Restriction ofRight to Vote of theInmates

(16-1 KCCR 468, 2002Hun-Ma411, March 25, 2004)

Held, the relevant provision of the former Act On the Election of Public Officials and the Prevention of Election Malpractices, as revised on August 5, 2005 as the Public Election Act restricting the

right to vote of the inmates is not in violation of the Constitution.

Background of the Case

The former Act on the Election of Public Officials and the Prevention of Election Malpractices provides that "those who have been sentenced to imprisonment without labor or higher punishment, if the execution thereof has not been terminated on the day of the election, shall not have the right to vote." The complainant was serving the criminal sentence of imprisonment in Yeongdeungpo Prison upon the final sentencing on February 26, 2002 of the imprisonment for the period of three(3) years and six(6) months following the trial for robbery with the infliction of bodily injury, and was not able to vote at the local election that took place on June 13, 2002 due to the above provision. The complainant thereupon filed the constitutional complaint in this case on June 20, 2002, claiming that the statutory provision at issue in this case violated the right to political participation of the inmates such as

the complainant.

Summary of the Decision

The Constitutional Court, in an eight-to-one opinion, has issued a decision dismissing the constitutional complaint of the complainant on the merits, on the ground that the statutory provision at issue in this case is not in violation of the Constitution. The summary of thegrounds for the Court's decision is stated in the following paragraphs,

1. Summary of the Majority Opinion

A. Article 24 of the Constitution provides that "all citizens shall have the right to vote under the conditions as prescribed by Act." In Korea that adopts indirect democracy, such right to elect public officials is the most important fundamental right among the citizens' rights to political participation. At the same time, however, the right to elect is also guaranteed by the regulations of the statutes under our Constitution. Therefore, in the legislators' legislation of the election law, choosing which of the specific methods for the achievement of which specific legislative purpose while respecting the principles of election system expressly indicated in the Constitution, falls within the discretion of the legislators as far as it

is not clearly unreasonable or unfair.

B. The statutory provision at issue in this case is based upon the basic perception that it is not desirable to allow those individuals who have deserted the basic obligations that must be observed by the members of the community and harmed the maintenance of the community, to directly and indirectly participate in constituting the governing structure leading the operation of the community, and has a meaning as the social sanction against such anti-social behavior. In addition, in order for a fair and just exercise of the right to elect, there should be the provision of sufficient information as the prerequisite, while it is difficult in reality to provide such sufficient information for the inmates who are isolated and incarcerated in the particular facilities. Furthermore, while the method of voting would inevitably be absentee voting should the inmates be endowed with the right to elect, allowing absentee voting within the incarceration facilities would risk damage to the fairness of the election due to the possibility of unjust exercise of influence and distortion of information by those managing the correction facilities who are in superior position, and would also risk negative impact on securing the effectiveness of the

enforcement of the criminal sentence due to the communication with the outside conspirators abusing the opportunity of absentee voting as a pretext. Therefore, suspending the exercise of the civil rights of the inmates during the period of execution of criminal sentence in consideration of the above aspects is something that may be pursued prima facie by the legislators in order to secure the effectiveness of the enforcement of the criminal sentence and for the fairness of the election, and satisfies the legitimacy of the

legislative purpose and the appropriateness of the means.

C. The statutory provision at issue in this case does not restrict the right to elect of all persons who have been sentenced to criminal punishment for an indefinite period of time. Instead, the statutory provision at issue in this case restricts the right to elect of those who have been sentenced to incarceration or severer punishment, if the execution thereof has not been terminated. Thus, the restriction is limited to those cases where the restriction of the right to elect is agreeably reasonable for the execution of the criminal punishment in isolation from the society due to the commitment of the considerably serious crime. Furthermore, the requirement of balance between the legal interests is also satisfied, as the public interest of securing the fairness of the election and the effectiveness of the execution of criminal punishment intended to be achieved through the restriction of the right to elect of the inmates is greater than the disadvantage of the restriction of the fundamental right on the part of the individual inmates caused by the inability to exercise the right to elect. Therefore, the statutory

provision at issue in this case is not in violation of the Constitution.

2. Summary of the Dissenting Opinion of One Justice

Our Constitution expressly indicates the principles of universal, equal, direct and secret vote as the basic principles of the election system(Section 1 of Article 41, Section 1 of Article 67) with no separate language for the statutory reservation, thereby making it clear that the observation of the basic principles of the election system may not be subject to the discretion of the legislators. Therefore, for the legislation restrictive of the right to elect and especially for the legislation restricting the right to elect in violation of the basic principles of the election system, the principle under Section 2 of Article 37 of the Constitution of prohibition against excessive restriction with respect to the legislation that restricts the fundamental right should be strictly observed. However, with respect to the statutory provision at issue in this case, (i) the majority opinion has not indicated sufficient grounds for the

restriction of the right to elect and the principle of universal vote to be the legitimate legislative purpose; (ii) the fundamental right of the complainant is excessively restricted beyond the degree of necessary minimum for the achievement of the legislative purpose, as all inmates sentenced to the actual prison term or severer punishment are prohibited from exercising the right to vote irrespective of the type and the substance of the crime committed; and (iii) there is no appropriate harmonization between the public interest of the fairness of the election system and the fundamental right to elect held by the inmates. Therefore, the statutory provision at issue in this case is unconstitutional, as it excessively restricts the right to elect in violation of the principle of prohibition against excessive restriction, and violates the principle of universal vote and the principle of equality to be realized by the principle of universal

vote.