15.Challenging the Refusal to Allow Inspection or Copying of Case-Related Documents

[22-1(B) KCCR 621, 2009Hun-Ma257, June 24, 2010]

In this case, the Court held that, in accordance with the provision of the Criminal Procedure Act which concerns discovery, the public prosecutor's repeated refusal to allow inspection or copying of documents related to the case indicted despite the court's ruling that ordered otherwise infringes on the complainants' fundamental rights and is therefore unconstitutional.

Background of the Case

The complainants are defendants of case 2009Ko-Hab153, 168 (consolidated) at the Seoul Central District Court indicted by the respondent, who is a public prosecutor, on charges of special obstruction of the performance of official duties resulting in death. The defense counsel of the complainants, while preparing for the public hearing of the stated criminal case, filed an application that required inspection or copying of the entire case-related documents, and the respondent permitted inspection or copying of only some parts of the documents and refused to do so for the remainder of the documents. In response, the defense counsel, citing Article 266-4 Section 1 of the Criminal Procedure Act, filed a motion with the court requesting the inspection or copying of the remainder of documents, and the court ordered the respondent to allow inspection or copying of all the documents concerned.

Following the court's order, the defense counsel requested the respondent to allow inspection or copying of the remainder of documents, but the respondent repeatedly refused to do so (Yet, the full bench of the appellate court handling the abovementioned criminal case, while holding the case-related documents for the trial on application for a ruling, allowed the defense counsel to inspect or copy the documents, and, consequently, the complainants eventually

gained access to all the documents concerned).

Subject Matter of Review

The subject matter of review in this case is whether or not the respondent's act of repeated refusal of the defense counsel's request, following the court's ruling on April 16, 2009 that ordered the respondent to allow inspection or copying of case-related documents (hereinafter "the act of refusal"), infringed on the fundamental rights of complainants and thus violated the Constitution.

Summary of the Decision

In a vote of 8 to 1, the Court held, for the reasons stated below, that "The public prosecutor's refusal to allow inspection or copying of case-related documents despite the court's order of permission for that matter is in violation of the complainants' fundamental rights and the Constitution."

1. Court Opinion

A.As the defense counsels have already completed inspecting or copying the case-related documents, the Court's ruling in favor of the complainants in this case is no longer relevant in terms of the redemption of their subjective rights. Notwithstanding, as the Criminal Procedure Act was amended by Act No. 8496 on June 1, 2007, the defendant was given the right to inspect or copy the case-related documents held by the public prosecutor following the indictment and also the right to file an appeal against public prosecutors' refusal to allow inspection or copying of documents. In this case, the public prosecutor did not follow the court's order to allow inspection or copying that was prompted by filing of the appeal, and no constitutional clarification has been made for cases such as this. It is also highly likely that similar types of non-compliance acts may recur in the future. In this sense, there still is a protectable interest to benefit from adjudicating on this case although the complainants'

subjective protectable rights no longer exist.

B.The defendant's right to a fair and speedy trial and the right to counsel are fundamental rights guaranteed under the Constitution, and the defense counsel's right to inspect or copy case-related documents constitute a major element of the stated fundamental rights and serve as a concrete means to realize them. Therefore, if the right to a fair and prompt trial and the right to counsel are infringed on as a result of restricting the defendant's inspection and copying of case-related documents, this results in a violation of the Constitution.

C.In order to substantially guarantee the right to a fair and prompt trial and the right to counsel of the defendant, the Criminal Procedure Act provides that the public prosecutor shall, in principle, allow the defendant or his/her defense counsel to inspect or copy the case-related documents in case of an application; yet the public prosecutor may exceptionally refuse to allow the inspection or copying of such documents or place a limitation thereon if there is a reasonable ground to do so; and in refusing to allow the inspection or copying, or placing a limitation thereon, the public prosecutor shall notify of the reason in writing immediately (Article 266-3). In addition, the Act also stipulates that when a public prosecutor refuses to allow a defendant or his defense counsel to inspect or copy documents or places a limitation thereon, the defendant or defense counsel may make a motion to the court to allow him to inspect or copy such documents (Article 266-4), lest the defendant's right to inspect or copy documents become merely nominal.

Furthermore, once the court grants the motion filed by the defendant requesting the public prosecutor to allow inspection or copying of documents, it should be considered that the decision becomes effective upon the announcement of the ruling.

D.Article 266-4 Section 5 of the Criminal Procedure Act provides that if the public prosecutor does not comply with the court's ruling concerning the inspection or copying without delay, he/she shall not make a motion for admission of relevant witnesses and documents as

evidence. When interpreted, it means that while this provision forces the public prosecutor to promptly follow the court's ruling to allow inspection or copying for the purpose of protecting the defendant's right to inspection or copying of documents, in case of non-compliance, the public prosecutor shall face the disadvantage of not being able to file a motion for admission of witnesses and documents as evidence. For this reason, as long as the court ordered that the documents be allowed for inspection and copying, the public prosecutor, in accordance with the rule of law and the principle of separation of powers, should obviously comply with the court's ruling immediately. Therefore, the public prosecutor's non-compliance with the court's ruling infringes on the defendant's right to inspection or copying of case-related documents and, moreover, the right to a fair and prompt trial and the right to counsel.

E.The legislative purpose of newly adopting a regulation on inspection or copying of case-related documents in order to provide for a prompt and effective remedy, as well as the Court's review of whether the restriction on the inspection or copying of documents is justified when the court has already made a judgment on the justifiability of the public prosecutor's refusal to allow inspection or copying may, to a certain extent, result in determining the legitimacy of the court's ruling. Taking the aforementioned points into account, the act of refusal to allow inspection or copying of documents, as in this case, itself infringes on the complainant's fundamental rights, regardless of the need for a review of whether or not there is a legitimate reason for the public prosecutor to refuse to allow the inspection or copying of each document.

2. Supplementing Opinion to Majority Opinion of One Justice

The purpose of the regulations of Article 266-3 and Article 266-4 of the Criminal Procedure Act concerning the inspection or copying of investigation records is to prevent the defendant's or the counsel's right to inspection or copying of case-related documents from being rendered nominal and thereby protecting the defendant's right to defense substantially, while at the same time making public

prosecutors or courts give prudent judgments to prevent ill effects such as violation of major public interests including national security.

Yet, the court's ruling over the issue of inspection or copying of case-related documents may have a significant impact on the parties concerned and public interest, and there should be an opportunity to correct a wrongful ruling of the court if there is any. In that sense, for such rulings on the inspection or copying of documents, it is required that a legally effective means to file a petition of appeal be adopted as a special regulation for public prosecutors, defendants and lawyers.

Meanwhile, it is appropriate to interpret that the court's ruling on the inspection or copying under the current Criminal Procedure Act that has no written special regulation can be considered as courts' judgment as prescribed by Article 402 of the Act and thus can be appealed against in the same manner as other regular appeals. For this reason, as the public prosecutor is equipped with the means to raise objection to the court's ruling that orders him/her to allow inspection or copying, his/her act of refusal without an appeal process infringes on the complainants' fundamental rights and therefore violates the Constitution.

However, given the significance of the decision on whether to allow inspection or copying of case-related documents and the necessity for speedy proceeding of procedures, it is well advised from the legislative perspective that an immediate appeal that has the effect of suspending the execution, instead of a general appeal without the effect of suspension of execution, be allowed through a written provision, also serving as a means of appeal against the court's ruling on the inspection or copying of case-related documents.

3. Dissenting Opinion of One Justice

The complainants already had their rights redeemed as their counsels have already completed the inspection or copying of documents relating to this case, so the complaint in this case does not have a

subjective protectable interest involved.

In addition, according to the Criminal Procedure Act amended by Act No.8496 on June 1, 2007, public prosecutors are obligated to allow the defendant to inspect or copy case-related documents when ordered by the court's ruling to do so, and if in disagreement, should file an appeal as provided in Article 402 of the Act. In case the public prosecutor simply does not follow the court's ruling, he/she shall suffer a disadvantage of not being able to make a motion for admission of relevant witnesses and documents as evidence pursuant to Article 266-4 Section 5 of the Act, and this also substantially affects the probative power in concrete factual relationship related to documents concerned. Also, such procedural disadvantages likely to be suffered by the public prosecutor, who has the burden of proof in accordance with the principle of presumption of innocence, secures the effectiveness of court rulings on the public prosecutor's refusal to allow inspection or copying and functions as a substantial guarantee of the criminal defendant's right of defense. Therefore, it is hardly the case that the public prosecutor will disobey the court's ruling made on the basis of the provision of Article 266-4 of the Criminal Procedure Act and continue to commit similar types of non-compliance acts, or that there is a critical need for constitutional clarification in this regard.

Therefore, the subjective purpose of the claim in this case has already been served, and it is neither the case that there is likelihood for such non-compliance of public prosecutors to recur nor that constitutional clarification is critical. Eventually, this case has to be rejected, as it has no protectable interest and is thus injusticiable.