Urine Testing of Narcotic Offenders Case

(18-2 KCCR 280, 2005Hun-Ma277, July 27, 2006)

In this case, the Constitutional Court found that requiring narcotic offenders in correctional facilities to collect and submit urine once a month for narcotics testing does constitute a state act, but that such act, aimed at maintaining safety and order in correctional facilities, is not subject to the warrant requirement and does not restrict the constitutional general freedom of action or the bodily freedom excessively, and therefore rejected the constitutional complaint.

Background of the Case

Petitioner received a sentence in prison for a violation of the Narcotics Control Act, and while serving the sentence, was required to collect urine in a paper cup and submit the same regularly once a month for a reagent-drop test. Petitioner filed this constitutional complaint, arguing that the prison's urine test violates the constitutional requirement of warrant and infringes the constitutional freedom of action and bodily freedom.

Summary of the Decision

The Constitutional Court rejected the claims of the Petitioner with a unanimous decision of all Justices for the following reasons:

Chief Warden's requiring inmates to submit a urine sample is done in a secluded place by a person of superior position giving the punishment to a person obliged to comply with instructions and orders related to execution of the punishment. Its purpose is to maintain safety and order in prison and it is imposed upon unilaterally. Even if there is no direct punishment for non-compliance, it is sufficiently expected that inmates are under psychological anxiety that they may be subject to inferior treatment in event of non-compliance. Therefore, such act constitutes de facto exercise of power and therefore constitutes a state act under Article 68 Paragraph 1 of the Constitution.

The Constitution Article 12 Paragraph 3 requirement of warrant bans involuntary investigative measures except on the basis of a warrant issued by a judge. Requiring submission of a urine sample is for maintenance of safety and order and not for an investigation.

Such submission requires inmates' cooperation and cannot be said to be involuntary. Therefore, the warrant requirement does not apply here.

Due to their addictive nature, narcotics, once smuggled into correctional facilities, have the ever-present risk of being consumed by inmates. Once consumed, the correctional aim is forfeited for that consuming inmate, and such consumption can lead to dangerous conduct towards other inmates and the resulting accidents. Therefore, testing narcotics offenders monthly through urine testing is needed to detect early smuggling and consumption of narcotics and to block drug smuggling and thereby to maintain safety and order in correctional facilities. Furthermore, narcotics consumption cannot be detected through external observation. The testing involves voluntary submission of urine samples, unaccompanied by punitive measures for compliance, and a 3-minute test during which a reagent is dropped into the urine sample. The subject must engage in the undesired act of collecting and submitting one's own urine and its right of self-determination with respect to its own excretion is restricted. However, in light of the ends and means thereof, the urine testing does not violate the ban against excessive restriction.

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Parties

Petitioner

Eum ○ Yong

State-Appointed Counsel: Jang Seon Ho

Respondent

1. Minister of Justice

2. Chief Warden of Daegu Prison

Holding

Petitioner's claim against the Minister of Justice is dismissed, and Petitioner's claim against Chief Warden of Daegu Prison is rejected.

Reasoning

1. Introduction of the Case and Subject Matter of Review

A. Introduction of Case

(1) Petitioner is arrested and indicted for a violation of the Narcotics Control Act in June 2004 and received a sentence of 10 months from Daegu District Court on September 23, 2004, which was finalized on November 27, 2004, and which Petitioner completed on March 31, 2005.

(2) Petitioner was subjected to a narcotics test(T.B.P.E. test where the test subject collects and submits urine in a paper cup into which T.B.P.E. reagent is dropped to see if the color changes to red for a positive identification) on June 9, 2004, October 26, 2004, and November 23, 2004 at Daegu Jail, and December 24, 2004 at Daegu Prison, and tested positive each time.

(3) Petitioner requested appointment of state-appointed counsel on January 6, 2005, and through the state-appointed counsel, filed this constitutional complaint on March 16, 2005, and argued that the Respondents' act of requiring Petitioner to submit urine for a narcotics test on December 24, 2004(hereinafter referred to as the "the Instant Urine Sampling") infringes the constitutionally guaranteed dignity of a person and the right to pursuit of happiness and bodily freedom, violates the warrant requirement, and argues that the involuntary urine sampling for the monthly narcotics test will continue, seeking a decision of unconstitutionality.

B. Subject Matter of Review and Related Provisions

(1) Subject Matter of Review

The subject matter of review is constitutionality of Respondents' act of requiring Petitioner to submit urine sample for a narcotics test on December 24, 2004.

(2) Related Provisions

The Penal Administration Act

Article 17-2(Bodily Inspection)

(1) A correctional officer may inspect the inmate's body, clothes, personally carried items, living room, and work space when it is necessary for safety and order of the prison.

2. Petitioner's Arguments and Respondents' Response

A. Petitioner's Arguments

(1) The Instant Urine Sampling is based on internal rules, not on statutory delegation, and therefore deviates from the limitation on statutory delegation, and is conducted without a judge-issued warrant and therefore violates the constitutional warrant requirement.

(2) Even if Petitioner is a narcotics offender, Petitioner, unlike inmates serving for other crimes, is already banned from receiving goods from the outside and is therefore blocked from smuggling in narcotics. Petitioner is obligated to go through the urine test regularly, without any legal basis for such obligation. This constitutes excessive restriction of bodily freedom in violation of the constitutional rule against excessive restriction and infringes upon the essential content of personal dignity and the right to pursuit of happiness.

(3) The urine test does not constitute an appealable administration action, and the Instant Urine Sampling being contested has been completed. However, since the Instant Urine Sampling will repeatedly conducted regularly, there is an interest in seeking a decision of unconstitutionality.

B. Respondent's Response

(1) The Instant Urine Sampling does not constitute an exercise of public power because it is conducted pursuant to the test subject's voluntary cooperation and not subject to punishment or any other penalty for non-compliance.

(2) Article 6 Paragraph 1 of the Penal Administration Act, Articles 6, 7, and 9 Paragraph 1 of the Enforcement Decree of the Penal Administration Act grant inmates the right to petition in objection to their treatment and the right to meet the Chief Warden and its procedure. Petitioner has not exercised the petition right and the consultation right, and therefore has not met the requirement of exhaustion of other remedies.

(3) Petitioner was released on March 31, 2005, and therefore

Petitioner's legal interests have been extinguished.

(4) The Instant Urine Sampling is conducted as part of bodily inspection pursuant to Article 17-2 Paragraph 1 of the Penal Administration Act and is therefore statutorily based. It is also pursuant to voluntary cooperation and not conducted under application of a force, and therefore is not subject to the warrant requirement, which applies only to the involuntary procedure such as arrest, detention, seizure, and search.

(5) Narcotics offenders are by nature addicts or habitual offenders. The risk of their smuggling-in of narcotics from the outside is constantly present. Availability of narcotics to the inmates can lead to major correctional disasters, and therefore there is a need for blocking that possibility to maintain safety and order in correctional facilities. The periodic narcotics testing conducted once a month is appropriate means of general prevention, to block in advance the smuggling-in of narcotics and protect narcotics offenders from the narcotics. Thorough inspection of bodies, clothes, living rooms, and outside goods is impossible, and visual observation does not identify consumption of narcotics. The Instant Urine Sampling does not violate the rule against excessive restriction.

3. Review of Statutory Requirements

A. Respondent Minister of Justice

The party responsible for the Instant Urine Sampling isnot the Minister of Justice but the Chief Warden of Daegue Prison.The constitutional complaint against the Minister does not meet the legal requirement.

B. Respondent Chief Warden of Daegu Prison

(1) Whether an administration action constitutes a de facto act of public power, the subject matter of a constitutional complaint, should be individually determined by comprehensively taking into account the relationship between the administrative agency and the subject, the extent and attitude of the subject's and opinion on and participation in that de facto act, the purpose and course of that de facto act, and existence of the legal basis for the relevant order or enforcement measure(6-1 KCCR 462, 485, 89Hun-Ma35, May 6, 1994)

The urine test on narcotics offenders is impossible without the test subject's cooperation, and there is no punishment or other

penalty for refusing to cooperate. However, Chief Warden is a person of superior position giving the punishment to a person obliged to comply with instructions and orders related to execution of the punishment in a secluded place. The purpose of the urine test is to maintain safety and order in prison by prevention and early detection of inmates' consumption of narcotics, and the test is imposed upon unilaterally. It is sufficiently expected that inmates are under psychological anxiety that they may be subject to inferior treatment in event of non-cooperation, and the actual instances of non-cooperation are rare. Therefore, the urine test constitutes de facto exercise of power and therefore constitutes a state act under Article 68 Paragraph 1 of the Constitution.

(2) It is not clear whether the Instant Urine Sampling constitute a de facto exercise of power and therefore can be the subject matter of an administrative suit. Even if it is, the infringing act has ended, and therefore existence of the justiciable interest in the infringing act will be denied. The right to petition and the right to consult with the Chief Warden, given the nature of the dispositional authority, procedure, and effectiveness, are insufficient and indirect methods of providing relief. Therefore, these proceedings cannot be deemed the procedures that must have been exhausted before the filing of this constitutional complaint. Petitioner does not have any other effective remedy than the constitutional complaint(7-2 KCCR 94, 102, 92Hun-Ma144, July 21, 1995; 10-2 KCCR 637, 644, 98Hun-Ma4, October 29, 1998; 117 KCCG 938, 2004Hun-Ma826, June 29, 2006 et al.).

(3) Petitioner was released on March 31, 2005, and thereby the infringing act against Petitioner has terminated. A decision of unconstitutionality on the urine sampling does not provide relief to Petitioner, and therefore, Petitioner does not have subjective interest in this case. However, even if a constitutional complaint is not helpful for relief to subjective interests, when the infringing act is likely to repeat and therefore its constitutional interpretation has an important meaning, we have recognized the existence of a justiciable interest(9-2 KCCR 675, 688, 94Hun-Ma60, November 27, 1997; 13-2 KCCR 103, 108, 2000Hun-Ma546, July 19, 2001; 13-2 KCCR 238, 244, 99Hun-Ma496, August 30, 2001; 14-2 KCCR 54, 60, 2000Hun-Ma327, July 18 2002; 117 KCCG 938, 2004Hun-Ma826, June 29, 2006 et al.).

According to the materials in this case, the urine sampling is conducted upon narcotics offenders in each jail or prison upon admission and once a month or a quarter thereafter periodically and repeatedly. Therefore, constitutional resolution on this practice has an important meaning

4. Review of Merits

A. Introduction of Narcotics Testing

(1) Statutory Basis

(A) Article 17-2 of the Penal Administration Act(Bodily Inspection) states in Paragraph 1, "a correctional officer may inspect the inmate's body, clothes, personally carried items, living room, and work space when it is necessary for safety and order of the prison.", and thereby permits bodily inspection of inmates. The urine sampling for narcotics testing can be considered part of the bodily inspection. Therefore, the above provision is the statutory basis for the Instant Urine Sampling.

(B) Narcotics testing through urine samples in correctional facilities is generally conducted pursuant to the August 26, 1989 Instruction of the Minister of Justice(Correctional 01250-11529), which authorized the T.B.P.E. reagent testing for maintaining and managing narcotics offenders, and the May 1, 1990 Instruction (Correctional 01250-5623) which mandated the T.B.P.E. reagent testing once or more each month and the reporting of the results.

(2) Contents

The test subjects of the narcotics testing through urine samples are narcotics offenders, those who have worked in entertainment establishments before admission, high seas seamen and others who frequented overseas, those with narcotic-related prior convictions, and other inmates likely to use narcotics and therefore requiring narcotics testing. They are generally tested upon admission into the jail or prison and once a month thereafter, and exceptionally when necessary. The test method is as follows: The test subject collects his or her urine sample in a paper cup at a place not visible from others and submits the same. Then, 0.3cc of boric acid sodium and 0.5ml of T.B.P.E. reagent are dropped into 3 to 5cc of the sample to see whether the compound turns red(positive). For each test, the time and results are recorded on the health records, reported to the Bureau of Corrections and the Ministry of Justice. In event of a positive result, the test subject is referred to the more precise testing on blood and hair at relevant authorities.

B. Constitutional Limit on Urine Sampling

(1) Instant Urine Sampling and Petitioner's Rights

If Petitioner is obligated to collect urine samples in the absence of any legal basis or obligation, it presents the issues of infringement on the general freedom of action(the right not to do an undesired thing, i.e., collecting and submitting urine; and the right not to open to others one's bodily conditions and information) guaranteed by the Constitution Article 10's personal dignity and worth and the right to pursuit of happiness, and infringement of the bodily freedom guaranteed by Article 12 of the Constitution.

(2) Relationship to Warrant Requirement

Article 12 Paragraph 3 of the Constitution requires arrest, detention, seizure and search to be conducted pursuant to the prosecutor's request and a judge-issued warrant in accordance with due process, and thereby guarantees the constitutional requirement of warrant. The warrant principle means that no involuntary investigative measure shall be taken unless it is pursuant to a judge-issued warrant(9-1 KCCR 245, 258, 96Hun-Ka11, March 27, 1997).

Therefore, the Instant Urine Sampling does not constitute an involuntary measure calling for a judge-issued warrant. The urine sampling conducted in jails and other correctional facilities as described above without a judge-issued warrant does not violate the warrant requirement of Article 12 Paragraph 3 of the Constitution.

(3) Infringement on the Rule Against Excessive Restriction

Even if the Instant Urine Sampling is pursuant to Article 17-2 of the Penal Administration Act and necessary for maintenance of safety and order in correctional facilities, the essence of the basic rights shall not be infringed, and the rule against excessive restriction which includes the requirements of legitimacy of purpose, appropriateness of means, minimum restriction, and balance among legal interests, shall not be violated.

The uniqueness of narcotics is in its addictive nature. A great majority of narcotics offenders are repeated offenders. There is an ever-present risk of narcotics being smuggled into correctional facilities and being consumed by inmates. Once consumed, the correctional purpose is forfeited for that consuming inmate, and such consumption can lead to the dangerous conduct towards other inmates and the resulting accidents. In the presence of such possibility and risk, the periodic testing of narcotics offenders and

others likely to obtain narcotics allows early detection of the smuggling or consumption of narcotics. Also, by making all inmates aware of the periodic testing, it can block narcotics smuggling in advance. Once inmates give up on the attempts to smuggle in narcotics, they are more likely to respond positively to rehabilitation and other correctional programs. The periodic narcotics testing through urine sampling contributes greatly to maintenance of safety and order in correctional facilities and accomplishment of correctional purposes. Therefore, the legitimacy of purpose is recognized.

Also, smuggling of narcotics can be detected through inspection of clothing, personal carry items, living rooms, and work space and visual observation of the body exteriors and cavities but cannot be done thoroughly(these inspections can also infringe on inmates' basic rights and the body cavity inspection is likely to infringe on basic rights more severely). Narcotics consumption cannot be detected through external observation. Therefore, the narcotics testing through urine sampling is appropriate means.

Also, the testing involves voluntary submission of urine samples, unaccompanied by punitive measures for compliance. The test is completed in a short time(1 to 3 minutes) through a simple method(a boric acid natirum and T.B.P.E. reagents are dropped into the paper cup in which the urine sample is collected) and shows the result instantaneously. Therefore, it constitutes the minimum restriction.

Finally, Petitioner and the test subjects suffer from the disadvantage of having to periodically collecting and submitting one's own excreted urine, in other words, a restriction on the private interest in terms of the right of self-determination with respect to one's own body and in terms of having to do an undesired thing. However, as described above, the public interest achieved by the testing, in enhancing the likelihood of successful correction of the test subjects(this has the aspect of promoting the private interest) and in maintaining order and safety in correctional officers, is much greater. Therefore, the balance between legal interests is satisfied.

Therefore, the Instant Urine Sampling done on the Petitioner narcotics offender does not violate the ban against excessive restriction.

5. Conclusion

Then, the constitutional complaint filed by Petitioner narcotics offender against the Instant Urine Sampling is dismissed against the Respondent Minister of Justice for the lack of its agency in the contested state act and the resulting legal deficiency, and rejected against the Respondent Chief Warden of Daegu Prison since the Instant Urine Sampling is conducted within the limits of restriction on basic rights. Justices hereby decide as set forth in the Holding with a unanimous decision.

Justices　Yun Young-chul(Presiding Justice), Kwon Seong, Kim Hyo-jong, Kim Kyung-il, Song In-jun, Choo Sun-hoe, Jeon Hyo-sook, Lee Kong-hyun(Assigned Justice), Cho Dae-hyen