Opinion on the Revisions to the Criminal Act and the Code of Criminal Procedure
The National Human Rights Commission of Korea (NHRCK) presented its opinion on the bills of amendment to the Criminal Act and the Code of Criminal Procedure, of which the Ministry of Justice issued an advance notice on December 20, 2010. As the National Human Rights Commission Act stipulates the duty to present its opinions on the legal statutes in the cases that are deemed necessary to promote and protect human rights, the NHRCK expressed that the amendment bills contained clauses introducing legal provisions for the forced apprehension of a witness and punishment of false testimony, which has the potential to violate fundamental rights of individuals.
The bill of amendment to the Code of Criminal Procedure introduces a measure for compulsory appearance on a material witness. The prosecutor can be authorized by the court to summon a person as a witness to appear before the court. The investigator can arrest the material witness, in the event of failure to obey the summons on more than two occasions without a justifiable reason. However, the ambiguity in this provision has potential to be used to justify summoning a suspect as a material witness when there is not enough evidence to issue an arrest or detention warrant. It also did not include the clauses for the protection of the summoned witness, different from a suspect, ensuring the right to remain silent, the right to have the assistance of defense counsel and the right to submit a petition to the competent court to examine the legality of the arrest and detention. The NHRCK assessed that its introduction could potentially violate the principles of the Constitution as well as the International Covenant on Civil and Political Rights (ICCPR).
Under the bill of amendment to the Criminal Act, a witness has a duty to testify and will face punishment for false testimony. However, this provision has the potential for abuse by violating the right not to ‘be compelled to testify against himself in criminal cases (Article 12(2) of the Constitution)’ and allowing the investigative institution to impute its duty of fact-finding to the witness. Its introduction would especially raise concerns over cases linked to the compulsory appearance measure on a material witness.
The proposed revision also introduces a plea bargaining system, in which the prosecutor would request to lessen the sentence for a suspect who provides critical information in fact-finding or place of dwelling of the suspect’s collaborator. The system does not conform to Article 2(7) of the Constitution that ‘in a case where a confession is deemed to have been made against the will of a defendant due to torture, violence, intimidation, unduly prolonged arrest, deceit or in a case where a confession is the only evidence against a defendant in a formal trial, such a confession shall not be admitted as evidence of guilt’.The NHRCK views that credibility of the statement would be highly questionable, considering the fact that a suspect commonly imputes responsibility on a collaborator especially under the enticement of immunity, or exaggerates, or fabricates a statement.
The existing Code provides that the entire process of interrogation of a suspect may be recorded by a video recording system but it does not mention probative value of the record. The revision to the Code clarifies that the video record may be used as evidence in exceptional cases such as for impeachment. However, the judge’s evaluation of evidence may be more influenced by the video records containing visual images and sounds than written documents, thus it is highly probable that the video record may be used as substantive evidence. Moreover, the record is limited in respect that it does not reveal any methods such as a threat and appeasement that were used prior to the recording to influence the suspect to make the statement involuntarily. Thus, the NHRCK assessed that the video recording in the interrogation process should not have probative value as it may violate the suspect’s right to a fair trial.
