Why is it hard to get a detention warrant?
As if the Shin Jeong-ah scandal hasn’t already humiliated enough people, prosecutors in the case became the latest to suffer embarrassment last month when the Seoul Western District Court turned down their request for a detention warrant for the accused academic forger.A detention warrant is a court-granted permission that allows prosecutors or police to keep a suspect in custody for questioning.
A judge at a district court issues a warrant based on petitions from prosecutors.
The warrant includes the suspect’s name, address and charges as well as where the suspect will be detained.
Kim Jeong-joong, a judge at the Seoul Western District Court, said that because prosecutors had secured enough evidence against Shin and her charges were so widely publicized, there was little risk that she would flee the country.
Criminal litigation law stipulates that someone accused of a crime can be detained to prevent flight or destruction of evidence. A suspect can also be detained when she or he does not have a verifiable residence.
Prosecutors submitted a second application about a month later on Oct. 10 with new charges of embezzlement added to Shin’s original charge of academic forgery.
Prosecutors also sought detention for former Blue House official Byeon Yang-kyoon for the first time, with charges of abusing his power to assist Shin’s rise in her career and pressuring a government ministry to provide funding to two Buddhist temples.
One temple was linked to Dongguk University, where Shin had been a professor, and the other to Byeon himself.
This time, the court approved the request and issued the warrant, winning the prosecution some vindication. The court reasoned that the suspects could destroy evidence, citing the prosecution’s additional claims.
“The two were highly likely to destroy evidence by negotiating with each other,” said Jang Jin-hoon, a judge at the court.
After the struggle to obtain a warrant, Prosecutor General Chung Sang-myoung told reporters that the country needs to adopt a system for prosecutors to appeal a court’s refusal to issue a detention warrant.
Judges and prosecutors have clashed over the issue of pre-trial detention for about a decade. In 1997 the courts introduced the warrant hearing system that allows suspects to defend themselves against unnecessary detention.
Nowadays, before granting a warrant, a judge can question a suspect so the suspect can defend himself and prevent excessive use of pre-trial custody. A suspect, his lawyer and family can apply for a hearing.
In Shin’s case, she did not apply for a hearing.
For a misdemeanor which is punishable by a fine of 500,000 won ($550) or less, a suspect cannot be detained unless she or he does not have a verifiable residence.
Pre-trial detention allows police or prosecutors to hold a suspect for up to 10 days for questioning. Prosecutors have the option to seek a 10-day extension of pre-trial custody if a court agrees there is a considerable need for the extension.
Prosecutors argue that it is difficult to repeatedly question a suspect if he or she is not kept in custody.
They argue that when more than one suspect is involved in a crime, unless the suspects are detained separately, they are likely to collude with each other outside questioning to coordinate testimonies.
But judges say that issuing a warrant is the duty of a court under the principle that suspects are innocent until proven guilty.
Thus, they argue that suspects should only be detained under aggravating circumstances. In Korea, judges and legal experts say, detention is often wrongfully used as a form of punishment.
Judges also point out that prosecutors often try to detain a suspect for investigation on one charge and then expand the case to other allegations.
Detaining a suspect on charges other than those specified on a warrant is illegal.
Because judges and prosecutors frequently clash over the issuing of detention warrants, prosecutors often argue that there should be an appeals system for rejected warrant petitions. That would allow prosecutors to file a complaint about a warrant rejection to a higher court.
Prosecutors argue that the decision can vary by judge or court. Such a system exists in Germany, France and Japan.
But during a revision of the criminal investigation law in April, lawmakers rejected the prosecutors’ proposal for a warrant appeals system in the face of confrontation between judges and prosecutors.
The revised criminal litigation law, which will take effect next year, allows judges to take into account the gravity of the case and the risk of a repeat offense when issuing a warrant.
As for appeals, Prosecutor General Chung said he would consider asking the Constitutional Court, a third party, to make a decision on adopting the prosecutors’ proposed system.
By Kim Soe-jung Staff Writer [soejung@joongang.co.kr]
with the Korea JoongAng Daily
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