[edit] Supreme Court Decision 2001Da51466 delivered on October 26, 2001 [Compensation for Emotional Distress]

【Main Issues】

[1] The permitted scope of physical examinations on the persons detained in a detention room

[2] Whether a strip search on the suspect detained in a detention room is illegal as such examination exceeds the permitted scope of the physical examination

【Summary of Decision】

[1] The Criminal Administration Act allows physical examinations of the arrestees confined in the detention room to attain the purpose of detention, to prevent accidents in advance, including suicide and self-injury of the detainees, and to maintain order in the detention room. In light of the foregoing, not all physical examinations are allowed without any restrictions. Rather, such physical examinations should be conducted to the minimum extent necessary to effect the above purposes, and in such reasonable manner that fundamental rights of the detainees may not be infringed upon due consideration of the detainees' honor or shame. In particular, such method of physical examination as having the detainees take off the entire clothing and repeat sitting down and standing up may severely damage the detainees' honor or make the detainees feel ashamed. Thus, such method may be allowed only if there is a reasonable ground to believe that the detainees are concealing certain items bringing in or the possession thereof is prohibited, such as weapons, and to believe that it is difficult to find such concealed items in any other methods(including observation from the outside, examination by patting down with the hand, or having the detainees present their undergarments after taking off outer garments and putting on gowns.

[2] Since the detainees in this case were women arrested during the act of distributing to the public certain printed materials of which distribution was prohibited under the Election of Public Officials and Prevention of Election Malpractices Act, the possibility was minimal that they were concealing those items bringing in or the possession thereof was prohibited, including weapons, in secret parts of their bodies, at the time of the arrest. Although there were circumstances causing to suspect that the detainees might have received weapons or other prohibited items from their attorney or other suspects at the interview with an attorney following the arrest, considering the procedure of the above interview with the attorney and the structure of the room where the interview took place, even if the detainees had received any weapons or other prohibited items during the interview, there was a minimum of the possibility that they could have concealed such items in the secret parts of their body before they were re-confined in the detention room. It is held, therefore, that, at the time of the physical examination at issue in this case, there was no reasonable ground sufficient to believe that it was difficult to find any concealed items in any other methods, and that the physical examination conducted by having the detainees take off the entire clothing and repeat sitting down and standing up was unlawful as exceeding the permitted scope thereon.

【Reference Provisions】 [1] Article 10 of the former Criminal Administration Act(amended by Act, Law No. 6038 of December 28, 1999, also refer to Article 17-2 of the current Criminal Administrative Act), and Article 2 of the State Compensation Act / [2] Article 10 of the former Criminal Administration Act(amended by Act, Law No. 6038 of December 28, 1999, also refer to Article 17-2 of the current Criminal Administrative Act), and Article 2 of the State Compensation Act

Article 10 of the former Criminal Administration Act(amended by Act, Law No. 6038 of December 28, 1999) (Physical Examination, etc.) (1) Upon arrival of a new detainee, his or her body and clothes shall be examined and photograph and fingerprints shall be taken.

(2) As to the detainee already under confinement, in case where the warden deems necessary, the detainee's body and clothes may be examined and photograph and fingerprints may be taken.

(3) In case of a search or examination of a female detainee on her body or clothes, a female detention officer shall undertake this duty.

Article 2 of the State Compensation Act (Liability for Damages) (1) When public officials inflict damages on other persons intentionally or negligently in the course of performing their official duties in violation of the provisions of the Acts and subordinate statutes or when they are liable for the compensation for damages under the Guarantee of Automobile Accident Compensation Act, the State or local governments shall remedy such damage under this Act: Provided, That when military personnel, employees in the armed forces, police officials or homeland reserve forces are killed in action or in the performance of their duties or injured in the course of performing their duties in connection with combat training or performance of other official duties, or in the facilities and motor vehicles, vessels, aircraft and other forms of transportation, all of which are used for national defense or the maintenance of public safety, they or their bereaved family shall not claim damages under this Act or the Civil Code, if they can claim an accident compensation, bereaved family's pension, wound annuity, etc., pursuant to other Acts and subordinate statutes.

(2) In the case of the main text of paragraph (1), if such damage has been caused by intentional act or gross negligence of the public official concerned, the State or local governments may demand reimbursement from the public official concerned.

【Plaintiffs, Appellants】 Plaintiff 1, and 2 others(Kwon Doo-sub, Counsel for plaintiffs-appellants)

【Defendant, Appellee】 The Republic of Korea

【Court of First Instance】 Seoul District Court Judgment 2000Gahap35295 delivered on November 10, 2000

【Court of Second Instance】 Seoul Hight Court Judgment 2000Na59403 delivered on July 6, 2001

【Disposition】 The Judgment of the court below shall be reversed and the case shall be remanded to the Seoul High Court.

【Reasoning】 The grounds for appeal are examined as follows:

1. The court below duly acknowledged the following facts:

A. At or around 00:20 on March 20, 2000, the plaintiffs were arrested during the act of distributing to the public certain printed materials stating that the "Korean Democratic Confederation of Trade Unions has decided to support a candidate of the Democratic Labor Party from Joongwon-gu, Sungnam City, who will run for the general election to constitute the National Assembly, which will take place this year." on the street in a residential neighborhood located at Sungnam-dong, Joongwon-gu, Sungnam City, for the violation of the Election of Public Officials and Prevention of Election Malpractices Act, and were investigated as suspects at the Sungnam Nambu Police Station.

B. At or around 04:30 on the same day, Policewoman Park Hyun-ok, a female police officer belonging to the above police station, attempted to examine the plaintiffs' bodies in the physical examination room within the police station in order to detain them in the detention room. However, the plaintiffs protested, stating "Why do we have to go to the detention room? We should go to the protection room because we are innocent," and firmly refused the physical examination. As the examination procedure was delayed due to the plaintiffs' refusal as above, Policewoman Park Hyun-ok talked to the detainees, "I have a newborn baby at home, but I can go home only after completing this physical examination. Please cooperate." At that point, the plaintiffs took off their underwear and belts by themselves except for the underpants and Park Hyun-ok completed the physical examination by putting her hand in the plaintiffs' underpants.

C. At or around 13:00 on the same day, the plaintiffs and other suspects had an interview with their attorneys at the interview room(at that time, there were 7 or 8 suspects including the plaintiffs, and the interview room was too small for them even to remain standing), under the supervision of the police officials. At that time, Plaintiff 2 attempted to borrow a mobile telephone from her attorney to talk to her friend as she could not participate in a mid-term examination beginning the next day due to her confinement in the detention room, however, a police official prohibited her from doing so. After the interview with the attorney, as the plaintiffs were returning to the detention room, Policewoman Lee Eun-oh, another female police officer at the same police station, requested the plaintiffs to take off their entire upper garments and pull down their lower garments, including underwear, to their knees. The plaintiffs protested that taking a physical examination in the above manner was unnecessary and that it was unfair to take the physical examination once again when they were being re-confined after the interview with their attorney, and refused to follow the request. Thereupon, Policewoman Lee Eun-oh explained to the plaintiffs the necessity, reason and ground of the physical examination, and asked Police Lieutenant Jung Sung-chun, Chief of the Investigation Division Unit 1, who was in charge of the management of the detention room, to explain the Rules on Escort of Suspects to them, and then requested the plaintiffs to cooperate for the physical examination as stated above.

D. Eventually, in or about the afternoon of the same day, although Policewoman Lee Eun-oh suggested that the plaintiffs be examined one by one, the plaintiffs rejected to such suggestion and took the physical examination in such a manner that they all together turned around showing the back, pulled up their upper garments including underwear to the armpits, pulled down the lower garments to the knees, and repeated sitting down and standing up approximately three times, under the direction of Policewoman Lee Eun-oh, in the closed physical examination room(hereinafter referred to as the "physical examination in this case").

E. Until then, female police officials belonging to the above police station had employed such manner as stated in Paragraph D above in conducting the physical examination, for more than five times every month, when they confined or re-confined criminal suspects in the detention room. Also, male suspects used to take the physical examination in the same manner, and, mostly, they did not raise any objection to it nor did they refuse it.

2. On the third ground for appeal

Taking into account the reasons of the court below's judgment based on the records, this court finds nothing wrong with the court below' acknowledgement of the above facts regarding circumstances of the Physical Examination. In this regard, there was no alleged violation of the rule of evidence or misunderstanding of the legal principles in the judgment of the court below.

3. On the first ground for appeal

The former Criminal Administration Act(amended by Act, Law No. 6038 of December 28, 1999), which was in effect at the time of the physical examination in this case, provided that, "Upon arrival of a new detainee, his or her body and clothes shall be examined and photograph and fingerprints shall be taken(Article10, Paragraph 1)"; "As to the detainee already under confinement, in case where the warden deems necessary, the detainee's body and clothes may be examined and photograph and fingerprints may be taken (Article 10, Paragraph 2)"; "In the case of a search or examination of a female detainee on her body or clothes, a female detention officer shall undertake this duty (Article10, Paragraph 3)"; and "A detention room installed in a police station shall be regarded as corresponding to a pretrial detention facility (Article 68)." Next, the Act on the Performance of Duties by Police Officers provides that the "police station and local marine police agency shall be provided with a detention room to intern those who are placed in arrest or detention according to the procedures as prescribed by relevant Acts, or who have received a judgment or have disposition restricting their corporal freedom (Article 9)." In light of the foregoing, the physical examination in this case was not conducted as a type of search or scrutiny therefore as a compulsory disposition during investigation for the purpose of collecting evidence, but, instead, was conducted upon the plaintiffs who had been arrested in the act and confined in the detention room based on the relevant laws including the above former Criminal Administration Act. As stated above, at the time of the physical examination in this case Police Lieutenant Jung Sung-chun, Chief of the Investigation Division Unit 1, who was in charge of the management of the detention room, determined that a physical examination of the plaintiffs was necessary. Thus, the judgment of the court below rejecting the plaintiffs' assertion that the physical examination in this case was conducted without any ground is acceptable, and there was no misunderstanding of the legal principles, as alleged as ground for appeal, in the conclusion of the court below as such.

4. On the second ground for appeal

A. According to the reasoning of its judgment, the court below determined as follows: The Rules on Detention and Escort of Suspects (Korean National Police Agency Directive No. 258, hereinafter referred to as the "Escort Rules") provides that "When a warden detains a suspect, the warden shall thoroughly examine the suspect's body to confirm whether or not the suspect is carrying or concealing any weapon (Article8, Paragraph 1)"; and "When the warden examines the suspect's body, the warden shall make a close examination of each part of the body of the suspect including hair, clothes and the inside of socks, so that the suspect may not carry or conceal any weapon, poison, matches, tobacco powder, etc. (Article 8, Paragraph 2)." As acknowledged above, at the above police station, female police officials, in order to conduct the physical examination on female suspects, employed the same manner as that used in the physical examination in this case for more than five times every month. Also, male suspects took the physical examination in the same manner. Hence, Policewoman Lee Eun-oh's conducting the physical examination in this case in the designated physical examination room that was a closed place where she could examine the plaintiffs by herself, in such a manner that the plaintiffs turned around showing the back, pulled up their upper garments including underwear to the armpits, pulled down the lower underwear and garments to the knees, and repeated sitting down and standing up approximately three times, was not an exceptional one or hardly seemed to provoke unbearable insults on the plaintiffs(It seems that the act of repeating sitting down and standing up approximately three times was intended to examine whether or not the plaintiffs carried or had attached to their bodies any weapon or personal effects). Unless there were any special reasons to forego a physical examination at the re-confinement only in the plaintiffs' case differently from other suspects, or to examine the plaintiffs over the clothes with their clothes on, the physical examination in this case could not be deemed unlawful or unfair with respect to the method thereof.

B. However, since the Escort Rules is a guideline as to the exercise of the authority to perform duties issued by Chief of the Korean National Police Agency with respect to the relevant administrative agencies and their employees, it is only a kind of an internal administrative order of an administrative organization and not a statutory order. Accordingly, even though the above disposition in this case was in accordance with the Escort Rules, the disposition was not necessarily lawful. Also, unlawful or unfair governmental authority has been exercised repeatedly for a long period of time, and such exercise cannot be deemed lawful or fair merely because there has been no objection to it. Thus, the issue of whether or not the physical examination in this case was lawful should be separately deliberated and judged in accordance with the provisions and the intent of the Criminal Administration Act, the governing law in this case. The Criminal Administration Act allows physical examinations of the arrestees confined in the detention room to attain the purpose of detention, to prevent accidents in advance, including suicide and self-injury of the detainees and to maintain order in the detention room. In light of the foregoing, not all physical examinations are allowed without any restrictions. Such physical examinations should be conducted to the minimum extent necessary to effect the above purposes, and in such reasonable manner that fundamental rights of the detainees may not be infringed upon due consideration of detainees' honor or shame. In particular, such method of physical examination, as having the detainees take off all clothes and repeat sitting down and standing up, may severely damage the detainees' honor or make the detainees feel ashamed. Thus, such method may be allowed only if there is a reasonable ground to believe that the detainees are concealing certain items bringing in or the possession thereof is prohibited including weapons, in secret parts of their bodies, and to believe that it is difficult to find such concealed items in any other methods(including observation from the outside, examination by patting down with the hand or having the detainees present their underwear after taking off outer garments and putting on gowns.

C. In this case, as stated above, since the plaintiffs are females arrested in the act of distributing to the public certain printed materials the distribution thereof was prohibited under the Election of Public Officials and Prevention of Election Malpractices Act, the possibility was minimal that they were concealing such items bringing in or the possession thereof was prohibited, including weapons, in secret parts of their bodies at the time of the arrest. Also, in light of the fact that Plaintiff 2 attempted to borrow a mobile telephone from her attorney but a police official prohibited her from doing so and the fact that, even though there was a circumstance where the plaintiffs could have received from their attorney or from other suspects restricted items including weapons as the interview room was small and other suspects also used the interview room at the same time, the possibility was minimal for the plaintiffs to conceal restricted items including weapons in the secret parts of their body prior to the re-confinement at the detention room, considering the attorney interview process and the structure of the interview room on the record (Articles 34, 36 and 37 of the Escort Rules provide that the "police officials shall not be present at the attorney-detainee interview, however, the police official shall supervise such interview within the range of visibility in order to take actions necessary to prevent fleeing, self-injury, collusion, etc." In light of the fact that Plaintiff 2 attempted to borrow a mobile telephone from her attorney to make a telephone call yet was restrained from doing so by a police official, it is acknowledged that a police official was supervising the attorney-plaintiffs interview in this case within the range of visibility.). Thus, we conclude that, at the time of the physical examination in this case, there was no reasonable ground sufficient to believe that it would be difficult to find concealed items, if any, in other methods, hence the physical examination in this case was unlawful as it exceeded the permitted scope thereof. Accordingly, we conclude that the court below erred in rendering its judgment by misunderstanding legal principles pertaining to the permitted scope of the physical examinations with respect to the detainees confined in the detention room or by violating the rules of evidence, which prejudicially affected the court below's judgment.

5. Based on the foregoing, we hereby reverse the court below's judgment and remand the case to the court below for retrial and determination. This decision is delivered with the assent of all Justices who reviewed the appeal.

It is so ordered per Disposition.

Justices Son Ji-yol (Presiding Justice)

Song Jin-hun

Lee Kyu-hong(Justice in charge)

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