Case on the Restriction on Treatment of Unconvicted Prisoners Subject to a Disposition for Forfeiture of Rights, and on the Notification of Reference Data for Sentencing

[2012Hun-Ma549, 2013Hun-Ma865 (consolidated), April 28, 2016]

In this case, the Constitutional Court held that the provision concerning Item 10 of Article 108 referred to in the main text of Article 112 Section 3 of the ‘Administration and Treatment of Correctional Institution Inmates Act,’ which restricts unconvicted prisoners from writing during the period in which their rights are forfeited, does not infringe on the freedom of expression, that the provision concerning Item 5 of Article 108 referred to in the main text of Article 112 Section 3 of the ‘Administration and Treatment of Correctional Institution Inmates Act,’ which restricts unconvicted prisoners from reading newspapers during the period in which they have been forfeited rights, does not infringe on the right to knowledge, and that notification to the court on the contravention of regulations, etc. by unconvicted prisoners subject to disciplinary forfeiture of rights as reference for sentencing does not infringe on the right to informational self-determination.

Background of the Case

(1) While being held as an unconvicted prisoner at ○○ Prison and ○○ Detention Center, disciplinary forfeiture of rights was imposed on the complainant for 30 days, and forfeiture of rights for nine days, for interfering with the duties of correctional officers, and for disturbing the peace, respectively.

(2) The wardens of ○○ Prison and ○○ Detention Center, under Article 112 Section 3 of the ‘Administration and Treatment of Correctional Institution Inmates Act’ (hereinafter referred to as the “Administration Act”), restricted treatment of the complainant, by

restricting writing (Item 10 of Article 108) and newspaper reading (Item 5 of Article 108), etc. during the period rights were forfeited, and notified ○○ Court and ○○ Court, the competent courts for holding the criminal trials involving the complainant, of the complainant’s acts of contravening regulations and the details of the disposition of disciplinary action, as reference data for sentencing.

(3) In response, the complainant filed a constitutional complaint claiming that the above provisions of the Administration Act and the notification of reference data for sentencing (hereinafter referred to as the “Notification at Issue”) infringed on the complainant’s fundamental rights.

Provision at Issue

Administration and Treatment of Correctional Institution Inmates Act (wholly amended by Act No. 8728 on December 21, 2007)

Article 112 (Execution of Disciplinary Action)

(3) The restriction on treatment provided for in Items 4 through 13 of Article 108 shall be imposed concurrently on those who are subject to a disposition provided for in Item 14 of Article 108 for the relevant period.

Related Provision

Administration and Treatment of Correctional Institution Inmates Act

Article 108 (Types of Disciplinary Action)

The types of disciplinary action shall be as follows:

5. Restriction on reading newspapers for up to 30 days;

10. Restriction on writing for up to 30 days.

Summary of the Decision

1. Review of Restriction on Writing Clause

The restriction on writing imposed on unconvicted prisoners subject to disciplinary forfeiture of rights during the period in which their rights are forfeited is found to have a legitimate purpose and to be an appropriate means, for its purpose is to compel observation of discipline within correctional institutions, and to maintain safety and order in detention or confinement facilities. If deemed particularly necessary for the prisoner’s remedy for infringed rights, etc., the warden may permit them to write during the period their rights are forfeited. Also, Article 85 of the Administration Act guarantees that an unconvicted prisoner may exercise the right to engage in essential writing activities such as the preparation of litigation documents, etc. Thus, it cannot be concluded that the above clause excessively infringes on the complainant’s freedom of expression.

2. Review of Restriction on Newspaper Reading Clause

The restriction on newspaper reading, imposed concurrently on those who are subject to a disposition for forfeiture of rights as a disciplinary action for violating regulations by unconvicted prisoners, etc., has the purpose of inducing prisoners to comply with regulations and ultimately to establish order in the confinement facilities by encouraging violatorsof regulations to engage in self-reflection, and by warning other prisonersof the disadvantages that may be imposed for violating regulations. The restriction on newspaper reading under the above provision can only be imposed for up to 30 days, and prisoners subject to a disposition for forfeiture of rights still have unrestricted access to books that are kept inside the facilities. Thus, it cannot be concluded that the above clause excessively infringes on the complainant’s right to knowledge.

3. Review of Notification of Reference Data for Sentencing

A. Opinion for Acceptance by Justices Park Han-Chul, Lee Jung-Mi, Kim Yi-Su, Lee Jin-Sung and Seo Ki-Seog

Article 115 Section 3 of the Administration Act, which stipulates that “necessary matters concerning disciplinary action” shall be prescribed by Ordinance of the Ministry of Justice, does not expressly refer to the notification of reference data for sentencing. Not only this, but it is also difficult to foresee only by this provision that the Notification at Issue, which is a restriction of fundamental rights independent from thepunishment, is possible. Thus, Article 115 Section 3 of the AdministrationAct cannot serve as legal grounds for the Notification at Issue.

While information subject to the Notification at Issue was collected for the purpose of securing order in the correctional institution, it is difficult to say that it was provided for that intended purpose. Therefore, Article 15 Section 1 Item 3 and Article 17 Section 1 Item 2 of the Personal Information Protection Act are also unable to serve as legal grounds.

Since the Notification at Issue contains reference data for the sentencing of unconvicted prisoners, it can be deemed to have been provided for being “necessary for a court to perform its judicial affairs,” as prescribed in Article 18 Section 2 Item 8 of the Personal Information Protection Act. However, the above provision of the Personal Information Protection Act merely permits the provision of personal information under the court’s power to preside over trials; it does not permit the active and voluntary provision of personal information by a warden, etc. without the request of the court. Further, the respondents made no announcement in the official gazette, etc., or took any measure to ensure the safety of personal information as prescribed in Sections 4 and 5 of Article 18 of the Personal Information Protection Act.

Therefore, this Notification at Issue infringes on the complainant’s right to informational self-determination for violating the principle of statutory reservation.

B. Opinion for Denial by Justice Ahn Chang-Ho and Justice Kang Il-Won

(1) Whether the Principle of Statutory Reservation Is Violated

Article 115 Section 3 of the Administration Act, itself, does not clearly or explicitly provide for the notification of reference data for sentencing. However, the grounds for the Notification at Issue can be found in the Personal Information Protection Act, which sets out the general law on the protection of personal information.

Not only the act of the warden compiling data related to the punishment of unconvicted prisoners, but also the notification of this data to the court, is for the purpose of fulfilling the duties of maintaining safety and order in the correctional institution. Therefore, this can be considered the provision of personal information to a third person under the purpose for which the personal information was collected, based on Article 17 Section 1 Item 2 of the Personal Information Protection Act.

Even if this is not the case, the Notification at Issue can be considered to be based on Article 18 Section 2 Item 8 of the Personal Information Protection Act, which prescribes that where it is necessary for a court to perform its judicial affairs, personal information may be provided to a third person for other than the intended purposes for which it has been collected. There are no grounds on which personal information can be provided per the above provision only in cases where a request has been made by the court, as claimed in the opinion for acceptance, and even if the respondents did not take any measures under Sections 4 and 5 of Article 18 of the Personal Information Protection Act, whether the provision of personal information has been based on a statutory provision, and whetherex postmeasures have been taken, are two different issues. Therefore, we cannot conclude that the Notification at Issue restricts the complainant’s right to informational self-determination without any legal ground.

(2) Whether the Principle against Excessive Restriction Is Violated

The Notification at Issue has a legitimate purpose, and its means are appropriate, as it aims to maintain safety and order within the correctional institution and to appropriately sentence unconvicted prisoners.

The personal information provided in the Notification at Issue does not, in itself, fall under the category of information that requires strict protection, as it cannot be considered closely related to an individual’s personality or to the intimate domain of privacy. Further, the scope of informational self-determination enjoyed by an unconvicted prisoner in relation to the court, which is the main agent that arrests or detains the unconvicted prisoner, can only be limited, and the relevant laws and regulations provide for measures for the protection of personal information. Thus, the element of minimum restriction is also satisfied.

The public interest that the Notification at Issue seeks to achieve largely outweighs the less significant degree of restriction of fundamental rights arising from the Notification at Issue, considering the nature of the information provided, or the limited scope of to whom the information is provided. Thus, the balance of interests is also satisfied.

Therefore, it cannot be concluded that the Notification at Issue infringes on the complainant’s right to informational self-determination for violating the principle against excessive restriction.

C. Opinion for Dismissal by Justice Kim Chang-Jong and Justice Cho Yong-Ho

The complainant’s intent in this case is to contend with only the disadvantages in the sentencing of his/her criminal trial, and not the fact that his/her personal information may be disclosed. Therefore, the fundamental right restricted by the Notification at Issue should be deemed the right to a fair trial.

The Notification at Issue is merely an internal factual act between

state agencies, and is not an act carried out by an administrative body in a superior position that directly incurs a prejudicial legal effect in relation to the legal status or rights and obligations of the complainant. Moreover, the sentencing decision in a criminal trial lies under the exclusive authority of the judge, which means the judge has discretion on deciding whether to reflect the information notified in the Notification at Issue in his/her sentencing decision, and the Notification at Issue holds no binding force in relation to the court. Thus, the Notification at Issueper sedoes not have the legal effect of incurring any disadvantage in the sentencing of the complainant.

Therefore, the Notification at Issue does not constitute the exercise of state power, which is the subject matter of the constitutional complaint, and thus the request for adjudication is nonjusticiable.

Summary of Dissenting Opinion of Four Justices

on the Restriction on Writing Clause

The act of writingper seis a largely personal act related to mental activity, and does not pose any risk to maintaining order and safety in confinement facilities. The connection between the cause of violating regulations in the confinement facilities and the prohibition of writing activities is extremely weak.

The public interest of ensuring safety and order in the confinement facilities, etc. can be sufficiently achieved through other measures, such as permitting writing in principle accompanied by limited exceptions. Further, the act of writing does not presuppose that the resulting material is always disseminated to the outer domain. This means that compared to the more general freedom of expression, writing is closer to the freedom of conscience and ideology, or to the dignity and value of human beings, and the effect of the disciplinary action of restricting writing varies greatly depending on the person, by having either an immense impact or none at all. Thus, as the writing restriction clause in this case fails to comply with minimum restriction and balance of

interests, it infringes on the complainant’s freedom of expression for violating the principle against excessive restriction.

Summary of Dissenting Opinion of Three Justices

on the Restriction on Newspaper Reading Clause

If a person confined in a prison and forfeited rights is restricted from reading newspapers for up to 30 days, that person will have no knowledge of what is happening in society. Even if the period during which rights are forfeited ends and the person is allowed access to newspapers that were prohibited during the disciplinary period, the infringement on the central aspect of the right to knowledge, an extremely important fundamental right in the realization of democracy, cannot be recovered. Reading newspapers is a largely personal act related to the intellectual activity of a person, and poses no risk whatsoever to maintaining order and safety in the prison if the appropriate measures are taken, for instance deleting questionable parts. In fact, reading newspapers will enable prisoners to acquire the latest information to prepare for social rehabilitation in the future, and also encourages the sound mental activity of prisoners, contributing to their correction and edification. Thus, even considering the legislative purpose of establishing order in prisons, restricting prisoners from reading newspapers for violating regulations despite the above is an excessive restriction of fundamental rights, and violates the principle against excessive restriction.