Case on Request to be Visited by Counsel in the Defendant's Waiting Room

[21-2(B) KCCR 288, 2007Hun-Ma992, October 29, 2009]

In this case, the Constitutional Court denied the complaint, stating that the escorting correctional officer's denial of a defendant's request to be visited by his counsel while waiting in the defendant's waiting room located next to the courtroom did not infringe on the defendant's right to counsel.

Background of the Case

The complainant was arrested on charges of setting fire to a car on March 30, 2007 and put into detention starting from April 4, the same year at the Ulsan Detention Center. He was then prosecuted in Ulsan District Court on April 20, 2007.

The second session of the defendant's first instance trial was scheduled in Courtroom 101 on June 19, 2007 at around 4:30 p.m., and the complainant who was waiting at the defendant's waiting room beside the courtroom requested the escorting correctional officer Kim ○-ho to allow a visit by the defense counsel. Kim ○-ho denied the request, saying that a counsel visit was not permitted in the defendant's waiting room.

The complainant argued that his right to counsel as provided in Article 12 Section 4 of the Constitution was violated by the denial of his request for a counsel visit by correctional officer Kim ○-ho and filed this constitutional complaint on September 4, 2007.

Subject Matter of Review

Subject matter of this case is whether the escorting correctional officer's denial of a defendant(complainant)'s request to be visited by his counsel while waiting in the defendant's waiting room located next to the courtroom infringes on the complainant's basic right.

Summary of the Decision

The Constitutional Court denied (two supplementing and two dissenting opinions) the constitutional complaint, in which the complainant claimed that his right to counsel was violated when, while waiting for his trial in the defendant's waiting room next to the courtroom, the escorting correctional officer refused to allow his request to be visited by his counsel of defense.

1. Court Opinion

An arrested defendant's right to be visited by and communicate with counsel does not exist independently but is relevant within the overall system of criminal procedures that enables appropriate execution of state punishment and protection of defendants' human rights. In that sense, the right of arrested defendants to be visited by and communicate with counsel must be guaranteed to the utmost, provided that it can be restricted in order to serve the said purpose of criminal procedures. Yet, even in this case, such restriction should strictly follow the principle of proportionality and maintain impartiality according to general elements such as time, place, and method.

The complainant requested correctional officer Kim ○-ho a visit by his defense counsel 20 minutes before the opening of his trial while waiting at the room assigned for arrested defendants located next to the courtroom. At that time, 14 persons including the complainant were waiting, and 11 of them were violent criminals with charges of attempted murder, injury resulting from a rape, etc. Meanwhile, there were only two correctional officers working in the defendant's waiting room, including Kim ○-ho. The complainant requested that he be visited by his counsel neither through a written form nor oral communication, and the correctional officers were not even able to figure whether the requested counsel was in the courtroom.

In this context, if the correctional officers were to allow the visit of counsel regardless of the counsel visit procedures regulated by the Safe Custody Rule, they would have no other way than to enter the courtroom and summon the counsel, after which a space has to be

secured where confidentiality and safe custody and control is guaranteed, before permitting the visit. However, if a correctional officer nevertheless proceeds to take measures as such to arrange a defense counsel's visit to the complainant, it cannot be excluded that such action may pose a critical risk to correctional administration such as safe custody and control of other defendants.

In consequence, considering the given time and place, the complainant's request for a counsel visit goes beyond the practical scope of the right to be visited by and communicate with counsel enjoyed by arrested defendants. Therefore, correctional officer Kim ○-ho's denial of the complainant's request is hardly an unconstitutional exercise of public power that violates the complainant's fundamental rights.

2. Concurring Opinion of Two Justices

The consultation and communication between the arrested defendants and counsels should be fully guaranteed even within the court. However, since such consultation and communication affects care, custody, and control of arrested defendants within the court, minimum procedures such as the counsel's official request for a visit is required for the sake of safe custody and control.

It is our reality that ordinary courts are not equipped with the facilities that guarantee the defendant's right to consult and communicate with counsel within the court, so the courts are required to make efforts to substantially ensure the said defendant's right, which is one of the major fundamental rights, by securing a counsel visit room within the court for arrested defendants. Also, in case it is difficult to immediately obtain the manpower and facilities for substantial guarantee of the defendant's right to consult and communicate with counsel, utmost consideration should be given to protect it within the current circumstances of manpower and facilities.

3. Dissenting Opinion of Two Justices

In case the detained offender or the defendant is under investigation or trial, the necessity for the assistance of counsel is particularly

evident. The right to counsel should be guaranteed to the detained offenders or defendants insofar as counseling service is needed as such, and their right to counsel cannot be restricted for reasons of obstruction to safe custody and control of detainees, investigation, or trials.

Yet, Article 275 of the Safe Custody Rule (Ministry of Justice Instruction No. 520) allows for restriction of their basic right to counsel for the convenience of safe custody and control of inmates, investigation procedures, or proceedings, and this violates Article 12 Section 4 of the Constitution.

The complainant is an arrested defendant who requested to be visited by his counsel in the defendant's waiting room next to the courtroom but had the request denied. It is particularly important for the arrested defendants to receive assistance from counsels right before the trial, and denial of such right is evidently a violation of their rights to counsel. Therefore, the Court shall find that the denial of complainant's request for a visit of his counsel infringed on his right to counsel and, furthermore, declare that, pursuant to Article 75 Section 5 of the Constitutional Court Act, Article 275 of the Safe Custody Rule violates Article 12 Section 4 of the Constitution.