Case on the Procedure for the Issuance of a Warrant to Collect DNA Samples

[2016Hun-Ma344·2017Hun-Ma630 (consolidated), August 30, 2018] * First Draft

In this case, the Court held that Article 8 of the Act on Use and Protection of DNA Identification Information, which does not provide any procedure by which a person subject to collection of DNA samples may express his/her opinion or appeal against the issuance of a warrant, does not conform to the Constitution since it violates the principle of proportionality and thus infringes on the complainants’ right to trial.

Background of the Case

The complainants are persons who were indicted and judged guilty on the charge of committing a crime specified in Article 5 of the Act on Use and Protection of DNA Identification Information (“the DNA Act”).

After the conviction, the prosecutors obtained and executed a warrant issued by the courts to collect DNA samples for the identification of the complainants. The complainants filed a constitutional complaint against Article 8 of the DNA Act, which prescribes the procedure for the issuance of a warrant to collect DNA samples.

Subject Matter of Review

The subject matter of review is whether Article 8 of the DNA Act (enacted by Act No. 9944 on January 25, 2010) (“the Instant Provision”), which does not provide any procedure by which a person subject to collection of DNA samples may express his/her opinion or appeal against the issuance of a warrant, infringes on the complainants’ fundamental rights to trial.

Summary of the Decision

1. Whether the Instant Provision infringes on the complainants’ right to trial

The Instant Provision empowers a neutral judge to issue a warrant for collecting DNA samples, which is an act of restricting physical freedom, after detailed review of each application for such warrants, thus enabling judicial regulation by judges concerning collection of DNA samples. Therefore, the Instant Provision is considered to serve a

legitimate purpose and to be an appropriate means.

The issuance of a warrant to collect DNA samples is a grave matter for a person subject to such collection; it is a matter of restricting that person’s fundamental rights, including physical freedom and right to informational self-determination, through the forcible collection of his/her DNA samples and the permanent storage and management of relevant information. Nevertheless, the Instant Provision fails to guarantee the procedural opportunity for the person subject to collection of DNA samples to express his/her opinion during the procedure for the issuance of a warrant to collect DNA samples; it further fails to provide procedural remedies by which the person subject to collection of DNA samples may appeal against the warrant after its issuance or request a review on the constitutionality of collection of DNA samples. The Instant Provision, marked by such legislative deficiencies, unduly limits the right to trial of the complainants, who are subject to collection of DNA samples, and thus violates the principle of minimum restriction.

Although it is true that a warrant issued under the Instant Provision enables gathering of DNA identification information, which serves the public interest by contributing to crime investigation and its prevention in the future, the legislative incompleteness as well as inadequacy of the Instant Provision render the right to trial nugatory and treat the person subject to collection of DNA samples as only subjects of crime investigation and prevention. In this regard, the balance of interests is deemed not to have been reached.

Therefore, the Instant Provision violates the principle of proportionality and thus infringes on the complainants’ right to trial.

2. Decision of Nonconformity to the Constitution and Order for Continued Application

The Court finds it desirable to entrust the legislature to decide how to correct the legislative deficiencies of the Instant Provision―whether to merely establish a procedure by which the person subject to collection of DNA samples may express his/her opinion, or to establish a procedure for appeal against the issuance of a warrant as well, or to further establish a request procedure for constitutional review of the act of collecting DNA samples along with the above two procedures―and to determine the specific content and method of the said procedures. Although the amendment of the Instant Provision can remove the aforesaid legislative deficiencies, declaring the Instant

Provision unconstitutional and instantly void through the decision of unconstitutionality would create a serious legal vacuum, namely the absence of legal grounds for collection of DNA samples. Therefore, with respect to the Instant Provision, the Court issues the decision of nonconformity to the Constitution in lieu of the decision of unconstitutionality and also orders continued application of the Instant Provision until the legislature amends it.

Summary of Dissenting Opinion of Three Justices

Collecting DNA samples from convicted persons, including the complainants, amounts to inflicting additional legal punishment on a person who has already been imposed of a criminal punishment. Such legal punishment may be administered directly through laws without the permission of the court as long as it does not violate the principle of proportionality. In order to examine whether legal punishment breaches the principle of minimum restriction, various factors should be taken into account separately, such as the nature and extent of the interests that have been undermined by legal punishment, the values of society and efficiency of state action that are likely to be promoted through legal punishment, the requirements and procedure for legal punishment, the cost of the procedure for legal punishment, the opportunity for appeal, the relevance between legal punishment and the crimes subject to that legal punishment, the type and severity of criminal punishment imposed on the convicted persons, and public sentiments.

The DNA Act sets out different provisions for DNA sample collection methods and procedures, thus limiting physical freedom to a minimal degree; it also strictly regulates the disposal of DNA samples and the management of the information of such samples, thus reducing the risk of infringing on the right to informational self-determination to a minimal level as well.

We do not deem that the person subject to collection of DNA samples does not have the opportunity to express his/her opinion during the procedure for the issuance of a warrant to collect DNA samples, since the prosecutor must submit an application for the issuance of a warrant to the court, which includes reasons for application as well as material establishing a prima facie case, and the court thereafter decides on the issuance of the warrant based on the application, examining whether the person subject to collection of DNA samples was convicted for a crime prescribed by law, whether, given the severity of criminal punishment imposed on the person subject to collection of DNA samples, the issuance of the warrant to collect DNA samples violates the principle of

proportionality, and whether the person subject to collection of DNA samples consented to such collection.

The person subject to collection of DNA samples does not need to be provided with strict due process guarantees as in the case of the procedure for the issuance of an arrest warrant, nor should he/she be necessarily given the procedural opportunity to seek a remedy after the issuance of the warrant to collect DNA samples, since DNA samples are collected from convicted persons and such collection does not severely limit their fundamental rights; moreover, the storage and management of DNA samples only partly restrict the fundamental rights of the person subject to collection of DNA samples.

In light of the foregoing considerations, the Instant Provision does not violate the principle of proportionality and thus does not infringe on the right to trial of the complainants.

*This translation is provisional and subject to revision.