Case Concerning Number and Time of Prisoner Visit by LegalCounsel in Civil Case

[27-2(B) KCCR 306, 2012Hun-Ma858, November 26, 2015]

This is the case in which the Constitutional Court held that the following provisions infringe on the petitioner prisoner’s right to trial and thus are unconstitutional: Article 58 Section 2 of the former Enforcement Decree of the Administration and Treatment of Correctional Institution Inmates Act which defined a meeting between a prisoner and his or her legal counsel representing the prisoner in civil lawsuit as a general meeting and therefore limited the period and number of meetings to thirty minutes and four times per month respectively; parts related to a “prisoner” in Article 58 Section 2 of the Enforcement Decree of the Administration and Treatment of Correctional Institution Inmates Act; Article 58 Section 3 of the Enforcement Decree of the Administration and Treatment of Correctional Institution Inmates Act.

Background of the Case

The petitioner was convicted of attempted fraud and sentenced to one year of imprisonment on September 27, 2012 and had been detained in Incheon Detention Center. The petitioner lost in a civil action which he filed on October 1, 2010 to seek payment of loans and filed an appeal on May 11, 2012. Thinking that a general visit is not adequate for a client meeting to prepare for an appellate trial, the petitioner’s counsel in that civil action on October 16, 2012, during the pendency of the appellate trial, requested to meet his client in a room for an attorney visit in Incheon Detention Center. The counsel’s request was rejected on the ground that a legal counsel in civil actions does not qualify as a defense counsel.

The petitioner then filed a constitutional complaint in this case on October 23, 2012 claiming that restricting the number and time of

meetings with the legal counsel to thirty minutes and four times per month respectively by treating the meeting as a general visit is unconstitutional.

Subject Matter of Review

The subject matter of review in this case is whether Article 58 Section 2 of the former Enforcement Decree of the Administration and Treatment of Correctional Institution Inmates Act (wholly amended by Enforcement Decree No. 21095 on October 29, 2008, but prior to amendment by Enforcement Decree No. 25397 on June 25, 2014), parts related to a “prisoner” in Article 58 Section 2 of the Enforcement Decree of the Administration and Treatment of Correctional Institution Inmates Act (amended by Enforcement Decree No. 25397 on June 25, 2014), and Article 58 Section 3 of the Enforcement Decree of the Administration and Treatment of Correctional Institution Inmates Act (wholly amended by Enforcement Decree No. 21095 on October 29, 2008) are constitutional.

Provisions at Issue

The former Enforcement Decree of the Administration and Treatment of Correctional Institution Inmates Act (wholly amended by Enforcement Decree No. 21095 on October 29, 2008, but prior to amendment by Enforcement Decree No. 25397 on June 25, 2014)

Article 58 (Meeting)

(2) The duration of a meeting of a prisoner, other than unconvicted prisoners, with his/her defense counsel shall be up to 30 minutes per meeting.

Enforcement Decree of the Administration and Treatment of Correctional Institution Inmates Act (amended by Enforcement Decree No. 25397 on June 25, 2014)

Article 58 (Meeting)

(2) The duration of a meeting of a prisoner, other than unconvicted prisoners, with his/her defense counsel (including a person who desires to become a defense counsel; hereinafter the same shall apply) shall be up to 30 minutes per meeting.

Enforcement Decree of the Administration and Treatment of Correctional Institution Inmates Act (wholly amended by Enforcement Decree No. 21095 on October 29, 2008)

Article 58 (Meeting)

(3) The frequency of meetings for convicted prisoners shall be permitted up to four times per month.

Summary of the Decision

1. Right to Trial of Convicted Prisoner

The legislative purpose of the restriction of the number and time of prisoner visits, that is to maintain order and regulations in a correctional facility and to secure a convicted prisoner’s physical restraint, is recognized as a legitimate one. As treating a meeting with a legal counsel representing the prisoner in trials (“Attorney Meeting”) as a general visit and therefore restricting the number and time of such meetings contribute to achieve such legislative purpose, an element of the appropriateness of means is satisfied.

Nonetheless, if a convicted prisoner and his or her legal counsel have to discuss or prepare for trials by communicating through correspondence or phone calls, there is a likelihood that the principle of equality of arms and the right to a fair trial may be impaired as the communication might be disclosed to the correctional authority by censorship or listening. Moreover, exchange of correspondence is less efficient means of communication than an in-person meeting, and phone calls in correctional facilities in principle must not exceed three minutes. Thus,

correspondence or phone calls both carry limitations to be used as primary means of trial preparation. Accordingly, in order to effectively protect the prisoner’s right to trial, ensuring adequate number and time of the Attorney Meeting is essential.

When the Attorney Meeting took place in a room for a general visit, there were occasions when the Attorney Meeting was only allowed for seven to ten minutes varying by different correctional facilities due to operational issues of the room. The duration of the meeting was extended thereafter as the Attorney Meeting began to take place in separate rooms designated for the Attorney Meeting. However, there are always possibilities that actual duration of the Attorney Meeting may be cut down again in the future due to operational issues of the meeting rooms unless the minimum duration of the Attorney Meeting is fixed. Also, whereas the purpose of the Attorney Meeting is to provide a prisoner with assistance of counsel, the purpose of a visit by family or friends is rehabilitation and edification of a prisoner. Adding together the number of two different types of visits, whose purposes are not the same, all the more raises chances that the prisoner may not receive effective assistance of counsel at the appropriate timing. By guaranteeing certain minimum duration of the Attorney Meeting, at the same time with allowing exceptions under which the duration of the meeting may be shortened to certain extent under special circumstances where the minimum duration can’t be guaranteed, and by setting the number of the Attorney Meeting separately from the general visit and thus adequately limiting the number of the Attorney Meeting, the convicted prisoner’s right to trial can be effectively protected. At the same time, maintenance of order and regulations in a correctional facility can be promoted. Even if the Attorney Meeting and general visit are to be treated differently in terms of the number and time, when considering the public nature of the Attorney Meeting, there is no great chance that the legislative purpose - maintenance of order and regulations in a correctional facility - will be disregarded.

Despite existence of alternatives that are less restrictive of the

prisoner’s right to trial as discussed above, restricting the number and time of the Attorney Meeting by including it into a category of the general visit whose nature is completely different, without taking account of the distinct nature of the meeting with a legal professional for discussion of trials, violated the principle of minimum restrictions and the balance of interest. For these reasons, the provisions at issue infringe on the prisoner’s right to trial as they violate the rule against excessive restriction.

2. The Reason of Ordering Continuous Application Despite Decision of Nonconformity to the Constitution

The finding of unconstitutionality of the provisions at issue arises from restricting the time and number of the Attorney Meeting by classifying it as a general visit without legislating separate provisions regulating the time and number of the Attorney Meeting, not from the restriction of the time and number of general prisoner visits itself. If we simply find that the provisions at issue are unconstitutional and nullify the provisions immediately, the provisions which serve as basis of regulating the time and number of general prisoner visits would be eliminated as well. This may cause vacuum in law and confusions due to such vacuum. Thus, albeit this Court’s finding that the provisions at issue are nonconforming to the Constitution, the provisions will continue to apply until the administrative legislature makes an appropriate revision.

Summary of Dissenting Opinion by One Justice

Whereas the provisions at issue restrict the time and number of the Attorney Meeting by including it into the general visits, a broad scope of exceptions are allowed with regard to the time and number of visits: more visits may be permitted depending on the security levels, and the time and number of the visits may be extended if certain reasons for the extension are recognized by the warden. Although the provisions at issue

may cause inconvenience to a certain extent in regard to communication between a prisoner and his or her attorney, they still can communicate through correspondence, writings and phone calls and by personally attending the trials. Therefore, the prisoner still can adequately prepare for trials with the attorney through many other institutional channels other than the prison visit. Moreover, the Attorney Meeting is nowadays being conducted in a manner that more strictly protects the prisoner’s right to trial: as relevant provisions were revised to allow the Attorney Meeting to be conducted in a room without an installation preventing physical contact pursuant to the Court’s previous decisions (i.e., 2011Hun-Ma122, 2011Hun-Ma398), and audio-recording and other types of recording of the Attorney Meeting are now prohibited, a place of the Attorney Meeting has now changed to a room that is designed without an installation preventing physical contact or a audio-recording device. Such change of the meeting place also led to extension of the duration of the Attorney Meeting. Meanwhile, there are exceptions where a patent attorney, a legal representative, a spouse or a direct kin (in small-claims cases) can represent a party in trials. If the time and number of the Attorney Meeting have to be set differently from those of the general visits in order to allow the prisoner to adequately prepare for trials during the Attorney Meeting, then those who are not attorneys but allowed to represent the prisoner under the above exceptions must receive the same treatment. We hardly find any reasonable grounds that support special treatment for the attorneys. For these reasons, it is our opinion that the provisions at issue do not excessively restrict the prisoner’s right to a meeting with an attorney by going beyond the scope required for achievement of the legislative purpose. Thus, the minimum restriction requirements are met.

While there are possibilities that the provisions at issue may cause certain inconvenience in preparation of trials with an attorney who is representing the prisoner in trials, the degree of harm which the prisoner experiences due to the provisions at issue is not too significant in the light of that a broad scope of exceptions with regard to the time and

number of visits are being recognized, and that there are other means besides the prison visit such as exchange of correspondences and written documents, by which the prisoner can receive assistance of a counsel. Therefore, the balance of interest test is also satisfied.

On these grounds, I opine that the provisions at issue cannot be seen as a violation of the rule against excessive restriction and to infringe on the petitioner’s right to trial.