OUTSET OF THE �CONSTITUTIONALIZATION OF CRIMINAL PROCEDURE’ AFTER THE 1987 CONSTITUTION
Under the authoritarian regime established after the May 16th military coup in 1961, democracy in South Korea was nominal, and the Korean Constitution was akin to the �Emperor’s new clothes.’ Illegal police practices including torture, illegal arrest and detention were widespread in the criminal process.
Beating, threatening, and torture by water or electricity were routinely applied to political dissidents.Let us turn to some highly profiled cases of the 1980s (although there are many other similar cases under the regime). Supporters of President Kim Dae- Jung, a political dissident at that time, were severely tortured when arrested for their alleged conspiracy to overthrow the state in 1980.[74] In particular, those who violated the National Security Law were brutally tortured, and accused of being �pro-enemy leftists.’[75] For instance, former Presidential Secretary Lee Tae-Bok and former Congressman Kim Geun-Tae, who were then leaders of the democratization movement, were brutally tortured when arrested for the violation of the National Security Law in 1980 and in 1983 respectively.[76] In 1987, Professor Kwon In-Sook, then a labor movement activist, was sexually abused by a policeman when arrested, and Park Jong-Chul, a dissident student, was suffocated to death in the bathtub during police torture.[77] Besides political dissidents, ordinary people also had to go through the cruel investigation process. Illegally-obtained confessions and physical evidence were usually admitted by the court to prove a defendant’s guilt.11 From the standpoint of human rights, it was no more than a �Dark Age,’ when the procedural rights of criminal suspects and defendants were nothing but meaningless rhetoric.
The June Struggle of 1987 opened a new era of democracy and gave birth to the 1987 Constitution.
The Constitution established a blueprint for the �constitutionalization of criminal procedure’ in Korea and created the Constitutional Court as a watchtower to monitor unconstitutional laws and police practices.First, Article 12(1) and (3) of the Constitution have explicitly incorporated the principle of due process in criminal procedure. According to the Constitutional Court, the principle is �to guarantee not only the legality of the procedure but also the legitimateness of the procedure.’12 The Court made sure that the principle of due process was a core value to penetrate and control all stages of criminal procedure, stating:
The principle of due process requires that both the formal procedure described by the law and the substantial content of the law be reasonable and just.... In particuÂlar, it declares that the whole criminal procedure should be controlled from the standpoint of guaranteeing the constitutional basic rights.13
Secondly, the Bill of Rights in the 1987 Constitution provides very detailed provisions regarding criminal procedural rights, including strict requirements for obtaining judicial warrants for compulsory measures,14 the right not to be tortured,15 privilege against self-incrimination,16 right to counsel,17 right to be informed of the reason of arrest or detention,18 right to request judicial hearÂing for arrest or detention,19 exclusionary rule of illegally obtained confesÂsion,20 protection against double jeopardy,21 right to fair trial,22 right to speedy
11 See, e.g. Decision of 9 November 1988, 88 Ko Hap 548 (Pusan District Court); Decision of 13 October 1981, 81 Do 2160 (Korean Supreme Court); Decision of 13 March 1984, 84 Do 36 (Korean Supreme Court).
12 See Decision of 24 December 1992, 92 Heon Ka 8 (Korean Constitutional Court); Decision of 29 July 1993, 90 Heon Ba 35 (Korean Constitutional Court).
13 Decision of 26 December 1996, 94 Heon Ba 1 (Korean Constitutional Court).
14 Korean Constitution (heonbeop), supra note 4, arts. 12(3), 16.
15 Id Art. 12(2).
16 Id.
17 Id Art. 12(4).
18 Id Art. 12(5).
19 Id Art. 12(6).
20 Id Art. 12(7).
21 Id Art. 13(1).
22 Id Art. 27(1).
and open trial,[78] presumption of innocence,[79] and right to compensation for the suspect and defendant found innocent.[80] These rights incorporated in the Constitution reflect the Korean people’s desire to guarantee their human rights which had been nominal under the authoritarian regime.
Besides these changes, it is noteworthy that in 1995, two former presidents, Chun Doo-Hwan and Roh Tae-Woo, were prosecuted and found guilty for leading the December 12th coup of 1979, and for killing many civilians in Kwangju in 1980. The case was symbolic of the change in Korean society.[81]
In brief, the new Constitution has required that criminal procedure be under the control of the Constitution and has provided the detailed Bill of Rights to guarantee the procedural rights of criminal suspects and defendants. In this context, the �constitutionalization of criminal procedure’ had begun.
III.