(Sept. 27, 2013) On July 23, 2013, a new cross border Transfer of Sentenced Persons Act, in 25 articles, took effect in the Republic of China (ROC) (on Taiwan). On the same day, pursuant to the new law, the Measures on Progressive Execution of Sentence Applicable to the Receiving of Cross-Border Prisoners were issued, with immediate effect. (Transfer of Sentenced Persons Act (Jan. 23, 2013), Ministry of Justice (MOJ) website; text in Chinese (Jan. 23, 2013), MOJ website; The Stipulated Measures on Progressive Execution of Sentence Applicable to the Receiving of Cross-Border Prisoners [in Chinese] [hereinafter Measures] (July 23, 2013), MOJ website.)
Article 2 of the Act provides that the transfer of persons serving a prison sentence is subject to treaties that Taiwan has signed with the Transferring States and that the provisions of the Act are applicable only when there is no treaty or such transfers are not regulated by a treaty. It further states that matters not regulated in Act will be governed by the Criminal Code, the Code of Criminal Procedure, the Juvenile Delinquency Act, and other relevant provisions of Taiwan laws. (The Act, supra.)
A “sentenced person” (shou-hsing jen) under the Act refers to “a person who has been convicted of an offense by a final judgment of a court in the Transferring States and has been imprisoned or is required to be imprisoned.” (Id. art. 3(1).) “Receiving” (chieh-shou) refers to the procedure of bringing a sentenced person with Republic of China nationality back to Taiwan to serve his or her sentence. (Id. art. 3(2).) “Repatriation” (ch’ien-sung) designates the procedure for sending a foreign national sentenced person back to his own country to serve the sentence. (Id. art. 3(3).) “Transfer” (i-chiao) refers to both procedures, i.e., the receiving and the repatriation of sentenced persons. “Transferring State” (i-chiao kuo) means the foreign state transferring a sentenced person to or from Taiwan. (Id. art. 3(4).)
The conditions set forth in the Act for Taiwan’s receiving a sentenced person include:
- both the Transferring State and Taiwan must agree to the transfer;
- the judgment of imprisonment imposed on the sentenced person by the Transferring State is final;
- the offenses on account of which the sentence has been imposed would be offenses under Taiwan law if committed in Taiwan;
- the sentenced person has ROC nationality and household registration;
- the written consent of the sentenced person or the person’s legal representative has been obtained, with the proviso that a legal representative’s statement cannot be contrary to the explicitly stated wishes of the sentenced person;
- at least one year of the sentence imposed on the sentenced person remains to be served at the time of the request for transfer, unless the Transferring State and Taiwan both agree not to be constrained by this restriction;
- the statute of limitations of the execution of sentence has not yet been completed, according to the laws of Taiwan;
- charges for the same offense had not been finally adjudicated by a Taiwan court before the Transferring State’s court imposed a final judgment on the sentenced person; and
- the right to a fair trial is protected by the Transferring State, with the presumption that this right has been protected if the sentenced person and the legal representative do not make a claim to the contrary. (Id. art. 4.)
The Measures, comprising seven articles, were formulated on the basis of article 15, paragraph 2, of the new Act. (Measures, art. 1.) That paragraph states that the record of sentence served in the Transferring State by the sentenced person may be converted to a score calculated in conformity with ROC sentencing guidelines, i.e., on the basis of “responsibility scores” (tse-jen fen-shu) assigned to categories set forth in the Statute on Progressive Execution of Sentences. That record, furthermore, may be considered the basis for determining whether the person has repented of his or her crime. Finally, the provision prescribes that the measures on the standards of conversion and the bases of determination of repentance and related matters are to be determined by the Ministry of Justice. (Act, art. 15 ¶ 2; see also the Statute of Progressive Execution of Penalty [toggle for Chinese text] (Mar. 6, 1946, in force on June 10, 1947, as last amended on June 14, 2006, in force on July 1, 2006), MOJ website [art. 19 has a table on responsibility scores].)
Under Taiwan’s Criminal Code, if there is evidence of a convicted person’s repentance during the period of execution of imprisonment, parole may be granted upon application by the prison authority to the Ministry of Justice after the prisoner has served 25 years of a life sentence, one half of a fixed term of imprisonment, or two-thirds of the sentence in the case of a recidivist. (Criminal Code of the Republic of China [toggle for Chinese text] (Jan. 1, 1935, in force on July 1, 1935, last amended June 11, 2013), art. 77 ¶ 1, MOJ website.) If the number of days in detention exceeded one year before the imposition of a life sentence became definitive, that will be taken into account in determining the 25-year threshold. (Id. art. 77 ¶ 3.) These provisions will not apply in the following circumstances, however: if the execution of the prison sentence has not yet reached six months; if a recidivist for an offense that carries a principal punishment of at least five years’ imprisonment intentionally commits, within five years after completing the execution of the punishment, or after being pardoned after execution of part of the punishment, an offense that carries a minimum principal punishment of not less than five years; or if an offender who has committed a certain type of crime (mostly sex-related), after being counseled or treated during the period of execution of the punishment, is found through an evaluation to be highly likely to repeat the offense. (Id. art. 77 ¶ 2 (1-3).)
As a rationale for adoption of the new Act, a Ministry of Justice spokesperson stated, “[f]ollowing an increase in cross-border crime, more people are serving time in foreign jails, … . Differences in language and culture, as well as difficulty in arranging visits for families and friends, make it imperative t
hat these inmates are allowed to complete their sentences at home.” (ROC Cross-Border Inmate Transfer Law Takes Effect, TAIWAN TODAY (July 24, 2013).)
Taiwan has previously agreed to other instruments for the transfer of prisoners with other jurisdictions. In 2010, it signed a treaty with Panama on the repatriation of prisoners, and in the Cross-Strait Joint Crime-Fighting and Judicial Mutual Assistance Agreement (of May 22, 2009, Mainland Affairs Council website) reached with the People’s Republic of China, the matter of handing over prisoners is addressed in article 11. (ROC Cross-Border Inmate Transfer Law Takes Effect, supra.) Reportedly “more than 500 ROC citizens [are] incarcerated overseas, with 100-plus in Thailand. A total of 475 foreign nationals are doing time in Taiwan, a large number of them from Thailand and Vietnam.” (Id.)