Case on Denying Visitation Rights to a Person Who Desires to Become a Defense Counsel

[2015Hun-Ma1204, February 28, 2019] * First Draft

Upon request of the criminal suspect’s family, the complainant of this case, a lawyer, asked for permission from the prosecutor in charge to visit the criminal suspect whose detention warrant was filed for during the interrogation, but the prosecutor did not take any steps to accept the request. The Court held that this infringed upon the right to visitation and communication of the complainant who desired to become a defense counsel, saying it is one of the basic rights specified in the Constitution and, therefore, the complainant can file a constitutional complaint for such infringement.

Background of the Case

The criminal suspect was arrested at 19:00 on October 5, 2015, and a detention warrant against him was filed for. The complainant, a lawyer, went to the Busan District Prosecutors’ Office at 19:00 on October 6, 2015, upon the request of the criminal suspect’s family, to ask for permission to visit the criminal suspect from the prosecutor in charge (hereinafter referred to as respondent prosecutor). The respondent prosecutor notified a correctional officer at the Busan Detention Center (hereinafter referred to as respondent guard) of the complainant’s visitation request. The respondent guard asked an officer responsible for visitation of outside persons about the process, before informing the respondent prosecutor that the visitation request was denied as the visitation was requested to be held after the working hours (09:00~18:00) stated in the State Public Officials Service Regulations according to Article 58 Paragraph 1 of Enforcement Decree of the Administration and Treatment of Correctional Institution Inmates Act. The respondent prosecutor did not take any further action about the visitation request and the complainant left the respondent prosecutor’s office without having a contact visit with the criminal suspect. The respondent prosecutor continued to interrogate the criminal suspect after that, and the complainant was not retained as the criminal suspect’s defense counsel.

The complainant filed a constitutional complaint on December 28, 2015, arguing that the denial by the respondents and Article 58 Paragraph 1 of Enforcement Decree of

the Administration and Treatment of Correctional Institution Inmates Act which was the legal ground for the denial infringed upon his basic right.

Subject Matter of Review

The subject matter of review in this case is whether the basic right of the complainant was infringed upon by 1) the respondents’ action at the Busan District Prosecutors’ Office that failed to address the complainant’s request to visit the criminal suspect at 19:00 on October 6, 2015 (hereinafter referred to as ‘denial by the prosecutor’ and ‘denial by the correctional officer’ respectively and ‘denial of this case’ collectively); and, 2) Article 58 Paragraph 1 of Enforcement Decree of the Administration and Treatment of Correctional Institution Inmates Act (wholly amended by Presidential Decree No. 21095, Oct 29, 2008) (hereinafter referred to as the ‘provision on the visitation hour’).

Provision at Issue

Enforcement Decree of the Administration and Treatment of Correctional Institution Inmates Act (wholly amended by Presidential Decree No. 21095, Oct 29, 2008)

Article 58 (Visitation) (1) Visitation of a detainee shall only be permitted during working hours every day (excluding holidays and other days determined by the Minister of Justice) under Article 9 of the State Public Officials Service Regulations.

Summary of the Decision

1. Whether Right to Visitation and Communication Is a Basic Right under the Constitution

The visitation and communication right that the criminal suspect and the accused (hereinafter referred to as ‘the suspect, etc.’) have to retain a person who desires to become a defense counsel should be protected as a basic right under the Constitution. The visitation and communication right of a ‘person who desires to become a defense counsel’ is in effect to enhance the right of the suspect, etc. to retain a defense counsel to obtain legal assistance. If this right to visitation and communication is not ensured, it would be difficult for the suspect, etc. to receive sufficient legal assistance by retaining an attorney. Thus, the visitation and communication right of a ‘person who desires to become a defense counsel’ is the essence of legal assistance for the suspect, etc., and must be viewed in a single context with the right of the suspect, etc. to visitation and communication with a ‘person who desires to become a defense counsel,’ which is a basic right under the Constitution. Hence, the visitation and communication right of a ‘person who desires to become a defense counsel’ should also be guaranteed as a basic right under the Constitution, to substantively ensure the right of the suspect, etc. to receive legal assistance from a ‘person who desires to become a defense counsel’ (hereinafter, the ‘defense counsel’ and the ‘person who desires to become a defense counsel’ are referred to as a ‘counsel, etc.’).

2. Exhaustion of Other Remedies

If the complainant files a quasi-appeal in a bid to cancel the denial by the prosecutor of the case, based on Article 417 of the Criminal Procedure Act, it is objectively uncertain whether or not the court would decide that there are sufficient legal interests for the court to make a substantial judgment and, subsequently, it is hard to expect the complainant to go through all the remedies. Therefore, the constitutional complaint filed by the complainant against the denial above should be accepted as an exception to the rule of exhaustion of other remedies.

3. Self-Relatedness

The provision on the visitation hour restricts visitation and communication between the criminal suspect and the counsel, etc. by limiting inmates to have visits only within the working hours specified in the State Public Officials Service Regulations.

This provision is applicable to visitation requests made by the counsel, etc., of which the warden of a correctional facility or a detention center approves or disapproves. As this provision is not applicable to the request of the counsel, etc. to be present during the suspect interrogation, of which the prosecutor or the judicial police officer approves or disapproves according to Article 243-2 Paragraph 1 of the Criminal Procedure Act, this provision cannot be the ground to decline or to restrict the request for presence during the suspect interrogation. Thus, if a correctional officer informs that the request of a ‘person who desires to become a defense counsel’ to be present during the suspect interrogation has been declined based on the provision on the visitation hour, self-relatedness of the basic right infringement by this provision cannot be acknowledged.

4. Whether Visitation and Communication Right of the Complainant Is Infringed upon

First, it is reasonable to believe that the complainant’s visitation and communication right with regard to the criminal suspect was restricted, as the complainant made a request to visit the criminal suspect to the respondent prosecutor, stayed at the prosecutor’s office and left the office without meeting the suspect after knowing that the respondent prosecutor denied the request. Second, it appears that the visitation and communication between the complainant and the suspect could be allowed at the prosecutor’s office or a separate counsel consultation room before the interrogation took place since the criminal suspect was set to be interrogated during the night of the day. Besides, given the specific time and place of the situation, the complainant who desired to become a defense counsel is not deemed to have tried to abuse the right to visitation and communication with the suspect, going beyond the practical limits or circumventing the intended purpose of physical incarceration. Third, while the right to visitation and communication of the counsel, etc. can be restricted based both on the Constitution and the legal statutes (see 2009Hun-Ma341 decided on May 26, 2011; and, 2015Hun-Ma243 decided on April 28, 2016), neither the Constitution nor the Criminal Procedure Act has a provision which restricts or declines the request of the counsel, etc. for his/her presence during the suspect interrogation. Fourth, the provision on the visitation hour cannot be the legal ground to decline or to restrict the visitation request of the counsel, etc., as it does not apply to the request of the counsel, etc. for his/her presence during the suspect interrogation which a prosecutor or judicial police officer approves or disapproves. When all these are taken into consideration, the complainant’s request to meet the criminal suspect was made within the right to visitation and communication guaranteed for the ‘person who desires to become a

defense counsel’, and the denial by the prosecutor infringed upon the complainant’s right to visitation and communication as it limited this right without constitutional or legal grounds.

Dissenting Opinion of Three Justices on the Denial by the Prosecutor

1. Whether Right to Visitation and Communication of a ‘Person Who Desires to Become a Defense Counsel’ Is the Basic Right under the Constitution

As three Justices presented separate opinions for the decision of 2012Hun-Ma610 on July 30, 2015, the right to visitation and communication of a ‘person who desires to become a defense counsel’ is an indirect and collateral effect coming from recognizing the right of an arrestee, etc. to receive legal assistance as a basic right. It is merely a de jure right formed in detail by individual laws such as the Criminal Procedure Act and, therefore, cannot be deemed as an ‘independent basic right’ protected by the Constitution.

First, the main purpose for the person who desires to become a defense counsel to visit and to communicate with the suspect, etc. lies in taking a case rather than providing legal assistance to the suspect, etc. Second, the disadvantage for the person who desires to become a defense counsel which results from a failure to visit the suspect, etc. or to take a criminal case is simply indirect, factual and economic interests (See 2002Hun-Ma756 decided on April 29, 2004). Third, the right to visitation and communication for the ‘person who desires to become a defense counsel’ is a right recognized to that ‘person who desires to become a defense counsel’ before any legal assistance is actually provided for the suspect, etc., regardless of the intention of the suspects, etc. When these are taken into account, the right to visitation and communication for a ‘person who desires to become a defense counsel’ and the right to receive legal assistance for the suspect, etc. cannot be viewed in a single context. It cannot be argued that failure to guarantee it as a constitutional right would make the right for the suspect, etc. to receive sufficient legal assistance null and void. Consequently, even when we are of the view that the essence of the right of the defense counsel to provide legal assistance for the suspect, etc. should be protected as a basic right under the Constitution, this does not necessarily mean, as the majority opinion argues, the right to visitation and communication for the ‘person who desires to become a defense counsel’ needs to be regarded as a basic right under the Constitution.

2. Exhaustion of Other Remedies

First, the denial by the prosecutor stopped the complainant from visiting the suspect, participating in the suspect interrogation and being appointed as the defense counsel, and the suspect was prosecuted under detention by a warrant. Second, no circumstance was found to believe that the court would rule that the legal interest is absent or extinguished if a quasi-appeal is filed by the complainant against the denial by the prosecutor, based on Article 417 of the Criminal Procedure Act. Third, when the presence of the defense counsel was denied during the suspect interrogation, the Supreme Court has reviewed on merits on the assumption that the legal interest is recognized even when the suspect interrogation was over (refer to 2008MO793 on September 12, 2008). Same principle should be applied when visitation was denied during the suspect interrogation. When these are taken into account, the complainant would be able to argue at a court by filing a quasi-appeal based on Article 417 of the Criminal Procedure Act, even though the denial by the prosecutor is already over. Therefore, the constitutional complaint raised by the complainant against the denial to visitation failed to meet the rule of exhaustion of other remedies.

* This translation is provisional and subject to revision.