33. Limitation of Extending the Period of the Communication
-Restricting Measures
[22-2(B) KCCR 545, 2009Hun-Ka30, December 28, 2010]
In this case, the Constitutional Court decided that the part of
'extending the period of communication-restricting measures' with
regard to the electronic communication stated in Article 6 Section 7
of the Protection of Communication Secrets Act violated the principle
against excessive restriction and infringed the privacy of
communication, thus being incompatible with the Constitution, by a
vote of 6 (unconstitutional, including 2 dissenting opinions that oppose
the holding statement) : 3 (constitutional), reasoning that there are no
limitations on the entire period or entire numbers of times for
extending the period of the communication-restricting measure.
Background of the Case
The movants, who are the accused of the underlying case, were
detained and indicted for allegedly violating Article 6 (Infiltration and
Escape) and Article 7 (Praise and Incitement) of the National Security
Act. While the underlying case was pending at the requesting court,
the prosecutor of the underlying case applied for the submission of
emails, recorded telephone call, and the facsimile transcripts collected
by the investigation agency through the communication-restricting
measures as the convicting evidence. Against this application, stating
the
above
evidence
had
been
collected
through
the
communication-restricting measures that had been extended 14 times
during 30 months, the movants argued that the proviso of Article 6
Section 7 of the Communication Secrets Act (hereinafter, the "instant
provision") that allowed the unlimited extension of the period of
communication-restricting measures infringed their right to privacy and
privacy of communication, filing the motion to request for the
constitutional review of the Instant Provision. The requesting court
made this request for the adjudication on the constitutionality of the
instant provision, reasoning there are reasonable grounds to consider
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