“Withheld Correspondence must be delivered to inmates at time of release”
NHRC issues recommendation for reform of related articles in the enforcement decree and reform of the correspondence delivery system
Regarding the case in which ChungSong Social Protection House 2 (ChungSong 2) inmate Mr. Lee claimed “that freedom of communication is violated when a warden disallows delivery of an inmate’s mail and then discards it” and filed a complaint against the warden of ChungSong 2 in December 2001, the National Human Rights Commission issued a recommendation for 1) the parts of the Enforcement Decree (article 62: clause 3) of the Criminal Administration Act that run counter to the original law to be reformed, 2) correspondence withheld from inmates to be stored for a given time period so as to be returned to the inmate at time of release, and 3) reforming the system governing inmates’ correspondence to guarantee, as much as possible, the freedom of communication, by making clear and precise regulations as to reasonable cause for withholding correspondence such that disallowing delivery of mail does not rest on the arbitrary interpretation and judgment of individuals.
The case originated when Mr. Lee, then an inmate at ChungSong 2, had tried to send a fellow inmate, Mr. Kim, a letter regarding designation of legal counsel, but was denied permission from the warden. After transfer to ChungSong2 in December 2001, Mr. Lee had tried to write to human rights organizations about the fact that he was disallowed communication, but the ChungSong 2 warden disallowed his letter on the grounds that “the letter informs those on the outside about the situation inside the ward and is inappropriate for edification purposes,” and this prompted Mr. Lee to file a complaint with the NHRC.
The NHRC investigation found that Article 18-2: Clause 1 of the Criminal Administration Act stipulated that “A prisoner may correspond with another person with permission of the warden, and the warden shall grant permission unless there exists any specially improper reason for the edification or treatment of prisoners.” On the other hand, clause 3 of the same article states that “A correspondence whose delivery is disapproved by the warden shall be destroyed. Provided, That in case where deemed improper to destroy it, it may be delivered to the principal when he is released.”
Article 62: clause 3 of the Enforcement Decree of the Criminal Administration Act stipulates that “where the contents of any letter censored – where letter contents are in conflict with the laws and subordinate statutes, where it attempts to break out of prison, destroy evidence or ship in disallowed goods, where it spreads obviously false facts with respect to the treatment of prisoners and the current operation of a correctional institution, etc. and where it is feared to seriously undermine the safety and order of a correctional institution – the letter is not permitted to be mailed out and shall be disposed of after serving a notice thereof to the prisoner concerned.”
The Ministry of Justice replied that article 62: clause 3 of the Enforcement Decree “it is not worth holding onto disallowed correspondence; even worse, there is no alternative to destroying such letters. Supposing we did hold the disallowed letters for the prisoners and the family filed a request for the prisoners’ personal belongings to be sent home, then that would bring about leaking of such contents to the outside world.”
However, because 1) the mark or stipulation of being a disallowed letter itself is ample for bringing about the desired effects, 2) in cases where correspondence will be destroyed, there is no way to object to the disallowal of delivery and the inmate’s situation for contesting the legality and filing for a remedy or other follow-up measures is too disadvantageous to carry out, the NHRC found that “indiscriminate destruction of disallowed correspondence unfairly restricts inmates freedom of communication with the outside.”
In particular, the NHRC noted that the Criminal Administration Act article 18-2: clauses 1 and 2 sets forth the principle that inmates’ correspondence be allowed, and in clause 3, in cases where delivery is disallowed, that though the correspondence can be disposed of, the clause also provides for delivery to the person upon release from prison in cases where it is improper to destroy the letters.
Accordingly, the NHRC found that with regard to article 62: clause 3 (Criminal Administration Act Enforcement Decree), which stipulates that “disallowed correspondence shall be disposed of after there has been notification of the reason,” that because “the enforcement decree governs the destruction of disallowed correspondence when the original law has no stipulation relating to destruction, and because there is no room for exceptions, the enforcement decree has overstepped its authority.”
Additionally, the NHRC found that there was too much room for arbitrary interpretation by the warden of the enforcement decree paragraphs 3 and 4 (article 62: 3)—that letters can be censored “where it spreads obviously false facts with respect to the treatment of prisoners and the current operation of a correctional institution, etc.” and “where it is feared to seriously undermine the safety and order of a correctional institution” respectively—because of vagueness and noted that there was a big possibility that correspondence rights could be unjustly restricted.
