[In-Depth Review] The Disappeared Protective Custody Center, The Persistent Protective Custody System

Recently, I received a letter from Mr. A, who introduced himself as a ‘protected custody detainee.’ Despite having completed his sentence, he was still confined in prison and treated essentially like an inmate, requesting legal assistance. For example, he stated that the prison imposed the ‘work obligation,’ which should only apply to inmates, on protected custody detainees as well. At this point, many people might question: wasn’t the protective custody system abolished over a decade ago after numerous debates?

The protective custody system was a measure allowing individuals deemed to have a high risk of reoffending and requiring special education, rehabilitation, and treatment to be subjected to protective disposition and isolated from society for up to seven years. Even after completing their sentence, individuals could continue to live under de facto incarceration for up to seven additional years under protective custody. Mr. A was similarly confined for more than five years beyond his completed sentence. There were even cases where the protective custody period exceeded the prison term.

The legal basis for this constitutionally questionable system was the old Social Protection Act, which has since been repealed. This law was enacted in 1980 by the new military regime to re-confine trainees of the Samcheong Education Center and was infamously known as the ‘Jeon Du-hwan evil law.’ After democratization, there was significant criticism of the Social Protection Act from civil society. In 2004, the National Human Rights Commission recommended to the Speaker of the National Assembly and the Minister of Justice the abolition of the Social Protection Act to eliminate the protective custody system. Following this trend, the Social Protection Act was eventually repealed in 2005. The main reason for its repeal was that the protective custody system was implemented in a manner indistinguishable from incarceration-based punishment, effectively constituting ‘double punishment.’

Correctional policies based on isolation do not significantly aid social reintegration, and spending years in conditions no different from those of inmates rarely holds healthy meaning in the lives of protected custody detainees. If individuals at risk of reoffending require special education or treatment, such education and treatment should be provided during the execution of their sentence. In this regard, the repeal of the Social Protection Act was a justified decision. The Federal Constitutional Court of Germany also ruled the German security detention system, similar to Korea’s protective custody system, unconstitutional in 2011. It stated that if there is no clear distinction between security detention and general sentence execution, the security detention system is unconstitutional.

Attorney Kim Yong-jin (Source: Duroo Corporation website)

The name of a particular correctional facility rarely comes up in public discourse, but ‘Cheongsong Protective Custody Center’ became famously known as the last blind spot for human rights. The renaming of the ‘Cheongsong Protective Custody Center’ signboard to ‘Cheongsong 3rd Prison’ even made headlines. The protective custody system seemed to disappear into the annals of history along with the ‘Protective Custody Center’ signboard.

So, what then is the claim of Mr. A, who says he is still under protective custody? The problem lies in the supplementary provisions of the repealing law. The repealing law of the old Social Protection Act included supplementary provisions that maintained the effect of already finalized protective custody rulings and stipulated that the execution of protective custody under those rulings would follow the previous Social Protection Act. It also allowed the continued detention of those who had already been sentenced to protective custody or were subject to its execution in prison. Behind the supplementary provisions of the repealing law of the old Social Protection Act, hundreds of protected custody detainees still remained.

If the repeal of the Social Protection Act was a legislative decision, what then was the legislator’s intent behind the supplementary provisions? The contradiction of abolishing the Social Protection Act to remove human rights violations in criminal policy while simultaneously creating exceptions for hundreds of protected custody detainees remains difficult to understand even 15 years later. Although the protective custody system is gradually disappearing, the fact that hundreds of human rights were violated due to the constitutionally weak supplementary provisions will remain a dark stain in the history of Korea’s criminal policy.

According to the supplementary provisions, changing the signboard of the Protective Custody Center to that of a prison was not because the Protective Custody Center had fulfilled its function. Perhaps, as if mocking the voices that cried out against the unconstitutionality of the protective custody system, the correctional authorities boldly declared that this place was originally a ‘prison.’ The return address on the envelope of the letter sent by Mr. A was ‘prison,’ which ironically perfectly encapsulated the content of the letter. The supplementary provisions, created by the legislator’s erroneous judgment, still keep many protected custody detainees locked up in ‘prison.’ In response to the letter sent from ‘prison,’ the author and fellow lawyers are representing Mr. A in a lawsuit against the correctional authorities.

Attorney Kim Yong-jin, Duru Corporation