8.Case on Disallowance of Pre-conviction Detainee's Attorney Consultation on a Holiday

[23-1(B) KCCR 201, 2009Hun-Ma341, May 26, 2011]

The Constitutional Court held that the complainant's right to assistance of counsel is not infringed in the instant case where the complainant, after being tried without detention but thereafter detained for failure to attend court on the sentencing date, was disallowed consultation with counsel on a holiday but was allowed consultation two days after, ending up having a trial held more than 10 days thereafter. In a separate concurring opinion, three Justices expressed their view that the current practice of correctional institutions that refuses consultation with an attorney simply for the reason that it is a Saturday or holiday must be corrected in order to fully realize the right of to assistance of counsel.

Background of the Case

While pending trial on fraud charges without detention, an arrest warrant was issued against the complainant for failure to appear in court on the court date of sentencing on May 1, 2009 and he was detained on May 27. The court-appointed attorney for the complainant requested a consultation but was not allowed on the ground that it was MemorialDay, June 6. Two days thereafter the attorney consulted with the complainant.Trial was held on June 19, 2009, and the complainant was found guilty on June 24. The complainant filed this constitutional complaint against the Minister of Justice and the head of Seoul Detention Center arguing that the disallowance of consultation with his attorney on Memorial Day infringed on his right to assistance of counsel.

Summary of Decision

1. Court Opinion

We cannot conclude that the right to assistance of counsel was

infringed simply by the fact that such consultation was not allowed on a certain date a detainee or his attorney wanted to have that consultation. For the right to consultation with an attorney to be infringed, some disadvantages to the suspect or defendant in exercising his/her defense right should be found as a consequence of the refusal of attorney consultation in connection with the case investigation or court proceeding around the time of such refusal. On the other hand, we should not find the infringement of right of assistance of counsel if we can find the opportunity to have consultation with his/herattorney was sufficiently given to a pre-conviction detainee for exercisinghis/her right to defense in connection with the case investigation or court proceeding around the time of such refusal, even where such consultation with attorney was not made in the date designated by that detainee or his/her attorney.

In the instant case, it can be regarded that almost all of the court proceedings had been completed without detention, with only the court's sentencing remaining, because the complainant had appeared before the judge without detention until he failed to attend the court on the date of sentencing. In addition, the complainant was given sufficient time for attorney consultation and advice since a new trial date was scheduled on June 19, 2009, eighteen (18) days after June 1, 2009 when his attorney was appointed by the court. More importantly, it is hard to conclude that the complainant in exercising his right to defense suffered any disadvantages from not being allowed attorney consultation on Memorial Day, as the complainant was allowed attorney consultation two days later on June 8, 2009 and there remained more than 10 days until the new trial date.

2. Concurring Opinion of Three Justices

Rather than disallowing attorney consultation on holidays or weekendswithout any exception, the government needs to allow a pre-conviction detainee attorney consultation even on holidays and weekends as much as possible, as the right to assistance of counsel of a pre-conviction detainee should be specially respected, absent special circumstances. The burden of allowing attorney consultations on a holiday, such as

increase in budget and personnel costs can be relieved by the following ways: shortening visiting hours for an attorney consultation on holidays and weekends; limiting the number of holiday attorney consultation allowed per pre-conviction detainee; or allowing the initialattorney consultation in principle and thereafter allowing such consultationonly if it is recognized to be necessary.

In order to guarantee the right of pre-conviction detainee assistance of counsel as an important basic right under the Constitution, the current practice of disallowing a pre-conviction detainee's consultation with his/her attorney in correctional institutions only because it is holidays or weekends needs to be corrected.