Supreme Court: Judges Participated in the Final Criminal Judgment shall recuse themselves from the case in Retrial Process (Taiwan)

Pei-Ching Ji、Tina Lee

There are no regulations in the Code of Criminal Procedure regarding whether  judges participated in the final criminal judgment shall recuse themselves from the case in Retrial Process. In practice, the Court’s case distributing procedure avoids assigning retrial cases to the original Judge, which, in effect, achieves the purpose of prohibiting the original trial judge from handling the retrial procedure of that same case. However, for Courts with a relatively smaller number of judges, there may not be enough of manning quotas to avoid repeated assignments of the same case. In such events, there remain discrepancies regarding whether a judge should recuse themselves from or be allowed to hear for the retrial of the same case.

In response to the abovementioned discrepancies, the Criminal Division of the Supreme Court has consulted and made a unified legal opinion in 110-Tai-Kang-Zi-1501 Criminal Adjudication, agreeing that  judges participated  in the final decision shall recuse themselves from the retrial process of the same case. The main points of the decision are as follow:

1. “Where the judge had participated in the decision at a previous trial.” In Article 17, Paragraph 8 of the Code of Criminal Procedure refers to the judge who had participated in the decision of a lower court (refer to Judicial Interpretation 178), and thus retrial judges who had participated in the final decision should not be among lists of circumstances that entail a judge’s avoidance. However, the purpose of a retrial is to overturn incorrect decisions. Accordingly, if a judge gets to hear the retrial of a case that he/she had adjudicated before, it would be difficult for people to trust that the judge can review their own judgment as a neutral third party without prejudice.

2. Judicial Interpretation No.256 expressly interpreted the Code of Civil Procedures as indicating that, in regards to the rules on a judge’s self-avoidance, in order to maintain the interests and fairness at different levels of trial, judges shall not participate in the retrial process of a case he/she had adjudicated before. The Code of Criminal Procedures is no less strict in terms of fairness and due process compared to the Code of Civil Procedures. Thus, for the sake of the legal system’s consistency, judges shall recuse themselves from the retrial process of cases he/she had adjudicated before so as to ensure people’s right to due process under a fair Court.

3. Regarding the number of recusals, for Courts with limited judges, they shall be limited to only one recusal with regards to retried cases. If the Court could not exercise its judicial power because there are no other judges eligible for a case’s retrial due to the limit, the immediate Superior Court may decide to transfer the case to another jurisdiction.