<Case Summary>

The Constitutional Court of Korea unanimously ruled that denying a pretrial detainee access to legal counsel on weekends or at night, when the purpose was to prepare a habeas-type arrest review, violates the Constitution.

The Court held that prison authorities cannot rely on administrative convenience or office hours to restrict a detainee’s right to immediate legal assistance, especially during the narrow window in which the legality of an arrest can be challenged.

Decision Date: January 29, 2026

Case No.: 2023Hun-Ma370

Holding: Unconstitutional

Vote: Unanimous



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Background Facts

The petitioner was arrested on Saturday, February 18, 2023, on charges under the National Security Act.

He was transferred to Jeju Prison later that afternoon.

His attorney requested a lawyer-client meeting at 6:30 p.m. the same day to prepare an arrest legality review petition (체포적부심사).

The prison denied the request, citing:

It was outside normal working hours,

No prior reservation had been made,

The court would later provide an opportunity to meet counsel.



The detainee filed a constitutional complaint, arguing that this denial infringed his fundamental rights.


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Key Constitutional Issues

Whether refusing lawyer access during weekends or nighttime violates:

The right to liberty, and

The right to immediate assistance of counsel, guaranteed under the Constitution.



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Court’s Reasoning

Timing is critical
Under Korean criminal procedure, an arrested person must be released or have a warrant sought within 48 hours. This makes early and timely access to counsel indispensable.

Earlier access was insufficient
Although the detainee had met his lawyer earlier that day for about 98 minutes, the Court found this inadequate given:

The length and complexity of the arrest warrant,

The need to assess facts by date and evidence,

The urgency of preparing a meaningful arrest challenge.


Later meetings did not cure the violation
A brief meeting on the morning of the hearing did not remedy the earlier restriction, as the petition had already been filed and preparation opportunities had been lost.

Pretrial detainees deserve heightened protection
The Court emphasized that unconvicted detainees must be treated differently from sentenced prisoners, especially when exercising procedural rights tied directly to personal liberty.

Administrative convenience is not a valid justification
Denying access because it was a weekend, nighttime, or inconvenient for staff failed the proportionality test and amounted to excessive restriction of fundamental rights.



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Holding

The prison warden’s refusal to allow lawyer access violated the detainee’s constitutional right to counsel.

The restriction was disproportionate and failed to minimize infringement on fundamental rights.

The Court issued a declaratory ruling of unconstitutionality, even though the incident had already concluded.



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Why This Decision Matters

First constitutional ruling squarely defining the limits of restricting lawyer access for arrest review preparation.

Reaffirms that:

The right to counsel is immediate, not conditional.

Weekends, nights, and holidays do not suspend constitutional protections.


Signals that correctional practices must change to prevent future, repeat violations.


In short, when liberty is on the line, the clock matters—and the Constitution does not keep office hours.

Article: https://www.lawtimes.co.kr/Case-curation/215469