Refusal of the Participation of Attorneyin the Interrogation of Suspects who arenot in Custody

(16-2(A) KCCR 543, 2000Hun-Ma138, September 23,2004)

Held, the refusal by the prosecutor of the request made by com-plainants, who were suspects not in custody, for the participation of the attorney in the interrogation, was unconstitutional.

Background of the Case

The complainants in this case are the executive members of the non-government organization established prior to the 16th general election to constitute the National Assembly, which was held in April of 2000. On January 24, 2000, the above non-government organization publicly announced towards the political parties a list of the candidates whose nomination the organization opposed. The prosecution thereupon summoned the petitioners alleging crime. The petitioners requested that the prosecutor permit the participation of their attorney in the interrogation as suspects, however, the prosecutor refused such request. The petitioners thereupon filed a constitutional complaint on the ground that the above refusal violated their rights including the right to assistance of counsel.

Summary of the Decision

The Constitutional Court held, in a 6:3 opinion, that the above act of refusal violated the Constitution. The summary of the opinion is as follows.

1. Majority Opinion

The principle of government by law, the principle of due process, and the right to assistance of counsel under Article 12, Section 4, of the Constitution are guranteed for the suspect or the defendant who is not in custody. Also, seeking advice and consultation from the attorney appointed by the suspect or the defendant within the attorney's presence is always permitted from the outset of the investigation throughout the completion of the court procedure despite no specific express provision in the Criminal Procedure Act, unless there are certain special circumstances such as a concern for

illegal assistance.

In this case, the prosecutor refused the request of the complainants for the participation of the attorney for advice and consultation. However, in refusing the request, the prosecutor neither stated any reasons therefor nor submitted any materials thereon. Thus, the above act of refusal that curtailed the request made by the complainants for advice and consultation from the attorney during their interrogation as the suspects infringed the

right of the complainants for the assistance of counsel.

2. Concurring Opinion of Two Justices

The facts alleged against the complainants as the suspects pertained to such abstract content as purposefulness, premeditation and voluntariness. The suspects therefore should know the exact legal meaning of their statement. Hence, there is an increased need

for the appropriate assistance of counsel.

Participation of the attorney in the interrogation of the complainants would not increase the danger of the interference with the discovery of substantive truth or the destruction of evidence. Also, there is hardly any possibility of the infringement of legal interest such as life or bodily safety of the victim or the witnesses. Then, the public interest the prosecutor purports to achieve by limiting the participation of the attorney in the interrogation of a suspect in this case may not be deemed to

outweigh the basic rights of the complainants limited thereby.

Therefore, the above act of refusal violated the right to

assistance of counsel and the right to fair trial of the complainants.

3. Dissenting Opinion of One Justice

Article 12, Section 4, of our Constitution should be interpreted to guarantee the right to assistance of counsel for suspects under arrest or in custody and for the defendant in criminal proceedings only. The right to assistance of counsel for the suspect who is not in custody may not be deemed to be guaranteed at the constitutional

level.

4. Dissenting Opinion of Two Justices

Among basic rights, neither procedural rights nor claim-rights may be directly applicable to individual cases without specific legislative formation by the legislator. Likewise, in the case of the

right to request the participation of the attorney that is at issue in this case, the content of the right to request the participation of the attorney may not be determined without specific decisions of the legislator with respect to in which circumstances this right should be guaranteed and to which extent. Therefore, the above act of refusal by the prosecutor does not constitute a violation of the right

to assistance of counsel.

Aftermath of the Case

Following this decision, a new provision was added in the bill to amend the Criminal Procedure Act proposed by the Ministry of Justice, which was under preliminary announcement of legislation as of December 15, 2004, which permitted the participation of the attorney in the interrogation of the suspect(Article 243-2, Sections 1

and 2).

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Parties

Complainants

Choi O, and 1 other

Counsel of Record: Cho Yong-Hwan, Esq. Horizon Law Group(Ji-Pyung)

Respondent

Prosecutor, at Seoul Central District Prosecutors' Office

Holding

The act of the respondent on February 16, 2000 of refusing the request made by the complainants for the participation of the attorney in the interrogation of the complainants as the suspects is unconstitutional, as it is an infringement upon the right of the

complainants to the assistance of counsel.

Reasoning

1. Overview of the Case and the Subject Matter of Review

A. Overview of the Case

Complainant Choi O served as the co-representative and complainant Park Won-Soon served as the executive committee permanent co-chair, respectively, of the "Citizen Alliance for the 2000 General Election," which was organized on January 12, 2000. On January 24, 2000, facing the general election for the 16th National Assembly that took place in April of 2000, the above citizen alliance for the general election publicly announced a list of individuals whose political party nomination as candidates the

citizen alliance opposed.

The respondent thereupon summoned and interrogated the complainants as the suspects on February 16, 2000, on the ground that the above act of the complainants might have constituted a violation of the Public Office Election And Election Malpractice Prevention Act or defamation. Prior to the above suspect interrogation, the complainants requested verbally and in writing through their attorneys that the respondent permit the participation and the assistance of their attorneys during the interrogation of the complainants as suspects. The respondent refused the request, proceeded instead to interrogate the complainants as the suspects and documented such interrogation. The complainants thereupon filed the constitutional complaint in this case on February 24, 2000, claiming that the above act of refusal by the respondent violated the right to assistance of counsel, and they seek to confirm its

unconstitutionality.

B. Subject Matter of Review

The subject matter of review in this case is whether the act of the respondent of refusing the request for the participation and the assistance of the attorney in the interrogation of the complainants as suspects notwithstanding the specific request from the complainants as such, which occurred on February 16, 2000 (hereinafter referred to as the "act in this case") violated the basic rights of the complainants. Although the complainants also seem to view as the subject matter of review in this case the act of the respondent of interrogating the complainants as the suspects while denying the participation of the attorney, as long as the act in this case is deemed to be an exercise of government power and therefore reviewed as the subject matter of the case, the subsequent acts taken by the respondent constitute factual acts and no more than the continuation of the unconstitutional and unlawful state of the act of refusal, therefore not separately constituting the subject matter of

review. The relevant provision of law is Article 243 of the Criminal Procedure Act, which provides under the title of Interrogation of Suspect and Attendant that, in case a public prosecutor interrogates a suspect, he shall have an investigator, court administrative officer, or clerk of the public prosecutor's office present at the place, and in case a judicial police officer interrogates a suspect, he shall have a

judicial police official present at the place.

2. Complainants' Argument and the Opinions of the RelevantParties

A. Argument of the Complainants

(1) Although the suspect interrogation by the respondent at issue in this case itself was already completed, the issue of whether the constitutionally guaranteed 'right to assistance of counsel' includes the 'right to have the attorney participate and assist the suspect during the interrogation of a suspect by the investigative authority is a matter of great significance that requires constitutional clarification. Further, such act of violation of fundamental right is at danger of repetition in the future. Therefore, there is a need that the act of violation in this case be ruled

unconstitutional.

(2) Even though an individual is not under arrest or in custody by the investigative authority, the 'right to assistance of counsel' guaranteed by Article 12, Section 4, of the Constitution should be applicable as a matter of course in the case of investigation or trial

where the suspect or the defendant is not in custody.

(3) The circumstance to which a suspect is subjected while investigated at the investigative authority renders it practically impossible that the suspect may defend herself or himself against the interrogation posed by the investigative authority while maintaining free state of mind. Not only is the fact of being summoned and interrogated by the investigative authority itself a very imposing and painful situation to the individual, but also is such an individual who lacks expert knowledge in substantive or procedural law is practically forced to make statements under insecure situation of not knowing the investigation procedures or the meaning of the question asked by the investigative authority. Even if a suspect is aware of such, should she or he be in fact interrogated in the status of a suspect, it becomes difficult to properly exercise normal power of judgment. Therefore, without sufficient assistance of counsel, a suspect is put in a vulnerable

situation where she or he has difficulty in defending herself or

himself.

(4) The statement of a suspect given at the investigative authority becomes decisively unfavorable evidence against the suspect, Further, such statement made to the prosecutor is admissible as evidence notwithstanding the statement given by the same person at the court. Therefore, it is extremely important that a suspect, when making statement during the suspect interrogation by the prosecutor, is thoroughly guaranteed with all of the rights

including the right to remain silent and allowed to feel free.

(5) Therefore, in order to guarantee the rights of the suspect who is under interrogation at the investigative authority, and to verify any assertion by the suspect of the violation of rights, the attorney should be able to participate to monitor illegal investigation and to provide necessary and proper advice from time to time,

during the investigation of a suspect.

(6) Pursuant to the Korean-U.S. Status of Forces Agreement, the members and the civilian employees of the United States Army and their families are guaranteed with the 'right to have the attorney of their choice for their defense.' The lack of guarantee of the right to attorney participation when the Korean investigative authority interrogates the Korean citizens as suspects constitutes an unjust discriminatory treatment of the Korean citizens compared with the members and the civilian employees of the United States Army stationed in Korea, and, as such, is in violation of the right

to equality.

B. Opinions of the Director of Seoul District Prosecutors'Office and the Minister of Justice

(1) The interrogation of the complainants at Seoul District Prosecutors' Office ceased on February 16, 2000 and the complainants were released on the same day. Therefore, any violation of basic rights ceased to exist and there remains no justifiable interest for which a constitutional complaint may be filed. The constitutional complaint in this case should thus be dismissed

as moot.

(2) The 'right to assistance of counsel' guaranteed by Article 12, Section 4, of the Constitution is to enable a suspect or a defendant who is under arrest or in custody to immediately appoint a counsel and to freely meet and communicate with such counsel for sufficient defense against the facts accused or indicted against the suspect or the defendant, as well as to guarantee the inspection of

the litigation record by the attorney, yet not to guarantee the right of attorney participation during the interrogation of a suspect. The right of attorney participation at suspect interrogation is not a constitutional law issue, but instead an issue of legislative policyfor the realization of the two basic principles of criminal procedure, the 'discovery of substantive truth' and the 'protection of human rights

of the suspect and other relevant individuals.'

(3) The complainants assert that the 'participation of attorney in suspect interrogation is necessary in order for voluntary statement of the suspect.' However, our Constitution and Criminal Procedure Act sufficiently guarantee the voluntariness of the statement and the right to remain silent for the suspect under various provisions, and, should an investigative authority violate the above, the interrogation record becomes inadmissible as evidence and, further, such violation constitutes an illegal act, rendering the

investigative authority legally responsible.

(4) The complainants assert that the 'right of attorney participation at suspect interrogation is a common standard in all civilized nations.' However, although it is true that this right is recognized in some nations, it is not a right commonly recognized in all nations. In Korea, compared with those nations recognizing the right of attorney participation as above, the duration of lawful custody is extremely short and the right to meet and communicate with the attorney is permitted without limit. In light of such particular nature, in this circumstance, recognizing the right of attorney participation at suspect interrogation as well might render

investigation of important crimes practically difficult.

(5) Our investigatory institution's permitting the participation of attorney while investigating crimes committed by the members of the United States Army stationed in Korea and certain others pursuant to the minutes under the agreements such as Korean-U.S. Status of Forces Agreement is the result of a special provision to recognize the special status of the foreign citizens or to guarantee their rights comparable to those of the criminal procedure in their home countries. A different treatment of the Korean citizens compared with the members of the United States Army and certain others as the result thereof does not therefore constitute a violation

of the right to equality.

3. Determination of the Court

A. Determination on the Legal Prerequisites of the

Constitutional Complaint

(1) At the time the complainants filed the constitutional complaint in this case, the factual conduct(interrogation of the suspect) of the respondent that is the subject matter of this case had already ceased, by which the violation of the basic rights asserted by the complainants had also been completed. Therefore, the adjudication as sought at this Court will not relieve the

subjective rights of the complainants.

(2) However, the issue that the complainants seek to adjudicate by pursuing the constitutional complaint in this case is whether the 'right to assistance of counsel' guaranteed by the Constitution also includes the right of attorney participation at the interrogation of a suspect who is not in custody. This issue pertains to the fundamental question of the scope of protection of the basic right of the 'right to assistance of counsel,' and, as such, the clarification on the constitutionality of the act in this case bears a significant constitutional meaning. Therefore, although the illegal and unlawful state allegedly caused by the act in this case that is the subject matter of review has already ceased to exist, there is a need to confirm the constitutionality of such an act. The constitutional complaint in this case is thus lawful as there is justifiable interest for requesting adjudication(See3 KCCR 356, 367, 89Hun-Ma181, July 8, 1991; 9-2 KCCR 675, 688, 94Hun-Ma60, November 27, 1997,

etc.).

B. Determination on the Merits

(1) Constitutional Ground for the 'Right to Assistance of

Counsel'

The Constitution expressly states the 'right to assistance of counsel' as a constitutional basic right, as it provides in Article 12, Section 4, that "any person who is arrested or detained shall have the right to prompt assistance of counsel. When a criminal defendant is unable to secure counsel by his own efforts, the State shall assign counsel for the defendant as prescribed by Act. and, in the first paragraph of Article 12, Section 5, that "no person shall be arrested or detained without being informed of the reason therefor and of his right to assistance of counsel. It is clear that the main

provision of Article 12, Section 4, of the Constitution provides for the right to assistance of the 'attorney,' and its proviso provides for the right to assistance of the 'government-appointed attorney,' respectively. There is no doubt that the above right to assistance of the 'attorney' exists from the initiation of the investigation through the final and conclusive judgment. Further, should an indicted defendant be unable to obtain an attorney by herself or himself, the government is mandated to provide assistance of the 'government-appointed attorney' pursuant to the relevant statutes, thereby in the case of a defendant in the criminal procedure the right to assistance of counsel is declared in the Constitution not only as a mere personal right but also as, in certain circumstances,

a public obligation.

The main provision of Article 12, Section 4, of the Constitution provides for the right to assistance of counsel when a person is 'under arrest or in custody.' Therefore, a question remains to be answered with respect to whether a suspect or a defendant who is not in custody is excluded from the scope of the right to assistance of counsel under this provision. However, the above provision does not intend to provide for the right to assistance of counsel merely in the case where a person is 'under arrest or in custody.' The

reasons therefor are as follows:

First, the principle of the government by the rule of law, which is one of the fundamental orders of our Constitution, mandates a complete system for the effective relief of the rights against both the lawful and the unlawful exercise of the governmental power. An effective relief procedure for the rights applicable in the criminal procedure prohibits treating the suspect or the defendant as a mere object of the criminal procedure, and, further, requires that a relief procedure for the rights be structured pursuant to the procedural principle of equal arms under the principle of equality. Thus, the Constitution and the current Criminal Procedure Act guarantee, in order to realize the 'principle of equal arms,' various means and opportunities through which the suspect and the defendant may appropriately defend themselves, by enabling the suspect and the defendant to actively exercise their rights as the subject of the procedure, and, among these, the most substantial and effective means is the right to assistance of counsel. Here, the most fundamental element of the right to assistance of counsel is the right to obtain an attorney, and, it is a matter of course in light of the principle of due process that this should be guaranteed for all

suspects and defendants regardless of whether they are in custody.

Second, Article 12, Section 4, of the Constitution consists of the main provision and the proviso. In general, a proviso is used in

order to establish an area that is specifically excluded from the main provision or to include an area that is specifically added to the main provision. Here, as the proviso in Article 12, Section 4, of the Constitution guarantees the right to assistance of government- appointed counsel solely for the defendant(whether in custody or not), the main provision should be interpreted to be based on the premise that the right to assistance of(privately obtained) counsel is guaranteed for both the suspect and the defendant(whether in custody or not), for a natural and logical relation between the main provision and the proviso. Therefore, the main provision of Article 12, Section 4, of the Constitution that provides for the right to assistance of counsel when 'under arrest or in custody' is not to exclude the right to assistance of counsel of the suspect or thedefendant who is not in custody, but to specifically further underline,based on the above premise, the right to assistance of counsel of the suspect or the defendant who is under arrest or in custody.

In sum, although our Constitution does not expressly state whether or not the right to assistance of counsel is inclusively guaranteed for all suspects and defendants when not in custody, the right to assistance of counsel of the suspect who is not in custody should be read as a matter of course as the content drawn from the principle of the government by the rule of law and the principle of due process of our Constitution. Article 12, Section 4, of the Constitution should also be understood as separately providing expressly, based on this premise, for the right to assistance of counsel for those who are in custody or under bodily constraint in

order to underscore such right.

(2) Scope of Protection of the 'Right to Assistance of Counsel'

(A) The right to assistance of counsel means the right of the suspect and the defendant to obtain the assistance of the attorney for the effective and independent exercise of the rights provided for the suspect and the defendant under the constitutional and the procedural law, against the unilateral exercise of the authority of

the government to punish crimes.

The starting point of such right to assistance of counsel lies in the right to appoint an attorney, and this is the most fundamental element of the right to assistance of counsel and may not, as such, be limited even by statute. The specific contents included in the right to assistance of counsel beyond the right to appoint an attorney and, further, whether such right may be drawn directly from the above constitutional provision or provided only upon specific legislative formation, depend upon the perspective as to the

role and the function of the attorney in the criminal procedure.

The attorney in the criminal procedure serves on one hand a function of an assistant who supports the self-defense of the suspect or the defendant in the status of an adversarial party against the investigatory and the indicting institutions, and, on the other hand, a function of affecting the criminal procedure favorably to the suspect or the defendant and of monitoring and controlling the observance of the rights of the suspect or the defendant. The most important role of an attorney among the above is the one of an assistant, and the specific rights for the exercise of this role are in principle provided only upon the legislative formation. Thus, the Criminal Procedure Act thereupon provides with particularity the specific contents of the right to assistance of counsel, such as the right to inspect and photocopy the litigation record including the investigation record as well as the evidentiary materials, the right to request preservation of evidence, the right to collect other evidentiary materials, and the right to prepare attack and defense

based on the result of inspection over such materials.

However, any and all exercise of the above specific rights may be undertaken only when the advice and the consultation through meetings with the attorney is guaranteed, following the appointment of an attorney. Should a suspect or a defendant be unable to seek advice and consultation of the attorney, the exercise of the specific rights such as the above may become impossible or disregarded, and, further, such inability may even damage the meaning of the existence of the right to assistance of counsel itself as the result of misuse. Therefore, whether or not a suspect or a defendant is in custody, the role of the attorney as an assistant that may be served by way of advice and consultation constitutes the most essential content of the right to assistance of counsel along with the right to appoint an attorney. The right to consult the attorney and to seek advice from the attorney is a necessary prerequisite for other procedural rights included in the right to assistance of counsel that require specific legislative act, and, as such, may be drawn directly

from the right to assistance of counsel itself.

The Constitutional Court already declared that "freely meeting and consulting with an attorney is the most important content of the right to assistance of counsel guaranteed for those persons under bodily restraints or in custody, and, therefore, may not be limited under any justifications whatsoever such as national security, maintenance of order or public welfare(4 KCCR 51, 60-61, 91Hun-Ma111, January 28, 1992)." Although this precedent was on the right to assistance of counsel for the suspect who was in custody, this likewise applies in the case of the suspect or the

defendant who is not in custody. This is because our Constitution guarantees the right to meet and consult with the attorney as an essential content of the right to assistance of counsel regardless of the state of custody, and the only difference is that a suspect or a defendant who is not in custody may always leave to seek the advice and the consultation of the attorney during the investigatory and the trial proceedings therefore a provision that separately permits this is unnecessary, whereas a suspect or a defendant who is in custody may not freely leave thus the Criminal Procedure Act guarantees the right to free consultation and communication in

express provisions therefor.

To recapitulate, in the case of a suspect or a defendant who is not in custody, such an individual may always have her or his attorney present and seek the advice and the consultation of an attorney from the initiation of the investigatory proceeding through the completion of the trial proceedings, in order to obtain the assistance of the attorney obtained by herself or himself, even without any specific express provisions in the Criminal Procedure Act. Therefore, for a suspect who is not in custody, having the attorney present and seeking the advice and the consultation of the attorney at the interrogation of a suspect is to avoid the trouble of seeking the advice and the consultation from the attorney by leaving whenever necessary during the interrogation, and, as such, is not fundamentally distinguishable at all from seeking the advice and the consultation of the attorney by leaving the place of suspect interrogation (for example, by visiting the office of the attorney). Then, should a suspect who is not in custody wish to have her or his attorney present in order to seek advice and consultation of the attorney during the suspect interrogation, the investigative authority

may not refuse this request when there is no special circumstance.

Here, even though the right to have an attorney present and to seek the advice and the consultation of the attorney during the suspect interrogation directly applies to the criminal procedure as an essential content of the right to assistance of counsel, the above advice and consultation is not permitted when it obstructs the suspect interrogation or divulges the investigatory secrets. This is because the right to obtain the assistance of counsel by way of advice and consultation means the right to obtain 'lawful' assistance of the attorney, and not the right to obtain unlawful

assistance as well.

(B) The respondent asserts that the investigative authority is not obligated to permit the participation of the attorney at the suspect interrogation whether or not the suspect is in custody, on the grounds that Article 243 of the Criminal Procedure Act does not

include the attorney in the list of individuals who must participate in the suspect interrogation, and that the Criminal Procedure Act does not have any provisions actively guaranteeing or permitting the

participation of the attorney.

With respect to the above, Article 243 of the Criminal Procedure Act provides that "in case a public prosecutor interrogates a suspect, the public prosecutor shall have an investigator, administrative officer or clerk of the public prosecutor's office present at the place, and in case a judicial police officer interrogates a suspect, the judicial police officer shall have a judicial police official present at the place." However, the above provision merely provides for those individuals who must participate in the interrogation of a suspect, and does not actively exclude participation or presence of any individuals who are not included in the list. The above provision is merely intended to provide for the obligation that the investigative authority itself should observe in order to secure the accuracy of the documentation of the record and the fairness of the interrogation proceedings, and is not intended to limit the right of the suspect or the defendant under the procedural law including the right to assistance of counsel. Therefore, when a suspect who is not in custody wishes to obtain advice and consultation of the attorney during the interrogation of a suspect, unless there is a separate provision limiting this due to the concern of unlawful assistance as discussed above which applies to the suspect, the investigative authority may not refuse the above

request made by the suspect.

(3) Constitutionality of the Act in this Case

In this case, the respondent refused the request for the participation of attorney in the interrogation of a suspect made by the complainants to seek advice and consultation. In doing so, the respondent did not state any reasons therefor, and also failed to produce any materials concerning such act. Therefore, the act in this case that curtailed with no reason the request of the complainants for the advice and the consultation of the attorney during the suspect interrogation violated the right of the

complainants to assistance of counsel.

4. Conclusion

Then, the act in this case that violated the fundamental right of the complainants should be revoked without further reviewing upon the alleged violation of the right to equality as the complainants

assert. However, as the unlawful state caused by the act in this case already ceased to exist, instead of revoking the act in this case, the Court has determined to declare and confirm the

unconstitutionality of the act in this case. It is so held.

This decision is according to a majority opinion of the Justices, with the exception of a concurring opinion ofJustices Kwon SeongandLee Sang-kyungas stated in paragraph 5. below, a dissenting opinion ofJustice Kim Young-ilas stated in paragraph 6. below, and a dissenting opinion ofJustices Song In-junandChoo Sun-hoeas stated in paragraph 7. below.

5. Concurring Opinion of Justices Kwon Seong and LeeSang-kyung

We agree with the conclusion of the majority opinion, however, we respectfully disagree with its rationale, as indicated in the

following paragraphs.

A. Constitutional Ground for the Right to Assistance ofCounsel of the Suspect who is not in Custody

(1) The main provision of Article 12, Section 4, of the Constitution provides that "any person who is arrested or detained shall have the right to prompt assistance of counsel." The first paragraph of Article 12, Section 5, of the Constitution provides that "no person shall be arrested or detained without being informed of

the reason therefor and of his right to assistance of counsel.

The Supreme Court and the Constitutional Court thereby draws the right of the suspect and the defendant who is under arrest or in custody to have the assistance of counsel directly from the main provision of Article 12, Section 4, of the Constitution(3 KCCR 356, 367-368, 89Hun-Ma181, July 8, 1991; 4 KCCR 51, 59-61, 91Hun- Ma111, January 28, 1992; 7-2 KCCR 94, 106-107, 92Hun-Ma144, July 21, 1995; Supreme Court Decision 2003Mo402, November 11, 2003).

Although the main provision of Article 12, Section 4, and the first paragraph of Article 12, Section 5, of the Constitution specifically list a person who is under arrest or in custody as the holder of the right to assistance of counsel, this is to underscore the importance of the right to assistance of counsel for someone who is under bodily restraint, and not to exclude a suspect who is not in custody from the definition of the holder of the right to assistance of counsel. With the exception of the resolution of conflict or collision of basic rights, no express constitutional

provision for the protection of basic right may be a ground for the

restriction of other persons' basic right.

(2) The 'right to assistance of counsel' is a basic right in close relationship with the right to bodily freedom, which has been established, through historical experiences of many nations in the world, not as a right that is dependent upon the government's benevolent enactment of the procedure therefor, but instead as a right that should be protected to the maximum extent. Further, Sections 3(b) and 3(d) of Article 14 of the International Convention on Civil and Political Rights also provide for the right to assistance of counsel as the subjective public right of any and all persons. The second paragraph of Article 10 of the Constitution provides for the obligation of the state to recognize and guarantee, to the maximum extent, the inalienable basic rights of the individuals, and Article 37, Section 1, of the Constitution declares that even the freedom and the right not expressly provided in the Constitution shall be all guaranteed when necessary for the human dignity and value(See14-1 KCCR 49, 57, 2001Hun-Ba43, January 31, 2002). Also, the right to general freedom of action is recognized as the content of the right to pursue happiness under the latter part of the first paragraph of Article 10 of the Constitution. In light of the above, under the logical and structural construction of the Constitution, the 'right of a suspect who is not in custody to have the assistance of

counsel' is an inalienable basic human right under the Constitution.

Therefore, the 'right to assistance of counsel' is the right requiring the government to not intervene in or interfere with the suspect's having the assistance of counsel for a substantive guarantee of the bodily freedom. As such, the right to assistance of counsel is a basic right to request the removal of the government's infringement, and is not a right guaranteed only upon the specific enactment, by the legislator, of the form and substance of the

system.

(3) The right of the suspect who is not in custody to have the assistance of counsel is also recognized under the principle of due process. The due process principle under Article 12, Section 1, of the Constitution is the constitutional principle widely applicable to all legislative functions and executive functions as functions of the state, mandating that the procedure be established in the form of a formal statute and comply with such statute, and also that the content of the statute be appropriate in terms of reasonableness and justifiability. Especially in criminal procedures, the principle of due process is a basic principle requiring that the entire process of exercise of authority to punish be established from the perspective of the guarantee of the basic right(8-2 KCCR 808, 819, 94Hun-Ba1,

December 26, 1996). Although bodily freedom, along with the spiritual liberty, constitutes the foundation for all basic rights, there have been many examples in history where it has been infringed by the state especially in the form of exercise of the authority to punish. The Constitution, therefore, declares in Article 12, Section 1, the principle of due process, and then enumerates in Sections 2 through 7 in the same Article some of the principles of particular significance among those that may be derived from the principle of due process(Refer to 6-1 KCCR 348, 355-356, 93Hun-Ba26, April 28,

1994; 9-1 KCCR 313, 319-320, 96Hun-Ba28, March 27, 1997, etc.).

In light of such structure of Article 12 of the Constitution, the principle of due process governing the entire criminal process is a principle that should also be applicable to the investigation of a suspect who is not in custody. The express provision of Article 12, Section 4, of the Constitution that anyone who is under arrest or in custody shall have the right to assistance of counsel is not more than an express statement of one of the principles of due process

due to its particular significance.

In order not for a suspect to be reduced to a mere object of investigation and interrogation in the criminal procedure, even the discovery of substantive truth during the investigatory procedure should be limited by due process, and the basic human rights of the citizens may be guaranteed only by the observance of due process. The arrest or in-custody state does not fundamentally differentiate the status of a criminal suspect for whom the principle of due process should apply, and a suspect who is not in custody is in an unstable state in that such a suspect may be subject to custody at any time. Further, a suspect who is not in custody also needs to prepare to collect favorable argument and evidence and to rebut unfavorable argument or evidence, and should be protected from the possibility of the infringement of the human rights by the

investigative authority.

(4) Also, the right to request trial under Article 27 of the Constitution includes not only the right to have trial under procedural and substantive laws that are constitutional, but also the right to have a fair trial by rejecting secret trial and by receiving interrogation and judgment under the monitoring of the general public. Such right to have a fair trial includes the right to have a trial at which the parties are sufficiently guaranteed with the right to attack and defend by way of, for example, answering to, proving, or rebutting the alleged facts upon which the prosecution is based(8-2 KCCR 808, 820, 94Hun-Ba1, December 26, 1996). Also, the principle of the government of the rule of law, which is one of the basic orders of our Constitution, mandates, for the guarantee of the

basic rights, a complete relief system against the exercise of governmental power that is both effective and conforming to the

ideal of fair procedure.

In order to guarantee such right to have a fair trial, the principle of equal power between the investigative authority and the suspect should be realized from the investigatory stage. The result from the investigatory stage determinatively affects the findings of fact at trial, and the prosecutor's prosecution of the suspect and decision to not prosecute differ significantly. An attorney at the investigatory stage is indispensable in realizing the principle of equal power as an assistant who helps the suspect exercise the right to defend. Assistance of a legal expert is crucial for an appropriate exercise of the right to defend at the investigatory stage for the suspect who is psychologically intimidated and lacking knowledge in law. The suspect may form a substantively equal relationship with the investigative authority through the assistance of counsel, enabling the guarantee of due process and the

specific realization of the right to fair trial.

(5) Then, the 'right of a suspect who is not in custody to have the assistance of counsel' is a constitutional basic right that is derived from the 'principle of due process' under Article 10 and Article 12, Section 1, of the Constitution, the 'right to fair trial' under Article 12, Section 4, and Article 27 of the Constitution, and the 'ideal of fair procedure' as one of the elements of the principle of the government of rule of law. As such, it is a right that should be guaranteed to the utmost extent in relation with governmental

power.

B.The 'Right to have Counsel at Suspect Interrogation'of the Suspect who is not in Custody, and its Limits

(1) The content of the 'right of the suspect who is not in custody to have the assistance of counsel' includes,inter alia, the 'right to appoint an attorney.' The right to freely appoint an attorney is the starting point of the right to assistance of counsel,

and also constitutes the essential substance thereof.

Next, the right to assistance of counsel should mean the right, for a suspect, to be guaranteed with substantive and effective defense through the attorney against the alleged facts. Therefore, a suspect who is not in custody has the right to understand her or his situation and devise proper responsive measures through counsel, the right to hear explanation upon the meaning of the alleged facts, the right to hear opinions with respect to the method,

degree and content, and so on, of her or his statement, and the right to receive advice concerning the meaning of and the method to exercise the right to remain silent or the right to refuse signature and seal(Refer to 4 KCCR 51, 59-60, 91Hun-Ma111, January 28,

1992).

Further, it is at issue whether or not a suspect who is not in custody has the right to have the attorney participate during the

suspect investigation at the investigative authority.

(2) The Supreme Court, with respect to the right of a suspect who is detained to have the attorney participate during the suspect interrogation, held that, although there is no provision of law expressly recognizing such right, inference from Article 12, Section 4, of the Constitution and Articles 89, 209 and 34 of the Criminal Procedure Act permits a detained suspect to request the participation of the attorney at the suspect interrogation, that the investigative authority may not refuse such request, and that thisinterpretation conforms to the spirit of the Constitution declaring the principle of due process concerning the detention and the punishment of

aperson(Supreme Court Decision, 2003Mo402, November 11, 2003).

Likewise, in the case of a suspect who is not in custody, such a suspect also has the 'right to have the attorney participate in the suspect interrogation,' regardless of the existence of an express provision of law specifically stating such right. The 'right to assistance of counsel,' which is a constitutional basic right in order for the guarantee of the bodily freedom, maintains the identical nature regardless of the state of arrest or detention of the holder of the right. Neither the nature of the suspect interrogation nor its

requisites vary, whether the suspect is in custody or not.

The right to assistance of counsel is demanded in order to prevent a consequence that will not conform with the principle of equal power resulting from the inappropriate defense against the investigation undertaken by the investigative authority due to the suspect's lack of legal knowledge, and this demand should not cease in the case of the suspect interrogation of a suspect who is not in

custody.

(3) Although the interrogation of a suspect is a procedure meant to secure voluntary statements of a suspect, it is a procedure in which the investigative authority directly obtains evidence through the statement of a suspect who is accused of a crime, while, at the same time, it is an opportunity for a suspect to assert the facts favorable to herself or himself. As the result of a interrogation undertaken by the investigative authority during the investigatory procedure determines the direction of the investigation and is used

as the important evidentiary material at trial, the substantive and procedural fairness of the interrogation closely relates to the right

of the suspect to have a fair trial.

Also, as obtaining the confession of a suspect through interrogation is utilized as an important method of investigation, there is an increased possibility that the human rights of the suspect might be infringed during such process. In order to prevent such elements of human right infringement, our legal system is equipped with many provisions of law pertaining to the exclusion of evidence, the notice of the right to remain silent, the participation of the investigatory officers, etc.(See Article 12, Section 7, of the Constitution; Articles 200(2), 309, 243 and 312 of the Criminal Procedure Act, etc.). However, a legal provision stating the right to remain silent does not amount to anything at all should a suspect not be able to actually exercise such right, and the exclusionary rule may only serve as anex post factoand indirect relief method for the infringement of human rights during the suspect interrogation process. Furthermore, although such a passive method as the exclusion of probative value as evidence may function afterwards at trial, it can hardly be realistically expected at the

stage of the determination of indictment by the prosecutor.

Therefore, in order also for the fundamental prevention of the possibility of the infringement of the suspect's basic right that might occur during the investigatory proceedings behind closed doors, the 'right to have the attorney participate during the suspect interrogation' should be guaranteed for the suspect who is not in

custody.

(4) With the exception of the suspect who is accused of an extremely minor offense, the bodily freedom of a suspect who is not currently in custody might be subsequently restrained by detention or sentencing of a prison term according to the content of her or his statement at the suspect interrogation. Thus, such a suspect is subjected to a desperate situation that is no better than a detained suspect. Even for a suspect who is not in custody, it is not realistically expected that such a suspect can refuse to make a statement or leave the place of interrogation during the suspect interrogation, and a unilateral and active inquiry into the truthfulness of the statement of a suspect by the investigative authority does actually occur. Therefore, there is an urgent demand for the suspect who is not in custody for the 'right to have the attorney participate in the suspect interrogation' no less than for a

suspect who is under arrest or detention.

Furthermore, compared with the suspect who is in custody, in cases of suspects who are not in custody, the suspicion for the

commitment of crime likely to be weak, the nature of the crimelikely to be less offensive, or the likelihood of the destruction of evidence or flight tending to be less. Therefore, those rights recognized for the suspect who is under detention under the current criminal procedure should also be recognized for the suspect who is

not in custody, as a matter of course.

(5) Although the statement included in the protocol containing the interrogation of a suspect significantly affects the determination of the prosecutor whether or not to prosecute and the formation of the result of a criminal trial, a suspect faces a risk of not being able to substantively exercise the right to defense during the suspect interrogation process due to the lack of legal knowledge. This also constitutes a ground for providing the suspect who is not

in custody with the assistance of counsel who is an expert in law.

While a suspect who is not in custody tends to make statements by recalling the facts of the past under the standard of life experience of the general public in the society which does not necessarily reach the legal assessment of the facts alleged, a prosecutor, who is an expert in law, can induce the statement necessary for the legal judgment upon, for example, whether the elements of crime have been satisfied, during the process of questioning and answering. Especially in the case of those crimes that require subjective elements for commitment of the crime such as the subtle distinction between knowledge and reckless disregard, purpose, tendency and intent to obtain illegally, certain statements made after not much of consideration by an unaware suspect who is not in custody provided during the process of restructuring the facts in the past, might be used as important evidentiary materials determining guilt and innocence or finding an element constituting an aggravated offense punishable by heavier sentence. Therefore, in order for a suspect who is not in custody to correctly understand the legal meaning of her or his statement made during the suspect interrogation, it is required that such a suspect have the appropriate

assistance of counsel who is a legal expert.

The principle of punishment of crime by due process under Article 12, Section 1, of the Constitution means not only that the procedure should be established in the form of the statute, but also that the content of the applicable statutes should be appropriate in terms of reasonableness and justifiability. This principle also requires that the procedure be established and maintained in a way that minimizes the possibility of the infringement of the basic rights held by the criminal defendant and others by governmental power, throughout the entire criminal procedure(Refer to 4 KCCR 853, 876-877, 92Hun-Ga8, December 24, 1992; 9-1 KCCR 245, 259,

96Hun-Ga11, March 27, 1997; 10-2 KCCR 218, 226, 97Hun-Ba22,

July 16, 1998).

Therefore, should the suspect be treated as a mere object of the interrogation during the investigatory process, the principle of due process mandated by the Constitution may not be deemed to have been observed. Permitting the participation of attorney for a suspect during the suspect interrogation is for the substantively appropriate exercise of the suspect's defense right by helping the suspect properly understand the legal meaning of the questions posed by the prosecutor and investigation officer and the statement made by herself or himself and by preventing such human right infringement as leading questions, and is also for the substantive guarantee of the principle of due process and the right to fair trial of the

Constitution.

(6) As above, the 'right to have the attorney participate in the suspect interrogation' should be guaranteed also for the suspect who is not in custody, in order to substantively guarantee the exercise of rights such as the right to remain silent by the non-custodial suspect, to prevent the possibility of human right infringement during the interrogation process, to protect the non-custodial suspect who is in an equally difficult situation compared with a detained suspect, and to enable a suspect who needs the assistance from a legal expert to substantively exercise the defense right. This is an essential content of the right to assistance of counsel. The 'right to have the attorney participate in the suspect interrogation' of the suspect who is not in custody, realizes the protection of the principle of equal power and the suspect's defense right literally and directly during the investigation process, thereby realizing the principle of due process and the right to fair trial guaranteed by the

Constitution.

(7) There may be, however, certain restrictions upon the exercise of the 'right to have the attorney participate in the suspect interrogation' held by the suspect who is not in custody. However, such restriction may be imposed only by the statute and only where necessary for national security, maintenance of order, or public welfare, pursuant to Article 37, Section 2, of the Constitution. Furthermore, such restriction, even when permitted, may never

infringe upon the essential substance of the freedom or the right.

Nowhere in the current statutes including the Criminal Procedure Act can be found a provision restricting the 'right to have the attorney participate in the suspect interrogation' held by the suspect who is not in custody. The only such provision is included in the 'Operation Manual for Attorney Participation in Suspect Interrogation' internal to the Public Prosecutors' Office and

the 'Manual for the Guarantee of Attorney Participation in Suspect Interrogation' internal to the Korean National Police Agency, which states that the participation of the attorney in the suspect interrogation may be limited when it causes significant hindrance to

the investigation.

(8) The public interest for which the non-custodial suspect's 'right to have the attorney participate in the suspect interrogation' may duly be limited includes the public interest of discovering the substantive truth by the investigative authority by way of excluding the possibility of the suspect's refusal to confess, the justifiable purpose of the investigatory activities to prevent exposure of investigatory secrets, the interest of effective criminal prosecution, the prevention of the flight of the individuals relevant to the case including accomplices and of the destruction of evidence, and the protection of the life and bodily safety of the victim and the

witnesses.

In the case of a suspect who is not in custody, the suspect herself or himself continues ordinary daily life following the closure of the interrogation process. Therefore, there already exists the risk of the flight of the accomplice and other individuals relevant to the case, of the destruction of evidence, or of the threat to the life or bodily safety of the victim or the witnesses, which might be committed by the suspect. Hence, the public interest achievable by restricting the participation of the attorney in such cases is neither clear in all cases nor greater than the right that is restricted. There may be a position that underscores the above public interest also in the case of a non-custodial suspect based upon the possibility of emergency arrest. However, the possibility of an emergency arrest of a non-custodial suspect during the process of interrogation, rather serves as a ground for indicating the necessity to guarantee the 'right to have the attorney participate in the suspect interrogation' for all suspects regardless of the state of arrest or

detention.

Also, considering that the human right infringement by the investigative authority has resulted from the investigatory practices excessively bent on obtaining the suspect's confession, and that certain evidentiary rules of the Constitution and the Criminal Procedure Act are intended to secure voluntariness of the confession, restriction upon the suspect's right to request the participation of attorney on grounds of difficulty in the investigative

authority's obtaining confession may hardly be justified.

(9) Therefore, restriction upon the 'right to have the attorney participate in the suspect interrogation' of the non-custodial suspect on grounds of public interest such as the discovery of substantive

truth by the investigative authority, the prevention of the flight of the accomplice or other individuals relevant to the case or of the destruction of evidence, or the life and the bodily safety of the victim or the witnesses may not be deemed to be justified in

general in all cases.

Rather, only those restrictions upon the non-custodial suspect's 'right to have the attorney participate in the suspect interrogation' to the extent of necessary minimum limited to the case where the request of public interest is greater as the result of the prudent balancing between the 'right to have the attorney participate in the suspect interrogation' of the non-custodial suspect and other public interests under specific circumstances, may not be found in violation

of the principle against excessive restriction.

C. Constitutionality of the Act in this Case

(1) The complainants were subjected to the interrogation of a suspect without participation or assistance of counsel due to the respondent's act in this case, and the statement of the complainants included in the protocol containing the interrogation of a suspect was taken as the evidentiary material during the investigation and trial process. Thus, the act in this case undertaken by the respondent has restricted the right of the complainants to request the participation of attorney. The question therefore is whether there

has been a public interest sufficient to justify such restriction.

(2) The facts upon which the accusation against the complainants were based pertained to the suspicion of the violation of the Act On the Election of Public Officials and the Prevention of Election Malpractices or of defamation, and, at issue were the limits of and the restrictions upon such important constitutional basic rights as the freedom of expression, the freedom of election campaign, and the right to participate in government. Article 58, Section 1, of the Act On the Election of Public Officials and the Prevention of Election Malpractices defines the 'election campaign' as the 'conduct intended to be elected, to enable someone to be elected, or to prevent someone from being elected,' and the Constitutional Court previously held that "the election campaign is limited to the active and premeditated conduct with respect to which an objective intent purported for the election or the failure therein of a specific candidate exists, and the elements required for finding a punishable conduct of election campaign distinguishable from a simple expression of opinion include the purpose for election, obtention of votes or failure in election, the objectively recognizable purpose as such, the active nature of the conduct, and the

premeditation(6-2 KCCR 15, 33-34, 93Hun-Ga4, July 29, 1994; 13-2 KCCR 263, 274, 2000Hun-Ma121, August 30, 2001; Gazette No. 93, 588, 2004Hun-Na1, May 14, 2004)." The Supreme Court also held that "the election campaign within the meaning of Article 58, Section 1, of the Act On the Election of Public Officials and the Prevention of Election Malpractices refers to the active and premeditated conduct with respect to which an objective intent purported for the election or the failure therein exists, as a conduct necessary for and in favor of the election, the obtention of votes, or the failure in election, of a specific candidate(Supreme Court

Decision 98Do1432, April 9, 1999)."

Thus, in order to find the complainants guilty of the alleged facts, the elements that had to be proven included the 'purpose for election, obtention of votes or failure in election, the objectively recognizable purpose as such, the active nature of the conduct, and the premeditation.' Therefore, the complainants in this case were much in need of appropriate assistance of counsel for the substantive guarantee of the exercise of defense rights, by making statement based upon precise understanding of the legal meaning of their statement during the suspect interrogation concerning the

accused facts.

Furthermore, regardless of the qualifications or the social experiences of the complainants, as the suspects summoned to the investigative authority, there is also a concern that the complainants

might have been psychologically belittled.

(3) On the contrary, in this case, there was no high risk of interference with the discovery of substantive truth or destruction of evidence to be caused by permitting the participation of the attorney in the suspect interrogation of the complainants as the conduct of the complainants had publicly been undertaken and had continuously been reported through various mass media, and there was hardly any possibility of harming such legal interests as the life or bodily safety of the victim or other witnesses due to the particular nature of the facts alleged. Therefore, the public interest that the respondent purportedly intended to achieve by restricting the participation of attorney in the suspect interrogation in this case may not be deemed to be greater than the complainants' basic rights thereby limited, and is thus insufficient to justify the

infringement of the basic rights.

(4) Furthermore, as reviewed above, as there is no provision in the statute such as the Criminal Procedure Act restricting the 'right to have the attorney participate in the suspect interrogation' of the non-custodial suspect, the act in this case of the respondent violates the Constitution with respect to the formal aspect of the restriction

of the basic right as well.

(5) Therefore, the respondent's act in this case that completely prohibited the participation of the attorney in the suspect interrogation process despite the request from the complainants, without offering a justifiable ground therefor, infringed the right to

assistance of counsel and the right to fair trial of the complainants.

D. Conclusion

Then, the respondent's act in this case that infringed the fundamental rights of the complainants should be revoked. However, as such act was previously completed, a declaratory judgment confirming the unconstitutionality of the above act instead of the revocation thereof is a proper remedy. The grounds therefor are as

in the preceding paragraphs.

6. Dissenting Opinion ofJustice Kim Young-il

I respectfully disagree with the holding of the majority that the act in this case unconstitutional, on the grounds indicated in the

following paragraphs.

A. With respect to the Majority's Reasoning

(1) The majority opinion is that the constitutional right to assistance of counsel is guaranteed for all suspects and defendants regardless of their state of detention, that such right to assistance of counsel includes the right to request the participation of the attorney at the suspect interrogation, and that this right is recognized and applicable even without specific legislation. The primary ground for the above majority opinion is the principle of equal power based upon the principle of government by the rule of law; the secondary ground for the above majority opinion is that, as the proviso of Section 4 of Article 12 of the Constitution predicating the exception applies regardless of the state of detention, the main provision of Section 4 of Article 12 that states the principle should

also apply regardless of the state of detention.

(2) The right to assistance of counsel - particularly the right to request the participation of the attorney,inter alia, which is at issue in this case - is a procedural right. Such procedural rights fundamentally have the nature of a claimable right. Although it is true that a stronger guarantee for the procedural right of the right to request the participation of the attorney has a corelation with a

stronger guarantee for the substantive right of the right to liberty such as the right to bodily freedom, the substantive right should be clearly distinguished from the procedural right that is needed to protect such substantive right. As such, the right to request the participation of the attorney which is a procedural right serving as means for the guarantee of the right to liberty should not be

identified or confused with the right to liberty.

As the right to request the participation of the attorney has, as a procedural right, the nature of a claimable right, unlike the right to liberty that may be recognized and applied without specific express provisions, in order to recognize and apply the right to request the participation of the attorney in the case of a non-custodial suspect as a constitutional right, either there should be an express provision concerning such right or, should there be no such express provision, a construction by inference from related

provisions should support the existence of such right.

The majority opinion reads to the effect that the main provision of Article 12, Section 4, of the Constitution is the constitutional provision that forms the ground for its conclusion. However, the main provision of Article 12, Section 4, of the Constitution clearly provides that the right to assistance of counsel is guaranteed upon "arrest or detention" and no more, and it is clear that this provision is silent with respect to whether such right is also guaranteed for

the suspect who is not in custody.

The majority opinion is to the effect that the expression of "upon arrest or detention" in Article 12, Section 4, of the Constitution is merely to underscore the importance of the right to assistance of counsel for a person who is arrested or detained, considering such difference. However, the predication that the above expression is merely to underscore the importance and does not limit the scope of applicability, is no more than a far-fetched interpretation to support the conclusion of the majority opinion, and, may in no way be, a natural construction of the text of the above

provision.

Should the main provision of Article 12, Section 4, of the Constitution been intended to be applicable regardless of the state of detention as the majority opinion asserts, then it could simply have been written that "all suspects and defendants have the right to assistance of counsel," which would have been a simpler and more precise expression; there is no reason whatsoever to distinguish the case for the suspects and defendants who are detained from the case for the suspects and defendants who are not when there is no difference according to the majority opinion in the legal meaning between these two cases, including then an express provision

merely for the former case. If it were for a specific emphasis, it would be a natural way to first clearly guarantee the general right in the Constitution and then to add a provision for an emphasis. It is rather unnatural to leave a provision for emphasis without any

express provision for the guarantee of the general right.

The majority opinion is to the effect that, under the general relationship between the main provision and the proviso, the main provision of Article 12, Section 4, of the Constitution should be applicable regardless of the state of detention as the proviso of the same section of the same article applies regardless of the state of detention. This is based upon the presumption that the main provision and the proviso should have the same scope of applicability. However, under this same logic of the majority opinion, as the proviso of Article 12, Section 4, of the Constitution articulates as to the government-appointed attorney, the main provision of the same article of the same provision should also apply to the government-appointed attorney, thereby reaching the conclusion that the 'counsel' within the meaning of the main provision of the same article of the same provision includes both the government-appointed attorney and the privately-appointed attorney. This is in conflict with the understanding adopted by the majorityopinion itself that the above 'counsel' means the '(privately-appointed) attorney.' Therefore, the relationship between the main provisionand the proviso of Article 12, Section 4, of the Constitutionshould not be

understood as in the majority opinion.

Rather, instead, the express provision of Article 12, Section 4, of our Constitution merely mentions the case of an individual under arrest or in custody, and the case of a criminal defendant. This should be understood as a statement of intention that our Constitution, at the time of its establishment, discerned the concept of non-custodial suspect on one hand and the concept of suspect under arrest or in custody and criminal defendant on the other hand, guaranteeing the 'right to assistance of counsel' for, among the above, the suspect under arrest or in custody and the criminal defendant, while, for the non-custodial suspect, not guaranteeing the

'right to assistance of counsel' at the constitutional level.

Next, whether or not Article 12, Section 4, of the Constitution may apply to the case of a non-custodial suspect by inference is

examined.

It is true that all suspects who are subjected to interrogation by an investigative authority are of the same status in a sense, whether or not they are in custody. However, because the legal circumstance that a non-custodial suspect faces during the interrogation proceeding differs fundamentally from the legal

circumstance of a suspect or defendant under arrest or in custody, Article 12, Section 4, of the Constitution may not apply to the non-custodial suspect by a blind inference. Should there be an express provision guaranteeing the right to assistance of counsel for the non-custodial suspect while there is no provision for the suspect under arrest or in custody, such an express provision may be applicable to the suspect under arrest or in custody by inference unless against the nature of the provision. However, an express provision for the suspect or the defendant under arrest or in custody may not become applicable to the non-custodial suspect in turn unless there is a special circumstance therefor. When our Constitution, which is a written constitution, clearly distinguishes the concept of the non-custodial suspect on one hand and the concept of the suspect under arrest or in custody and the criminal defendant on one hand, with an express provision, among the above, solely for the suspect under arrest or in custody and the criminal defendant, such an express provision may not be rendered applicable to the non-custodial suspect by inference on the sole ground that there is an urgent need therefor. When reading an express provision,

the thing that is not included therein should be read as not included.

On the other hand, in order to draw a concrete constitutional right from such abstract principles as the principle of the government by rule of law or the principle of due process, a minimum requirement therefor demands that no such right be in conflict with other express constitutional provisions. However, as examined above, Article 12, Section 4, of the Constitution intends not to guarantee the right to assistance of counsel for the non-custodial suspect at least at the constitutional level, drawing such right out of the abstract constitutional principles is not

permissible as it conflicts with the above express provision.

(3) Thus, the right to assistance of counsel is not a constitutionalbasic right for the suspect who is not in custody. However, even assuming that it is, there is a gap in logic in the majority opinion.

The majority opinion is to the effect that the function of an attorney as an assistant by providing advice and consultation to the suspect is the most essential of the substance of the right to assistance of counsel, and that the right to request the participation of an attorney in the suspect interrogation in order to have such assistance is recognized without a concrete express provision in the

Criminal Procedure Act.

In my humble opinion, a certain part of the substance of a right may be deemed to be the essence of such right only when the denial of this part denies the existence of the right itself or renders the existence of the right meaningless. Here, the right to appoint an

attorney and the right to meet and consult with an attorney that guarantee the existence of an attorney constitute the essence of the right to assistance of counsel. However, such further rights as the right to make a statement through an attorney, the right to inspect the record through an attorney and the right to request the participation of an attorney, although they may enrich the right to assistance of counsel, the lack thereof neither denies the existence of the right to assistance of counsel itself nor renders it meaningless. On this ground, I do not agree with the majority opinion that is premised upon the predication that the right to request the participation of the attorney constitutes the essence of

the right to assistance of counsel.

(4) I have a strong suspicion that the majority opinion has failed in a systemic construction of the Constitution and reached a gap in logic as it puts too much emphasis on the purpose that the guarantee of the participation of the attorney for non-custodial suspects is desirable for the guarantee of the human rights of individuals. That something is desirable should be strictly distinguished from that something is guaranteed by our Constitution. Reasoning by a loose collage of various uncorroborated concepts to conclude that something is guaranteed by the Constitution is no more than confusing between a something and a necessary

amendment thereto.

B. With respect to the Complainants' Argument thatthe Act in this Case Infringed the 'Right to Equality'

The complainants argue that the right to equality of the complainants is infringed as the members of the United States military stationed in the Republic of Korea and certain others are guaranteed with the 'right to have an attorney of one's own choice for one's defense' under 'Korean-U.S. Status of Forces Agreement,' while the right to request the participation of the attorney in the

interrogation of a suspect is not guaranteed for the complainants.

However, although Article 22, Section 9, Subdivision(v), of the 'Korean-U.S. Status of Forces Agreement' applicable when the Republic of Korea exercises the right of criminal adjudication against the members of the United States military stationed in the Republic of Korea and certain others guarantees the 'right to have the attorney of one's own choice for one's defense,' it is a provision that is triggered 'upon indictment.' Also, the minutes for the 'Korean-U.S. Status of Forces Agreement' relevant to the above provision reads that 'the right to assistance of counsel begins to exist from the time of arrest or detention.' Therefore, it may not be

deemed that the 'Korean-U.S. Status of Forces Agreement' guarantees the right to request the participation of the attorney for

all non-custodial suspects.

More fundamentally, the right to equality becomes an issue when the essentially identical objects are treated differently. Here, however, the Korean-U.S. Status of Forces Agreement is a treaty concluded between the Republic of Korea and the United States of America in light of the special nature of a foreign troop stationed in the Republic of Korea and the diplomatic relationship, and, while the regulation of the members of the United States military stationed in the Republic of Korea is undertaken by this treaty, the regulation of the complainants is undertaken by domestic law. Thus, these two may not be deemed essentially identical. Therefore, the above argument asserted by the complainants that is based upon the premise that these two are essentially identical is groundless even

without further review.

C. Conclusion

For the foregoing reasons, I respectfully disagree with the majority opinion. I am in the opinion that the constitutional complaint in this case filed by the complainants is groundless, and

should therefore be rejected.

7. Dissenting Opinion of Justices Song In-jun and Choo

Sun-hoe

Unlike the majority opinion, we are of the opinion that the act in this case is not in violation of the Constitution. The reasons are

indicated in the following paragraphs.

A. Legal Nature of the Right of the Non-CustodialSuspect toRequest the Participation of the Attorney in the Suspect

Interrogation

(1) The majority opinion states that, "the attorney in a criminal procedure serves on one hand a function of an assistant who supports the self-defense of the suspect or the defendant in the status of an adversarial party against the investigatory and the indicting institutions, and, on the other hand, a function of affecting the criminal procedure favorably to the suspect or the defendant and of monitoring and controlling the observance of the rights of the suspect or the defendant. The most important role of the attorney among the above is the one of an assistant, and the specific rights

for the exercise of this role are in principle provided only upon legislative action. However, the right to consult the attorney and to seek advice from the attorney is a necessary prerequisite for other procedural rights included in the right to assistance of counsel that require specific legislative formations, and, as such, may be drawn directly from the right to assistance of counsel itself." The majority opinion proceeds to assert that the right of a non-custodial suspect to have the attorney present and to seek advice and consultation from the attorney at the interrogation process, that is, the "right to request the participation of the attorney in the suspect

interrogation," is drawn directly from the Constitution.

(2) However, the right of a non-custodial suspect to request the participation of the attorney in the suspect interrogation that is at issue in this case is a procedural basic right the content and substance of which may not be determined without concrete and specific decisions by the legislators with respect to 'in which circumstances and to which extent' such right is guaranteed. A procedural basic right or a claim-right may not be directly applicable to individual cases without the concrete and specific legislative enactment by the legislators, which is a basic theory of the Constitution. As a claim-right, which requests a specific act of the state, may be guaranteed only within the scope that is established in terms of its content, in order for the guarantee of a claim-right as a subjective right of an individual that can be legally enforceable, what may be claimed should be established in terms of content and scope. The object of request cannot be established for itself at the level of the Constitution. Instead, it needs a concrete

and specific legislative enactment by the legislators.

Assuming, as the majority opines, that the right of a non-custodial suspect to request the participation of the attorney in the interrogation of a suspect were drawn directly from the Constitution even without legislative measures, then the content of such right to request the participation of the attorney would be the 'right to request the participation of the attorney in all circumstances without limit.' It is a matter of course that such

unlimited right to request participation may not be recognized.

(3) Should the right to request the participation of the attorney guarantee the 'function of an assistant served through the advice and consultation for the suspect and the defendant' as the most essential function among the substance of the right to assistance of counsel, and should such right to request the participation of the attorney be the basic right directly applicable for all suspects regardless of the state of detention by the law enforcement institutions without supporting statutory provisions, as the majority

asserts, this would cause great confusion to the law enforcement institutions. On the part of the citizens as well, it would be undesirable from the perspective of legal stability due to the

unpredictability concerning the law.

The law enforcement institutions would stand facing an extremely complex, difficult and uncertain mission as they would have to figure out the substance of a basic right for themselves from the constitutional provisions for the basic rights through constitutional construction and then apply it to individual cases. The citizens to whom the law applies would be in the situation where they could not predict 'in which circumstances they could request the participation of the attorney' or 'in which circumstances the participation of the attorney might be restricted.' Such a legal

situation may not be tolerated in any state under the rule of law.

B. Whether the Act in this Case Infringes the 'Right toAssistanceof Counsel' of the Suspect

The issue that the complainants has raised by filing the constitutional complaint in this case is whether the act of a prosecutor that did not allow the participation of the attorney in the interrogation of the non-custodial suspects infringed the 'right to assistance of counsel' held by the complainants who were the non-custodial suspects. This issue is carefully examined in the

following paragraphs.

(1) Whether it is unconstitutional that the legislators have not recognized the right to have the attorney participate in the interrogation of a non-custodial suspect by the investigative

authority.

The legislators, with respect to the participation of the attorney in the suspect interrogation, have not included the attorney in those in Article 243 of the Criminal Procedure Act who may participate inthe suspect interrogation, nor are there other provisions that otherwiseguarantee or allow the participation of the attorney. As a result, whether a suspect is in custody or not, the legislators have not provided for the obligation of the investigative authority to allow the participation of the attorney in the interrogation of a suspect.

Whether or not a procedural legal provision concretely and specifically formed by the legislators infringes the right to assistance of counsel, is determined by the principle of proportionality that requires balancing among conflicting legal interests for an appropriate balance and harmony. The right to fair trial is, along with other principles derived from the principle of the

government by rule of law, merely one mandate materializing the principle of the government by rule of law. Therefore, the 'right to assistance of counsel' that is a constituent element of the right to fair trial may also be restricted pursuant to the principle of proportionality based upon balancing, when a priority should be given to other mandates from the principle of the government by

rule of law.

Now focusing only upon the 'non-custodial suspect' that is at issue in this case, whether the non-recognition by the legislators of the right to request the participation of the attorney in the interrogation for the non-custodial suspect infringes the right to assistance of counsel or not should be determined by balancing, on one hand, the 'mandate of effective defense' that is a basic determination internal to the right to assistance of counsel against, on the other hand, the 'legal interest justifying restrictions upon the assistance of counsel.' Here, the right to assistance of counsel is not a purpose in itself but, instead, a basic right constitutionally guaranteed as an important means to realize a fair procedure. Therefore, a determination on 'whether the right to assistance of counsel is infringed' is dependent upon whether a fair procedure can be guaranteed by the restriction on the possibility of the assistance

of counsel.

Therefore, as the result of balancing, when the non-recognition by the legislators of the right to have the attorney participate, without being justified by reasonable public interest, renders the effective defense impossible or difficult and the fair procedure may therefore not be guaranteed, such determination by the legislators violates the mandate of effective defense and infringes the right to assistance of counsel as the result. Specifically, 'whether the right to assistance of counsel is infringed' should be determined from the perspective of 'whether fair procedure ultimately cannot be expected due to the restriction upon the participation of the attorney as the participation of the attorney, at the investigation procedure is an indispensable element for the effective defense,' after inclusively considering all perspectives of 'whether the restriction upon the participation of the attorney is justified by a reasonable public interest,' and 'to which extent the defense right of a suspect is guaranteed and to which extent an attorney may assist the

suspect's defense under the current criminal procedure.'

Then, in the following paragraphs, we will examine whether the non-recognition of the right to have the attorney participate in the interrogation of a non-custodial suspect is justified by a reasonable public interest, and, in such a circumstance, whether an appropriate balance is maintained between the basic right of the suspect to

assistance of counsel and the public interest the restriction upon the right to attorney participation intends to achieve, despite the

restriction upon the right to attorney participation.

(A) Public Interest that justifies Restriction upon the Right to Attorney Participation

Guaranteeing the right to have the attorney participate in the suspect interrogation at the investigatory proceeding might cause difficulty for the investigative authority in obtaining the confession from the suspect, hindrance with the investigatory activities by the attorney beyond defense activities, or hardship in maintaining investigatory secrets demanded for the purpose of the investigation due to the exposure of the investigation. That is, permitting the participation of the attorney in the suspect interrogation might

undermine the investigatory activities by the investigative authority.

Especially, there is a concern that such investigatory secrets as the substance of the investigation or the evidence-gathering route might be revealed through the attorney who participates in the suspect interrogation undertaken by the investigative, thereby causing hindrance in the investigation of the related cases by the flight of the accomplice or other individuals relevant to the case or by the destruction, concealment or manipulation of evidence. Furthermore, disclosure of the substance of the investigation might cause harm to the life or bodily safety of the individuals relevant to

the case, such as the victim and other witnesses.

Therefore, the restriction upon the participation of the attorney in the suspect interrogation at the investigatory procedure is to realize such important public interests in the state by the rule of law as the interest of effective criminal prosecution, the interest of discovery of substantive truth, and the interest of the life and the

bodily safety of the third parties.

(B) Current Legal Provisions for the Guarantee of the Suspect's Defense Right and Fair Procedure

On the other hand, the current Constitution and Criminal Procedure Act have certain specific provisions for the protection of the suspect in the interrogation of a suspect by the investigative

authority.

1) First, in order to guarantee the voluntariness of the statement made during the suspect interrogation, the Constitution guarantees the prohibition against torture by the state institution and the right to remain silent, in providing that " no citizens shall be tortured or be compelled to testify against himself in criminal cases(Article 12, Section 2)," and also that " in a case where a confession is deemed to have been made against a defendant's will

due to torture, violence, intimidation, unduly prolonged arrest, deceit or etc., or in a case where a confession is the only evidence against a defendant in a formal trial, such a confession shall not be admitted as evidence of guilt, nor shall a defendant be punished by

reason of such a confession(Article 12, Section 7)."

Accordingly, the Criminal Procedure Act also requires that the right to remain silent be notified prior to the suspect interrogation, in order to remove the torture or other coercion exercised to obtain confession (Article 200, Section 2). Furthermore, the Criminal Procedure Act suppresses any probative value of the confession obtained through torture, violence or threat or when there is otherwise a suspicion of its voluntariness (Article 309); requires the participation of the investigatory officer at the Prosecutors' Office in the suspect interrogation undertaken by a prosecutor, and the participation of the junior judicial police officer in the suspect interrogation undertaken by a police officer (Article 243). Also, a suspect interrogation report has the probative value only under specific conditions. That is, A protocol which contains a statement of a suspect or of any other person, prepared by a public prosecutor, may be introduced into evidence, if the genuineness thereof is established by the person making the original statement at a preparatory hearing or during the public trial, and a protocol containing interrogation of a suspect prepared by investigation authorities other than a public prosecutor may be used as evidence, only in case where the person making the original statement verifies

the contents of the protocol(Article 312).

In sum, the current law allows the use of the statement of a suspect as evidentiary material only when the statement is made voluntarily and when the suspect's right to remain silent is

guaranteed.

2) In addition, those suspects who are not in custody as the complainants in this case may also at any time appoint as attorney and seek advice and consultation from the attorney, pursuant to Article 30 of the Criminal Procedure Act. Also, a suspect is not obligated to abide by the summons requesting appearance issued by the investigative authority, and, even if appearing pursuant to the summons, a suspect may always leave at will after the initiation of the investigation to seek consultation from the attorney by meeting with the attorney. Therefore, an attorney may, both prior to and during the suspect interrogation by the investigative authority, meet with the suspect, to devise appropriate responses, to explain the facts upon which the accusation is based, to discuss countermeasures by listening to the suspect's opinion upon such facts, to provide legal advice for the suspect upon the content and

the method of the statement, to raise cognizance concerning the importance of or the appropriate method to exercise the right to remain silent or the right not to provide signature and seal, or to make sure from time to time whether there is any inappropriate investigation on the part of the investigative authority,

thereby providing necessary and sufficient assistance.

(C) Whether or not the Principle of Proportionality is Violated

In criminal procedure that is dedicated to the realization of the state authority for punishment, the interest of effective criminal prosecution for the discovery of substantive truth on one hand and the guarantee of the basic rights of the suspect and the defendant on the other hand are the two most important ideals and should be harmonized and balanced with each other as such. Here, as seen above, the current Constitution and Criminal Procedure Act provide for certain specific systems and rights for an effective guarantee of the basic human rights and defense right of the suspect at the time of suspect interrogation, by, for example, guaranteeing for the non-custodial suspects the right to remain silent and the right to meet and consult with an attorney and by limiting the probative value of the protocol containing the interrogation of a suspect

prepared by the investigative authority.

Therefore, the absence of an express provision for the guarantee of the right to have the attorney participate in the interrogation of a non-custodial suspect chosen by the legislators, is for the realization of an important public interest of the discovery of substantive truth through effective criminal prosecution, and, in our opinion, even without acknowledging the right to attorney participation, an effective defense is possible as there is a sufficient possibility for a suspect to otherwise have the assistance of counsel thereby guaranteeing the defense right and the fair procedure for the suspect. Therefore, such absence may not be deemed to excessively infringe the right of the suspect to assistance of counsel

in violation of the principle of proportionality.

(2) Constitutionality of the Act In this Case

As examined above, the legislative choice not guaranteeing the right to have the attorney participate in the suspect interrogation for a non-custodial suspect as the result of concrete and specific legislation of the right to assistance of counsel through the provisions of the Criminal Procedure Act, is not deviant of the right of the legislators of legislative policy-making, nor does it

consequently violate the right to assistance of counsel.

In addition, the act of the respondent in this case does not

violate the 'right to assistance of counsel,' either. The absence of an express provision guaranteeing the right to attorney participation, as chosen by the legislators, does not mean the 'prohibition of participation' stating that 'the participation of the attorney at the investigatory procedure shall not be permitted.' Rather, such absence is a general expression that 'there is no obligation to permit the participation of the attorney in the interrogation of a non-custodial suspect at the investigatory procedure.' Such a decision by the legislators may not be deemed to obligate the investigative authority as the law enforcement institution to specifically determine whether or not to permit the participation of the attorney in the suspect interrogation by balancing the conflicting legal interests of the 'mandate of effective defense' and the 'legal interest justifying restrictions upon the participation of the

attorney,' in each separate case.

Thus, in this case, the decision by the prosecutor not to permit the participation of the attorney for the purpose of the investigation is in conformity with the constitutional decision of the legislators, nor can there be seen any specific wrong in the exercise of discretion such as otherwise rendering the exercise of defense right

or the effective defense of the suspect clearly difficult or impossible.

C. Then, the absence of a provision guaranteeing the right to have the attorney participate in the suspect interrogation for the non-custodial suspect as chosen by the legislators, does not excessively infringe the right to assistance of counsel against the principle of proportionality. The act of the respondent in this case was also taken pursuant to the above decision by the legislators, and, as such, may not be deemed to infringe the right to assistance of counsel. Our opinion with respect to the assertion of the violation of the right to equality is identical to the dissenting opinion ofJustice Kim Young-il, therefore we hereby invoke the relevant part of JusticeKim's opinion on this point. We respectfully disagree

with the majority opinion.

Justices Yun Young-chul(Presiding Justice), Kim Young-il, Kwon Seong, Kim Hyo-jong, Kim Kyung-il, Song In-jun, Choo

Sun-hoe(Assigned Justice), Jeon Hyo-sook, and Lee Sang-kyung