With regard to the publicizing by the police of criminal charges prior to a demand for a trial in the process of investigation of two cases at the center of nationwide attention, the National Human Rights Commission of Korea (NHRCK) conducted an ex officio investigation in accordance with the National Human Rights Commission Act. The NHRCK determined that such act constituted a violation of the victims" right of integrity and privacy, and the right to a fair trial. Thus, the NHRCK recommended the Minister of Government Administration and Home Affairs and the commissioner general of the National Police Agency respectively issue a warning against the National Police Agency and against the Incheon Metropolitan Police Agency. In addition, the NHRCK recommended that the minister and commissioner general implement appropriate training and also formulate and take necessary measures to prevent recurrence of similar actions in the future.
The publicizing of criminal charges by an investigative authority prior to a demand for a trial is not permitted in principle. Article 27(4) of the Constitution of the Republic of Korea provides for presumption of innocence. Article 126 of the Criminal Act declares that the publicizing of criminal charges itself is illegal. Under the current legal system, there are tight restrictions on the announcement of criminal charges in cases where such announcement is made to satisfy the public" s right to know.
In reality, however, the investigative authorities in Korea have repeatedly violated crime suspects" right of integrity and portrait by publicizing criminal charges prior to demands for trials. Under these circumstances, the NHRCK decided to correct investigation practices that were in violation of human rights. Noticing human rights abuses that arose from the November 2004 announcement of criminal charges in the process of investigating two cases that had serious social repercussions, the NHRCK determined to embark on an ex officio investigation, which lasted over two years.
The NHRCK listened to various opinions by holding public hearings of experts, hosting informal sessions with officers of the prosecution, police, and members of the press who are in the position of publicizing criminal charges, receiving advice from academics, and collecting information on comparable cases in foreign countries. The NHRCK ultimately made a judgment on whether publicizing criminal charges in said cases constituted a violation of human rights according to the following standards:
△ The announcement of criminal charges must be confined to affairs of legitimate interest to the general public. Only in cases where such announcement is intended to prevent possible pressing threat to people" s lives and safety or where the case is already widely known to the public for such reasons as earlier press coverage, the need for announcing criminal charges is acknowledged to the least possible extent.
△ Even if announcement of criminal charges is beneficial or necessary, the investigative authorities including the police should respect certain limitations regarding its purpose and method by taking into consideration the balance of legal interests according to the principle of presumption of innocence and proportionality guaranteed under the Constitution.
△ Criminal charges must be publicized by a person who is authorized to announce investigation findings, pursuant to official internal procedures of the investigative authority. However, such charges must not be announced in a way that allows the public to deduce the suspect" s identity.
△ The details of said announcement must be limited to only those that are absolutely necessary to accomplish the purpose of the announcement. In addition, the announcement should not be made concerning matters related to the crime suspect" s integrity or privacy which do not directly pertain to the crime as well as specific details or reliability of evidence that may affect a trial. Besides, it is forbidden to use any expression or resort to speculation which might prompt a hasty conclusion that the crime suspect is guilty or to make any expression that might cause a premature prediction.
Given the nature of the two cases in question, the NHRCK determined that the need to announce criminal charges to satisfy public" s right to know was apparently acknowledged. However, the NHRCK recommended formulation of measures to prevent recurrence of such cases based on the judgment that there were substantial violations regarding matters as specified above.
