A Criminal Code provision requiring repeat offenders to serve up to 25 years with no chance of parole if they violate the law during their parole contravenes the Constitution, and should be amended within two years, the Constitutional Court said yesterday.
Hsieh Chao-he (謝朝和), who was sentenced to life in prison for violating the now-defunct Act Punishing Thievery and Banditry (懲治盜匪條例), was in 2009 granted parole after serving 18 years.
However, his parole was revoked after he was convicted of theft and ordered to serve 25 years in jail without parole. Hsieh said the sentence was “disproportionate” to the crime and requested a constitutional interpretation.
Photo: screen shot from a Constitutional Court livestream
Another 35 similar cases were merged into one in the Constitutional Court’s review of Hsieh’s request.
The Constitutional Court yesterday said that the revocation of the accused’s parole had not considered the severity of the repeat offense nor the effects of the rehabilitation program on the accused during the time of parole.
Ordering the accused to serve out the remainder of their previous sentence before their parole for up to 25 years violates the principle of proportionality and fails to observe the spirit of Article 8 of the Constitution, the court said.
The competent authority should amend this provision in the Criminal Code within two years, it said.
If the law is not amended within the given period, the competent authority should rescind rulings and instead implement measures more in line with the principle of proportionality, it said.
Five appeals were certified to have contravened the Constitution and have been remanded to the Supreme Court, it said, adding that chief prosecutors are within their rights or can act if petitioned by others to lodge an extraordinary appeal on the ruling.
The Supreme Court should halt legal proceedings of the cases until the amendment is passed and then review the case with the amended Criminal Code in mind, it added.
As for other convicts facing a similar situation, but who were not part of the five appeals, the Constitutional Court said that if they voice opposition regarding their cases following the constitutional interpretation or if their cases are on trial, the courts presiding over the cases should halt all legal proceedings until the amendment has been promulgated.
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