A 60-year old man filed a complaint with the NHRCK on June 2012, saying that the police stopped his lawyer from offering advice to him during his interrogation at a police station.
The police admitted that they stopped the counsel from giving advice to the defendant, but they claim it was only because the counsel attempted to elicit specific responses from the defendant and there was nothing unreasonable about the interrogation to justify the counsel’s intervention. Moreover, the police claim that their action was legitimate since it was in accordance with Paragraph 2, Article 243 of the Criminal Procedure Act and Article 59 of the Rules on Criminal Investigation
Paragraph 4, Article 12 of the Constitution of Korea stipulates that any person who is arrested or detained shall have the right to prompt assistance of counsel. The Constitutional Court of Korea has ruled that counsel has the constitutional right to offer assistance to defendants regardless of he or she is arrested or not.
The NHRCK’s investigation found that the two police officers allowed assistance of the lawyer during the 7-hour investigation except for four times.
Based on its investigation which proved that the police officers’ did stop the lawyer’s attempt to help the defendant in strong words such as “The lawyer can attend the investigation, but cannot help the defendant,” “We will kick you out,” “We warn you.” Etc., the NHRCK concluded that the defendant’s right to legal assistance was violated because such words discouraged the lawyer from defending his client.
The NHRCK believes that the police can limit defendants’ right to legal assistance only when the interrogation of suspects is seriously undermined by such act as disclosures of confidential information. In this context, the police in question violated the basic right set forth in Paragraph 4, Article 12 of the Constitution of Korea
Also, the NHRCK concluded that Article 59 of the Rules on criminal investigation, which the Police laid out as a ground for their action, was not mandated by its higher law – the Criminal Procedure Act, violating the rule of statutory reservation.
Therefore, the NHRCK recommended that the Chief of the National Police Agency revise the Rules on Criminal Investigation to guarantee the right to legal assistance, and take measures to improve the practice that currently hinders assistance of counsel.
