Attorney Visitation Prohibiting Physical Contact

[25-2(A) KCCR 494, 2011Hun-Ma122, August 29, 2013]

In this case, the Constitutional Court of Korea held that Article 58(4) of the Administration and Treatment of Correctional Inmates Act, which requires in principle that an inmate's meeting with an outside person take place in a place equipped with a device to prevent physical contact even when the inmate's attorney visits, infringes on the inmate's right of access to trial in violation of the Constitution. The Court thus made a declaration of constitutional incompatibility and ordered interim continuance.

Background of the Case

1. The complainant filed a constitutional complaint (2010Hun-Ma755), seeking decision that the physical examination performed by the prisonduring his detention at the OO Prison was unconstitutional. OnFebruary 23, 2011, the complainant requested a meeting with his court-appointed attorney for the constitutional complaint case at a defense counsel meeting room, rather than at an audio/video recording meeting room. The request, however, was denied for the reason that he was a convicted prisoner, not a detainee. Consequently his meeting with the attorney took place in an audio/video recording meeting room equipped with a device that prevents physical contact.

2.On March 8, 2011, the complainant filed this constitutional complaint,seeking a decision that Article 41 of the Administration and Treatment of Correctional Inmates Act (hereinafter “the Act”) and Article 62 of the Enforcement Decree of the Act, which regulates audio recording and video recording of visitations, as well as Article 58 of the Enforcement Decree of the Act, which requires in principle that visitation take place at a place equipped with a device to prevent physical contact, except for the cases in which an unconvicted prisoner meets his or her defense counsel, are unconstitutional.

Provisions at Issue

The subject matter of review is whether Article 41(2) and (3) of the Act (amended as Act No. 8728 on December 21, 2007), Article 62 of the Enforcement Decree of the Act (amended as Presidential Decree No. 21095 on October 29, 2008) (hereinafter jointly referred to as “Recording Provision”) and Article 58(4) of the Enforcement Decree of the Act (amended as Presidential Decree No. 21095 on October 29, 2008;hereinafter “Meeting Provision”) infringe on the complainant's fundamentalrights.

Administration and Treatment of Correctional Inmates Act (amended as Act No.8728 on December 21, 2007)

Article 41 (Meeting) (2) If any ground falling under any of the following subparagraphs exists, any warden may have a correctional officer listen to, document, audio record or video record the details of meeting of prisoners:

1. Where prisoners are likely to engage in any behavior to destroy evidence or to conflict with criminal law;

2. Where it is necessary for the edification of convicted prisoners or their rehabilitation into society;

3. Where it is necessary for the maintenance of security and order of the institution.

(3) In cases of audio recording and video recording under paragraph (2), each warden shall notify the relevant prisoner and his/her visitor of such fact in advance.

Enforcement Decree of the Administration and Treatment ofCorrectional Inmates Act (amended by Presidential Decree No. 21095 on October 29, 2008)

Article 58 (Meeting) (4) A meeting of a prisoner with an outside person shall be conducted at a place where the device to prevent physical contact have been installed: Provided, That this shall not apply

to cases where any unconvicted prisoner meets with his/her defense counsel.

Article 62 (Listening to, Documenting, Audio Recording and Video Recording of Details of Meeting)

(1)Any warden may have a correctional officer participate in a meeting of a prisoner, other than an unconvicted prisoner who meet with his/her defense counsel, to listen to and document the contents of the meeting under Article 41(2) of the Act.

(2)Unless any special condition exists, each warden shall have a correctional officer inform prisoners and their visitors of the fact to audio record and video record the details of meeting in an appropriate manner, orally or in writing, in advance before they enter a meeting room, under Article 41(3) of the Act.

(3)Each warden shall designate a handler of meeting information to protect and manage the archives of meetings that have been listened to, audio recorded or video recorded under Article 41(2) of the Act, and no handler of meeting information shall use, for unjustified purposes, any meeting information which he/she has come to his/her knowledge in the course of his/her duties, by disclosing, handling without authority or providing it for any other person's use, etc.

(4)Where a warden is requested from the related agencies to provide the archives of meeting referred to in paragraph (3) for any ground falling under any of the following subparagraphs, he/she may provide such archives:

1. Where it is necessary for the trials of the courts;

2. Where it is necessary to investigate a crime, and institute and maintain a public prosecution.

(5)In cases of providing the archives audio recorded or video recorded under paragraph (4), the relevant warden shall have the handler of meeting information provided for in paragraph (3) input the name of organization requesting the provision of such archives, purpose of request, grounds for provision, scope of requested provision, and other necessary matters, to a management program of archives audio recorded

or video recorded, and then separately record such archives on portable storage medium and provide them.

Summary of the Decision

1. Recording Provision (Article 41(2) and (3) of the Act and Article 62 of the Enforcement Decree of the Act)

The legal effects such as restriction on freedom by Article 41(2) and (3) of the Act and Article 62 of the Enforcement Decree of the Act are not the result of the provisions itself. Rather, infringement on the complainant's fundamental rights may occur only through specific enforcement actions,e.g.audio-recording and video-recording, by the warden based on these provisions. Therefore, the part of the complaint regarding the Recording Provision is inadmissible for failing to satisfy the requirement of direct applicability.

2. Meeting Provision (Article 58(4) of the Enforcement Decree of the Act)

Under Article 58(4) of the Enforcement Decree of the Act, attorney visitation must in principle take place at a place equipped with a device that prevents physical contact, when the legal dispute for which the inmate seeks the attorney's assistance is not a criminal but a civil, administrative or constitutional case. As a result, prisoners experience difficulties in efficiently preparing trials. Especially when the inmate intends to bring a lawsuit against the State regarding treatment in the correctional institution, the principle of equal weapons is under threat, because information on the lawsuit can be disclosed to the opposing party. The public nature, ethics and social responsibility that bind any attorney in performing his or her profession, will minimize the possibility of an attorney in engaging in an act of destroying evidence, assisting escape or bringing into the prison prohibited items,e.g.drugs.

In addition, such potential misuse of attorney visitation can be prevented if exception applies when special circumstances justify the concern for harm to the order of the correctional institution. As such, Article 58(4) of the Enforcement Decree of the Act excessively restricts the complainant's right of access to trial in violation of the principle against excessive restriction and thus violates the Constitution.

If the Court decides that the above provision be immediately invalidated,however, it would concurrently have the effect of invalidating the general provision that requires prisoner visitation to normally occur in a place equipped with a device that prevents physical contact, as well as the provision that grants exception to unconvicted prisoners for meeting with defense counsel. This may create a threat to legal stability. Thus, it is necessary that the provision remains in force until the administration amends the provision to be compatible with the Constitution. The administration shall amend the provision no later than July 31, 2014 and, if no amendment is made until then, the Provision shall lose its effect from August 1, 2014.

Dissenting Opinion of Two Justices

The Act provides a broad exception to the regulations on visitation for inmates who have shown outstanding performance in the correctional program, allowing them to have the meeting at a place without a device to prevent physical contact. Even if the meeting takes place in an area where such device is installed, there is no restriction at all in terms of communication using the microphone console, or visual verification of documents and evidence materials, other than the obstacle in receiving materials through physical contact. In addition, an inmate can sufficiently exchange opinions with his or her attorney by corresponding through letters or using the opportunity to communicate during court appearance for trial. 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. Also, we cannot ignore the side effects caused by inmates who would misuse their right to attorney visitation. Further, the public interest in maintaining order and safety of the correctional institution is greater than the disadvantage to the inmate brought about by the provision above. In conclusion, because Article 58(4) of the Enforcement Decree of the Act does not excessively restrict the complainant's right of access to the courts, it does not violate the Constitution.