[1] Whether an investigative agency may restrict the right to meet and communicate with a defense counsel by a disposition, etc. without statutory basis (negative)

[2] The case affirming the judgment below holding that in a case where the head of the NIS or the NIS investigator, who was born in North Korea, entered the Republic of Korea, and was admitted to and investigated by the Central Joint Examination Center, which is a temporary protective facility established and operated by the head of the NIS pursuant to the Act on the Protection and Settlement Support of Residents escaping from North Korea, and the head of the NIS requested the counsel to appoint a counsel, and the investigator of the NIS et al. applied for an interview with the counsel against the Gap on nine occasions, but the head of the NIS and the NIS investigator dismissed both the request for interview and communication, and the NIS investigator et al filed a claim against the State for damages against the State on the ground of infringement of the right to interview and communication, since the failure of the NIS or the NIS investigator to permit the request for interview and communication to Gap, etc. who is a counsel, constitutes an unlawful act infringing the right of counsel

[1] The status of a suspect is recognized when an investigation agency, even before the investigation agency formally takes the procedure for the acceptance of a criminal case, considering that a person subject to investigation is suspected of having committed a crime and actually commences an investigation.

The main text of Article 12(4) of the Constitution provides, “Any person who is arrested or detained shall have the right to prompt assistance of counsel.” Article 89 of the Criminal Procedure Act provides, “The accused under detention may meet with another person within the scope of the Act.” This provision also applies mutatis mutandis to the suspect under arrest or detention (Article 209). Article 34 of the Criminal Procedure Act provides, “The defense counsel or a person who intends to become a defense counsel may meet with the accused or suspect under physical restraint (hereinafter referred to as “suspect, etc.”), and receive documents or articles.”

In order to realize the purport of guaranteeing the right to assistance of counsel under the Constitution as one of the fundamental human rights, the Criminal Procedure Act recognizes the legal right of a suspect, etc., who intends to be a defense counsel or a person who intends to be a defense counsel (hereinafter “defense counsel”) to freely interview and communicate with a suspect, etc. In addition, the right to interview and communicate with a defense counsel is an essential right for guaranteeing the human rights of a suspect, etc. and preparing for defense. As such, the right to interview and communicate by a defense counsel is

In a case where an investigative agency is unable to restrict the right to meet and communicate with a counsel for a long time, the investigative agency that has declared the Supreme Court for a long time ought to be aware of the fact that it has been permitted to apply for an interview with a counsel. In a case where the investigative agency does not allow an interview with a counsel and infringes on the right to meet and communicate with a counsel, it may be deemed that the public official

The right to meet and communicate with the counsel is to realize the right of the suspect, etc. to have the assistance of the counsel. While the suspect, etc. correctly understand the meaning and scope of the fundamental rights guaranteed by Article 12(4) of the Constitution, the meeting and communication right is not mandatory against the suspect, etc. against his/her will even if he/she voluntarily renounce

However, if an investigative agency does not allow a defense counsel to meet the above requirements when a defense counsel applied for an interview with a suspect, etc., it infringes on the right to interview and communicate with a defense counsel. In this case, the State is liable to compensate for mental suffering suffered by a defense counsel. Considering the importance of the right to assistance of a defense counsel, the motive and incentive to infringe on the right of a defense counsel, and the fact that the refusal of interview and communication by a suspect, etc. is an exceptional, a defense counsel is responsible for proving that the suspect, etc. has sufficiently understood the meaning and scope of the fundamental rights guaranteed by Article 12(4) of the Constitution and voluntarily renounced

[2] The case affirming the judgment below holding that, in case where Gap et al., who was born in North Korea, entered the Republic of Korea, and the Director of the National Intelligence Service was admitted to and investigated at the Central Joint Examination Center, a temporary protective facility established and operated under the Act on the Protection and Settlement Support of Residents escaping from North Korea, and Eul et al. requested counsel to appoint counsel from Gap and filed an application for counsel interview against Eul more than nine times, but the Director of the National Intelligence Service and the investigator of the National Intelligence Service denied Eul et al.'s request for counsel interview and communication right, and Eul et al. claimed compensation against the State for damages due to infringement of counsel's right to interview and communication right, the defendant et al., at the time of applying for interview against the National Intelligence Service investigator, was in the position of the suspect who was investigated under the suspicion of violation of the National Security Act (espionage), but Gap did not want to have an attorney who applied for interview with the National Intelligence Service investigator, but it is difficult to view that Gap et al.'s voluntary interview and communication right was infringed.

[1] Article 12(4) of the Constitution of the Republic of Korea; Article 2(1) of the State Compensation Act; Articles 34, 89, and 209 of the Criminal Procedure Act; Article 288 of the Civil Procedure Act / [2] Article 12(4) of the Constitution of the Republic of Korea; Article 2(1) of the State Compensation Act; Articles 34, 89, and 209 of the Criminal Procedure Act

[1] Supreme Court Decision 200Do2968 Decided October 26, 2001 (Gong2001Ha, 2633), Supreme Court Decision 2000Mo112 Decided May 6, 2002 (Gong2002Ha, 1590), Supreme Court Decision 2002Da56628 Decided January 10, 2003 (Gong2003Sang, 628), Supreme Court Decision 2006Mo656 Decided October 31, 2007 (Gong2014Do5939 Decided October 29, 2015)

Plaintiff 1 and four others (Law Firm Yang Jae, Attorney Kim Jin-jin, Counsel for the plaintiff-appellant)

Republic of Korea (Attorney Park Jae-chul, Counsel for defendant-appellant)

Seoul Central District Court Decision 2015Na54430 decided September 29, 2016

All appeals are dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal are examined.

1. Factual basis

The reasoning of the lower judgment and the record reveal the following facts.

A. Nonparty 1, a Chinese national residing in North Korea, entered the Republic of Korea on April 25, 2004, and settled in the Republic of Korea upon receipt of a decision of protection under the North Korean Refugees Protection and Settlement Support Act (hereinafter “North Korean Refugees Act”). Nonparty 2, a partner of Nonparty 1, who was born in North Korea, was a Chinese national, and applied for protection under the North Korean Refugees Act around October 30, 2012, entered the Republic of Korea and applied for protection under the North Korean Refugees Act. At that time, the head of the NIS was admitted to the Central Joint Examination Center, a temporary protective facility established and operated by the head of the NIS under the North Korean Refugees Act.

B. Around February 201, the National Intelligence Service secured the statement from other North Korean defectors 1 to the Republic of Korea that Nonparty 2 would have entered the Republic of Korea and immediately enter the Republic of Korea, even though Nonparty 1 was North Korean defectors. Nonparty 2 denied the fact that it was a son in the early stage of the investigation by the investigator in charge of the National Intelligence Service. On November 5, 2012, the National Intelligence Service acknowledged that the investigator in charge of the National Intelligence Service was a Chinese national and did not have acquired the North Korean nationality. After all, the National Intelligence Service had Nonparty 2 prepare a statement or confirmation document several times, and conducted an investigation of witness more than four times, etc., by obtaining the identity information, etc. of the North Korean defectors collected from Nonparty 1 who was missing while residing in North Korea, and delivered it to the Director of the Anti-Investigation Division in North Korea at the time of surrender, and made a statement to the Republic of Korea with the intent of obtaining the information from Nonparty 1 and the North Korean resident in accordance with the instructions of the Director of the Anti-Investigation.

On January 10, 2013, based on Nonparty 2’s statement secured by the Central Joint Examination Center, the National Intelligence Service arrested Nonparty 1 on the charge of violating the National Security Act (espionage) and issued a detention warrant on January 12, 2013, and sent the case to the prosecutor’s office on January 29, 2013. The prosecutor summoned Nonparty 2, who was detained in the Central Joint Examination Center, and summoned Nonparty 1 on eight occasions, and indicted Nonparty 1 as a crime of violating the National Security Act (espionage) on February 26, 2013.

C. The Plaintiffs were the attorneys-at-law in charge of Nonparty 1’s defense, who were detained, requested Nonparty 1 and Nonparty 2 to appoint a counsel from Nonparty 2. On nine occasions from February 4, 2013 to March 7, 2013, the Plaintiffs filed an application for an interview with the counsel from Nonparty 2 with the Director of the NIS. However, the Director of the NIS and the investigator belonging to the NIS rejected all of the Plaintiffs’ applications for interview.

D. In the criminal case against Nonparty 1, the prosecutor submitted as evidence the written statement, self-written statement, confirmation, reflective statement, statement of Nonparty 2 prepared by Nonparty 2 at the Central Joint Examination Center, etc. However, the first instance court, the second instance court, and the Supreme Court determined that all of the above evidence was inadmissible for the following reasons.

The written statement, self-written statement, etc. prepared by Nonparty 2 and the written statement prepared by the NIS investigator against Nonparty 2 constituted illegally collected evidence, since the written statement prepared by the prosecutor against Nonparty 2 was prepared without notifying the right to remain silent despite the fact that Nonparty 2 was in a de facto suspect. The written statement prepared by the prosecutor against Nonparty 2 is not guaranteed the right to receive counsel’s assistance while in de facto continued detention for an unduly prolonged period, and it is difficult to view that the written statement was made in a particularly reliable state.

2. Liability for damages caused by infringement of right to interview and communicate by defense counsel;

The status of a suspect is recognized when an investigation agency, even before the investigation agency takes a formal procedure for the acceptance of a criminal case, considering that a person subject to investigation is suspected of having committed a crime and actually commences an investigation (see, e.g., Supreme Court Decisions 2000Do2968, Oct. 26, 2001; 2014Do5939, Oct. 29, 2015).

The main text of Article 12(4) of the Constitution provides, “Any person who is arrested or detained shall have the right to prompt assistance of counsel.” Article 89 of the Criminal Procedure Act provides, “The accused under detention may meet with another person within the scope of the Act.” This provision also applies mutatis mutandis to the suspect under arrest or detention (Article 209). Article 34 of the Criminal Procedure Act provides, “The defense counsel or a person who intends to become a defense counsel may meet with the accused or suspect under physical restraint (hereinafter referred to as “suspect, etc.”), and receive documents or articles.”

In order to realize the purport of guaranteeing the right to assistance of counsel under the Constitution as one of the fundamental human rights, the Criminal Procedure Act recognizes the legal right of a suspect, etc., who intends to be a defense counsel or a person who intends to be a defense counsel (hereinafter “defense counsel”) to freely interview and communicate with a suspect, etc. The right to interview and communicate with a defense counsel is an indispensable right for guaranteeing the human rights of a suspect, etc. and preparing for defense. As such, the right to interview and communicate with a defense counsel is not restricted by the disposition of an investigative agency, etc., but may be restricted only by statutes (see Supreme Court Order 200Mo12, May 6, 2002; Supreme Court Order 2006Mo656, Jan. 31, 2007).

In a case where an investigative agency is unable to restrict the right to meet and communicate with a counsel for a long time, the investigative agency, which has been declared by the Supreme Court for a long time, should be aware of the legal principles that allow the application of a counsel. In a case where the investigative agency does not allow the application of a counsel and infringes on the right to meet and communicate with a counsel, it may be deemed that the public official who has decided

The right to meet and communicate with the counsel is to realize the right of the suspect, etc. to have the assistance of the counsel. While the suspect, etc. correctly understand the meaning and scope of the fundamental rights guaranteed by Article 12(4) of the Constitution, the meeting and communication right is not mandatory against the suspect, etc. against his/her will even if he/she voluntarily renounce

However, if an investigative agency does not allow a defense counsel to meet the above requirements when a defense counsel applied for an interview with a suspect, etc., it infringes on the defense counsel's right to interview and communicate. In this case, the State is liable to compensate for the mental suffering suffered by the defense counsel (see Supreme Court Decision 2002Da56628, Jan. 10, 2003, etc.). Considering the importance of the right to assistance of the defense counsel, the existence of motive and incentive to infringe on the rights of the defense counsel, and the fact that the refusal of interview and communication by the suspect, etc. is an exceptional, it shall be deemed that the defense counsel is liable to prove that the suspect, etc. has sufficiently understood the meaning and scope of fundamental rights guaranteed by Article 12(4) of the Constitution, but voluntarily renounced

3. Consolidatedness of the lower judgment

A. For the following reasons, the lower court determined that the head of the NIS or NIS investigator’s failure to permit the Plaintiffs’ request for meeting and communication to Nonparty 2, a defense counsel, constitutes an unlawful act infringing the defense counsel’s right of meeting and communication, and thus, the Defendant is liable for compensating the Plaintiffs for mental damages caused by the unlawful performance of duties under Article 2(

(1) The NIS had already been suspected of being unable to become a person eligible for protection under the North Korean Refugees Act as a Chinese national, and actually confirmed the fact from Nonparty 2 immediately after having admitted Nonparty 2 to the Central Joint Examination Center. Nevertheless, for a period of approximately three months, an investigation agency, such as the NIS conducted an investigation to confirm that Nonparty 2 continued to have entered the Republic of Korea for the purpose of collecting and conveying information on North Korean defectors, and delivering it to the North Korean authority. It is evident that this is an investigation of Nonparty 1’s criminal charge and an investigation of Nonparty 2’s criminal charge in relation to the accomplice 2. At the time when the Plaintiffs applied for an interview with Nonparty 2, Nonparty 2 was a criminal suspect who was investigated under the suspicion of violation of the National Security Act (espionage).

(2) At the time when the plaintiffs first filed an application for an interview, Nonparty 2 stated that they did not want to have the attorney-at-law who filed an application for an interview with the NIS investigator, and prepared two written statements, and the NIS investigator recorded the process.

However, it is difficult to view that Nonparty 2 first entered the Republic of Korea as a witness in North Korea, and immediately admitted to the Central Joint Examination Center, and any person was prohibited from having contact with his defense counsel, and properly understood the meaning of the right to contact and communicate with defense counsel. Nonparty 2 took necessary measures, such as having Nonparty 2 enter the passage of the inmate by attaching a label called “Non-Party 2” to his body, and having the CCTV taken measures to accommodate in the reading room where CCTV was installed. Accordingly, Nonparty 2 appears to have been chilling psychologically. Nonparty 2 attempted suicide in the course of being investigated as a witness in the relevant criminal trial. Nonparty 2 stated that the investigator tried suicide in the course of being investigated by attending the relevant criminal trial and tried to prepare a written statement by using the documents prepared in advance or using the written statement, etc. In light of these circumstances, Nonparty 2’s statement that the counsel and the defense counsel did not want to contact with the defense counsel is a genuine and genuine intent of the Plaintiffs. Therefore, it is difficult to deem that Nonparty 2 and the defense counsel did not have prepared the written statement.

(3) The NIS investigator repeatedly explained the fact that Nonparty 2 had the right to assistance of counsel while recording the process of preparing a written statement that he/she does not want to have an interview with the defense counsel. In light of such circumstances, the head of the NIS or the NIS investigator may be deemed to have recognized that Nonparty 2 was a criminal suspect subject to the right to interview and communication with the defense counsel. Furthermore, the NIS investigator could easily recognize that the statement made by Nonparty 2, who did not want to interview with the defense counsel, was conducted under psychological pressure, and that the truth is doubtful. In such a case, even if the defense counsel and Nonparty 2 were allowed to interview with the defense counsel, it could have easily resolved the doubt about the credibility of Nonparty 2’s truth and statement by allowing it, but did not take such measures. The performance of the duties by the head of the NIS or the NIS investigator was negligent by failing to perform his/her duty of care.

B. Examining the reasoning of the lower judgment in light of the evidence duly admitted, the lower court’s determination is justifiable in accordance with the foregoing legal doctrine. In so doing, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence inconsistent with logical and empirical rules, or by misapprehending the legal doctrine on investigation and defense counsel’s right to interview and communicate, and requirements for State liability

4. Conclusion

The Defendant’s appeal is dismissed in entirety as it is without merit, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Dong-won (Presiding Justice)