21.12.2020 Author: Konstantin Asmolov

Changes to the Way ROK Law Enforcement Agencies Operate

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Aside from attempts to interfere with the work of the Prosecutor General’s office in order to create a team answerable only to the President and his high-ranking corrupt cronies, from 2019 to 2020, Moon Jae-in’s administration undertook a series of actions aimed at changing the way law enforcement agencies in the country operate. Some of these measures seem reasonable to the author, while others do not.

In June 2019, a police reform committee introduced new rules “banning police from using water cannons and making it mandatory to store recordings of communications of police officers deployed to street rallies”. The aim of the last measure is to ensure it is easy to determine who has given an order if excessive force is used and to hold them accountable.

The rule on water cannons was formulated in response to a highly publicized incident involving Baek Nam-ki, a farmer who was hit by a jet of water while taking part in protests against the former Park Geun-hye administration in 2015. As a result, he “went into a coma” and subsequently died in hospital 10 months later, without regaining consciousness.

In October 2019, Prosecutor-General Yoon Seok-youl put an end to the common practice of having suspects or witnesses coming in for questioning by prosecutors greeted by a crowd of journalists and photographers, who have been previously informed about the arrival. This arrangement not only “updated the public” about ongoing investigations but also served as a powerful political tool “making targeted suspects look guilty before any allegations were proven”. Still, the press is to continue to have the opportunity to photograph suspects or witnesses arriving for a trial.

On November 11, 2019, the Ministry of Justice announced “it would ban private book deliveries to detention facilities”. Since then, an inmate wishing to buy such items has had to give a list of desired books to prison officials every two weeks and then purchase them via the facility’s partner seller. The new rule has had a negative impact on the work of some NGOs that used to supply prisoners with free books as well as on inmates who do not wish to “financially burden their families or friends” by asking them for money. This ban can be viewed as “a violation of detainees’ access to information” because prison authorities may be able to restrict what inmates are reading, for instance, books “on laws that protect inmates from wrongful treatment”.

On January 13, 2020, the National Assembly of the Republic of Korea “passed two bills on granting police more investigative power”. Since then, police have been “able to close probes without approval from the prosecution”, which had earlier overseen the process. The amendments to “the Criminal Procedure Act and the Prosecution Office Act” were approved despite the boycott by the main opposition Liberty Korea Party. In fact, the revision garnered an overwhelming majority of the votes (“164-1, with only one abstention”).

On August 5, 2020, private detective agencies were “officially permitted in South Korea”. Still, efforts are to be made to “protect private information and prevent privacy infringement”. Hence, since August 5, 2020, private detectives have been able to lawfully charge for their services.  Despite the recent changes, the scope of private investigators’ activities is to be strictly regulated. Private detectives are still prohibited from collecting evidence in criminal and civil cases and locating the whereabouts of fugitive offenders. They are also banned from collecting evidence on cases under investigation or trial and from gathering data to prove a married individual has been cheating. Likewise, tracking down the whereabouts of runaway debtors or spouses could violate the Personal Information Protection Act. In essence, private investigators’ activities permitted under the revised law include finding the locations of runaway children and youth and missing persons.

In accordance with the new regulation to protect privacy, which came into effect on November 5, 2020, “organizations using thermal imaging cameras to prevent the spread of COVID-19” were banned from storing face images.

On November 10, 2020, in response to complaints from civilians, the nation’s civil rights watchdog urged the police to “refrain from handcuffing suspects behind their backs”. Police officers were also asked to always put on wearable cameras before arresting criminal suspects”. “When it is necessary for police to restrict the physical freedom of suspects, it should be done to the minimum extent,” the commission said.

On November 11, 2020, the state human rights watchdog advised law enforcement agencies “against disclosing any history of mental illness in people involved in a case”.  “Considering our society’s attitude toward people with mental illnesses and social norms, it is highly likely that such a history, or the fact that it is ongoing, is not information one wants to disclose,” the watchdog said. “Leaking information to the press about a person’s history of mental illness, after that person has been placed under police custody and no longer poses a threat, is an invasion of the confidentiality and freedom of privacy under the Constitution.

Citing 2016 data from the Supreme Prosecutor’s Office, the commission pointed out that the crime rate among those without a history of mental illness was 1.4 percent, around 15 times higher than the 0.1 percent among those with mental illnesses. Discrimination and bias against a particular group not only undermine social unity, they become a cause for pain from social stigma and avoidance of treatment,” the commission stated.

On November 23, 2020, The Korea Times reported that the national human rights agency had urged “law enforcement authorities to provide better interpretation services for non-Koreans during legal procedures” even if they could speak some Korean. After all, rudimentary knowledge of the language may not be sufficient to help a person communicate on legal matters, with all their intricacies.

On November 26, 2020, South Korea’s ruling Democratic Party (DP) and the government “held a meeting to consider establishing an additional post-prison segregation program for criminals convicted of brutal crimes”, such as sexual abuse of children. “In order to prevent criminal relapses of certain convicts, we must positively review new security measures that would socialize them in special facilities,” Rep. Kim Tae-nyeon, floor leader of the ruling party, said during the meeting. He also stated that the DP and the government needed to “strictly limit the scope of subjects of such a program in order to dispel concerns of human rights violations”.

On November 27, 2020, South Korea’s Ministry of Justice said that the government would “push for a new law to drastically raise punishments for” those found guilty of stalking. “Failures to take proper protective measures for victims and punish the perpetrators have caused various violent crimes, such as assaults and murders,” a ministry official said, “explaining the background for the new law”. Under the new legislation, acts of continuously or repeatedly approaching, following or blocking a victim against his or her will; waiting for or watching a victim in and around his or her residence, workplace or school; or causing a victim anxiety or fear through mail, telephone or IT networks are defined as stalking crimes.

At present, stalking is considered a misdemeanor in South Korea and is punished only with a fine not exceeding 100,000 won (US$90), resulting in a growing number of victims. In fact, the number of stalking crimes handled by local police nearly doubled from 312 in 2013 to 583 the previous year. The new law stipulates imprisonment of less than three years or a fine of less than 30 million won for stalking perpetrators. If weapons and other dangerous objects are used in stalking, the punishments will rise to a prison term of less than five years or a fine of less than 50 million won.

In September 2020, revisions to the laws related to relief operations were approved by South Korea’s National Assembly. The amended legislation stipulates acts that get in the way of an ambulance are punishable by up to five years in prison or a fine of less than 50 million won (US$42,567). Earlier, these laws only said that those who impeded rescue and first aid operations could face such a penalty. The move came after a taxi driver in June blocked an ambulance carrying a patient in serious condition, thereby preventing it from reaching a hospital.

In addition, the fine for a false call for help is to increase to 5 million won from the current 2 million won. Other amendments require health officials to report infectious disease patients or suspected patients to the fire agency director, and chemical companies and warehouses to report when and if they stop storing or producing chemicals for more than three months to their city government. The revised legislation will go into effect at the beginning of 2021.

Another highly publicized story concerns attempts made by Justice Minister Choo Mi-ae to enact a law to force suspects to disclose the passwords for their mobile phones. The press has tied the move to the investigation of Han Dong-hoon, Yoon Seok-youl’s close associate, since there is not enough evidence to charge him as yet.

Critics have said that the Minister’s order goes against the nation’s Constitution, as Article 12 in it stipulates that no citizens shall be compelled to testify against himself in criminal cases. If investigators are granted access to passwords and are able to look at private information unrelated to incidents at hand, they violate Articles 17 and 18 of the Constitution that guarantee the privacy of citizens and the privacy of correspondence.

In this context, punishing suspects for refusing to disclose their mobile phone passwords is as good as punishing them for refusing to confess. Hence, even pro-government groups — the Minbyon (Lawyers for a Democratic Society) and the People’s Solidarity for Participatory Democracy — demanded the withdrawal of the order.

What remains to be done? The practice of partially revealing identities and names of suspects charged with certain crimes still remains in place today.  According to the Act on Special Cases concerning Punishment of Specific Violent Crimes, which was made law in 2010, a suspect’s name, face, age and other personal details can be disclosed if police have sufficient grounds to believe the suspect has committed the crime, and when disclosing such information is necessary for the public interest to guarantee the people’s right to know, and prevent other similar crimes. And although the regulation does not allow suspects to wear a mask or a cap, it cannot prevent them from hiding their faces with long hair or a shirt collar.

Konstantin Asmolov, PhD in History, a leading research fellow at the Center for Korean Studies of the Institute of the Far East at the Russian Academy of Sciences, exclusively for the online magazine “New Eastern Outlook”.

 


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