萬國法律事務所

On August 14, 2023, Taiwan's Constitutional Court held that the Supreme Court's allotment rule that allows the same judge to preside over a case that had been remanded to the lower courts at least twice is constitutional. The decision responded to and rejected a petition from 35 prisoners on death row.
 
The Constitutional Court's opinion contained two important interpretations. The first was to clearly define the meaning of "a previous trial" in Subparagraph 8, Article 17 of the Code of Criminal Procedure. The second was to hold that the "Implementation Direction for the Allotment of Civil and Criminal Appeal Cases" and "Implementation Direction for the Allotment of the Criminal Supreme Court Cases" (the "Allotment Rules") do not contravene the 35 prisoners' constitutional right to a fair trial.
 
Specifically, Subparagraph 8, Article 17 of the Code of Criminal Procedure (the “Recusal Clause”) stipulates that a judge should recuse himself/herself if he/she participated in a decision reached at a previous trial. Constitutional Interpretation No. 761 expressly indicated that the purpose of the Recusal Clause is to (1) avoid conflicts of interest between the judge’s interest and the discharge of his/her duties and (2) prevent prejudgment since one cannot expect a person to review his/her own decision from an objective point of view without prejudgment. Therefore, a judge who presides in a case in a lower court cannot review the same case in the higher court without vitiating the defendant’s right of appeal. The Constitutional Court clarified that the meaning of “a previous trial” refers to the situation where a judge has “participated in a decision of a lower court trial.” It does not include the situation where a judge has “participated in a prior decision in a trial at the same court.” Further, a judge who has been involved in a criminal final judgment in the same case shall recuse himself/herself from participating in the proceedings of a retrial or an extraordinary appeal of a final judgment.
 
In addition, if there is no practical difficulty in limiting the number of judges at each level of court, individual courts may, on their own initiative, require that all judges who have participated in the case no longer participate in the trial in order to expand protection of the people's right to litigation.
 
Finally, the Supreme Court is authorized by Paragraph 1, Article 79 of the Court Organization Act to enact the Allotment Rules. Although the Allotment Rules permit the same judge to preside on the case, they are not applied retroactively, nor are they specific to particular cases. As the Allotment Rules can help enhance the efficiency of adjudication and unify opinions to make judgments more reliable and predictable, the Allotment Rules satisfy the principle of the statutory judge. This is a principle in Taiwan law that all judges to be assigned to cases randomly by computer to prevent human interference.