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Rights of a Criminal Suspect during the Korean Investigation Procedures – Self-Advocacy Note Presented by the Seoul Bar Association

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The Seoul Bar Association has recently issued a Self-Advocacy Note for the use of any criminal suspect under the Korean investigative procedures.  Before this being issued, the National Human Rights Commissions had recommended the police and the prosecutors to guarantee the criminal suspects’ right to take notes.  Although this may sound weird to some from other countries, the Korean police and prosecutors have been prohibiting the suspects to take their own notes during the interrogation.

This Self-Advocy note is prepared in order to help any suspect inducing a foreign suspect to fully understand and examine his/her statutory rights to self-advocacy before and during the investigative procedures. You can download it at the homepage of the Seoul Bar association or by clicking here.

This also contains a good explanation of the overall investigative procedures under Korean law.  Below is quoted from the English version of Self-Advocacy Note which explains about the Criminal Investigative Procedures in Korea.  It should be greatly appreciated that the Seoul Bar Association is trying to provide useful legal information in English language.

1. Investigation Procedure

investigation

Not all who are investigated at an investigation agency will have court trials. As the result of investigation, if the prosecution recognizes that the individual is innocent, a non-indictment is decided, and if it is determined that there is a crime, an indictment is decided and there is a criminal trial. Below is a concise introduction of legal rights given to you so that you will not be unfairly investigated.

2. Your right to seek assistance from an attorney-at-law

You might be in an emotionally/mentally unstable condition. If you seek assistance from an attorney-at-law in this situation, you will not only get legal help, but you will be emotionally/mentally stable, avoiding hasty or wrong statements. If possible, get the help of an attorney-at-law.

3. The right to remain silent

You can either refuse to answer all or some of the questions from the investigator. If you don’t make a statement, there is no disadvantage. If you waive the right to remain silent and make a statement, and part of the statement contains a confession of your criminal action, the statement becomes evidence of guilt.

If you don’t have an attorney-at-law, refusing a statement can be a way to protect yourself.

4. You should check precisely all contents of the report.

You should check and thoroughly read the report as completed by the investigator. Because the report is written by the investigator to summarize the contents of the investigation, it can be different from the contents you had stated or your intended ideas. You can ask the investigator to correct any parts of the report if it is different, and if the investigator does not accept your request of correction, you can refuse to provide your signature and seal.

5. Self-protection in the investigative procedure

(1) Investigator’s crude and abusive language

When an investigator performs his/her duties, he/she should not use any abusive, coercive or humiliating words, or any action causing feeling of insult or shame. If the investigator uses crude words or insults you, you may immediately request to remedy it. And if he/she continues that type of speech, you can request the Inspector General’s office of the police station to change the investigator.

(2) Investigation at midnight

What to do if they insist on continuing the investigation past 12:00am?

As a general rule, late-night investigations from midnight until 6 am are prohibited, unless the.suspect agrees to the midnight investigation.

6. Prohibition of discrimination and providing conveniences for disabled criminal suspects

The investigative agency should check if a criminal suspect has any disability in communication or difficulties of expression, and if any of the disability is identified, it should be made known that the suspect can receive assistance and the specific assistance should be provided for him/her.

(1) Sitting with a reliable person, etc.

When a disabled criminal suspect is interrogated, the individual can request the investigative agency to allow him/her to sit with a person with whom he/she has a reliable relationship (Article 17, Paragraph 2 of the Enforcement Decree of the Act on the Prohibition of Discrimination against Persons with Disabilities and Remedy Against Infringement of their Rights, etc., and Item 5 of Article 244, Criminal Procedure Act).

(2) Observation of a family member, etc.

If an observation does not obstruct the investigation and it is not against the opinion of the criminal suspect, a person including a family member who can protect the suspect is allowed to observe the investigation process if the suspect deems that he is not able to exercise his/her rights properly due to his/her disability or other reasons (Article 37 of the General Standard on the Investigation of Human Rights Protection).

(3) Providing interpretation service and legal assistance information

If a hearing or speech-impaired person, or a person with communication disability is investigated, the investigation agency shall provide a sign language or text interpretation or a person who can assist with communication, and the individual with the impairment shall be informed that he/she can get legal assistance from the Korea Legal Aid Corporation (Article 55 of the General Standard on the Investigation of Human Rights Protection).

7. Providing conveniences to a foreigner suspect

(1) Right to receive interpretation or translation service

A foreigner who cannot understand the Korean language has the right to request for interpretation service. Particularly, if an investigation is conducted in Korean, the suspect can ask to receive it in a language that he/she understands, and the suspect can complete his/her statement in a language that he/she uses in case an interpreter is not present. (Article 180 of the Criminal Procedure Act, Article 244 of Criminal Investigation Rule of the National Police Agency, etc.) Furthermore, a translated document should be attached as much as possible when a warrant of arrest or a certificate of seizure for a seized item is issued to a foreigner. (Article 245 of Criminal Investigation Rule)

(2) Requiring to sit with a reliable person

When a criminal suspect is interrogated by a prosecutor or a police officer, the suspect can be investigated with a reliable person seated next to him if that action is needed for a smooth communication or for the suspect’s mental stability regarding his/her nationality. (Item 2 of Article 244, Criminal Procedure Act)

(3) Right to contact a consular officer

According to the ‘Vienna Convention on Consular Relations’, when a foreign national is arrested or detained, the investigative body should notify the foreigner that he/she has the right to contact or communicate with his/her consulate, and consular officers shall have the right to visit or communicate with a national of the sending state who is in prison, custody or detention. If the right to contact with his/her consulate is not notified to the suspect, the damage caused by such action should be compensated enough by the receiving state.

If you have any question regarding this article or you are in a similar case/situation , please visit our Legal Consultation center or send your inquiry email by clicking here.  Our Korean qualified lawyer will answer your inquiry.

© 2018.  All rights reserved.

Author: Korean Lawyer

Korean Licensed Lawyer 韓国の弁護士

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