수형자 투표권 제한의 문제점 - 유럽인권재판소 허스트(Hirst) 판결을 중심으로 -

초록

The European Court of Human Rights (ECHR) rendered judgment in the case of Hirst v. the United Kingdom in 2005 that the UK legislation with a blanket ban on prisoners was in breach of the Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms. Meanwhile, the Constitutional Court of Korea dismissed similar cases regarding the disenfranchisement of prisoners in 2004 and in 2009, yet during the 5years the Constitutional Court had showed critical change in the ruling that the majority recognized unconstitutionality. The main point of the ECHR is that the voting right (or universal suffrage) is fundamental to democracy and that the restriction and limitation on the voting right should be provided by law,and minimum and necessary to achieve the legitimate aim. That is to say, while the voting right may be limited by law and a margin of appreciation is given to governments, the principle of proportionality shall be applied. Therefore, automatic blanket ban on prisoners exercising the right to vote is incompatible with the principle of proportionality. The ruling of the ECHR has implications to Korea, where prisoners are disenfranchised according the relevant legislations. The reasoning and findings of the ECHR strongly support the opinion upholding the unconstitutionality of the automatic disenfranchisement in the Constitutional Court’s rulings of 2004 and 2009. Therefore, the case of Hirst v. the United Kingdom. is likely to be considered a precedential case when the Constitutional Court have another chance to examine the right to vote of prisoners. Moreover, it is foreseeable that once the Korean prisoners’ complaints are filed to the UN Human Rights Committee, the Committee would find a violation of the International Covenant on Civil and Political Rights, referring to the judgment of the influential international human rights court. In the meantime, the Hirst case makes us review the legal status of prisoners. The Korean legal system needs to reflect the understanding that the human rights and freedoms, other than the inevitable aspects of detention, are not automatically restricted to prisoners. In light of the meaning of the judgment of the ECHR in the case of Hirst v. the United Kingdom, the amendment of the relevant legislations of Korea is necessary. First of all, Article 43 of the Criminal Act, which prescribes mandatory deprivation and suspension of qualifications together with the imprisonment sentences, should be abolished. In addition, Article 18 of the Public Official Election Act should be amended to prescribe specified and proportional restrictions on the right to vote according to the nature of crimes and sentences.

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