8.Case on the Protection Application of North Korean Refugee Involved in Drug Trafficking

[26-1(A) KCCR 468, 2012Hun-Ba192, March 27, 2014]

In this case, the Constitutional Court held constitutional the part of ‘drug trafficking’ of Article 9 Section 1 Item 1 of the North Korean Refugees Protection and Settlement Support Act that states that a North Korean refugee who has been involved in drug trafficking may not be designated for protection.

Introduction of Case

The petitioner entered South Korea, having resided in and escaping from North Korea. It was found that while residing in North Korea, the petitioner had traded methamphetamine (so-called “Bing-Doo”), a drug produced in North Korea, in China. Accordingly, the Minister of Unification did not accept the petitioner’s application for protection due to his drug trafficking history under Article 9 Section 1 Item 1 of the North Korean Refugees Protection and Settlement Support Act (hereinafter, the “Act”).

When his claim to annul the above disposition was rejected, the petitioner filed a motion to request a constitutional review of Article 9 Section 1 Item 1 of the Act, which was eventually denied, while the appeal was pending. Subsequently, the petitioner filed this constitutional complaint.

Provision at Issue

The subject matter of review is the constitutionality of the part of ‘drug trafficking’ of Article 9 Section 1 Item 1 of the North Korean Refugees Protection and Settlement Support Act (revised by Act No. 10188 on March 26, 2010). The provision at issue is as follows:

North Korean Refugees Protection and Settlement Support Act (revised by Act No. 10188 on March 26, 2010)

Article 9 (Criteria for Protection Decision)

(1) In determining whether to provide protection pursuant to the main sentence of Article 8 Section 1, any of the following persons may not be designated as persons eligible for protection:

1. International criminal offenders involved in aircraft hijacking, drug trafficking, terrorism or genocide, etc.

Summary of Decision

A. Principle of Clarity

The provision at issue intends to correspond with the international response and cooperation on drug trafficking, as well as to achieve national security and public interests. Because its legislative purpose is differentiated from one of the Act on the Control of Narcotics, etc. that aims to regulate the treatment on narcotics, based on criminal punishment, the classification of narcotics and psychotropic drugs under the Act on the Control of Narcotics, etc. does not imply that the ‘drug’ of the provision at issue means narcotics of the Act on the Control of Narcotics, etc. Psychotropic drugs under the Act on the Control of Narcotics, etc., which affect the central nervous system and cause or may cause physical or psychological dependency in case they are abused, are severely regulated with regard to their treatment and control. The illegal trade of psychotropic drugs would cause substantial harms to our society. In addition, drugs are defined as ‘substances for anesthesia that cause addiction upon constant use for their habit-forming nature’. Due to their nature of physical and psychological dependency (toxicity or addictiveness), drugs include, literally, psychotropic drugs of the Act on the Control of Narcotics, etc. Also, the texts of the provision at issue do not exclude the possibilities that the drug trafficking was not commercial or habitual. Considering the text and legislative purpose of the provision

at issue, it may reasonably be assumed that drug trafficking of the provision at issue includes the trafficking of psychotropic drugs, regardless of whether its purpose was commercial or habitual. Therefore, the provision at issue does not violate the principle of clarity.

B. Right to Human Livelihood

A North Korean refugee who is not eligible for protection due to his/her drug trafficking history can still be entitled to several benefits, including protection at settlement support facilities, protection of place of residence, accreditation of academic background and qualifications, and special benefit for national pension (Article 9 Section 3 of the Act); and conditional benefits, including support for minimum living standards under the National Basic Living Security Act, medical care assistance under the Medical Care Assistance Act, and accommodation at national rental housing under the Housing Supply Rule. These benefits imply a North Korean refugee who is not subject to the protection is, even, entitled to some benefits to secure his/her right to human livelihood at the minimum level. Therefore, the provision at issue does not infringe the right to human livelihood of a North Korean refugee who had been involved in drug trafficking.