In October last year, the Northern Military District Court ruled that more than NT$100 million (US$3.38 million) in compensation be paid to the family of airman Chiang Kuo-ching (江國慶), who was wrongfully executed in 1997. However, former minister of national defense Chen Chao-min (陳肇敏) and five others implicated in Chiang’s wrongful execution refused to pay.
The Ministry of National Defense quickly responded by suing them for reimbursement through the Taipei District Court’s civil division. This action can be seen as one more step toward obtaining restitution for the airman. Up until now, however, no criminal prosecution has been brought against Chen and the other five people implicated, and as a result many people are questioning whether justice is being served.
Article 34 paragraph 2 of the Criminal Compensation Act (刑事補償法) states that after paying compensation for an injustice in a criminal case, the National Treasury Agency can seek reimbursement from the civil servants who caused the wrongful conviction. However, according to Article 2 paragraph 3 of the State Compensation Act (國家賠償法) the state can only claim reimbursement from civil servants when they have acted with intent or through gross negligence. Furthermore, according to Article 13 of the State Compensation Act, if the government employees in question are trial judges or prosecutors, the state can only seek reimbursement from them if they have committed a crime while fulfilling their duties, such as during the conduct of a trial or prosecution.
On this basis, there are clearly obstacles to bringing criminal charges against the military prosecutors and judges involved in this case, never mind convicting them, so there must also be legal obstacles to obtaining reimbursement from them.
However, Chen and the counterintelligence personnel who interrogated Chiang are the ones who bear the heaviest responsibility for his wrongful conviction and execution, and they are not judges or prosecutors, so even though they have not been indicted or convicted, the state does have a right to seek reimbursement from them as long as it can prove that they were grossly negligent.
Looking at the instructions and orders that Chen issued in his eagerness to solve and take credit for the case, and knowing that the counterintelligence personnel employed torture in the course of the interrogation, leaves it clear that their actions went beyond gross negligence and into the realm of intent.
However, because the people implicated in this case have not admitted to any wrongdoing, the ministry has to pursue its claim through legal action. Since civil litigation is mainly conducted by the parties involved, the plaintiff has to come up with evidence to show that the defendant acted with intent or out of gross negligence. The problem is that intentions are hidden in the mind of the accused and are therefore often hard to demonstrate.
Furthermore, the amount of compensation to be paid in this case is huge, so it is sure to become mired once more in a nightmare of long, drawn-out legal battles. That means that compensation sought via this route will not be achieved for a long time, if ever.
If criminal proceedings cannot be brought against the accused for a long time or at all, and the case ends with a decision not to prosecute, then the accused would probably have even more reason to argue that they did not act with intent or in a grossly negligent way, and that would make the road to payment of compensation even longer. For this reason, instigating a criminal prosecution against Chen and the five others is the only way to bring about restitution for the victim.
Last year, the Taipei District Prosecutors’ Office made a ruling not to indict the men implicated in Chiang’s unlawful execution. The grounds it gave for the ruling were that of insufficient evidence and that the statute of limitations had expired.
After further deliberation, the Taiwan High Prosecutors’ Office remanded the case for continued investigation, offering a glimmer of hope that justice would be served. The questionable point about this is that the usual reason given for having to remand a case is that the process of gathering evidence has not been completed.
However, in this particular case, all of the investigative work has been performed by the Special Investigation Division (SID) of the Supreme Prosecutors’ Office, and it can be seen from the detailed account of what happened given in the reasoning attached to the ruling not to prosecute that prosecutors have long been fully aware of all the facts concerning the unlawful and irregular conduct of the persons involved. In other words, the prosecutors had completed their investigations.
The facts having been established, two points of the case remain in dispute. The first is whether military prosecutors and judges should be held criminally responsible for abusing their authority in arresting, interrogating or prosecuting a person resulting in that person’s death, as defined in Article 125 paragraph 2 of the Criminal Code.
The second question is whether Chen, the counterintelligence personnel and other civil servants who investigated the case without having the authority to do so can be treated as non-acting participants in homicide by joint venture. If such a serious criminal charge were applicable, then there would be no statute of limitations, and that would mean the accused could still be indicted.
Since all the facts of the case have already been established, the only thing under dispute is which legal clauses apply to this case. In view of this, the Taiwan High Prosecutors’ Office should not have remanded the case to begin with. Instead, it should have directly ordered the Taipei District Prosecutors’ Office to initiate a prosecution in accordance with Article 258 Clause 2 of the Code of Criminal Procedure (刑事訴訟法). Unfortunately the Taiwan High Prosecutors’ Office failed to do this.
Despite the wealth of evidence available, it is still hard to say whether the Taipei District Prosecutors’ Office will set things aright. Notably, while the reasoning attached to the ruling not to prosecute was written by the Taipei District Prosecutors’ Office, it was acting in accordance with the wishes of the SID, so the prosecutors are now bound to be in a quandary as to whose instructions they should follow. This might be why, more than 270 days after the Taiwan High Prosecutors’ Office remanded the case, the Taipei District Prosecutors’ Office is still taking a wait-and-see attitude.
Whereas the process that led to the execution of a young man all those years ago was hurried and reckless, the quest now underway to make those who brought about his wrongful death legally responsible for their actions is painfully slow and littered with obstacles.
If the Taipei District Prosecutors’ Office once more rules not to prosecute Chen and the others, people will be left doubting more than ever the notion that the judiciary is there to ensure that justice is done.
Wu Ching-chin is an assistant professor in the Department of Financial and Economic Law at Aletheia University.
Translated by Drew Cameron and Julian Clegg
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