PRESS RELEASE: Constitutional Court sets Taiwan on an irrevocable path to abolishing the death penalty

Today, the Constitutional Court of Taiwan delivered a judgment restricting the use of the death penalty, ruling that Taiwan’s current use of the punishment violates due process rights guaranteed under the Constitution.

Whilst it is disappointing that the court did not abolish the death penalty in its entirety, today’s judgment strengthens defendants’ rights to a fair trial and will ensure fewer death sentences are imposed.

Longtime Partner of the Death Penalty Project Brings Constitutional Challenge

The challenge was brought by the Taiwan Alliance to End the Death Penalty (TAEDP), on behalf of the 37 individuals – 36 men and one woman – who are on death row.  More than half of the people on death row are aged 51 and above. At least six people have spent more than 25 years facing the agonising threat of execution.

Human Rights Intervention in the Proceedings

Given the constitutional importance of the case, the National Human Rights Commission of Taiwan (NHRC) intervened in the proceedings. NHRC are the human rights watchdog in Taiwan and have the right to make public interest submissions in any case of constitutional importance.

The Death Penalty Project was invited by NHRC to provide legal analysis and expert evidence to support TAEDP’s challenge to the legality of capital punishment. Relying on expert evidence of two prestigious academics, Professor Carolyn Hoyle from the University of Oxford and Professor Jeffrey Fagan from Columbia University, we argued that the death penalty has no significant deterrent effect, rendering it arbitrary, irrational, disproportionate and contrary to the rule of law. We submitted to the court that Taiwan’s use of the death penalty fails to uphold the fundamental rights provided for under its Constitution and its international obligations.

The Decision of the Court

Today’s judgment means the State can only seek the death penalty in a narrow category of very serious cases. Fewer people will now face the threat of execution in Taiwan.

The rights to life, equal treatment and the protection of the rule of law are enshrined in Taiwan’s Constitution. In 2009, Taiwan took the progressive step of incorporating the International Covenant on Civil and Political Rights (ICCPR) into domestic law. The ICCPR requires states parties to be on an “irrevocable path” towards the eradication of capital punishment.

The Constitutional Court held that whilst sentences of death are lawful in Taiwan, the country’s current use of the death penalty was unconstitutional. Looking to Taiwan’s obligations under the ICCPR, the judgment requires significant procedural safeguards in capital trials. The court held that the death penalty could only be imposed in the most serious cases of intentional homicide; that mentally ill defendants could not be sentenced to death or executed; that legal representation must be provided to defendants at both trial and on appeal; and that capital sentences must be handed down unanimously, by trial courts and courts of appeal.

In cases where a death sentence has been imposed, the Constitutional Court confirmed that the Prosecutor General can file an ‘extraordinary appeal’ where there are concerns that these standards have not been upheld. The court has also ordered a reform of the Criminal Procedure Code within two years, which will effectively involve an overhaul of the procedure used in capital cases.

This is a welcome next step towards stronger human right protections in Taiwan. We are hopeful that progress towards abolition will continue in the region, and that countries such as Japan and South Korea will re-evaluate their use of the death penalty.

A missed opportunity?

Despite the wide-ranging limitations imposed on the use of the death penalty in today’s judgment, the Constitutional Court refused to strike down the penalty completely. We consider that this was a missed opportunity and an unnecessarily restrictive interpretation of the Constitution.

In our submissions to the court, we argued that the only way the death penalty can be found to be lawful is if there is evidence to show that the death penalty confers a social good, maintains public order or has a deterrent effect on crime. Relying on the expert evidence of Professor Fagan, we showed that death sentences and executions have no deterrent effect on serious crime compared to other punishments. It was open to the Government to provide evidence to demonstrate to the court that the death penalty had a deterrent effect on serious crime, but no such evidence was presented.

Instead of striking down the death penalty, the court has taken significant steps to bring the law into conformity with international human rights standards. However, Taiwan now faces the daunting prospect of a root-and-branch review of their Criminal Procedure Code to ensure that the court’s judgment is properly implemented. It would have been more effective to abolish the death penalty, forever removing the possibility of arbitrary and wrongful executions.

What’s next for the people on death row?

Along with the review of legislation ordered by the court and the prospect of those on death row having their cases reviewed, it is unlikely Taiwan will resume executions in the near future. However, those on death row remain in a perilous position.

As a result of today’s judgment, the 36 men and one woman on death row should have their cases re-opened by the Prosecutor General, as a matter of urgency.  Conditions on death row have been described, in a report by TAEDP, as “like torture”.

In 2020, TAEDP began research in coordination with the Executive Yuan Human Rights Protection and Promotion Committee and the Ministry of Justice, in which they interviewed all 37 people on death row and others facing long-term detention, gathering data for a Preliminary Study on the Conditions of Death Row Prisoners. The report describes extremely cramped conditions, with two people occupying a space of about 4.3 square metres, in stifling and often dangerous heat. The psychological toll of facing execution is exacerbated by a rigid routine, poor nutrition and a lack of outdoor and educational activities.

In a recent interview with the University of Oxford’s Death Penalty Research Unit (DPRU), Essen Lee, a Taiwanese lawyer with experience of representing defendants in capital cases, observed that most people facing a death sentence come from deprived socio-economic backgrounds, have received a limited education, earn less than the minimum wage and face struggles with addiction and substance abuse.

The stories of those people on death row have been compiled by TAEDP here. Many, including the one woman on death row, Lin Yu-ju (林于如), have histories of mental illness and/or intellectual disabilities.

Saul Lehrfreund, Co-Executive Director of The Death Penalty Project, says:

“We are disappointed that the court did not take this historic opportunity to abolish the death penalty. The onus now falls on legislators to undertake reforms to make the administration of capital punishment as fair and humane as possible. In implementing the reforms identified by the Constitutional Court, Taiwan may discover that it is impossible to design a system of capital punishment that does not violate human rights. The only effective way will be for legislators and the new President to take the principled step to completely abolish the death penalty. We will continue to work closely with TAEDP in their efforts towards this goal. We must not forget about the 37 individuals who remain in atrocious conditions. They must have their cases urgently reviewed by the High Court and we call on the Prosecutor General to take urgent measures to facilitate this.”

Carolyn Hoyle, Professor of Criminology and Director of the Death Penalty Research Unit, Faculty of Law at the University of Oxford, says:

“Our studies in Taiwan have demonstrated that arbitrariness is a feature of each stage of the criminal process, in violation of international law and individuals’ human rights.  Taiwan is not unusual; it is unlikely that any system could be designed to exclude arbitrariness and the related risk of condemning the innocent and the undeserving. As such, I am disappointed by the decision of the Constitutional Court not to abolish the death penalty but I am proud to have supported DPP and TAEDP’s efforts to end the use of capital punishment.”

Notes to editors

The Death Penalty in Taiwan

In 2006 Taiwan abolished the mandatory death penalty but retained the death penalty for crimes such as murder, treason, drug trafficking, and terrorism. In total, 58 crimes carried the death penalty in Taiwan.

Method of Executions: Executions in Taiwan are carried out by shooting; prisoners are sedated, laid face-down, and then shot through the heart.

Last Execution: The last person to be executed in Taiwan, in April 2020, was Weng Jen-hsien (翁仁賢), convicted of murder and arson. Weng was executed by a shot through the heart from behind. The previous execution was in 2018 and broke an unofficial two-year moratorium on the death penalty under President Tsai Ing-wen’s administration.

Death sentences: According to Amnesty International’s latest ‘Death Sentences and Executions’ Report three death sentences were recorded in Taiwan in 2023.

Public opinion and the death penalty: Whilst not central to the Court’s judgment, perceptions of public opinion are often erroneously used as a justification for retaining the death penalty. Please find further information about this in our briefing note.

The Legal Team

The Death Penalty Project’s legal team, working with US attorney Meg Gould, drafted detailed legal arguments which were used by the National Human Rights Commission to supplement their submissions to the Constitutional Court.

Expert Academic Evidence

The academics who provided expert evidence to the Court are Carolyn Hoyle, Professor of Criminology and Director of the Death Penalty Research Unit, Faculty of Law at the University of Oxford; and Jeffrey Fagan, Isidor and Seville Sulzbacher Professor of Law at Columbia Law School and a Professor in the Department of Epidemiology at the Mailman School of Public Health at Columbia University.

Drawing on data from Taiwan, Hong Kong, Singapore, the United States of America and the Caribbean, Professor Fagan showed that the death penalty does not have a deterrent effect on serious crime compared to other serious punishments such as life imprisonment. Professor Hoyle’s expert evidence made clear that the death penalty in Taiwan is inherently arbitrary and leads to inconsistent and unfair outcomes.

Taiwan Alliance to End the Death Penalty (TAEDP), established in 2003, is a coalition of Taiwanese abolitionist non-governmental organisations and research institutes. The alliance was formed to stress and promote the absolute value of life and human dignity as core to the protection and promotion of human rights. www.taedp.org.tw/en

National Human Rights Commission Taiwan (NHRC), established in 2020, is Taiwan’s national human rights institution. The Commission was formed to promote and protect human rights in the country. NHRC was created to fulfil the government’s commitment to promoting and protecting human rights in the country. https://nhrc.cy.gov.tw/en-US/

The Death Penalty Project (DPP) is a legal action NGO, supported by and based at Simons Muirhead and Burton LLP, with special consultative status before the United Nations Economic and Social Council. For more than three decades, DPP has worked to protect the rights of those facing the death penalty. https://deathpenaltyproject.org/

For interview requests, quotes, or more information please contact DPP’s team: [email protected] and [email protected]