"44th Illegal Filming Case Acquitted?" Criminals Laughing at Investigation Agencies' 'Voluntary Submission' Loophole

"The police's evidence collection procedure was illegal, so the defendant is acquitted. It's not because the defendant did well!" (Judge)

On November 12 last year, in an appellate court on the 4th floor of the Seoul Central District Court, Defendant A was acquitted amid such a rebuke from the judge. A, who was indicted for illegally filming female passengers 44 times on the Seoul subway over more than a year starting from April 2018, had confessed and admitted to the charges.

However, the problem was the investigation agency's 'illegal evidence collection.' The police initially obtained A's mobile phone voluntarily in November 2019 during an investigation into charges of raping his wife and illegal filming. During this process, the 'illegal filming on the subway' charges were newly discovered, but a separate search warrant was not issued.

The prosecution also maintained the indictment, arguing that since A's side did not object while additional evidence was collected, the voluntary submission's effect extended to the separate charges. The court did not accept this. Although A's confession and victims' photos clearly existed, criminal punishment was not imposed.

Cases where offenders avoid punishment due to mistakes made by investigative agencies during the voluntary submission process have been confirmed. Under Article 218 of the current Criminal Procedure Act, 'seizure by voluntary submission' often results in unclear seizure scope, unlike 'seizure by a court-issued warrant.'

This is why the Supreme Court precedent ruled that when investigative agencies seize electronic information, it should be done by printing documents or copying files only related to the crime specified in the warrant. In a case last November where a victim of illegal filming had the perpetrator's phone and submitted it to the police, the Supreme Court ruled that "seizure of voluntarily submitted items without guaranteeing party participation is illegal," denying the evidence's admissibility.

Despite this reality, investigative agencies have not even grasped the status of related cases. On the 16th, the prosecution and police stated, "We do not prepare or manage separate statistical data on cases where acquittals or dismissals were issued due to mistakes by investigative agencies in voluntary submissions."

A police official said, "We do not manage data on rulings of acquittal due to problems in the voluntary evidence submission procedure." A prosecution official explained, "If necessary, supplementary investigations can be requested from the police to maintain prosecution in higher courts." However, in A's trial, despite the court's rebuke, the prosecution did not appeal, and the acquittal was finalized. The prosecution official added, "Once an acquittal or dismissal is finalized, the principle of ne bis in idem prevents re-prosecution for the same case."

Professor Jeong Wan of Kyung Hee University Law School pointed out, "Ultimately, it is an issue between investigative agencies." Professor Jeong said, "The police, who should conduct investigations within the scope of the warrant application, bear responsibility if they hide this and conduct investigations outside the warrant scope before reporting to the prosecution. The prosecution, who argues in court, must also be mindful not to use illegally obtained evidence."

In this regard, the police announced a draft 'Investigation Human Rights Rule' last month, prohibiting exploration of separate charges in suspects' electronic information. The prosecution stated, "We have been conducting investigations in compliance with due process according to relevant Supreme Court precedents," and that they are not enacting separate rules.