NHRC Announces MOJ Non-compliance with Recommendation Prohibiting the Use of Restraining Devices On Principle
On 7 May 2003, the National Human Rights Commission (NHRC) found that the principle of putting restraining devices (handcuffs, ropes) on all arrested suspects when in the room for investigative public prosecutor questioning of suspects, and article 298 of the “Standing Rules for Guards on Duty (hereafter, Standing Rules)”—which explicitly stipulates that guards on duty must refuse investigation unit officers’ requests to remove such restraining devices—violate articles 10 (pursuit of happiness) and 12 (integrity of the body) of the Korean Constitution. Accordingly, the Commission had issued a recommendation to the Minister of Justice to reform the Standing Rules such that 1) the use of restraining devices in the (public prosecutor investigation unit) room for suspect questioning should be prohibited on principle, though allowed in exceptional cases, and 2) the discretionary authority for deciding whether restraining devices are appropriate should be given to the investigative public prosecutor officer and not the security guard.
On 19 September 2003, the Ministry of Justice (MOJ) notified the Commission that it could not prohibit the use of restraining devices in public prosecutor questioning rooms on principle (the recommendation), but would revise the Standing Rules to give the investigative public prosecutor discretionary authority as to whether restraining devices would be used. Based on article 25: 4 of the National Human Rights Commission Act, the Commission has decided to officially announce the MOJ failure to fully implement the recommendation.
Even if a person is an arrested suspect-defendant, use of physical restraints should be minimized to only unavoidable cases while under guard or during investigation. Further, it is unconvincing to argue that there needs to be a principle of physical restraint of suspects only in the room for questioning. Last, even if one considers that the dearth of holding facilities makes the use of restraining devices, in reality, unavoidable in a large number of cases, there remain clear differences between the NHRC position that “use of restraining devices be prohibited on principle, though permitted under exceptional circumstances” and the MOJ position that “use of restraining devices be the principle, though removal is permitted under exceptional circumstances”; thus, the NHRC decided to publicize the MOJ failure to fully implement the recommendation.
