Detainees' Mandatory Wearing of Uniforms

[11-1 KCCR 653, 97Hun-Ma137, etc.,(consolidated), May 27, 1999]

Contents of the Decision

1.Whether there is a justiciable interest when the infringing actcomplained of has ended;

2.Whether the act of forcing the detainees on trial or appeal to wear uniforms constitutes an exception to the requirement of exhaustionof prior remedies;

3.Whether the act of forcing the detainees on trial or appeal to wearuniforms inside jails and other detention facilities infringes basicrights;

4.Whether the act of forcing the detainees on trial or appeal to wearjail uniforms during investigation or trial infringes basic rights.

Summary of the Decision

1.The subjective justiciable interest in a complaint against theact of forcing detainees on trial or appeal evaporated when the complainants were released. However, the infringing act is likely to repeat, and resolution of the issue has keen importance for the defenseand maintenance of the constitutional order. The justiciable interest is recognized.

2.The petitioning system under Article 6 of the Criminal Admin

istration Act is insufficient and indirect as a remedial procedure andtherefore cannot be a prior remedial procedure one must go throughbefore filing a constitutional complaint. The act of forcing detaineeson trial or appeal to wear jail uniforms is a completed,de factoexcercise of power that can not be easily reviewed under administrative orjudicial review and is likely to be denied justiciable interest in thoseprocedures. In this case, constitutional complaint is the only effective remedy. This case constitutes an exception to the requirementof exhaustion of prior remedies.

3.In jails and other detention facilities, wearing jail uniforms is not seen by the public and does not interfere with the detainee's exercise of the right to explain or defend at investigation or trial. Ifdetainees are allowed to wear regular clothes, the clothes need berepaired, washed, and seasonally changed. En route, the detaineesmay destroy evidence or plan escape or import contrabands such as weapons, tobacco, or drugs. Forcing the detainees on trial or appeal to wear jail uniforms is a minimum restriction necessary for accomplishing the purpose of detention and maintaining the institutionalorder and safety. It is a just and reasonable measure within thescope of discretion.

4.Forcing the detainees, who are not yet convicted, to wear jailuniforms during investigation or trial makes them feel insulted andashamed and psychologically threaten them, interfering their right of defense. Ultimately, it will interfere with the truthseeking process.Such restriction cannot be justified even by the possibility of escape.It violates the principle of proportionality in by Article 37 (2) of theConstitution, the presumption of innocence, the right to personalityarising out of human dignity and worth, the right of pursuit of hap piness, and the right to fair trial.

Parties

Complainants

1. Kang Gi-hyun (97Hun-Ma137)

2. Suh Joon-sik (98Hun-Ma5)

Counsel of record: Legal Corporation Duksoo

Attorney in charge: Kim Chang-kook and 5 others

Respondents

1. Director of the Sungdong Jail (97Hun-Ma137)

2. Director of the Youngdungpo Jail (98Hun-Ma5)

Holding

1.Respondent Director of the Sungdong Jail forced ComplainantKang Gi-hyun between 1997. 3. 28 and 5. 8 of the same year, andRespondent Director of the Youngdungpo Jail forced Complainant Suh Joon-sik, respectively, to wear jail uniforms during investigation andtrial. Their conduct violates the principle of presumption of innocence,the complainants' right to personality, their right to pursue happiness, and their right to fair trial.

2.Other claims of the complainants are rejected.

Reasoning

1.Overview of the Case and the Subject Matter of Review

A. Overview of the Case

(1) Complainant Kang Gi-hyun was confined at the Sungdong Jailon March 28, 1997 for damage to public use buildings and violence,and indicted on April 4 at the Eastern Branch of the Seoul DistrictCourt (97Ko-Dan778).

Respondent Director of the Sungdong Jail required the complainant to wear an inmate's uniform both in confinement and during investigation or trial (The uniforms include government-provided uniforms and self-paid clothes permitted by the Minister of Justice).The complainant filed a constitutional complaint on May 8 of the sameyear, arguing that the respondent's act of prohibiting the petitionerfrom wearing his plain clothes and forcing him to wear an inmateuniform violated the Article 10 human dignity and worth and the rightto pursuit of happiness and the Article 27 (4) presumption of innocence. The complainant was released on May 8 of the same yearafter being sentenced to one year of imprisonment with suspension ofthe sentence for three years.

(2) Complainant Suh Joon-sik was confined at the YoungdungpoJail on November 12, 1997 for a National Security Act violation, and was indicted on the 28th of the month at the Western Branch of the Seoul District Court (97Ko-Hap269).

Respondent Director of the Youngdungpo Jail required the complainant to wear an inmate' uniform both in confinement and duringinvestigation or trial. The complainant filed a constitutional complainton

January 3, 1998, arguing that the respondent's act of prohibitingthe petitioner from wearing his plain clothes and forcing him to wearan inmate uniform violated the Article 10 human dignity and worthand the right to pursuit of happiness and the Article 27 (4) presumption of innocence. The complainant was released on bail on February5 of the same year.

B. Subject Matter of Review

Whether the act of prohibiting Complainant Kang Gi-hyun held atthe Sungdong Jail between March 28 and May 8, 1997 (97Hun-Ma137)and Complainant Suh Joon Sik held at the Youngdungpo Jail betweenNovember 11, 1997 and Febrary 5, 1998 (98Hun-Ma5), from wearingtheir plain clothes and forcing them to wear inmate's uniforms during confinement, investigation, and trial (the "instant act", hereafter) violated their basic rights.

2. Complainants' Arguments and the Opinions of

interested parties

A. Complainants' Arguments in Summary

Jail directors' act of forcing detainees on trial or appeal to wearinmate uniforms during the investigation or the trial makes the detainees suffer from a feeling of insult and shame and thereby interferes with exercise of their right of self-defense. The instant actviolates the complainants' rights to human dignity and worth, pursuitof happiness, and presumption of innocence.

B. Respondents' and Justice Minister's Opinions

(1) Complainant Kang was released on suspended sentence onMay 8, 1997 (97Hun-Ma137) and Complainant Suh was released on bailon February 5, 1998 (98Hun-Ma5). Therefore, there is no interest in deciding whether their rights were violated. The instant act can also be remedied through the petition under Article 6 of the Criminal Administration Act, administrative review, or judicial review of administrative action at ordinary courts. The constitutional complaint, notpreceded by these procedures, violates the requirement of prior exhaustion.

(2) Detainees on trial or appeal may escape or destroy evidence.Once they are detained, they must live in a group setting. Any conduct threatening the purpose of confinement or the collective livingmust be restricted to an extent.

The Criminal Administration Act or its Enforcement Decree allow the detainees on trial or appeal to wear government-provided clothes or self-paid clothes. Self-paid clothes must be appropriate for seasonand sanitation, and must not disrupt the order of the prison. Theirclothes are colored mud yellow which is the symbolic color of koreannatural country-side, differently from those of prisoners. Self-paidclothes are also diverse in types and come in better forms and colors.

In shortage of detention facilities and personnel, allowing the detainees to wear plain clothes is problematic. If the detainees appearat trial in their plain clothes, they will feel a stronger urge to escape.If self-paid clothes are not limited, the difference in the inmates'wealth will cause a feeling of alienation among them and may leadto stealing of expensive clothes. Clothes may secretly carry a message used in destruction of evidence, drug, and weapons, defeatingthe detaining purpose of preventing destruction of evidence and threatening the safety and order of the correctional facility.

3. Review

A. Legal Prerequisites

(1) When the petitioners were released on suspended sentenceor bail, their subjective, justiciable interest in seeking review of theinstant act evaporated.

However, constitutional complaint has not only a subjective function of providing relief but also an objective function of defendingand maintaining the constitutional order. Even if the subjective justiciable interest evaporated during the review, when the infringementon the basic rights is likely to repeat and its resolution has an important meaning for the defense and maintenance of the constitutionalorder, our Court has by precedent recognized the justiciable interest.The instant act falls under the precedents and can be reviewed (4KCCR 51, 56, 91Hun-Ma111, January 28, 1992)

(2) Article 6 of the Constitution provides, "prisoners or detainees on trial or appeal ("inmates", hereafter) may object to their treatment and petition the Justice Minister or the visiting inspector." However,the petition process under the Criminal Administration Act is insufficient and indirect in light of the administering body, process, andbinding force, and cannot be considered one of the prior remedies thatmust be exhausted before the filing of a constitutional complaint(10-2 KCCR 637, 644, 98Hun-Ma4, October 29, 1998). The instantact is ade factoexercise of power, which is difficult to challenge inadministrative review or ordinary courts' judicial review, and is likelyto be denied as having any justiciable

interest in those procedures.Since there is no other effective venue for relief than constitutionalcomplaint, an exception to the requirement of prior exhaustion isrecognized (7-2 KCCR 94, 102, 92Hun-Ma144, July 21, 1995)

B. Review on Merits

(1) A judge shall issue an arrest warrant when there is a concern that a suspect or a defendant either does not have a stable residence or may escape or destroy evidence (Article 70, 201 of the Criminal Procedure Act). When the warrant is executed, the custody isturned over to prisons, juvenile prisons, or jails as that of a detaineeon trial or appeal (Articles 1, 2, and 3 of the Criminal Administration Act). As the detainees are forced into collective living in anisolated facility, it is unavoidable to restrict freedom of action for thepurpose of detention. However, basic rights may be restricted only to the extent necessary for national security, public order, or publicwelfare under Article 37 (2) of the Constitution, and may not berestricted on their essential contents.

Therefore, the restriction on the detainees on trial or appeal who are presumed innocent must not depart from the minimum, reasonable extent necessary for the purpose of the detention, namely, preventing escape and destruction of evidence and maintaining institutional order and safety. The limit of such restriction is set by weighing the contents and features of the concrete right or liberty, and the form and extent of the restriction under Article 37 (2) of the Constitution.

Concerning the rights of detainees on trial or appeal, the Constitutional Court has invalidated correction officers' attendance in attorney visits (4 KCCR 51, 91Hun-Ma111, January 28, 1992) and transportation of the detainees to prisons after receiving a judgment ofnot guilty (9-2 KCCR 806, 95Hun-Ma247, December 24, 1997) and hasupheld censorship of letters (7-2 KCCR 94, 92Hun-Ma144, July 21,1995) and partial deletion of newspaper articles (10-2 KCCR 637,98Hun-Ma4, October 29, 1998) as the minimum restriction necessary for accomplishing the purpose of detention.

This case is concerned with whether the act of forcing the detainees on trial of appeal to wear prisoner's uniform is unconstitutional.

(2) All detainees on trial or appeal must wear governmentprovided uniforms but, upon the director's approval, may choose fromself-paid clothes. Self-paid clothes must be appropriate for seasonand sanitation and must not threaten the order of the facility (Articles 20, 22 of the Criminal Procedure Act; Articles 72, 85 of its Enforcement Decree).

According to the Detainees' Clothes Improvement Plan (Ministryof

Justice Rules, Work No. 61440-73, 95.5.27), self-paid clothes aremore diverse in color than government provisions but they are standardized as the latter except addition of jackets. The colors distinguish prisoners and detainees, and men and women. The detaineeson trial or appeal may choose from self-paid clothes permitted underthe Rules of the Ministry of Justice but may not wear any plainclothe.

(A) The complainant detainees wore inmate's uniforms both insidethe jail and during investigation or trial.

However, there is a difference between when they are insidethe jail and when they are appearing in court or being investigated.

1) Firstly, we examine whether the ban on plain clothing doesnot depart from the limit of the restriction necessary for the detaining purpose or maintenance of the order and safety.

The detainees, prevented from wearing plain clothes and forcedto wear inmate uniforms, will feel insulted and ashamed. Their freemanifestation of individual personality is suppressed, and their humandignity and worth infringed.

However, inside the jails, the uniforms are not seen by the public and do not interfere with the detainees' right to explain or defendthemselves. The detainees wearing plain clothing will be indistinguishable from visitors. Repair, washing, or seasonal change of theclothing may be a route for conspiring destruction of evidence or escape or a conduit for weapons, tobacco, drugs, and other contrabands. The detainees' social status and wealth may be shown through plain clothing, leading to a feeling of alienation and possibly a fight amongthem.

Therefore, requiring the detainees to wear inmate uniforms insidethe facility is the restriction minimum necessary for accomplishing thedetaining purpose and maintaining the institutional order and safetyand is a just and reasonable measure within the scope of discretion.

2) Next, we examine whether banning plain clothing outside thejail and during investigation or trial departs from the limit of therestriction aimed at accomplishing the detaining purpose and maintaining the institutional order and safety.

When the detainees investigated or tried for serious crimes stepout of the jail in plain clothes, they may have an urge to escape, andwhen they do, it is difficult to stop or catch them because they arehard to distinguish from others. It is a necessary and useful measureof accident prevention that inmate uniforms are worn during trial or investigation.

However, when the detainees wearing inmate uniforms are exposed to the public, they feel ashamed and insulted. The detaineesneed be guaranteed their right to be notified, explain or defend duringtrial or investigation. The detainees whose guilt is not establishedmay be

psychologically hampered by the uniform. Hence the discovery of substantive truth is undermined.

Even if we are relatively short on human and physical resourcesfor correction, prevention of escape should be achieved by use of instruments or additional guards. Prohibiting them to wear plain clothesduring a trial or an investigation, where the need for protection ofbasic rights is compelling, violates the principle of proportionality in Article 37 (2) of the Constitution.

Therefore, forcing the detainees to wear inmate uniforms violates the presumption of innocence, the rights to personality and pursuit ofhappiness derived from human dignity and worth, and the right tofair trial (The 1955 UN Crime Prevention and Criminals' TreatmentConference adopted 'the Standard Minimum Rules for the Treatmentof Prisoners, which states in its Article 84 (2) that 'detainees who have not been found guilty are presumed innocent and treated accordingly.' Its Article 17 (3) states, even detainees not allowed towear plain clothes inside the facility shall be 'allowed to wear theirown clothes or other indistinguishing clothes when they leave thefacility for a legitimate purpose.')

(B) After this case was docketed in the Constitutional Court, the Ministry of Justice drafted a new guideline on March 4, 1999 whereby detainees on investigation or trial can appear in plain clothes. Between April and June 1999, the new guideline was used in fivedemonstration sites in Seoul, Ulsan, Kunsan, Hongsung, and Kangrung, and was being planned to be extended nationally in July of the same year.

4. Conclusion

The portion of the instant act, which required the detainees on trial or appeal to wear inmate uniforms during the trial or investigation, violates the presumption of innocence and the complainants'right to personality, pursuit of happiness, and fair trial, and thereforeshould be withdrawn. The claim about the other portion of that act,which required wearing of inmate uniforms inside the facility, iswithout basis and denied. Since the act has been already completed,we find the act unconstitutional and declare so by a unanimous decision of all Justices.

Justices Kim Yong-joon(Presiding Justice), Kim Moon-hee,Lee Jae-hwa, Cho Seung-hyung, Chung Kyung-sik, Koh Joong-suk,Shin Chang-on, Lee Young-mo(Assigned Justice), Han Dae-hyun