Retroactive Application of Statute Allowing Electronic Anklet Attachment

[24-2(B)KCCR281,2010Hun‐Ka82,2011Hun-Ba393(consolidated) December 27, 2012]

The Constitutional Court, in this case, held the Article 2 Section 1 (revised by Act No. 10257 on April 15, 2010, hereinafter, the "Supplementary Provision") of Addenda of the former Act on Attachment of Electronic Tracking Device on Specific Crime Offenders (revised by Act No. 9112 on June 13, 2008) not violating the Constitution because it is not inconsistent with both rule against retroactive punishment and rule against excessive restriction when the Supplementary Provision allows an order of attachment of electronic tracking device to be made even against the persons, who were sentenced for sex crime by the first instant court prior to September 1, 2008 and excluded from persons to be subject to such order of attachment at the time of initial adoption of location surveillance system through attaching electronic tracking device but their full or provisional completion of the sentence, provisional release, release on parole or exemption of sentence was made and thereafter three years have not passed.

Background of the Case

The person subject to electronic tracking device was sentenced to four years' imprisonment with forced labor for the violation of the Act on Punishment of Sex Crimes and Victim Protection on October 20, 2006 and the sentence was finalized and thereafter such person completed his sentence on August 6, 2010. Meanwhile, on July 26, 2010 when the person, as an inmate, remained less than 6 months until completion of his sentence (an Inmate to Be Imminently Released), under Article 2 Section 1 (revised by Act No. 10257 on April 15, 2010, hereinafter, the "Supplementary Provision") of Addenda

of the former Act on Attachment of Electronic Tracking Device on Specific Crime Offenders (revised by Act No. 9112 on June 13, 2008), a prosecutor requested with the court to issue an electronic monitoring device attachment against the person at issue (2010 Jeoncho1, Chungju Branch of Chungju District Court). While the case was pending, the court as requesting court in this case filed this case on its own discretion with the Constitutional Court for constitutional review of statutes at issue.

Provision at Issue

The question presented to the Court is whether the supplementary provisions at issue violate the Constitution and their contents are as follows:

Former Act on Attachment of Electronic Tracking Device on Specific Crime Offenders(revised by Act No. 9112 on June 13, 2008)

Addenda(revised by Act No. 10257 on April 15, 2010)

Article 2 (Transitional Measures and Special Application concerning Request for Attachment after Judgment of First Instance Court)

(1)Notwithstanding of Article 5 (2), Article 7 and Article 9 (3), a prosecutor may file a request for issuance of an electronic‐device attachment order against persons, who, after being sentenced for sex crime by the first instant court prior to September 1, 2008 under the former Act (refers to the Act on Attachment of Electronic Tracking Device on Specific Crime Offenders partially revised by Act No. 10257, hereinafter, the same applies in this Article) and as a person falling under any of persons; (i) person (hereinafter, the "Inmate to Be Released") remaining 6 month and more for completion of the sentence more than imprisonment with forced labor, treatment custody or protective custody (hereinafter, the "Sentence Imprisonment"), (ii) person remaining 6 months or less for completion of the sentence of the Sentence Imprisonment (hereinafter, the "Inmate to Be Imminently

Released") or (iii) person whose full or provisional completion of the sentence, provisional release, release on parole or exemption of sentence was made and thereafter three years have not passed (hereinafter, the "Released Inmate"), fall under any of subparagraphs of Article 5 (1) of the former Act (refers to the Act on Attachment of Electronic Tracking Device on Specific Crime Offenders partially revised by Act No. 9112, hereinafter, the same applies in this Article) and is deemed to pose a particularly high risk of repeating his/her sexual crime, with either the first instance court or the district court (including branch court) having jurisdiction over the residence or current residence of the Inmate to Be Released, the Inmate to Be Imminently Released or the Inmate Released

Summary of the Decision

1. Court Opinion

A.Under the Instant Supplementary Provision, the persons, who had not been subject to attachment of electronic tracking device at the time of first adoption and implementation of GPS tracking system for surveillance, became to be newly included the persons applied by the provision for such attachment when one year and seven months passed by after the implementation date of the provision due to revision of the law. Thus it is questioned whether the Instant Supplementary Provision is inconsistent to the principle of non‐retroactive punishment.

However, court's order of attachment of electronic tracking device not only is a punishment, in the conventional sense, but also aims to pursue public interests in promoting correction of the offender's moral attitudes and antisocial behavior, prevention of recidivism and protection of people from sex crimes. Also, it is hard to consider that it has an effect of physical punishment, control of the offender's action, because the order of attachment of such device does not

impose forced labor on persons wearing electronic tracking device nor deprives them of leisure time.

Furthermore, in order to minimize infringement on the basic rights of such person which may be caused by the order of attachment of such device, the use of information received from the device is strictly restricted and, in the instances where it is regarded that there is no danger of recidivism, the attachment may be temporarily lifted. Therefore, the instant attachment order is a sort of non‐punitive security disposition and thus it is not applied by the principle of non‐retroactive punishment.

B.Even when it is deemed that the Instant Supplementary Provision is not incompatible with the principle of non‐retroactive punishment, we still need to examine whether the provision is excessive with respect to the value in protecting infringed interest in confidence in law of the persons who became subject to the attachment order retroactively, degree and method of the infringement and public interest to be pursued by the Instant Supplementary Provision.

Given that the Instant Supplementary Provision extends the scope of persons subject to attachment of electronic monitoring device based on legislators' concern that, under the statutes prior to revision, there is no proper measures to be taken to prevent recidivism of sex crime offenders who are not subject to such attachment, we found that the purpose of supplementary provision to prevent repeat commitment of sex crimes and protect people from such crimes is legitimate and that provision is proper means to achieve the purpose.

Moreover, considering that the order of electronic tracking devise is a security measure to prevent a future danger and nature of that order, decision whether or not a person must wear electronic monitoring devise should be made based on the circumstances as of the time of such decision. Thus, although, at the time prior to revision of the

Instant Supplementary Provision, a person, who had completed his or her sentence, had any expectation that he or she would not be subject to that attachment order, it is hard to say that the value of protection of such expectation or interest in confidence in law is great. Meanwhile, given that the legislators requires the prosecutor and judge make decision on the risk of recidivism and make strict former statute than moderate new one to be applied with respect to the prerequisite for applying the order of attachment of electronic monitoring device. The period of application of such order is also limited. Thus, we cannot find that the degree of infringement on the interest in confidence in law of the persons subject to that attachment order is great even though the Instant Supplementary Provision retroactively extend the scope of persons to be subject to that attachment order.

On the other hand, while the public interest in protect people, particularly women and children, from sex crimes is much grave, the statute prior to its revision was not applicable to the persons who have completed their sentences so that the number of measures to be taken against those having the highest risk of recidivism was almost zero.

In this light, the legislative aim of the Instant Supplementary Provision is very important and urgent public interest. Thus, when we weigh the relevant factors of the protective value of infringed interest in confidence in law, the degree and method of such infringement and public interest to be accomplished through the Instant Supplementary Provision, the Instant Supplementary Provision shall not be deemed that it does not strike the balance between legal interests concerned.

Therefore, we found that the Instant Supplementary Provision is not inconsistent with the principle of non‐retroactive punishment and rule against excessive restriction.

2. Partial Unconstitutionality Opinion of Four Justices

While we agree with the majority that the retroactive application of order of attachment of electronic monitoring device under the Instant Supplementary Provision does not violate the principle of non‐retroactive punishment guaranteed by the first part of Article 13 Section 1 of the Constitution, we consider the part of the Instant Supplementary Provision unconstitutional when it allows claim requesting electronic tracking device against even 'the persons whose sentence have been already completed (excluding temporary completion, temporary release from prison and release on parole, hereinafter, the "Person of Sentence Completion") and thereafter three years have not passed' because, at the very least, a statutory for the basis of preventive security measures shall be prescribed before completion of sentence.

At first, it is deemed that, to the persons having completed their sentence as criminal punishment corresponding to the sex crime committed by them, a confidence has been formed in terms of the fact that such completion of their sentence was made. However, given that the Instant Supplementary Provision does not set forth any procedure to protect such confidence and applies the process ofattachment order as it is, it violates the rule of the least restrictiveness.

Furthermore, the infringement on expectation interest of the persons, who completed their sentence, returned to society without taking any evaluation of recidivism risk and got out of supervision of government, in having ordinary life as a member of society can never be regarded as small.

Besides, given the Instant Supplementary Provision permits re‐evaluation of recidivism risk for the persons who completed their sentence and three years have not passed after such completion, it is hard to justify the legal instability and disadvantage caused by the fact

that a person may be subject to the re‐evaluation of recidivism risk regarding crime committed by him or her in the past at any time even though we sufficiently take account of prevention of recidivism, a purpose of protective measure.

Thus, when we weigh the public interests in preventing recidivism of the Person of Sentence Completion and protecting citizens, which are pursued by the Instant Supplementary Provision, and the degree of infringement on private legal interest of the Person of Sentence Completion in confidence in law and other disadvantages on them, in our view, it is deemed that the Instant Supplementary Provision excessively infringes on legal interest of the Person of Sentence Completion in confidence in law.

Thus, the part of the Instant Supplementary Provision regarding 'the persons who completed their sentences and thereafter three years have not passed' is an excessive retroactive legislation and thus is incompatible with the rule against excessive restriction of Article 37 Section 2 of the Constitution.

3. Dissenting Opinion of One Justice

In my view, given the purpose and intent of imposing penalty of attachment of the electronic tracking device and its actual effect on the persons subject to the imposition, it is deemed that such attachment is a sort of criminal penalty having a nature of severe 'criminal punishment' as much as a criminal punishment. Accordingly, so far as the attachment of electronic monitoring device has a criminal penalty, in order to making an order of that attachment, a statute which is a basis for that attachment should be enacted and executed at the time of committing a crime. In the Instant case, however, the Supplementary Provision sets forth a retroactive punishment which is prohibited by the first part of Article 13 Section 1 of the Constitution.

The Constitution grants the right to enact statutes to the legislators but also put some limits on that right. The rule against retroactive punishment is one of them and, thus, even though the need of severepunishment is recognized, a criminal penalty cannot be imposed againsta person without a statute. This is not because the Constitution treats the pain and injury suffered by victims lightly or only tries to protect the human right of inmates but because it intends to prevent the fear and confusion caused by legal instability where no one can foresee whether his or her present action would be punishable afterwards due to unpredictable statute to be newly enacted so that all the citizens can be protected from arbitrary exercise of governmental right to criminal punishment. The legislators cannot enact a statute beyond the limit on their right prescribed by the Constitution even though that limit is very unsatisfactory and uncomfortable to them. It is the very principle of government by the rule of law that the Constitution shall be always given priority over the legislators' judgment.

Therefore, the Supplementary Provision, which allows an order of attachment of electronic tracking device to be made even against the person having committed a crime before enactment and execution of the Act on Attachment of Electronic Tracking Device on Specific Crime Offenders, is against the Constitution because it is incompatible with the rule against retroactive punishment prescribed in Article 13 Section 1 of the Constitution.