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The Prevention and Control of the Torture of Suspects in Investigation Procedures

  • DONG-A LAW REVIEW
  • 2009, (43), pp.577-597
  • Publisher : The Institute for Legal Studies Dong-A University
  • Research Area : Social Science > Law

HOH ILTAE 1

1동아대학교

Candidate

ABSTRACT

It has been over 20 years now since Park, Jong-Chul, who was recalled due to the quality of his reference, died from water torture in 1987. We could say that the police’s or the prosecution’s harsh treatment of suspects in the investigation procedures it conducts is on the decrease. It is doubtful, though, that such cruel act has been totally uprooted. As another incident in which the suspect died due to the prosecution’s torture of him in the investigation procedure that was carried out occurred in October 2002, in 2003, the National Human Rights Commission (NHRC) took cognizance of the police’s torture of suspects and recommended the prosecution of policemen who are found guilty of such cruel act, as reflected in Article 125 of the Korean Criminal Law. The gravity of torture of a suspect lies in the fact that it is not an eventuality but a structural problem in the prosecution. The Constitution of the Republic of Korea has guaranteed the human dignity and the fundamental human rights of individuals. The said constitution stipulates the principles of the presumption of innocence, lawful procedures, the prohibition of torture and the compulsion of a suspect to testify against himself, and the denial of evidences obtained through torture, among others. The constitution enactment authority’s view of the human rights it must safeguard has been reflected in these clauses of the constitution, which had been elevated to the principles on which the Criminal Procedure Act is based. Article 125 of the Korean Criminal Law states: “A person who, in performing or assisting in activities concerning the judgment, prosecution, and arrest of an individual, and other functions involving human restraint, commits an act of violence or cruelty against a criminal suspect or against another person while carrying out his duties, shall be punished by imprisonment for not more than five (5) years and by the suspension of his rights for not more than ten (10) years.” This provision punishes the police or the prosecution for any form of harsh treatment of a suspect it may carry out in the course of an investigation procedure it conducts. In addition, Article 124, clause 1 stipulates: “If a person who performs or assists in activities concerning the judgment, prosecution, and arrest of an individual, and other functions involving human restraint, arrests or imprisons another in a way that involves the abuse of his official authority, he shall be punished by imprisonment for not more than seven (7) years and by suspension of his rights for not more than ten (10) years.” This provision punishes the police or the prosecution for any unlawful arrest or confinement it may commit. To uproot the torture of suspects in investigation procedures, the UN General Assembly adopted “Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment” on December 10, 1984. On January 9, 1995, Korea signed such document, which took effect on February 8. Korea, however, has not yet adopted the “Optional Protocol to the Convention against Torture.” In Korea’s amended Criminal Procedure Act (2007), various measures to prevent and control the torture of suspects in investigation procedures have been stipulated. The cases involving the torture of suspects in investigation procedures are expected to decrease since the new Criminal Procedure Act has been in effect since January 1, 2008. It is not realistic, however, to expect that the harsh treatment of suspects in investigation procedures will be completely overcome simply by such amendment of the Criminal Procedure Act. To completely prevent the commission of cruel acts against suspects in investigation procedures, efforts should be made to ensure that the prosecution and the police are always conscious of human rights. Moreover, effective related legislation based on the Constitution is needed, in addition to the international convention. The UN Convention against Torture Commission requested Korea to define its concept of torture clearly, to expand the scope of the punishments it imposes for torture, and to complement Article 125 of its highest criminal law, among others. Korea unfortunately suffers infamy for being one of the countries in modern history that commit considerable judicial murder. One of the reasons for the aforementioned UN commission’s request is that the article of Korea’s highest criminal law that punishes the prosecution or the police for torturing suspects simply requires a warrant of arrest before a person can be arrested and insufficiently punishes prosecutors who treat suspects unjustly by distorting the facts or the law in an investigation procedure. Further, the article of the said law that punishes unlawful arrest or confinement does not apply at all times. There is also no article that punishes a judge for coming up with a decision regarding whether to issue a warrant for a suspect’s arrest by distorting the facts or the law. The reform of the criminal justice system in Korea began on June 11, 2007. It is believed that this is a good opportunity to complement the articles mentioned above. To punish a prosecutor, policeman, or judge for deliberately distorting the facts or the law to effect the arrest or conviction of a suspect, as in China and Germany, it is hoped that Korea’s highest criminal law will be made to include a corresponding article. This will contribute much to preventing and controlling the harsh treatment of suspects in investigation procedures in the country.

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