23.Legal Remedies for Offenders Arrested and Detained Flagrante Delicto

[22-2(A) KCCR 718, 2008Hun-Ma628, September 30, 2010]

In this case, the complainants who had been released after being arrested red-handed without a warrant and detained for approximately 38 to 46.5 hours filed a constitutional complaint claiming for unlawfulness of the unnecessarily extended detention, and the Court ruled the complaint not justiciable, stating that other legal remedies such as the review of the legality of arrest were not exhausted before this case was brought before the Court.

Background of the Case

On July 27 or August 15, 2008, the complainants were arrestedflagrante delictoby the police for violating the Assembly and Demonstration Act and committing general obstruction of traffic under the Criminal Act at the site of a candlelight vigil in Jongno-gu and Jung-gu calling for the "quarantine rules on U.S. beef imports to be renegotiated or scrapped" and then were taken into custody at detention centers of nine police stations located in the heart of Seoul. The complainants were eventually released without a detention warrant within approximately 38 hours to 46 hours from the time of arrest. Subsequently, the complainants filed a constitutional complaint in this case, arguing that the unduly extended detention followed by the arrest infringed on their right to personal liberty, freedom of assembly and right to equality. Besides, the complainants did not invoke a procedure to review the legality of the arrest before filing this complaint.

Subject Matter of Review

Whether it is justiciable to file a constitutional complaint without having filed a petition for review of the legality of arrest against the respondents (herein the police chiefs) who, without a warrant, apprehended the complainants red-handed and released them after 38

to 46.5 hours of detention

Summary of Decision

In a vote of 6 to 3, the Court ruled the constitutional complaint non-justiciable, stating that, although the complainants had been apprehended while committing offense at the protest site in the police officers' presence and held in custody for almost 48 hours in detention centers of police stations, filing the complaint before invoking a remedy procedure to review the legality of the arrest violates the principle of subsidiarity. Meanwhile, three Justices were of the view that the complaint in this case should be granted since the procedure to review the legality of arrest does not suffice as an appropriate legal remedy in this case. The reasoning of the opinions is given below.

1. Court Opinion

Since arrestees have access to the remedy procedure for reviewing the legality of their arrest as provided in the Constitution or Criminal Procedure Act, filing a constitutional complaint without having exhausted the legal remedy is against the principle of subsidiarity and thus non-justiciable. First of all, being unaware of the availability of the review of the legality of arrest guaranteed by the Constitution and Criminal Procedure Act cannot be a sufficient reason to consider that this case suffices as an exception to subsidiarity. Furthermore, considering the legislative purpose of the review, scope of those eligible to petition for review, competent authority of the review, procedures and the effect of release decisions as provided in Constitution and Criminal Procedure Act, the review of the legality of arrest is the most powerful and effective legal remedy for the offender who believes that his/her arrest on site was unjustified or that his/her detention was being overly extended beyond the necessary time period. In that sense, making the offender invoke the procedure to review the legality of arrest would neither be merely forcing him/her to take an ineffective remedy of rights nor be requiring a judicial bypass procedure.

2. Dissenting Opinion of 2 Justices (Review of Merits Required)

The complainants contest that a comprehensive and holistic view of the series of measures, including the investigation authority having arrested and detained the complainants for almost the statutory maximum for arrest of 48 hours and released them when the arrest deadline was close at hand, point to an abuse by governmental power of the regulation on arrest deadline defined in the Criminal Procedure Act as a means to punish or prevent the complainants from participating in other assemblies. In the context of this argument, it is evident that the current procedure to review the legality of arrest cannot serve as an appropriate legal remedy for judging the lawfulness of the arrest itself.

The procedure cannot be a substantially effective legal remedy in this case for the following reasons: a) there is not enough basis to expect, given the nature of arrest that ends shortly within 48 hours, that the offender could file a petition for review of the legality of arrest in a timely manner even if detention is exploited as a means of punishment or obstruction to attending other assemblies, b) the offender will be most likely hesitant in filing for the review since the court's decision on the legality of arrest would be made after his/her 48 hour detention period unless he/she is willing to accept the risk that the detention period may be extended even further and c) the procedure is unable to function as a control of unlawful or unjustified arrest if the investigation authority releases the offender before the court has reached its decision on the legality of arrest.

At the same time, the complainants argue that it was only after their release that they realized their arrest and detention by the investigation authority was in fact abused as a means to punish them for having attended the assembly at issue or prevent them from taking part in other subsequent assemblies. And asking these complainants to initially request the court for review of the legality of arrest and wait for the court's decision of dismissal before filing a constitutional complaint is as good as compelling them to take a bypass procedure

which in fact cannot act as a functional legal remedy.

3. Dissenting Opinion of 1 Justice (Dismiss the Complaint, But Review of Merits Required)

The proviso of Article 12 Section 3 of the Constitution provides that "in a case where a criminal suspect is an apprehendedflagrante delicto... investigative authorities may request an ex post facto warrant," thereby providing an exception to executing a priori warrant, and Article 213-2 and Article 200-2 Section 5 of the Criminal Procedure Act stipulates that the request for the warrant of detention should be "made within 48 hours from the time of arrest."

These provisions reflect the legislator's policy judgment that detention of less than 48 hours is not against the principle of the warrant system, taking into account the unusual characteristics of a flagrant offender, nature of the detention followed by an apprehension of a suspected criminalflagrante delicto, the time inevitably required for a criminal procedure and the reality of investigation. As this 48 hour-timeframe is hardly regarded as overly extended even in comparison with other countries, it cannot be assumed that the timeframe or standard for deciding whether to secure an ex post facto warrant significantly oversteps the boundary of legislative discretion and infringes on the fundamental rights of citizens.

In the case of Korea where ex post facto warrants should be issued within 48 hours from the time of arrest, it is proper to interpret that only the detentions which exceed 48 hours are in violation of the principle of the warrant system. Reversely, it would be improper to consider even the detentions lasting less than 48 hours to be in violation of the principle of the warrant system, since this view would amount to disrespect for the legislator's policy judgment that reflects the specific realities of Korea and an excessively limited interpretation of the principle of the warrant system under the Constitution.

Therefore, the detentions in this case that lasted 38 hours to 46.5 hours from the time of arrest do not violate the principle of the

warrant system provided in the Constitution, and no circumstances suggests that the fundamental rights of the complainants were violated by the detention in this case, either. For this reason, the detention in this case is not against the Constitution.