Constitutional Court of Korea

Participatory Trial Case

[2008Hun-Ba12, November 26, 2009]

Translated by Jieun Choi (International Affairs Division)

In this case, the Constitutional Court ruled that, with respect to Article 46 Section 5 of the Act on Citizen Participation in Criminal Trials providing that the jurors' verdict and opinions shall not be binding on the court, the people's right to participate in trials is not guaranteed by the Constitution as the right to trial. The Court also found that Article 5 Section 1 of the Act that limits the scope of cases eligible for participatory trials and Section 2 of Addenda of the Act that stipulates the applicable time of the participatory trials do not violate the Constitution.

Background of the Case

The complainant was prosecuted on February 8, 2007 on charges of violating the Punishment of Violences, Etc. Act (mob assault or infliction of injury with deadly weapons or other dangerous articles) and the Control of Firearms, Swords, Explosives, Etc. Act and defamation. Convicted and sentenced to four years in prison, the complainant appealed to the Seoul Eastern District Court. With the case of appeal pending, the complainant filed a motion requesting constitutional review of Article 5 Section 1, Article 46 Section 5, and Addenda Section 2 of the Act on Citizen Participation in Criminal Trials (hereinafter the "Participatory Trial Act"), arguing that they infringed on his right to trial, right to equality, etc. When the motion was denied, however, he filed a constitutional complaint with the Constitutional Court. The provisions subject to review are as follows:

Act on Citizen Participation in Criminal Trials (Act No. 8495, enacted June 1, 2007)

Article 5 (Eligible Cases)

(1) A case enumerated in any of the following subparagraphs shall be eligible for a participatory trial (hereinafter referred to as "eligible case"): 

1. The latter part of Article 144 (2) of the Criminal Act Criminal Act(homicide in the course of committing special obstruction of public duty); the latter part of Article 164 (2) of the aforesaid Act (homicide by committing arson on present living buildings, etc.); the latter part of Article 172 (2) of the aforesaid Act (homicide by burst of an explosive object); the latter part of Article 172-2 (2) of the aforesaid Act (homicide by discharge of gas, electricity, or other utilities); the latter part of Article 173 (3) of the aforesaid Act (homicide by committing obstruction to supply of gas, electricity, or other utilities); the latter part of Article 177 (2) of the aforesaid Act (homicide by inundation of present living buildings, etc.); the latter part of Article 188 of the aforesaid Act (homicide by committing obstruction of traffic); the latter part of Article 194 of the aforesaid Act (homicide by poisoning drinking water); Article 250 of the aforesaid Act (murder, killing ascendant); Article 252 of the aforesaid Act (murder upon request or with consent); Article 253 of the aforesaid Act (murder upon request by fraud); Article 259 of the aforesaid Act (homicide by inflicting bodily injury, homicide of ascendant in the course of inflicting bodily injury); the part referring to Article 259 in Article 262 of the aforesaid Act (homicide by committing violence); the latter parts of Article 275 (1) and (2) of the aforesaid Act (homicide by abandonment); the latter parts of Article 281 (1) and (2) of the aforesaid Act (homicide by arrest or confinement); Article 301 of the aforesaid Act (bodily injury by or resulting from rape); Article 301-2 of the aforesaid Act (murder or homicide by committing rape); the parts referring to Articles 301 and 301-2 in Article 305 of the aforesaid Act (bodily injury by or resulting from sexual intercourse with, or sexual abuse to, a minor or murder or homicide by commission of sexual intercourse with, or sexual abuse to, a minor); Article 324-4 of the aforesaid Act (murder or homicide of hostage); Article 337 of the aforesaid Act (bodily injury by or resulting from committing robbery); Article 338 of the aforesaid Act (murder or homicide by committing robbery); Article 339 of the aforesaid Act (robbery and rape); Article 340 (2) and (3) of the aforesaid Act (bodily injury by or resulting from piracy and murder, homicide and rape by committing piracy); and the latter part of Article 368 (2) of the aforesaid Act (homicide by commission of aggravated destruction and damage); 

2. Article 2 (1) 1 of the Act on the Aggravated Punishment, etc. of Specific Crimes (bribery); Article 4-2 (2) of the aforesaid Act (homicide by committing arrest or confinement); subparagraph 1 of Article 5 of the aforesaid Act (loss to the national treasury); Article 5-2 (1), (2), (4), and (5) of the aforesaid Act (kidnapping and abduction); Article 5-5 of the aforesaid Act (bodily injury by or resulting from commission of robbery, robbery and rape); Article 5-9 (1) and (3) of the aforesaid Act (retaliatory crimes); Article 5 (4) 1 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (acceptance of property in breach of good faith); Article 5 of the Act on the Punishment of Sexual Crimes and Protection of Victims thereof (aggravated robbery and rape); Article 6 of the aforesaid Act (aggravated rape); Article 9 of the aforesaid Act (bodily injury by or resulting from rape); and Article 10 of the aforesaid Act (murder or homicide by committing rape); 

3. Cases specified by the Rules of the Supreme Court among cases under jurisdiction of a collegiate panel under Article 32 (1) 3 of the Court Organization Act; 

4. Cases of an attempt of, abetment, aiding, preparation, or conspiracy to commit an offense under any provision of subparagraphs 1 through 3;  

5. Cases falling under any provision of subparagraphs 1 through 4 and Article 11 of the Criminal Procedure Act, in which related cases are joined together for trial as a single case. 

Article 46 (Presiding Judge's Explanation, Deliberation, Verdict, and Discussion)

(5) No verdict and opinions under paragraphs (2) through (4) shall be binding on the court.

ADDENDA

(2) (Applicability) This Act shall apply to the first case prosecuted by the public prosecutor after this Act enters into force. 

Summary of Decision

In a unanimous opinion, the Constitutional Court declared the provision subject to review constitutional according to the following reasons:

1. Article 46 Section 5 of the Participatory Trial Act

With respect to whether the right to trials involving citizen participation is ensured as part of the right to trial, the Korean Constitution has no written regulation to guarantee thereof, unlike the United States, where the right to jury trial is guaranteed as a constitutional right under the U.S. Federal Constitution and its Amendments. The Korean Constitution only provides in Article 27 Section 1 that, "All citizens shall have the right to trial in conformity with the Act by judges qualified under the Constitution and the Act." 

Since the aforementioned right to trial by judges qualified under the Constitution and the Act mainly concerns trials by career judges, it is not to be considered that the right to participatory trial is protected by Article 27 Section 1 of the Constitution that provides for the right to trial. 

2. Article 5 Section 1 of the Participatory Trial Act

Article 5 Section 1 of the Participatory Trial Act stipulates the scope of eligible cases, which mostly involve violent crimes entailing severe statutory punishment and exclude relatively light statutory punishment such as property crimes that constitute a large portion of criminal cases. This reflects the consideration that material and personnel conditions are not so easily met from the start in preparing for trials with citizen participation, which differ from the existing criminal trials, and thus the purpose is found to be legitimate.

Furthermore, it is reasonable that, given the stated circumstances, the eligible cases are confined to felony cases whose defendants more favor citizen participation and which draw public attention, and the possibility remains that the scope of eligible cases may be extended by Supreme Court Rules, etc. after positive and empirical research to involve other crimes. Therefore, the provision is not in violation of the complainant's right to equality.       

3. Addenda Section 2 of the Participatory Trial Act

Insofar as the right to participatory trial is not guaranteed under the Constitution, whether citizen participation in trials will be allowed and specifics such as time and scope of the trials are, in general, matters of extensive legislative discretion for legislators to decide. Section 2, Addenda of the Participatory Trial Act decides the applicable time of participatory trials according to whether the case was prosecuted upon the Act's entry into force, considering the need to limit eligible cases due to workload and judicial economy, etc. Therefore, the legitimacy of the purpose is achieved.   

Furthermore, the adjudication procedures of courts are initiated and the offender assumes the status of a party to the case, namely defendant, upon the filing of prosecution by prosecutors. By all accounts, this provision that uses the standard of the time of prosecution in deciding the applicability of the Act is considered a reasonable means to serve the purpose. Therefore, this provision does not infringe on the equality right of the complainant either.