Zhu Yu-te et al. filed a petition with the Constitutional Court regarding 102-Jian-Shang-Zi criminal judgment No. 451 of the Taiwan Kaohsiung District Court and the constitutionality of Article 309 of the Criminal Code. The National Human Rights Commission (NHRC) appointed commissioner Kao Yung-cheng to testify in court as an expert body on the constitutionality of Criminal Code Article 309 and its conformity with international human rights conventions and standards.
Based on the International Covenant on Civil and Political Rights (ICCPR) and the concluding observations and recommendations approved by the International Review Committee, public insults do pose a threat to freedom of speech to a certain extent. However, according to General Comment No. 34 on the ICCPR and the Declaration on Ten Key Threats to Freedom of Expression proposed by the United Nations Special Rapporteur, disproportionately severe punishment may be seen as a potential infringement on free speech and must be placed under stringent review.
Kao highlights the lack of objective criteria for determining whether certain acts constitute a violation of Criminal Code Article 309, and each judge may have a varying interpretation and understanding of “insults” depending on their subjective feelings and cultural context. This uncertainty in court opinion and possible criminal punishment is inconsistent with the ICCPR’s guidelines on the protection of free speech.