The Case on the Former Provisional Act on Special Cases Concerning Arrest and Others

[24-2(B) KCCR 316, 2011Hun‐Ka5, December 27, 2012]

In this case, the Constitutional Court of Korea decides that Article 2 Section 1 of the former Provisional Act on Special Cases Concerning Arrest and Others, which permits arrest, seizure, and search of certain suspects, including persons who allegedly committed a crime under the National Security Law, without a warrant issued by a judge, violates the constitutional principle requiring a warrant of arrest.

Background of the Case

1.The deceased Wee died around the end of November 1961 when he was under arrest and investigation by an investigation officer of the Korean Central Intelligence Agency. The arrest was made without a warrant issued by a judge under Article 2 Section 1 of the former Provisional Act on Special Cases Concerning Arrest and Others, for his alleged crime as a violation of the National Security Act and other laws. The survivors of the deceased brought a lawsuit seeking damages against the Republic of Korea, arguing that the deceased died during an unlawful detention done without a warrant.

2.During the case pending, the court on its own motion requested a review of constitutionality of statute, concluding that sufficient reasons support the unconstitutionality of Article 2 Section 1 of the former Provisional Act on Special Cases Concerning Arrest and Others.

Provision at Issue

The provision at issue in this case is whether Article 2 Section 1 of the former Provisional Act on Special Cases Concerning Arrest and

Others (as revised by Act No.674 on August 7, 1961, before repealedby Act No.1410 on September 30, 1963; hereinafter "Instant Provision")violates the Constitution.

Former Provisional Act on Special Cases Concerning Arrest and Others (revised by Act No.674 on August 7, 1961, before repealed by Act No.1410 on September 30, 1963)

Article 2(Crimes permitted to make arrest without a warrant) ① A person who commits the following crimes may be arrested, seized or searched without a warrant issued by a judge.

1.Crimes under Articles 4 through 7 of the Act on Special Cases Concerning Punishment of Special Crimes

2.Crimes under the National Security Law and the Anti‐Communist Law

3.Crimes under the Measures Against Illicit Enrichment Law

Summary of the Decision

1. Overview of the Instant Provision

The former Provisional Act on Special Cases Concerning Arrest and Others (hereinafter "the Provisional Act") was enacted as Act No.644 on July 3, 1961 by the Supreme Council for National Reconstruction and then repealed as Act No.1410 on September 30, 1963. The legislative purposes were to protect the Republic of Korea against communism and to allow the use of forcible measures, including arrest without a warrant issued by a judge, in investigating criminal acts that particularly hinder the state's efforts for reconstruction to overcome the crises caused by irregularities, corruption and poverty (See Article 1 of the Provisional Act; Article 1 of the Act on Emergency Measures for National Reconstruction).

The Instant Provision permitted arrest, seizure and search without a warrant issued by a judge against persons who allegedly committed crimes prescribed under Articles 4 through 7 of the Act on Special Cases Concerning Punishment of Special Crimes (enacted as Act No.633 on June 22, 1961), namely corruption as to national affairs or the military (Article 4), counterrevolutionary act (Article 5), special anti‐national act (Article 6) and collective violent act (Article 7), crimes under the National Security Law and the Anti‐Communist Law, and crimes under the Measures Against Illicit Enrichment Law. No mechanism was in place for a judge to oversee such forcible investigation after it occurred by the investigative agency.

2. Standard of Review Applicable to the Instant Provision

The constitutionality of the Instant Provision, which provides the basis for arrest, seizure and search of a suspect by an investigative agency without a warrant, may be determined by reviewing whether it complies with the principle of warrant under Article 12 Section 3 of the Constitution, which is a constitutional special provision intending to prevent abuse of power by investigative agencies in the specific areas of application.

The essence of the principle of warrant, which the constituent power of the Constitution has adopted since the first Constitution (Article 9) up to the current Constitution (Article 12 Section 3), is to allow any forcible measures that infringe on personal liberty only when a judge issues a warrant after reviewing specifics of the matter as a disinterested person whose personal and material independence is guaranteed. Considering that the purpose of investigation is to identify offenders and collect evidence, the chance of infringing on fundamental rights of people is particularly high during such plain use of state power. The principle of warrant has vital meaning in that, by requiring precautionary, judicial oversight by judges against human

rights violations by investigative agencies, it prevents abuse of forcible measures by investigative agencies and promotes human rights.

When the legislature enacts a law on investigative agency's use of forcible measures against suspects, therefore, it may choose one among various policy options that would fit for the particular situations, after conducting a comprehensive review of the legal reality of our society, the usual practice of investigation, and the level of legal consciousness of investigative agency and people, provided that it is within the range permitted under the principle of warrant, which is set out in the special provision of the Constitution. If the law on its face fails to comply with the principle of warrant, it will be a plain violation of the Constitution. If the law appears to comply with the principle of warrant on its face but reveals in substance that the legislature abused its legislative power by inter alia exceeding the reasonable range of choices, such law will be found unconstitutional in violation of the principle against arbitrariness.

3. Whether the Instant Provision Violates the Principle of Warrant

A.The Instant Provision enables investigative agency to use forcible measures, including arrest, against certain criminal suspects without a warrant issued by a judge. Moreover, it fails to stipulate a provision requiring a judge's issuance of post‐warrant within a certain period of time after such forcible measure being taken without a warrant. It thereby enables investigative agency to arbitrarily arrest a suspect for an indefinite period of time without any review by a judge. Needless to consider its legislative purpose or the question of whether the legislature's policy choice was arbitrary, the Instant Provision on its face violates the essence of the principle of warrant.

B.We examine, however, whether the Instant Provision is legitimate as a 'special measure' with respect to the principle of warrant during a martial law regime, which is prescribed under Article 64 Paragraph 3

of the former Constitution (revised as Constitution No.5 on November 29, 1960 and before revised as Constitution No.6 on December 26, 1962; hereinafter 'former Constitution') and Article 77 Section 3 of the current Constitution, because an extraordinary martial law was proclaimed around 9:00 AM on May 16, 1961 at the declaration of the Military Revolutionary Committee, being relaxed to precautionary martial law on May 27, 1961 by the Supreme Council for National Reconstruction and then lifted around midnight on December 5, 1962.

It is not easy to judge the national and international situations at that time from the present perspective, and therefore it may be arguable whether the military law proclamation mentioned above had a legitimate ground as to its procedure and authority to do so. At least, however, a special measure like the Instant Provision that completely sets aside the principle of warrant must be avoided as much as possible, even if it is a national emergency situation akin to martial law. Such a measure, even if allowed, must be used only during a very limited time. Moreover, there is no question that an after‐the‐fact mechanism must be put in place to have a judge review within a short period of time the forcible measure taken by an investigative agency without a warrant.

Nevertheless, the Instant Provision was in effect for over two years and four months, from August 7, 1961 to December 17, 1963, even after the martial law was lifted. It is thus obvious that a legislative measure that completely ignores the principle of warrant for such a long period of time, although it was applicable only to some limited crimes, is not acceptable. The Instant Provision, therefore, does not fall within the special measure under Article 64 of the former Constitution or Article 77 of the current Constitution.

4. Conclusion

In conclusion, the Instant Provision is unconstitutional in violation of the principle of warrant, which is required under Article 9 of theformer Constitution and Article 12 Section 3 of the current Constitution.