Controversy over search and seizure of witnesses... “Convenience of investigation cannot take precedence over basic rights of citizens.”

[Interview] Kim Young-soo, attorney at Daeryun Law Firm
A copy of the warrant is issued to the suspect, but references are restricted... "Logical contradiction"

“While we guarantee the right to defense to suspects suspected of a crime, we restrict the issuance of warrant copies to third-party references due to confidentiality of the investigation. The convenience of the investigation cannot take precedence over the basic rights of the people.”

Attorney Kim Young-soo of Daeryun Law Firm criticized the investigative agency's practice of executing search and seizure warrants. The constitutional petition filed by Attorney Kim recently passed the preliminary review of the Constitutional Court and was referred to the full court (trial on the merits). This is a meaningful result that allows us to look again at the investigative agency's forced investigation practices and the court's passive interpretation from a constitutional perspective after the full implementation of the court member system last March. The court system refers to a system that uses court trials as the subject of adjudication of constitutional complaints.

Attorney Kim, who served as Chief Justice of the Navy Military Court, Deputy Chief Judge of the High Military Court of the Ministry of National Defense, and the first Director of the Navy Human Rights Center, is a legal expert who has been involved in the military judicial system for 22 years. He filed this constitutional petition based on the procedural limitations he felt when he was searched and seized as a direct reference in 2022.

Attorney Kim pointed out the procedural restrictions experienced during the special prosecutor's search and seizure in 2022. The special prosecutor searched and seized him as a witness in the case of Sergeant Lee Ye-ram's death, but he explained that in reality, it was a compulsory investigation with the intention of turning him into a suspect.

He recalled, “Even though I was not involved in the case at the time, the investigation team only made me read dozens of pages of warrants at the scene and did not even allow me to issue copies or take notes.” He went on to emphasize that he was restricted in exercising his right to procedural defense, saying, "I requested to see the warrant again to prevent the conversation or private information I had with the client from being exposed during the cell phone forensics process, but I was refused." Forensics is an investigative technique that finds clues to crimes by restoring data stored in digital devices such as smartphones and PCs.

Absence of warrant copy, blocking illegal investigation appeal process

Attorney Kim pointed out that the judiciary's passive interpretation of the current laws is undermining the principle of due process guaranteed under the Constitution. It is pointed out that it is a logical contradiction to strictly restrict the issuance of warrants to witnesses who are not suspected of a crime due to the confidentiality of the investigation, while the right to access warrants is widely recognized as a guarantee of the right to defense for suspects suspected of a crime.

There was also concern that without a copy of the warrant, there would virtually be no means of checking the investigative agency's compulsory disposition. The core of warrantism is that searches should only be conducted within the subject and period authorized by the judge.

Attorney Kim said, "Without a copy of the warrant, there is no way to clearly check on the spot whether the investigative agency is searching within the scope permitted by the court. Even if you later try to file a quasi-appeal against the illegal search and seizure, it is difficult to even specify the reason for the illegality because there is no warrant." A quasi-appeal is a procedure to file a request for cancellation or change to the court in response to dissatisfaction with an investigative agency's disposition, such as search and seizure.

The reason the Constitutional Court referred this case to the full court was because it judged that in-depth discussion was needed on the search and seizure process and the issue of guaranteeing the people's right to defense. It is significant in that a mechanism called constitutional appeals was put in place to check the investigative agency's compulsory investigation practices.

Attorney Kim hoped that this judgment would be a milestone that puts the brakes on the expedient use of warrants by investigative agencies. He said, "This should serve as an opportunity for the National Assembly and the courts to carefully consider human rights and legislate and adjudicate," and added, "If basic rights are restricted by state public power, the right to confirm and defend the legal basis must be guaranteed."

Lastly, he did not forget to give advice to citizens who will be unfairly investigated by investigative agencies. Attorney Kim advised, “At the scene of a compulsory investigation, we must not be intimidated by state power and confidently demand our rights through due process.”
 

Reporter Hwang Jeong-won (garden@sidae.com)

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Controversy over search and seizure of reference… “Convenience of investigation cannot take precedence over basic rights of citizens” (Shortcut)