Mon, Jun 27, 2022 page8

• Finding justice for the death of a child

  • By Wu Ching-chin 吳景欽
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  The controversy involving En En (恩恩) — the first child in Taiwan to die of COVID-19 and whose father wrote to the New Taipei City Government asking why it took 81 minutes to find an ambulance to take his son to hospital — remains unresolved.

  En En’s father kept asking for the audio recordings, but the New Taipei City Government refused to comply, first citing “other callers’ privacy” and then saying that the case had been handed over to prosecutors.

  If the investigation is focusing on how the recordings were leaked, it is about exacting payback on the whistle-blower instead of finding out why there was the delay in getting the child medical attention.

  The purpose of the investigation should be to uncover whether any civil servant should be prosecuted under Article 130 of the Criminal Code — “A public official who neglects his duties thereby causing a catastrophe shall be sentenced to imprisonment for not less than three years, but not more than 10 years” — or Article 276 — “A person who negligently causes the death of another shall be sentenced to imprisonment for not more than five years, short-term imprisonment, or a fine of not more than NT$500,000.”

  Although negligence of one’s duty under Article 130 carries a heavy sentence of three to 10 years, the fire department is required to confirm with the health department before dispatching an ambulance, and if civil servants were merely following the city government’s directives it is unlikely they would be found to have committed a breach of duty.

  Even if they did, the prosecutors would then have to prove a clear causal link between their negligence and the death, which would require intent. If the issue was one of poor communication, the defendant would only be liable for negligent homicide under Article 276.

  As Article 276 does not explicitly state that the sentence would be increased due to gross negligence, and the cap on imprisonment is five years, the sentence would be very different under Article 276 than under Article 130.

  Contacting emergency services is not the duty of a sole civil servant and the code does not recognize joint principal offenders under the circumstance of negligence, so whether a civil servant performed their duties attentively or delayed En En’s hospitalization because of a breach of duty would be treated as separate matters.

  If it is a case of negligent homicide, the civil servant would not be held criminally liable.

  En En’s father might have to resort to seeking state compensation in his capacity as a relative.

  However, in this kind of case, the plaintiff bears the burden of proof, and En En’s father would likely lose because he would be hard-pressed to provide evidence of civil servants contravening rights or of a causal link, due to factors such as status, and access to information and resources.

  Ideally, in a situation such as this, the principles of fairness and justice would place the burden of proof on the defendant.

  Without the complete audio recordings being revealed to prove that the procedure was flawless, no one can get any closer to the bottom of the situation, but it could be said that the system is flawed, making it possible for En En’s father to claim state compensation.

  Given the New Taipei City Government’s disappointing response, En En’s father will have to resort to the courts to find justice.

  Nevertheless, it might be best for the Control Yuan to first conduct an investigation, to spare the victims the pain of waiting, as court procedures are notoriously time-consuming.

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

  Translated by Rita Wang
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