What you need to know
'There are records of the torture – no one can believe it, but it happened, it is very serious.'
Lin Hsin-yi (林欣怡), executive director the Taiwan Alliance to End the Death Penalty (TAEDP), believes that at least three people who are currently on death row in Taiwan are innocent.
The organization and the lawyers it works with have reviewed all of the judgments in which the death penalty has been handed down over the past 15 years. In addition to the three cases identified so far, Lin says there is reason to believe there have been many more miscarriages of justice.
In an interview with The News Lens International at TAEDP’s Taipei office, Lin discusses the difficulties activists and lawyers have in gaining access to case records, why pressure from local activists and international diplomats has failed to change government policy, and details TAEDP’s new strategy for influencing the government.
The News Lens International (TNLI): To start with, how many people in Taiwan currently face the death penalty?
Lin Hsin-yi: Right now there are 41 death row inmates, where the death sentence was confirmed. If the Minister of Justice signs the execution order, they can be executed at any time.
TNLI: What is the process that the Minister of Justice takes, after a final Supreme Court decision, before signing an execution order?
L.H-Y: There is no law to say that he or she has to sign the execution order. The only rule is if he or she signs the order, the execution must take place within three days.
There is no law that says once the sentence is finalized then the execution must happen. The Minister of Justice, he or she can decide not to sign the execution order.
TNLI: I would like to come back to the current Minister of Justice later on, but first can you talk about how Taiwan uses the death penalty in comparison to other countries in Asia?
L.H-Y: We just went to Oslo for the 6th World Congress Against the Death Penalty – the biggest congress for abolitionists. People think that in Taiwan the situation is not so bad compared to Southeast Asia or even Japan, because the execution number is not increasing – maybe it’s decreasing a little – and we don’t use the death penalty for drugs and terrorism.
TNLI: Just to clarify, that is because under international law, the death penalty should only be for the most serious harmful crimes, and drugs aren’t considered part of that?
L.H-Y: Yes, that is right.
Transparency in Asia is not good – not only in Japan and Taiwan, but also Southeast Asian countries. We don’t know much about the death row inmates. For example, in Taiwan and Japan, the government will not tell the family or the lawyer when the execution will happen. In Southeast Asia, it is very difficult for them to meet with death row inmates.
For us, we have had a moratorium for four years. You can see that from 2000 – when power switched for the first time from KMT to DPP – the president, Chen Shui-bian (陳水扁), first announced Taiwan is going to abolish the death penalty gradually. The moratorium started in 2006. In 2008, Ma Ying-jeou (馬英九) said that Taiwan would follow the international human rights standards. In 2009, we passed the two [international] covenants, so that it become our domestic law. From that trend, Taiwan was going towards abolishing the death penalty.
According to the [International Covenant on Civil and Political Rights], if a country ratifies the ICCPR it means that you are going towards abolishing the death penalty. Currently, in Taiwan, the politicians will say ‘the ICCPR says we can only use the death penalty for the most serious crimes, but it did not say we could not execute people.’
It is very ironic. We have already had a moratorium and signed the ICCPR. The government had given a commitment. But then, after that, the executions reopened in 2010.
TLNI: Obviously, the public sentiment over crime was a factor when the executions restarted. What is your view on why the majority of Taiwanese support capital punishment?
L.H-Y: Actually, we did a public opinion survey in 2014. You can see that there is a problem with the surveys; mostly, they make a phone call and ask one or two questions about whether you support the death penalty. Usually, this kind of survey takes place after some serious crime. Of course, most people will say ‘I support the death penalty.’
We decided to survey with [Academia Sinica]. We interviewed more than 2,000 people, with a very long questionnaire. The major finding is: if people have more information about the death penalty, they will be more against it.
My view on: ‘Why does the public want the death penalty so badly?’ It is because the government did not provide more information. The government says, ‘We cannot abolish the death penalty because of public opinion.’ But from my view, the public opinion is not ‘we want the death penalty.’ If you analyze the survey very carefully, you will understand that public opinion is more complicated. The government should do the research and give an alternative to the public. They haven’t tried to have a strategy, a policy, a real alternative.
TNLI: Following the release of your survey results, has there been growth in support for the death penalty abolition movement in Taiwan?
L.H-Y: We released the survey at an international conference, and we plan to release more analysis on it, but it is not published yet. We did provide the information to the Minister of Justice, but the impact was not big.
Our plan for next year is to have more grassroots, local discussions about this. For the people around Taiwan, most people they don’t really think about this question. We will have 30 or 40 events all over Taiwan. We will go to places where maybe they haven’t had this kind of discussion before. We will not just discuss "should we have the death penalty or not," we will discuss the alternatives – like life sentence without parole, or life sentence with the chance of parole after 25 years. From the survey, we know that if people have an alternative, they will choose that.
Right now, we are discussing how to make the survey easier to understand. We don’t want to publish an academic book. It is a pity that the release of that report didn’t have much impact on the government or the public, but we will use the survey to do more.
TNLI: We have gone from the KMT to the DPP-led government, they have only been in charge for a short time, but what are the early signals from the DPP on this issue?
L.H-Y: The Minister of Justice, Chiu Tai-san (邱太三), has not said anything clearly [on this issue]. He seems more focused on prison reform and the national judicial reform.
Of course the President and the Minister of Justice are important, because they have power, but we also have a new congress. I think the new lawmakers are much more willing to deal with these questions – maybe not [the question of] abolishing the death penalty right now, but they will consider prison reform and the alternatives [to the death penalty].
TNLI: You mentioned judicial reform. In terms of how this applies to the death penalty, have there been miscarriages of justice in Taiwan, and if so what are the problems in the system that causes these results?
L.H-Y: Last year we reviewed all the [Supreme Court] death penalty judgments from 2000, 75 cases and 68 judgments – in some cases there were two death row inmates.
Right now we are working on three cases – within the 41 current death row inmates – and we believe they are innocent.
Chiou Ho-shun (邱和順), he was in detention for 23 years then his death penalty was confirmed in 2011. He is now 56, which means half his life he has been in prison, for a crime we believe he didn’t commit. The Control Yuan, [Taiwan’s ombudsman], says that the police tortured him. There are records of the torture – no one can believe it, but it happened, it is very serious.
Another case is Cheng Hsing-tse (鄭性澤). He was charged with [the 2002] killing a policeman in KTV [karaoke bar]. We found evidence he too was tortured. This year his lawyers asked for a retrial, and that was successful. It is now in the retrial process, so the case is basically reopened. This time the prosecutors are on our side, they believe he is innocent too.
TNLI: If the prosecutors now think he is innocent, who is making the case against him, how is there a retrial?
L.H-Y: It is something new for us, too. This is a very strange situation, the prosecutors and [defense] lawyer are on the same side. But the victims’ families have lawyers.
TNLI: And the victims’ families still want to prosecute?
L.H-Y: Yes. For them, if was not Cheng Hsing-tse, then who? They have believed for 14 years that he murdered the policeman. We hope that from the court hearing and the evidence we provide, maybe they will understand.
TNLI: And the third case?
L.H-Y: The third is Hsieh Chih-hung (謝志宏). There were two offenders, and they were both sentenced to death. We don’t think there is enough evidence to show they committed the crime together, but he was at the crime scene, he was there.
This case is weaker than the other two. The first two have very clear evidence of torture, but the third one the torture is not so clear. We have found out some things, but it is a more difficult case.
TNLI: So you have suspicions he was tortured during the interrogation?
L.H-Y: Yes, but in the first case we have the [audio] record, the second we have the photos and the doctor’s records, the third one is not so clear.
TNLI: These are three cases out of 41, and you mentioned earlier the difficulty in accessing people on death row. Looking around this office, you have three full-time employees and some interns. You obviously don’t have endless resources to look at all the cases. Do you think that if you could look closely at other cases you find more issues as well?
L.H-Y: Yes. Let me explain a little of our background. We were formed in 2003, there were only volunteers. Since 2006, we have co-operated with the Legal Aid Foundation, and since then we have had more information about the cases. We know their names, we know where they are and we started to communicate with the death row inmates.
In 2007, we had our first fulltime staff, me. The way we work is, when we have a case we find a lawyer and money is paid by the Legal Aid Foundation – not very much, but it helps.
If we can start to help them from the beginning, then maybe the decision of the trial will not be so bad. But because of our resources, we can only help the urgent ones when they are facing execution, and the lawyers can help them with a constitutional review, or a retrial or an ordinary appeal.
Recently, we have done more lawyer training. In Taiwan, the lawyers do not do a lot of training in international law.
And now we try to work on the cases from the start of the process. If we see a murder in the news, we try to connect with the Legal Aid Foundation to see if [the accused] has a lawyer. If he doesn’t have a lawyer, we try to arrange a team of three lawyers to work on the case.
We hope that if we work from the beginning then we will not have a death sentence.
TNLI: So you are able to offer better support to the more recent cases?
L.H-Y: Yes. But still we right now, for every confirmed [death penalty] case, we have a lawyer to review the older files.
But some cases are very old, we try to get files from the Ministry of Justice but [the files] are not good enough. Some lawyers want more records and information about investigations – [audio] records of interrogations. The papers may say everything is good, but if you listen to the sound recording it is different.
TNLI: The lawyers are finding differences between the written records and what was actually said? And the Ministry of Justice won’t provide all the original recordings?
L.H-Y: Some [requests for recordings] were successful, some were not. For the lawyers who are dealing with the old cases, it is not that easy to find enough information to prove a case was wrong.
I believe there are a few cases that have a chance [the accused] was innocent, but we don’t have enough information.
Of course, there are other cases where they are not innocent, but still the death sentence is not the sentence for them. So we can still find a lot of problems in the old cases.
TNLI: You have these 41 cases, and at any time, essentially, the Minister of Justice could sign the execution warrants. Under the previous Minister of Justice, who was pushing these death warrants and why?
L.H-Y: You must know Cheng Chieh (鄭捷), the MRT case, and the execution.
When a final death sentence is confirmed, normally there will be time for the lawyers to appeal. For the MRT case, when the Supreme Court gave the final decision of the death sentence it issued a press release [leading to the death warrant signed and the execution quickly carried out]. Usually, it takes more than ten days or one month, and then, when the lawyer gets the final judgment, they can do something.
I don’t think there is really public pressure. Of course someone will say, ‘He should be executed immediately.’
TNLI: This is the victims’ families, their lawyers?
L.H-Y: No, just people. This was the first time this kind of case happened in Taiwan, so people are worried about it. For other cases – murder over money, arguments, love – we know the reason. For the MRT case, we don’t know the reason.
TNLI: These are the so-called random killings?
L.H-Y: Yes, people are worried about that. So people say the trial must be quick and he must be sentenced to death and executed.
At this time though, we knew there was a new Minister of Justice coming in one month. [Then-minister] Luo Ying-shay (羅瑩雪)] did not have to do this.
TNLI: The criticism at the time was Luo was trying to gain popular support, so the final decision in these cases has become politicized?
L.H-Y: Yes. It was not necessary for her; she has no chance to be appointed to any [future] position from the government.
In the other executions, when a case is finalized there is a prosecutor in the Ministry of Justice who will give the suggestion to the Minister of Justice that one should be executed.
You can see from 2010 to 2015, every year we have one execution [round] where four of five people are executed. There is always a political reason. It is always following a political issue – Ma Ying-jeou wanting to save his public support.
TNLI: Do you think, given public support for executions, this will make it difficult for the new minister of justice?
L.H-Y: In Europe, they abolished the death penalty because of political will. At that time, the public opinion supported the death penalty, but the politicians led. In Taiwan, this is impossible, because the politicians will not go against public opinion, because they are so afraid of losing votes.
This is why we really want to talk to the public. We know that only public opinion can help us to impact the politicians. But right now, about 80% of people support the death penalty. But as I say, if they have an alternative they may change their opinion. That is why we are trying to discuss with the public to change their ideas.
TNLI: Every time there is an execution the European Union representatives in Taiwan and others in the international community write papers and try to lobby the government. What impact does that have?
L.H-Y: I think it helps. Take the 2010 executions. At that time, the Minister of Justice, Tseng Yung-fu (曾勇夫), executed four people and said he was going to execute 44. Then the E.U. lobbied and used all the diplomatic tools, and then it was stopped at four, not 44. I think it really helped.
Maybe after that, each time the affect is not so strong because the government gets used to it. Still, if the E.U. said nothing about this, I think the [Ma] government would have executed more people.
They are not only critical of the government, but they try to help. They have judicial exchange programmes with our judges, which I think is very good. Judges won’t listen to lawyers or NGOs, but they will listen to other judges.
TNLI: Finally, after the most recent of the so-called "random" killings, some commentators pointed to issues surrounding how mental health is treated in the judicial system. Do you think this is also important in discussions about the death penalty in Taiwan?
L.H-Y: Yes. We do training to help the lawyers to argue this issue in the court. But right now judgments on mental issues are not very consistent; there are two opposite opinions on this from the court.
Another problem is the testing of mental problems. So we are trying to talk to the doctors and to the lawyers and try to discuss what the best way is to approach this issue.
First Editor: Olivia Yang
Second Editor: J. Michael Cole