Permission for Extension of Detention Periodand Restriction of Frequency of Visits to theDetainees

(15-2(B) KCCR 311, 2002Hun-Ma193, November 27, 2003)

Held, the relevant provision of the Military Court Act permitting extension of detention period by the military police and the relevant provision of the EnforcementDecree of the Military Criminal Administration Act limiting visits to the detainees to two times per week are unconstitutional.

A. Background of the Case

The Criminal Procedure Act makes it a principle to investigatethe suspect without detention and provides that the suspect shall notbe detained except under arrest warrantissued by a judge upon satisfaction of certain requirements. Also, even when an arrest warranthas been issued, the Criminal Procedure Act sets forth a limit onthe detention period so that the public prosecutors and the police maydetain the suspect for a period of up to ten(10) days respectively. The public prosecutors may extend the above extension period oncefor another ten(10) days by obtaining permission therefor of the judge,yet the police may not extend the above detention period. The provisionof the Military Court Act at issue in this case, however, unlike the above provisions of the Criminal Procedure Act, permits extension of the detention period by the military police (hereinafter referred to as the ‘provision at issue in this case‘). In addition, whereas the Enforcement Decree of the Criminal Administration Act allows one visit per day to the detainee, the Enforcement Decree of the Military Criminal Administration Act, unlike the above provisionof the Enforcement Decree of the Criminal Administration Act, limitsthe frequency of visits to the detainee to twice per week (hereinafterreferred to as the ’provision of the Enforcement Decree at issue in this case‘).

One out of the two complainants in this case, who served as aRepublic of Korea Air Force colonel, was arrested for allegedlydivulging military secrets and receipt of bribery concerning officialduties. During investigation by the military police, his detention wasextended by another ten(10) days under the above provision of the Military Court Act. The other complainant in this case, who is thespouse of the above complainant, was placed under restriction upon thefrequency of visits to the first complainant, pursuant to the provisionof the Enforcement Decree at issue in this case. The complainants thereupon filed a constitutional complaint in this case on the ground that the provision at issue in this case and the

provision of the Enforcement Decree at issue in this case infringe upon their basic rights.

B. Summary of the Decision

The Constitutional Court, in a unanimous opinion, held that the provision at issue in this case and the provision of the Enforcement Decree at issue in this case are both unconstitutional. The grounds therefor are stated in the following paragraphs.

(1)The provision at issue in this case permitting extension

of detention period by the military police

(A)The Constitution provides for the presumption of innocence inArticle 27(4) in order to strictly guarantee the freedom of bodily integrity. This principle applies as a matter of course to a suspect at the investigation stage. The presumption of innocence mandates investigation and trial without detention as a matter of principle. Therefore, detention may be used as an exception only as the final means when it is impossible to effectively fight against the crime inno other way than by detention in achieving the purposes of criminallitigation, and even when investigation or trial by detention is permitted, the period of detention should be no longer than the minimumnecessary.

The provision of the Military Court Act at issue in this case permits detention by the military police for a period of ten(10) days, which is itself an exception to the principle of investigation withoutdetention derived from the constitutional requirement of the presumption of innocence. The provision at issue in this case, however,unlike the corresponding provision of the Criminal Procedure Act thatdoes not permit extension of detention period at the police investigationstage, permits an extension of detention period by the military police, thereby establishing yet anotherexception to the exception, thus aggravating the restriction upon the freedom of bodily integrity, which is one of the most basic of the basic rights.

(B) At the stage where the military police requests the issuanceof an arrest warrant for a suspect, the military police must have supporting materials gathered to confirm the objective suspicion of thealleged crime. Therefore, by the time the military police arrests asuspect, it is deemed that the general investigation over the objectivesuspicion of the alleged crime is already completed. The militarypolice may continue investigation to gather evidence and supplementarilysubmit the gathered evidence subsequent to the detention of the suspectby the prosecution, as in the case of non-military general policeauthorities. There can hardly be found any ground to allow a longerperiod of detention by the military police for any

special investigatoryneeds.

On the other hand, in the case of investigation by the military police, the harm possibly to be caused by a longer detention period is rather grave compared with other non-military cases, in that the exercise of the right to defense is easily daunted in the military criminal proceedings due to the special nature of the military society and there is insufficient supervision or control over the military police by the military prosecutors.

(C)Even assuming there are certain cases where the Military CourtAct applies for which an extension of detention period is necessaryfor investigation purposes, permitting extension of detention period forall crimes the Military Court Act applies is in violation of the principleof prohibition against excessive restriction due to its excessively vastapplicability.

In addition, for such cases the degree of importance thereof mayjustify extension of detention period for investigation purposes such asthose directly relevant to national security, it would be more appropriateto have the military prosecutors whose higher legal knowledge and expertise is institutionally guaranteed investigate such cases and, if necessary, to permit an extension of the detention period by militaryprosecutors. Therefore, attempting to achieve such legislative purposeeven by extending the detention period by the military police is tantamount to an excessive restriction upon the basic rights by way ofinappropriate means, and, as such, infringes upon the freedom of bodilyintegrity and the right to speedy trial in violation of the principle against excessive restriction.

(2) The provision of the Enforcement Decree at issue in

this case limiting the frequency of visits to the detainee

(A)The main provision of Article 12(4) of the Constitution providesthat"everyone shall have the right to assistance of counsel immediatelyupon arrest or detention." However, there is no expressprovision within the Constitution with respect to the right of thesuspect or the defendant in custody to meet with a 'third party' whois not an attorney as in this case. On the other hand, the Criminal Procedure Act provides that "the defendant in custody may, withinthe scope permitted by a statute, meet with third parties, receivedocuments or things, and receive medical treatment," which appliesmutatis mutandisto the suspect in custody. The question here is whether this is a right merely guaranteed by the Criminal Procedure Act, or a constitutionally guaranteed basic right.

The right of the suspect and the defendant in custody to meet and interact with others who are not attorneys is one of the basicrights as a human being that must be guaranteed in order to preventcomplete severance and destruction of basic life relations as a humanbeing to interact with

family and others due to detention and also toprepare for the defense of such suspects and defendants. Therefore, it should be deemed to be a constitutionally guaranteed basic right by its nature.

The right of the detainee to meet and interact with others isderived from the general freedom to act that the Constitutional Courthas recognized as one of the basic rights included in the right topursue happiness of Article 10 of the Constitution. Also, Article 27(4)of the Constitution providing for the principle of presumption of innocence is yet another provision from which such right is derived.

(B)Pursuant to Article 37(2) of the Constitution, basic rights mayin principle be restricted solely by statute. Therefore, the right ofthe detainee to meet and interact with others, which is guaranteed asa constitutional basic right, may in principle also be restricted solelyby statute. The provision of the Enforcement Decree at issue in this case nevertheless limits the frequency of visits to the detaineeby a provision not in a statute but in a presidential decree.

The principle of statutory reservation with respect to the restrictionof basic rights under Article 37(2) of the Constitution mandates 'regulation based on statute' and not necessarily 'regulation by way ofstatute,' and thus it requires statutory basis for restrictions upon basicrights and does not necessarily mean that the form of the restriction should be in the form of a statute. On the other hand, Article 75 of the Constitution provides that the "President may issue presidential decrees concerning matters delegated to him or her by statutes with the scope specifically defined and also matters necessary to enforce statutes," thereby establishing a basis for statutory delegation and expressly indicating the scope and the limit of statutory delegation.

The relevant provisions of the Military Criminal AdministrationAct state that visits to the detainee should be permitted unless thereare special grounds to determine that such visits are inappropriate forpurposes relating to guidance and treatment. The Military CriminalAdministration Act is thus premised upon unrestricted visits with nolimits on frequency thereof, and is silent of delegation with respect tothe frequency of visits to thedetainee. Therefore, limiting the frequency of visits to the detainee to twice per week by the provision of the Enforcement Decree at issue in this case is in violation of Article 37(2) and Article 75 of the Constitution as a restriction upon the right to visit and interaction without statutory delegation.

(C) The provision of the Enforcement Decree at issue in thiscase cannot but be held unconstitutional as it fails to satisfy requirements as to form or method of restrictions upon basic rights. Furtheryet, substantively, its content also violates the right to visit andinteract and the right to equality of the complainants in violation ofthe principle against excessive

restriction, as discussed in the following paragraphs.

The presumption of innocence requests that detainees be treatedequally with other citizens and be free from unnecessary hardshipsother than the state of detention unless against the purpose of detention. Therefore, even when detention is justified, rights and privilegesof detainees should not be arbitrarily restricted except for those restrictions thereupon for the prevention of flight or destruction of evidence, which is the purpose of detention, or for the maintenance of order within the detention facilities.

The provision of the Enforcement Decree at issue in this caselimits the frequency of visits to the detainee to twice per week, whereas the corresponding provisions of the Enforcement Decree of the Criminal Administration Act allow one visit per day to the detainee. There are other effective means available for the detention facilitiesto achieve the legislative purpose of 'prevention of flight or destructionof evidence and maintenance of order within detention facilities' whilerestricting less of the basic rights of the complainants, by way of,for example, stricter supervision of visits by participation of a prisonofficer therein or temporary prohibition of visits when necessary.Therefore, the provision of the Enforcement Decree at issue in thiscase fails to meet the requirement of the least restrictive means necessary for the constitutional justification of restrictions upon basic rights. The provision of the Enforcement Decree at issue in this case is therefore unconstitutional as it excessively restricts the right to visit and interact of the complainants.

(D) The provision of the Enforcement Decree at issue in this case reduces the frequency of visits to the detainees subject to the Military Criminal Administration Act as opposed to other detainees while the underlying legislative purpose is identical for all detainees.There is hardly any increasedneed for prevention of flight or destruction of evidence or thereishardly any greater request for maintenance of order within the detention facility, in the case of the former. Therefore, there is no reasonable groundthat would objectively convince such differential treatment between the above two groups.

Therefore, the provision of the Enforcement Decree at issue in this case violates the right to equality as it arbitrarily treats those detainees subject to the Enforcement Decree of the Military Criminal Administration Act differently from those detainees subject to the Enforcement Decree of the Criminal Administration Act.