Subpoena of Witness by Public ProsecutorCase

(13-2 KCCR 238, 99Hun-Ma496, August 30, 2001)

In this case, the Constitutional Court declared that constant subpoena of a witness in criminal proceeding of the complainant by thepublic prosecutor in order to prevent him from meeting the complainant violated the complainant's right to a fair trial, and hence, is unconstitutional.

A. Background of the Case

Complainant is a member of the National Assembly, and wascharged for allegedly receiving bribes from witness A. During thetrial, the public prosecutor requested examination of witness A, who was in detainment, and the presiding court granted.

The public prosecutor subpoenaed witness A 270 times to theprosecutor's office and made him stay there all day long for a15-month period from the time of investigation until witness A actually took a stand in the court. The reason for this was to makesure that witness A would not change his statements in court andto prevent witness A from meeting the complainant's attorneys.During his stay in the public prosecutor's office, witness A could

meet with his relatives and friends and make phone calls to his acquaintances in a more friendly environment than that in the detention facility.

The complainant filed a constitutional complaint arguing that thepublic prosecutor's subpoena of witness A, irrelevant to the investigation, to the office to threaten and coax him from altering hisstatements in the court violated his right to a fair and speedy trial.

B. Summary of the Decision

(1) Majority Opinion

The Constitutional Court issued a decision of unconstitutionality, on a majority vote of eight Justices, as follows:

(A) Witness A made his testimony in court after the complaintwas filed, and the court of the first instance and the appellate courthas rendered a final judgment on the complainant. Therefore, as theact of violation has ended, it may seem that the complainant doesnot have a justiciable interest in the case. Generally, a constitutional complaint where the complainant does not have a legally protectable interest is dismissed by the Court because the Court's decision would not help remedy the violation. However, a justiciableinterest is to be recognized in cases where the same type of violation of basic rights is likely to be repeated and where the clarification of the constitutional dispute bears a great significance fordefense of the constitutional order. This is such case.

(B) As can be seen in the provision protecting the bodily freedom, the provision ensuring the right to a speedy trial by a judge,and the provision presuming innocence of the accused, the Constitution clearly recognizes the right to a fair trial as one of the basicrights of the citizens.

A fair trial requires examination and testimony of all evidencebefore a judge in the open court. The public prosecutor and the defendant must also be given fair opportunities to assert or defendthemselves. Therefore, if one of the parties in a criminal trial isallowed to monopolize access to witnesses or prevent the otherparty's meetings with witnesses, this would violate the right to afair trial.

If the public prosecutor, a party to a criminal trial, provides particular accommodation to a detained witness, such accommodation maybe used as the means to win over the witness. Threats to deprive a witness of such accommodation may act as psychological pressure.Therefore, providing accommodation could be detrimental to protection of the right to a fair trial.

Undesirable side effects such as persuasion of witness or abettal of perjury may occur when both parties of a trial have equal accessto witnesses. However, such side effects should be prevented throughprosecution of such criminal activities. To grant access of witnessto one party or to hinder the other party's meeting with witness inorder to prevent occurrence of such side effects is by no meansjustifiable.

In sum, the public prosecutor's subpoena of witness A, not toconduct investigation on other cases but to provide accommodation toA and prevent A from meeting the complainant's attorneys, constitutes an abuse of the governmental authority, and it violates thecomplainant's constitutional right to a fair trial.

(2) Dissenting Opinion

The complaint should be dismissed on account of lack of a justiciable interest because there is neither likelihood of repetition ofviolation of rights nor importance of constitutional clarification in thecase.