，而作出的妥協決定。

然而，這種妥協產物在法律邏輯上是不可能完美的。本釋憲案中有一位持反對意見的大法官說，該法律條文明明「重罪」和「虞逃」、「串證」等是並列的規定、不同的概念；如今的解釋文卻在「重罪」條款上，創造出「有相當理由認為有逃亡滅證串證之虞」的新條件，豈不是概念混淆？豈不是更足以證明重罪羈押本身不能成立、不該存在，否則豈須加上虞逃、串證來護航？再者，重罪羈押的新條件所需的「有相當理由認為有逃亡滅證串證之虞」，比起「有事實足認虞逃串證」來得寬鬆，豈不是人權倒退？從邏輯上講，反對者言之成理；但大法官結論以「重罪」加上新條件作為妥協，應該是更貼近社會實情的辦法。否則，這項制度運作了這麼多年，何以要待陳水扁抗爭，才忽而被說成了人權大弊端？

反對者另外提出國外重罪羈押，採取列舉規定，不像我國採死刑、無期徒刑或最低本刑五年以上有期徒刑的概括規定，過於寬泛云云。這當然可以考慮改變，但涉及修法的問題；若要大法官來解決，那造法的腳步就未免走太遠了。總之，大法官給的答案可濃縮為一句話：重罪羈押原則上不可廢！