Case on the Disciplinary Action of Detention in a Guardhouse against a Riot Police Constable

[2013Hun-Ba190, March 31, 2016]

In this case, the Constitutional Court held that the provision concerning ‘detention in a guardhouse against a riot police constable’ in Section 1 and Section 2 of Article 5 of the former ‘Establishment of Riot Police Units Act,’ which prescribes detention in a guardhouse as a form of disciplinary action against riot police constables, does not breach the principle of due process and rule against excessive restriction; and thus does not violate the Constitution.

Background of the Case

The petitioner, who had enlisted and was serving as an auxiliary police officer and was a riot police constable whose duty was to assist in maintaining public security, was brought to a disciplinary committee for bringing a mobile phone into the camp, and for keeping it in his possession and use. The disciplinary committee for police officials determined a disposition of disciplinary action of five days of detention in a guardhouse.

The petitioner objected to the disposition of disciplinary action and requested an appeal for review, after which he filed a lawsuit for revocation, and requested a constitutional review of Article 5 and Article 6 Section 2 of the former ‘Establishment of Riot Police Units Act’ in the process. When both the lawsuit and the request for constitutional review were dismissed, the petitioner filed a constitutional complaint on July 1, 2013.

Subject Matter of Review

The subject matter of review in this case is whether the provision concerning ‘detention in a guardhouse against a riot police constable’ in

Section 1 and Section 2 of Article 5 of the former ‘Establishment of Riot Police Units Act’ (amended by Act No. 10749 on May 30, 2011, and before amendment to the ‘Act on the Establishment and Operation of Auxiliary Police Companies’ by Act No. 13425 on July 24, 2015; hereinafter referred to as the “Act”) (hereinafter referred to as the “Detention Provisions”) and Article 6 Section 2 of the Act (hereinafter referred to as the “Appeals Provision”) violate the Constitution. The Instant Provisions read as follows.

Provisions at Issue

Former Establishment of Riot Police Units Act (amended by Act No. 10749 on May 30, 2011, and before amendment to the ‘Act on the Establishment and Operation of Auxiliary Police Companies’ by Act No. 13425 on July 24, 2015)

Article 5 (Disciplinary Actions)

(1) Disciplinary actions against assistant inspectors, senior patrol officers and constables (including riot police constables) of riot police units shall include removal, discharge, suspension from office, salary reduction, reprimanding, detention and probation.

(2) Detention in a guardhouse means confinement in a riot police unit, warship, or other detention place and does not exceed 15 days.

Article 6 (Appeals)

(2) Even where an appeal for review has been filed under Section 1, the relevant disposition of a disciplinary action shall be complied with until a decision is made thereon.

Summary of the Decision

1. Appeals Provision

This provision concerns appeals, and does not apply to the original

case, which concerns the lawsuit on the revocation of the disposition of detention in a guardhouse. Therefore, it is nonjusticiable for being irrelevant to the original case.

2. Detention Provisions

Summary of the Majority Decision of Four Justices

A. Whether to Apply the Principle of Arrest by Warrant

The principle of arrest by warrant, prescribed by Article 12 Section 3 of the Constitution, stipulates that no person shall be subjected, in relation to criminal procedures, to compulsory dispositions of arrest, detention, seizure or search without a warrant issued by a certified judge. There is no reason to say that this equally applies to disciplinary procedures. Therefore, no further review will be conducted on whether the Detention Provisions violate the principle of arrest by warrant under the Constitution.

B. Whether the Principle of Due Process Has Been Violated

The principle of due process prescribed by Article 12 Section 1 of the Constitution is not limited to criminal procedures, but applies to all state action. Therefore, the disposition of detention in a guardhouse, which involves the bodily confinement of a riot police constable, should also comply with the principle of due process.

However, the disposition of detention in a guardhouse issued against a riot police constable arises due to a limited number of causes, requires the review of a disciplinary committee, and in the course of deliberating and executing disciplinary action, guarantees the right to appear and the right to be heard. There are also separate legal procedures for objection, such as appeals and administrative litigation, and in the case of an appeal the opportunity to be heard is an important procedural

requirement that influences the effect of the decision. Given this, the abovementioned provisions have not failed to satisfy the procedural standards required by the Constitution, and thus do not violate the principle of due process.

C. Whether the Rule against Excessive Restriction Has Been Violated

Restrictions on violations of service regulations are necessary for the strict management of the service discipline of riot police constables, and for collective combat power and facilitating operations. Detention in a guardhouse, with the aim of maintaining operational command within a police organization and of enforcing service regulations, is a disciplinary disposition that confines any person who violates such purpose in a restricted area for a certain period and does not include this period in the term of mandatory service; the impact of this disposition on enforcing service regulations and restricting violations is stronger than other disciplinary actions. Therefore, it serves a legitimate purpose and provides an appropriate means.

Detention in a guardhouse is a disciplinary disposition that holds a stronger power of deterrence compared to other disciplinary measures, and it cannot be concluded that other disciplinary measures have an equal or similar impact in terms of preventing or restricting severe violations of service regulations. The ‘Rules on the Management of Riot Police Constables, Etc.’ prescribe varying measures in the form of on-site admonitions, warnings, transfer to disciplinary training centers and disciplinary action depending on the severity of the violation of service regulations, and restrict the specific grounds for disciplinary dispositions, ensuring that disciplinary action is proportionate to liability. Furthermore, the ‘Decree on Disciplinary Action against Police Officials’ and the ‘Rules on Disciplinary Action against Police Officials, etc.’ are appliedmutatis mutandis, and this allows for extenuating circumstances depending on the type and extent of the violation of duty, including the severity of negligence, existence of past distinguished performance,

extent of contrition or other reasons. As seen here, such standards ensure that disciplinary dispositions are proportionate to the extent of the violation of service regulations and culpability and therefore, the disciplinary action of detention in a guardhouse is quite unlikely to lead to being abused. Thus, the rule of minimum restriction is not violated.

The public interest of strictly managing the service discipline of riot police constables, and of enhancing collective combat power and facilitating swift operations is no smaller than the restriction of physical freedom imposed on the riot police constable during his term of detention in a guardhouse. Therefore, the balance of interests is satisfied.

Summary of Dissenting Opinion of Five Judges

1.Violation of the Principle of Arrest by Warrant under Article 12 Section 3 of the Constitution

From the perspective of the person being physically detained by the exercise of state authority, in essence, the restriction of physical freedom is the same whether such detention is the result of criminal procedures or administrative procedures. Therefore, as a rule, the principle of arrest by warrant under Article 12 Section 3 of the Constitution also applies in cases where an administrative body restricts physical freedom in the form of arrest or detention. Provided, when the nature of the administrative procedure makes it impossible to achieve its purpose while observing the principle of arrest by warrant, exceptions are permitted. The detention pursuant to the Detention Provisions by nature does not involve an element of urgency, but despite this, the detention proceeds without a warrant issued by the decision of a judge. Therefore, this violates the principle of arrest by warrant under Article 12 Section 3 of the Constitution.

2. Violation of the Rule against Excessive Restriction

Given the principle of guaranteeing physical freedom to the utmost extent, as a rule, confinement should not be permitted as a form of disciplinary action. While confinement could be allowed in certain cases, the only exceptions should be against acts of irregularity that are severe enough to necessitate bodily confinement to maintain service regulations, and even then confinement should be used as a supplementary measure only in cases where all other disciplinary measures have been exhausted and proven ineffective.

The grounds for disciplinary action set forth by the ‘Rules on the Management of Riot Police Constables, Etc.’ are too comprehensive, to the extent that minor offenses that are unlikely to become subject to censure may be punished by disciplinary action. The former ‘Rules on Disciplinary Action against Police Officials, etc.’ which applymutatis mutandisto the disciplinary action criteria that apply to riot police, do not set forth any regulations on what types of conduct are subject to the disposition of detention in a guardhouse. Thus, even minor violations of rules or negligence can be punished by this disposition. Meanwhile, the former ‘Establishment of Riot Police Units Act’ does not include any regulations on the supplementary application of the disposition of detention in a guardhouse. Those who object to such a disposition may file an appeal, but this cannot be considered an effective measure of relief since it does not have the power to suspend the execution of detention in a guardhouse. The disposition of detention in a guardhouse, as a disciplinary measure that does not allow room for involvement by a judge, is an unreasonable measure that can hardly be found in any precedent when compared to legislation in other countries.

Therefore, the Detention Provisions restrict the physical freedom of riot police constables to an unnecessary extent, and violate the rule against excessive restriction, thus infringing upon the physical freedom of the petitioner.