Audio Recording and Documenting Inmate-Attorney Meeting

[25-2(B) KCCR 26, 2011Hun-Ma398, September 26, 2013]

In this case, the Constitutional Court of Korea held that an inmate complainant's right to trial was violated by the act of the warden who audio recorded and documented the content of the inmate's meeting with his court-appointed attorney to discuss matters on a constitutional complaint case

Background of the Case

The complainant, who is an inmate, filed a constitutional complaintseeking a decision that the prison regulation on hairstyle is unconstitutional.Afterwards, he had two visitations with his court-appointed attorney. During the course, the respondent warden arranged the visitations to take place in an area in which the device to prevent physical contact is installed and also audio recorded and documented the content of the meeting.

On July 19, 2011, the complainant filed this constitutional complaint seeking a decision that the act of audio recording and documenting the meeting with his attorney (hereinafter “the Act of Recording”) is unconstitutional.

Subject Matter of Review

The subject matter of review is whether the Act of Recording was constitutional.

Summary of the Decision

If the content of an inmate's meeting with his or her attorney is audio or video recorded, the content is exposed to the prison, which is a third

party. This puts the inmate and attorney in a position to be extremely careful in their conversation, especially when the opposing party of the lawsuit is the State or prison and the content concerns maltreatment in the correctional institution. In such cases, an audio or video recording of the content of the meeting effectively nullify the principle of equal weapons, which is to ensure that both parties are on an equal footing.

The possibility that an attorney would commit or engage in an illegal act by conspiring with an inmate through the meeting is close to none, because attorneys, even compared to other professions, are subject to a higher standard of public responsibility in the profession. In addition, it is hard to contemplate that audio or video recording is required for the purpose of edification or social rehabilitation of the inmate, when the content of the meeting with attorney concerns preparation of a lawsuit.

Therefore, any audio or video recording of an inmate's meeting with his or her attorney should not be allowed. When special circumstances indicate objectively and specifically that the inmate, in conspiracy with his or her attorney, would commit an act that is against the law or that would disturb the order of the prison, the warden can prevent the meeting itself to achieve correctional purposes.

In this case, the act of audio recording and documenting the content of the meeting, which should not be allowed considering the purpose and nature of the meeting as a visitation by the complainant's court-appointedattorney for a constitutional complaint case, infringes on the complainant'sright to trial.

Dissenting Opinion of Two Justices

While an inmate's right to have a meeting with an outside person is recognized, it is necessary to maintain discipline and order within any correctional institution which supervises a large number of inmates as a

group. Therefore, the freedom of an inmate as to visitation has internal limitation, and the extent to which an inmate's right to visitation is recognized essentially falls under the policy-making authority of the legislature.

The complainant was designated as one of “inmates of special concern”, meaning he is subject to a stricter supervision, for his crimes of assaulting and causing injury to correctional officers. Moreover, he has a history of being punished for violations of prison rules for multiple times. Considering these facts, the Act of Recording in this case not only serves a legitimate purpose of preventing destruction of evidence and any further criminal acts and maintaining safety and order of the correctional institution, but also is a use of an appropriate measure.

The Administration and Treatment of Correctional Inmates Act sets the principle that the content of an inmate's meeting with an outside person not be listened to, documented, or audio or video recorded. It also provides that the warden may use his or her discretion to allow audio or video recording as an exception only when there exists any special circumstance specified under Article 41(2). In the exceptional situations where audio or video recording is conducted, the inmate should be informed of the fact in advance. Also, the protection of confidentiality and the handling of the audio or video recorded meeting materials should be carried out with utmost care. As such, the Act provides institutional measures to minimize the possibility of infringement on the inmates' fundamental rights that might result from such recording. In addition, an inmate is free to secretly exchange opinions with his or her attorney through letters and may use the opportunity of meeting the attorney during court appearance for trial to sufficiently exchange opinions on confidential matters. A special treatment of attorney visitation can lead to a problem of unreasonable discrimination against other representatives for litigation (e.g.legal representative, family,

patent agent) who are not attorneys.

Especially, the complainant was designated as one of the “inmates of special concern”, for his crimes of assaulting and causing injury to correctional officers for three times, and has a history of being punished for violations of prison rules for 27 times. He was also diagnosed to be suspected of having so called “delusion of reference” symptom. Considering his overall characteristics and attitudes in prison at the time, there was reason to suspect that the complainant might behave unexpectedly or make trouble. The necessity to record the content of the inmate's meeting even with his attorney was thus great to help correction and edification and promote rehabilitation into society by keeping track of the complainant's movements. Furthermore, the contents of the constitutional complaint filed by the complainant hardly support a finding that the complainant's right to trial was substantively infringed because of the Act of Recording.

Therefore, the Act of Recording in this case does not constitute an act of excessive restriction or a violation of the complainant's right to trial.