[1] Whether a prosecutor shall exceptionally use protective equipment only where the risks prescribed in each subparagraph of Article 97(1) of the Administration and Treatment of Correctional Institution Inmates Act, such as escape, self-injury, and harm to other persons, are clearly and specifically revealed when a prosecutor examines a suspect in the investigation room (affirmative)

[2] Whether a public prosecutor or a judicial police officer's refusal of a measure upon a request from a suspect or his/her defense counsel to remove protective equipment when questioning a detained suspect constitutes "disposition concerning confinement" under Article 417 of the Criminal Procedure Act (affirmative)

[3] Meaning of “justifiable cause” under Article 243-2(1) of the Criminal Procedure Act

[1] According to Article 198 of the Criminal Procedure Act, an investigation into a suspect shall be conducted without restraint (Article 198). A prosecutor shall respect the suspect's human rights (Article 198(2)). According to the Administration and Treatment of Correctional Institution Inmates Act (hereinafter "the Administration and Treatment of Correctional Institution Inmates Act"), the prisoner's human rights should be respected as much as possible (Article 4); an unconvicted prisoner shall be presumed not guilty and shall be given appropriate treatment (Article 79); a correctional officer shall, "transfer, release, or otherwise escorting a prisoner to another place outside of a correctional institution"; "when a prisoner interferes with a correctional officer's legitimate performance of his/her duties"; "when a prisoner obstructs a correctional officer's legitimate performance of duties by reason of his/her force," "when a correctional officer damages the correctional institution's facilities, apparatus, etc. or is likely to harm the safety or order of the correctional institution" (Article 97(1)); and even in cases where a correctional officer uses equipment to the minimum extent necessary, the correctional officer shall use the equipment without delay.

Taking into account the above provisions’ contents and purport with the mind that our Constitution, which has the goal of respecting the human dignity, declares the principle of presumption of innocence in Article 27(4) and emphasizes the guarantee of physical freedom and due process in Article 12, the aforementioned provisions, in principle, should not use protective equipment against a suspect so that the suspect can sufficiently exercise his/her defense right without physical or psychological restraint when questioning the suspect in the protocol. However, the protective equipment should be used only in cases where the risks prescribed in each subparagraph of Article 97(1) of the Punishment Execution Act, such as escape, self-injury, injury to others, etc., are clearly and specifically revealed.

Therefore, a detained suspect has a right not to be forced to wear protective equipment unless he/she falls under any of the grounds prescribed in each subparagraph of Article 97(1) of the Execution of Punishment Act. A prosecutor is obligated to request a correctional officer to remove protective equipment unless he/she is found to be a suspect in an interrogation, unless there are special circumstances to the relevant suspect, and a correctional officer must comply with such request.

[2] Article 417 of the Criminal Procedure Act provides that a public prosecutor or a judicial police officer may file a petition with the court for revocation or alteration of a disposition, if he/she is dissatisfied with the “disposition concerning confinement” of a public prosecutor or a judicial police officer. In cases where a public prosecutor or a judicial police officer permits the use of protective equipment by a correctional officer against a detained suspect despite the absence of exceptional circumstances justifying the use of protective equipment and does not request the removal thereof, if such measures taken by a public prosecutor or a judicial police officer are not considered as “disposition concerning confinement” as prescribed by Article 417 of the Criminal Procedure Act, the detained suspect is not subject to remedy for the right infringed upon. Therefore, a measure that a public prosecutor or a judicial police officer refuses to remove protective equipment upon the request of a suspect or his/her defense counsel when he/she examines a detained suspect constitutes “disposition concerning confinement” as prescribed

[3] Article 243-2(1) of the Criminal Procedure Act provides that a public prosecutor or a judicial police officer shall have a defense counsel participate in the interrogation of a suspect if a suspect or defense counsel files an application, etc. The term “justifiable cause” refers to cases where it is objectively evident that a defense counsel is likely to obstruct the interrogation of a suspect or divulge any fraud.

The proviso of Article 243-2(3) of the Criminal Procedure Act provides that a defense counsel who has participated in the interrogation of a suspect may raise an objection against the method of improper examination even during the interrogation. Thus, a public prosecutor or a judicial police officer’s objection against the method of improper examination is an exercise of the right admitted to the defense counsel in principle unless there are special circumstances, such as high or verbal abuse, or repeated examination without any reasonable ground, and it does not constitute an act interfering with the examination. Therefore, a public prosecutor or a judicial police officer’s removal of a defense counsel from the interrogation of a suspect from the interrogation of a suspect merely because the defense counsel raised an objection against the method of improper examination without justifiable grounds is limited and thus, it is not permissible.

[1] Articles 10, 12, and 27(4) of the Constitution of the Republic of Korea; Article 198(1) and (2) of the Criminal Procedure Act; Articles 4, 79, 97(1), and 99(1) of the Administration and Treatment of Correctional Institution Inmates Act / [2] Article 417 of the Criminal Procedure Act / [3] Article 243-2(1) and (3) of the Criminal Procedure Act

[1] [2] Supreme Court Order 2003Mo402 Decided November 11, 2003 (Gong2004Sang, 271) / [1] Constitutional Court en banc Order 2004Hun-Ma49 Decided May 26, 2005 (Hun-Ma105, 710) / [3] Supreme Court Order 2008Mo793 Decided September 12, 2008 (Gong2008Ha, 1491)

Quasi-Appellant 1 et al.

Prosecutor

Suwon District Court Order 2015No6 dated July 28, 2015

All reappeals are dismissed.

The grounds of reappeal are examined.

1. As to the grounds for reappeal against Quasi-Appellant 1

A. Whether the “disposition concerning confinement” constitutes “disposition”

1) According to Article 198 of the Criminal Procedure Act, an investigation into a suspect shall be conducted without restraint (Paragraph 1), and a prosecutor shall respect the suspect's human rights (Paragraph 2). According to the Administration and Treatment of Correctional Institution Inmates Act (hereinafter "the Administration and Treatment of Correctional Institution Inmates Act"), a prisoner's human rights should be respected to the maximum extent (Article 4); an unconvicted prisoner shall be presumed innocent and receive appropriate treatment therefor (Article 79); a prisoner "transfer, withdrawal, or any other place outside of a correctional institution is highly likely to cause harm to himself/herself, suicide, or others"; "where a prisoner interferes with the lawful performance of duties by a correctional officer, etc."; "where damage to the correctional institution facilities, apparatus, etc. or otherwise is highly likely to harm the safety or order of the institution" (Article 97(1)); and even in cases where a correctional officer uses equipment to the minimum extent necessary, the correctional officer shall use the equipment without delay and shall discontinue the use of the equipment to the minimum extent necessary (Article 99(1)9).

Taking into account the fact that our Constitution, the goal of which is to respect human dignity, declares the principle of presumption of innocence under Article 27(4) and emphasizes the guarantee of physical freedom and due process under Article 12, the content and purport of the aforementioned provisions, in principle, a prosecutor should not use protective equipment against a suspect so that he/she can sufficiently exercise his/her defense right without physical or psychological restraint when questioning a suspect in the protocol. However, in cases where the risks prescribed in each subparagraph of Article 97(1) of the Punishment Execution Act, such as escape, self-injury, harm to others, etc., are clearly and specifically revealed, the protective equipment must be used exceptionally (see Supreme Court en banc Order 2003Mo402, Nov. 11, 2003; Constitutional Court en banc Decision 2004Hun-Ma49, May 26, 2005).

Therefore, a detained suspect has a right not to be forced to wear protective equipment unless he/she falls under any of the grounds provided for in each subparagraph of Article 97(1) of the Execution of Punishment Act. A prosecutor is obligated to request a correctional officer to remove protective equipment unless he/she is found to be a suspect in an interrogation, unless there are special circumstances to the relevant suspect, and a correctional officer must comply with such request.

2) Article 417 of the Criminal Procedure Act provides that a public prosecutor or a judicial police officer may file a petition with a court for the cancellation or alteration of a disposition, if he/she is dissatisfied with the “disposition concerning confinement” with a public prosecutor or a judicial police officer. If a public prosecutor or a judicial police officer permits the use of protective equipment by a correctional officer against a detained suspect and does not request the removal thereof despite the absence of such exceptional circumstances to justify the use of protective equipment, if such measures taken by a public prosecutor or a judicial police officer are not considered as “disposition concerning confinement” as prescribed by Article 417 of the Criminal Procedure Act, the detained suspect is not subject to remedy for the right infringed upon. Therefore, a measure that a public prosecutor or a judicial police officer refuses to remove protective equipment upon a request from a suspect or his/her defense counsel when he/she examines a detained suspect shall be deemed to constitute “disposition concerning confinement” as prescribed by Article 417 of the Criminal Procedure Act (see Supreme Court Order 2003Mo402, Nov. 11,

3) In the same purport, the lower court determined that, although the Quasi-Appellant 1’s defense counsel participated in the interrogation procedure and demanded the removal of the locks before commencing the questioning for recognition, the measures that the prosecutor did not request the correctional officer to remove the locks (hereinafter “instant refusal disposition”) constituted “disposition concerning confinement” subject to quasi-appeal. Such judgment of the lower court is justifiable, and there is no violation of the Constitution, laws, orders, or rules that affected the judgment.

B. Whether the rejection disposition of this case is illegal

1) Whether a prosecutor or senior judicial police officer has justifiable grounds for refusing the demand of a suspect or defense counsel is matters to be deliberated and determined within the text of the quasi-appeal procedure.

2) Examining the reasoning of the order of the court below in light of the aforementioned legal principles and records, the prosecutor did not request the correctional officer to remove the party who was requested clearly and repeatedly by the counsel for the removal of 15 minutes of the Quasi-Appellant 1 from the defense counsel before conducting the questioning for recognition in the examination of suspect. However, there is no evidence to deem that there were special circumstances, such as where the risks provided for in each subparagraph of Article 97(1) of the Punishment Execution Act, including the escape, self-injury, and injury to other persons, are clear and specific. In particular, in light of the fact that the prosecutor requested the correctional officer to remove the party, it is difficult to deem that there was any reason to compel the Quasi-Appellant 1 to wear the party prior to the questioning for recognition.

3) Although the reasoning of the lower judgment partially inappropriate, the lower court’s conclusion that revoked the instant rejection disposition by deeming it illegal is justifiable, and there is no violation of the Constitution, Acts, orders, or rules that affected the trial.

2. As to the grounds for reappeal against Quasi-Appellant 2

A. Article 243-2(1) of the Criminal Procedure Act provides that a public prosecutor or a judicial police officer shall have a defense counsel participate in the interrogation of a suspect, unless there is a justifiable reason to the contrary, when the suspect or defense counsel files an application (see Supreme Court Order 2008Mo793, Sept. 12, 2008). The term “justifiable reason” refers to cases where it is objectively evident that a defense counsel may interfere with the interrogation of a suspect or divulge any fraud (see Supreme Court Order 200

The proviso of Article 243-2(3) of the Criminal Procedure Act provides that a defense counsel who has participated in the interrogation of a suspect may raise an objection against the method of improper examination even during the interrogation. Thus, a public prosecutor or a judicial police officer’s objection against the method of improper examination is an exercise of the right admitted to the defense counsel in principle unless there are special circumstances, such as high or verbal abuse, or repeated examination without any justifiable reason. Therefore, it is not permissible to allow a public prosecutor or a judicial police officer to leave the defense counsel from the interrogation of a suspect solely on the ground that the defense counsel raised an objection against the method of improper examination during the interrogation of a suspect without any justifiable reason as restricting the right to participate in the interrogation of a suspect.

B. The court below held that it was unlawful for the quasi-Appellant 2 to leave the quasi-Appellant 2 to the prosecutor before the quasi-Appellant 1’s defense counsel to cancel and continuously demand the Quasi-Appellant 1 to leave the interrogation. The prosecutor’s dismissal of the quasi-Appellant 2 on the ground that the Quasi-Appellant 2 significantly obstructed the investigation. The prosecutor’s demand for the removal of the Quasi-Appellant 2 is justifiable, and the prosecutor’s refusal of this demand was unlawful as seen earlier. Accordingly, the prosecutor’s measures against the Quasi-Appellant 2 to leave the quasi-Appellant 2 on the premise that the demand for the removal of the baggage by the Quasi-Appellant 2 constitutes an obstruction to the interrogation of suspect under the premise that it is unfair. Accordingly, the judgment of the court below is justifiable, and there is no violation of the Constitution, Acts,

3. Conclusion

Therefore, all reappeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Ahn Jae-chul (Presiding Justice)