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No justice for
wrongfully executed
By Wu Ching-chin 吳景欽
In October last year, the Northern Military District Court ruled that more than
NT$100 million (US$3.38 million) in compensation be paid to the family of airman
Chiang Kuo-ching (江國慶), who was wrongfully executed in 1997. However, former
minister of national defense Chen Chao-min (陳肇敏) and five others implicated in
Chiang’s wrongful execution refused to pay.
The Ministry of National Defense quickly responded by suing them for
reimbursement through the Taipei District Court’s civil division. This action
can be seen as one more step toward obtaining restitution for the airman. Up
until now, however, no criminal prosecution has been brought against Chen and
the other five people implicated, and as a result many people are questioning
whether justice is being served.
Article 34 paragraph 2 of the Criminal Compensation Act (刑事補償法) states that
after paying compensation for an injustice in a criminal case, the National
Treasury Agency can seek reimbursement from the civil servants who caused the
wrongful conviction. However, according to Article 2 paragraph 3 of the State
Compensation Act (國家賠償法) the state can only claim reimbursement from civil
servants when they have acted with intent or through gross negligence.
Furthermore, according to Article 13 of the State Compensation Act, if the
government employees in question are trial judges or prosecutors, the state can
only seek reimbursement from them if they have committed a crime while
fulfilling their duties, such as during the conduct of a trial or prosecution.
On this basis, there are clearly obstacles to bringing criminal charges against
the military prosecutors and judges involved in this case, never mind convicting
them, so there must also be legal obstacles to obtaining reimbursement from
them.
However, Chen and the counterintelligence personnel who interrogated Chiang are
the ones who bear the heaviest responsibility for his wrongful conviction and
execution, and they are not judges or prosecutors, so even though they have not
been indicted or convicted, the state does have a right to seek reimbursement
from them as long as it can prove that they were grossly negligent.
Looking at the instructions and orders that Chen issued in his eagerness to
solve and take credit for the case, and knowing that the counterintelligence
personnel employed torture in the course of the interrogation, leaves it clear
that their actions went beyond gross negligence and into the realm of intent.
However, because the people implicated in this case have not admitted to any
wrongdoing, the ministry has to pursue its claim through legal action. Since
civil litigation is mainly conducted by the parties involved, the plaintiff has
to come up with evidence to show that the defendant acted with intent or out of
gross negligence. The problem is that intentions are hidden in the mind of the
accused and are therefore often hard to demonstrate.
Furthermore, the amount of compensation to be paid in this case is huge, so it
is sure to become mired once more in a nightmare of long, drawn-out legal
battles. That means that compensation sought via this route will not be achieved
for a long time, if ever.
If criminal proceedings cannot be brought against the accused for a long time or
at all, and the case ends with a decision not to prosecute, then the accused
would probably have even more reason to argue that they did not act with intent
or in a grossly negligent way, and that would make the road to payment of
compensation even longer. For this reason, instigating a criminal prosecution
against Chen and the five others is the only way to bring about restitution for
the victim.
Last year, the Taipei District Prosecutors’ Office made a ruling not to indict
the men implicated in Chiang’s unlawful execution. The grounds it gave for the
ruling were that of insufficient evidence and that the statute of limitations
had expired.
After further deliberation, the Taiwan High Prosecutors’ Office remanded the
case for continued investigation, offering a glimmer of hope that justice would
be served. The questionable point about this is that the usual reason given for
having to remand a case is that the process of gathering evidence has not been
completed.
However, in this particular case, all of the investigative work has been
performed by the Special Investigation Division (SID) of the Supreme
Prosecutors’ Office, and it can be seen from the detailed account of what
happened given in the reasoning attached to the ruling not to prosecute that
prosecutors have long been fully aware of all the facts concerning the unlawful
and irregular conduct of the persons involved. In other words, the prosecutors
had completed their investigations.
The facts having been established, two points of the case remain in dispute. The
first is whether military prosecutors and judges should be held criminally
responsible for abusing their authority in arresting, interrogating or
prosecuting a person resulting in that person’s death, as defined in Article 125
paragraph 2 of the Criminal Code.
The second question is whether Chen, the counterintelligence personnel and other
civil servants who investigated the case without having the authority to do so
can be treated as non-acting participants in homicide by joint venture. If such
a serious criminal charge were applicable, then there would be no statute of
limitations, and that would mean the accused could still be indicted.
Since all the facts of the case have already been established, the only thing
under dispute is which legal clauses apply to this case. In view of this, the
Taiwan High Prosecutors’ Office should not have remanded the case to begin with.
Instead, it should have directly ordered the Taipei District Prosecutors’ Office
to initiate a prosecution in accordance with Article 258 Clause 2 of the Code of
Criminal Procedure (刑事訴訟法). Unfortunately the Taiwan High Prosecutors’ Office
failed to do this.
Despite the wealth of evidence available, it is still hard to say whether the
Taipei District Prosecutors’ Office will set things aright. Notably, while the
reasoning attached to the ruling not to prosecute was written by the Taipei
District Prosecutors’ Office, it was acting in accordance with the wishes of the
SID, so the prosecutors are now bound to be in a quandary as to whose
instructions they should follow. This might be why, more than 270 days after the
Taiwan High Prosecutors’ Office remanded the case, the Taipei District
Prosecutors’ Office is still taking a wait-and-see attitude.
Whereas the process that led to the execution of a young man all those years ago
was hurried and reckless, the quest now underway to make those who brought about
his wrongful death legally responsible for their actions is painfully slow and
littered with obstacles.
If the Taipei District Prosecutors’ Office once more rules not to prosecute Chen
and the others, people will be left doubting more than ever the notion that the
judiciary is there to ensure that justice is done.
Wu Ching-chin is an assistant professor in the Department of Financial and
Economic Law at Aletheia University.
Translated by Drew Cameron and Julian Clegg
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