About 36 years ago two brothers were illegally arrested and tortured to confess to spying by the investigating authorities. Due to this false confession, they were convicted and imprisoned for 10 years. This case was recently reviewed by a court that found them not guilty in February last year. Based on this decision, their relatives filed a civil case and the Seoul Central Court delivered a judgement on August 1, 2011 that the government should pay compensation for the miscarriage of justice. However, this was only one of such cases fabricated by intelligence agencies which took place in those days, thereby causing the military regime to be feared by the public.
The common problem of such fabricated cases was the ignorance of due process in criminal procedure and the routine practice of torture by investigating authorities such as the prosecutors, intelligence agents and police in the context of South Korea. In addition, the most serious matter with regard to the case of espionage was the mindset of such authorities who carried out the arrest knowing that they had a limited time in which they could hold the suspect it then became necessary to obtain a confession as quickly as possible, hence the use of torture. As a result, the authorities used torture or ill treatment during interrogation and access to lawyers was often denied by those officials. The statement of confession due to torture in the process of interrogation was accepted at the court without being questioned. The social impact of such cases was that the public were tolerant to the ill treatment of the accused if the matter was related to the ‘national security’.
Thus, people took it for granted to sacrifice rights of individual without questioning the violations of due process by the investigating authorities. The court did not intervene in this process despite of the fact that lawyers claimed their denial of access to the accused before the trial was held.
After the turnover of military regime, through several amendments of criminal procedure in Korea, the rights of accused are deemed to have been strengthened and the justice system seemed to deliver justice. However, it appears that the protection of rights is applied only to limited extent.
According to the information received, the National Intelligence Service (NIS) arrested and detained five persons and is currently investigating over a dozen other under the National Security Act. After their arrest on July 4, 2011 the court held an investigation to determine a warrant’s validity on July 7. In an ordinary case, the prosecutor submits the application for detention warrant which is written the crimes the accused might have committed and needs for his detention to the court. However, in this case, the prosecutor applied for the court not to allow the lawyers to copy of the warrant in which the court accepted. Therefore, the lawyers were denied of providing legal advice to the accused. When being challenged, the court transmitted the warrant to the lawyers and held the investigation again on following day.
From the same information learned, interrogation authorities forced or threatened the accused to confess in the process of interrogation. For instance, in the case of Mr. Lee, who was detained on July 19, the officials used filthy words and defamed him during the interrogation process. They also ordered pizza and let him smell it while he had been on a hunger strike for the last five days. In case of Mr. Im, who was arrested on the same day, the authorities used humiliated words and kept him handcuffed during the interrogation while he remained silent. The authorities reportedly used threats and intimidation in order to force them to confess.
The presumption of innocence is one of basic principles in Criminal Procedure Act in the South Korea. However, according to the information, it seems that it is no longer implemented due to the malpractice of the interrogative authorities. It becomes worse when the media wrongly publishes this kind of case since it becomes a fact not based on the evidence supporting the prosecutor’s activity but what the media and the prosecutors want to believe or make up such cases.
During interrogation, the officials also threatened them by referring to their family members and refused relatives to meet the accused based on the reason that the accused enjoyed the right of silence. Much apart from the paper both in the Constitution and Criminal Procedure Act, what it has shown as far as this case concerned, is that the interrogative officials have discretion to decide whether the accused are entitled to enjoy such rights. The statement of confession obtained under the duress should not be accepted as evidence before the court.
Despite the fact that several amendments to the related Acts have been made, the practice of interrogative authorities is understood not to have been changed from its past but intellectually developed not to have their practice to be revealed. That is the reason why there has always possibility for the accused to be tortured or ill treated during interrogation. Unless the mindset or malpractice of those investigative authorities is controlled by due process, South Korea is no longer an exception from its neighbouring countries in Asia where torture or ill treatment is rampant. The question is not how to get confession from the accused but how to improve the ability of interrogative officials to obtain enough evidence in order to prove the crimes the accused might have committed before the independent and competent court.
Therefore, the Asian Human Rights Commission (AHRC) urges the government of the South Korea in particular those investigating authorities attached to intelligence agencies, prosecutor’s office and the police to ensure that they do not use torture or ill treatment not interpreted in domestic laws but defined in accordance with the international human rights norms and standards during interrogation. The rights of accused to access to lawyer should be guaranteed. It is important to note that it is the court to decide the commission of crime not the interrogation authorities by themselves.
It takes a long time to build up and put into practice a good justice delivery system in a country but it can collapse very quickly if no action to review malpractices is taken regardless of whether it is big or small.
