The NHRC Criticized the Ministry of Justice over the Amendment Bill to the Criminal Code and the Law on Criminal Procedures (01-03-2003)
The National Human Rights Commission replied to the Ministry of Justice which had requested to inquire the NHRC, on 17 December 2202, to review the Amendment Bill to the Criminal Code and the Law on Criminal Procedures (the Amendment Bill). In the reply, the NHRC urged the Ministry of Justice to guarantee suspect their right to a lawyer who is fully involved at all times, rather than one who is only physically present during the interrogation. In addition, the NHRC objected to the amedment that would allow officials to keep a suspect in custody for an extended period. Next, the NHRC objected to the amendment that would allow officials to use force in order to subpoena a witness. Finally, the NHRC objected to the enactment of new offense : the obstruction of justice by false statements committed by a suspect.
Even though the purpose is to protect a suspect"s human rights, particularly after a murder suspect had died in custody as a result of being beaten by prosecution investigators last October, the NHRC concerned that officials might abuse the Bill in order to achieve the desired results without regard for the suspects human rights.
Paragraph 1 of Article 20 under the National Human Rights Commission Act provides: " that if a head of a related state administrative organ intends to enact or amend any statute which includes contents likely to affect the protection and promotion of human rights, he/she shall notify the Commission in advance."
According to paragraph 2 of Article 253 of the Amendment Bill which pertains to the Law on Criminal Procedure, a suspect is guaranteed the right to have a lawyer present during an interrogation. However, the Admendment Billl also qualifies the right, stating that the said awyer would not be allowed to intervene in the interrogation, for example, by answering questions on behalf of the suspect or by obstructing the process of questioning. Regarding this, the NHRC urged the Ministry of Justice to allow lawyers to participate in the interrogation both practically and actively, because the "simple presence of a lawyer" is not enough to protect human rights.
Therefore, the Commission insisted that the Ministry of Justice should admit, by law, any suspect to consult with a lawyer regard his/her exercising the the Miranda rights, and to reply to questioning only after the said suspect has consulted with a lawyer.
In addition, the NHRC stated that the Amendment Bill, stipulated that "lawyers are not allowed to be present at an interrogation that occurs within the first 48 hours after the arrest, but they are allowed to be present at any time after that" would undermine the essential purpose of the [Lawyer-Presence System].
Moreover, the NHRC warned the Ministry of Justice that this Amendment is against paragraph 4 of Article 12 of the Constitution, which stipulated that everyone has right to consult with a lawyer, immediately after an arrest, because almost all investigations usually are finished within 48 hours of arrest.
The Ministry of Justice has argued that lawyers participation should be restricted because suspects might destroy evidences, and victims and witnesses might be hurt. However, the Commission pointed out that the conditions for lawyers to be restricted are excessively broad and ambiguous. Therefore, lawyers should not be restricted unless the suspect may divulge a state secret, commit slander, or the lawyer is causing an unreasonable delay in the investigation.
Regarding the way to choose group lawyers, the NHRC suggested the opinion that a criminal suspect should have the right to choose a representative lawyer, Otherwise, the investigations might unilaterally choose only those lawyers preferred by that institution.
Furthermore, the NHRC claimed that only those documents which had been written by a policeman and had been signed by a lawyer should be admitted as evidence in the court. If the Ministry of Justice were to adopt this policy, then the Ministry would not need to repeat investigations, suspects would have better protection for human rights, and lawyers would be used more practically and effectively.
The Ministry of Justice stated the intent to extend the custody of criminal suspects in the Amendment Bill to Law on Criminal Procedures (paragraph 2 of Article 205, Article 92). Regarding this, the NHRC judged that this extension of the custody is against the right to be on the speedy trial (paragraph 3 of Article 27) and the right to a trial without unfair delay provided in the International Covenant on Civil and Political Rights (CCPR).
In the Amendment Bill, the Ministry of Justice also stated the intent to permit officers to use force in order to subpoena witnesses (paragraph 2 of Article 221). However, the NHRC criticized this amendment, arguing that the forcible subpoena of witnesses is an atrocious violation of human rights, because witness should appear in a court by their own free will ; they should not be coerced to appear by force.
The Ministry of Justice intends to enact the new offense : the so-called " obstruction of justice offense by false statements." However, the NHRC objected that even though the presence of lawyers would be introduced, it could not change equal treatment under the Supreme Court which the obstruction of justice offense by a deceptive scheme [which includes the false statement], should not be admitted.
In addition, the NHRC recommended to the Minister of Justice to introduce the Miranda Rule and improve the review of and the laws regarding arrest, and introduce a review as a precondition for the legality of detention.
