Travel Ban for Criminal Defendant Case

[27-2(A) KCCR 514, 2012Hun-Ba302, September 24, 2015]

In this case, the Constitutional Court held that subparagraph 1 of Article 4 Section 1 of the Immigration Control Act under which a person pending in a criminal trial may be prohibited from departing the country does not contravene the warrant requirement and the freedom to leave the country.

Background of the Case

While the complainant was undergoing investigation for alleged fraud, he left the country on June 9, 2005 and returned on November 22, 2011. He was indicted on a charge of fraud on April 30, 2012. The Minister of Justice on May 7, 2012 prohibited the complainant from leaving the country for six months (from May 7, 2012 to November 6, 2012) pursuant to subparagraph 1 of Article 4 Section 1 of the Immigration Control Act on the ground that a criminal trial was pending against the complainant.

Thereupon, the complainant on May 22, 2012 filed an action against the Minister of Justice with the Seoul Administrative Court seeking cancellation of the travel ban disposition above, and at the same time filed a motion to request the Constitutional Court to conduct a constitutional review of subparagraph 1 of Article 4 Section 1 of the Immigration Control Act. As the motion was dismissed on July 27, 2012, he filed a constitutional complaint in this case on August 21, 2012.

Subject Matter of Review

The subject matter of review in this case is constitutionality of subparagraph 1 of Article 4 Section 1 of the Immigration Control Act

(amended by Act No. 10863 on July 18, 2011, hereinafter referred to as the “Provision at Issue”). The Provision at Issue reads as follows:

Provisions at Issue

Immigration Control Act (amended by Act No. 10863 on July 18, 2011)

Article 4 (Prohibition of Departure)

(1) The Minister of Justice may prohibit any of the following nationals from departing from the Republic of Korea for a fixed period not exceeding six months:

1. A person pending in a criminal trial

Summary of the Decision

1. Warrant Requirement

The travel ban decision of the Minister of Justice pursuant to the Provision at Issue is a mere administrative disposition that limits a citizen’s freedom to leave the country. The decision cannot be regarded as a compulsory disposition that carries physical legal force exerted directly upon one’s body. The warrant requirement applies to such physical legal force. Therefore, the Provision at Issue cannot be viewed as a violation of the warrant requirement set forth in Article 12 Section 3 of the Constitution.

2. Due Process

As the travel ban decision based on the Provision at Issue by its nature requires speed and secrecy, providing an advance notice to a person subject to the travel ban or conducting a hearing may encumber achieving the aim of the travel ban system - securing the state’s punishment power. Furthermore, as the decision of travel ban must be notified in writing immediately upon the decision, and procedural

participation is guaranteed by affording an opportunity to retroactively dispute the decision by filing an objection or an administrative lawsuit, it is hardly seen as a violation of due process.

3. Principle of Presumption of Innocence

The Provision at Issue merely mandates that the Minister of Justice may restrict a person pending in a criminal trial from leaving the country in case there is a concern that the person may flee abroad in order to avoid the state’s punishment power. Thus, the Provision at Issue hardly intends to impose on a person pending in a criminal trial any disadvantages that may be resulted from a plea of guilty, i.e., social stigmatization and retributive sanctions, on the ground that the person is guilty. The imposing of such disadvantages is which the principle of presumption of innocence proscribes. Accordingly, the Court does not find that the Provision at Issue violates the principle of presumption of innocence.

4. Freedom to Leave the Country

The legislative intent of the Provision at Issue which aims to realize judicial justice and finding of substantive truth by securing the state’s punishment power through prohibiting a person pending in a criminal trial from fleeing abroad is legitimate, and since prohibiting a person from leaving the country for certain period may contribute to fulfilling the legislative intent, appropriateness of the means is also recognized. The Minister of Justice, in determining the travel ban, must take account of specific circumstances related to the defendant’s case such as fundamental principles of the travel ban, facts of a criminal conduct for which the defendant subject to the travel ban is charged, age and family relations, and likelihood of escape to foreign countries, and in actual practice, the travel ban pursuant the Provision at Issue is exercised very restrictively. Also, since many other means intending to minimize

restriction of fundamental rights of a person pending in a criminal trial (e.g., revocation of the travel ban, an ex post notification system, filing of an objection, an administrative lawsuit) are available, there is no violation of the principle of the least restrictive means. Whereas the disadvantage suffered by a person pending in a criminal trial due to the Provision at Issue is being prohibited from leaving the country for certain period of time, the public interest to be achieved by the Provision at Issue is finding of substantive truth and realization of judicial justice by securing the state’s punishment power. As such public interest is of significant importance, the balance of interest is also met. For these reasons, the Provision at Issue is not in violation of the principle of the least restrictive means and thus does not infringe upon the freedom to leave the country.

5. Right to a Fair Trial

The Provision at Issue merely mandates the Minister of Justice to prohibit the defendant from departing the country. The Provision has no direct connection with the defendant’s exercise of rights to assert and defend. Furthermore, the right to a fair trial is hardly deemed to incorporate the right to collect evidence abroad. Thus, this Court finds that the Provision at Issue does not infringe upon the right to a fair trial.

Summary of Dissenting Opinion by Two Justices

The travel ban decision by the Minister of Justice needs to be permitted for a fixed minimum period when the decision is inevitable in order to secure the state’s punishment power. However, the Provision at Issue, which prescribes that the Minister may prohibit a person from leaving the country simply if the person is pending in a criminal trial, may possibly be construed as an excessive restriction of fundamental rights of a person whose need to travel abroad is strongly demanded, e.g., a defendant who is not in custody and has primary base of living

abroad or frequently travels abroad for business purposes. Moreover, while the Immigration Control Act provides that the Minister of Justice may extend the period of the travel ban (Article 4-2), the Act does not specifically specify how many times the ban may be extended. Such absence of specific prescription of the number of extensions, by authorizing repetitive extension of the ban, may lead to a grave limitation of the freedom to leave the county of a person pending in a criminal trial for several months or even years until a defendant’s conviction becomes final. Therefore, the Provision at Issue which allows a person to be prohibited from leaving the country throughout the trial period is in contravention of the principle of the least restrictive means. The Provision at Issue creates a disadvantage upon a person pending in a criminal trial who needs to leave the country for business purposes. Such disadvantage is significant enough to adversely affect the livelihood of the person. Moreover, in regards of those who are pending in a criminal trial, the Provision at Issue restricts the important right enshrined in the Constitution, the freedom to leave the country. For these reasons, the Provision fails to satisfy the balance of interest test. On these grounds, the Provision at Issue is against the principle of the least restrictive means and does infringe on the freedom to leave the country.