Case on Electronic Monitoring of Prisoners When They Appear in Court

[2016Hun-Ma191, May 31, 2018] * First Draft

In this case, the Court held that the constitutional complaint against the “Plan on Electronic Tracking Devices to Prevent Prisoner Abscondence,” which prescribes that electronic devices be attached to the ankles of prisoners to prevent flight where such prisoners confined in prisons or detention centers go outside the facility, is non-justiciable. The Court ruled that the act of attaching electronic devices as per the above Plan does not infringe upon the right to personality and right to physical freedom of the complainants, who are prisoners.

Background of the Case

The complainants were prisoners who had been convicted and confined in prisons or detention centers, and were designated as prisoners of concern as per Items 8 and 13 of Article 210 of the Enforcement Rules of the Administration and Treatment of Correctional Institution Inmates Act (hereinafter referred to as the “Criminal Administration Act”).

The correctional officer in charge, citing the risk that the complainants could flee given that they were prisoners of concern, attached electronic devices to the ankles of the complainants from when they left the correctional institution to appear in court until when they returned.

The complainants filed this constitutional complaint, claiming that the act by the prison warden and head of the detention center, the respondents, of ordering the attachment of electronic devices to their ankles, infringed upon their fundamental rights including their physical freedom, and that the Plan on Electronic Tracking Devices to Prevent Prisoner Abscondence (official document issued on November 13, 2015, by the Korea Correctional Service) which served as the grounds for such attachment violated the Constitution.

Subject Matter of Review

The subject matter of review in this case is whether (1) the part concerning prisoners appearing in court (Step 2) of prisoners subject to attachment of electronic devices in “V. Operational Plan for Electronic Tracking Devices Attached on Prisoners” in the Plan on Electronic Tracking Devices to Prevent Prisoner Abscondence (official document issued on November 13, 2015, by the Korea Correctional Service) (hereinafter referred to as the “Plan”) and (2) the act by the prison warden and head of the detention center, the respondents, of ordering the attachment of electronic devices to the complainants (hereinafter referred to as the “Attachment”) infringed upon the fundamental rights of the complainants.

Provision at Issue

Plan on Electronic Tracking Devices to Prevent Prisoner Abscondence (official document issued on November 13, 2015, by the Korea Correctional Service)

V. Operational Plan for Electronic Tracking Devices Attached on Prisoners

[1] Trial Operation and Persons Subject to Attachment

□ Prisoners subject to attachment

Step 2: Prisoners visiting external hospitals or appearing in court, etc. (1 month, including those subject to Step 1)

Step 1 & 2: Prisoners subject to Items 7, 8 and 13 of Article 210 (Prisoners of Concern) of the Enforcement Rules of the Administration and Treatment of Correctional Institution Inmates Act

Summary of the Decision

1. Whether the request for adjudication on the Plan is justiciable

The Plan is an official document sent by the Korea Correctional Service, an affiliation of the Ministry of Justice, to prison wardens. It is merely an internal action or simple implementation measure taken by an administrative agency, deciding the scope of correctional institutions to test the “Safe Custody Measures Using Electronic Devices” prescribed by the Criminal Administration Act and the Enforcement Rules thereof, and prescribing the relevant action plans; thus, it is not an order or instruction that has externally binding force. The Plan does not incur any legal effect with regard to the people’s rights and obligations, and therefore does not constitute an exercise of governmental power which is subject to constitutional complaints as prescribed by Article 68 Section 1 of the Constitutional Court Act. Therefore, the request for a constitutional complaint against the Plan is nonjusticiable.

2. Whether the Attachment infringes on fundamental rights

a. Whether the principle of statutory reservation has been violated

The purpose of the Attachment is to prevent prisoners from escaping when they are outside of correctional institutions, by monitoring whether they are within the scope of custody, and whether they are maintaining a certain distance with the guarding officer. Since the Attachment is grounded on Sections 1 and 4 of Article 94 of the Criminal Administration Act and Article 160 Item 3 and Article 165 of the Enforcement Rules of the Criminal Administration Act, it does not infringe upon the right to personality and physical freedom of the complainants, who are prisoners, by violating the principle of statutory reservation.

b. Whether the principle of due process has been violated

Unlike the attachment of electronic tracking devices under the Act on Probation and Electronic Monitoring, etc. of Specific Criminal Offenders, the Attachment is applied to prisoners under the Criminal Administration Act for maintaining safety and order in correctional institutions, and does not require a court order beforehand. Further, it is inevitable that the fundamental rights of prisoners, such as physical freedom, are restricted to seek safety in the correctional institutions and maintainthe order of life under detention; matters executed under statutes related to criminal administration are not subject to the provisions of the Administrative Procedures Act on seeking or presenting opinions (Article 3 Section 2 Item 6 of the Administrative Procedures Act); the attachment of electronic devices is applied to prisoners designated as prisoners of concern, who may attempt flight; and the Criminal Administration Act provides measures on applying for interviews with wardens or filing petitions with the Minister of Justice (Articles 116 and 117). Considering these facts, the Attachment does not infringe upon the right to personality and physical freedom of the complainants, who are prisoners, by violating the principle of due process.

c. Whether the rule against excessive restriction has been violated

The Attachment intends to prevent flight by prisoners outside of the correctional institutions, enable swift action and apprehension when prisoners manage to escape, and guarantee the safety of the public, by attaching electronic devices to prisoners who are going outside the correctional institution to be hospitalized in an external medical institution, to be transferred, to appear in court, or for other reasons, Therefore, the legislative purpose is legitimate, and the appropriateness of means satisfied.

When a prisoner runs away with an electronic device attached, correctional officers will be immediately alerted, allowing swift apprehension, and as long as the prisoner does not go beyond a certain distance after escaping, he or she can be arrested upon pursuit. Therefore, electronic devices are convenient tools for preventing flight, and it is difficult to find any alternative.

The Attachment is limited to those among prisoners of concern who have been recognized as being likely to escape, and is only applied temporarily when it is

necessary for such prisoner to go outside of the correctional institution. Furthermore, the correctional officer records any use of electronic devices in the escort plan or prisoner register, to prevent the attachment of electronic devices from being abused.

The Attachment prevents in advance accidents that involve prisoner abscondence, and enables swift apprehension even if they do occur, thus guaranteeing public safety. In other words, the public interest that would be achieved by attaching electronic devices outweighs the restriction of fundamental rights that must be borne by prisoners.

Therefore, the Attachment does not infringe upon the right to personality and physical freedom of the complainants, who are prisoners, by violating the rule against excessive restriction.

Summary of Concurring Opinion Regarding the Plan by One Justice

(1) Whether administrative rules are subject to constitutional complaints, and whether they are considered a law or regulation should be decided solely by the inherent purpose, structure and function of constitutional complaints and administrative suits. (2) While administrative rules differ from a law, rules and regulations of the Supreme Court and regulatory orders in terms of formation, procedures, formats and mechanisms, it cannot be denied that they are also acts of sovereignty of a general and abstract nature; thus, there is no particular reason for only administrative rules to be placed under examination on whether they are subject to constitutional complaints, depending on whether they have external binding force. (3) Even if administrative rules are only internally effective, they require regulation as they may restrict the fundamental rights of affiliated public officials. (4) While the matter of whether or not particular administrative rules have external binding force will most probably cause division and confusion, it makes no contribution in particular to specific remedial procedures in constitutional complaints. (5) Whether the complainants’ legal relations or legal position will be unfavorably affected by administrative rules is decided while reviewing whether fundamental rights may be infringed upon, and that the self-relatedness and directness requirements have been satisfied; thus this does not need to be considered to determine whether administrative rules are subject to constitutional complaints. Taking into account the aforementioned facts, administrative rules are acts of sovereignty exercised by the

administrative authority and thus should be deemed as being subject to constitutional complaints, regardless of whether they have external binding force.

Even if administrative rules are recognized as being subject to constitutional complaints, there should be no concern over the scope of constitutional complaints becoming too extensive, as the directness requirement under Article 68 Section 1 of the Constitutional Court Act must be satisfied. Provided, in cases where administrative rules incur benefits such as the acquisition of rights or exemption of duties, or where national agencies or public organizations engage in contracts under public or private law on equal terms with the general public based on administrative rules, and not as a sovereign authority, constitutional complaints made directly against administrative rules should be recognized as justiciable, being exceptions to the directness requirement.

The Plan sets forth the details on how correctional officers should exercise their discretion in attaching electronic devices, under which correctional officers attach electronic alarms to prisoners; which means the Plan falls under the category of administrative rules. This is true even though the Korea Correctional Service, an affiliation of the Ministry of Justice, sent the Plan to prison wardens as an official document. Although it is standard procedure, and in fact advisable, for administrative rules to be sent as a legal document listing provisions, this does not mean that the administrative rules themselves are a formality.

Provided, while the Plan may be subject to constitutional complaints, the fundamental rights of the prisoners are directly restricted by the correctional officer’s attachment of the electronic device in line with the Plan, and not the Plan per se. Therefore, the Plan does not directly infringe upon the fundamental rights of the complainants, and the request for adjudication in this regard is nonjusticiable.

* This translation is provisional and subject to revision.