Making trials open and transparent

By Wu Ching-chin 吳景欽  / 

Sun, Dec 30, 2012 - Page 8

A few days ago, the Supreme Court conducted an oral hearing on the case of Wu Min-cheng (吳敏誠), who was given the death penalty for murdering his girlfriend in 2009.

In doing so, the court not only began opening up for public trials in all cases involving the death penalty, it also manifested its respect for human rights.

This is yet another big reform following the repeal of the secret case assignment system in April this year, which was intended to enhance transparency.

Under that system, the judge presiding over a third review of a case was appointed through a secret procedure so that no one could find out who was trying the case, in an attempt to prevent outside interference or influence from the public or media.

Although praiseworthy, it cannot hide the fact that it neglects sentencing discussions.

In the current criminal trial system, the courts of first and second instance conduct trials of fact, which of course require open oral arguments. However, the court of third instance conducts a trial of law.

Based on Article 389 in the Code of Criminal Procedure (刑事訴訟法), this trial is generally not held and there is only an oral argument if the judge thinks it necessary.

The reason for this is the long-standing view that since the third trial is a trial of law, and since application of the law is a judge’s area of expertise, there is no need to hold a trial in the court of third instance.

The Supreme Court, therefore, only conducts hearings on very rare occasions. In combination with the secret case assignment system, the third trial could not only be equated to a mere trial on paper, it was actually a secret trial.

At the same time as the Supreme Court abolished the secret assignment system in April, it also announced that henceforth any case in which legal opinion is of principal importance will require an oral argument to be conducted in order to avoid criticism that it is holding secret trials.

However, the standard for conducting an oral argument remains unclear and the decision remains at the Supreme Court’s discretion.

This is why the decision to conduct an open oral argument in a case involving the death penalty is both a clear statement and an indication of the guarantee for the right to life.

As the court of third instance only tries the application of the law, and thus cannot try the facts of a case, conducting an oral argument in a case involving the death sentence implies that the facts of the case are undisputed and that the only thing to be debated is whether a death sentence should be issued.

Article 57 of the Criminal Code stipulates that when issuing a sentence, judges should, among other things, consider the offender’s motives, the means, the danger or damage caused by the offense and the offender’s attitude after committing the offense.

However, these factors more than often remain unclear without the process of an oral hearing.

To avoid arbitrary decisions by the judge, it becomes necessary to allow a hearing with the two parties in order to be able to consider the opinions of the victim or members of the victim’s family.

Due to the Supreme Court decision being final, such an argument becomes a matter of life and death.

In particular in a situation where society is divided over whether to abolish the death penalty or not, making oral hearings compulsory and open in cases involving such a penalty will bring the issue to the forefront of public attention, thus helping to build a public consensus.

The question that remains is why an issue that is so controversial and involves the life or death of the defendant should only be argued in the court of third instance instead of the court of first or second instance.

According to Article 289 in the Code of Criminal Procedure, after the investigation of evidence has been completed at both the court of first and second instance, arguments on the law and the facts of the case must be made by the public prosecutor, the accused and the defense attorney, in that order.

However, the same article also states that after the conclusion of the argument, the judge should provide the parties with an opportunity to state their opinions regarding sentencing.

This means not only that the court must conduct arguments both regarding the trial of fact and the application of the law, it must also give the parties the opportunity to give their opinion about sentencing to protect the litigation rights of the defendant.

Because these requirements have always been seen as mere instructions, and because the Code of Criminal Procedure does not clearly separate determination of guilt and sentencing, the sentencing discussion has frequently been ignored in the courts of first and second instance.

The type and length of a sentence has always been up to the judge’s discretion.

Discussions about sentencing, therefore, should not be restricted to the Supreme Court alone, but should also be made a practical part of trials of fact.

Wu Ching-chin is an associate professor of law at Aletheia University.

Translated by Perry Svensson