Quasi-Appellant 1 (Re-Appellant 1) and 2 others

Law Firm Man Law Firm, Attorneys Seo-ok et al.

Director of the National Intelligence Service and two others

The quasi-appeal of this case is dismissed.

The disposition in which quasi-Appellants forced the Quasi-Appellants from Seoul detention center to the National Intelligence Service on July 21, 201 and on July 22, 201 shall be revoked.

1. Summary of the quasi-appeal of this case

The Quasi-Appellants issued a detention warrant with the place of detention as Seoul detention center on July 20, 201, and detained in the Seoul detention center on July 21, 201, and refused to appear as the NIS on July 21, 201 and July 22, 201. Nevertheless, the Seoul detention center prison officers ordered by the Quasi-Appellants and the NIS investigators forced the Quasi-Appellants from Seoul detention center to the National Intelligence Service.

① Even if a suspect is under physical restraint, a disposition taken by an investigative agency that forced a person to appear at an investigative agency or to respond to an examination is unlawful. ② A separate arrest warrant is required even if the suspect has a duty to attend an investigative agency and to respond to an examination. As such, a disposition that forced a person to be compelled to appear at the investigative agency without obtaining a custody warrant from the court violates the warrant principle. ③ In the preliminary case, even if the Quasi-Appellants can compel the appearance of the suspect to appear in the interrogation and the arrest warrant is not separately required, the compulsory arrest disposition by the quasi-Appellants is enforced to waive the right to refuse to make statements by the Quasi-Appellants, and is made with the aim of fundamentally blocking the right to receive assistance from the defense counsel or restricting the meeting with his/her family members, and thus, it is unlawful by abusing and abusing the limits of discretionary power. Accordingly, a

2. Facts of recognition;

The record reveals the following facts:

A. On July 19, 201, the NIS investigated Quasi-Appellants on charges of taking part in the underground party established in the Republic of Korea in connection with North Korea’s Daenam Joint Organization. Quasi-Appellants were detained in the Seoul Detention Center on July 20, 201 under the warrant of detention issued by the Seoul Central District Court Warrant-dedicated judge of the Seoul Central District Court as Seoul Detention Center on July 19, 201.

B. On July 20, 201, the National Intelligence Service summoned quasi-Appellants to the investigation of the National Intelligence Service, but the quasi-Appellants refused to appear in the investigation agency as well as to undergo any investigation. On July 20, 201, the Quasi-Appellants, who reported the Quasi-Appellants’ refusal to appear, sent a written request for cooperation (hereinafter referred to as “written request for cooperation to surrender-in-delivery”) to the Seoul detention center for the purpose of requesting Quasi-Appellants to be compelled to undergo the investigation of suspects at the National Intelligence Service on July 20, 201.

C. On July 21, 2011, when Quasi-Appellants again refused to withdraw from the NIS, the Seoul detention center’s prison officer presented the “written request for cooperation in the custody of suspects” issued from the Quasi-Appellants Lee In-Appellants, the Seoul detention center’s prison officer sent the Quasi-Appellants to the NIS investigator.

D. During this process, Quasi-Appellant 1 continued to refuse to withdraw, and the competent correctional officer exercised a somewhat physical power and allowed Quasi-Appellant 1 to leave the confinement room and her to board the escorted vehicle. After all, the competent correctional officers and NIS investigators sent quasi-Appellants to the NIS investigator.

E. On July 22, 2011, the National Intelligence Service summoned quasi-Appellants, and both the Seoul detention center correctional officers and the NIS investigators escort quasi-Appellants to the investigation of the National Intelligence Service.

3. Determination

A. As to the assertion that an investigative agency does not have any duty to attend or respond to the examination

1) Summary of the assertion

Since the right to refuse to make statements is guaranteed to the suspect, the attendance cannot be enforced, and the compulsory arrest for suspect interrogation goes beyond the purpose stated in the detention warrant, and the refusal or fear of non-compliance with the requirement for the issuance of the arrest warrant can not be interpreted as compelling the attendance of the suspect.

(ii) the purpose of detention;

The Criminal Procedure Act includes compulsory appearance and detention (Article 69 of the Criminal Procedure Act), and also stipulates that compulsory appearance of a suspect is possible at the investigation stage (Articles 71 and 209 of the Criminal Procedure Act). In a case where there are reasonable grounds to suspect that a suspect committed an offense, and where a suspect refuses or is likely to refuse the request of a public prosecutor or judicial police officer for appearance without justifiable grounds, attendance is enforced by arrest warrant (Article 200-2(1) of the Criminal Procedure Act).

In light of the above, the Criminal Procedure Act recognizes the arrest system as a compulsory means to make an appearance of a suspect for an investigation, and provides that the arrested suspect may be detained within 48 hours from the time of arrest upon a request for a warrant of detention. This also appears to have been premised on the duty to respond to a request by an investigation agency for an investigation in principle. ② The Criminal Procedure Act permits a certain period of detention and its extension at the investigation stage. This is interpreted to the effect that the period of investigation is restricted by law in consideration of concerns about the infringement of human rights of a suspect during detention (if a suspect under detention refuses to attend an investigation agency or fails to respond to an interrogation, it would result in recognizing the investigation before the prosecution until the time of the issuance of the warrant of detention and in fact not permitting an investigation after the issuance of the warrant of detention). ③ In the case of a detained suspect, the Criminal Procedure Act recognizes the free meeting and communication right with a defense counsel, as well as in the prevention of destruction of evidence or the execution of a trial and the securing of a new prosecution by the investigation agency as well as in the investigation decision.

3) The meaning of the right to refuse to make statements

Article 12(2) of the Constitution provides that “All citizens shall not be advisered and shall not be forced to make a statement unfavorable to themselves in criminal liability.” The fundamental rights of the people are guaranteed. The Constitution guarantees the right to refuse to make a statement as a fundamental right of the people. The Constitution first protects the human rights of the accused or suspect prior to the discovery of substantial truth or the realization of social justice, thereby guaranteeing human dignity and value and eradicating non-human confession. Second, it aims to realize the ideology of fair trial by promoting equality of weapons between the accused or suspect and the prosecutor (see Constitutional Court Order 96HunBa11, Mar. 27, 1997; Constitutional Court Order 2004HunBa25, Dec. 22, 2005). Article 24-3 of the Criminal Procedure Act provides that “A suspect or suspect shall be informed of his/her right to answer or refuse to make a statement by a prosecutor or judicial police officer prior to questioning the suspect or his/her defense counsel.”

On the other hand, an investigative agency may investigate criminal facts and evidence when it recognizes the existence of suspicion, and if necessary for an investigation, it may request a suspect to appear and hear his/her statement in accordance with a certain procedure (Articles 195, 196(2), 200, and 241 through 244-5 of the Criminal Procedure Act). Such investigation by an investigative agency is conducted for the purpose of hearing the suspect’s statement, including a vindication, and deciding whether to prosecute or not to prosecute the suspect, and further, clarifying the truth of the case. Thus, the investigation by an investigative agency is conducted for the purpose of clarifying the truth of the case, apart from the fact that the suspect may refuse to answer the question being conducted during the interrogation, it does not immediately mean the deprivation of the right to refuse to make a statement.

4) Sub-committee

In the interpretation, the purpose of detention includes a suspect investigation by an investigative agency, and even if a suspect expresses his/her intention not to make a statement explicitly, it is reasonable to view that the detained suspect, in principle, has a duty to attend an investigative agency and respond to an examination, unless he/she directly infringes on the right guaranteed by the Constitution and laws, such as compelling the suspect to make a statement by the investigative agency, or unless it is deemed that such act directly infringes on

As determined below, in the instant case, the Quasi-Appellant’s taking quasi-Appellants into custody was conducted as part of the suspect’s investigation to verify the facts, and otherwise, the Re-Appellants are obligated to attend the National Intelligence Service and to respond to the examination, on the grounds that there are no circumstances to deem that the Quasi-Appellants forced the Quasi-Appellants to make statements or violated the rights guaranteed by the Quasi-Appellants due to the aforementioned taking-in act. Accordingly, the Quasi-Appellants’

B. As to the assertion that the warrant principle is violated

Quasi-Appellants asserted that a separate arrest warrant is necessary to take custody for an examination to an investigation agency, and in this case, it constitutes a voluntary change in the place of custody and detention without a warrant and thus illegal.

As seen earlier, our law does not distinguish between the detention warrant and the detention warrant for the only purpose of detention and the detention warrant for the only purpose of detention, and stipulates that the detention warrant includes the custody and the custody for the only purpose of detention, the validity of the issuance of the detention warrant can only be detained, and if the suspect in custody refuses to comply with a request to attend an examination, it is reasonable to deem that the detention warrant is valid, and that the separate detention warrant is unnecessary. In addition, according to records, the National Intelligence Service’s investigation is recognized to have been conducted by the method of carrying and investigating the quasi-Appellants into the custody room in Seoul detention house, which is the place of detention as stated in the warrant, and then escorting and detention again. Thus, it is difficult to view that the place of detention is a voluntary change. Accordingly, the above assertion

C. As to the assertion that it constitutes a deviation or abuse of discretionary power

Quasi-Appellants asserts that the NIS forced quasi-Appellants to make statements and that Quasi-Appellants were transferred to and investigated into the investigation of the NIS for the purpose of infringing their defense rights and their right of interview and communication between the defense counsel and their families.

There is no reason to view that the act of taking the quasi-Appellants into custody to the investigation of the National Intelligence Service was the purpose of forcing the suspect to make statements, and demanding the suspect’s defense counsel to go through the security screening stand established at the entrance of the office is based on the national facility management authority of the National Intelligence Service and cannot be deemed to have infringed on the right to interview and communication. Moreover, there is no circumstance to deem that the National Intelligence Service restricted the interview and communication with his family members in addition to the fact that the interview was restricted pursuant to Articles 209 and 91 of the Criminal Procedure Act with respect to some family members suspected of being accomplices.

Therefore, the Quasi-Appellants' assertion on this part is not accepted.

4. Conclusion

Therefore, the quasi-appeal of this case is dismissed as it is without merit, and it is so decided as per Disposition.

Judge Lee Han-tae