Pretrial Detention Credits after Making an Appeal Case

[21-2 KCCR 710, 2008Hun-Ka13, 2009Hun-Ka5 (consolidated),December 29, 2009]

Both Article 482 Section 1 of Criminal Procedure Act (revised by Act no. 8496 on June 1, 2007), stipulating the inclusion of pretrial detention credits after filing an appeal and Article 482 Section 2 of Criminal Procedure Act (revised by Act No. 7225 on October 16, 2004) does not prescribe the detention credits after filing an appeal until the withdrawal of the appeal. Such exclusion from regular penalty is not compatible with the Constitution by excessively restricting the freedom of body without rationality and legitimacy, violating the constitutional principle of the presumption of innocence, due process, and equality. The abovementioned provisions shall be applicable until the revision by the Legislature.

Background of the Case

The movant at the requesting court(case 2008Hun-Ka13) and the defendant of the underlying case(case 2009Hun-Ka5) withdrew appeal respectively while it is pending, after they are sentenced of imprisonment with the inclusion of pretrial detention credits at the first criminal trial. However, there are no provisions regarding the calculation of pretrial detention credits in the case of the withdrawal of appeal because of the expiration of the term for appeal. The requesting courts requested this constitutional review of Article 482 Sections 1 and 2 of Criminal Procedural Act (hereinafter, combined two Sections referred as the "Instant Provisions"), granting the movant's motion(2008Hun-Ka13) or sua sponte(2009Hun-Ka5), which regards the calculation of pretrial detention credits but do not stipulate the inclusion of pretrial detention credits after making an appeal until withdrawing it, thereby the pretrial detention credits being excluded from regular penalty.

[The Instant Provisions]

Criminal Procedure Act (revised by Act no. 8496 on June 1, 2007)

Article 482 (Calculation in Number of Detention Days, etc. Pending Judgment after Appeal)

(1) The whole number of days of detention pending judgment subsequent to the application for appeal shall be included in the calculation of the regular penalty, in the following cases:

1. In cases where application for appeal has been made by a public prosecutor; and

2. In cases where application for appeal has been made by a person other than a public prosecutor, and the original judgment is quashed.

Criminal Procedure Act (revised by Act No. 7225 on October 16, 2004)

(2) The whole number of days of detention before final and conclusive judgment during the period for which the application for appeal is filed (excluding the number of days of detention subsequent to the application for appeal) shall be included in the calculation of the regular penalty.

Summary of the Decision

The Constitutional Court decided the Instant Provisions are incompatible with the Constitution with an 8 (unconstitutional, including onedissenting opinion regarding the holding expression) to 1(constitutional) vote for the following reasons.

1. Court Opinion

Because suspects or defendants prior to conviction are not guilty under the constitutional principle of the presumption of innocence, they should not be disadvantaged physically and spiritually from the perspective of law and fact by being treated as the convicted. Especially, pretrial detention is identical to imprisonment from the perspective of suspects or defendants whose freedom of body is infringed. Therefore, the entire credits should be included in the regular penalty under the principle of human rights and fairness. Thus, the detention after making an appeal until its withdrawal should be

included in regular penalty as long as it is categorized as pretrial detention. However, the Instant Provisions exclude the detention after filing an appeal until its withdrawal from regular penalty, thereby infringing on the freedom of body, which is one of the most fundamental rights among the basic rights.

Besides, while the entire pretrial detention credits are included if a defendant under custody makes an appeal but receives the decision of dismissal, according to the 2007Hun-Ba25 decision of this Court, delivered on June 25, 2009, the detention credits would not be included if a defendant under custody makes an appeal and withdraws it, because the Instant Provisions do not prescribe the calculation of the detention period after making an appeal until its withdrawal. Therefore, a defendant under custody who withdraws an appeal would be unfairly discriminated against a defendant under custody whose appeal is dismissed.

As a result, the exclusion of pretrial detention credits after filing an appeal until withdrawing it excessively restricts the freedom of body without rationality and legitimacy, violating the constitutional principle of the presumption of innocence, due process, and equality. Therefore, the Instant Provisions that prescribe the 'inclusion of pretrial detention credits after making an appeal', but do not stipulate pretrial detention credits after making an appeal until withdrawing an appeal violates the Constitution.

We declare the decision of incompatibility with the Constitution to prevent legal vacuum for the instant nullification of the provisions by the decision of unconstitutionality. The Instant Provisions shall be applicable until the Legislature revised the provisions to accord with the Constitution.

2. Dissenting Opinion of One Justice on the Type of Holding

The decision of unconstitutional on statutes, which makes a statute null, should specify the unconstitutional part of the statute when it declares unconstitutional.

Because the current regulation of the Instant Provisions is not incompatible with the Constitution, the statue that is not unconstitutional would be declared unconstitutional, if we declare the

Instant Provisions incomparable with the Constitution. Therefore, we should not declare the existing substances of the Instant Provisions incompatible with the Constitution.

Because the unconstitutionality of the Instant Provisions is located in the failure of the inclusion of pretrial detention credits, from filing an appeal until withdrawal of the appeal, to the sentence, we should hold that "the failure of the inclusion of the pretrial detention credits from filing an appeal until withdrawal of the appeal, to the sentence of the Instant Provisions is against the Constitution.

3. Dissenting Opinion of One Justice

It is within the broad discretion of the Legislature whether the pretrial detention credits should be included to the sentence. Because it would be not unconstitutional unless the legislation clearly abuses the discretion, it is not logical that the inclusion of the entire pretrial detention credits to the sentence can only protect the human rights. The pretrial detention credits from filing an appeal to the withdrawal of the appeal can be regarded as the terms not including to the sentence because the Legislature considers them as the liable terms of the defendant.

With these reasons, it would be not clearly unfair and unreasonable abuse of discretion of the Legislature in enactment to exclude the pretrial detention credits from filing an appeal to its withdrawal from the sentence. Therefore, Article 482 Section 2 of the Criminal Procedure Act would not violate the principle of equality because defendants under custody who withdraw appeals are not arbitrarily discriminated, without sound grounds, against defendants under custody whose appeals are dismissed.

Besides, considering that the pretrial detention according to law and due process under the Constitution does not infringe on the freedom of body, the disadvantages by the pretrial detention should not be regarded as the sacrifice of defendants. Therefore, Article 482 Section 2 of the Criminal Procedure Act that excludes the pretrial detention credits, from filing an appeal to the withdrawal of the appeal, from sentence does not infringe on the freedom of body.

Case on Prohibition of Assemblies Near the National Assembly

[21-1(B) KCCR 745, 2006Hun-Ba20 · 59 (consolidated) December 29, 2009]

In this case, the Constitutional Court decided that the portion of Article 11 Item 1 of the Assembly and Demonstration Act concerning the "National Assembly building", which provides that no person may hold any outdoor assembly or stage any demonstration anywhere within a 100-meter radius from the boundary of the office building, is not in violation of the Constitution.

Background of the Case

The petitioners were prosecuted on charges of holding assemblies within the 100-meter radius from the boundary of the National Assembly building and convicted in the court of first instance. They appealed the case and filed a motion to request for the constitutional review of the underlying Article 11 Item 1 of the Assembly and Demonstration Act, arguing that the provision violated the freedom of assembly and thus the Constitution. However, when the motion was denied, they filed this constitutional complaint.

Provision at Issue

Assembly and Demonstration Act (later revised by Act No. 7123 on Jan. 29, 2004 and wholly revised by Act No. 8424 on May 11, 2007)

Article 11 (Places Prohibited for Outdoor Assembly and Demonstration)

No person may hold any outdoor assembly or stage any demonstration anywhere within a 100-meter radius from the boundary of the following office buildings or residences:

1. The National Assembly building, all levels of courts, and the Constitutional Court;

Summary of the Decision

In a vote of 5 (constitutional) to 4 (unconstitutional), the Constitutional Court ruled that the portion of the "National Assembly building" of Article 11 Item 1 of the Assembly and Demonstration Act does not violate the Constitution for the following reasons:

1. Court Opinion

The provision at issue absolutely bans the outdoor assembly or demonstration near the National Assembly, which may directly renounce the members of the National Assembly, etc., impose psychological pressure through threats, or cause difficulty in the access to the National Assembly. Such prohibition ensures free access to the National Assembly building and the safety of its facilities and is considered as an adequate means to serve the legitimate legislative purpose. Meanwhile, given its particularity and importance, the constitutional jurisdiction exercised by the National Assembly requires special and sufficient protection. However, the general regulations prescribed by the Assembly and Demonstration Act or ex-post regulations under the Criminal Act alone cannot serve as the effective means to protect the competence of the National Assembly.

In addition, it is hardly the case that there is a less restrictive means other than the challenged provision, and having no exception is not considered a violation of the rule of the least restrictive means given the function and role of the National Assembly. Furthermore, the private interest abridged by the challenged provision is nothing but a spatial restriction in limited scope - restriction of holding assemblies near the National Assembly, whereas protecting the competence of the National Assembly is definitely important in terms of representative democracy. As the resulting decline in the effectiveness of assemblies and demonstrations and restriction on freedom concerned are therefore acceptable, the balance of interest is not found to be disrupted. For this reason, the contested provision is not in violation of the rule against excessive restriction and thus the freedom of assembly.

2. Dissenting Opinion of Four Justices

Sending a message or exercising political pressure by holding an assembly is necessary and worthwhile in itself in today's pluralistic democracy, and there is no constitutionally-justified need to prohibit any influence of political and collective expression on members of the National Assembly. Nevertheless, the challenged provision established a no-assembly zone without questioning the practical danger of assemblies or demonstrations near the National Assembly and the possibility of violence. This measure lacks the legitimacy of the legislative purpose or serves as an inadequate means to fulfill the legislative purpose. Meanwhile, insofar as the general regulations set forth in the Assembly and Demonstration Act and provisions restricting violence under the Criminal Act exists, the legislative purpose of protecting the function of the National Assembly can be served without difficulty even without the prior restriction of the exercise of the freedom of assembly itself. In this sense, designation of such a prohibited area is an excessive regulation of basic rights and thus violates the rule of the least restrictive means. In addition, the challenged provision is problematic in the sense that it provides no exception to ease the restriction on basic rights even in cases with small possibility of violation of legal interests. It is undoubted that the protection of the function of the National Assembly as a constitutional control body represents public interest of very particular importance, but the contested provision, by imposing full-fledged restriction even on the peaceful and justifiable assemblies, shows no effort for balancing the conflicting legal interests in consideration of specific circumstances. Hence, the balance of interests is hardly achieved. In consequence, the instant provision breaks the rule against excessive restriction by overly regulating the freedom of assembly and therefore is in violation of the Constitution.

3. Concurring to Dissenting Opinion of One Justice

Insofar as the official duties of the National Assemblymen are not obstructed, the people's freedom of speech should be allowed not only in the vicinity of but also within the National Assembly.

4. Dismissal Opinion of One Justice

It is not that the challenged provision bans assemblies and demonstrations within the boundary of the National Assembly building. In the area within the boundary of the National Assembly building, the autonomy of the management authority over self-regulated order takes precedence over the intervention of public power. Therefore, the provision at issue does not apply to some of the complainants who held assembly within the boundary of the National Assembly, and their complaint challenging the constitutionality of the said provision is not justiciable since it involves a law not applicable to the underlying case.