Enough is enoughA prosecutor is not a judge. We often forget this obvious fact. A prosecutor sometimes plays the role of a judge, who judges a case and issues a punishment, going beyond his or her role of investigation. Ordinary people are easily confused. Many often think that pretrial detention is a conviction with a punishment. When a detention warrant is rejected, the people criticize a judge for not punishing a convict.
That is why prosecutors and judges try to turn a blind eye when it comes to the principle that investigations should be conducted without the detention of suspects unless it is absolutely necessary. No matter what happens to the rights of the “bad guys,” detaining suspects and holding them in the trial of public opinion seems satisfying for many. The verdict doesn’t really matter, because the people already have their own conclusions.
A criminal trial is a battle between the mighty state power and an individual. The individuals should be given means and rights to defend themselves against the state power. That is why the Constitution states that “The accused shall be presumed innocent until a judgment of guilt has been pronounced” in clause 4 of Article 27.
But the reality is different. Detention is often accepted as a judgment of guilt. A detention deals a critical blow to the accused image in the society. There is no way to restore the honor even if he or she is acquitted.
Former President Park Geun-hye’s detention warrant will expire on Oct. 16, as she is undergoing her first trial. It’s been 200 days since she was first taken into custody on March 31. There seemed to be no possibility that her trial would end before the detention warrant expires.
The prosecution, therefore, asked a local court to grant an extension of her detention. Prosecutors said she is the primary suspect of the abuse of power and corruption scandal but she is denying her charges. They said they also need additional evidentiary investigation.
Under the criminal litigation process, the prosecution can hold the accused for two months during a trial after an indictment is filed. When the need for an extension is accepted, up to two extensions are granted for each court. Therefore, the prosecution can hold the accused for a maximum six months for a district court trial, and another four months each for the second and final appeals.
Park was already under two extensions. The detention allowed under the law has expired. The prosecutors are now trying to using a loophole. They said they will get a separate warrant with charges that were not initially included in the first detention warrant. It is a method that criminal law professors have taught their students never to use.
What if the investigation is not over? A senior judge of a high court said the prosecution has the right to decide on indictment in a criminal trial, but after an indictment is filed, the court should make a decision. Prosecuting a suspect first and holding additional investigations and filing more charges during a trial is an abuse of power, he said. Once an indictment is filed, the detention is not for an investigation.
Former President Chun Doo Hwan was detained for 265 days during his first trial and former President Roh Tae-woo for 248 days. Roh was taken into custody on Nov. 16, 1995, while Chun was detained on Dec. 3, 1995. The Supreme Court confirmed their convictions on April 17, 1997. They were released based on special presidential pardons on Dec. 22 that year. Roh served in prison for 768 days and Chun 751 days.
Because Chun was sentenced to life in prison and Roh 17 years for their crimes, their left their prison cells too early. The public was upset that it was a dirty political deal. But the resolution was not to unreasonably extend their detentions.
Investigation without detention is not a favor but a basic principle. Under the Criminal Procedure Act, there are only three grounds for detention. The court may detain a criminal defendant when a probable cause exists to suspect he or she has committed a crime and when the defendant has no fixed residence, when there is suspicion of evidence destruction or when she or he may flee.
In Park’s case, she has a fixed residence and is not a flight risk. The only ground is the possibility of evidence destruction.
Extending the detention during a trial is not for a new investigation. The prosecution and independent counsel already secured all evidence. The prosecution said she may coordinate her testimony with other suspects, but the prosecutors already secured the testimonies, so the argument is unreasonable.
The evidence destruction cited in the Criminal Procedure Act does not mean the possibility of destroying evidence during the process of indictment. It is to prevent an extreme case, such as killing a witness.
The attempt to detain Park further is a form of punishment. It may be to satisfy the public or it may be an attempt to please the administration. The Choi Soon-sil scandal is a humiliation for us all. All suspects must face justice. But we must not use legal loopholes as a form of vengeance.
Even a murderer’s handcuffs are covered with a towel when the suspect appears before the public to protect his or her dignity. Never should dignity be violated.
Yet Park appears on the television day after day with messy hair and no makeup.
Other detainees are probably in the same situation, but someone whose appearance is broadcasted everyday may feel more humiliated. Stern punishment by the judiciary will be more than enough payback. We have to think about the country’s dignity. We should stop here, because enough is enough.
JoongAng Ilbo, Oct. 2, Page 27
*The author is an editorial writer of the JoongAng Ilbo.
with the Korea JoongAng Daily
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