2006Mo656 Reappeal against Order Cancelling a Disposition Rejecting a Legal Counsel’s Application to Meet and Communicate with a Physically Restrained Person

by the Supreme Court of Korea

Justices Koh Hyun-chul(Presiding Justice), Yang Seung-tae, Kim Ji-hyung(Justice in charge), Jeon Soo-ahn

Main Issues

1. Whether an investigation authorities's unilateral disposition may unduly limit a legal counsel's right to meet and communicate with a physically restrained person(negative) and the scope of a counsel's right to meet and communicate with a physically restrained person
2. An attorney's obligation of truth and its relation to an accused or a suspect's exercise of her right to refuse to make a statement
3. Whether it is justified to prohibit a legal counsel from meeting and communicating with the physically restrained person only because the counsel in question is involved with the act of committing a crime that a physically restrained suspect or accused is suspected of(negative)

Summary of Decision

1. Article 89 of the Criminal Procedure Act stipulates, "an accused in detention shall meet other people within the legal scope," while Article 209 stipulates that the provision in the above Article 89 shall apply to an arrested or detained suspect, and Article 34 stipulates, "A legal counsel or a person who wishes to be a legal counsel shall meet a physically restrained accused or suspect and give or take documents or objects to or from them." Such provisions of the Criminal Procedure Act shall be deemed to be a recognition of a legal right, as stipulated in the provision of Article 12 Section 4 of the Constitution, "Anybody who gets arrested or detained shall have an immediate right to be assisted by a legal counsel," for a person who gets arrested or detained to have his right to be assisted by a legal counsel be guaranteed as one of the basic human rights, which is realized through a specification of a basic constitutional right of a suspect and through the permission granted to a legal counsel or a person who wishes to be a legal counsel so that he shall freely meet and communicate with a suspect et al. But as there is no separate provision that directly restricts a legal counsel from his right to meet and communicate, such right to meet and communicate held by a legal counsel shall not be restricted through a unilateral disposition of an investigative organization. But as an arrest or a detention under the Criminal Procedure Act is made to prevent a suspect or an accused, who has a significant reason to be suspected to have committed a crime, from running away or destroying evidence and to guarantee his attendance (Article 70, Article 200 Section 2 and Article 201), a legal counsel's right to meet and communicate with a physically restrained accused or suspect shall be exercised within the scope that does not infringe upon the original purpose of the system of physical restraint as above, and an exercise of the right to meet and communicate that goes beyond such limit shall not be permitted as it does not constitute a justifiable exercise of the right to meet and communicate. But as a legal counsel's right to meet and communicate with a physically restrained person is the flip side of the right to be assisted by a legal counsel held by a physically restrained person, as guaranteed as one of the basic rights under the Constitution. So, in recognizing that an exercise of the right to meet and communicate has gone beyond the above limit, one shall be prudent not to infringe upon the essence of the right to be assisted by a legal counsel held by a physically restrained person, as guaranteed as one of the basic rights under the Constitution.
2. A legal counsel who is an attorney has an obligation of truth in accordance with the Attorney-at-Law Act, but as a legal counsel's legal advice to a physically restrained person is his right as well as his duty, it shall not be called a violation of a legal counsel's obligation of truth if the legal counsel simply lets an accused or a suspect know that he has the constitutional right to refuse to make a statement, if he does not aggressively make an accused or a suspect deliver a false statement.
3. Under the Korean legal system where a system of excluding a legal counsel does not exist to extensively restrict the legal counsel's activities only because the counsel in question is involved with the act of committing a crime that a physically restrained suspect or accused is suspected of, it shall not be justified to prohibit the legal counsel from meeting and communicating with the physically restrained person only because the physically restrained person tried to participate in his act of crime. Such legal reasoning shall not change because there are more than one (1) legal counsels for the physically restrained person, while whose exercise of the right to meet and communicate has gone beyond the limit shall be judged on a case-by-case basis.

Reference Provisions

1. Articles 34, 89 and 209 of the Criminal Procedure Act, Article 12 (4) of the Constitution
2. Articles 1 and 24(2) of the Attorney-at-law Act/[3]Article 34 of the Criminal Procedure Act, Article 12 (4) of the Constitution

Article 34 of the Criminal Procedure Act (Interview, Communication and Medical Examination and Treatment with Defendant or Suspect)

The defense counsel or a person who desires to be a defense counsel may have an interview with the defendant or the suspect who is placed under physical restraint, deliver or receive any documents or things and have any doctor examine and treat the defendant or the suspect.

Article 89 of the Criminal Procedure Act (Interview with Detained Defendant)

The defendant who is under detention may, insofar as the laws permit, interview with any other persons, or deliver to or receive from them documents or other things and also receive diagnosis and treatment from a doctor.

Article 209 of the Criminal Procedure Act (Applicable Mutatis Mutandis Provisions)

The provisions of Articles 71, 72, 75, the text of paragraph (1) and (3) of Article 81, Articles 82, 83, 85 through 91, 93, 101 (1), the text of Article 102 (1) (excluding those on cancellation of release on bail) shall apply mutatis mutandis to arrest of suspects by public prosecutors or judicial police officers. <Amended by Act No. 2450, Jan. 25, 1973>

Article 12 of the Constitution

4) Any person who is arrested or detained shall have the right to prompt assistance of counsel. When a criminal defendant is unable to secure counsel by his own efforts, the State shall assign counsel for the defendant as prescribed by Act.

Article 1 of the Attorney-at-law Act (Mission of Attorney-at-Law)

(1) The mission of an attorney-at-law shall be to defend fundamental human rights and realize the social justice.

(2) Every attorney-at-law shall faithfully perform his duties and work to maintain the social order and to improve the legal system in accordance with his mission.

Article 24 of the Attorney-at-law Act (Duty to Maintain Dignity, etc.)

(1) Any attorney-at-law shall be prohibited from performing any act that damages his dignity.

(2) Any attorney-at-law shall, in performing his duties, be prohibited from covering up the truth or make false statements.

• Re-appellant: Prosecutor Song Chan-yub

• Suspect: Chang Min-ho(Chang Michael)

• Judgment of the court below: Seoul Central District Court Decision 2006Bo3 delivered on Nov. 29, 2006

Disposition

The reappeal shall be dismissed.

Reasoning

This is to judge the Reasons for Appeal.

1. Article 89 of the Criminal Procedure Act stipulates, "An accused in detention shall meet other people within the legal scope," while Article 209 stipulates that the provision in the above Article 89 shall apply to an arrested or detained suspect, and Article 34 stipulates, "A legal counsel or a person who wishes to be a legal counsel shall meet a physically restrained accused or suspect and give or take documents or objects to or from them." Such provisions of the Criminal Procedure Act shall be deemed to be a recognition of a legal right, as stipulated in the provision of Article 12 Section 4 of the Constitution, "Anybody who gets arrested or detained shall have an immediate right to be assisted by a legal counsel," for a person who gets arrested or detained to have his right to be assisted by a legal counsel be guaranteed as one of the basic human rights, which is realized through a specification of a basic constitutional right of a suspect and through the permission granted to a legal counsel or a person who wishes to be a legal counsel so that he shall freely meet and communicate with a suspect et al. But as there is no separate provision that directly restricts a legal counsel from his right to meet and communicate, such right to meet and communicate held by a legal counsel shall not be restricted through a unilateral disposition of an investigative organization.

But as an arrest or a detention under the Criminal Procedure Act is made to prevent a suspect or an accused, who has a significant reason to be suspected to have committed a crime, from running away or destroying evidence and to guarantee his attendance (Article 70, Article 200 Section 2 and Article 201), a legal counsel's right to meet and communicate with a physically restrained accused or suspect shall be exercised within the scope that does not infringe upon the original purpose of the system of physical restraint as above, and an exercise of the right to meet and communicate that goes beyond such limit shall not be permitted as it does not constitute a justifiable exercise of the right to meet and communicate.

But as a legal counsel’s right to meet and communicate with a physically restrained person is the flip side of the right to be assisted by a legal counsel held by a physically restrained person, as guaranteed as one of the basic rights under the Constitution. So, in recognizing that an exercise of the right to meet and communicate has gone beyond the above limit, one shall be prudent not to infringe upon the essence of the right to be assisted by a legal counsel held by a physically restrained person, as guaranteed as one of the basic rights under the Constitution.

Meanwhile, a legal counsel who is an attorney has an obligation of truth in accordance with the Attorney-at-Law Act, but as a legal counsel's legal advice to a physically restrained person is his right as well as his duty, it shall not be called a violation of a legal counsel's obligation of truth if the legal counsel simply lets an accused or a suspect know that he has the constitutional right to refuse to make a statement, if he does not aggressively make an accused or a suspect deliver a false statement.

Moreover, under the Korean legal system where a system of excluding a legal counsel does not exist to extensively restrict the legal counsel's activities only because the counsel in question is involved with the act of committing a crime that a physically restrained suspect or accused is suspected of, it shall not be justified to prohibit the legal counsel from meeting and communicating with the physically restrained person only because the physically restrained person tried to participate in his act of crime.

Such legal reasoning shall not change because there are more than one (1) legal counsels for the physically restrained person, while whose exercise of the right to meet and communicate has gone beyond the limit shall be judged on a case-by-case basis.

2. According to such legal reasoning and the record, the court below recognized the facts, and judged that the prosecutor's disposition of prohibition of meeting in this case was illegal, because the semi appellant needs to meet with the suspect in this case even though other joint legal counsels have been appointed, because it shall not be confirmed that the semi appellant attempted to meet and communicate in the name of the exercise of the right to meet and communicate even though the legal counsels exercised their rights to meet and communicate numerously which resulted in causing difficulties in the investigation conducted by the investigative organization, because it shall not be deemed illegal that the semi appellant legally advised the suspects in the case to exercise their rights to refuse to make statements and because the exercise of the right to meet and communicate by the semi appellant shall not be confirmed to have been conducted only for the semi appellant himself, which is acceptable to be justifiable, which is not in violation of misunderstanding legal reasoning as argued in the Reasons for Appeal.

3. Therefore, the appeal shall be dismissed, and this decision is delivered with the assent of all participating Supreme Court Justices.

Source

• Supreme Court Decision 2006Mo656 Delivered on January 31, 2007, Supreme Court Library of Korea