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舉發法務部長凌虐犯人

◎ 洪英花

一、強行灌水?構成刑法對人犯施以凌虐之嫌:我國刑法:有拘禁人犯職務之公務員,對人犯施以凌虐者,處有期徒刑;致重傷或死者,處更重之徒刑。媒體引述立委賴士葆稱:陳前總統無法排尿,法務部長下令灌水,再監視有無偷上廁所,等發現確無法排尿再送醫。郭正典醫師言「總統有攝護腺肥大且剛取樣要做細菌培養,大量灌水將使水分堆積,造成水腎、攝護腺更腫脹;又大量灌水可能使已有腦梗塞的病情迅速惡化。」此為部長等應知,卻用灌水查排尿,乃匪夷所思的非人道對待!北監典獄長有凌虐人犯罪嫌,法務部長亦涉嫌草菅人命,應依刑法重傷罪、傷害罪、公務員假借職務上權力犯罪加重處罰。

二、法務部長下令及相關人等對陳前總統灌水監視其如廁情形?法務部雖澄清,從未下令灌水或監視如廁,北監是遵照醫囑,讓他多喝水增加排尿。總統是否被動配合喝水不知,惟按聯合國四三一七三號決議〈保護所有遭受任何形式拘留或監禁的原則〉第二十二條「即使被監禁人同意,也不得對其做任何有損健康的醫學或科學實驗」,及三七一九四號〈關於醫務人員、特別是醫生在保護被監禁和拘留的人不受酷刑和其他殘忍、不人道或有辱人格待遇或處罰方面的任務醫療道德原則〉第二條、三九四六號〈保護人人不受酷刑或其他殘忍不人道或有辱人格待遇處罰宣言〉第七條規定「醫務人員特別是醫生如積極或消極的從事構成參與、共謀或企圖施行酷刑或不人道的待遇行為也一概以違犯刑法論。」旨在防杜監獄濫權踐踏被監禁人之生命健康權,即便是配合喝水,已造成健康重大危害。法務部長等均為涉嫌人,其片面澄清堪予置信?應速釐清。

三、國家主管當局應立即進行刑事、懲戒之公正調查:〈世界人權宣言〉第五條及我國已簽署之〈公民與政治權利公約〉第七條明定「對任何人不得施以酷刑或不人道的待遇」,聯合國三九四六號決議第九、十條「國家主管當局有相當理由相信已發生施行酷刑之行為時,儘管沒有正式申訴提出,也應立即進行刑事、懲戒之公正調查。」本案已有相當理由應公正調查。

四、法務部不應濫權裁量監獄行刑法第五十八條之適用:「監獄行刑人之保釋,法有明文規定其條件及程序者,自應恪遵法律辦理,監獄或其監督機關不得捨法定程序條件,另為裁量處分。」(行政法院實務參照)監獄醫療資源不足迭遭詬病,法務部及監獄若恣意限制陳前總統及一般受刑人保外就醫之法定條件致傷亡,應依刑法凌虐人犯、重傷、傷害等罪究責。

(作者現任法官)

自由時報 2012-10-01

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( Note:Thanks to Prof. Jay Tu to tranlate this article into English. - Taiwan eNews)

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Reporting Criminal Offenses of Minister of Justice for Abusing of Inmates

◎ Hong Ying Hua, the author is currently a presiding Judge

1. Force-feeding water to an inmate constitutes a criminal offense according to the criminal law in Taiwan.

The criminal law of Taiwan states that a prison staffer who is in charge of inmate detention should be sentenced to a jail term if he or she is found to be guilty of abusing inmates; If the abuse leads to grave injuries or even death, the term of the punishment to the staffer should be more severe. According to media reports, Legislator Lai Shyh-bao stated: Because Chen, the former president, was unable to urinate, the Minister of Justice ordered force-feeding of water, followed by close monitoring to verify if he would try to urinate to avoid other’s notice. After Minister of Justice realized that Chen indeed could not urinate, he finally gave orders to take Chen to a hospital. Dr. CD Kuo commented that "President Chen has prostate hypertrophy and a sample was just taken from him for culturing bacteria. If he was then force-fed a large amount of water, it could lead to water congestion, causing hydronephrosis and prostate swelling; force-feeding him a large amount of water might cause his existing cerebral infarction condition to deteriorate rapidly. "

The Minister of Justice should have known about this consequence; however, he still ordered the force-feeding of water to verify if Chen indeed could not urinate. Such disregard for humanity is unthinkable! The warden of Taipei Prison is suspect of abusing the inmate and Minister of Justice Minister is also alleged to disregard human life. Both of them should be prosecuted in accordance with the criminal law for their criminal offenses to cause seriously injury and assault. Because they are civil servants to commit these crimes using the powers they are entrusted, they should be punished more severely.

2. Regarding the water force-feeding, ordered by Minister of Justice and carried out by the prison staffers, and the subsequent monitoring to check if President Chen could urinate.

The Ministry of Justice issued a statement to deny the force-feeding and monitoring offenses. Instead, they claimed that they were merely following Doctors’ recommendation to have him drink more water for helping him urinate. We don’t know if President Chen consented to drink the water. However, in UN Resolution #43173, titled “Protection of All Persons under Any Form of Detention or Imprisonment”, Article 22 states that "Even with the consent from the person in custody, there shall be no medical or scientific experiments performed on the person to cause any harms” Moreover, Article 2 of Resolution #37194, titled “The moral principles of health care personnel, particularly Physicians, in the protection of prisoners and detainees against torture and other cruel, inhuman or degrading treatment or punishment” and Article 7 of Resolution #3946, titled “Protection of all persons from being Subjected to torture or other cruel, inhuman or degrading treatment punishment”, state that "The medical staff, especially doctors, who passively or willingly, conspire to or attempt to commit torture or inhuman treatment against an inmate, are guilty of a criminal offense. " All these articles aim at protecting inmates from being deprived of their basic rights to life and health. Even if President Chen consented to drink the water, the act of drinking water itself has resulted in a great harm to his health. Therefore, Minister of Justice and the prison staffers are suspects of criminal offenses. Is their clarification statement credible? This case should be investigated fully without delay.

3. The government authorities should impartially conduct criminal and disciplinary investigations immediately.

Article 5 of the Universal Declaration of Human Rights and Article 7 of the Convention on Civil and Political Rights, signed by Taiwan’s government, state that "No one should be subjected to torture or inhuman treatment." In addition, in United Nations Resolution #3946, articles 9 and 10 state that “The government authority, when there are substantial grounds to believe that acts of torture has occurred even though no formal complaint being raised, should impartially conduct criminal and disciplinary investigations immediately." For this case, there are substantial grounds to call for such impartial investigations.

4. The Ministry of Justice should not abuse its authority in interpreting the applicability of Article 58 of the Penal Code:
This article states that "The parole decision for an inmate should abide by the conditions and procedures defined by the law. The prison authority and its superior should not make their own decision without following the conditions and procedures defined by the law." The Administrative Court of Taiwan pointed out that many complaints have been filed for the shortage of medical resources in the prison. If the Ministry of Justice and the prison authority arbitrarily impose restrictions on the legal conditions of medical parole for former President Chen and other inmates to result in injuries or deaths to them, these government officials should be prosecuted in accordance with the criminal law for their criminal offenses of assault as well as abusing, harming, and causing serious injuries to inmates.

Liberty Times, October 1st, 2012

台灣e新聞