To safeguard political and civil rights and eradicate extralegal police practices, NHRC requests further examination
Seoul District Public Prosecutor finds Prosecutor Hong and all investigative police not guilty and drops charges
The National Human Rights Commission (NRHC) has decided to ask for further investigation of wrongful use of authority regarding the case the Seoul-DPP ruled not-guilty on 23 June 2003. The Seoul-DPP verdict finds public prosecution malfeasance defendants innocent, and the Public Prosecutor will drop the charges against former Seoul District Public Prosecutor Hong and crime investigation unit officers implicated in the October 2002 death of a suspect undergoing questioning. The NHRC will ask the Seoul High Public Prosecutors’ Office to undertake further investigation of the case.
The NHRC appeal stems from a 24 February 2003 request made by the NHRC to the Seoul District Public Prosecution (Seoul-DPP) to launch an investigation into the possibility of wrongful use of authority in relation to the 26 October 2002 “death and cruel treatment” incident in which a suspect died in the custody of the Seoul-DPP. The case involves former Seoul Public Prosecutor Hong and the related crime investigation officers’ arbitrary use of the “emergency arrest” procedure—circumventing the safeguards of constitutional guarantees built into ordinary arrest proceedings—in a case that did not call for emergency arrest. At the time of arrest, the now-deceased Choi and the three persons suspected of being his accomplices were not advised of the nature of the charges against them and were denied the right of legal counsel. After the late Choi and his alleged accomplices were taken to the Seoul-DPP special investigation department and subject to different forms of violence and cruelty at the hands of the crime investigation unit officers, the officers coerced, under physical duress, “confessions” from them. In the process, basic civil and political rights were, in effect, violated: the late Choi and three other persons were unable to exercise their right to legal counsel, the right to submit a writ petitioning for assessment of the propriety of arrest and prosecution, and the right to avoid self-incrimination. When these revelations came to light, the NHRC instituted charges of wrongful use of authority, as well as illegal arrest and confinement, against former Seoul Public Prosecutor Hong and 9 other officers of the law involved in the case. Subsequently, the Seoul-DPP launched an investigation into chief officer Park and three other officers among the ten, which concluded on June 23rd with the Seoul-DPP announcing its disposition to not institute proceedings against the four investigated.
The Seoul-DPP investigation found that the defendants (the four crime investigation unit officers) had fulfilled the requirements for using the emergency arrest process, that the defendants had no criminal intent, and that although the emergency arrest did violate criminal procedure laws, illegal arrest and confinement did not constitute “wrongful use of authority” in itself; thus, the Seoul-DPP dropped the charges. The Seoul-DPP also ruled that the victims in this case—the late Choi and three other persons—were not denied, in any concrete or factual way, the free exercise of their rights. Additionally, the Seoul-DPP pointed out that the defendants were already under indictment for excessive punishment (cruel and unusual punishment) in a special criminal case. Because there was insufficient reason to pursue an wrongful use of authority case independently of the indictment for violent and cruel treatment of suspects, the Seoul-DPP decided to dropped the charges of abuse of authority and obstruction of the exercise of (the victims’) rights.
But when assessing the case using the criteria for due process and prior issuance of an arrest warrant as preconditions, the Seoul-DPP ruling cannot be seen as anything but an affirmation of the existing extra-legal practices of crime investigation unit officers in their arbitrary use of the emergency arrest procedures. At the time of arrest, the public prosecutor had no clear evidence proving the guilt of the victims for the crimes alleged against them, and even before the “emergency” arrest, the defendants had prior knowledge of the whereabouts of the victims. Since an emergency arrest is only justified when there is substantial evidence pointing to the arrestee’s guilt and the opportunity to arrest is unforeseen and pressing, the victims’ case did not fulfill the preconditions legitimating use of an emergency arrest.
The Seoul-DPP argues that according to procedural criteria, due process was not violated because the victims—after their arrest—gave thumbprint signatures to written statements confirming that they had been advised of the nature of the allegations against them at the time of arrest. However, the defendants had falsified the confirmation forms, and did not inform the victims of the allegations against them, but rather took them into custody on “voluntary consent.” The Seoul-DPP came down with a not-guilty verdict despite acknowledging these facts of the case to be true.
Moreover, after being taken into custody, none of the arrested victims were allowed to exercise their rights, and were compelled under duress to incriminate themselves of the crime, murder. When one takes into consideration that the confessions were extracted through cruel and unusual methods, the Seoul-DPP ruling that the victims “were not denied, in any concrete or factual way, the free exercise of their rights,” is hard to accept.
The root causes behind this “Seoul-DPP suspect (Choi) death and torture incident” as well the roots to torture and cruel punishment, is the ability to facilely carry out “emergency” arrests without arrest warrants and the failure to inform the arrestees of their rights and otherwise safeguard suspects’ rights.
In contrast, in an arrest based on an arrest warrant, there would be checks and balances against the arbitrary and unsupervised power on the part of investigators; a judge would have had to assess the necessity of issuing a warrant based on evidence presented by investigative officers, thereby necessitating crime investigation unit officers’ gathering of objective evidence in a logical and impartial investigation of the charges. If criminal suspects were only arrested after adequate investigation of evidence, crime investigation unit officers would not be so pressured or tempted to resort to cruel and violent means to extract a “confession” as the sole evidence on which their case rests. Additionally, if criminal suspects were guaranteed their rights to legal counsel, even if cruel and unusual means were used in questioning, it would have come to light immediately and thus, crime investigation unit officers would not be able to indiscriminately maltreat and punish suspects in the course of questioning.
To avoid the inconvenience of filing for an arrest warrant, illegal arrests through methods such as “voluntary consent” have become ingrained. In order to eradicate such extra-legal practices, the arrest warrant system was introduced in December 1995 and the Criminal Procedure Act amended such that “emergency arrests” and arrests on circumstantial evidence at the scene of the crime would only be permissible in exceptional circumstances. Despite these efforts for reform, the use of emergency arrests is widely abused, thereby denying suspects of due process. Statistics indicate that between 1998 and 2000, less than 10% of all arrests throughout the nation were actually carried out with an arrest warrant, and the proportion of such legal arrests decreases each year. The facts show that contrary to the intent of the Criminal Procedure Act, the emergency arrest exception has instead been abused as standard practice. The underlying reason behind the NHRC’s pressing for a reinvestigation of illegal arrest and confinement and wrongful use of authority against the Seoul-DPP on this arrest and death case is because the eradication of extra-legal crime investigation practices is essential to the establishment of principles safeguarding human rights during investigation.
The Seoul-DPP decision to ignore the intent behind the NHRC’s pressing of charges and the disposition to drop the case while finding the defendants innocent is tantamount to granting immunity to crime investigation unit officers who violate the law in the performance of duty, and to abandoning reforms that secure the fair and just execution of the law.
