大法官解釋 釋字第708號 |
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| 公佈日期： |
| 解釋爭點 |
| 外國人受驅逐前由移民署為暫時收容，未有即時司法救濟；又逾越暫時收容期間之收容，非由法院審查決定，均違憲？ |
| 2.Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him. 3.Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgement. 4.Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful. 5.Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation. [13]The Constitutional Council’s decision of 25 February 1992 (Decision 92-307 DC of 25 February 1992). [14]“while the power to decide on detention is conferred by the statute on an administrative authority, the legislature must provide appropriately for the intervention of the judicial authority so that it can exercise its review responsibility and power.”See paragraph 15. [15]Section 8 of The Law of 6 September 1991 amending the Ordinance of 2 November 1945. [16]See paragraph 17. [17]Eur. Court HR, Amuur v. France, no. 19776/92, 25 June 1996, Reports 1996-III. [18]See paragraphs 43, 50 & 53. [19]參見解釋理由書第七段。 [20]訴訟權之意涵，參見湯德宗，〈憲法解釋與訴訟權保障—以公務員保障與懲戒為中心〉，《憲政時代》，第30卷3期，頁353～389（2005年1月）；ECHR §6(1)(“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.⋯”)(emphasis added). [21]參見釋字第六五三號解釋（「憲法第十六條保障人民訴訟權，係指人民於其權利遭受侵害時，有請求法院救濟之權利（本院釋字第四一八號解釋參照）。基於有權利即有救濟之原則，人民權利遭受侵害時，必須給予向法院提起訴訟，請求依正當法律程序公平審判，以獲及時有效救濟之機會，此乃訴訟權保障之核心內容」）。 [22]參見移民法（100/11/23）第三十八條第二項但書（「但受收容人所持護照或旅行文件遺失或失效，尚未能換發、補發或延期者，得延長收容至有效證件備齊後三十日止」）。 [23]See ECHR, Guide on Article 5, paragraph 95 (“Any deprivation of liberty under the second limb of Article 5 §1(f) will be justified only for as long as deportation or extradition proceedings are in progress. If such proceedings are not prosecuted with due diligence, the detention will cease to be permissible under Article 5 §1(f) (A. and Others v. the United Kingdom [GC], § 164)”) (emphasis added). [24]See Zadvydas v. Davis, 533 U.S. 678 (2001)（依驅逐出境之命令，拘禁外國人超過六個月者，政府機關應舉證仍有拘禁之必要，始得延長拘禁）。 |
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