Prohibition of Inmates from Exercising

(16-2(B) KCCR 548, 2002Hun-Ma478, December 16, 2004)

Held, the relevant provision of the enforcement decree of the Criminal Administration Act prohibiting exercise of the inmates during the execution of sanction is in violation of the Constitution.

Background of the Case

The enforcement decree of the Criminal Administration Act limits the inmates' interviews to four(4) times per month, and also prohibits interviews, correspondence by mail and exercise during the execution of the forfeiture of rights which is a type of sanction. The complainant was subjected to the forfeiture of rights while imprisoned in the correction facility following final sentencing. The warden prohibited the complainant from interviews with a third party, from sending and receiving mail, and from doing exercise, during the duration of the execution of the forfeiture of rights, and, subsequent to the execution of the forfeiture of rights, despite the intention of the complainant to meet with the attorney, the warden did not permit the interview with the attorney on the ground that the monthly quota of four(4) interviews had already been exhausted. The complainant thereupon filed the constitutional complaint in this case, claiming that the complainant's basic rights of the right to personality, right to health, freedom of communication and right to trial had been violated by the relevant provision of the enforcement

decree of the Criminal Administration Act prohibiting the interview with third parties, correspondence by mail and exercise during the execution of the forfeiture of rights and by the disposition of the

warden not permitting the interview with the attorney.

Summary of the Decision

The Constitutional Court, in the unanimous opinion of all justices, has issued the decision holding that, with respect to the relevant provision of the enforcement decree of the Criminal Administration Act, the part prohibiting the inmates from interviews and correspondence by mail during the execution of the forfeiture of rights is not unconstitutional, however, the part prohibiting exercise is in violation of the Constitution, and that the disposition of the warden that did not permit the interview with the attorney was not in violation of the Constitution. The summary of the grounds for the

Court's decision is stated in the following paragraphs.

1. Even if the restriction of the basic right of the inmates is inevitable for the maintenance of safety and order within the prison facilities, the essence thereof may not be violated and the principle of prohibition against excessiveness should be observed. Specifically, the restriction of the basic right by way of rules and sanctions for the maintenance of order and safety within the prison facility is an affliction additionally imposed on the inmates aside from imprisonment. As such, it may be permitted only when the purpose

cannot be achieved in any of the alternative methods.

2. As the purpose of the sanction of forfeiture of rights itself is to urge repentance by confinement in the punishment ward and strict isolation, the restriction of interviews and of sending and receiving mail is inevitable. The relevant provision of the enforcement decree of the Criminal Administration Act, while prohibiting interviews and correspondence by mail during the execution of the forfeiture of rights, provides for the exception thereto in the proviso so that the warden may permit interviews and correspondence by mail even during the execution of the forfeiture of rights "when it is determined to be especially necessary for the purpose of education or treatment," thereby preventing it from becoming an excessive restriction. Therefore, such restriction of interviews and correspondence by mail of the inmates who are subject to the forfeiture of rights is the necessary minimum restriction for the legitimate purpose of maintenance of safety and

order within the prison facility.

3. Outdoor exercise is the minimum basic requirement for the maintenance of physical and mental health of the inmates who are imprisoned. Considering that the inmate subjected to the forfeiture of rights, even compared with other inmates in solitary confinement, lies in the state where communication with the outside world is disconnected, as interviews, correspondence by mail, communication by telephone, writing, work, reading the newspaper or books, listening to the radio and watching the television are prohibited, and is imprisoned in the punishment ward which is the size of approximately three(3) square meters with insufficient ventilation for up to two(2) months, there is a clearly high risk that completely banning the inmate subjected to the forfeiture of rights from doing exercise will harm mental as well as physical health of such inmate. Therefore, the absolute ban of exercise of the inmate subjected to the forfeiture of rights, even considering the purpose of the sanction, is beyond the necessary minimum degree in terms of means and methods thereof, thus in our judgment reaching the extent violative of the human dignity and values under Article 10 of the Constitution and of the bodily freedom under Article 12 of the Constitution that includes the freedom not to have bodily safety

injured.

4. The inmate incarcerated for the execution of the punishment of imprisonment upon final sentencing has the status that is distinguishable from the status of the detainee, thus it is inevitable to restrict the frequency of the interviews for the inmate to a considerable degree. Also, even if the frequency of the interviews is restricted by including the interviews with the attorney in the general interviews, the inmate may prepare or carry out litigation by mailing letters and authored documents and communicating by telephone. Therefore, the disposition of the warden not permitting the interviews may not be deemed to violate the complainant's constitutionally guaranteed right such as the right to trial of Article

27 of the Constitution.