CONTENTS
- 1. Violation of the Narcotics Control Act, Overview of the Search and Seizure Procedure Case
- 2. Violation of the Narcotics Control Act, Whether the Search and Seizure Within the Search Procedure Was Lawful
- - Violation of the Narcotics Control Act, the Capacity to Participate of the Non-Party Who Took Part in the Search and Seizure
- 3. Violation of the Narcotics Control Act, the Supreme Court's Determination That the Participant's Insufficient Capacity Made the Collection Unlawful
1. Violation of the Narcotics Control Act, Overview of the Search and Seizure Procedure Case
This is a case in which a participant's capacity to take part became an issue during a search and seizure conducted by an investigative agency for a violation of the Narcotics Control Act.
On suspicion of a violation of the Narcotics Control Act, the investigative agency obtained an arrest warrant for the suspect and a warrant for search, seizure, and verification of the apartment that was the residence of a non-party.
The investigative agency, together with the non-party who had been arrested in the act on a separate charge, moved to the apartment at issue and conducted the search and seizure, and at the time only the non-party was present at the scene.
Through the search and seizure carried out with the non-party, the investigative agency found approximately 0.62 g of cannabis, a dropper, a funnel, and other narcotics-related evidence.
The court of first instance rendered a conviction based on the evidence obtained through the search and seizure.
2. Violation of the Narcotics Control Act, Whether the Search and Seizure Within the Search Procedure Was Lawful
Article 123, Paragraphs 2 and 3, and Article 219 of the Criminal Procedure Act provide that a person who participates in the execution of a search and seizure warrant must have at least the capacity to understand the meaning of the search and seizure procedure (hereinafter, "capacity to participate").
In addition, the Act on the Prohibition of Discrimination against Persons with Disabilities and Remedies for Infringement of Their Rights provides that judicial authorities must ascertain whether a person involved in a case has a disability that causes difficulty in communication or expression, and must inform that person with a disability that assistance is available in criminal justice proceedings and of the specific content of such assistance.
This legal principle applies equally where, in a search and seizure of a residence or the like, the suspect is at the same time the resident.
Where a search and seizure warrant is executed at the suspect's residence or the like, if the suspect lacks the capacity to participate, the participation of that suspect alone is insufficient, and the investigative agency must, in accordance with Article 123, Paragraph 3 of the Criminal Procedure Act, also have a neighbor or another person with the capacity to participate take part.
If, in such a case, only a suspect lacking the capacity to participate took part, the search and seizure is regarded as, in principle, unlawful as a violation of Article 123, Paragraphs 2 and 3 of the Criminal Procedure Act.
∙ Article 123 of the Criminal Procedure Act
Paragraph 2: When executing a search and seizure warrant, the resident, the custodian, or a person equivalent thereto shall be made to participate.
Paragraph 3: When such a person cannot be made to participate, a neighbor or an official of the local public organization shall be made to participate.
Violation of the Narcotics Control Act, the Capacity to Participate of the Non-Party Who Took Part in the Search and Seizure
The non-party who took part in the search and seizure for the violation of the Narcotics Control Act was undergoing inpatient treatment for psychotic symptoms.
In addition, on a psychological evaluation the non-party was assessed at a full-scale IQ of 57 and a social maturity age of about 11 years, and the non-party's medical certificate contained a diagnosis of ‘mild intellectual disability with serious behavioral disturbance requiring attention or treatment, and bipolar affective disorder, unspecified.’
In other words, this amounts to the degree of insufficient capacity to participate as defined by the legal principle.
3. Violation of the Narcotics Control Act, the Supreme Court's Determination That the Participant's Insufficient Capacity Made the Collection Unlawful
In connection with the violation of the Narcotics Control Act, the investigative agency had, prior to the search and seizure at issue, obtained records of the medical treatment results and examination results concerning the non-party who had been arrested on a separate charge.
This means that the investigative agency was sufficiently aware that the non-party lacked or had insufficient capacity to participate.
Nevertheless, at the time of the search and seizure at issue, the investigative agency had only the non-party, who lacked sufficient capacity to participate, take part, and it did not take measures such as having another person participate in accordance with the Criminal Procedure Act.
The Supreme Court stated that there is substantial room to find that the evidence secured through the search and seizure at issue constitutes evidence unlawfully collected by the investigative agency, so that its admissibility is difficult to recognize.
The Supreme Court determined that the lower court's judgment, which maintained the conviction on the basis of evidence collected through the unlawful search and seizure at issue, including the cannabis at issue, ‘misapprehended the legal principle concerning a participant's capacity to participate and failed to conduct the necessary deliberation, thereby committing an error that affected the judgment.’
Accordingly, the Supreme Court decided that the portion of the charged facts at issue should be reversed.
The above case was a Supreme Court judgment finding that, because the investigative agency had only a participant whose capacity to participate was below the standard take part in the search and seizure procedure and took no separate measures, the search and seizure was unlawful.
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