Summary of amicus curiae prepared by Covenants Watch (authored by Clayton Keir, Yibee Huang and Song-Lih Huang), presented to the Asian Human Rights Court Simulation on July 27, 2019.
Mr. President and honorable members of the court,
Covenants Watch submitted an amicus curiae pursuant to the Statute of this court. Our main interest is that the trial proceedings correctly follow international law fair trial standards. The document cited 138 references from international treaties, treaty bodies, regional and individual state court decisions. I will just summarize the main argument in three parts, first, that Taiwan government has the obligation to the prohibition of torture, second, the prohibition of using confessions obtained through torture should be in its totality and not limited to those proven by evidence of torture, and third, that the prosecution should be assigned the burden of proving that Mr. Chiou and the codefendants gave their confessions voluntarily. The arguments lead to the conclusion that applying the death penalty to Mr. Chiou violates international human rights law.
First, Taiwan government’s obligations in the prohibition of torture:
- Through widespread acceptance and practice, the prohibition on torture and the use of confessions obtained through torture have become customary international law, which is binding to all states. This applies to Taiwan regardless of whether Taiwan had ratified ICCPR or UNCAT at the time of the conviction, the first being November 1989.
- The ROC government did sign the ICCPR in 1967 while it was still a member of the UN. According to the Vienna Convention on the Law of Treaties, “A State is obliged to refrain from acts which would defeat the object and purpose of a treaty when: (a) it has signed the treaty or has exchanged instruments constituting the treaty subject to ratification, acceptance or approval, until it shall have made its intention clear not to become a party to the treaty.” Taiwan government has never revealed the intention not to become a party to ICCPR. In fact, in response to a court request, the Taiwanese Ministry of Foreign Affairs re-affirmed in year 2000 that the government always had the intention to ratify the ICCPR at an opportune time. Therefore, Taiwan government should be bound by the ICCPR.
- The time that the supreme court dismissed Chiou’s appeal and upheld Taiwan high court’s judgment was in 2011, which was two years after the Legislative Yuan ratified the ICCPR and passed the Act to Implement the ICCPR and ICESCR in 2009, therefore the Supreme Court should be bound by the ICCPR when it upheld the judgement of Chiou’s conviction by the Taiwan High Court.
- Article 7 of ICCPR already prohibits “torture or cruel, inhuman or degrading treatment or punishment,” and we can say that not a single country has persistently objects to the prohibition on torture. In addition, although Taiwan’s parliament has not yet ratified the UNCAT, Taiwan’s Code of Criminal Procedure has already incorporated many elements of UNCAT in it.
Second, the prohibition of using confessions obtained through torture should be in its totality.
- Taiwan’s domestic courts may not use any of Chiou’s statement made under torture, because customary international law and Taiwan’s law both prohibit it.
- The existence of torture was proven for Mr. Yu Zhi-Xiang and other co-defendants. This should have brought serious doubt on the fairness of the investigation and trial proceedings, and the supreme court should be alerted of the fact that Taiwan High Court had admitted as evidence those confessions obtained through torture.
- Torture can continue to dominate suspects’ thoughts for a period of time afterward, especially if they fear the prospect of more torture. If the police coerced the defendant’s confession through intimidation or fear, the presumption arises that his subsequent confessions will be the product of the same coercion. The length of time between confessions is a factor in evaluating whether the dominating influence of torture remains and brief time intervals suggest that the impact has not faded, which likely had happened in Chiou’s case.
- The same presumption against the voluntariness of the confession exists when the police torture a suspect and then bring the suspect before a third person to confess. The suspect will remember the torture and even if the police officer makes no threats and commits no violence in front of the third party, the suspect may seek to please the officers to avoid being tortured again. Such a confession is coerced and not made voluntarily.
- In very rare exceptions such confession were accepted, as in the European Court of Huan Rights case Gafgen v. Germany, the court excluded a confession the defendant made under police threats of physical and sexual violence, but the court allowed evidence from the revelation of other information stemming from the confession. However, in Chiou’s case the confession did not lead to uncover any substantial evidence, but seemed to have produced more and more colluded confessions.
- A court relying on confessions without clear evidence of torture ignores the lasting effect of torture and encourages more torture by the police and prosecution.
Third, the prosecution should be assigned the burden of proving that Mr. Chiou and the codefendants confessed voluntarily.
- The applicant claims that he and the co-defendants all suffered torture or other inhuman treatment during the investigation process, and thus confessed unwillingly. However, Mr. Chiou was not able to provide proof that he had been tortured. We believe that this is a misplaced burden of proof.
- Under international fair trial standards, when the state seeks to submit a defendant’s confession, the prosecution has the burden to prove that the defendant confessed freely and voluntarily. Placing the burden on the defendant would be unfair as he has limited resources with which to investigate the matter, whereas the police and prosecution have greater control over the access to the records of the interrogation.
- Taiwanese law (Article 156, Code of Criminal Procedure) also requires that if the defendant claims that his confession was obtained through improper means, the court shall order the public prosecutor to prove the defendant confessed voluntarily and to identify the methods of proof.
- Because of the missing tapes and videos, the prosecution has not been able to provide that proof.
The arguments lead to the conclusion that
- Conviction on Chiou’s case has to be based on substantive evidence that can prove Chiou’s involvement in either of the two cases beyond reasonable doubt.
- International law, for example, Human Rights Committee’s general comment #36, prohibits applying the death penalty when numerous procedural flaws existed throughout the trial.
- Because Chiou’s trial contained numerous procedural flaws, applying the death penalty to him would constitute an arbitrary deprivation of life.
Recommendations: We recommend that the court:
- Ask Taiwan’s courts to reaffirm their obligations under ICCPR, UNCAT, and Taiwan’s Code of Criminal Procedure.
- Vacate the 2011 decision of the Taiwanese Supreme Court and the High Court’s conviction of Chiou, unless the prosecution can prove beyond a reasonable doubt that Chiou committed the murder.
- The prosecution must do so without resorting to confessions that it cannot prove were made willingly.
- Remand the case for further proceedings consistent with international law.
- While the case proceeds, Taiwan must immediately release Chiou and he may continue to live outside of prison until found guilty.
- Award Chiou monetary damages and court costs to be paid by Taiwan as well as a public apology, per Article 11 of the AHRC statute.
- Remove the death penalty as a possible sentence for Chiou.
- Declare that the death penalty violates the human right to life.