NHRC presents written opinion to the Constitutional Court relating to case in which inmate was bound in restraining devices continuously for 466 days
In relation to the case reviewing the constitutionality of using restraining devices, a case raised by Cheong-song Correctional Institution inmate Jeong, 40, on 5 March 2001, the National Human Rights Commission (NHRC) presented a written opinion to the Constitutional Court stating: “the long-term use of leather ropes (422 days) and metal handcuffs (466 days) for reason that there is concern as to the possibility of escape or self-injury constitutes a violation of the Right to Personal Liberty and Personal Integrity and the Right to Pursuit of Happiness.”
This case began in February 2000, when Mr. Jeong—on trial at the Gwangju District Court—and 2 other accomplices escaped, injuring a prison officer with a deadly weapon in the process. Jeong was apprehended again on 7 March 2000 and returned to Gwangju Correctional Institution. From the day of his re-arrest until 2 April 2001, he was restrained with leather ropes and metal handcuffs. Even after Jeong’s transfer to Mokpo Correctional Institution on 2 April 2001, the Mokpo Correctional Institution bound him in leather ropes and handcuffs. Thus, Jeong came about to file a complaint against the wardens of Gwangju and Mokpo Correctional Institutions in December 2001.
The NHRC rejected Jeong’s petition in compliance with the related provision of the National Human Rights Commission Act (NHRCA, article 32; clause 1: paragraph 5), which stipulates that “In cases where at the time when a petition is filed to the Commission, with respect to the facts causing the petition, a trial at a court or the Constitutional Court, a criminal investigation by an investigation agency or a procedure for the relief of rights under any other Act is in progress or terminated, the Commission shall reject the petition.”
However, in keeping with article 28: clause 2 of the NHRCA, which stipulates that “In case a trial with respect to matters investigated or dealt with by the Commission is pending, it may, if requested by a court or the Constitutional Court or if deemed necessary by the Commission, present the opinions on de facto and de jure matters to the competent division of the court or the Constitutional Court,” the NHRC submitted a written opinion to the Constitutional Court.
The NHRC-presented opinion stated: “Even if a person is an inmate, human dignity and value is an inborn, inalienable and inviolable right. Even in exceptional circumstances where individual rights are inevitably restricted, as in the case of a prison inmate, according to article 37: clause 2 of the Constitution, no essential aspect of freedom or rights shall be violated by such restrictions, and such restrictions imposed by law must be kept at a minimum.”
The NHRC opinion focused on the following two points: 1) the fact that Jeong was forced to wear handcuffs and be bound for a long period of time and 2) because the prison authorities did not remove the restraining devices even once during the first 26 days, Jeong could not freely wash, eat or sleep much less carry out normal physiological activity. Such conduct constitutes an infringement of articles 10 (Dignity, Pursuit of Happiness) and 12 (Personal Liberty, Personal Integrity) of the Constitution of the Republic of Korea, article 5 of the Universal Declaration of Human Rights (“No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment,”) and article 10 of the International Covenant on Civil and Political Rights (All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.)
The NHRC opinion also stated that: 1) the continuous use of restraining devices on Jeong for 466 days constitutes not only an infringement of criminal law, but also an unconstitutional measure that has no grounding in any Korean law; 2) the use of leather ropes to bind the entire upper half of an inmate’s body falls under, in actuality, the purview of torture; 3) when the use of restraining devices is unavoidable, such use should conform to the principle of supplementary measures as well as the principle of proportionality, should not be used except as a last resort, and should strictly follow the law. The NHRC stated that it would be hard to see Jeong’s case, however, as one in which restraining devices were used purely for the purpose of preventing escape and self-injury.
Although it is inevitable that certain rights and freedoms may be limited for reason of the exceptional circumstance of being an inmate held in custody; however, basic rights guaranteed by the Korean Constitution must be observed as much as possible. Even when laws limit the free exercise of rights, it is not permissible to restrict rights at levels that contravene the principle of prohibiting e xcessiveness, and reasonable measures as well as the minimization of harm should be sought.
