Exceeding the Statute of Limitations: Do Prosecutors Have Consciences?

Exceeding the Statute of Limitations:
Do Prosecutors Have Consciences?
China Times editorial (Taipei, Taiwan, ROC)
A Translation
May 26, 2011

In 1996, a young girl named Hsieh was raped and murdered inside the Air Force Air Combat Command. The Special Investigation Unit, the Taipei District Prosecutor's Office, and the High Military Court Prosecutor's Office, formed an ad hoc group to begin a new investigation. Yesterday the group determined that Chiang Kuo-ching, who was executed by firing squad, was not the actual perpetrator. Instead, a former soldier named Hsu Jung-chou committed the crimes. The group called for a prison sentence of 20 years. It found that Air Force counter-intelligence team officers Ke Chung-ching, Teng Cheng-huan, Li Chi-ren, Ho Chu-yao, Li Shu-chiang, and others, used torture to extract a confession from Chiang Kuo-ching. They abandoned the military prosecutor-led investigations headed by counter-intelligence unit commander Chen Chao-min. Because the suspects "were not prosecuted within the 10 year statute of limitations," they would be punished but not prosecuted. When this news broke, people were astounded.

This was a real world example of "officials covering for each other." These officials condoned the abuse of power and used torture to extract confessions. They conspired to minimize, cover up, and eradicate the commission of a crime. Special Investigation Unit investigators spent a full year on a major case. Yet this is all they have to show for their effort. Serious consideration should be given to prosecuting them for criminal abuse of power. How does the Commander in Chief feel as he watches military prosecutors applying this sort of media spin to the administration of justice? What does he have to say for himself? Does he bear any responsibility?

Consider one suspicion. They knew he was guilty. So why didn't they indict him before the statute of limitations expired? The Control Yuan should investigate. Who delayed prosecution? The prosecution must tell us whether those who delayed prosecution bear criminal liability. Even more puzzling, why is the statute of limitations merely 10 years? It turns out the ad hoc group began by prosecuting the suspect for a misdemeanor that carried a maximum sentence of three years. That was why the statute of limitations ran out. A group of officers was assigned to investigate. It tortured prisoners to extract confessions. It convened a courts martial, convicted, and summarily executed the wrong suspect. It abused governmental authority, and murdered him. Yet all its efforts yielded nothing more than a three year sentence for a misdemeanor? Why shouldn't the Special Investigation Unit and the prosecutor be tried for murder? Why not prosecute them for abuse of power, in accordance with Article 125 of the Criminal Code? Why not prosecute them for torture, in accordance with Article 126 of the Criminal Code? These are all felonies that carry a minimum sentence of seven years. The statute of limitations on them is 20 years. Why not make use of them?

The prosecution's legal rhetoric is esoteric. As a result, most people do not understand it, In any event, those who were tortured were not prosecutors or judges. They lacked special status, According to a 1941 Supreme Court case, these articles do not apply to case officers. Put simply, judges who wrongfully hand down death sentences bear no criminal liability. Prosecutors who wrongfully issue indictments bear no criminal responsibility. Military officers who resort to torture bear no criminal responsibility. No one committed a felony. No one will be prosecuted.

Prosecutors, please use your customary logic when responding to the national outcry. Chiang Kuo-ching was innocent. The government took an innocent man, convicted him, and executed him. Do not talk about how one must pay for murder with one's life. Chiang was not even guilty of a felony. Don't you feel ashamed? Over the years, how often have such legal abuses dogged criminal cases? How often were indictments rooted in pure conjecture? What was this, if not the result of long years of officials covering for each other? Years ago these remarkably efficient conspirators, falsely convicted Chiang Kuo-ching and took his life. Today, these skilled conspirators have successfully evaded responsibility, and enabled major and minor criminals within the military hierarchy to get off scot-free. Does the prosecution have any conscience left to speak of?

Consider a second suspicion. Why wait until Hsu Jung-chou was indicted before admitting that Chiang Kuo-ching was wrongfully executed, and that the military used torture to extract a confession? One man was wrongfully executed. Do they really need to wait until another patsy is paraded before the public before admitting that fact? Did they intentionally delay their prosecution? Could the suspect currently under indictment be yet another patsy? Are they merely using him to avoid conducting a genuine investigation? Couldn't they have indicted Hsu Jung-chou long ago, given the evidence in his case file? Is what was false yesterday true today? Is what was true yesterday false today?

Consider a third suspicion. The last time the case was "solved," the crime was depicted as an outrage to heaven and earth. They sought the death penalty. This time however, they are not demanding the death penalty. Do they have a hidden agenda? Is it because Hsu deserves sympathy? Or is it because the evidence against him is weak? If the evidence is weak, they should not have indicted him in the first place. Random prosecution constitutes prosecutorial misconduct. Are they concerned that seeking the death penalty might highlight the military's wrongful execution of Chiang Kuo-ching? Are they aware that their current indictment may be perceived as absurd and ironic. Is that why they are demanding only a light sentence?

In short, the military personnel in this case may be charged only with misdemeanors. Prosecutors and police investigators may also be charged only with misdemeanors. The public sees that indictments for abuse of authority are merely for show. The only thing for real, is conspirators evading punishment. Ordinary citizens who commit crimes are presumed guilty. They are tortured to extract confessions. Military officials, prosecutors, and police who commit crimes, get off scot-free. Can the rule of law and justice still be found on Taiwan?

Now we understand. The Special Investigation Unit and the prosecutors will never be convicted for abuse of authority. But they know in their heart of hearts, that in many people's minds, they have already been found guilty of two crimes. One, they abused their authority by failing to indict. Two, they abused their authority by torturing Hsu Jung-chou. The logic is simple. Military officers who commit murder are not prosecuted. So why should Hsu Jung-chou be prosecuted?

超過追訴期？檢方刑事正義良心何在
2011-05-26 中國時報

空軍作戰司令部八十五年間發生謝姓女童遭姦殺案，由特偵組、台北地檢署、高等軍事法院檢察署組成的專案小組重啟調查昨日偵結，認定已遭槍決的江國慶並非真凶，而是另一前士兵許榮洲涉性侵殺人，對許具體求刑廿年；同時查出當年空軍反情報隊軍官柯仲慶、鄧震環、李植仁、何祖耀、李書強等人，凌虐江國慶逼供，連同棄軍事檢察官主導偵查於不顧而指揮反情報部隊偵辦的司令陳肇敏，因所犯罪嫌「超過十年追訴期」，均處分不起訴。消息傳出令人驚駭！

這真是一幕活生生的官官相護，縱容公權力濫權刑求殺人，再聯手找理由大事化小、小事化無，脫罪至零的官場現形記。特偵組耗時一年的重大案件辦案績效僅止於此，有無濫權不追訴的刑責，真值得追究；三軍統帥看到軍方檢方如此詮釋正義不知做何感想？有無話語可說？有無責任要負？

疑點之一，為何明知有罪，卻說罪嫌已逾追訴期而不起訴？監察院應該追問，是誰耽誤了追訴期？檢方應該回答：耽誤了追訴期，有無刑責？更令人費解的是，為何追訴期只有十年？原來專案小組追究的罪名都是最重本刑三年未滿的輕罪，所以十年就到期了！一群軍官，奉命偵查犯罪，凌虐人犯刑求逼供，然後軍事審判草率判罪，迅予槍決，手握公權力接力聯手殺人，卻只是三年以下的輕罪？特偵組以降的檢方，為什麼不試著追究殺人罪？為什麼不追究濫權追訴處罰罪（刑法一二五條）？為什麼不追究凌虐人犯罪（刑法一二六條），這些可都是至少七年的重罪，追訴權時效是廿年，為什麼不用？

檢方的法律說詞深奧，讓一般人聽不懂，總之就是刑求者不是檢察官或法官，他們不具有身分關係，根據民國三十年代的最高法院判例，這些條文都不適用於本案人員。簡單地說，亂判死罪的法官不會有刑責，濫為起訴的檢察官不會有刑責，刑求凌虐的軍官不會有刑責，沒有一個人犯下重罪，也沒有一個人被起訴。

檢方人員，請用你們一貫的刑事正義邏輯回答國人，無辜的江國慶被公權力從無罪判有罪活活弄死了，不要說殺人償命了，連重罪都算不上，你們不會感到汗顏嗎？多年以來，刑法中的濫權訴追罪曾經用過幾次？成了純粹的擺設，不就是司法機關多年構築的堅強官官相護防禦工事所造成的現象？當年效率驚人的共犯結構，用假定有罪枉送了江國慶的無辜性命，今日熟練無比的共犯卸責結構又成功地讓軍方一干大小罪犯悉數逍遙法外，檢方還有刑事正義良心可言嗎？

疑點之二，為何要等到起訴許榮洲時才承認江國慶是冤死，軍方有刑求呢？冤死了一個，一定要等另一個可被指為真凶的替死鬼出場，才能承認前案是刑求起訴、錯判錯殺嗎？此中沒有故意耽誤追訴期的用心在內嗎？被起訴的會不會又是一個墊背的倒楣鬼，用以迴避辦案不力？許榮洲案卷中的證據不早就可以起訴了嗎？是昨非今是，還是昨是今非呢？

疑點之三，是前次破案時，將犯罪情節說得人神共憤，以死刑作收，這次卻未求處死刑，有無隱情？真是許某其情可憫，還是因為罪證薄弱？罪證薄弱就不該起訴，隨便起訴求刑不是濫權追訴嗎？還是擔心求處死刑適足以突顯軍方一干罪犯害死了江國慶卻連起訴也不必的荒謬與諷刺，所以就輕輕求刑了？

總之，以本案軍方人員的罪狀而言，尚只算是輕罪，爾後檢警辦案如法炮製，不也同是輕罪？國人可以看清楚了，濫權追訴罪是假的立法，共犯卸責結構才是真的！庶民犯罪，假設有罪，刑求伺候；檢警軍方犯罪，必然卸責有方。台灣，還有可恃的法治正義嗎？

特偵組啊，我們懂了，濫權追訴其實是永遠不會被起訴定罪的！你們可懂，於此同時，在許多人心中，你們已有兩罪被起訴了：濫權不追訴刑求罪與濫權追訴許榮洲！道理很簡單，殺人的軍方罪犯可以不受追訴，許榮洲為什麼要被追訴呢？