NHRC「Request for a Ruling」 Appeals Incheon-Suwon Public Prosecutors’ Office Non-Prosecution Ruling
In March 2004, the National Human Rights Commission (NHRC) had filed a suit with the public prosecutors’ office against Police Officer Hwang for unlawful confinement of an opposition leader to preemptively「prevent」 the leader from attending a rally. On 19 May 2004, the Incheon-Suwon Regional Public Prosecutors’ Office (hereafter ISPPO) decided to drop the case. On 28 May 2004, the NHRC filed what Korean law calls a「request for a ruling」 to ISPPO, meaning that the case will be sent to the Seoul High Court for a ruling. This marks the first time the Commission has ever used the「request for a ruling」 procedure.
In March 2003, the group, Solidarity for Peninsular Reunification, had petitioned a complaint charging that「the Honorary Chairperson of the Pan-Korean Alliance for Reunification—SHIN, Chang-gyun (at the time, age 96)—had been preparing to participate in the「National March 1st [Movement] Commemoration Rally for Peace and (peninsular) Unification」 event (hereafter,「commemoration rally」) when Kwacheon Police intelligence and security officer Hwang—whose regular beat consisted of tracking Shin’s activities—abducted Shin by pretending to be Shin’s driver, boarded Shin in his car, and drove the elderly Shin locked in Hwang’s car around the city for 4 to 5 hours to obstruct Shin from attending the event in line with Kwacheon Police Office’s orders.
In its original assessment of the petition, the NHRC: undertook an on-site investigation at the site of the incident as well as of the related state organs, inspected the National Police Agency records on supervision and inspection, and interviewed witnesses and the petitioner. After thorough consideration of all the evidence obtained, the NHRC recognized Hwang’s conduct as unlawful confinement and reported the case to the public prosecutors’ office.
The ISPPO, which received the case from the Supreme Public Prosecutor’s Office, recognized that the police officer did indeed drive for 4 hours and 30 minutes all over Kwacheon City and Seoul with the victim in his car on 1 March 2003, the day of the event. Even as the ISPPO recognized this fact, it concluded that officer Hwang was innocent of wrongdoing because: 1) officer Hwang denied wrongdoing in testimony, 2) while the victim was trapped in the car, he repeatedly spoke with his wife and persons related to Pan-Korean Alliance for Reunification on his cell phone, 3) the persons receiving the calls testified that the victim was not fearful at the time, 4) the victim testified that officer Hwang did not physically assault or threaten him, and 5) the ISPPO logic that because the government had given its approval for holding the commemoration rally, it would be difficult to believe that the police would try to prevent the victim from attending.
However, the NHRC came to file a「request for ruling」 believing that the ISPPO non-prosecution decision either stemmed from a misunderstanding of the facts owing to incomplete investigation or from a misjudgment of the legal principle underpinning the prohibition on「unlawful confinement.」
The NHRC argument for requesting a ruling is based on consideration of the following: 1) the suspect’s intentions in approaching the victim and the circumstances which led to the victim’s boarding of the suspect’s car; 2) the reason why the suspect then did not just drive the victim to the commemoration rally venue; 3) pointing out that the prosecutor has overlooked three aspects in surmising that the intelligence and security police officer would have no reason to want to block the victim’s participation in the event; and 4) revisiting the principle behind prohibiting unlawful confinement.
Looking at unlawful confinement (article 124, Criminal Act), the principles of the law are: 1) the benefit and protection of the law upholds the principle of「freedom of movement, thus confinement is unlawful when leaving a particular confined area becomes impossible or extremely difficult; 2) the「inability」 to leave a confined area is not solely governed by physical restraints or tangible blockades, but also can result from psychological, intangible restraints; 3) further, the principle behind making unlawful「confinement」 a crime is not based on the particular means or method of confinement—thereby not calling for differentiating tangible vs intangible restraints—but rather, defined by whether person’s freedom of movement is restricted; 4) by judicial precedent, the Korean Supreme Court has ruled that infringing freedom of movement does not need to be full-blown in order for something to qualify as confinement.
Illuminating this with an example, a person who is locked in a room is, of course, confined. A person who is placed in a room with a guard or watchdog outside to monitor and prevent exit also qualifies as confinement whether or not the person inside actually tries to exit and has a physical bout with the guard or dog or not. Likewise, being stuck inside the passenger compartment of a continuously moving automobile also qualifies as confinement.
For these reasons, the NHRC has concluded that the decision not to prosecute police officer Hwang can only have resulted from either a misapprehension of the facts of the case or a misunderstanding of the principles underpinning the prohibition on unlawful confinement. Thus, the Commission has requested a ruling in accordance with article 260 of the Criminal Procedure Act. –End.
