Restriction upon Standing for Request ofDetention Legality Review

(16-1 KCCR 386, 2002Hun-Ba104, March 25, 2004)

Held, the relevant provisions of the Criminal Procedure Act providing that the detention legality review proceeding may no longer proceed upon prosecution against the suspect are not in

conformity with the Constitution.

Background of the Case

The Criminal Procedure Act provides that, once a judge determines to issue an arrest warrant upon request for the issuance of arrest warrant by a prosecutor, the suspect under detention shall be entitled to request the court to review the legality of detention, while, however, once the prosecutor formally prosecutes the suspect by filing a complaint, the judge may no further proceed upon detention legality review and the person under detention may only

use the system of cancellation of detention or bail.

The complainant requested the court to review the legality of

detention subsequent to the detention pursuant to the arrest warrant issued by a judge. However, the prosecutor filed a formal complaint against the complainant without waiting for the decision of the court upon the above request to be handed down. The complainant thereupon petitioned the underlying court to request a constitutionality review, claiming that the relevant provisions of the Criminal Procedure Act that limit the qualifications for those who may request detention legality review to the suspects only are in violation of Section 6 of Article 12 of the Constitution. The underlying court overruled the above petition, and the complainant

thereupon filed the constitutional complaint in this case.

Summary of the Decision

The Constitutional Court has held, in a six-to-three decision, that the relevant provisions of the Criminal Procedure Act are not in conformity with the Constitution. The summary of the grounds

for the Court's decision is stated in the following paragraphs.

1. Summary of the Majority Opinion

A. Section 6 of Article 12 of the Constitution provides that "Any person who is arrested or detained, shall have the right to request the court to review the legality of the arrest or detention." Although this provision guarantees a specific procedural right of the 'right to request the court to review the legality of detention' in the constitutional dimension with respect to a very specific circumstance of 'upon arrest or detention,' there exists no means in reality for the court to review with respect to the 'right to request review over the legality of arrest or detention' of the parties concerned without formative statutes legislated by the legislators. Therefore, the holder of the right may substantively exercise such right only if the legislators have formed the specific content thereof in the form of the statute. Furthermore, as such right to request arrest or detention legality review is endowed with an independent status at the constitutional level, the legislators are obligated to offer throughout the overall system of law a minimum of one opportunity in which the relevant parties may properly exercise the

specific procedural right thereof.

B. The relevant provisions of the Criminal Procedure Act permit only the suspect at the pre-prosecution stage to request detention legality review, thereby requiring the status of the 'suspect' which is the standing for the detention legality review proceeding not

merely as the 'condition for the initiation of the process' but also as the 'condition for the maintenance of the process.' Therefore, subsequent to the exercise of the right to request detention legality review by a suspect, should the prosecutor file a formal complaint prior to the court's decision upon such request(so-called 'blitz prosecution'), the court has no other alternative but to dismiss the request without being able to review in substance the legitimacy of the detention pursuant to a warrant as above. This results in the deprivation of the 'procedural opportunity' of the requesting party intending to have a substantive review of the court, by the unilateral act of the prosecutor who does not have the authority to determine the constitutional legitimacy of the above warrant itself. When a suspect under detention has exercised the right to request detention legality review, the prosecutor has no more than the status of an adverse party in opposition to the detainee, in the legality review proceeding. There is no reasonable ground for the restriction of the 'procedural opportunity' of the requesting party who intends to have a review by an independent judge under the Constitution, by the unilateral act of 'blitz prosecution' of the opposing party, in such an adversarial proceeding as above. Although there is a subsequent proceeding of the 'detention cancellation system' guaranteed for the requesting party following the 'blitz prosecution' of the prosecutor under the current Criminal Procedure Act, this alone may not justify the complete deprivation of the procedural opportunity of the requesting party who may otherwise have a substantive review by the court over the request for detention legality review that has already been exercised. Then, to the extent that the 'procedural opportunity' of the requesting party is unreasonably deprived as above, it should be deemed that the legislators have failed to appropriately realize the essential

substance of the right to request detention legality review.

C. The statutory provisions at issue in this case affirmatively form a procedural right to request in a specific form pursuant to the constitutional delegation based upon the specific provision of the Constitution. Should a decision of simple unconstitutionality be issued thereupon, while there would be no effect of relief for the right in such cases where there was a blitz prosecution subsequent to the exercise of the right to request detention legality review by the suspect, instead, it would rather result in the invalidation of the provisions which form the basis of the general exercise of the suspect of the right to request detention legality review in the entirety. Therefore, we hereby issue a decision of nonconformity to the Constitution, to the effect that the legislators shall be obligated hereby to affirmatively complement the current system by choosing one of the various alternative reform legislations, and order that the

statutory provisions at issue in this case shall continue to apply

until such reform legislation is enacted.

2. Summary of the Dissenting Opinion of Three Justices

The right pertaining to the review of the legality of arrest or detention pursuant to Section 6 of Article 12 of the Constitution has the nature of the procedural right, and particularly of the basic right to judicial procedure. Thus, the legislators are endowed with a broad legislative discretion with respect to the formation of the fundamental right of judicial procedure. It is hardly deniable that in certain situations there occurs an unjust result from the deprivation of the procedural opportunity of the detainee by the unilateral act of blitz prosecution by the prosecutor. However, this may be effectively counteracted by the pertinent court through an active utilization of the system of detention cancellation or bail. On the other hand, there are various grounds for the prosecutor to prosecute prior to the court's decision on the request for detention legality review, and it may hardly be judged that there is an unjust blitz prosecution in each of such cases. In sum, considering in totality the degree of discretion endowed to the legislators in forming the basic right to judicial procedure, the diverse systems controlling unlawful and unjust detention of human body, and the public interest that the statutory provisions at issue in this case intend to achieve, the degree of the restriction of the fundamental right due to the statutory provisions at issue in this case is reasonable as not exceeding the necessary degree. Therefore, the statutory provisions at issue in this case are not unconstitutional provisions excessively infringing upon the fundamental right of the citizens in violation of the principle of proportionality of Section 2

of Article 37 of the Constitution.

Aftermath of the Case

The relevant provisions of the Criminal Procedure Act, which were the subject matters of this case, were revised on October 16, 2004 pursuant to this decision, to the effect that the court should still determine upon the request for detention legality review even after the prosecution against the suspect by filing of a formal

complaint subsequent to the request for review.