Court's Order of Attachment Electronic Device to Specific Crime Offenders and Imposition of Other Duties

[24-2(B) KCCR 364, 2011Hun‐Ba89, December 27, 2012]

In this case, the Constitutional Court held the provisions of the former Act on Attachment of Electronic Tracking Device on Specific Crime Offenders do not violate the petitioner's basic rights when, if a prosecutor files a claim and the court make a decision to order, thoseprovisions allow persons either to be ordered to wear electronic trackingdevice for the period of 3 years and more not exceeding 20 years or to be imposed to observe duties including night curfew and prohibition on entry into childcare facilities for specified period.

Background of the Case

(1)On October 1, 2010, based on the facts that "raping seven women during the period from January 19, 2010 to February 25 of the same year," the court made a judgment that the petitioner was sentenced to twelve years' imprisonment for violation of the Act on the Protection of Children and Juveniles from Sexual Abuse. Besides, that court ordered that, under Article 9 Section 1 Item 2, Article 5 Section 1 Item 3 of the Act on Attachment of Electronic Tracking Device on Specific Crime Offenders, an electronic tracking device should be attached to the petitioner for 10 years and, during such period, he should: be prohibited from entering into specific places including nearby elementary schools or kindergartens; and complete sex offender rehabilitation programs. (see 2010GoHap141; and 2010 JeonGo11, Daegu District Court)

(2)Against the ruling, the petitioner filed an appeal with the Daegu High Court (2010Noh451; 2010JeonNoh36) and, while the appeal case was pending, he filed a motion with the same court to file a request with the Constitutional Court to have a review on constitutionality of

the provisions at issue, arguing that the provisions such as Article 5 of the Act on Attachment of Electronic Tracking Device on Specific Crime Offenders are unconstitutional. However, that court rejected such motion and, thus, the petitioner filed this constitutional complaint with the Constitutional Court on May 3, 2011.

Provisions at Issue

The question presented to us is whether Article 9 Section 1 Item 2 in terms of Article 5 Section 1 Item 3 of the former Act on Attachment of Electronic Tracking Device on Specific Crime Offenders (revised by Act No. 10257 on April 15, 2010 and before revised by Act No. 11558 on December 18, 2012) (hereinafter, the "Electronic Device Attachment Provision") and Article 9‐2 Section 1 Item1, 2 and 4 of the Former Act on Attachment of Electronic Tracking Device on Specific Crime Offenders (revised by Act No. 9112 on June 13, 2008 and before revised by Act No. 10257 on April 15, 2010) (hereinafter, the "Observance Provision") are unconstitutional or not, and the contents of those provisions are as follows:

Former Act on Attachment of Electronic Tracking Device on Specific Crime Offenders(revised by Act No. 10257 on April 15, 2010 and before revised by Act No. 11558 on December 18, 2012)

Article 5 (Request for Order to Attach Electronic Device)

(1)A public prosecutor may file a request with a court for the issuance of an order to attach an electronic device to any person who falls under any of the following subparagraphs and is deemed to pose a particularly high risk of repeating his/her sexual crimes (hereinafter referred to as "attachment order"):

3.A person is found to have a tendency to commit sexual crimes because that person has committed sexual crimes more than twice (including the court's final judgments of guilty);

Article 9 (Judgment on Attachment Orders)

(1)A court shall, where deemed that a request for attachment order is well‐grounded, issue an attachment order in the form of a judgment fixing a period of attachment within one of the following periods: Provided, that, if a criminal commits a specific crime on a child under thirteen, the lowest limit of such period shall be extended up to twice of the one of following lowest limits:

1.As for specific crimes for which the upper limit of statutory punishment is either capital penalty or life sentence with forced labor: more than 10 years not exceeding 30 years;

2.As for specific crimes for which the lower limit of statutory punishment is more than 3 years (excluding specific crimes belongingto the subparagraph 1 of this Article): more than 3 years not exceeding20 years;

3.As for specific crimes for which the lower limit of statutory punishment is imprisonment with forced labor for limited term of less than 3 years (excluding specific crimes belonging to the subparagraph 1 and 2 of this Article): more than 1 years not exceeding 10 years

Former Act on Attachment of Electronic Tracking Device on Specific Crime Offenders(revised by Act No. 9112 on June 13, 2008 and before revised by Act No. 10257 on April 15, 2010)

Article 9‐2 (Matters to be Observed)

(1)In issuing an attachment order under Article 9 (1), the court may impose one or more of the following duty to observe:

1. Night curfew or confinement to a specific time zone;

2. Prohibition on entry into a specific area or place;

3.Prohibition on approaching certain individuals, including the victim;

4.Completion of sex offender rehabilitation programs; or

5.Other matters as may be necessary to prevent the repetition of crimes, and to rectify the character and conduct, of the person placed under the court's attachment order.

Summary of the Decision

1.Whether the Electronic Device Attachment Provision is unconstitutionalor not

By allowing electronic monitoring device to be attached to a sexual crime offender who has been designated as habitual and has high risk of repeating such crime, the Electronic Device Attachment Provision aims to track down that offender in order to prevent sexual crime and recidivism and thus protect the public. Thus, we found that the Provision has legitimate purpose and the means are proper.

Furthermore, the Provision cannot be considered as violating the principle of least restrictive means considering: taking account of its nature, the freedom of person wearing tracking device to be restricted is not a physical prohibition of action itself but just a psychological shrinking regarding freedom of action; the former Act on Attachmentof Electronic Tracking Device on Specific Crime Offenders (hereinafter,the 'Act on Attachment of Electronic Tracking Device') sets forth provisions including allowing every 3 month decision on detachment based on the level of improvement and reformation of the person monitored in order not to have unnecessary attachment for taking measures to minimize human right abuses sustained by the attachment of those electronic monitoring devices; it is necessary to put a higher ceiling on the attachment period because most of sex crimes are habitual and such habit cannot be corrected in a short period of time and thus it is more likely to last for a long time; and, given epidemic increase of sex crimes and their serious damages, it is not easy to find out means less restrictive on basic right than electronic tagging through location tracing. Besides, the Electronic Device Attachment Provision strikes a balance between those interests concerned because it cannot be regarded that disadvantage suffered by sex crimeoffendersweighs more than the interests to be protected bythe ElectronicDevice

Attachment Provision. Thus, we cannot find that the Electronic Device Attachment Provision violates the principle against excessive restriction and thus infringes on freedom and privacy of personal life, right to self determination on personal information or right to personality of the person wearing tracking device.

2. Whether the Observance Provision is unconstitutional or not

Based on people's pointing out that simple attachment of tracking device cannot accomplish the goal of prevention of recidivism, the Observance Provision was set forth to impose specified duties to the person wearing monitoring device in order to effectively achieve legislative purpose of the Act on Attachment of Electronic Tracking Device, prevention of recidivism. We found that the purpose is legitimate and the means adopted are proper.

In addition, designation of either place where the person wearing tracking device is prohibited to enter or confinement to a specific time zone and imposition of completion of sex offender rehabilitation programs is to prevent recidivism and rehabilitate the person wearing electronic tagging device and it is hard to find less restrictive means than those designation and imposition.

Meanwhile, according to the Act on Attachment of Electronic Tracking Device, it is allowed to make flexible imposition of those duties of the Observance Provision in order to prevent recidivism and rehabilitate the person wearing electronic tagging device. Moreover, the Observance Provision is considered to strike a balance between legal interests concerned: while the restriction on basic rights of person wearing such device cannot be deemed as little, the importance of public interest in protecting people from sex crimes pursued either by not allowing persons, who, among sex offenders who are ordered to wear such device because they have been designated as habitual and

has such high risk of repeating sex crimes that we cannot expect the effect of special prevention or social protection, meet all elements for attachment order, to go out at specific time or space zone where those persons may have a chance or feel the urge to commit second crime during attachment period or by ordering mandatory completion of sex offender rehabilitation programs is much greater.