After concluding its investigation into the wrongful execution in 1997 of air force serviceman Chiang Kuo-ching (江國慶), the Supreme Prosecutors’ Office Special Investigation Panel (SIP) decided not to indict any of the military officers or Ministery of National Defense officials involved. The reasons given for not prosecuting them were either that there was insufficient evidence or the statute of limitations — ie, the time within which charges may be brought for the offense in question, had expired. The SIP handed the case over to the Control Yuan. This result has left many people anguished and indignant.
Many difficulties are thrown up by cases of institutional crime, such as when state authorities pervert the law and abuse their authority by extracting confessions under duress and seek to establish a suspect’s guilt on that basis.
In Chiang’s case, the air force commander went so far as to place the investigation in the hands of a counterintelligence unit that does not have police status and whose normal duty is catching spies. This unit used all means at its disposal to get Chiang to confess. Although that is what happened, various factors, including the secrecy of the investigation, the closed nature of military institutions and the fact that many years have passed since Chiang was hastily executed, all make it hard to collect evidence.
As for the former commander who gave the investigation over to the counterintelligence unit, he can shift the blame onto his subordinates on the grounds that he did not order them to torture the suspect. Besides, that the accused was indicted by the prosecution service and tried in a court of law allows those involved to blame the prosecution and court for Chiang’s wrongful execution.
Even though there is enough evidence to prove that these people twisted the law and abused their authority, it is not clear whether military commanders and counterintelligence personnel are included among the kinds of officials who could be punished for abusing their authority in the arrest and detention of somebody.
Even if they are included, Article 8-1 of the Enforcement Act of the Criminal Code (中華民國刑法施行法) says that in cases in which abuse of authority during an arrest and detention results in death, the law as it stood at the time, before being amended in 2005, must be applied. That works in favor of those involved in this case, because the statute of limitations under the old version of the law was 10 years. Since 15 years have passed since Chiang was tried and executed, no indictment can be made.
Applying this article to the case in question results in the dilemma that, although all the people involved acted in a questionable manner, none of them can be held responsible. It is just as if Chiang had been killed by the forces of nature instead of by human hands.
The prosecutors’ decision not to indict those involved follows the letter of the law. Although they may have had no choice in that respect, that does not mean that there is no way out of this dilemma. This kind of human rights abuse, resulting from the obedience of lower-ranking personnel to the orders of superior officers, is collective and organized in nature.
If the responsibilities of those involved are dealt with separately, the diffusion of responsibility naturally means that the case will revolve around the relatively petty offense of abuse of authority in arresting and detaining a person, rather than progressing to the more serious charge of homicide through joint venture.
In that case, a relatively short statute of limitations will apply, allowing this group of people to easily escape punishment under the law.
Prosecutors should try to find a legitimate way of defining the crime and upholding justice at the same time in relation to this kind of criminal behavior — a task that would pose a challenge to their ability, courage and vision.
The situation as it stands, however, is that the Supreme Prosecutors’ Office has failed to consider the special nature of this case and its significance for safeguarding human rights and has quickly wound up the case with its decision not to prosecute. Although the whole case has been handed over to the Control Yuan to deal with, the people involved are set to escape punishment because the statute of limitations has expired.
The prosecution service has missed a good opportunity to uphold justice. Worse, the people involved, whose hands are dripping with Chiang’s blood, received promotions and continue to live off the taxpayers. This kind of “justice” is more than the public can stomach and the soul of the wrongly executed man cannot rest in peace as things stand.
Wu Ching-chin is an assistant professor in the Department of Financial and Economic Law at Aletheia University.
Translated by Julian Clegg
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