2.Restriction on Right to Vote of Prisoners and Probationers with Suspended Sentence

[26-1(A) KCCR 136, 2012Hun-Ma409·510, 2013Hun-Ma167(consolidated), January 28, 2014]

In this case, the Constitutional Court held that the part relating to ‘probationers with suspended sentence’ and the part relating to ‘prisoners’ in Article 18 Section 1 Item 2 of the Public Official Election Act and Article 43 Section 2 of the Criminal Code infringe upon the complainants’ right to vote, in violation of Article 37 Section 2 of the Constitution, and violate the principle of equality as they discriminate probationers with suspended sentences from prisoners in violation of the principle of universal suffrage stipulated in Article 41 Section 1 and Article 67 Section 1 of the Constitution. The Constitutional Court declared that the part relating to probationers with suspended sentence, among the Provisions at Issue, violates the Constitution. But regarding the part relating to prisoners, the Court held that it is not compatible with the Constitution, taking into consideration that the details of granting the right to vote to prisoners can be decided by the legislature exercising its discretion.

Background of the Case

Complainant Gu ○-Hyun was sentenced to imprisonment for four months and suspension of the sentence for two years after the SeoulEastern District Court found him guilty of obstruction of business, etc. and the judgment was finally confirmed on December 2, 2011. Complainant Hong ○-Seok was sentenced to imprisonment for one and a half year for violation of the Military Service Act by the Seoul Central District Court on December 22 and the judgment was confirmed on December 30, 2011. Complainant Jeon ○-Soo was also sentenced to imprisonment for one and a half year for violation of the Military Service Act by the

Bucheon Branch of Inchon District Court on February 15, 2012 and the judgment was confirmed on February 23, 2012. The complainants were prevented from exercising their right to vote in the election for the 19th National Assembly held on April 11, 2012 on the ground that they fell under the category of disfranchised people stipulated in Article 18 Section 1 Item 2 of the Public Official Election Act. Upon this, the complainants filed this constitutional complaint on April 25, 2012, arguing that Article 18 Section 1 Item 2 of the Public Official Election Act violates their fundamental rights including the right to vote (2012Hun-Ma409).

Provisions at Issue

The subject matters of review in this case are (1) whether the part relating to ‘a person who is sentenced to imprisonment for a limited term or without prison labor for a limited term and the execution of his/her sentence is suspended’ (hereinafter, for the sake of convenience, we will use the term ‘prisoner’; the prisoner here includes a person whose sentence of imprisonment for a fixed term or sentence of imprisonment without prison labor for a fixed term is under execution and a person who was released on parole but his/her prison term has yet to be terminated) and the part relating to ‘a person who is sentenced to imprisonment for a fixed term or imprisonment without prison labor for a fixed term and his/her sentence is suspended’ (hereinafter, for the sake of convenience, we will use the term ‘probationer with suspended sentence’, excluding those whose right to vote is restricted pursuant to Article 18 Section 1 Item 3) in Article 18 Section 1 Item 2 of the Public Official Election Act (amended by Act No. 7681, August 4, 2005) and (2) whether the part relating to ‘the right to vote under the public Acts’ of probationer with suspended sentences or prisoners in Article 43 Section 2 of the Criminal Code (enacted by Act No. 293, September 18, 1953) infringe upon the complainants’ fundamental rights. The provisions at issue in this case are as follows:

Provisions at Issue

Public Official Election Act (amended by Act No. 7681, August 4, 2005)

Article 18 (Disfranchised Persons) (1) A person falling under any of the following Items, as of the election day, shall be disfranchised:

2. A person who is sentenced to imprisonment without prison labor or a heavier punishment, but whose sentence execution has not been terminated or whose sentence execution has not been decided to be exempted.

Criminal Code (enacted by Act No. 293, September 18, 1953)

Article 43 (Imposition of Sentence, Deprivation of Qualifications and Suspension of Qualifications) (2) A person who is sentenced to imprisonment for a limited term or imprisonment without prison labor for a limited term shall be under suspension of qualifications as mentioned in subparagraphs 1 through 3 of the preceding paragraph until the execution of punishment is completed or remitted.

Summary of the Decision

1.Whether restricting the right to vote of prisoners and probationers infringes on the right to vote or violates the principle of universal election

The Provisions at Issue fully and uniformly restrict the right to vote of a prisoner and a probationer with suspended sentence. In light of the legislative purposes of the Provisions at Issue, it is hard to come up with any reason for the uniform and extensive restriction on the right to vote regardless of the type, elements or degree of culpability of a specific crime. Specifically, unless the execution of sentences is invalidated or cancelled, probationers with suspended sentence will not be incarcerated in correction institutions, thereby leading the same life as other ordinary citizens and in this sense, the necessity to restrict their right to vote does

not seem evident. Therefore, the Provisions at Issue infringe upon the complainants’ right to vote in violation of Article 37 Section 2 of the Constitution, and violate the principle of equality as they discriminate probationers with suspended sentences from prisoners in violation of the principle of universal suffrage stipulated in Article 41 Section 1 and Article 67 Section 1 of the Constitution.

2.Decision of simple unconstitutionality in part and decision of incompatibility with the Constitution in part

Among the Provisions at Issue, the part relating to probationers with suspended sentence can regain its constitutionality by declaring it unconstitutional, which removes the infringement on the right to vote. Therefore, we render a decision of simple unconstitutionality on the part. Regarding the part relating to prisoners, however, its unconstitutionality results from the blanket and uniform restriction on the right to vote. Meanwhile, it is within the scope of legislative discretion to remove such unconstitutionality and constitutionally grant prisoners the right to vote. Therefore, the part relating to prisoners among the Provisions at Issue is hereby declared not to be compatible with the Constitution, but it is to be temporarily effective until the legislature revises it. The legislators must make proper revision at the latest by December 31, 2015, and if no such revision is made by then, the part relating to prisoners among the Provisions at issue will become null and void starting on January 1, 2016.

Summary of Concurring Opinion by One Justice

The legislative purpose of the Provisions at Issue, the deprivation of the right to vote in order to o impose social sanction on those who are convicted of crime, is not legitimate. I do not deny the need to impose a certain social sanction on prisoners as retribution against crimes, but such a sanction does not need to be manifested by a way of restricting

the right to vote, which is the most basic right among the suffrage rights. As the legitimacy of law and the duty to abide by law directly derive from exercise of the voting right by citizens, restricting the right to vote of prisoners and probationers with suspended sentence does not seem to strengthen law-abiding spirit, thereby failing to meet the test of reasonableness of means.

Summary of Dissenting-in-part Opinion by One Justice

Different from probationers with suspended sentence who are convicted of crimes with relatively lighter culpability and living in our society as members of community without being imprisoned in extenuation of many factors, prisoners are people who are sentenced to imprisonment without prison labor or heavier punishment but whose sentence execution has not been terminated. It is impossible for them to lead a normal life within our society as they are isolated from the community. I do not think it is excessive to suspend prisoners’ right to vote, which decides the formation and management of governmental structure and the direction of our community, for the period of isolation. As such, the part relating to prisoners of the Provisions at Issue does not violate the Constitution.