2010Hunma413 Confirmation of the unconstitutionality of installation of closed-circuit television in a solitary ward

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Attorney Park Jae-hoon

Head of Busan Detention Center

The appellant's appeal is dismissed.

1. Case summary and the object of the trial;

A. Case summary

(1) On February 18, 2010, the claimant was sentenced to imprisonment with prison labor for 10 years [the Changwon District Court 2009Dahap82, 2009Gohaphap84, 2009Gohaphap85 (combined), 2009Gohap85 (combined)]. The appellate court was sentenced to imprisonment with prison labor for 13 years on May 12, 2010 (the Busan High Court 2010No194), and the appeal filed by the claimant was dismissed on July 29, 2010 (Supreme Court 2010Do6323). The date the execution of the punishment became final and conclusive is June 21, 202.

(2) In the appellate trial, the respondent had kept safe guard of the claimant by using closed-circuit television (hereinafter “CCTV”) from May 13, 2010 to October 6, 2010, when the claimant has been transferred to a second prison of the Gyeongbukbu, the respondent had been sentenced to 13 years of imprisonment.

(3) On July 5, 2010, the claimant asserted that monitoring 24 hours by the respondent from CCTVs violates the basic rights of the claimant guaranteed under Articles 10 and 17 of the Constitution, and filed a petition for adjudication on constitutional complaint of this case.

(b) Object of adjudication;

The subject of the instant trial is whether the act of the respondent installed CCTV in a ward of the claimant and kept safe guard (hereinafter “the CCTV security act in this case”) is unconstitutional as it infringes on the claimant’s fundamental rights.

[Related Provisions]

It is as shown in the attached Form.

2. The claimant's assertion;

The CCTV security act of this case, which continuously oversees and records the applicant's large 24 hours of Japan for 24 hours, violates the excessive prohibition principle, thus infringing upon the applicant's dignity, value, and privacy as a human being and infringing upon the applicant's privacy, and the video information recorded may also be leaked and abused. Therefore, it is against the Constitution.

3. Judgment on the lawful requirements

A. On October 6, 2010, the claimant was transferred to the second prison of the North Korean Peninsula, which was after the decision of the sentence, to the North Korean Peninsula, and was transferred to the North Korean Prison on December 8, 201, and to the first prison of the North Korean Peninsula on July 13, 201, respectively. Accordingly, the respondent was transferred to the North Korean Prison.

Since the CCTV security act has already been terminated, even if it is confirmed unconstitutional, it is not helpful to remedy the claimant's subjective rights.

B. However, since the constitutional complaint system not only has the function of guaranteeing an individual's subjective remedy but also an objective constitutional order, even if the constitutional complaint does not assist in a subjective remedy, if there is a risk that such infringement will be repeated in the future, or if the resolution of the dispute is essential for the protection and maintenance of the constitutional order and thus has a significant meaning, the benefit of appeal can be recognized (see, e.g., Supreme Court Decision 91HunMa11, Jan. 28, 1992; Supreme Court Decision 4,51, 51, 56-57, Mar. 27, 1997; Constitutional Court Decision 92HunMa273, Mar. 27, 1997; Supreme Court Decision 9-1, 337, 342, etc.).

In this case, since there still remains a considerable period of time until the expiration of the period of punishment for the claimant, there is a concern that infringement of the same kind of fundamental rights of the claimant may be repeated due to the act of CCTV surveillance by another prison warden. In addition, the act of CCTV surveillance by newly establishing Article 94(1) of the Administration and Treatment of Correctional Institution Inmates Act (amended by Act No. 8728 of Dec. 21, 2007 and enforced December 22, 2008; hereinafter "the Act on the Execution of Punishment and Punishment of Correctional Institution Inmates") is likely to be more widely performed. This is an important issue related to the basic treatment of the inmates detained in the correctional institution, which has an important meaning for the protection and maintenance of the constitutional order. Accordingly, the interest of the appeal for a trial can be recognized.

4. Judgment on the merits

(a) Decision of the Constitutional Court on CCTV security in a correctional institution and the establishment of relevant regulations;

(1) In addition to the development of electronic technology, it is difficult to prevent the occurrence of a correctional accident, such as assault, disturbance, escape, suicide, etc., in a correctional institution under the judgment that it is difficult for correctional officers to prevent the occurrence of an event.

The CCTV has been introduced and installed, and without the basis of the direct law, it has been operated by the Ministry of Justice's directives and the regulations on security equipment management, which are established rules, and the regulations on legal standards.

(2) On November 1, 2004, the National Human Rights Commission of Korea (03jin971) decided that the installation of CCTV in a confinement room and surveillance of prisoners for 24 hours is a violation of human rights, and recommended the Minister of Justice to establish legal basis and standards for the CCTV, and recommended that the prison warden, etc. prepare measures to prevent human rights violations, such as restricting the scope of CCTV photographing at least until legal basis and standards are prepared.

(3) On February 2, 2005, while the legal basis for the act of CCTV surveillance was not provided, the adjudication on constitutional complaint was requested (2005Hun-Ma137). The majority opinion of five Justices in the above case judged that the act of CCTV surveillance was unconstitutional against the principle of statutory reservation. However, on May 29, 2008, the decision of constitutionality was made on May 29, 2008 because the act of CCTV surveillance was not in accordance with the principle of statutory reservation (the Constitutional Court Decision 2005Hun-Ma137, May 29, 2008; 20-1Ha, 187).

(4) The above adjudication on constitutional complaint case was wholly amended by Act No. 8728 on December 21, 2007, which was pending in the Constitutional Court. The amended penal execution Act provides for a basis provision for the safe guard of prisoners using electronic image devices, such as CCTV, to the extent necessary to prevent suicide, self-harm, escape, assault, damage and other acts that harm prisoners' lives and bodies or harm the safety or order of facilities (hereinafter "suicide, etc."). Article 94(1) of the amended penal execution Act provides that "a prison officer may keep safe guard of prisoners or facilities using electronic image devices only when the risk of suicide, etc. is high."

From December 22, 2008, it was enforced.

B. Reasons for the security of CCTV of this case

(1) On February 11, 2010, the claimant was detained on June 26, 2009 and was sentenced to imprisonment for 20 years from the public prosecutor at the trial of the court of the first instance. On February 12, 2010, the head of the Tong Young-gu Office was sentenced to imprisonment for 20 years from the public prosecutor at the trial of the court of the first instance, which was under confinement in the Tong Young-gu Office. In light of the fact that the claimant had shown the appearance of “nicking, Sicking, Sicking.................., it was determined that the above old type might cause a corrective accident due to a heart, etc., and that the requester was designated as one subject to the daily heavy examination pursuant to Article 16(1) of the Guidelines for the Safe Guard Affairs (No. 725 of the Ministry of Justice’s Amendment Directive of August 31, 2009

(2) On February 18, 2010, the claimant was sentenced to imprisonment with prison labor of 10 days in the above court, and appealed, and was transferred to the Busan detention house on February 25, 2010. The respondent decided to manage the claimant transferred as the subject of daily intensive inspection as before, and designated the claimant to the ward in 6 lower 9 units. The claimant requested so-called "I want to live together with other prisoners in the same nature and it is difficult for them to live together with others due to the present pending trial and it is difficult for them to have the mind for them," and refused to enter the so-called so-called so-called "I want to live in so-called so-called "I wish to live in so-called for being mixed with others," and the execution of the disciplinary measure was completed on March 6, 2010 by refusing to enter the designated ward for the same reason and was completed on March 15, 2010; the disciplinary measure was completed on March 20, 2010.

(3) From May 2, 2010, the respondent was admitted to the 8 lower-class room, the 8 lower-class room, which is a single ward, and the CCTV did not keep safe guard. On May 12, 2010, the appellate court determined on May 12, 2010 that the applicant is highly likely to cause serious anxietys such as suicide, etc. due to the increase in sentence due to the increase in sentence sentenced to 13 years of imprisonment, and determined on May 13, 2010, Article 94(1) of the Punishment and Execution Act and guidelines for safe guard duty.

Pursuant to Article 16(3), the CCTV security act of this case was commenced, and a video protection register of prisoners in a ward that records the time of safe guard, safe guard, special movement, etc. was prepared for the requester.

C. Whether the principle of excessive prohibition is observed

(1) Limited fundamental rights and limitations

Even if it is necessary to prevent correctional accidents and maintain the order of confinement by efficiently monitoring convicted prisoners with high risk of correctional accidents, such as suicide and self-harm, the act of CCTV surveillance, such as the instant case, is restricted to the privacy and freedom of individuals by continuously monitoring and video recording their daily lives for 24 hours, and thus, it shall be conducted to the minimum extent necessary pursuant to Article 37(2) of the Constitution (see, e.g., Supreme Court Decision 2005Hun-Ma137, May 29, 2008; 20-1Ha, 187, 200).

(ii)the legitimacy of the objectives and the suitability of the means;

To the extent necessary to prevent suicide, self-harm, escape, violence, damage and other acts of harming the life and body of prisoners or the safety or order of the facility, correctional officers can keep safe guard using electronic devices, and keeping safe guard of prisoners in a ward by electronic visual devices is limited to the high risk of suicide, etc. (Article 94 (1) of the Execution of Punishment Act).

In this case, the respondent was sentenced to a significant increased sentence of punishment by the appellate court during the time of the claimant's inquiry, and judged that there is a high possibility of attempting to commit suicide, etc. as a result of the above-mentioned deliberation, and the purpose of the CCTV security act was legitimate as well as to protect the safety of his/her life and body. Since there is a time and spatial gap in preventing the correction of suicide, self-injury, etc. by the surveillance by the correctional officer's pilot line alone, the CCTV has been installed to fill this problem.

It is appropriate to observe prisoners on a regular basis.

(iii)the minimum extent of damage;

The Enforcement Rule of the Punishment Act and the Enforcement Rule of the Punishment Act provide various regulations on the installation and operation of CCTV in order to minimize the damage suffered by prisoners due to CCTV safe guard.

In other words, in order to prevent suicide of prisoners, the Act on the Execution of Punishment has to record the number of prisoners in a ward, hours of safe guard, subjects of safe guard, etc., and in case of female prisoners, female correctional officers have to keep safe guard (Article 94(2)). In this case, it has clearly stated that the human rights of prisoners under safe guard should not be infringed (Article 94(3)), and necessary matters concerning the type of electronic equipment, place of installation, method of use, management of recorded records, etc. are prescribed by Ordinance of the Ministry of Justice (Article 94(4)).

Accordingly, the Enforcement Rule of the Act on the Execution of Punishment provides that "a device that continuously installs visual data processing devices such as CCTV in a certain space and receives images of a person or objects, and the voice, sound, etc. incidental thereto, or transmits them through a wired or wireless network," and provides for the installation and operation of a central control office that comprehensively manages various electronic equipment and the restriction on outside persons' access thereto (Article 161(1) and (2). In the event a camera is installed in a ward, the Enforcement Rule of the Act limits each way of the camera or limits the installation and operation of a camera to prevent any strings from being exposed or installing a toilet shielding facility (Article 162(3)) so that the installation and operation of CCTV is relatively detailed.

According to the records of this case, the respondent shall keep the CCTV of this case in accordance with the above law.

In order to minimize restrictions on the privacy and freedom of the claimant's privacy due to the act, CCTV camera was installed in which the specific part is expanded or it is impossible to take a close part because of the lack of function to transfer the upper left and right, and the CCTV camera was installed, limited to each degree of CCTV camera, and it was impossible for the prisoner to observe to the extent of the secret part of the privacy, such as the situation where the prisoner solves the physiological problem or desires to do so by attaching the paper of the lusive material, etc. In order to prevent unauthorized outflow of the video information, the "Operation Plan for Video Protection System" for the preservation, management and operation of the video information is created and operated.

In accordance with such measures, the claimant is guaranteed the minimum private space that can lead to the private life of himself/herself only within his/her ward, and there is also an institutional device to prevent the leakage or misuse of video records.

On the other hand, even if other means to prevent suicide, other than CCTV safe guard acts, such means should not be deemed to be concurrent at the same time, and in particular, in cases where suicide is attempted in the reality that it is not possible to secure human resources to defend the requester on a regular basis, it is difficult to find any more effective methods than the method of continuously observing the applicant's behavior by installing CCTV and continuously observing the applicant's behavior.

Therefore, the CCTV security act in this case must meet the minimum requirements for damage.

(4) Balance of legal interests

A suicide accident in a correctional institution not only results in a significant result of a prisoner's own loss of life, but also has a direct and negative impact on other prisoners, and correction.

It is highly necessary to prevent it in that it may cause uncertainty to the overall facility or correctional policy.

Even if the CCTV security act of this case seriously restricts the privacy of the claimant, it cannot be said that the public interest to protect the life and body of the claimant and to protect the safety and order of the correctional institution is smaller than that of the claimant by regularly observing the behavior of the claimant, and therefore, it is also deemed that the balance of the legal interest is satisfied.

(5) Sub-decisions

Therefore, it cannot be said that the CCTV security act in this case violated the principle of excessive prohibition, thereby infringing the privacy and freedom of the claimant.

5. Conclusion

Therefore, the appellant's appeal is dismissed as it is without merit. It is so decided as per Disposition by the assent of all participating Justices on the bench.

September 29, 2011

Chief Justice Lee Han-hoon

Justices Kim Jong-dae

Justices Park Jong-chul

Movement of Justices

Justices Jo Young-young

Justices Song Du-hwan

Justices Park Han-chul

Justices Lee Dong-dae et al.

[Attachment]

Relevant provisions

Administration and Treatment of Correctional Institution Inmates Act

Article 94 (Surveillance by Electronic Equipment) (1) A correctional officer may keep safe guard of prisoners or facilities using electronic devices within the necessary scope in order to prevent suicide, self-harm, escape, assault, damage and other acts to injure life and body of prisoners or security or order of the institution (hereinafter referred to as "suicide, etc."): Provided, That electronic image devices may be used for the safe guard of prisoners in a ward only when suicide, etc. is highly likely to occur.

(2) Where prisoners in a ward are kept safe by electronic image equipment under the proviso to paragraph (1), they shall record personnel under safe guard, hours for safe guard, objects of safe guard, etc. In such cases, if a female prisoner is a female prisoner, a female correctional officer shall

(3) In cases of keeping safe guard under paragraphs (1) and (2), the attention shall be made so as not to infringe on human rights of prisoners under safe guard.

(4) Matters necessary for the type, place and method of installation of electronic equipment, management of recorded records, etc. shall be prescribed by Ordinance of the Ministry of Justice.

Enforcement Regulations of the Administration and Treatment of Correctional Institution Inmates Act

Article 160 (Types of Electronic Equipment) Where a correctional officer keeps safe guard of prisoners or facilities pursuant to Article 94 of the Act, electronic equipment that can be used for the following purposes shall be as follows:

1. Image data processing equipment: Continuous installation in a certain space to receive the images of a person or object, and the voice, sound, etc. incidental thereto, or to transmit them through a wired or wireless network;

institution.

2. Electronic monitoring apparatus: Devices continuously installed in a certain space to reduce and transmit a movement of people or things, using light, temperature, hydrogen, pressure, etc.

3. Electronic alarm: A series of mechanical devices identifying the location of people or detecting the course of movement by using the principle of transmitting and tracking radio waves;

4. Goods inspection equipment (classified into fixed goods inspection equipment and portable metal detection equipment);

5. Equipment for collecting evidence: Equipment necessary for collecting evidence, such as digital camera, tape recorder, video camera, and drinking measuring apparatus;

6. Other electronic equipment determined by the Minister of Justice.

Article 161 (Operation of Central Control Office) (1) Each warden shall establish and operate a Central Control Office in which systems capable of integrated management of various electronic equipment are installed for the efficient operation of electronic equipment.

(2) Each warden shall restrict outside persons' access to the central control office: Provided, That this shall not apply to cases of conducting inspections, witness inspections, and other specially permitted by the warden.

(3) Matters necessary for the integrated management system for electronic equipment, operation and management of the central control office, etc. shall be determined by the Minister of Justice.

제162조(영상정보처리기기 설치) ① 영상정보처리기기 카메라는 교정시설의 주벽(周壁)ㆍ감시대ㆍ울타리ㆍ운동장ㆍ거실ㆍ작업장ㆍ접견실ㆍ전화실ㆍ조사실ㆍ진료실ㆍ복도ㆍ통용문(通用門), 그 밖에 법 제94조 제1항에 따라 전자장비를 이용하여 계호하여야 할 필요가 있는 장소에 설치한다.

(2) A central control office, an official room, and other correctional officers shall keep safe guard of monitors of video information processing devices.

the Corporation shall be established at an appropriate place.

(3) Where a camera is installed in a ward, each limit of a camera shall be limited, or a toilet shielding facility shall be installed, so as not to photograph a lower half of the body that sees the sides.

(1) Where a correctional officer keeps safe guard of prisoners in a ward pursuant to Article 94 (1) of the Act, he/she shall record the personal information of the prisoners under guard and the details of major safe guard individually in the video line of prisoners under attached Form 9: Provided, That where he/she keeps safe guard of prisoners in a ward of a heavy guard facility using electronic equipment, only the whole status of prisoners under guard, etc. may be recorded in the central control room, etc.

(2) Where a correctional officer becomes aware of matters to be referred to in the treatment and management of prisoners during the safe guard under Article 94 (1) of the Act, he/she shall record the summary in a register of confinement and report it to the warden without delay.

Guidelines for Safe Guard (No. 725 of the Ministry of Justice Directive No. 725 of August 31, 2009)

A prisoner who falls under any of the following subparagraphs (a prisoner requiring special attention) shall carefully observe the relevant situation, and when he/she discovers special circumstances, he/she shall pay due attention to safe guard and treatment, such as reporting to his/her superior immediately:

1. Persons subject to strict management;

2. An inmate on death row or a person sentenced to death penalty;

3. A person whose sentence or content of judgment is deemed significantly more unfavorable than his/her own expected.

4. Easying uneasiness, such as showing an uneasiness, or defensing other persons;

person who has been

5. A person who is in danger of, or indicates that he/she is in excess of, private placement after being informed of a imprue by his/her family members, patriotic persons, etc.;

6. A person who attempts to escape from the safe guard of an employee due to his/her behavior or speech or behavior;

7. A person who indicates an excessive reduction of liability for a crime due to his/her own criminal act.

8. A person who shows a mental disorder, or is weak for a mental disease;

9. A person who, as a socially well-known person, seems to have seriously damaged his/her own speech or behavior and who shows his/her own speech or behavior;

10. Other persons who appear to commit special acts.

(1) Where a person falling under any subparagraph of Article 15 falls under any of the subparagraphs of Article 15 and requires a intensive inspection in consideration of the history of correctional accidents, the status of cardiopulmonary stability, etc., he/she shall be designated as a person subject to a daily intensive inspection and make it easy for correctional officers, etc. who work for night time to easily understand by attaching a daily intensive inspection mark at a specified point outside of the relevant ward from the date of birth to the weather of the following day.

(2) Where designation and management is made as a person subject to intensive inspections under paragraph (1), special care shall be provided to prevent prisoners from being aware of such designation.

(3) Where it is particularly necessary for the prevention of correctional accidents, a person subject to face-to-face warning (referring to the observation by a correctional officer or a prison guard of all his/her behavior in the face of a prisoner; hereinafter the same shall apply) or confinement of him/her in a ward where electronic image equipment is installed shall be installed.