人权公约的司法适用与台湾地区刑事司法改革——以当事人权利救济为中心

Judicial Application of Human Rights Conventions and Judicial Reform in Taiwan region: Focus on the Right to Remedy

刑事诉讼制度中有关当事人权利救济制度,乃人权保障之基石,二战后制定的《公民权利与政治权利国际公约》及《欧洲人权公约》为人权保障之重要一环。自2009年以来,台湾地区的"大法官解释"及各级法院判决理由,不但援引《公民权利与政治权利国际公约》,也出现了《欧洲人权公约》及欧洲人权法院判决的身影。民众对人权保障之要求,带给各司法机关极大冲击,反映在2017年台湾地区关于司法改革的讨论中,有关权利救济之司法改革议题,就有长达上百项之建议意见。在上诉权保障部分,原本轻罪不能上诉三审,"释字第752号解释"要求修改,经二审才改判决有罪者仍须给予实质且有效之审级救济。公正审判不再限于片面的抽象文字,扩及实质的法院接近、公平法院、妥速审判、武器平等与最低限度的程序保障,除假释救济之"接近权"、司法人员身份保障、无罪推定均在具体案例中被反思。而禁止酷刑也不仅聚焦于讯问方式,转而要求通过积极的措施来确保受刑人人性尊严不被减损,受刑人权利保障的制度面临修改,检察官执行命令也遭遇挑战。

The right to remedy in the criminal justice system is the cornerstone of the protection of human rights. The guarantees enshrined in the International Covenant on Civil and Political Rights(ICCPR) and the European Convention on Human Rights(ECHR) which were formulated after the Second World War II are viewed as essential parts of the contemporary human rights protection system, and hold universal values. Since 2009, J.Y. Interpretation and judgments of the courts in Taiwan region have cited not only the provisions of ICCPR and ECHR, but also cases from the European Court of Human Rights. Public demand for guaranteeing human rights has made great impact on different judicial departments. Popular opinion was reflected in judicial reform in 2017, with more than 100 issues related to the right to remedy being proposed by the Judicial Reform Committee members. Concerning the right of appeal, an offence of minor character cannot appeal to the Supreme Court, but J.Y. Interpretation No. 752 requires granting minor cases which have been reversed and found guilty at the second trial with the substantive and effective right to appeal. The fair trial is no longer limited to abstract words and its interpretation has been extended to the protection of the right of access to court, fair trial, speedy trial, equality of arms and minimum procedural rights. For example, the right of access to court to appeal parole board decisions, the protection of the status of Judge Advocates and the presumption of innocence have all been substantively reviewed in various cases. The prohibition of torture is not limited to the method of interrogation, it requires positive measures to ensure that the human dignity of prisoners not subject to derogation. In addition, rights of prisoners are undergoing adjustments and prosecutors are facing challenges.