Defendant's Access to Criminal Investigation Records case,

[9-2 KCCR 675, 94Hun-Ma60, November 27, 1997]

A. Background of the Case

In this case, the Constitutional Court ruled that prosecutor's refusal to grant the defendant's attorney the right to inspect and copy criminal investigation records was unconstitutional.

The complainant was prosecuted for violation of the National Security Act on March 21, 1994. His attorney requested the respondent Seoul District Prosecution Office the access to all the criminal investigation records including the complainant's confession, interrogation transcript, and witnesses' affidavits. When this request was rejected without any explanation, the complainant filed a constitutional complaint on April 16, 1994 on the ground that it contravened the complainant's right to assistance of counsel guaranteed by Article 12 (4) and his right to have a speedy and fair trial under Article 27 (1) and (3) of the Constitution.

B. Summary of the Decision

The Court in this case ruled that the prosecutor's refusal to grant the complainant the access to his criminal investigation records for no reasonable cause, such as leakage of secrets concerning national security, breach of privacy, tampering of witnesses and evidence, infringed upon his right to assistance of counsel and to a speedy and fair trial in the following majority opinion of seven justices:

We first examine the legal prerequisites to the constitutional complaint, specifically, the rule of exhaustion of prior remedies. Appeal challenging the prosecutor's refusal to grant access to investigation records is not available under the Criminal Procedure Act. It is not clear whether the refusal can be challenged under the Administrative Adjudication Act or the Administrative Litigation Act. Even if it can be reviewed judicially under the latter, the likelihood of relief is nil. Requiring exhaustion of prior remedies to the complainant amounts to an unnecessary demand of detour. The circumstances justify an exception to the rule of exhausting of prior remedies.

The defendant counsel's access to his client's investigation records is indispensable to

obtaining equality between the parties and realizing the right to a speedy and fair trial. Any excessive restriction on such right infringes on the accused's constitutional right.

Also, the right to assistance of counsel covers not only the accused's right to freely meet and communicate with his attorneys but also the right to have his attorney review and duplicate investigation records and all other materials and prepare his trial offense and defense based on that. Any excessive restrictions on the attorney's access constitutes violation of the complainant's right to assistance of counsel.

However, although the right to review and copy investigation records is derived from the right to a speedy and fair trial and the right to assistance of counsel, it is not unlimited and must be harmonized with other constitutional rights. It can be restricted by statute for reason of national security, maintenance of order and public welfare. Access to and duplication of criminal records held by the prosecutors should be permitted only to the extent deemed essential to the defendant's defense in consideration of the nature and circumstances of the criminal case, on the one hand, and the types and substance of evidence sought to be accessed, on the other. Also, it should be permitted only when there is no danger of leakage of national security secrets, tampering of evidence and witnesses, breach of privacy, or any hindrance to the investigation.

In conclusion, the prosecutor's denial on March 26, 1994 of the complainant's access to his criminal investigation records without citing any of the above causes, following his prosecution on the 26nd of the same month, infringed upon his right to assistance of counsel and to a speedy and fair trial.

Justice Kim Yong-joon dissented: In light of the trial-centered nature of our criminal litigation system and the "indictment-on-one-form" rule, the right to access the records held by the prosecutors cannot not be directly derived from the Constitution. Only after the prosecution, the presiding court may grant the defendant's counsel the access, exercising its authority to conduct the trial. Justice Shin Chang-on concurred with Justice Kim that the attorney's access to materials held by prosecutors arises only under the court's power to preside a trial and only when the case comes under the court's jurisdiction after passing through the preparation and discovery stage.

C. Aftermath of the Case

This decision followed another decision concerning right to assistance of counsel in which the Court ruled that the right to meet and communicate with counsel is absolute and cannot be restricted even for reason of national security, maintenance of order or public welfare (91Hun-Ma111, January 28, 1992). The decision therefore strengthened the defendant's right to assistance of counsel by extending its scope to include the right to review and copy his own criminal investigation records and prepare his trial offense and defense based on the records. However, unlike the cases decided upon the basis of right to know such as the Forests Survey Inspection Request case (88Hun-Ma22, Sep. 4, 1989) and the Completed Criminal Trial Records Access case (90Hun-Ma133, May 13, 1991), this decision did not mention the right to know.

Some pointed out that there remain after the decision a possibility of disputes between the prosecutors and defense about whether good cause exists for withholding access to the investigation records. However, a balancing act is inevitable between the defendant's right and other interests such as the reputation, dignity, privacy, life, personal safety, peace of mind of the co-defendants, charging partiess, witnesses, expert witnesses, and others related to the case. To that extent, the decision strengthened the protection of the defendant's human rights.