28.Prohibition on Pre-trial Detainees' Attending Religious Ceremonies etc Case

[23-2(B) KCCR 840, 2009Hun-Ma527, December 29, 2011]

The Constitutional Court, in this case, held that the chief of detentioncenter infringed on pre-trial detainees' freedom of religion and thereforeviolated the Constitution when he forbade the detainees from attending a religious ceremony or service held within the center.

Background of the Case

Complainant was accused of fraud and other charges and detained at Daegu Detention Center on June 1, 2009. He was thereafter tried and convicted on October 9, 2009 and then transferred to Daegu Prison on November 30, 2009. On May 25, 2011, the complainant was released from prison on completion of his sentence. Complainant filed this case with the Constitutional Court on September 14, 2009, alleging that his basic right was infringed by the chief of the Daegu Detention Center when the chief prohibited him from attending religious services accommodated at that center during the period of his detention- from June 1, 2009 to October 8, 2009 (hereinafter the "Prohibition"). Meanwhile, until that time, the chief of the Daegu Detention Center had uniformly prohibited all pre-trial detainees from attending religious gatherings on the ground that they encounter an accomplice and destroy evidence or otherwise that the meeting place for the religious events within the detention center was too small.

Summary of Decision

The Court unanimously held that the chief of the Daegu Detention Center violated the Constitution by infringing on the complainant'sfreedom of religion, when he prohibited the complainant from attendingreligious ceremonies or service held at that center based on the following grounds.

1. Whether a constitutional clarification is necessary

On October 9, 2009, the legal status of the complainant changed from a pre-trial to a post-conviction detainee and thus the complaint has become moot and may be unjustified. However, the chief of the Daegu Detention Center against whom the complainant filed this case presently still forbids most of pre-trial detainees except for ones accused of negligence from attending religious events held at that center and therefore, the infringement on basic rights by a similar or same treatment is likely to be repeated. Moreover, a constitutional clarification about the Prohibition has not been provided so far. For the reasons stated above, we find there is a justiciable interest because a constitutional review has significant implications for protection and maintenance of constitutional order.

2. Whether the detainee's freedom of religion was infringed

Religion has a positive function in supporting the mental stability of inmates and therefore, guaranteeing pretrial detainees, who, being suddenly isolated from society, are mentally unstable and disheartened, to attend religious events would contribute to the security of detention center and the maintenance of its order by preventing accidents suchas suicides. In addition, Article 45 of the Act for Execution of Sentenceand Improvement of Treatment for Detainees prescribes "persons in a detention center or a prison' as the persons who may attend events such as religious gatherings and thereby does not make a distinction between inmates and pre-trial detainees. Furthermore, the restrictions on the basic rights of detainees to which the principle of presumption of innocence should apply must be more relaxed than those on the inmates who have been already sentenced to a certain penalty including imprisonment. In the instant case, however, the chief of the Daegu Detention Center, by uniformly forbidding a pre-trail detainee, who has not yet been sentenced, from attending religious gatherings, restrains the freedom of religion of pre-trial detainees even more strictly than other detainees.

The chief of Daegu Detention Center expresses a concern that a

detainee might use the opportunity of religious events to meet an accomplice and settle false testimonies. However, he did not consider using a less restrictive means, including, separating accomplices or other persons related to the same case from each other when they attend religious events. Thus, we cannot find that the Prohibition in this instant case satisfies the requirement of least restrictiveness.

On the other hand, it is hard to conclude that the public interest gained from prohibiting pre-trial detainees from attending religious events as in this case is greater than the disadvantages of the constraint on their freedom of religion suffered by the detainees fromthat prohibition. Therefore, we conclude that, in the instant case,the prohibition of attendance at religious events infringes on the complainant's freedom of religion.