공항 구금 난민신청인의 헌법상 변호인조력권 인정 및 보장 방안 - 헌재 2018. 5. 31. 2014헌마346 결정을 중심으로 -

Abstract

The target decision was seen as a violation of the right to help a lawyer under Article 12 (4) of the Constitution for refugee applicants who were housed in the airport’s waiting room for repatriation. On that basis, the court considered the legal nature of accepting airport repatriation waiting rooms as administrative detention and ruled that administrative detention is also included in the arrest of the right to support lawyers under Article 12 (4) of the Constitution. And it was determined tha the refusal to apply for an interview with a lawyer in this case had no legal basis and violated the proportional principle, which is the principle of limiting basic rights. South Korea, which implemented the Refugee Act for the first time in Asia, has a 1.1 percent refugee recognition rate in 2020, which is embarrassingly low compared to the refugee recognition rate in advanced European countries. As shown by the Yemeni refugee crisis in Jeju Island, hatred and prejudice against refugees are deeply in the consciousness of many people. In this situation, the decision to recognize the right of refugee applicants to assist lawyers in the airport’s repatriation waiting room as a constitutional basic right can be evaluated as a very meaningful judgment in protecting refugees’ human rights. Now, it is necessary to implement the right to assist lawyers, which is the basic constitutional right of applicants for refugee detention at airports, in the relevant laws, including the Refugee Act. In order to guarantee the right to assist lawyers of refugee applicants in airport detention, the right to assist lawyers of airport refugee applicants who have been denied refugee recognition screening should be explicitly stipulated in the Refugee Act. The ministry should establish a mandatory regulation to notify refugee officials of their right to help lawyers, while establishing an organic cooperation system with refugee law support organizations to connect refugee applicants with public interest lawyers. The litigation structure system should be expanded to allow refugee applicants to receive help from lawyers from the application stage or to receive help from public defenders only in certain procedures through legislation. In addition, it is necessary to simplify lawyers’ access to the airport and secure independent interview sites, ensure lawyers’ right to participate in refugee interviews and state their opinions, and secure and assist sufficiently an interpreter specializing in refugees, but above all, a fundamental change in perception of refugees is needed.