"'Passing a copy of the warrant' when conducting a search and seizure of a witness is unconstitutional"... Constitutional Court member receives judgment

Attorney Kim Young-soo of Daeryun Law Firm files a complaint against the Supreme Court.
Witness to the death of Sergeant Lee Ye-ram... I did not receive a copy of the warrant at the time of search.
Law quasi-appeal and re-appeal dismissed in succession… “If you are not a suspect, there is no obligation to provide it.”
“The witness was executed without even knowing the meaning of the case, regardless of his or her own actions.”

The Full Bench of the Constitutional Court will decide whether the practice of not providing a copy of a warrant when an investigative agency searches and seizes a reference person who is not a suspect is unconstitutional.
 

According to the legal community on the 13th, the designated tribunal of the Constitutional Court decided on the 12th to refer the case filed against the Supreme Court by lawyer Kim Young-soo of Daeryun Law Firm to the full court. The case originated when the Special Prosecutor Ahn Mi-young team, which investigated the death of the late Sergeant Lee Ye-ram in 2022, searched and seized the residence and smartphone of Attorney Kim, who was a reference, and refused to issue a copy of the warrant.

According to Daeryun, Attorney Kim pointed out in the petition submitted to the Constitutional Court that the investigative agency's interpretation of the law directly violates the principles of equal rights and due process under the Constitution. Attorney Kim emphasized, “A suspect is a person who has become the target of an investigation due to his or her actions and is subject to the execution of a warrant, whereas a witness is executed without knowing the meaning of the warrant, regardless of his or her actions.” He added, “The reference person should be seen as being in a position where the principles of due process and the right to request a trial are procedurally guaranteed.”

In particular, the practical problem that the confiscated person's right to substantive defense is neutralized if there is no copy of the warrant was also pointed out. Attorney Kim explained the situation at the time, saying, “The applicant cannot remember the contents of the dozens of pages of the warrant, so if a copy was not possible, he requested that he be allowed to film the warrant or make notes on its main contents, but this was also rejected.” He then complained, “It was not possible to confirm whether the execution of the search and seizure warrant was carried out within the legal scope in relation to the criminal facts stated in the warrant.”

He also strongly refuted the claim of ‘secrecy in the investigation’ that the investigative agency uses as the main justification for refusing to issue copies. He pointed out, “There is no difference between investigation secrets disclosed by presenting a search and seizure warrant and investigation secrets disclosed by issuing a copy.” Furthermore, he strongly criticized, “Giving a copy of the warrant to a suspect suspected of a crime but denying it to an innocent reference on the grounds of confidentiality of the investigation is an incoherent action.”

Previously, the court ruled that the investigative agency had no obligation to issue a copy of the warrant to a third party other than the suspect during the pre-indictment investigation stage, and dismissed Attorney Kim's quasi-appeal and re-appeal one after another. The Constitutional Court plans to make a final decision on whether the provisions of the Criminal Procedure Act are unconstitutional and whether Attorney Kim's fundamental rights are violated through a future hearing by the full bench.

Namgung Min-gwan (kunggija@edaily.co.kr)

[View full article]
Edaily - "Unconstitutional 'passing of warrant copy' during search and seizure of reference person"... Constitutional Court member receives judgment (Shortcut)
News 1 - Tribunal member in three cases... Beyond ‘procedures’, even ‘unconstitutional legal interpretations’ are judged (Shortcut)
International Newspaper - The Constitutional Court considers whether the investigative practice of not providing copies of warrants to witnesses is unconstitutional (link)