GPS전자감독 제도 및 관련 규정에 대한 독일 연방헌법재판소 결정

Methods by which society is protected from high-risk criminals are both similar and different from country to country. Korea’s dualistic criminal justice system that focuses on both punishment and security measures responds to high-risk criminal offenders not only through punishment but also through strengthened security measures. Of note is that Korea no longer implements facility-based protective custody due to its past misuses, but imposes GPS-based electronic monitoring against high-risk criminal offenders after their release into society. As a result, when public demand for stronger social safety arises, GPS-based electronic monitoring becomes more intensified. The scope and period of application of Korea’s GPS-based electronic monitoring program have been expanded through several legislative amendments, and the retroactive application of the program is also permitted. In addition, the program’s monitoring function has been further strengthened with the introduction of personal probation officer designation system and active utilization of CCTVs. Germany has also introduced a GPS-based electronic monitoring program against high-risk sex offenders. However, Germany is different from Korea in that it widely utilizes facility-based protective custody and therapeutic custody and implements GPS-based electronic monitoring only as a supplementary measure. The reason for this policy decision is the German authorities’ view that GPS-based electronic monitoring of criminal offenders has limitations in terms of crime prevention. In other words, in the German criminal justice system, resocialization of criminal offenders is pursued primarily through intensive education and treatment within correctional facilities, and GPS-based electronic monitoring is implemented as a secondary means of management and supervision of those who have released from these facilities. Although GPS-based electronic monitoring is not implemented as a primary measure in Germany, the fact that the program involves 24-hour supervision of individuals using a GPS-based ankle bracelet has led to discussions about its constitutional legitimacy and ultimately the decision of the German Federal Constitutional Court examined in this paper. The German Federal Constitutional Court decided that subparagraph 12 of the first sentence of Article 68b(1) of the German Penal Code stipulating the GPS-based electronic monitoring program is not in violation of the German Constitution (Basic Law). What is important is the process through which this decision was reached, not the decision itself. In this 90-page long decision, the German Federal Constitutional Court not only reviewed the restrictions on fundamental rights that may be caused by imposing the electronic monitoring program, but also clearly stated that legislators are obliged to look into the empirical findings of the implementation the program, including its impact on crime prevention and technical details of its implementation, and reflect these findings in the relevant regulations. The decision of the German Federal Constitutional Court has many implications. In its Decision 2011Heonba89 Decided December 27 2021, the Constitutional Court of Korea has ruled that GPS-based electronic monitoring of criminal offenders does not constitute a violation of the Korean Constitution. However, the decision of the Korean Constitutional Court may be criticized for the following reasons: (i) the court upheld the constitutionality of Korea’s GPS-based electronic monitoring program too easily using abstract argumentation with an overemphasis on public safety; (ii) the court discussed only the rights to freedom of privacy and general freedom of action, not all individual fundamental rights subject to restrictions caused by the program; (iii) the court did not apply a strict test that sufficiently reflects the characteristics of the right to privacy in assessing possible restrictions on the rights to freedom of privacy and general freedom of action; and (iv) the court did not examine sufficiently the empirical findings of the implementation of the program in determining the program’s impact on crime prevention and the degree of violation of fundamental rights that may be cause by imposing the program. As mentioned above, GPS-based electronic monitoring of criminal offenders has been in use in Korea as a primary means of crime prevention, and this electronic monitoring program has been strengthened over time. Accordingly, there is a high probability that individual constitutional complaints will be filed against the implementation of GPS-based electronic monitoring. In addition, even if the GPS-based electronic monitoring program is not unconstitutional, the program requires careful implementation and further improvements from a criminal policy point of view. Considering that the decision of the German Federal Constitutional Court analyzed in this paper addresses these concerns, a careful examination of the decision will contribute significantly to the development of Korea’s GPS-based electronic monitoring program.