Case on Protective Custody

[1 KCCR 69, 88Hun-Ka5 et al., July 14, 1989]

A. Background of the Case

In this case, the Court reviewed Article 5 of the former Social Protection Act, one of the statutes enacted by the National Security Emergency Legislative Council during the Fifth Republic. This was the first case concerning one of the justiciability requirements for requesting constitutional review of a statute during an ordinary judicial proceeding, namely, whether the statute forms the premise of that proceeding.

Article 5 of the former Social Protection Act (prior to amendment by Act No. 4089 on March 25, 1989) stipulated matters on protective custody, a type of preventive restriction; mandatory protective custody under Section 1, and discretionary protective custody under Section 2. The Article subjected criminal convicts to ten or seven years of protective custody in addition to the regular sentences when those with prior convictions commit the same or similar crimes for which the statutory sentences are higher than a certain level and when habitual criminals or heads of criminal organizations, and etc. commit a crime for which statutory sentences are higher than a certain level.

The petitioners, who were sentenced to seven or ten years of protective custody, appealed the sentences to the appellate court. When their appeals were rejected, they brought the cases to the Supreme Court, whichsua spontesought constitutional review of Article 5 of the Social Protection Act to the Constitutional Court.

During the Court's review, Article 5 of the Social Protection Act was amended (Act No. 4089 on March 25, 1989) by repealing mandatory protective custody, and even in cases that satisfied the statutory requirements of protective custody allowed protective custody only when the judges found that there was a risk of recidivism. The amendment also set the maximum duration of protective custody to seven years (by newly adding Article 7 Section 3), and stipulated that the new provisions be applied retroactively to all cases pending at the time of the amendment (Article 4 of the Addenda).

B. Summary of the Decision

The Court found that Article 5 Section 1 of the former Social Protection Act violated the Constitution, whereas Article 5 Section 2 of the same Act does not violate the Constitution.

During the Court’s review, Sections 1 and 2 of Article 5 of the former Social Protection Act were revised favorably for the petitioners. The new law was made to apply retroactively to the petitioners' cases, which were pending at the time of the amendment. However, retroactive force of the new law is premised upon the validity of the former law and only when the new law is more advantageous for the petitioners than the former law. Therefore, review on the constitutionality of the former law is required as the premise of the new law to be retroactively applied.

Meanwhile, protective custody and criminal punishment both entail deprivation of physical liberty and are not clearly distinguishable in terms of enforcement. However, their essence, objectives, and functions are entirely different. Therefore, the consecutive impositions of protective custody and criminal punishment do not constitute double jeopardy banned by Article 13 Section 1 of the Constitution.

Every preventive restriction is a measure of special deterrence applied to those showing a risk of recidivism, accordingly the core of the preventive measure is recidivism risk. The constitutional principle ofnulla poena sine legespecified in the Article 12 Section 1 of the Constitution implies that there shall be no preventive restriction if there is no likelihood of recidivism. Furthermore, in view of the attendant limitation on human rights that implicates bodily freedom, the mandate of proportionality requires more than a simple possibility of recidivism, but calls for substantial probability. The probability must be assessed overall by considering in addition to prior convictions, the essential nature, motive, and methods of the present crime, the age, personality, family relationship, educational level, occupation, and environment of the actor, his or her conduct before and after the commission of the crime, and his or her show of repentance. Based on the premise of such review, the Court found that the likelihood of recidivism is not proven just because the legal requirements under Article 5 Section 1 of the former Social Protection Act are met. Therefore, the provision violates the principle ofnulla poena sine legerealized in the latter part of Article 12 Section 1 of the Constitution and imposes on the judge a duty to order protective custody regardless of the likelihood of recidivism, depriving the judge of his or her discretion. Thus, the provision violates people's right to a fair trial by a judge.

Although Article 5 Section 2 of the former Social Protection Act stipulates that the detainee shall be imposed of “protective custody of seven years” in the form

of a definite period, it is clear that the custody is meant to discontinue when the likelihood of recidivism disappears. Such legislative intent is clearly indicated in Article 25 Section 1, which requires biannual parole review. In other words, the seven-year period can only be interpreted as stating the maximum period allowed in the enforcement of protective custody. Therefore, this provision does not infringe on people's right to fair trial by a judge.

Justices Han Byeong-Chae and Kim Yang-Kyun found that the request for constitutional review should be dismissed. Justice Han stated that the Article 5 of the former Social Protection Act was revised, and the new law that is more favorable to the requesting petitioners is now applicable. Therefore, the constitutionality of the former law no longer forms the premise of the trial. Whereas, Justice Kim stated that there is no need for constitutional review on the former law since the ordinary court requesting constitutional review can dispose of the cases according to the new law. Justice Choe Kwang-Ryool made the case for dismissal for Article 5 Section 1 Item 1 of the former Act, which had omitted the requirement of risk of recidivism, as it had been repealed and thus constitutional review on the provision was no longer necessary.

Justices Byun Jeong-Soo and Kim Chin-Woo stated that protective custody under Article 5 of the former Social Protection Act is the same as criminal punishment. Thus, the consecutive imposition of such measures and regular sentences is in conflict with Article 12 Section 1 and Article 13 Section 1 of the Constitution. Further, Article 5 Section 2 of the same Act is invalid because it forecloses judicial discretion in making a finding of a risk of recidivism immediately after the end of the regular sentence.

C. Significance of the Decision and Aftermath of the Case

This case received attention as a milestone in the domain of bodily freedom but was also significant as the first check on the undemocratic legislative activities of the National Security Emergency Legislative Council in the early Fifth Republic (JoongAng Ilbo, July 14, 1989; The Hankyoreh, July 15, 1989).

On August 4, 2005, the National Assembly passed a bill to repeal the Social Protection Act, by Act. No. 7656. (Through Article 2 of the Addenda, however, all judgments imposing preventive detentions which had been made final before the repeal of the Act were maintained, and the enforcement of such judgments were to follow the Act as before. Later on, Article 2 of the supplemental provisions came under constitutional review twice. The Court found that it did not violate the Constitution for it was necessary to prevent social turmoil in case all the detainees were to be freed at once upon revocation of the Act and that the

legislature had taken the court’s sentencing practices into account [2007Hun-ba50, March 26, 2009; 2014Hun-ba222, September 24, 2015, et al.]) On the same day, the National Assembly enacted the new Psychiatric Detention Act (Act. 7655) which preserved the system of medical and psychiatric detentions that had been provided for in the Social Protection Act.

Thereafter, the Medical Treatment and Custody Act included persons with psychosexual disorders, who had committed a sexually violent crime as those subject to medical treatment and custody. The law changed its title to “Act on Medical Treatment and Custody, etc.,” in the amendment by Act No. 13525 on December 1, 2015.