27. The Right to Criminal Compensation Case

[22-2(B) KCCR 180, 2008Hun-Ma514, 2010Hun-Ma220(Consolidated), October 28, 2010]

In this case, the Constitutional Court ruled that Article 4 Section 1 of the Criminal Compensation Act and Article 2 of the Enforcement Decree of the Criminal Compensation Act that limit the amount of criminal compensation do not infringe on the right to criminal compensation; nonetheless, the court ruled that Article 19 Section 1 of the Criminal Compensation Act, which prohibits the appeal against the decision of the compensation, infringes on the basic rights of the complainants, thus violating the Constitution.

Background of the Case

The complainants, who were prosecuted while being detained but found not guilty, later requested criminal compensation for the above detention and received the decision of compensation. These complainants filed this constitutional complaint, alleging that Article 4 Section 1 of the Criminal Compensation Act and Article 2 of the Enforcement Decree of the Criminal Compensation Act that prescribe the contents of criminal compensation(hereinafter, the "Compensation amount provisions") and Article 19 Section 1 of the Criminal Compensation Act that prohibits the appeal against the decision of compensation(hereinafter, the "Prohibition of Appeal Provision") infringe on the basic rights of the complainants.

Provisions at Issue

Criminal Compensation Act (revised by Act No. 3956, November 29, 1987)

Article 4 (Contents of Compensation)

(1) In case of compensation for detention, compensation at the rate of 5,000 Won or more but not more than the amount determined by Presidential Decree per day on the basis of the number of days

detained shall be paid.

Enforcement Decree of the Criminal Compensation Act (revised by Presidential Decree No. 13386, June 19, 1991)

Article 2 (Maximum Compensation)

The maximum compensation for detention prescribed by Article 4 (1) of the Act shall be five times the daily minimum wage under the Minimum Wages Act of the year when the reason for compensation request for one day detention occurs.

Criminal Compensation Act

Article 19 (Appeal)

(1) No appeal shall be lodged against the decision of compensation.

Summary of the Decision

The Constitutional Court decided that the compensation amount provisions are not unconstitutional in a vote of 7 (constitutional) to 2 (unconstitutional), while unanimously holding the Prohibition of Appeal Provision violates the Constitution, with the following reasons:

1. The Compensation Amount Provisions

A. Court Opinion

Article 28 of the Constitution protects the basic rights by securing the right to request the reasonable compensation for the substantial and psychological damages against the Nation when a detained person as the accused was found not guilty. Because the right to criminal compensation shall be exercised according to the legislation as stated in Article 28 of the Constitution, the specific contents, amount and procedure of criminal compensation are determined by the Legislator.

Despite the compensation amount provisions set the limitation in the amount of compensation, it would not be unreasonable for criminal compensation not to compensate every related damage because criminal compensation is for the damages which may be caused by the inherent danger of the criminal procedure system, which differs from the state compensation that presumes the illegal or illegitimate actions

of the Nation. If the compensation amount were determined on specific or individual damages, compensation procedure would be unreasonably delayed, which would be against the purpose of criminal compensation. Besides, the differences in the amount of compensation, which are caused by individual elements, would hinder the principle of fairness, implying that the compensation amount provisions do not violate Article 28 and Article 37 Section 2 of the Constitution.

B. Dissenting Opinion of Two Justices

If the Nation detained an innocent person in the course of the exercise of criminal justice, the Constitution that respects the sovereignty of the People requires the Nation to be liable for damages of the detained person, despite it would not be illegal.

The 'reasonable compensation' of the right to criminal compensation of Article 28 of the Constitution means the complete compensation for all damages that arose out of the detention. The limitation in the compensation amount intends to prevent the burden of national finance that may be caused by excessive compensation; nevertheless, criminal compensation is the obligation of the Nation under the Constitution, implying the financial burden does not justify the denial of the Constitutional obligation. Therefore, the compensation amount provisions infringe on the right to criminal compensation of the complainants by violating Article 28 of the Constitution because the provisions deny the right to criminal compensation which exceeds a certain limit without legitimate reasons.

2. The Prohibition of Appeal Provision

The Prohibition of Appeal Provision does not provide the appeal process against the decision of criminal compensation, prescribing the decision of compensation as the single-trial system. Nevertheless, it would infringe on the substances of the right to trial as the basic right by prohibiting appeal even when the error or unreasonableness in fact finding or determining the amount of compensation were found. It would not accord with the nature of the judicial system which pursues the fairness and justice of trial, by excessively focusing on the legal

stability. The appeal process, presuming that the appeal is permitted, would not impose excessive burden on the higher trial because the immediate appeal is fast and simple and there would not be many such cases. Therefore, the Prohibition of Appeal Provision violates the Constitution, infringing on the substances of the right to criminal compensation and the right to trial.