NHRCK Highlights the Urgency of Reforming Overseas Travel Bans Imposed for Investigation Purposes
Key points of NHRCK recommendations:
1) Enhance practices and regulations related to overseas travel restrictions (to Justice Minister)
2) Monitor enforcement of overseas travel bans to prevent excessive use of travel restrictions for investigation efficiency (to Prosecutor General)
3) Issue a warning to prosecutors and others involved in the case (to Chief Prosecutor of District Prosecutors' Office A)
The National Human Rights Commission of Korea (Chairperson Young-ae Choi) concluded that the Ministry of Justice approved the request from a district prosecutors’ office for an overseas travel ban on a suspect and an exemption from the notification requirements without providing reasonable explanation or conducting a comprehensive review, as required by immigration control laws, and such a decision is a violation of due process and freedom of movement protected by the Constitution.
Accordingly, the Commission issued recommendations calling on the Justice Minister to enhance the review method and process for overseas travel restriction requests submitted by an investigative agency and strengthen the assessment of exemption qualifications, the Prosecutor General to strictly monitor prosecution offices under control to prevent the use of overseas travel restrictions only for the purpose of investigation efficiency, and the Chief Prosecutor of the District Prosecutors’ Office to issue an warning to prosecutors and others involved in the case and provide training for them to prevent similar incidents from occurring again.
The complainant stated that he was investigated at the prosecutors’ office on December 18 2019 for an alleged violation of the Public Official Election Act and learned of the overseas travel ban later on January 24 2020 when he tried to check-in at the airport for a family trip. He contacted the Prosecutors’ Office to inquire about the purpose and duration of the travel ban only to be told that they cannot provide any information due to the ongoing investigation. He was not even informed about the subsequent removal of the travel ban. The complainant filed a petition with the Commission, claiming that the respondents at the district prosecutors’ office comitted a violation of his rights by applying for the overseas travel ban and refusing to notify him of the decision even though he fully cooperated with prosecutors’ investigation and was not considered a flight risk.
<Overseas travel restrictions>
The NHRCK’s investigation found no reasonable grounds to believe that the complainant was highly likely to flee to another country, considering the occupation, family relations, international travel records of the complainant and the travel ban application and other documents submitted by the district prosecutors’ office. It has also been confirmed that the prosecutors requested the extension of the overseas travel ban for the period from January 2 through February 1 2020 without due consideration of the flight risk of the complainant based solely on the fact that the complainant was under investigation for the violation of the Public Official Election Act. The prosecutors failed to take into consideration that the complainant appeared at the prosecutors’ office and fully cooperated with the investigation on December 18 2019 and showed no sign of avoiding or rejecting prosecutors’ investigation afterward.
Taking all things into consideration, the Commission noted that the practice of requesting international travel bans for all suspects without considering the flight risk of each individual cannot be accepted in all cases, including the one that draws a large amount of public attention, as it encourages the excessive use of travel bans for investigation efficiency and is not consistent with the basic principles of travel restrictions.
<Request for exemption from notification>
It was widely reported in the media even before the complainant was placed under the travel ban on December 2 2019 that the prosecutors are carrying out investigations into the case. The complainant probably expected he would soon be summoned to the prosecutors’ office for investigation either as a suspect or a witness. In this situation, the notification to the complainant of the overseas travel restrictions request filed on December 2 2019 and the decision to extend the enforcement period on December 27 is unlikely to considerably increase the risk of destruction of evidence by the persons involved in the case. Moreover, a majority of those called for investigation, who were incumbent police officers, posed no serious flight risk.
The overseas travel ban request filed on December 27 2019 explains the reason why the prosecutors should be exempt from the notification requirements. The document states the complainant might disappear or avoid an investigation if he receives the notice of the travel ban and learns about the resumption of the investigation, which makes it hard for prosecutors to obtain additional evidence and cause significant disruptions to the investigation process. However, the Commission found that the complainant had already received a summons from the prosecutors’ office (December 6 to 13) and appeared before prosecutors for investigation (December 18) before the attempt was made to extend the travel ban on December 27 2019. Therefore, the notification of the travel restrictions is unlikely to cause serious disruptions to the investigation process. The Commission also took into account the fact that the prosecutors failed to provide reasonable grounds or explanations for the travel ban decision.