Case on the Restriction of Voting Rights of Sentenced Persons

[2016Hun-Ma292ㆍ568 (consolidated), May 25, 2017]

In this case, the Constitutional Court held that the part related to restricting the voting rights of persons who have been sentenced to imprisonment with prison labor for at least one year in Article 18 Section 1 Item 2 of the Public Official Election Act does not infringethe complainants’ voting rights, and thus does not violate the Constitution.

Background of the Case

1.On January 28, 2014, the Constitutional Court held in 2012Hun- Ma409, etc. that the part in Article 18 Section 1 Item 2 of the former Public Official Election Act (amended by Act No. 7681 on August 4, 2005, and before amendment by Act No. 13497 on August 13, 2015), related to the complete restriction of voting rights of all prisoners, does not comply with the Constitution, and ordered that the abovementioned provision continue to be applied until amended by December 31, 2015.

2. The relevant part of Article 18 Section 1 Item 2 of the Public Official Election Act (amended by Act No. 13497 on August 13, 2015) was amended to prescribe that any person sentenced to imprisonment with prison labor for at least one year, but whose sentence execution has not been terminated, shall be disfranchised. This provision entered into force on January 1, 2016.

3. The complainants were sentenced to imprisonment with prison labor for at least one year, and were serving their sentences or had been granted parole. Thus, they were deemed “ a person who is sentenced to imprisonment with prison labor for at least one year, but whose sentence execution has not been terminated,” and were subsequently unable to exercise their right to vote in the election of members of the 20th National Assembly, which took place on April 13, 2016. Thereupon, the

complainants filed a constitutional complaint, claiming that Article 18 Section 1 Item 2 of the Public Official Election Act infringed their right to vote.

Subject Matter of Review

The subject matter of review in this case is whether the part concerning “A person who is sentenced to imprisonment with prison labor for at least one year, but whose sentence execution has not been terminated” in the main text of Article 18 Section 1 Item 2 of the Public Official Election Act (amended by Act No. 13497 on August 13, 2015) (hereinafter referred to as the “Instant Provision”) infringes the complainants’ fundamental rights, subsequently violating the Constitution. The Instant Provision reads as follows:

Provision at Issue

Public Official Election Act (amended by Act No. 13497 on August 13, 2015)

Article 18 (Disfranchised Persons)

(1)Any of the following persons shall be disfranchised as of the election day:

2.A person who is sentenced to imprisonment withor withoutprison labor for at least one year, but whose sentence execution has not been terminatedor whose sentence execution has not been decided to be exempted: Provided, That a person who is under the suspension of the execution of said sentence shall be excluded therefrom.

Summary of the Decision

The purpose of the Instant Provision is to impose a social and criminal restriction on sentenced persons who have failed their basic

duties as members of a community, and to enhance a law-abiding spirit in them as well as in the general public. Given the sentencing customs of the court, persons sentenced to at least one year of imprisonment with prison labor have been acknowledged in the course of proceedings as persons who have inflicted considerable harm on the community. Therefore, it is necessary to subject such persons to social and criminal restrictions and to reinforce their observance of the law. The restriction on voting rights imposed by the Instant Provision is valid until the sentence execution is terminated, which means that the gravity of criminal liability is proportionate to the period for which voting rights are restricted. The Instant Provision cannot be deemed to impose an unnecessary restriction for restricting the right to vote regardless of the type of crime, whether it was committed by negligence or with deliberate intent; regardless of the legal interest that has been breached;and regardless of whether parole, a discretionary administrative dispositionissued during the execution of the sentence, has been ordered. Thepublic interest of imposing a criminal and social restriction and reinforcinga law-abiding spirit, by restricting the voting rights of persons sentenced to at least one year of imprisonment with prison labor, cannot be deemed less significant than the personal disadvantage faced by the sentenced person who cannot exercise voting rights during the period of execution of sentences. Therefore, the Instant Provision does not infringe the complainants’ voting rights for violating the rule against excessive restriction.

Summary of Dissenting Opinion of One Justice

Restricting the fundamental rights of a sentenced person, besides criminal punishment, can be justified only when it fits the purpose of rehabilitating sentenced persons. Since restricting the voting rights of sentenced persons does not comply with this purpose, the legislative purpose of imposing social and criminal punishment on sentenced persons is not legitimate. The majority opinion also points to the

legislative purpose of enhancing a law-abiding spirit in sentenced persons and in the general public, but does not explain in what way restricting voting rights contributes to this purpose. Depriving sentenced persons of their voting rights may lead to a sense of impotence as members of the society, anti-social behavior, and an abhorrence of politics. Thus, it cannotbe considered an appropriate means for improving their law-abiding spirit. Considering the above, the Instant Provision still infringes the voting rights of persons who have been sentenced to at least one year of imprisonment with prison labor, and thus violates the Constitution.