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헌재 2003. 1. 30. 선고 2001헌바95 영문판례 [범죄인인도법 제3조 위헌소원]
[영문판례]
본문

Jurisdiction over Determination of Extradition

(15-1 KCCR 69, 2001Hun-Ba95, January 30, 2003)

Held, the provision of the Extradition Act that endows exclusivejurisdiction over review and determination of extradition to the SeoulHigh Court and provides for no further procedure to challenge such judicial decision is not unconstitutional.

A. Background of the Case

The Extradition Act provides that the Seoul High Court and the Seoul High Public Prosecutors' Office have the exclusive jurisdiction over matters concerning the review and determination of extradition of criminals and the request therefor. On the other hand, there is no provision in the Extradition Act that allows challenge to the decision of the Seoul High Court upon review over the extradition of criminals, and the Supreme Court of the Republic of Korea has maintained the position that a request for appeal pursuant to Article 415 of the Criminal Procedure Act is not permitted with respect to the decision to extradite criminals. Therefore, the provision of the Extradition Act for the jurisdiction over review and determination ofextradition of criminals implicitly provides that challenges to the decision over the extradition of criminals by the court of exclusivejurisdiction are not permitted.

The complainant in this case is a citizen of the United States of Korean ethnicity, who was prosecuted for and found guilty at a jurytrial of rape and other crimes in the State of California, and then fled to Korea before sentencing. The court in the United States sentenced the complainant during his nonappearance a prison termof two-hundred and seventy-one years in a sentencing in default. TheDepartment of Justice of the United States of America requested extradition of the complainant on June 4, 2001.

The prosecutor belonging to the Seoul High Public Prosecutors' Office thereupon filed a request with the Seoul High Court for a review and determination of extradition of the complainant pursuant to the Extradition Act. The Seoul High Court issued a decision to extradite the complainant on September 25, 2001.

B. Summary of the Decision

The Constitutional Court has held, by the majority of eight out of nine Justices, that the provision for jurisdiction over review and determination of extradition does not infringe upon the due process or the right to trial. Summary of the rationale for holding is stated in the following paragraphs.

(1) Summary of the Majority Opinion

Determination of extradition ofcriminals bears an intimate rela-

tionship to the freedom from bodily restraint. Therefore, due processshould be observed in reviewing and determining matters of extraditionof criminals. The right to trial under Article 27 of the Constitution does not include, as a matter of right, a right to trial by appellateprocedure in any and all cases.Whether a judicial decision is appeal-

able and, if so, upon which grounds, is a question of legislative policyshould there be no extraordinary circumstances.

Review and determination over extradition of criminals by the courtis not a typical procedure that is an object of judicial proceedings.Such review and determination procedure is by its nature distinguish-

able from the criminal procedure that aims to establish and realize the state authority to criminal punishment. Rather, such procedure is a special procedure acknowledged and set forth pursuant to the Extradition Act.

Pursuant to the Extradition Act,the court of competent jurisdic-

tion appliesmutatis mutandisthe provisions of the Criminal ProcedureAct in reviewing and determining over extradition within the scopecompatible with its nature, provides an opportunity to be heard for theindividual subject to the extradition procedure, may decide against extradition when the individual subject to the extradition procedure is a Korean national, provides for special protection such as not toextradite where the individual subject to the extradition procedure maybe punished or prejudiced as a political dissident or on the groundof race or religion, and may decide to extradite only when the subjectcrime is a crime not only in the nation requesting extradition there-

into but also under Korean law.

Thus, the provision of the Extradition Act at issue in this case guarantees at least one trial by the judge and the law and satisfies the requirements of rationality and legitimacy of due process in the procedure for review and determination over extradition of criminals. Therefore, the provision of the Extradition Act at issue in this case, even if it does not permit achallenge to the court's decision to ex-

tradite, does not infringe upon the freedom from bodily restraint, the human dignity and value, or the right to trial, nor does it violate the

principle of due process.

(2) Summary of the Dissenting Opinion

The principle of protection of nationals under the Constitutionshould be respected and observed also in the procedure for extraditionof criminals as part of the international cooperation in criminal justice. The procedure for extradition of criminals, considering its substance, is undeniably to secure thestate authority to domestic criminal pun-

ishment held by a foreign nation, therefore it cannot but be ultimatelycategorized as a procedure of criminal punishment. Furthermore, the criminal procedure as a judicial process should as a matter of course include a procedure to challenge a judicial decision at thehigher court and, therefore, in principle, challenge to the High Court'sdecision to extradite at the higher court,i·e,the Supreme Court,should be permitted. However, because the provision at issue in thiscase is understood to have an established meaning that challenges to the original decision are not permitted, there is no possibility ofcorrection by way of appellate review by the higher court when thereis an intervention of the subjective discretion of individual judges and the decision lacks review over evidence necessary to determine whether the individual subject to the extradition proceeding fits the definition of criminal to be extradited, whether the subject offense isa crime to be subjected to extradition, or whether there is a sufficientground to support the prosecution for the alleged crime or considerationof the degree of human rightsprotection in the nation that has re-

quested extradition. This indicates a loss of balance to be maintainedbetween the obligation to cooperate for international realization ofcriminal justice as a member of the global community and the obligationto protect human right of the individual criminal. Therefore, the provision at issue in this case infringes upon the right to trial ofthe complainant.

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