“The use of restraining devices in prosecutor"s interrogation rooms should be banned on principle”
NHRC recommends the Ministry of Justice amend Article 298 of Guidelines for Management of Detainees
Attorney Kim Seung-gyo(Jeong Pyeong Law Offices) filed a petition with the National Human Rights Commission against the Minister of Justice in April 2002 which stated, “Article 298 of the Guidelines for Management of Detainees is a violation of human rights because it forces the use of restraining devices (handcuffs, ropes) to all detained suspects in the prosecutor"s interrogation room, and also stipulates that even if the interrogating prosecutor requests the removal of restraining devices, the guards must refuse the request." The NHRC concluded, “This article violates the right to pursue happiness and the right to freedom of suspects" and recommended the Ministry of Justice amend Article 298 of the Guidelines for Management of Detainees by banning the use of restraining devices on suspects in interrogation rooms on principle, but allow exceptions; and leave the use of restraining devices to the prosecutor"s discretion.
Attorney Kim Seung-ho, representing criminal suspect Park, filed the petition with the NHRC after Park"s request for removal of the restraining devices was rejected citing Article 298 of the Guidelines. Park was brought in for questioning by the prosecution on two occasions in March 2002, where he was forced to wear handcuffs and ropes. Park made the request for removal stating, "I would like to be questioned in a natural state."
The investigation by the NHRC revealed that Article 298 of the Guidelines for Management of Detainees, officially decreed by the Ministry of Justice, stipulates guidelines for guards in the interrogation rooms of the prosecution. Specifically, Clause 1 of Article 298 states, ‘restraining devices must be worn inside the interrogation room and the suspects must be closely guarded," and Clause 2 states, ‘when prosecutors request removal of restraining devices or ask guards to leave the room out of necessity, guards must refuse, with the exception of a direct order from a senior officer."
During the course of the NHRC investigation, the respondent, the minister of justice, asserted, “It is inevitable to limit the basic rights of suspects by using restraining devices within interrogation rooms. However, we have a plan to amend related articles to leave the use of restraining devices on suspects to the prosecutor"s discretion."
The NHRC also asked the prosecutor general to submit an opinion on Article 298. The prosecutor general responded that because detention necessarily limits the physical freedom of detained suspects, it cannot be said that the article crosses the line of basic rights ensured by the Constitution. In addition, there is a high possibility and concern that detained suspects will escape, inflict injury to themselves, commit suicide, threat or hurt investigators, damage office furniture, or destroy evidence; therefore, he argued, "It is inevitable to use restraining devices on detained suspects but it is reasonable to amend related articles so that suspects can request the removal of handcuffs to the interrogating prosecutor."
The NHRC called attention to the following points in acts related to the use of restraining devices on detained suspects (Criminal Administration Act, Criminal Procedure Act, Act on the Performance of Duties by Police Officers, etc): 1) the use of restraining devices should be limited to minimal necessary situations 2) Article 280 of the Criminal Procedure Act stipulates that the body of the accused should not be physically restrained in a courtroom, and 3) the body of the accused can be exceptionally restrained by order of a judge when there is concern of escape or violence.
However, Article 298 of the Guidelines for Management of Detainees not only forces the use of restraining devices on every detained suspect without exception, but does not allow prosecutorial discretion. Therefore, the National Human Rights Commission decided that the article violated Article 10 (right to pursue happiness) and Article 12 (physical freedom) of the Constitution, and stressed the importance of the principle that physical restraints should be implemented only in the most minimal and unavoidable situations.
