[Editorial] 'Indictment Without Arrest' Protects Civil Rights

The Seoul Central District Court – which deals with more criminal cases than any other in the nation – released a five-point series of guidelines for issuing arrest warrants. They are mostly about indicating suspects without arresting them where possible, since under regular criminal policy suspects are to be arrested almost automatically when they are charged with crimes that, if found guilty, would require prison sentences and when there is a perceived risk that the suspect could commit further crimes. So far the standard for issuing an arrest warrant has been very inclusive, for instance when it is believed the suspect could destroy evidence or take flight, and various courts and judges have been criticized for being rubber stamps. It is also a fact that the country has come to distrust the justice system, since powerful lawyers and middlemen have been able to influence the process at the warrant-issuing stage, leading to suspicions that you can get off easy if you have enough money. That is why it is a positive development to have the courts working to change the practice of arresting suspects as if to punish them, because changing that will be more protective of suspects' rights.

It is disappointing, however, that the court did not offer specific guidelines for issuing arrest warrants. You of course cannot disregard the capacity of individual judges to make their own judgments, but you doubt there will be predictable consistency just because the court has declared that it is going to "strictly apply" the guidelines. It must also be noted that more "indictments without arrest" could end up being disadvantageous to people without power and influence.

The courts are not the only problem. Since the start of the "professor Kang Jeong Koo affair" last year, the prosecution has been inconsistent about whether to arrest Kang or not. The prosecution quickly needs to establish detailed standards for when to apply for arrest warrants. If more suspects are going to be indicted or investigated without being put under arrest, the prosecution absolutely needs to change its thinking so that it does not arrest people to make its investigations easier or because of public opinion wants to see someone behind bars. The constitution and the criminal procedures law is consistent with the principles of "investigation without arrest" and "innocent until proven guilty." If the Korean justice system is going to make progress in having more investigations and trials be based on physical evidence, the general public will also have to stop thinking of arresting someone as a form of punishment or as a way to fight crime.

The Hankyoreh, 4 January 2006.

[Translations by Seoul Selection]