"Must Have the Ability to Understand Procedures"
The Supreme Court has made its first ruling that when investigative agencies execute search and seizure warrants, and the homeowner or neighbors participate according to the Criminal Procedure Act, those participants must have at least the capacity to understand the meaning of the search and seizure procedures. The court emphasized that mere formal participation is insufficient for substantive procedural guarantees, and that ‘participation ability’ to comprehend the significance of the search and seizure process is necessary.
The Supreme Court Criminal Division 2 (Presiding Justice Oh Kyung-mi) on the 8th overturned the lower court’s ruling that sentenced Mr. A to 10 months imprisonment on charges of violating the Narcotics Control Act (marijuana) and remanded the case to the Incheon District Court (2020Do11223).
When the investigative agency searched Mr. A’s residence, only Mr. A’s daughter, who has an intellectual disability, was allowed to participate. The Supreme Court ruled that since only a person without participation ability was involved, the search and seizure was unlawful, and therefore the evidence collected based on it was illegal.
The court stated, “Articles 123(2), 123(3), and 219 of the Criminal Procedure Act require that when executing search and seizure warrants at residences, the homeowner or neighbors participate. This is intended to protect the parties subject to coercive measures by investigative agencies or courts by involving persons with a close interest in the location?where protection of fundamental rights such as freedom of residence and privacy is especially necessary?to ensure the propriety of the warrant execution process and ultimately protect the fundamental rights of the people.” It further ruled, “In light of this, those participating in the execution of search and seizure warrants as homeowners or neighbors must at least have the capacity to understand the meaning of the search and seizure procedures.”
It added, “If those participating in the execution of the search and seizure warrant lack participation ability, it becomes difficult to effectively achieve the legislative intent of the Criminal Procedure Act to protect the parties from illegal or unjust acts that may occur during the warrant execution process, and to ensure the propriety of the procedure, as well as constitutional requirements such as protection of fundamental rights, due process, and the warrant principle.” The court continued, “Unless there are special circumstances, execution of a search and seizure warrant on a residence without the participation of the homeowner or neighbors as stipulated in Article 123(2) of the Criminal Procedure Act is unlawful. Furthermore, even if participation occurs, if the participant lacks or has insufficient participation ability, it is considered equivalent to execution without participation of the homeowner or neighbors, and thus the legal requirements for search and seizure procedures under Articles 123(2) and 123(3) are not met, rendering the process unlawful.”
Mr. A was indicted for storing approximately 0.62g of marijuana in a safe in the master bedroom of his residence in Guro-gu, Seoul, around May 28, 2019. When the investigative agency conducted the search and seizure at Mr. A’s residence, only his daughter, Ms. B, who has an intellectual disability, participated. Ms. B had been placed under adult guardianship in March 2017 with an overall IQ of 57 and a social maturity age of 11 years.
The first and appellate courts recognized the evidence secured through the search and seizure, including marijuana, and the seizure report as evidence of guilt, and sentenced Mr. A to 10 months imprisonment.
Park Su-yeon, Legal Times Reporter
※This article is based on content supplied by Law Times.
© The Asia Business Daily(www.asiae.co.kr). All rights reserved.
