Constitutional Court: "No State Legislative Obligation for Compensation Regarding Administrative Detention"

The Constitutional Court has ruled that there is no constitutional legislative obligation to enact a law stipulating the state's duty to compensate for administrative detention under the Immigration Control Act, rather than criminal procedure.

This means that, aside from the Criminal Compensation Act, which provides compensation for pretrial detention of defendants acquitted in criminal proceedings, and the State Compensation Act, which stipulates the state's liability for damages due to unlawful acts, there is no constitutional interpretation-based obligation for the state to enact such a law separately.

Constitutional Court, Jaedong, Jongno-gu, Seoul.
Photo by Yonhap News

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On the 25th, the Constitutional Court unanimously dismissed constitutional complaints against provisions of the Criminal Compensation Act that do not stipulate government compensation liability for unlawful detention of foreigners who were subject to protective measures under the Immigration Control Act or detained in airport deportation waiting rooms, as well as a request to confirm the unconstitutionality of legislative inaction regarding the Immigration Control Act.

A dismissal is a formal judgment by which the Constitutional Court terminates a case without ruling on the merits when the requirements for filing a constitutional complaint are not met, rendering the complaint inadmissible.

The foreign nationals who filed the complaints were either denied refugee status for using forged passports while attempting to enter Korea or were staying in the country after applying for refugee status and were caught engaging in illegal employment activities, resulting in deportation orders and protective custody in immigration detention centers. Another complainant was denied entry at immigration inspection for presenting a forged invitation letter and was detained in the airport deportation waiting room before being released.

Article 2, Paragraph 1 of the Criminal Compensation Act stipulates that the state must compensate defendants acquitted of charges who were detained during investigation or trial. The complainants argued that the Criminal Compensation Act should also apply to administrative detention and filed for compensation, but after their claims were rejected, they filed constitutional complaints. They also claimed that the Immigration Control Act, which does not provide compensation even if detention is ruled unlawful, is unconstitutional.

However, the Constitutional Court dismissed their complaints.

Regarding the request to confirm legislative inaction as unconstitutional, the Court stated, "It cannot be immediately derived from constitutional interpretation that there is a legislative obligation to enact laws on compensation even for administrative detention carried out according to ordinary laws and procedures," and added, "The mere fact that there are difficulties in relief procedures through existing legislation such as the state compensation system does not mean that there is a constitutional obligation to enact laws for compensation due to unlawful administrative detention."

The Court further explained, "The latter part of Article 10 of the Constitution, which stipulates that 'the state shall confirm and guarantee the inviolable basic human rights of individuals,' and Article 12, which guarantees personal liberty, can be interpreted as imposing a duty on the state to protect individuals when their personal liberty is unlawfully infringed."

However, the Court clarified, "Nevertheless, it cannot be immediately derived from constitutional interpretation that there is a legislative obligation to enact laws on compensation even for administrative detention carried out according to ordinary laws and procedures, or that there is a legislative obligation to enact laws on compensation rather than indemnification for unlawful administrative detention."

As grounds for this judgment, the Court cited: ▲ matters related to foreigners' entry and stay under immigration control fall within a broad policy discretion necessary for the exercise of sovereign functions; ▲ foreigners denied entry or undergoing refugee screening at immigration ports remain in designated areas such as airport transit zones unless they voluntarily return or are forcibly deported, and the detention in the Incheon International Airport deportation waiting room was effectively operated and managed by the Incheon International Airport Airline Operation Council without legal basis, with the Incheon Airport Immigration Office paying rent, but after amendments to the Immigration Control Act, the state took over operation and management and assumed the costs; ▲ even if the provisions on personal liberty in Article 12 of the Constitution are applied to administrative procedures, this should be understood as enforcing compliance with general due process to protect individual freedom rights, not extending the content to claim rights beyond freedom rights, which is not a typical constitutional interpretation.

Regarding the claims related to the Criminal Compensation Act, the Court stated, "The Criminal Compensation Act was established to protect those whose personal liberty was infringed by criminal justice actions and cannot be directly applied to those whose personal liberty was infringed by administrative actions," adding, "Ultimately, it is consistent with the legislature's intent to interpret that no legislation was made from the outset regarding compensation for those whose personal liberty was infringed by administrative detention, and this is an area requiring protection under separate laws considering the characteristics of administrative detention."

The Court continued, "Therefore, this part of the complaint essentially requests new legislation providing compensation equivalent to that under the Criminal Compensation Act for those whose personal liberty was infringed by administrative actions to which the Criminal Compensation Act does not apply, which is effectively a challenge to legislative inaction," and concluded, "The legislative inaction claimed by the complainants is true legislative inaction, and constitutional complaints challenging true legislative inaction under Article 68, Paragraph 2 of the Constitutional Court Act are not permitted in themselves, so this part of the complaint is inadmissible."

Legislative inaction where the legislature fails to fulfill its legislative duty includes two types: true legislative inaction, where there is no law at all despite a constitutional obligation, and quasi-legislative inaction, where a law exists but is insufficient in content.

Among these, true legislative inaction contrary to constitutional duty can be challenged by constitutional complaints under Article 68, Paragraph 1 of the Constitutional Court Act (fundamental rights infringement type), whereas quasi-legislative inaction involving the unconstitutionality of existing laws can be challenged by constitutional complaints under Article 68, Paragraph 2 (unconstitutionality review type), requests for constitutional review of laws, or constitutional complaints under Article 68, Paragraph 1.

In this case, however, the complainants challenged the unconstitutionality of true legislative inaction regarding compensation for administrative detention by filing a constitutional complaint under Article 68, Paragraph 2 instead of Paragraph 1, making the complaint inadmissible according to the Court's judgment.

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