A huge demonstration on Ketagalan Boulevard in front of the Presidential Office Building in Taipei on Aug. 3 by tens of thousands of people protesting the death of army corporal Hung Chung-chiu (洪仲丘) forced the legislature to have offenses under articles 44 and 45 as well as Paragraph 1 of Article 76 of the Criminal Code of the Armed Forces (陸海空軍刑法) tried in civilian judicial courts.
According to the principle that states that if a law is amended, a case should, unless otherwise regulated, be handled according to the amendment, these new regulations can now be applied to the Hung case. The question is if handing it over to civilian courts will help us find the truth.
While military prosecutors have indicted 18 people in the Hung case, only Staff Sergeant Chen Yi-hsun (陳毅勳), a non-commissioned officer responsible for monitoring the status of those in disciplinary confinement, has been charged with a felony, abuse or malpractice resulting in death, while senior officers have been charged with misdemeanors for allegedly giving out punishments beyond the normal scope of statutory punishment and offenses against personal liberty. It is inevitable that such an approach will bring about a separation of responsibility.
According to Article 28, Subparagraph 1 of the Code of Court Martial Procedure (軍事審判法), criminal cases involving generals and field officers should be handled by military high courts. Such a separation means that both the local military courts and military high courts would have been handling the Hung case. This not only constitutes a serious form of discrimination based on rank, it also means that the truth would be harder to uncover.
Now that the legislature has handed investigations into military abuse and malpractice resulting in death over to the civilian courts, other cases that have been split up beyond recognition by military prosecutors can now all be handled based on Article 6, Paragraph 1 of the Code of Criminal Procedure (刑事訴訟法), which deals with related cases having common evidence. These cases can now be put back together and handled by one court. This would reduce litigation costs and would also be beneficial in stopping people from trying to shirk responsibility when a single case gets split up.
Although sending the Hung case to the civilian courts can eradicate problems often associated with military trials, such as a lack of independence and transparency, the case has already been through the courts. Therefore, based on the principle of equality of arms, prosecutors are limited in what mandatory disciplinary measures they can impose.
The courts are supposed to be neutral bodies that provide fair trials, so their investigations are passive in nature. Coupled with this, because this case happened some time ago, uncovering new evidence will be very difficult.
Especially worthy of attention here is that the military can continue with its stubborn attitude and quote Article 127, Paragraph 2 of the Code of Criminal Procedure, which states that the confidentiality of military matters is an important interest of the state, thereby it can refuse any judicial involvement. This would impede the investigation and trial.
If the Taoyuan District Prosecutors’ Office decided to press destruction of evidence charges over the missing video footage from Hung’s holding cell, Article 7, Subparagraph 4 of the Code of Criminal Procedure which deals with relations between different cases, could be used to process the issue of the missing video footage together with the Hung case.
Unfortunately, the Taoyuan District Prosecutors’ Office has already decided not to indict anyone on the destruction of evidence because they could not find any evidence of tampering with the video footage.
Because destroying evidence is a crime against the state, no victim exists, so there is nobody that can apply for a review and request a new trial. Therefore, unless new evidence is found, there will be no way to bring any new lawsuits against anyone and the details of other possible crimes involved in the Hung case will remain unknown.
Abolishing military trials is the first step and the next step will be breaking through the closed nature of our armed forces and the arbitrary ways in which they hinder judicial investigations.
Wu Ching-chin is an assistant professor in the Department of Financial and Economic Law at Aletheia University.
Translated by Drew Cameron