33.Limitation of Extending the Period of the Communication -Restricting Measures

[22-2(B) KCCR 545, 2009Hun-Ka30, December 28, 2010]

In this case, the Constitutional Court decided that the part of 'extending the period of communication-restricting measures' with regard to the electronic communication stated in Article 6 Section 7 of the Protection of Communication Secrets Act violated the principle against excessive restriction and infringed the privacy of communication, thus being incompatible with the Constitution, by a vote of 6 (unconstitutional, including 2 dissenting opinions that oppose the holding statement) : 3 (constitutional), reasoning that there are no limitations on the entire period or entire numbers of times for extending the period of the communication-restricting measure.

Background of the Case

The movants, who are the accused of the underlying case, were detained and indicted for allegedly violating Article 6 (Infiltration and Escape) and Article 7 (Praise and Incitement) of the National Security Act. While the underlying case was pending at the requesting court, the prosecutor of the underlying case applied for the submission of emails, recorded telephone call, and the facsimile transcripts collected by the investigation agency through the communication-restricting measures as the convicting evidence. Against this application, stating the above evidence had been collected through the communication-restricting measures that had been extended 14 times during 30 months, the movants argued that the proviso of Article 6 Section 7 of the Communication Secrets Act (hereinafter, the "instant provision") that allowed the unlimited extension of the period of communication-restricting measures infringed their right to privacy and privacy of communication, filing the motion to request for the constitutional review of the Instant Provision. The requesting court made this request for the adjudication on the constitutionality of the instant provision, reasoning there are reasonable grounds to consider

its unconstitutionality for the invasion of privacy and secret communication. The subject matter of this case is as followed.

Provisions at Issue

The Protection of Communication Secrets Act (revised by Act No. 6546 on December 29, 2001)

Article 6 (Procedures for Authorization of Communication-Restricting Measures for Criminal Investigation)

(7)The period of communication-restricting measures shall not exceed 2 months and in the event that the objective of the communication-restricting measures is attained during the period, such communication-restricting measures shall be immediately discontinued:Provided, That if the requirement for permission under Article 5 (1) are still valid, a request for extending the period of communication- restricting measures pursuant to paragraph (1) and (2) may be filed, within the limit of 2 months and such request shall be appended by material establishing a prima facie case.

Summary of the Decision

1. Court Opinion of 6 Justices

In permitting the extension of the period of communication- restricting measures, the investigation purpose would be sufficiently achieved even if the entire period of extension or numbers of times of such measures are limited or such measures are suspended when suspicion is not proved during the extended period because it is possible to apply for the additional communication-restricting measures.

Because the court's control over the abuse of extension on the duration of communication-restricting measures is limited, the judicial control on the permission for extending the period of communication- restricting measures cannot prevent the excessive invasion on privacy to communication. Therefore, the instant provision violates the principle of the least restriction because the instant provision did not establish the least standard to prevent the abuse of the permission of

extending communication-restricting measures.

Suspects who had been intercepted by communication-restricting measures could not defend their right to privacy because they did not know whether they were intercepted or not. If there is no limitation on the entire period or number of times of communication-restricting measures, the Secrecy of private communication of the suspect, which is not related to the criminal investigation, would be significantly invaded, violating the principle of balance of interests. Therefore, the instant provision violates the Constitution.

Nevertheless, in this case, if the Constitutional Court delivers the decision of unconstitutional that nullifies the effects of the instant provision, the legal vacuum may occur by nullifying the legal ground to permit the extending of communication-restricting measures, implying the reasonable communicant-restricting measures required for investigation would not be permitted. Therefore, it would be desirable to decide this instant provision shall be temporarily applicable despite it is incompatible with the Constitution; and the Legislature shall revise the instant provision until December 31, 2011.

2. Dissenting Opinion with regard to the Holding Statement of 2 Justices

The legal vacuum would not occur because additional communication-restricting measures for the identical criminal offense would be permitted when they are required for investigating even if the legal ground of permission of extending such measures is decided unconstitutional, losing its effects. Therefore the Constitutional Court should deliver the decision of unconstitutional.

3. Concurring Opinion of 1 Justice

The interception of communication should accord with the warrant issued by judges under due process because it invades the fundamentals of right of privacy and privacy to communication (Article 12 Section 3 of the Constitution). However, the Protection of Communication Secrets Act broadly stipulated the scope of the crime which may be subject to the interception of communication, allowing

the interception for the investigation of crime stipulated by Article 5 of the Act. According to the Act, any notice with regard to the interception of communication is not required unless the interception is completed; no appeal procedure is provided for the subject of the interception; and the entire period or numbers of times of the interception is not limited on extending the interception. As a result, the subject of the interception would be intercepted without recognizing whether she is intercepted or not, being deprived of the opportunity to appeal the permission of the interception. Therefore, the current communication interception system violates Article 12 Section 3 of the Constitution that requires the search according to the due process.

4. Dissenting Opinion of 3 Justices

Persistent investigation would be required in case of conspiracy of felony, threat to national security, or organized mass crime, demanding continuous communication-restricting measures to collect evidence. However, the purpose of such investigation would not be achieved if there are limits on the entire period or number of times of the period of communication-restricting measures. In addition, the judicial control is already set in place to prevent the abuse of communication- restricting measures because the permission of the court is required for extending the period of communication-restricting measures. Accordingly, the instant provision that does not limit the entire period or number of times of communication-restricting measures with the groundless presumption that the court does not thoroughly review the motion to extend the communication-restricting measures in practice would not violate the principle of the least restrictive means.

As long as each communication-restricting measure is approved by the court's review on the elements of justifying the permission of extending such measures, the restricted protection interests of privacy to communication would not clearly overweigh the public interests of crime investigation pursued by the instant provision, satisfying the principle of balance of interests.

Therefore, the instant provision does not violate the Constitution.