Majority Opinion "Criminal Law Provisions Changed Favorably... Deemed Unconstitutional Under New Law"
Justice Lee Seon-ae "Based on Conduct at Time of Disposition... No Violation of Equality Rights"
The Constitutional Court has ruled that the prosecution's decision to suspend indictment on charges of electioneering, such as handing out business cards in front of a church rented for a cooperative general meeting, violated the rights to equality and the pursuit of happiness.
The ruling states that if the law serving as the basis for the suspended indictment decision was amended in favor of the constitutional petitioners after the decision was made, the Constitutional Court should determine whether basic rights were violated based on the new law in effect at the time of the ruling.
Chief Justice Yoo Nam-seok of the Constitutional Court (center) and the justices are seated in the Grand Bench of the Constitutional Court in Jongno-gu, Seoul, on the 23rd of last month. [Image source=Yonhap News]
On the 6th, the Constitutional Court announced that it decided by an 8 (in favor) to 1 (against) vote to cancel the suspended indictment decision in a constitutional complaint case filed by Seo Young-kyo, a member of the Democratic Party and a 21st general election preliminary candidate, against the Seoul Northern District Prosecutors' Office for the suspended indictment on charges of violating the Public Official Election Act.
Seo was suspended from indictment in October 2020 on charges of violating the Public Official Election Act for handing out business cards and appealing for support to cooperative members in front of a church where a local credit union's general meeting was held on February 20, 2020, ahead of the general election. A suspended indictment is a disposition that acknowledges the charges but closes the case without prosecution, considering factors such as the motive and consequences of the offense.
The issue arose after the law was amended in December 2020, after Seo received the suspended indictment, to exclude spaces used for electioneering if the venue was rented or used for purposes other than its original intent.
Seo filed a constitutional complaint seeking cancellation of the suspended indictment, arguing that it infringed on his rights to equality and the pursuit of happiness.
The Constitutional Court stated, "If the penal law was amended favorably to the actor after the suspended indictment, it is reasonable to judge the constitutionality of the suspended indictment based on the new law in effect at the time of the constitutional complaint decision seeking cancellation of the suspended indictment."
It also ruled, "After the amendment of the Public Official Election Act, the petitioner’s act of handing out business cards and appealing for support outdoors at a religious facility used for purposes other than its original intent, such as rental, is no longer a crime. The suspended indictment decision based on the pre-amendment Public Official Election Act violates the petitioner’s rights to equality and the pursuit of happiness."
Justice Lee Jong-seok, in a separate opinion, stated, "Even under the pre-amendment law, the act of handing out business cards and appealing for support at a religious facility used for purposes other than its original intent, such as rental, does not constitute a violation of the Public Official Election Act. Therefore, the suspended indictment recognizing the petitioner’s violation of the Public Official Election Act constitutes an arbitrary exercise of prosecutorial power."
On the other hand, Justice Lee Seon-ae dissented, stating, "The suspended indictment decision was made according to the Public Official Election Act at the time of the decision and the petitioner’s act, and it cannot be seen as infringing on the petitioner’s rights to equality and the pursuit of happiness."
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