The legal nature of the electronic monitoring system under the Act on the Electronic Monitoring of Specific Sexual Offenders (=Security Measures) and the existence of the unconstitutionality of such system

The electronic monitoring system under the Act on the Attachment of Electronic Monitoring of Specific Sexual Offenders is a kind of security measure aimed at protecting citizens from sexual crimes by taking additional measures to track their behavior and protect people from being attached to an electronic device to verify their location through recidivism and character and behavior correction. In full view of the purpose and character of the electronic monitoring system, the provisions and purport of the aforementioned Act regarding the operation thereof, etc., the electronic monitoring system is distinguishable from punishment, which is a post-disposition that compels the responsibility of criminal offenders for the main purpose of responding to the crime, and its inherent nature is different from that of punishment, and thus, the same does not violate the principle of res judicata even if the above Act provides that an attachment order shall be executed after the completion of the execution of punishment. Furthermore, insofar as the above Act provides for flexible monitoring system within the reasonable extent to achieve its purpose, measures to minimize infringement of fundamental rights of the electronic device subject to attachment, it cannot be deemed that it is an excessive restriction of the use of the electronic monitoring device and its fundamental rights to prevent recidivism of the electronic device during which the person subject to attachment was placed at night, as well as an excessive restriction on the use of the electronic device.

Articles 1, 5(1), and 9 of the Act on the Electronic Monitoring of Specific Sexual Offenders; Articles 11(1), 13(1), and 37 of the Constitution of the Republic of Korea

Supreme Court Decision 2009Do1947, 2009Do5 Decided May 14, 2009 (Gong2009Sang, 954)

Defendant

Defendant and the respondent for attachment order

Attorney Kim Jae-sik

Seoul High Court Decision 2009No1014, 2009 Jeonno16 decided June 18, 2009

The part of the judgment of the court below regarding inclusion in the number of detention days before sentencing is reversed. The remaining appeal against the judgment of the court below is dismissed.

1. The defendant and the respondent for an attachment order and the public defender's grounds of appeal are examined together.

A. Defendant case

(1) Examining the adopted evidence of the first instance judgment maintained by the lower court in light of the record, the lower court is justifiable to have determined that the robbery and rape of the Defendant and the victim of the person who requested an attachment order (hereinafter “Defendant”) had been completed, and it did not err by violating the rules of evidence, contrary to what is alleged in the grounds of appeal.

(2) In addition, in full view of all the circumstances indicated in the records, such as the motive, process, means and method of the Defendant’s commission of each of the instant crimes, and the act before and after the commission of the crime, it is difficult to deem that the Defendant had a very serious mental problem or character defect that can be evaluated as equal to the original mental disorder, and that the Defendant reached each of the instant crimes in the state of mental and physical disorder. Therefore, the allegation in the grounds of appeal

(3) In addition, comprehensively taking account of the Defendant’s age, character and conduct, environment, family relationship, motive, means, and consequence of the crime, etc., the first instance judgment maintained by the lower court that sentenced the Defendant to 20 years of imprisonment is not deemed to be extremely unfair, and thus, the allegation in the grounds of appeal on this point is rejected.

B. As to the attachment order case

(1) The electronic monitoring system under the Act on the Attachment of Electronic Monitoring of Specific Sexual Offenders (hereinafter “instant Act”) is a kind of security measure aimed at protecting citizens from sexual assault crimes by taking additional measures to track their behaviors to re-socialize through recidivism and correcting character and behavior (see Supreme Court Decision 2009Do1947, 2009Do55, May 14, 2009).

In order to faithfully examine the purport of the electronic monitoring system as above, the Act of this case allows a public prosecutor or judicial police officer to issue an order to attach an electronic device to prevent recidivism and to correct character and behavior of the person subject to attachment, including “the restriction on outing out of a specific time period, such as night, prohibition of access to a specific area and place, prohibition of access to a specific person including a victim, and completion of a sexual assault treatment program,” etc. In addition, the Act on the Attachment Order provides that a judge may issue a search and seizure warrant issued by a judge where the public prosecutor or judicial police officer inspects the data received from the electronic device of the person subject to attachment for the purpose of minimizing the infringement of fundamental rights following the attachment order to prevent recidivism and rectify character and behavior while it is used as investigation or trial materials on charges of sexual crimes committed by the person subject to attachment, except where the probation officer uses them for review on the provisional cancellation and cancellation of the attachment order pursuant to Article 5 of the Act on the Probation, etc., and where the public prosecutor or judicial police officer peruses or inquiress such data for a complete period of recidivism.

In full view of the purpose and nature of the electronic monitoring system, and the content and purport of the provision of the Act on the Operation thereof, the electronic monitoring system, a type of security measure, is distinguishable from the punishment, which is an ex post facto measure to enforce the liability for the principal purpose of responding to the person who committed the crime, and its nature differs from that of the punishment, and thus, the principle of res judicata regarding the punishment is not applied. Thus, even if the Act stipulates that the attachment order shall be executed after the completion of the execution of the punishment, it does not violate the principle of res judicata. Furthermore, as long as the Act provides measures to minimize the infringement of fundamental rights of the person subject to attachment while flexibly operating the electronic monitoring system to the reasonable extent to achieve the purpose of the Act, it cannot be deemed as an excessive legislation that excessively limits the fundamental rights of the person subject to attachment by using the electronic monitoring system only as a means to monitor sexual offenders whose punishment has been completed, as alleged in the grounds of appeal, it does not constitute an excessive legislation that excessively restricts the fundamental rights of the person subject to attachment. Moreover, the Act of this case does not essentially restrict the freedom to prevent recidivism of the electronic device from being imposed at night.

Therefore, all of the grounds of appeal on the unconstitutionality of the law of this case cannot be accepted.

(2) It is too excessive that the period of the attachment order to the Defendant is ten years, which is the maximum period permitted by the Act of this case, and that it is improper to impose restrictions on outing out of the time zone irrelevant to the time zone of each of the crimes of this case, as it was first asserted in the final appeal, and thus, it cannot be a legitimate ground of appeal, and even if examining ex officio, it does not seem that the attachment order to the Defendant is too excessive or that the imposition of compliance is unreasonable. Therefore, the ground of appeal on this part is without merit.

2. The decision shall be made ex officio;

According to the records, the court below dismissed the defendant's appeal and included only part of the detention days before the court of first instance in the penalty sentenced by Article 57 (1) of the Criminal Act, pursuant to the provision that "the detention days before the judgment is rendered shall be included in imprisonment, imprisonment without prison labor, imprisonment without prison labor, fine or minor fine, or detention."

However, the Constitutional Court declared that Article 57 (1) of the Criminal Act is unconstitutional (the Constitutional Court Order 2007Hun-Ba25 delivered on June 25, 2009) and therefore, the decision of the court below, which included only a part of the detention days before the sentence of the court below, cannot be maintained.

3. Conclusion

Therefore, the part of the judgment of the court below regarding the calculation of the number of detention days prior to the pronouncement of the judgment shall be reversed, and this court shall directly decide under Article 396 of the Criminal Procedure Act, and since the number of detention days prior to the pronouncement of the judgment shall be included in the calculation of the total number of detention days after the appeal, it shall not be separately determined regarding the calculation of the number of detention days

Justices Lee Hong-hoon (Presiding Justice)