Ban on Writing during the Period of

Prohibitory Confinement Case

(17-1 KCCR 261, 2003Hun-Ma289, February 24, 2005)

In this case, the Court found unconstitutional the relevant provision of the Enforcement Decree of the Penal Administration Act, which completely prohibits prisoners from writing during the period of prohibitory confinement, a disciplinary measure taken

against prisoners.

Background of the Case

The Enforcement Decree of the Penal Administration Act prohibits writing by prisoners who are under the punitive measure of prohibitory confinement. The complainant, while imprisoned, received the disciplinary measure of prohibitory confinement for one month for assaulting a fellow prisoner. The complainant requested writing permission in order to draft a petition and file an administrative lawsuit protesting against the punitive measure, but the request was rejected. After the rejection, the complainant filed a constitutional complaint asserting that the instant provision violates the right to trial, right to equality, and right to petition

and, thus, is unconstitutional.

Summary of the Decisions

The Court issued a decision that the instant provision is unconstitutional with a six-to-three vote for the following reasons.

1. Majority Opinion of Six Justices

A. The instant provision, by completely prohibiting writing by a prisoner who received a punitive measure of prohibitory confinement, restricts basic rights such as the freedom of expression. Therefore, it needs a statutory basis and needs to be

delegated.

From the term "prohibitory confinement" that the Penal Administration Act prescribes, we can only infer a particular type of confinement at the punishment ward; the Act does not provide any explicit provisions for or delegations to inferior laws and regulations the concrete effects or execution methods of "prohibitory confinement." Therefore, it is not clearly established whether such complete ban on writing is included in the terms of "prohibitory

confinement."

Also, Article 33-3(1) of the Penal Administration Act prescribes, "A prisoner may either prepare documents or drawings or write... with permission of the warden," provided that the content written is not likely to endanger the security and order of the correctional institution or improper for edification of prisoners. However, the instant provision enforcing the aforesaid statutory provision makes the restriction provided by the Act more severe by completely prohibiting writing by a person under a punitive measure of prohibitory confinement. Also, it prohibits writing for a very different reason from the Act, which prohibits according to the content of the writing. Moreover, Paragraph 2 of the same article prescribes, "Matters necessary for management of writing instruments, time and place for writing, storage of written documents, etc. and transmitting them to the outside shall be prescribed by

Presidential Decree." It delegates to inferior laws and rules the matters actually necessary for writing, on the premise that the writing is allowed. Therefore, this provision cannot be used as the statutory basis of prohibiting writing during the period of

prohibitory confinement.

Therefore, the instant provision violates the principle of statutory reservation by limiting, without a statutory basis or delegation, a prisoner's right concerning writing when that prisoner

is under prohibitory confinement.

B. Writing is a personal action, which is unlikely to risk jeopardizing the maintenance of security and order in a correctional institution. Also, it is rarely relevant to the violation of a regulation, which was the reason for the prohibitory confinement. The legislative purpose can be sufficiently attained through measures such as, while allowing writing, reducing the length of time or the frequency of writing or restricting writing by listing exceptional circumstances in which writing is allowed.

Nevertheless, the instant provision, during the period of prohibitory confinement, unconditionally prohibits writing without inquiring into the purpose or contents of writing. Moreover, it prohibits writing without any exception even when it is necessary for edification of or due treatment of the prisoner. Therefore, the instant prohibition violates the rule against excessive restriction by deviating from the minimal extent of restriction necessary to attain

the legislative purpose.

2. Dissenting Opinion of Three Justices

A. Article 33-3(1) of the Penal Administration Act prescribes writing to be a matter requiring approval. Thus, it can be adequately expected that writing can be prohibited in certain circumstances. Also, Paragraph 2 of the same article, delegates to the Presidential Decree the "time" and "place" for writing and "management of writing instruments," and thus can be the statutory basis of the instant provision. The instant provision, therefore, does

not violate the principle of statutory reservation.

B. Prisoners are already restricted from writing to a certain degree. In case a prisoner is given the most severe disciplinary measure of prohibitory confinement for violating the rules, it is hardly unreasonable to narrow or deprive a freedom formerly enjoyed by the prisoner to a limited extent. Also, as most writing instruments have the risk of being used as instruments to inflict harm on others or oneself, prohibition on writing is related to the maintenance of security and order in a correctional institution. The period of prohibitory confinement, during which writing is prohibited, cannot be said to be a long time - being two months at its maximum and in reality being limited to 30 days. Therefore, compared to the disadvantage caused by prohibiting writing during the period of prohibitory confinement, the protected public interests - maintenance of order and security of a correctional institution and

correction and edification of prisoners - are greater.

Moreover, the instant provision is interpreted as already allowing writing to prepare documents to directly contest the

legality of the prohibitory confinement, etc.

Therefore, the instant provision of the enforcement decree does

not violate the rule against excessive restriction.