Registration of personal information of sex offenders

[27-2(A) KCCR 370, 2014Hun-Ma340ㆍ672, 2015Hun-Ma99 (consolidated), July 30, 2015]

In this case, the Constitutional Court held constitutional Article 42 Section 1 of the ‘Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes’ stipulating that any person finally declared guilty of taking photos by using cameras, etc. shall be subject to registration of personal information, not infringing on the complainant’s right to informational self-determination. The Court, however, held that Article 45 Section 1 of the Act stipulating 20 years of storage and management period for criminals’ personal information violates the Constitution as it infringes on the complainant’s right to self-determination of personal information.

Background of Case

The complainants were convicted of crimes (taking photos by using cameras, etc. and attempted taking photos by using cameras, etc.) under the ‘Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes’ and their personal information was registered pursuant to Article 42 Section 1 and Article 45 Section 1 of the ‘Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes.’ The complainants filed this constitutional complaint arguing that their fundamental rights including human dignity and value were violated by the aforementioned provisions.

Provisions at issue

The provisions at issue in this case are whether ① the part of “any person finally declared guilty of a crime defined in Article 14 Section 1 and Article 15 (limited to the attempt under Article 14 Section 1 of the ‘Act on Special Cases Concerning the Punishment, etc. of Sexual

Crimes’) of the ‘Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes’ (wholly revised by Act No. 11556 December 18, 2012, hereinafter the ‘Act’) shall be a person subject to registration of personal information” in Article 42 Section 1(hereinafter the “Registration Provision”) and ② Article 45 Section 1 of the Act (hereinafter, the “Management Provision”) are in violation of the Constitution, infringing upon the complainants’ fundamental rights. The provisions at issue are as follows:

Provisions at Issue

Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (wholly revised by Act No. 11556 December 18, 2012)

Article 42 (Persons Subject to Registration of Personal Information) (1)Any person finally declared guilty of a crime as defined in any of Articles 2 (1) 3 and 4 and (2) (limited to paragraph (1) 3 and 4) and 3 through 15 or a crime as defined in subparagraph 2 of Article 2 of the Act on Protection of Children and Juveniles from Sexual Abuse (hereinafter referred to as “sex crime subject to registration”), or any person to whom a definitive order is issued to disclose information under Article 49 (1) 4 of the said Act, shall be a person subject to registration of personal information (hereinafter referred to as “person subject to registration”): Provided, That this shall exclude any person who is fined for committing a crime as defined in Article 11 (5) of the Act on Protection of Children and Juveniles from Sexual Abuse.

Article 45 (Management of Registered Information) (1)The Minister of Justice shall keep and manage any registered information for 20 years from the date on which it is initially registered (referring to the date of registration, the notice of which is given to the person subject to registration).

Summary of Decision

1. Whether the Registration Provision infringes on the right to informational self-determination

Maintenance of registry for certain types of sex offenders’ personal information and its management in order to prevent repeated sex crimes and enhance effectiveness of criminal investigation are proper means to achieve legitimate legislative purposes. Expanding the scope of punishment or imposing heavier sentence are not enough to curve the crime of taking photos by using cameras etc. and therefore state’s management of the personal information of any person who has been punished for such crimes can be an effective and pragmatic way to prevent such crimes from being repeatedly committed. There could be various types of crimes of taking photos by using cameras etc. and different levels of illegality or culpability, but the nature of the crime that violates the victims’ sexual freedom and right not to be photographed is basically identical despite the possible differences. Therefore, the legislature’s decision not to place different weight on the individual types or level of illegality of the crime cannot be considered as excessive restriction. Also, being the subject of registration of personal information does not necessarily mean that the person’s rehabilitation becomes difficult or the person will be stigmatized as a criminal. In this regard, while the private interests are not seriously infringed by the Registration Provision, the public interests to be achieved by the Registration Provision are very important. Therefore, the Registration Provision does not infringe upon the complainants’ right to informational self-determination.

2. Whether the Management Provision infringes on the complainants’ right to informational self-determination

Storage and management of sex offender’s personal information, in

order to inhibit repetition of sex offense and enhance the effectiveness of investigation, for 20 years during which the possibility of recurrence of crime can always be expected are effective means to achieve legitimate legislative purposes. But the levels of risk related to the recurrence of crime can be different depending on the types of sex offenses subject to registration and the characteristics of offenders, and it is reasonable for the legislators to minimize the restriction on the right to informational self-determination by differentiating the registration period. But the Management Provision in this case sets ‘20 years’ as the uniform registration period during which the personal information would be stored and managed. Moreover, once personal information is stored pursuant to the Management Provision, there is no way to review the order for exempting the duty to register or shortening the registration period, which is extremely severe restriction. And even thought the public interests to be achieved by the Management Provision are important, setting the uniform 20 year registration period without exception and imposing various duties during the period can bring about serious imbalance between the public interests to be achieved and the private interests for the sex offenders whose culpability is relatively low and who are less likely to commit similar crimes again. Therefore, the Management Provision infringes upon the right to informational self-determination.

3. Decision of incompatibility with the Constitution regarding the Management Provision

It is the legislative discretion to provide for different levels of registration period to eradicate unconstitutionality of the Management Provision and come up with measures to exempt the duty to register personal information or shorten the registration period when there is any change in the circumstance such as disappearance of the risk of recidivism. Therefore, we declare the Management Provision is incompatible with the Constitution, making the Management Provision to

be tentatively applied until the legislature amends it by December 31, 2016.

Dissenting Opinion by Two Justices on the Registration Provision

The Registration Provision, although its main legislative purpose is to prevent recidivism of the crime of taking photos by using cameras etc., does not consider ‘the risk of recidivism’ as one of the requirements for selecting criminals who would be the subjects to the registration of personal information. Thereby, the Registration Provision imposes unnecessary restriction on the sex offenders subject to the provision who are not likely to bear the risk of recidivism. Also, the Registration Provision violates the requirement of least restrictive means because it fails to provide less restrictive alternatives such as narrowing the scope of application based upon the types of crimes and seriousness of culpability or providing separate appeal procedures, thereby excluding offenders who are less culpable or responsible such as those who only attempted to commit a crime or who are fined from being subject to the registration. Also, the Registration Provision fails to strike balance between the public interests to be achieved and the private interests of the sex offenders whose culpability is relatively low and who are not vulnerable to recidivism. Therefore, the Registration Provision violates the right to informational self-determination.

Dissenting Opinion by Two Justices on the Registration Provision

The elements of crime of taking photos by using cameras etc. do not include sexual intercourse by force or sexual molestation and the crime is strongly related to sexual morality or infringement on the victim’s privacy. The types of actions involved in the crime are various depending on the criminal intent and motive, crime target, numbers and mode of action, differentiating the necessity for registration of personal information and the risk of recidivism. But the Registration Provision

uniformly imposes the duty to register personal information on all kinds of offenders who commit the crime of taking photos by using cameras etc. without any variation or exception.

Also, the elements of crime under Article 14 Section 1 of the Act are unclear, thereby failing to give fair notice to the people who are subject to the provision about the standard of culpability and scope of crime and the Registration Provision makes anyone who is finally convicted of the crime of taking photos by using cameras etc. to mandatorily be the subject of the registration of personal information without going through any separate procedure such as decision of a judge. Therefore, it is hard to expect what kind of action makes the offender to be subject to the registration.

Therefore, the Registration Provision violates the Constitution as it fails to provide any other alternatives such as reducing the scope of application to those who are more culpable and vulnerable to recidivism or allowing the request for a separate decision by a judge on the matter of registration apart from the conviction of crime.

Dissenting Opinion by Two Justices on the Management Provision

We agree with the conclusion and reasoning of the majority opinion that the Management Provision violates the Constitution, but we think that the Court should declare the decision of simple unconstitutionality regarding the Management Provision, so that the infringement on the fundamental rights can be immediately eliminated.