Draft to Revise Criminal Law and Procedure

Ministry of Justice is reportedly considering extension of the detention period for the suspects charged with felonies and introduction of the "obstruction of justice" charge, which enables a prosecutor to subpoena or prosecute a material witness who opposes to report or makes false statements. The ministry has come up with those measures in wake of its decision to allow defense lawyers to participate in the investigation of a suspect.

Those measures were announced yesterday by the Justice Ministry as part of a draft intended to revise the current criminal procedure. According to the ministry, it is now consulting legal experts and scholars as well as government officials and Supreme Court Justices on the draft.

Many civil rights groups and their lawyers point out that the extended detention period and forceful subpoenaing are another forms of human rights violation and strongly oppose the draft. Therefore, a severe opposition is expected during its passage through Congress.

The ministry plans to introduce the bill to Congress early next year, once the ongoing consultation ends on December 26. Then, before the introduction, the Justice Department will hold several public hearings on it.

The new bill, if passed in Congress, would allow defense attorneys to participate in the investigation to watch whether or not the due process is violated or whether a suspect is coerced to make statements.

Even under the bill, defense attorneys could not participate in the investigation if 48 hours have not passed since the arrest of a suspect; if a suspect seems likely to temper with the evidence and/or assist his accomplice(s) to escape; or if a suspect is seemingly likely to harm the property and/or the body of the victim(s) and/or material witness(es).

Under any circumstances, however, a defense attorney would not be allowed to assist his/her client in answering questions nor making statement.

In addition, the detention period up to indictment would be considerably increased. Currently, the prosecution can detain a suspected to up 20 days if the suspect is charged with felonies such as organized crime, narcotics, terror and bribery. If the bill should get through Congress, the DA`s office could detain a felony suspect behind bars up to 6 months upon permission of the court.

Moreover, a defendant could remain in prison up to 6 months during his/her appeal to an appellate court or to the Supreme Court, respectively. Now, only a 4-month detention is allowed for a defendant. Furthermore, if a prosecutor determines that a material witness having the information crucial to prosecution fails to report more than once, the prosecutor can forcefully have the custody of the witness for 24 hours upon obtaining a bench warrant from the court.

In addition, if a material witness or an witness makes false statements or submits false evidence to the police or to the prosecution, or if a person hinders other person from taking the witness stand, making statement or submitting evidence, the witness or the person could be charged with obstruction of justice.

The bill would also allow the court to release a person only on the certificate of appearance by a person guaranteeing the suspect would make a timely court appearance, if the suspect is not able to pay for the bail bond. In addition, the court would appoint all the indicted public defendants. Presently, only minors and the poor could have an access to the public defendant. If a person is not found not guilty after serving a long time in prison, the government would compensate him/her not only for the time served but also for the money he/she has spent defending his/her case.

Finally, the appeal to a prosecutor`s decision not to indict would be more widely applied. For now, a citizen could appeal from the prosecutor`s decision under the exceptional circumstances. In the future, however, the appeal could be made in 11 types of charges including forgery and unauthorized publication of the court document or investigation report.

Sang-Rok Lee myzodan@donga.com