Chapter 2 presents a case study and typology of human rights violations committed during criminal investigation proceedings. Based on the findings, it identifies a number of issues with the current legal framework on human rights violation and explores possible legislative improvements. It also highlights various issues surrounding violative investigation practices, followed by policy recommendations to address them.

1. Issues with the Current Legal Framework on Human Rights Violation and Possible Legislative Improvements
The issue of human rights violation persists in criminal investigation proceedings in Korea. One of the factors contributing to the persistence is that it is difficult to draw concrete guidelines on how to implement the constitutional principles on human rights/basic rights from the current statutory texts. In fact, other than some abstract formulations found in the Constitution, the Korean law is quite lacking when it comes to direct and concrete provisions on human rights protection in investigation procedures. Some provisions on human rights protection that do exist are scattered across various laws and regulations, making it difficult for investigation agencies to take stock of those provisions. These factors add to the difficulty in identifying coherent, unilateral, direct, and resolute signals from the current laws and regulations. To address the issue, the Korean law needs to provide clear guidelines for law enforcement organizations by inserting clear provisions on constitutional principles and human rights protection in the Criminal Procedure Act.

A review of the Criminal Procedure Act indicates that, while the Act contains some provisions providing for human rights protection in specific procedures, most of the provisions addressing the issue are found in subsidiary statutes. Granted, the nature of criminal procedures dictates the need for concrete provisions that are more suitable for subsidiary statutes rather than acts. However, from the statutory structure perspective, provisions restricting suspects’/defendants’ rights, such as the right to perusal or copy of investigation records, need to be included in Acts rather than subsidiary statutes.

In addition, even though some Acts provide for rights and obligations regarding human rights protection, most of these provisions are scattered across disparate laws and each provision only relates itself to a specific procedure. One of the few statutes that provide a systemic framework for human rights protection in investigation proceedings is the Rules on Human Rights Protection in Criminal Investigation, even though it is merely an ordinance issued by the Ministry of Justice.

2. Violative Investigation Practices and Policy Improvements
The human rights violation in criminal investigation proceedings has not changed much over the years despite provisions for human rights protection in the Republic of Korea Constitution, the Criminal Procedure Act, and other laws.

One of the common causes of human rights violation during criminal investigation proceedings is the presumption of guilt by investigation officers. Presumption of innocence is a legal norm that operates as a principle regulating criminal procedures, and serves as a guiding principle that apply across all procedures including investigation and adjudication. Despite this crucial principle, many investigation agencies have been found to treat suspects as if they had been proven guilty, or excessively restrict their right to defend themselves. This study also identified some cases where investigating officers committed human rights violations by blindly following the investigation practices from the past, without realizing the fact that their actions constitute human rights violation.

While human rights protection in criminal investigation proceedings can be certainly enhanced by institutional reforms, for example by developing a systemic legal framework on human rights protection, such reforms and new provisions would be rendered ineffective without efforts to improve the human rights awareness of investigation officers. Therefore, steadfast and systemic human rights education need to be implemented for investigating officers. In addition, given the repetitive nature of some human rights violations, investigation agencies need to share human rights violation cases with each other to prevent recurrence.

Supervision of investigation proceedings at investigation agencies is restricted by the very nature of criminal investigation and hindered by various practical issues. The National Police Agency and the Supreme Prosecutors’ Office have designated Human Rights Protection Officers for self-monitoring and supervision. Institutional support should be provided to ensure that Human Rights Protection Officers can fulfill their roles for human rights protection in investigation proceedings. To enhance human rights protection of parties involved in criminal cases, the Supreme Prosecutors’ Office recently launched a program in which the Human Rights Protection Officer review cases where the prosecution initiated investigation to verify whether the investigators complied with human rights provisions.

Equally important for human rights protection at investigation agencies are various human rights protection and promotion measures provided by the National Human Rights Commission. The National Human Rights Commission offers various options for human rights protection and promotion including investigation and relief for human rights complaints, human rights education, and public relations activities for awareness raising. In fact, in some of the human rights violation cases at investigation agencies, victims lodged complaints to the National Human Rights Commission resulting in disciplinary actions, request for criminal investigation, corrective measures to prevent recurrence, and human rights training for staffs at the investigation agencies. The commission also launches ex officio investigations to recommend human rights policies to relevant institutions. To summarize, the National Human Rights Commission provides remedies for human rights violation during investigation proceedings and proactively proposes human rights policies. Its roles need to be enhanced further so that the commission can fulfill its role as protector against human rights violation and overcome the restrictions of self-supervision measures such as the Human Rights Supervisor).

Chapter 3 focuses on various issues regarding the structure and different phases of investigation procedures including: issues between ‘formal investigation’ and ‘preliminary investigation,’; the principle of non-compulsory investigation and the subsidiarity of compulsory investigation; and structural issues regarding search and seizure.

First, with regard to ‘preliminary investigation’ by investigation agencies, when the preliminary investigation ends and the formal investigation begins has been a crucial issue because the commencement of formal investigation changes the relevant parties’ legal status as well as the procedural rights that go with them. In fact, the issue of distinction between formal investigation and preliminary investigation has had significant impact on the level of human rights protection in Korea; preliminary investigation has been repeatedly accused of being a source of human rights violations, a controversy partially fueled by the blurred line between the two.

However, a preliminary investigation may be also understood as a procedure in which an investigation agency attempts to establish a person’s guilt to a degree that allows for the commencement of a formal investigation or, if the person is innocent, free the investigatee from the criminal prosecution procedures as early as possible. If so understood, a preliminary investigation may be seen as a means to protect the suspect’s human rights by alleviating the pressure inherent in being a suspect in investigation proceedings. The significance of this aspect of a preliminary investigation is highlighted by the fact that an investigatee finds herself in a precarious position just by being on the receiving end of an investigation and, in countries where investigation is mandatory, just being targeted by an investigation agency means the commencement a formal investigation.

In addition, numerous directions and established rules enacted or revised in recent years have granted persons under preliminary investigations with various rights equivalent to those enjoyed by suspects subject to formal investigations. However, these changes in the legal framework have not unilaterally resolved all issues surrounding preliminary investigation.

First, if those ordinances and established rules grant the aforementioned rights out of concerns about possible human rights violations during a preliminary investigation, those rights should not be stipulated in ordinances or established rules, which are mere internal guidelines of the relevant organizations. Those rights, and judicial control over investigation agencies conducting preliminary investigation, need to be stipulated in the Criminal Procedure Act in order to offer sufficient protection for investigatees’ human rights.

Second, the obscurity inherent in the level of suspicion required to initiate a preliminary investigation may encourage preliminary investigation practices that are selective and arbitrary. According to Article 224 (1) of the Prosecutor Rules on Case Processing, “a prosecutor shall book a case as a preliminary investigation case if the existence of a crime needs to be verified by news articles or other publications, anonymous reports, and collection of rumors and other information.” However, it is not easy to determine the level of suspicion that is sufficient to launch a preliminary investigation, but not high enough to begin a formal investigation.

Third, a preliminary investigation does not begin until the investigatee suspected of a crime appears at the investigating agency. In some way, this requirement can be interpreted as a means to protect an investigatee’s human rights by granting him/her the rights equivalent to those of a suspect under formal investigation. On the other hand, the requirement may not always work in favor of an investigatee’s human rights because failure to comply with an investigation agency’s summon may lead to the investigatee’s arrest. Unless the investigatee committed a serious crime, concrete justice in a specific case may be better served by granting him/her the rights enjoyed by a formal suspect.

Fourth, Article 19 of the Police Rules on Investigation provides for preliminary investigation (“pre-booking investigation”). Paragraph (2) of the article lists the cases in which an investigator may “close a preliminary investigation,” and the causes are identical to the cases that allow for post-investigation decision on non-referral (Articles 19 (2) 2 and 108 (1) 1 to 3), which may be interpreted as meaning that the closure of a preliminary investigation and a non-referral decision are mutually substitutable. In such cases, preliminary investigation may be abused by a judicial police officer as a way to avoid a prosecutor’s re-investigation request or a victim’s appeal against a non-deferral decision. Granted, even after a judicial police officer discontinues a preliminary investigation, a victim can still press a charge against the investigatee. However, if the victim has no other option but to file the charge with a judicial police officer, the officer may also decide to discontinue the preliminary investigation. This issue can be addressed by creating a way to appeal a judicial police officer’s closure of preliminary investigation within the judicial police officer system or allowing the victim to file an appeal with a prosecutor.

Fifth, as mentioned above, the relevant ordinances and established rules state do not permit compulsory dispositions during preliminary investigation. However, Article 6 (Procedures for Authorization for Communication-Restricting Measures for Criminal Investigations) of the Protection of Communications Secrets Act stipulates in paragraph (1) that a prosecutor may request a communication-restricting measure against an investigatee under preliminary investigation. This provision conflicts with the ordinances and established rules that do not permit compulsory dispositions during a preliminary investigation. The issue here is that the ordinances and established rules are internal guidelines for case processing at investigation agencies, and these guidelines do not take precedence over Acts. As such, even if an investigation agency requests permission for a communication-restriction measure against an investigatee in violation of the guidelines, it would not constitute an illegal investigation or even an excessive investigation. As mentioned above, this is a structural issue caused by the lack of human rights protection provisions in Acts. The same issue is raised by Article 7 of the Protection of Communications Secrets Act (Communication-Restricting Measures for National Security).

Article 9-3 (2) of the same Act poses the same issue because the provision provides for notification of seizure, search, and investigation of telecommunications, which presupposes that an investigation agency may take such action against a person under preliminary investigation.

Sixth, Article 12 and the subsequent articles of the Police Rules on Investigation provide for formal suspects’ right to contact and communicate with an attorney. However, the Rules do not contain provisions on the mutatis mutandis application of those rights to preliminary investigatees. The Rules on Processing of Preliminary Investigation Cases do not contain any provision on the rights of investigatees. In order to grant investigatees with rights equivalent to those enjoyed by formal suspects, investigatees need to be granted the right to contact and communicate with an attorney as the right is essential to the right to fair trial and the principle of due process.

Chapter 4 overviews investigative dispositions and presents recommendations for human rights protection.

Sections 1 to 7 reviews the issues and statutes (Acts, rules, established rule, etc.) related to compulsory dispositions during criminal investigations, by grouping them into two categories: compulsory disposition against persons and compulsory disposition against properties. In order to provide a framework for the discussion, this chapter first examines a number of issues including whether the provisions on investigation procedures and methods scattered across special Acts should be integrated into the Criminal Procedure Act, and whether human rights-related procedures in internal guidelines should be provided for by an Act.

First, this chapter discusses whether Supreme Court rules, Presidential Decrees, and Ministry of Justice ordinances can serve as a source of law for the Criminal Procedure Act. Criminal procedures are technical in nature, as they involve multiple procedural actions performed over time in a continuous flow. In consideration of this technical nature, the Constitution provides for exceptions to the constitutional principle that criminal procedures must be stipulated in Acts. According to Article 108 of the Constitution, the Supreme Court may establish, within the scope of Act, regulations pertaining to judicial proceedings and internal discipline and regulations on administrative matters of the court. Some understand the phrase “within the scope of the Act” as allowing the Supreme Court to stipulate any matter in its rules as long as the rules do not go against any Act or the basic structure of litigation. However, the matters that can be prescribed by the Supreme Court rules should be restricted to purely technical matters related to litigation procedures that do not affect the basic structure of criminal procedures or the interests of the parties involved in the procedures. As for the Supreme Court’s ‘established rules,’ save for indirectly affecting the operation of criminal procedures, they should not be accorded any power to govern criminal procedures by directly affecting the rights and obligations of persons involved in litigations. In this regard, the old Established Rules on Processing of Personal Detention was not only inappropriate from the human rights protection perspective, but also problematic because it provided for litigants’ rights and obligations even though it cannot serve as a source of law for the Criminal Procedure Act.

Presidential Decrees and Ministry of Justice ordinances also cannot be used as a source of law for the Criminal Procedure Act. Criminal procedures must be set in an Act enacted by the legislature, and any exception to this principle should be supported by the Constitution. These statutes are mere internal work guidelines for investigation agencies. Therefore, ministries should refrain from delegating matters that should be addressed by Acts to subsidiary statutes or introducing new provisions restricting litigants’ rights beyond the scope specified by Acts. Any such provisions in subsidiary statutes should be removed or transferred to Acts.

In light of the discussions above, the provisions on the non-compulsory investigation-first principle and the principle of proportionality for compulsory investigations. These provisions seem to be appropriate because they merely reaffirm the principles found in the Constitution and Acts and provides concrete guidelines for human rights protection.

Regulation on Mutual Cooperation Between Prosecutors and Judicial Police Officers and General Rules of Investigation, Article 10 (Principle of Non-Compulsory Investigation and Cautionary Notes on Compulsory Investigation) (1) When conducting an investigation, in principle, prosecutors and judicial police officers shall investigate on a non-compulsory basis. Compulsory investigation must be conducted only when it is necessary to do so, as prescribed by the law, to the least extent, and with procedures and methods that are less invasive of the rights and interest of the investigatee.

Rules on Human Rights Protection in Criminal Investigation, Article 8 (Principle of Non-Compulsory Investigation) (1) Prosecutors shall, in principle, conduct investigations on a non-compulsory basis. Compulsory investigation must be conducted only when it is necessary to do so, as prescribed by the law, and to the least extent.

(2) In the event that a compulsory investigation is needed, prosecutors shall choose investigation procedures and methods that are less invasive of the rights and interests of the investigatee.

Further discussion is required regarding the issue of whether to incorporate criminal procedure provisions in special Acts into the Criminal Procedure Act. The Criminal Procedure Act is a concrete manifestation of the Constitution and stipulates the fundamentals of the criminal procedures. As such, it would be undeniably ideal to incorporate all provisions on compulsory investigation into the Criminal Procedure Act.

However, in light of the purpose of this research, which is to identify ways to enhance human rights protection during investigation proceedings, the issue of human rights needs to be considered in connection with the constitutional requirement that criminal procedures must be stipulated in Acts. The Criminal Procedure Act does not include a provision corresponding to Article 1 of the Japanese Criminal Procedure Act. However, the meaning of human rights in the Criminal Procedure Act provides a foundation for the discussion on the boundary between compulsory and non-compulsory investigation.

Article 199 (1) of the Act stipulates, “Necessary examinations may be made in order to achieve the purpose of an investigation: Provided, That compulsory measures shall be taken only where otherwise provided in this Act to the least extent necessary.” Several competing theories have been proposed with regard to the interpretation of this provision. The so-called ‘formal interpretation theory’ argues that only the investigations explicitly specified by the law can be conducted as compulsory investigations. Opponents to the theory refutes that, according to the formal interpretation theory, all newly emerging investigative methods will constitute non-compulsory investigations outside the control of law. To address this issue, the proponents of the ‘substantive interpretation theory’ have proposed to distinguish between the two based on whether the investigation involves physical coercion, or whether the investigation is conducted against the investigatee’s will. Another theory, which is called the ‘due process theory,’ maintains that the Constitution and the Criminal Procedure Act stress due process and clearly set the boundary of compulsory investigation because people’s basic rights may be seriously undermined by compulsory dispositions by investigation agencies. As such, even if a certain investigation method is not specified as infringing on basic rights prescribed in the Constitution, such investigation should be classified as compulsory disposition if it poses risk of infringing on the minimum human rights recognized by the legal community. The courts’ stance seems to be closer to the substantive interpretation theory. For example, in a case involving the Telecommunications Business Act, the Constitutional Court held that an investigation agency’s request for communication data under Article 54 of the Act is non-coercive and constitutes a non-compulsory investigation. As for the reason, the court took note of the fact that Article 54 does not require a business operator to comply with such a request, and a business operator is free to refuse cooperation without fear of sanction or punishment.

This researcher believes that the boundary between compulsory and non-compulsory investigation can be better identified by looking into the text of Article 199 rather than the theories pertaining to it. The gist of Article 199 is that the procedures of compulsory investigation must be strictly prescribed by law because, while compulsory investigation is necessary for achieving the purpose of investigation, it seriously infringes on an individual’s basic rights. As such, a compulsory investigation is lawful only so far as it falls under a type prescribed by law and complies with the specified requirements and procedures. In the past, compulsory investigation was understood as the type of investigation that is required to be prescribed by law and, at the same time, requires a warrant. However, the requirement for legal preion and the requirement for warrant are two separate requirements, and the two do not always apply to compulsory investigation at the same time. Furthermore, the significance of legal preion requirement in restriction of basic rights may be further enhanced by distinguishing between compulsory investigation subject to the legal preion requirement and the compulsory investigation subject to both the legal preion requirement and the warrant requirement. There exist two ways to distinguish between the two: legal provisions can be introduced to specify compulsory dispositions requiring a judge’s warrant other than those prescribed in the Constitution; or investigation agencies can be allowed to issue compulsory dispositions without a warrant within the extent prescribed by law. Which course to take is a decision to be made by the legislature.

Therefore, the communication-restricting measure in the Protection of Communications Secrets Act and the special case investigation in the Act on the Protection of Children and Youth against Sex Offenses should be also considered as compulsory investigation. It is clear that the phrase “this Act” in Article 199 of the Criminal Procedure Act refers to the Act itself. As such, provisions on compulsory dispositions in any other Act may seem inconsistent with the text of Article 199. However, these provisions cannot be regarded as in violation of the requirement for legal preion. That is, in the event a new compulsory disposition is required, we can always adopt one by prescribing it in a formal Act. We do not need flexible interpretation of the legal preion requirement only because advancements in technology and science give birth to new investigative methods.

At the same time, it should be noted that incorporating all provisions on compulsory investigation into the Criminal Procedure Act would be more conducive to the comprehension and application of the provisions and the systems they represent. To illustrate, in the past, some crimes required a victim’s complaint for indictment. Provisions specifying which crimes fall into the category were scattered across different laws (Criminal Act, Act on Special Cases Concerning the Punishment of Sexual Crimes, Act on the Protection of Children and Youth against Sex Offenses, etc.), which had to be scrutinized to find out whether a specific crime requires a victim’s complaint. In other words, provisions on compulsory investigation in special Acts is likely to undermine the legislative purpose behind putting most of such provisions in the Criminal Procedure Act. To minimize this risk without denying the existence of such provisions in other Acts, those provisions in special Acts should be interpreted within the principles and mechanisms prescribed in the Criminal Procedure Act.

The due process principle provides a foundation for legal sanctions in areas outside the scope of the written law. It also elevates the status of the Criminal Procedure Act as the Criminal Procedure Act in the narrow sense of the word into a constitutional Criminal Procedure Act. Then, the Criminal Procedure Act can take a more active role in creating a ‘foundation’ for human rights protection in criminal proceedings, which needs to be considered when assessing its relationship with other Acts and subsidiary statutes.