South Korea: News report on constitutional court

Constitutional Court upholds the death penalty
From: The Hankyoreh, 27 February 2010

The ruling is expected to revive a debate over the death penalty as South Korea has not carried out a death sentence in 13 years and is classified as “abolitionist in practice”

The Constitutional Court ruled yesterday the death penalty system as prescribed by South Korea’s criminal code is not in violation of the Constitution. However, since six of the nine judges expressed the view that the currently operating system presents misuse and abuse concerns that should be addressed, observers are predicting a revival in the debate over revision and abolition of the death penalty.

In its ruling Thursday on the constitutionality of Article 41 in the Criminal Code, containing clauses regarding the death penalty, the Constitutional Court ruled five to four that the article is constitutional. The request for a constitutionality review was submitted earlier by Gwangu High Court. The court stated that the death penalty system “is a type of punishment anticipated by the Constitution.” It also said, “We cannot view the death penalty system as being in violation of Article 10 of the Constitution specifying human dignity and values, and the individual right to life is also included in the limitations on basic rights as specified by Article 37, Item 2 of the Constitution.”

The court added, “The public good, including the protection of the lives of citizens through crime prevention and the realization of justice, is not lesser than the protection of the right to life of a person who has committed a heinous crime.”

In contrast, the four dissenting judges said, “With the right to life, limitation means taking away an entire life, and it is therefore an absolute fundamental right that cannot be taken away by the Constitution.” They also expressed the view that the death penalty system should be abolished through measures such as the implementation of life imprisonment without possibility of parole.

Among the judges who ruled in favor of the death penalty’s constitutionality, Justices Min Hyeong-ki and Song Doo-hwan also suggested improvements to the current system. They stated, “It would be desirable to reduce the crimes subject to the death penalty and to amend or abolish the system through legislation rather than through a constitutionality trial.”

Previously, Gwangju High Court requested a constitutionality ruling from the Constitutional Court in September 2008 after receiving a request from an individual, identified by the surname “Oh,” who was charged with murdering four travelers in the costal waters off Boseong County in South Jeolla Province. The court’s decision over the death penalty is its first in over thirteen years. In November 1996, it issued a seven to two ruling affirming the constitutionality of the death penalty.

Currently, there are 57 prisoners in South Korea with confirmed death sentences, while there are two cases, including Oh’s, where the cases are pending in lower courts following a death sentence in the first trial. Ever since carrying out the execution of 23 people in late 1997, however, South Korea has not carried out the death penalty in twelve years and was classified by Amnesty International as “abolitionist in practice.”

In a statement on the Constitutional Court ruling Thursday, the Korean Bar Association called abolition of the death penalty “not simply an improvement of the criminal justice system but an index symbolizing the prestige of the state.”

The Korean Bar Association statement also said, “It is highly regrettable that the Constitutional Court could not go so far as to issue ruling of unconstitutionality when South Korea has been classified as an abolitionist country in practice.”