SOUTH KOREA: Prosecutor deprives defendants of opportunity to fair trial

A Statement by the Asian Human Rights Commission

It is well known that the Republic of Korea has achieved rapid economic growth within a relatively short period of time. What is less well known however, is the corruption and exploitation involved in the economic development led by the then government. Not only was the media controlled by the government at that time, ensuring no adverse publicity, but there was also no dialogue concerning communities and individuals forcibly evicted from their property to make way for large commercial developers. In fact, popular understanding is that exploitation is inevitable in areas marked for development. In this way, violation of the rights of individuals have been ignored and even accepted under the false guise of public good and rights of the majority.

In the morning of January 20, 2009 a group of persons struggling against this practice occupied the rooftop of a building and constructed a temporary watchtower, in the area of Yongsan 4-ga, Seoul. The area is to be redeveloped and many buildings to be demolished, including the homes of several of the protesters. They thus wanted temporary shelter and proper compensation. Security guards hired by the demolition company attempted to forcibly drag them out of the building. Contrary to regulations on ‘demonstration control’, the police quickly deployed a special task force to arrest the protesters. In the process, the watchtower caught fire, resulting in the deaths of five men and one police officer.

The prosecutor’s office vowed to thoroughly investigate the case and punish those involved. As the first step of the investigation, police arrested and interrogated 27 protesters who were on site at the time of the fire. Based on the police’s report, the investigative division at the Seoul Central District Prosecutors’ Office then indicted 24 of the arrested protesters. They did so without verifying important facts such as the place and cause of ignition, as well as why the autopsies of the dead men were conducted in such a hurry without the consent or presence of family members.

After the indictment, the defence lawyer applied for civil participation (South Korean system of jury participation with final decision taken by judge) in the trial, but it was denied. When submitting the investigation reports of the case to the court, the prosecution omitted one third of the documents, amounting to 3000 pages. When the defence lawyer brought this to the court’s attention, the court ordered the prosecutor to allow the defence access to all investigation records on April 14, in accordance with article 266 (4) of the Criminal Procedure Act.

On April 16, the prosecutor notified the defence lawyer of his refusal to allow him such access. In response, the defence lawyer asked the court to issue a warrant to seize the reports—provided for under article 106 of the Criminal Procedure Act—which the court refused, saying only the prosecutor can ask for a warrant from the court. The court also took no action against the prosecutor’s failure to respect its orders. Finally, the defence lawyer filed an application to change the judge, which was dismissed. This is currently being appealed.

That part of the investigation report not submitted by the prosecutor contains affidavits of commanding police officers and those who took part in the operation, allegedly favouring the defendants. This is believed to be the reason for the prosecution’s refusal to share it with the defence. This is in violation of the prosecutor’s duty to provide all evidence, irrespective of whether it is to the advantage or disadvantage of the suspect.

The prosecution mechanism has two primary functions—maintaining the rule of law and upholding fair trial. If the prosecution itself ignores court orders, it is not only committing contempt of court, but it also affects the entire justice process and weakens the rule of law system. Equality before the law and equal treatment by the law, root principles of international law, are thus being denied by the prosecution. Fair trial is not only a basic human right recognized under international law, it is also an essential component of delivering justice to victims. Prohibiting the defence lawyer from access to the complete investigation report therefore seriously undermines the principle of fair trial as well as obstructing the defendants’ right to justice.

The corpses of those killed in the fire are still in hospital; they have not been buried in the past five months because of the family members’ determination for justice. Under these circumstances, the Asian Human Rights Commission urges the prosecutor’s office to comply with the court order and allow the defence lawyer access to the complete investigation report, thereby ensuring that the defendants obtain a fair trial. Failure to do so will constitute contempt of court and weaken the entire judicial process.

About AHRC: The Asian Human Rights Commission is a regional non-governmental organisation monitoring and lobbying human rights issues in Asia. The Hong Kong, Special Administrative Region of China-based group was founded in 1984.