Prosecutor's Immediate Appeal against the Court's Decision of Suspension of Execution of Defendant's Detention

[24-1(B) KCCR 703, 2011Hun‐Ka36, June 27, 2012]

In this case, the Constitutional Court held that Article 101 Section 3 of the Criminal Procedure Act, which allows a public prosecutor to file an immediate appeal against the court's decision of suspension of execution of defendant's detention, violates the principle of arrest by warrant, due process and the rule against excessive restrictions and thus is in violation of the Constitution.

Background of the Case

Lower court, which was in charge of the underlying case [2011 GoHap77, 264 2011 Jeon‐Ko (cases are consolidated), Seoul Northern District Court], where Lee O-Joo, the dependent, was accused of his alleged violation of the Act on the Punishment of Sexual Violence Crime and Protection of Victim (Special Robbery and Rape), on September 19, 2011, made a decision to suspend the execution of detention against the defendant until September 20, 2011 because the dependant's mother passed away. However, the public prosecutor, pursuant to Article 101 Section 3 of the Criminal Procedure Act, filed an immediate appeal to the requesting court in the instant case against such decision and thus that lower court's decision was suspended. That requesting court, on its own discretion, filed the instant case with the Constitutional Court for constitutional review of Article 101 Section 3 of the Criminal Procedure Act on October 26, 2011.

Provision at Issue

The question presented to us is whether Article 101 Section 3 (hereinafter, 'the Instant Provision') of the Criminal Procedure Act (revised by the Act No. 2450 on January 25, 1973) violates the

Constitution, and the content of the Article is as follows:

Criminal Procedure Act(revised by the Act No. 2450 on January 25, 1973)

Article 101 (Suspension of Execution of Detention)

(3)Public prosecutors may file immediate appeals against the ruling under paragraph (1).

Summary of the Decision

1.Whether the Instant Provision violates the principle of arrest by warrant and due process

If the effect of the court's decision on the need to maintain the defendant's detention is influenced or limited when the public prosecutor or other government agency has different opinion or disobeys the court's decision, it is regarded as a violation of the principle of arrest by warrant. However, in the instant case, the Instant Provision allowing the public prosecutor to file an immediate appeal against the court's decision of suspension of execution of detention not only prioritizes the prosecutor's disobedience before the court's decision that there is a need to suspend the execution of detention but also grants the public prosecutor an authority to make such court's decision pointless, which violates the principle of arrest by warrant guaranteed by Article 12 Section 3 of the Constitution.

In addition, the Instant Provision violating the principle of arrest by warrant violates due process guaranteed by Article 12 Section 1 of the Constitution as well since the principle of arrest by warrant under Article 12 Section 3 is a special provision to Article 12 Section 1 of the Constitution.

2. Whether the Instant Provision violates the rule against excessive restriction

The legislative purpose of the Instant Provision is to prevent the defendant from fleeing away or destroying evidence so that he cannot hinder fair court trial and execution of a sentence. This purpose is legitimate and it may be a proper means to achieve that purpose to allow the public prosecutor to exert right to file an immediate appeal.

However, the need to locate the dependant's whereabouts may be satisfied by imposing other conditions on the detention‐suspension decision so that his or her appearance at the court is secured. Evenwhen a prosecutor is allowed to disobey the court's detention‐suspensiondecision, there may be the instances where either an ordinary appeal is filed and then followed by a motion to suspend the court's execution or an immediate appeal is allowed but its effect of suspending the court's decision is not be allowed. Thus, we found that it is hard to consider that there is utterly no other means less restrictive than the Instant Provision which can achieve the legislative purpose of the Instant Provision.

Meanwhile, we find that the public interest in preventing the defendant from fleeing away and destroying evidence during the suspension of execution of detention is not likely to be more important than the disadvantages on that defendant – he or she cannot be released due to the public prosecutor's immediate appeal even he or she is needed to be temporarily released under the court's decision, given that: in the instances where the court suspends the execution of detention under certain conditions, the concern about the defendant's getaway and destruction of the evidence has been already considered at the stage of that court's decision; and most of the reasons for the court's detention‐suspension decision are likely to be subject to time‐limit that, if the dependant misses it, such court's decision becomes

obsolete.

For the forgoing reasons, the Instant Provision does not comply with both the principle of arrest by warrant and due process and thus violates the rule against excessive restriction.