Case concerning whether capacity to participate is required in a seizure and search of a residence or the like


【Holding】

[1] Whether the specific provisions of the Criminal Procedure Act concerning seizure and search procedures, including the provisions on the right to participate, must be interpreted and implemented from the perspective of giving effect to the constitutional principles of due process and the warrant requirement (affirmative)

[2] The purport of Article 123(2) and (3) and Article 219 of the Criminal Procedure Act in requiring the participation of the resident or the like or a neighbor or the like when a seizure and search warrant is executed at a residence or the like / Whether the resident or the like or the neighbor or the like who participates in the execution of a seizure and search warrant as prescribed by Article 123(2) and (3) and Article 219 of the Criminal Procedure Act must possess the capacity to participate (affirmative)

[3] Where the execution of a seizure and search warrant at a residence or the like as prescribed by Article 123(2) of the Criminal Procedure Act is carried out without the participation of the resident or the like or a neighbor or the like, whether the execution of the seizure and search warrant is lawful (negative in principle), and whether the same applies where the resident or the like or a neighbor or the like participated but the participant lacked or had insufficient capacity to participate (affirmative)

[4] Where the resident or the like or the neighbor or the like who participates in the execution of a seizure and search warrant under Article 123(2) and (3) of the Criminal Procedure Act has a disability that causes difficulty in communication or expression, whether the investigative agency must take lawful measures consistent with the purport of Article 26(6) of the Act on the Prohibition of Discrimination against Persons with Disabilities, Remedy against Infringement of Their Rights, etc. with respect to such a participant with a disability (affirmative) / Where a seizure and search warrant is executed at a residence or the like of which the suspect is the resident or the like, and the suspect lacks the capacity to participate, whether the investigative agency must have a neighbor or the like who has the capacity to participate take part as well (affirmative), and whether a seizure and search in which only the suspect lacking the capacity to participate took part is lawful in such a case (negative in principle)

[5] The standard for determining whether the requirements for the lawfulness of the seizure and search procedure have been satisfied with respect to a participant who took part in the procedure under Article 123(2) and (3) and Article 219 of the Criminal Procedure Act

【Summary of Decision】

[1] Our Constitution declares the foundations of due process and the warrant requirement with respect to seizure and search by providing that "no person shall be arrested, detained, seized, searched, or interrogated except as provided by law, and no person shall be punished, placed under preventive restrictions, or subjected to involuntary labor except as provided by law and through lawful procedures" (latter part of Article 12(1)) and that "in the case of arrest, detention, seizure, or search, a warrant issued by a judge upon the request of a prosecutor through lawful procedures shall be presented" (main text of Article 12(3)). Inheriting this constitutional spirit, the Criminal Procedure Act has established various specific standards concerning seizure and search procedures. In particular, the Criminal Procedure Act, in Articles 121 and 219, provides for the general right of the defendant and the suspect to participate in seizure and search procedures, while in Articles 123 and 219, taking into account the particular characteristics of the place where the seizure and search is conducted, it requires the person responsible for a specific place to participate when a seizure and search warrant is executed at that place, so that the right to participate, as a procedural right, functions as a mechanism for substantively realizing the ideals of due process and the warrant requirement in the course of executing a seizure and search warrant.

The normative force of the Constitution, which thus declares the foundations of due process and the warrant requirement with respect to seizure and search in order to guarantee fundamental rights, and of the Criminal Procedure Act, which sets forth the specific procedures so that the ideals of ascertaining substantive truth and protecting individual rights may be harmoniously realized, must be firmly maintained, and the specific provisions of the Criminal Procedure Act concerning seizure and search procedures, including the provisions on the right to participate, must be interpreted and implemented from the perspective of giving effect to the constitutional principles of due process and the warrant requirement.

[2] Article 123 of the Criminal Procedure Act, under the heading "Execution of Warrants and Participation of Responsible Persons," provides that when a seizure and search warrant is to be executed in a public office, or in a military aircraft, vessel, or vehicle, the person responsible therefor shall be notified to participate (paragraph (1)); that when a seizure and search warrant is executed in the residence of another person, a house with a custodian, a structure, or an aircraft, vessel, or vehicle (hereinafter "residence or the like") other than the places prescribed in paragraph (1), the resident, custodian, or a person equivalent thereto (hereinafter "resident or the like") shall be made to participate (paragraph (2)); and that where the resident or the like cannot be made to participate, a neighbor or an official of a local public entity (hereinafter "neighbor or the like") shall be made to participate (paragraph (3)). These provisions apply mutatis mutandis to the execution of seizure and search warrants by investigative agencies pursuant to Article 219 of the Criminal Procedure Act. The purport of Article 123(2) and (3) and Article 219 of the Criminal Procedure Act in requiring the participation of the resident or the like or a neighbor or the like when a seizure and search warrant is executed at a residence or the like is to protect the party subjected to a compulsory measure by an investigative agency or a court, and ultimately to protect the fundamental rights of the people, by having a person with a close interest in a place where the need to protect fundamental rights such as freedom of residence and the secrecy and freedom of private life is particularly required participate, thereby ensuring the propriety of the warrant execution procedure. In light of these points, the resident or the like or the neighbor or the like who participates in the execution of a seizure and search warrant as prescribed by Article 123(2) and (3) and Article 219 of the Criminal Procedure Act must possess at least the ability to understand the meaning of the seizure and search procedure (hereinafter "capacity to participate"). This is because, where the resident or the like or the neighbor or the like participating in the execution of a seizure and search warrant does not possess the capacity to participate, it is difficult to effectively achieve the legislative purpose of the Criminal Procedure Act, which is to protect the party from unlawful or improper measures or acts that may occur in the course of executing the warrant and to ensure the propriety of the warrant execution procedure, or the constitutional demands of the protection of fundamental rights, due process, and the warrant requirement.

[3] Article 123(2) and (3) of the Criminal Procedure Act do not recognize any exception allowing a seizure and search warrant to be executed without the participation of the resident, custodian, or a person equivalent thereto (hereinafter "resident or the like") or a neighbor or an official of a local public entity (hereinafter "neighbor or the like"). This differs from Articles 121 and 122 of the Criminal Procedure Act, which provide, with respect to the participation of the prosecutor, the suspect, and defense counsel in the execution of a seizure and search warrant, that the warrant may be executed without notice of the date, time, and place of execution in cases requiring urgency, among others. Therefore, where the execution of a seizure and search warrant in the residence of another person, a house with a custodian, a structure, or an aircraft, vessel, or vehicle as prescribed by Article 123(2) of the Criminal Procedure Act is carried out without the participation of the resident or the like or a neighbor or the like, absent special circumstances, the execution of such a seizure and search warrant must be regarded as unlawful. Furthermore, even where the resident or the like or a neighbor or the like participated, if the participant lacked or had insufficient ability to understand at least the meaning of the seizure and search procedure (capacity to participate), the requirements for the lawfulness of the seizure and search procedure prescribed by Article 123(2) and (3) of the Criminal Procedure Act cannot be regarded as satisfied, just as in the case where the procedure was carried out without the participation of the resident or the like or a neighbor or the like, and thus the execution of such a seizure and search warrant is also unlawful.

[4] Article 26(6) of the Act on the Prohibition of Discrimination against Persons with Disabilities, Remedy against Infringement of Their Rights, etc. (hereinafter the "Disability Discrimination Act") provides that "a judicial agency shall ascertain whether a person concerned in a case has a disability that causes difficulty in communication or expression, and shall inform such a person with a disability that he or she may receive assistance in criminal justice procedures and of the specific contents of such assistance. In such cases, if the person with a disability applies to receive assistance in criminal justice procedures, the judicial agency shall not refuse the application without justifiable grounds and shall prepare the measures necessary therefor." The purport of this provision is to guarantee the procedural status, rights, and right of defense of persons with disabilities that cause difficulty in communication or expression, by enabling them to understand their status and interests in criminal justice procedures and to mount an adequate defense throughout the series of criminal justice procedures from investigation through indictment to trial. Since the resident, custodian, or a person equivalent thereto (hereinafter "resident or the like") or the neighbor or the official of a local public entity (hereinafter "neighbor or the like") who participates in the execution of a seizure and search warrant under Article 123(2) and (3) of the Criminal Procedure Act may also have a disability that causes difficulty in communication or expression, the investigative agency executing the seizure and search warrant must take lawful measures consistent with the purport of Article 26(6) of the Disability Discrimination Act with respect to such a participant with a disability, so that the requirements for the lawfulness of the seizure and search procedure demanded by Article 123(2) and (3) of the Criminal Procedure Act may be satisfied.

This legal principle applies equally where, in a seizure and search of the residence of another person, a house with a custodian, a structure, or an aircraft, vessel, or vehicle (hereinafter "residence or the like"), the suspect is at the same time the resident or the like. This is because, while the Criminal Procedure Act provides in Articles 121, 122, and 219, under the heading "Right of Parties to Participate," for the right of the prosecutor, the suspect, and defense counsel to participate, it separately provides in Article 123, under the heading "Participation of Responsible Persons," for the mandatory participation of the resident or the like or a neighbor or the like, and the "right of parties to participate" and the "participation of responsible persons" are not identical in their purport, purpose, or the legal interests they protect. Therefore, where a seizure and search warrant is executed at a residence or the like of which the suspect is the resident or the like, if the suspect lacks at least the ability to understand the meaning of the seizure and search procedure (hereinafter "capacity to participate"), the participation of the suspect alone is insufficient, and the investigative agency must, pursuant to Article 123(3) of the Criminal Procedure Act, have a neighbor or the like who has the capacity to participate take part as well. In such a case, if only the suspect lacking the capacity to participate took part, the seizure and search is in violation of Article 123(2) and (3) of the Criminal Procedure Act and is, in principle, unlawful.

[5] Whether the requirements for the lawfulness of the seizure and search procedure have been satisfied with respect to a participant who took part in the procedure under Article 123(2) and (3) and Article 219 of the Criminal Procedure Act must be determined by examining the factual state that was outwardly perceivable as of the time of the seizure and search, including circumstances that the investigative agency perceived or could have perceived. Internal or subjective circumstances of the participant that the investigative agency could not have perceived at the time of the seizure and search, and legal or after-the-fact determinations concerning the participant's objective ability, are not matters for consideration.

【Referenced Statutes】

[1] Article 12(1) and (3) of the Constitution; Articles 121, 123, and 219 of the Criminal Procedure Act [2] Articles 123 and 219 of the Criminal Procedure Act [3] Articles 121, 122, 123(2) and (3), 219, and 308-2 of the Criminal Procedure Act [4] Article 26(6) of the Act on the Prohibition of Discrimination against Persons with Disabilities, Remedy against Infringement of Their Rights, etc.; Articles 121, 122, 123(2) and (3), 219, and 308-2 of the Criminal Procedure Act [5] Articles 123(2) and (3) and 219 of the Criminal Procedure Act