Case on the Right to Meet Counsel of a Refugee Detained for Repatriation at Incheon International Airport

[2014Hun-Ma346, May 31, 2018] * First Draft

In this case, the Court held thatthe rejection by the head of Incheon Airport Immigration Office of the request to meet with counsel by a refugee detained in the waiting room for repatriation at Incheon International Airport, infringed upon the right to receive assistance of counsel and thus violated the Constitution.

Background of the Case

(1) The complainant is a foreigner of Sudanese nationality. Upon arriving at Incheon International Airport on November 20, 2013, the complainant applied for recognition of refugee status, and was detained in a waiting room for repatriation at Incheon International Airport until it was decided whether the request for recognition would be referred for refugee status screening. The respondent, the head of the Incheon Airport Immigration Office, refused to refer the complainant for refugee status screening on November 26, 2013, and the complainant was continuously detained at the waiting room for repatriation at Incheon International Airport.

(2) On November 28, 2013, the complainant filed a lawsuit to annul the decision to deny a referral for refugee status screening, and on December 19, 2013, filed a habeas corpus petition to seekrelease from confinement. While these two lawsuits were pending, the complainant’s counsel requested the respondent to allow a meeting with the complainant on April 25, 2014, but the respondent refused.

(3) The complainant filed this constitutional complaint on April 30, 2014, claiming that the respondent’s refusal to allow visitation by a counsel infringed upon the right to receive assistance of counsel as prescribed in the main text of Article 12 Section 4 of the Constitution, and the right to trial.

Subject Matter of Review

Thesubject matter of review in this case is whether the respondent’s refusal on April 25, 2014, to accept the complainant’s request to meet with his/her counsel, infringes upon the fundamental rights of the complainant, who is being detained in a waiting

room for repatriation at Incheon International Airport after being denied a referral for refugee status screening (hereinafter the respondent’s refusal on April 25, 2014, to allow visitation by counsel is referred to as the “disallowance of visitation by counsel”).

Summary of the Decision

1. Whether the respondentwas the actor that detained the complainant in a waiting room for repatriation

The respondent is the joint decision-maker on the management and operation of the waiting room for repatriation, a detention facility; exercised decisive authority in the commencement and termination of the complainant’s detention; shared a portion of the detention costs; and by detaining the complainant enjoyed the administrative benefit of conveniently controlling persons denied entry into the country. Therefore, the respondent is the actor that, in conjunction with the Incheon Airport Airline OperationCouncil, detained the complainant.

2. Whether the right to receive assistance of counsel prescribed in the main text of Article 12 Section 4 of the Constitution is immediately guaranteed for persons who have been detained under administrative procedures

Given the language of the main text of Article 12 Section 4 of the Constitution, the structure of the provisions of Article 12 of the Constitution, the nature of the right to assistance of counsel, and the purpose of the Constitution’s guarantee of physical freedom, the “detainment” prescribed in the main text of Article 12 Section 4 includes not only detention under judicial proceedings, but also detention by administrative procedures. Therefore, the right to assistance of counsel prescribed in the main text of Article 12 Section 4 of the Constitution is immediately guaranteed for persons who have been detained in the latter case as well.

The Constitutional Court previously delivered a decision to the contrary (2008Hun-Ma430, August 23, 2012), opining that the right to assistance of counsel prescribed in the main text of Article 12 Section 4 of the Constitution intends to guarantee the suspect’s or defendant’s right to self-defense in criminal proceedings, and should not be applied to procedures for protection or deportation under the Immigration Act. Such decision is to be reversed within the extent to which it conflicts with the decision in this case.

3. Whether the complainant was under detention in the waiting room for repatriation

The waiting room for repatriation at Incheon International Airport is a closed-off space with a steel door for an entrance, and entry into the room is controlled by the Incheon Airport Airline Operation Council. Therefore, the complainant could not leave the waitingroom to venture into the transit area, and had no way of communicating with the outside world aside from a payphone. The complainant had been detained in the waiting room for repatriation for approximately five months when the respondent did not allow visitation by counsel, and could not have expected to leave the waiting room at his/her discretion until the lawsuit on the revocation of the decision to deny referral for refugee status screening was completed. Since the complainant had already filed a habeas corpus petition to seek release from confinement in the waiting room when the respondent made the disallowance of visitation by counsel, the complainant cannot be deemed to have been staying in the waiting room at will. Therefore, the complainant was being “detained,” as prescribed in the main text of Article 12 Section 4 of the Constitution, when the disallowance of visitation by counsel was made.

Considering the specific and practical circumstances faced by the complainant, who had fled persecution by his/her country of citizenship, the complainant’s freedom to depart the country is merely an abstract possibility that in reality cannot be realized. Therefore, suchnotional freedom to depart the country is not an element that should be considered when deciding whether the complainant was being “detained” in the waiting room for repatriation. Even if such possibility is taken into account, the complainant was prohibited from leaving the waiting room to enter the transit area for a long period, which confirms that the complainant was detained in the waiting room, which was a closed-off area.

4. Whether the disallowance of visitation by counselin this case infringed upon the complainant’s right to receive assistance of counsel

The disallowance of visitation by counselin this case restricted the complainant’s right to assistance of counsel with no legal ground, and thus infringed upon the complainant’s right to assistance of counsel.

Further, it is not likely that allowing the complainant to meet with his/her counsel would interfere with guaranteeing national security, maintaining order or seeking public

welfare. The complainant’s right to meet with his/her counsel can be properly guaranteed without particularly disrupting national security or order in the transit area if certain measures are taken, for example restrictingmeeting venues to the minimum extent necessary. Therefore, the disallowance of visitation by counsel in this case cannot be considered a restriction of fundamental rights required for guaranteeing national security, maintenance of order, andpublic welfare. From this viewpoint, the disallowance of visitation by counsel likewise infringes upon the complainant’s right to receive assistance of counsel.

Summary of Concurring Opinion of Two Justices

1. Whether the right to receive assistance of counsel has been infringed upon

Foreigners who have been forbidden entry into the country have merely been denied entry into the Republic of Korea, and can always leave the waiting room for repatriation by voluntarily departing for his/her home country or a third country. Therefore, the restriction on the “freedom of movement” of foreigners who have been denied entry into the country take on a unique nature in that such restriction depends on the foreigner’s volition.

It is necessary to restrict the “freedom of movement” of foreigners who have been denied entry into the country, in order to guarantee national security, maintain order and promote public welfare. Further, such restriction of freedom occurred against the complainant in the course of controlling his/her continued attempts to enter the Republic of Korea despite denial of entry, even though the complainant could have voluntarily departed the country. Therefore, this restriction of freedom is not completely unrelated to the volition of the complainant. Also, the reason the complainant was made to stay for over five months in the waiting room for repatriation was because he/she filed a lawsuit seeking the revocation of the denial of referral for refugee status screening, and had to stay for an extended period at the port of entry and departure for the litigation process.

Considering such facts, the complainant cannot be deemed as having been “detained” as established by the Constitution, and thus is not eligible for the right to receive assistance of counsel granted to persons detained as prescribed in Article 12 Section 4 of the Constitution. Therefore, the disallowance of visitation by counsel (hereinafter referred to as “disallowance of visitation by an attorney” in the following concurring

opinion) does not restrict the complainant’s constitutional right to receive assistance of counsel.

2. Whether the right to trial has been infringed upon

The complainant, who was confined in the waiting room for repatriation, filed a habeas corpus petition to argue the fairness of such confinement, and desired the assistance of an attorney in relation to the lawsuit. Therefore, the right to trial in this case is an essential right for effectively guaranteeing physical freedom, which is a human right. Thus, the complainant is a bearer of the right to trial, despite being a foreigner.

Guaranteeing the right to visitation between a person staying in a waiting room for repatriation at a port of entry and departure for being denied entry into the country and an attorney comprises part of the right to trial guaranteed by the Constitution. Therefore, the disallowance of visitation by an attorney restricts the complainant’s right to assistance by an attorney, as part of the right to trial.

The disallowance of visitation by an attorney has no legal ground, and is not a restriction of fundamental rights necessary for guaranteeing national security, maintaining order, and promoting public welfare, and thus infringes upon the complainant’s right to trial.

*This translation is provisional and subject to revision.