31.Article 11 Section 2, Section 3 and Section 6 of the Act on Protection of Specific Crime Informants, etc

[22-2(B) KCCR 387, 2009Hun-Ba57, November 25, 2010]

In this case, the Constitutional Court held constitutional Article 11 Section 2 and Section 3 of the Act on Protection of Specific Crime Informants, etc. (hereinafter the 'Act') which prevent disclosure of witnesses' personal information and the part of "…may order the accused … to leave the court or conduct the examination of witnesses' in Article 11 Section 6 of the Act.

Background of the Case

Petitioners are Kim, OO who is the boss of OO Faction, an organized group of gangsters assembled for the purpose of committing crimes and Shim, OO who is the chief executioner or the second boss of the gang. They were indicted for committing property damage, personal injury, extortion, etc. in order to maintain the gang syndicate and Petitioner Kim was sentenced to seven years of imprisonment and Petitioner Shim was sentenced to four years of imprisonment for violating the Punishment of Violence, etc. Act (extortion by an organization or group) on October 24, 2008. (2007GoHap129, etc.). Upon this, the petitioners appealed to the Seoul High Court on December 2, 2008(2008No3169). While the case was pending, they also filed a motion to request a constitutional review of Article 11 Section 2, Section 3 and Section 6 of the Act(hereinafter, the 'Instant Provisions') which prevent disclosure of witnesses' personal information and order the accused to leave the court and conduct the witness examination(2009ChoGi21), but the motion was denied. Subsequently, the petitioners filed this constitutional complaint against the Instant Provisions.

Provisions at Issue

Act on Protection of Specific Crime Informants, etc.

Article 11 (Special Provisions on Summons or Examination of Witnesses)

(2)When any retaliation is likely to be taken against summoned witnesses or their relatives, the chief judge or a judge may allow the relevant court official of Grade IV or clerk to omit all or part of personal information of the relevant witnesses, after recording the purport thereof in the protocol of trial. In such cases, the chief judge or a judge may request prosecutors to prepare and manage the identity management cards of witnesses whose identity management cards have not been prepared.

(3)The chief judge or a judge shall endeavor to ensure that the personal information of witnesses is not disclosed in the processes of the examination of witnesses, such as identification, witness oath or testimony, in cases under paragraph (2). In such cases, the identification of witnesses summoned under paragraph (1) shall be made by identity management cards suggested by prosecutors.

(6)The chief judge or a judge may order the accused or audiences to leave the court or conduct the examination of witnesses in places, other than open court, either ex officio or when it is recognized that there are sufficient grounds for application under paragraph (5). In such cases, state-appointed defense counsel shall be appointed when no defense attorney is available.

Summary of the Decision

Article 11 Section 2 and Section 3 of the Act (hereinafter, the 'non-disclosure provisions') which prevent disclosure of witness' personal information throughout the witness examination process and the part of '…may order the accused … to leave the court or conduct the examination of witnesses' in Article 11 Section 6 of the Act (hereinafter, the 'leaving the court provision') which allows the presiding judge to order the accused to leave the court and conduct the witness examination are to eliminate anything that can restrict victim's testimony by effectively protecting informants, etc., in order to ensure that citizens can voluntarily cooperate in criminal procedures concerning specific crimes without reservation, thereby contributing to

defending the society from crimes and facilitating fact finding procedures. Therefore, the legislative purposes are legitimate and the means to achieve the purposes are appropriate. Also, the Instant Provisions also strike the balance between legal interests as the degree to which fundamental rights are infringed cannot outweigh the public interests to protect witnesses including informants concerning specific crimes and to contribute to the finding of substantive facts, in that a cross examination is still guaranteed for the accused by Article 161-2 of the Criminal Procedure Act even though a witness examination is conducted after the accused leaves the court pursuant to the 'leaving the court' provision; that the right to cross examination of the accused is substantially guaranteed even after leaving the court as the defense attorney can assist the accused to make a list of questions asked before the cross examination; that the contents of witness examination can be predicted as it is possible to review or copy the record written by the investigation authority or the statement written by the witness before the witness examination when the witness' personal information is not disclosed and even when there are some testimonies beyond expectations, the defense attorney can cross examine the witness after having a discussion with the accused. Also, the principle of least restrictive means is also not violated. Therefore, the right to fair trial is not infringed.