Victim relief falls short of UN level

By Hsiao I-min 蕭逸民  / 

Sun, Sep 02, 2018 - Page 6

Taiwan held its first international review meeting on the Republic of China’s (ROC) Initial Report Under the UN Convention Against Corruption last week. Among the various issues discussed, judicial corruption and accountability attracted the most attention. The reason is that anti-corruption regulations would exist in name only if the judicial system cannot enforce them.

An example of how the judiciary is malfunctioning is the case of former High Court prosecutor Chen Yu-chen (陳玉珍), who has been called “the greediest prosecutor in Taiwan’s history” for taking bribes of more than NT$23 million (US$748,430 at the current exchange rate) from gaming arcade operators.

After Chen was in 2014 sentenced to 12 years in prison in the court of first instance, the collegiate bench in the court of second instance allowed her to repeatedly take leave from court sessions, and she appeared only three times in the past three years.

This case is not an exception. If the judicial system is allowed to gloss over such corruption, the public will never believe in the government’s determination to crack down on corruption.

“Judicial accountability” is a core principle of the UN Convention Against Corruption, as well as the International Covenant on Civil and Political Rights. It is also an important mechanism in international law, which has established international standards for it.

In the end, the implementation of the concept under these covenants depends on whether an independent, effective and impartial judicial system can be established.

At the same time as judges, prosecutors and lawyers are protected by judicial independence, they should take responsibility for their own actions, and not use judicial independence to protect rampant corruption.

Hence, judicial independence and judicial accountability are two codependent elements. They are part of the judiciary’s obligations to the nation, and the executive or legislative branches cannot intervene.

People generally think that judicial accountability means punishing judicial personnel who neglect their duties.

However, international norms attach greater importance to providing effective relief to victims, such as compensation, restitution and satisfaction via apologies or commemoration in public, as well as avoiding recidivism and reviewing related laws and customs.

Only by providing concrete relief to innocent judicial victims is it possible to force the judiciary to engage in sincere reflection and correct its mistakes.

Thanks to the efforts of civil groups, such as the Taiwan Innocence Project and the Judicial Reform Foundation, more miscarriages of justice have been reversed in the past few years.

This is an indication of judicial progress, but also brings the issue of reparations to the forefront.

The National Conference on Judicial Reform last year issued a resolution demanding that the Judicial Yuan work harder to protect judicial victims.

However, the Judicial Yuan’s proposed draft amendments to the Compensation for Wrongful Detentions and Executions Act (刑事補償法) have fallen short of societal expectations and are not in line with UN standards.

According to international norms, judicial accountability not only extends to wrongful imprisonment, but also to judicial misconduct, such as misjudgments, delayed trials, discrimination or abuse of power, and judicial relief.

The scope of judicial victims includes the victims’ lineal or dependent relatives, as well as individuals or groups that suffer from helping a victim or stopping a crime. All these are excluded from the draft amendments proposed by the Judicial Yuan.

The Judicial Yuan is only willing to take responsibility for financial compensation, passing responsibility for other social compensation mechanisms to the Executive Yuan. This not only violates the state obligation of judicial accountability, but also hurts the image of judicial independence.

The biggest disappointment is that the Judicial Yuan has failed to respond to the national conference’s resolution on establishing a research center for wrongful cases. Judicial accountability should be about learning from cases to avoid repeating mistakes.

In Chen’s case, in addition to exempting illegal gaming arcade operators from prosecution, she instructed operators to wrongly accuse police officers of misconduct so that police investigation would be obstructed.

During her more than two decades as a prosecutor, she also blocked notoriously mishandled cases from being overturned.

Surely there should be a research center that could look into her corruption and negative effect on mishandled cases.

The judiciary can sometimes harm people. In addition to the victims who suffer wrongful imprisonment, the people hurt by a judiciary member’s abuse of power deserve to be addressed.

The Judicial Yuan should use the review meeting to gain a better understanding of the international standards for judicial accountability, and to severely punish judicial personnel who conceal corruption.

It should resubmit amendments to the Compensation for Wrongful Detentions and Executions Act that are both daring and in line with international trends, while at the same time building an effective protective mechanism for victims of the judiciary to demonstrate the government’s determination to fight corruption.

Hsiao I-min is a former director of the Judicial Reform Foundation’s judicial complaint center.

Translated by Eddy Chang