Excessive Bodily Search Case

(14-2 KCCR 54, 2000Hun-Ma327, July 18, 2002)

In this case, the Constitutional Court declared that excessive bodily search conducted during the process of detaining complainants in police detention facilities violated the Constitution.

A. Background of the Case

Police detention facilities are places where individuals detained through legal procedures, or individuals subject to the decision of a judge or a disposition restricting bodily freedom, are confined.

According to the Criminal Administration Act, the warden of confinement facilities could inspect body and clothes of a newcomer and have his fingerprints and photo taken. The Act also allows the warden to conduct bodily search or take other necessary measures to confined inmates if he deems necessary

The complainants are women who were arrested as flagrant offenders for distributing printed materials which was prohibited by the election law before the general election for the National Assembly. After going through a preliminary investigation in a police station and receiving a quick bodily search, they were confined in the police de- tention facilities.

A female police officer demanded a comprehensive bodily search to make sure that the complainants did not carry nor hide dangerous materials such as deadly weapons or other disallowed goods when the complainants returned to the police detention facilities after a meeting with their attorneys. The complainants then turned their back on the police officer, pulled up their shirts to their armpits, pulled down their pants, along with their underwears, to their knees, and repeated the process of squatting down and standing up three times.

The complainants filed the instant constitutional complaint, arguing that such excessive bodily search using such insulting and humiliating means infringed on the right to personality and the right to personal freedom protected by the Constitution.

B. Summary of the Decision

The Constitutional Court, on a unanimous vote, declared that the above bodily search was unconstitutional, and ruled as follows:

(1) Bodily search of the complainants was conducted following the procedure stipulated by related statutes. Bodily search of inmates in confinement facilities are conducted to prevent threats against life and the health of inmates and to ensure safety and order within the facilities by making sure that an inmate does not carry nor hide dangerous materials such as deadly weapons or other disallowed goods. Considering such legislative objective, the necessity and legitimacy of certain types of bodily search is recognized.

However, not all bodily search to achieve such administrative objective is legal. In other words, only bodily search within the minimal permissible boundary necessary to achieve the objective is allowed, and even in such cases, appropriate means of inspection with due attention should be employed so as not to infringe on the basic rights of inmates by insulting or humiliating them.

A detailed bodily search for an inmate confined at a police detention facility should only be allowed when it is likely that the inmate would hide and carry dangerous materials such as deadly weapons or other disallowed goods in their inner body and when there are reasons to believe that it is not possible to find these goods using other means of inspection. Even then, such search should employ the least restrictive means to minimize infringement on the basic rights of an inmate.

(2) The complainants are females arrested as flagrant offenders in violation of the election laws. It was unlikely that the complainants were in possession of dangerous materials such as deadly weapons at the time of their arrest, and it was clear that they did not possess any dangerous materials or disallowed goods upon completion of the initial bodily search conducted after their arrival at the detention facility. Since a police officer observed the meeting between the complainants and their attorneys held at the conference room, the possibility that the complainants were hiding and carrying dangerous materials or disallowed goods when they returned to the detention facility after the meeting was very low.

Forcing the complainants to repeat the process of squatting down and standing up with

their clothes off damaged the sense of honor and self-respect of the complainants. Such bodily search is obviously out of the limits permitted under the Constitution, and it brought insult and humiliation to the complainants

(3) Therefore, the instant bodily search against the complainants was not the least restrictive means to achieve the legislative objective, and it brought about unbearable insult and humiliation upon the complainants. Therefore, it violated the right to personality derived from human dignity and value stipulated by Article 10 of the Con- stitution as well as the right to personal freedom protected by Article 12 of the Constitution.