2. The eviction disposition taken by the Quasi-Appellant 2 on May 26, 2015 against Quasi-Appellant 2 shall be revoked.

○ Quasi-Appellant 1 is detained on May 13, 2015 under the charge of violating the National Security Act, and is in the detention house in Suwon. Quasi-Appellant 2 is an attorney-at-law 1 who is an attorney-at-law.

○ The Quasi-Appellant 1, after being detained, was examined by the quasi-Appellant 223 at the Suwon District Prosecutors’ Office 223. At the time, Nonindicted 1 attorney-at-law was present, and the Quasi-Appellant 1 was released. The Quasi-Appellant 1 refused to answer all questions of the Quasi-Appellant 1.

On May 26, 2015, Quasi-Appellant 1 entered the Suwon District Prosecutors' Office as 221 room (video Recording Office) in order to undergo the interrogation of suspect from quasi-Appellant 2 after having completed quasi-Appellant 2 and interview. Quasi-Appellant 2 was admitted to the 221 room in order to participate in the interrogation of suspect as counsel. The officer in charge did not release the Quasi-Appellant 1, but he was waiting outside the entrance entrance of the 221 room.

○ The Quasi-Appellant 1 commenced an examination on recognition of Quasi-Appellant 1 while wearing a locker 1, and the Quasi-Appellant 2 demanded the Quasi-Appellant 2 to withdraw the locker. The Quasi-Appellant 2 asked the Quasi-Appellant 2 to first examine on the Quasi-Appellant 2’s demand and then decide whether to demand the correctional officer to withdraw the locker 2. However, the Quasi-Appellant 2 demanded the removal of the locker 15 minutes continuously, and the Quasi-Appellant 2 forced the Quasi-Appellant 2 through the prosecutorial investigator on the ground that the said action by the Quasi-Appellant 2 would seriously interfere with the investigation.

Since ○○, Quasi-Appellant 1 had the name and resident registration number of Quasi-Appellant 1, but the Quasi-Appellant 1 refused to answer. Next, the Quasi-Appellant 1 notified the Quasi-Appellant 1 the right to refuse to make a statement, and then requested the competent correctional officer to remove the Check, and the competent correctional officer released the Check.

2. Determination

(a) The use of suspect interrogation and protective equipment;

1) A prosecutor shall give notice of the right to refuse to make statements to a suspect before an interrogation of a suspect is conducted, and when an interrogation of a suspect is conducted, he/she shall start with an interrogation of recognition (Articles 241 and 244-3 of the Criminal Procedure Act). In other words, an interrogation of recognition is part of the interrogation of

In addition, in the procedure of interrogation of a suspect in the prosecutor’s protocol, a prosecutor should be able to sufficiently exercise his/her right to defend himself/herself without physical or psychological restraint, and thus, the use of protective equipment is in principle not to use protective equipment. However, only if the risk of escape, assault, self-harm, etc. is evident and specific revealed clearly and specifically (see Constitutional Court Order 2004Hun-Ma49, May 26, 2005). In this regard, a correctional officer must remove protective equipment during the course of the investigation, except where the prosecutor or the head of the correctional institution (hereinafter “head”) deems it necessary to use protective equipment against the suspect, unless he/she considers it necessary for the suspect to use protective equipment (Article 202(1) of the Guidelines for Protection Work (No. 818, the same shall apply hereinafter).

On the other hand, protective equipment is used by a correctional officer according to a warden’s order (Article 97 and Article 98 of the Administration and Treatment of Correctional Institution Inmates Act and Article 120 of the Enforcement Decree of the same Act). In other words, the subject of the use and removal of protective equipment is a correctional officer or a warden. However, a prosecutor who belongs to the Ministry of Justice, a warden, and a prison officer’s guidelines for safe guard duty that regulates a correctional officer, if a prosecutor requests the removal of protective equipment in the course of interrogation in a prosecutor’s investigation (Article 20

In full view of the above discussions, in order to guarantee the suspect’s right to defense, the prosecutor confirms whether protective equipment is worn prior to the suspect interrogation with his/her intent to interrogate the suspect, and if the suspect wears protective equipment, the officer in charge shall request the removal of protective equipment and commence the examination for recognition after the removal of protective equipment.

2) As to this, the quasi-Appellant asserts that prior to the prosecutor’s demand a correctional officer to remove protective equipment, the procedure to confirm whether a suspect’s escape, suicide, self-harm, or danger to another person is necessary.

However, it is reasonable to view that a prosecutor may make a primary determination as to whether there are special circumstances to require a prosecutor to continue to wear protective equipment when he/she examines a suspect through the existing investigation records, correctional officers, etc., by considering whether the suspect under detention, the attitude of the suspect when he/she is under interrogation at the police or the previous prosecutor's office, the attitude of the suspect in detention, the attitude of the suspect in custody or in custody, and the attitude of the witness when he/she arrives at the police or the previous prosecutor's office, etc. In addition, in such cases, there is a need for a prosecutor to ask questions to the suspect. However, even in such cases, it is strictly distinguishable from the interrogation of the suspect, and therefore, it must be noted that only the matters corresponding to the above purpose of questioning should be asked,

Ultimately, it is necessary for a prosecutor to confirm whether a suspect's escape, suicide, self-harm, or any danger or injury to another person before the prosecutor demands a correctional officer to remove protective equipment, but it is not possible to use the procedure to interrogate the suspect for this purpose. Therefore, the quasi-Appellant's above assertion is reasonable only to this extent.

B. Judgment on the Quasi-Appellant 1’s assertion

1) In light of the purport of the quasi-appeal system under Article 417 (a) of the Criminal Procedure Act, namely, the control device against physical restraint by a public official, such as a prosecutor or a judicial police officer, etc., in the investigation stage, which is the only method of appeal against a prosecutor’s disposition taken in custody or in custody of a suspect (see Supreme Court Order 2003Mo402, Nov. 11, 2003). In light of the purport of the quasi-appeal system under Article 417 (a) of the Criminal Procedure Act, the only method of appeal against a prosecutor’s disposition taken in custody or in custody of a suspect (see Supreme Court Order 2003Mo402, Nov. 11, 2003), the “disposition taken by a public prosecutor regarding detention” in the subject case includes any disposition taken by a public prosecutor on the body of a suspect detained at the investigation stage, as well as any measures taken by a public prosecutor on protective equipment under the premise that the use of protective equipment is not entirely different from each other legal nature.

On the other hand, the defense counsel’s participation in the interrogation of a suspect is a system to ensure the substantial guarantee of the suspect’s right to defense. As such, a defense counsel participating in the interrogation of a suspect may demand that the prosecutor proceed with the interrogation of a suspect with the removal of protective equipment on behalf of the suspect. This constitutes filing an objection against the method of unfair interrogation by the defense counsel participating in the interrogation of a suspect (proviso of Article 243-2(3) of the Criminal Procedure Act). Furthermore, the refusal of the prosecutor’s request for the removal of protective equipment by the defense counsel and the progress of the interrogation of a suspect with wearing protective equipment is ultimately a disposition against the suspect, and even if the suspect did not directly require the removal of protective equipment

Therefore, even though a defense counsel who participated in the interrogation demanded that the prosecutor proceed with the interrogation of a suspect while being released from protective equipment, the failure of the prosecutor to request the relevant correctional officer to remove protective equipment constitutes a rejection disposition against the request for removal of protective equipment and constitutes “the prosecutor’s disposition concerning confinement of a suspect” subject to quasi-appeal.

2) A quasi-Appellant 1 appears to have sought revocation of the disposition on the premise that the quasi-Appellant 1 directly disposes of the use of protective equipment. However, as seen earlier, the quasi-Appellant 1 has no direct authority over whether the use or removal of protective equipment and only the authority to demand its use or removal. The purport of the quasi-Appellant 1’s above assertion lies in pointed out and rectifying the illegality of the quasi-Appellant 1’s commencement of interrogation in the state of wearing protective equipment. As such, the argument can be seen to include the purport of pointing out that the quasi-Appellant 1 did not take appropriate measures with regard to the use or removal of protective equipment, and thus, the quasi-Appellant 1’s claim against the quasi-Appellant 1 is to seek revocation of the non-performance of such measures although the quasi-Appellant 1 must take measures to demand the removal of protective equipment.

3) The quasi-Appellants commenced the questioning as part of the Quasi-Appellant 1’s interrogation of suspect, and the quasi-Appellants asserted to the effect that they would escape, commit suicide, or commit self-injury, etc. However, as examined earlier, such assertion in itself cannot be accepted as it is not reasonable. Inasmuch as Quasi-Appellant 1 took part in the interrogation, it is deemed that the Quasi-Appellant 1’s wearing of a lock during the period when the Quasi-Appellant 1 took place, and that the period of wearing the lock was shorter, and thus, it is not justified for the Quasi-Appellant 1 to proceed with the interrogation without releasing the Quasi-Appellant 1’s lock. This is more true if the defense counsel raised an objection against the wearing of protective equipment.

또 피준항고인은, 당시 계호 인력이 부족한데다가 준항고인 1이 사복을 입고 있어 도주하기 쉬운 상태에 있었고, 이 사건 피의자신문이 있기 몇일 전에 공범인 피의자 공소외 2가 검사조사실에서 피의자신문을 받던 도중 이마를 책상에 찧고 뒤통수를 벽에 부딪치는 등 자해를 한 적이 있어 준항고인 1의 보호장비 해제를 더욱 신중하게 결정할 특별한 사정이 있었다고 주장한다.

However, the circumstance that safe guard personnel are not adequate or that Quasi-Appellant 2 wears a private uniform is an ordinary day that occurs when the suspect under investigation in the fact of the investigation, and the decision of the Constitutional Court above is rendered after considering such circumstances, barring any special circumstance, it cannot be deemed that there is a reason to carefully examine whether the suspect lacks of safe guard manpower or wears a private uniform of the suspect, unless there are other special circumstances in this case. Furthermore, the disposition on the confinement of the suspect, such as wearing protective equipment, should be taken in cases where the risk of self-harm, such as self-harm, is clearly and specifically revealed after considering the seriousness of infringement on the right and interest of the suspect, based on the circumstance that Non-Appellant 2, who is the accomplice, committed self-harm only before several days, and it is unreasonable to determine that Quasi-Appellant 1 might injure the suspect. Rather, even after the Quasi-Appellant 1 only refused the quasi-Appellant 1’s questioning for recognition, it is difficult to deem the Quasi-Appellant 1 to have rejected the Quasi-Appellant 1’s request for removal.

In addition, there is no evidence that there is a special circumstance to proceed with the examination of suspect without releasing Quasi-Appellant 1's locks.

4) Sub-determination

Therefore, in spite of the demand of Quasi-Appellant 2, the quasi-Appellant 2, who is a counsel, the prosecutor's refusal to remove protective equipment against Quasi-Appellant 1 is illegal as "disposition against the suspect's detention".

C. Judgment on the Quasi-Appellant 2’s assertion

As seen earlier, inasmuch as the Quasi-Appellant 2’s failure to comply with the lawful demand of the Quasi-Appellant 2, who is the defense counsel, is illegal, repeated demand by Quasi-Appellant 2 for a considerable period of time constitutes interference with the investigation and thus, the act of Quasi-Appellant 2, who is the defense counsel, retired from the prosecutor’s protocol, constitutes an infringement on the Quasi-Appellant 2’s right to participate in interrogation of suspect (Article 243-2 of the Criminal Procedure Act), and thus, cannot be deemed unlawful.

3. Conclusion

Therefore, on May 26, 2015, the quasi-Appellant 1 refused to demand the defense counsel to remove protective equipment (Handets) against Quasi-Appellant 1 on May 26, 2015 and the eviction disposition against Quasi-Appellant 2 in relation thereto are all unlawful, and thus, it is decided as per the disposition to revoke this.

Judges Yellow Jae-ho

Note 1) The present situation at the time of the instant case. A prosecution was instituted against an appellant 1 (U.S. District Court 2015Guhap292)

2) At the time of delivery of the quasi-appeal, it is recognized that the Quasi-Appellant 2’s demand for the removal of the protective equipment was understood as a demand to the correctional officer to require the removal of the protective equipment.