Restriction on Prisoner's Right to Vote Case

[21-1(B) KCCR 327, 2007Hun-Ma1462, October 29, 2009]

This case deals with constitutionality of a provision of the Public Official Election Act which stipulates that 'a person who is sentenced to imprisonment without prison labor or a heavier punishment, but whose sentence execution has not been terminated shall be disfranchised'. Regarding this, the Constitutional Court denied the constitutional complaint against the aforementioned provision in a vote of 5 (unconstitutional) to 3 (denial) to 1 (dismissal). Despite the majority of five justices rendered a decision of unconstitutionality, the constitutional complaint was denied as the Court failed to meet the quorum requirement of more than six justices required to hold the constitutional complaint.

Background of the Case

The former portion of Article 18, Section 1, Item 2 (hereinafter, the "Instant Provision") stipulates that "a person who is sentenced to imprisonment without prison labor or a heavier punishment, but whose sentence execution has not been terminated shall be disfranchised". Complainant was sentenced to one and half year in prison for violation of the Military Service Act. While being imprisoned, he tried to cast a vote in the presidential election held on December 19, 2007 but failed. At this, the complainant filed this constitutional complaint against the Instant Provision, arguing that the Instant Provision infringes his basic rights including the right to vote. The text of Instant Provision is as follows:

Provision at Issue

Public Official Election Act

Article 18 (Disfranchised Persons)

(1) A person falling under any one of the following subparagraph, as of the election day, shall be disfranchised: (revised by Act No. 7189 on Mar. 12, 2004; Act No. 7681 on August 4, 2005)

2. A person who is sentenced to imprisonment without prison labor or a heavier punishment, but whose sentence execution has not been terminated or whose sentence execution has not been decided to be exempted;

Summary of the Decision

1. Court Opinion

A. Filing Period Issue

The Instant Provision limits the right to vote of 'a person who is sentenced to imprisonment without prison labor or a heavier punishment, but whose sentence execution has not been terminated as of the election day'. Therefore, the basic rights including the right to vote would be considered as being infringed by the Instant Provision only when a specific cause of action for such violation arises. And in this case, the specific cause of action arises from the election day. As the complainant filed this constitutional complaint within 90 days from the election day, he does not exceed the designated filing period.

B. Violation of the Principle against Excessive Restriction, etc.

Given the importance of the right to vote as a pivotal means to realize popular sovereignty and representative democracy in a democratic nation, the question as to whether the right to vote is excessively restricted or not should be scrutinized under the strict review of proportionality pursuant to Article 37, Section 2 of the Constitution, from the viewpoint of the principle of universal suffrage and its limitation.

The deprivation of the right to vote by the Instant Provision, as one of the criminal sanctions, functions as retribution to the crime committed by the criminal. Moreover, such deprivation by the Instant Provision, apart from imposition of life sentence or prison sentence, can help citizens including the prisoners themselves to cultivate responsibility as a citizen and improve respect to the rule of law.

Such purposes of the Instant Provision are legitimate and imposing restriction on the prisoner's right to vote is one of the effective and appropriate means to achieve the purposes.

The Instant Provision imposes overall and uniform restriction on the right to vote of a person who is sentenced to imprisonment without prison labor or a heavier punishment, but whose sentence execution has not been terminated. In other words, such restriction extends to those who negligently commit a crime without knowledge or intention to undermine law and order of the community. Also, the right to vote of a parolee, who is released from the prison and returns to the society prior to the completion of sentence after successfully going through the parole review committee's examination on the overall circumstances including motive for the crime, possibility of recidivism, etc., is limited under the Instant Provision as well. Further, the Instant Provision also restricts the right to vote of the prisoners who are sentenced to short term imprisonment for negligence nothing to do with any crime against the nation that denies the constitutional order. Such extensive restriction, however, seems not compatible with the election system in a democratic nation that strives to accomplish the community order through free participation of various people in the election process whose backgrounds or ideologies are diverse, on the basis of a pluralistic worldview. Therefore, the legislators should carefully impose restriction on the right to vote only in a limited situation, considering the importance of such right. Nevertheless, the Instant Provision easily and uniformly limits the prisoner's right to vote simply by establishing the standard of 'a person who is sentenced to imprisonment without prison labor or a heavier punishment, but whose sentence execution has not been terminated', without carefully contemplating 'the relation between the type, content or degree of illegality of each crime and the restriction on the prisoner's right to vote'. Therefore, the Instant Provision violates the rule of least restrictive means.

Also, the Instant Provision restricts the right to vote too broadly, regardless of the direct relation between the characteristics of a crime and restriction on the right to vote, and therefore, the prisoner's private interests or the public value in the democratic election system infringed by the Instant Provision outweigh the public interest of

'punishing a person who commits a felony and improving citizen's respect to the rule of law' intended to be achieved by the Instant Provision. As a result, the Instant Provision fails to strike balance between the conflicting legal interests in relation to restriction of the basic rights.

C. Conclusion

The Constitutional Court should hold the constitutional complaint, and declare the Instant Provision unconstitutional as it infringes on the prisoner's right to vote in violation of Article 37, Section 2 of the Constitution and on the prisoner's equality right in violation of the principle of universal suffrage stipulated in Article 41, Section 1 and Article 67, Section 1 of the Constitution.

2. Denial Opinion of Three Justices

The nature of Instant Provision is to criminally punish a felon who commits an anti-social crime. The issue of how to punish a crime, or in other words, the choice of types and scope of statutory punishment, should be decided by the legislature, considering various aspects related to not only the nature of crime and protected legal interests but also our history and culture, the situation at the time when the statute was legislated, citizens' value system or legal sentiments in general and the criminal policy to prevent crimes. In this regard, broad legislative discretion should be acknowledged. Therefore, the Court should keep this in mind while reviewing constitutionality of the Instant Provision.

According to the Korean Criminal Act, imprisonment without prison labor is a sentence imposing serious restriction on the prisoner's basic rights including the liberty of body by confining a criminal in prison for at least one month. And this sentence is graver than that of disqualification or suspension of qualification which limits the right to vote or the right to be elected. And, our Constitution stipulates that a judge may be removed from office by a 'sentence of the imprisonment without prison labor or a heavier punishment' and the State Public Officials Act provides that a public officer who is sentenced to

'imprisonment without prison labor or a heavier punishment' may be removed from office. Also, statutory provisions specifying qualification of professionals such as lawyer stipulate certain grounds for disqualification in case those professionals are sentenced to 'imprisonment without prison labor or a heavier punishment'. Therefore, the standard of 'a sentence of the imprisonment without prison labor or a heavier punishment' is important enough to justify such restriction on the basic rights. Moreover, as the Instant Provision is applicable to prisoners who are sentenced to 'imprisonment without prison labor or a heavier punishment', not to persons who are under the suspension of the execution of punishment, preventing the prisoners who are sentenced to such grave punishment from exercising the right to vote during the period of execution of punishment does not seem excessive beyond necessary degree to achieve the legislative purpose.

The prisoner's disadvantage of being unable to exercise the right to vote due to the Instant Provision is merely one of the effects of the disqualification or suspension of qualification which is a less severe sentence than that of imprisonment without prison labor. The period during which the right to vote is limited does not uniformly apply to all the prisoners, but proportionally apply on the basis of each prisoner's sentence, or in other words, depending on the degree of one's criminal liability. The public purposes to be achieved by the Instant Provision including 'criminally punishing a person who commits a felony and improving citizen's respect to the rule of law' do not seem to be dwarfed by the prisoner's disadvantage that the right to vote is limited during his/her sentence execution period. Therefore, the Instant Provision strikes the balance between legal interests.

Consequently, as the Instant Provision neither violates the rule against excessive restriction stipulated by Article 37, Section 2 of the Constitution nor infringes on the complainant's right to vote and equality, the constitutional complaint in this case should be denied for lack of cause.

3. Dismissal Opinion of One Justice

As the Instant Provision reflects the effect of Article 43, Section 2 of the Criminal Act (a person who is sentenced to imprisonment for a

limited term or imprisonment without prison labor for a limited terms shall be under suspension of qualifications including suffrage and eligibility under public Act.), the cause of action for infringement on the basic rights, such as limiting the right to vote, is also considered to arise when the sentence is finalized, like in Article 43, Section 2 of the Criminal Act. This constitutional complaint, however, was filed after the lapse of one year since the final sentence was announced and therefore, time barred under Article 69, Section 1 of the Constitutional Court Act. Therefore, this constitutional complain should be dismissed.