〈Case concerning whether an interrogation date may be continued in the pre-detention interrogation procedure〉

【Holding】

Whether it is desirable to continue the interrogation date in the pre-detention interrogation procedure of a suspect (negative in principle) / Where the interrogation procedure has not been delayed without particular reason to the extent that the suspect's personal liberty has been restricted for an extended period without a detention warrant being issued, substantially amounting to unlawful confinement, whether the mere fact that the interrogation date was continued affects the legality and validity of the detention warrant (negative)

【Summary of Decision】

(A) Article 12 of the Constitution of the Republic of Korea (hereinafter the "Constitution"), with respect to the personal liberty of citizens, provides in paragraph (1) that "all citizens shall enjoy personal liberty. No person shall be arrested, detained, seized, searched, or interrogated except as provided by law," provides in the main text of paragraph (3) that "in cases of arrest, detention, seizure, or search, a warrant issued by a judge upon the request of a prosecutor in accordance with due process shall be presented," and provides in paragraph (5) that "no person shall be arrested or detained without being informed of the reason therefor and of the right to assistance of counsel. The family, etc., as designated by law, of a person arrested or detained shall be notified without delay of the reason for, and the time and place of, the arrest or detention," thereby declaring the principles of due process and the warrant requirement.

(B) Accordingly, the Criminal Procedure Act (hereinafter the "Act") and the Rules of Criminal Procedure (hereinafter the "Rules") provide as follows with respect to the procedure for requesting and issuing a detention warrant against a suspect.

① Where a suspect arrested under a warrant is to be detained, a detention warrant must be requested pursuant to Article 201 of the Act within 48 hours from the time of arrest, and if a detention warrant is not requested within that period, the suspect must be released immediately (Article 200-2(5) of the Act). The above provision applies mutatis mutandis where a prosecutor or judicial police officer arrests a flagrant offender or takes custody of a flagrant offender handed over to them (Article 213-2 of the Act), and a provision to the same effect exists with respect to cases where a suspect arrested under emergency arrest is to be detained (Article 200-4(1) and (2) of the Act).

② The judge who has received a request for a detention warrant against an arrested suspect must interrogate the suspect without delay, and unless there are special circumstances, must conduct the interrogation by the day following the date on which the detention warrant was requested (Article 201-2(1) of the Act). The judge who has received a request for a detention warrant against a suspect other than an arrested suspect must issue a detention warrant for compulsory appearance, have the suspect brought before the court, and then interrogate the suspect (main text of Article 201-2(2) of the Act). In such cases, where a suspect compelled to appear has been brought before the court and it is found that there is no need to confine the suspect, the suspect must be released within 24 hours from the time of being brought before the court (Articles 209 and 71 of the Act), and where it is necessary to hold the suspect compelled to appear and the suspect is held in a prison, detention center, or police station cell, the period of holding may not exceed 24 hours from the time of being brought before the court (Articles 201-2(10) and 71-2 of the Act).

③ The judge must notify the prosecutor, the suspect, and defense counsel of the date and place of interrogation immediately upon receiving a request for a detention warrant against an arrested suspect, and, in the case of a suspect other than an arrested suspect, immediately after the suspect has been brought before the court under a warrant for compulsory appearance (Article 201-2(3) of the Act). The interrogation date for a suspect other than an arrested suspect must be set at the earliest possible date and time from the time the suspect is brought before the court, taking into account the time required for notification of the interrogation date and for attendance (Article 96-12(2) of the Rules), and notification of the interrogation date must be given promptly, not only in writing but also orally, by telephone, facsimile, e-mail, mobile phone text message, or any other appropriate means (Article 96-12(3) of the Rules).

④ The judge who has received a request for a detention warrant must promptly decide whether to issue the detention warrant (Article 201(3) of the Act).

⑤ The judge conducting the interrogation must interrogate the suspect promptly and concisely on matters necessary to determine whether to detain the suspect (Article 96-16(2) of the Rules). The judge may, when deemed necessary to determine whether to detain the suspect, interrogate the victim or any other third party, but only where the victim or other third party is present at the place of interrogation (Article 96-16(5) of the Rules).

(C) Taking together the principles of due process and the warrant requirement prescribed by the Constitution as described above and the provisions of the criminal procedure statutes concerning the procedure for requesting and issuing a detention warrant against a suspect, where a detention warrant is requested, the decision on whether to issue the detention warrant must be made as promptly as possible, and the suspect interrogation procedure for deciding whether to issue the detention warrant must be conducted promptly and concisely, limited to matters necessary to determine whether to detain the suspect. Therefore, unless there are special circumstances, it is not desirable to continue the interrogation date in the pre-detention interrogation procedure. This is because if a judge who has received a request for a detention warrant freely continued the interrogation date while conducting the suspect interrogation, this would not only be inconsistent with the provisions and purpose of the criminal procedure statutes requiring a prompt decision on whether to issue a detention warrant, but would also leave the question of the suspect's detention in a state of uncertainty for an extended period, raising the concern that the fundamental right to personal liberty, which the Constitution and the criminal procedure statutes seek to protect through the principles of due process and the warrant requirement, would be unduly restricted.

However, the system of substantive review of detention warrants, the essence of which is the pre-detention interrogation of the suspect, was established so that the judge who has received a request for a detention warrant from the prosecutor can determine the grounds for detention more carefully by meeting and directly interrogating the suspect before deciding whether to order detention. The judge's continuation of the interrogation date in the course of interrogating the suspect may be part of the judge's authority to direct the proceedings in order to make such direct interrogation more thorough, and it cannot be denied that it also serves to additionally guarantee the suspect an opportunity to state his or her opinion in that process.

Therefore, unless the interrogation procedure has been delayed without particular reason to the extent that the suspect's personal liberty has been restricted for an extended period without a detention warrant being issued, substantially amounting to unlawful confinement, the mere fact that the interrogation date was continued cannot be regarded as having any effect on the legality and validity of the detention warrant.

【Referenced Statutes】

Article 12(1), (3), and (5) of the Constitution; Articles 71, 71-2, 200-2(5), 200-4(1) and (2), 201(3), 201-2(1), (2), (3), and (10), 209, and 213-2 of the Criminal Procedure Act; Articles 96-12(2) and (3) and 96-16(2) and (5) of the Rules of Criminal Procedure

(Source: Supreme Court Decision 2022Do9819, March 13, 2025 | Judicial Information Disclosure Portal, Precedents)