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？ |
| [5]BPP Principle 4: Any form of detention or imprisonment and all measures affecting the human rights of a person under any form of detention or imprisonment shall be ordered by, or be subject to the effective control of, a judicial or other authority. [6] BPP Principle 5: “1. These principles shall be applied to all persons within the territory of any given State, without distinction of any kind, such as race, colour, sex, language, religion or religious belief, political or other opinion, national, ethnic or social origin, property, birth or other status.” [7]BPP Principle 10:“Anyone who is arrested shall be informed at the time of his arrest of the reason for his arrest and shall be promptly informed of any charges against him.” [8]BPP Principle 11: “A person shall not be kept in detention without being given an effective opportunity to be heard promptly by a judicial or other authority. A detained person shall have the right to defend himself or to be assisted by counsel as prescribed by law.” [9]BPP Principle 16: “1. Promptly after arrest and after each transfer from one place of detention or imprisonment to another, a detained or imprisoned person shall be entitled to notify or to require the competent authority to notify members of his family or other appropriate persons of his choice of his arrest, detention or imprisonment or of the transfer and of the place where he is kept in custody.” [10]BPP Principle 16: “2. If a detained or imprisoned person is a foreigner, he shall also be promptly informed of his right to communicate by appropriate means with a consular post or the diplomatic mission of the State of which he is a national or which is otherwise entitled to receive such communication in accordance with international law or with the representative of the competent international organization, if he is a refugee or is otherwise under the protection of an intergovernmental organization.” [11]此處亦可參酌釋字第653號之前例。該號解釋之解釋客體為羈押法第6條及其施行細則第14條第1項規定，其中羈押法第6條明定受羈押之刑事被告認看守所之處遇為不當者，得向法官、檢察官或視察人員提出申訴；雖未限制受羈押被告經向上開人員為申訴後，不得再向法院提起訴訟以為救濟，然實務見解長期受限於該條規定制定時之時空背景，而認受羈押被告並無進行司法審判尋求救濟之權利。該號解釋之多數意見最終係以羈押法第6條之立法背景及意旨出發，佐以長期司法實務之上述見解，而宣告該規定有關不得提起司法救濟之部分牴觸憲法第16條保障人民訴訟權之意旨，以打破法院見解不得成為釋憲客體之限制，頗值參酌與省思。 |
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