International Law

Korean Supreme Court Rejects Admissibility of Evidence Obtained Illegally

A real bombshell in the papers today and a slap in the face of Korea’s all-powerful public prosecution. The Supreme Court has finally issued a definitive ruling concerning the admissibility of evidence obtained by the prosecution “illegally”, or outside the boundaries of limited authority granted to the prosecution under a search warrant. This is really big news. From the JoongAng Daily:

Ending a long standing legal controversy, the nation?s highest court yesterday ruled that evidence gathered illegally can never be accepted in a trial, and ordered Jeju Governor Kim Tae-hwan to be tried again on a charge of violating the country?s election law.

In the past, evidence gathered illegally ? except for testimony gathered under unlawful circumstances ? could be admitted in court, the ruling said.

“Evidence gathered unlawfully can not be accepted,” said yesterday?s Supreme Court ruling, signed by 11 judges. “The procedures were made to protect basic human rights.”

In response to this fact, the Court kicked back a guilty verdict against Kim and remanded the case for re-trial, this time without the evidence grabbed unlawfully.

Kim can remain in office until the Gwangju High Court tries the case without the evidence that the Supreme Court said was gathered illegally.

During his trial, Kim said that certain documents confiscated during the investigation had been taken from places not specified in the search warrant, so the evidence should not have been considered. Prosecutors claimed the process was legitimate.

The article also notes an important development which I hadn’t noticed yet this year—more rules establishing rules of evidence are on the way:

A stricter, more comprehensive law tightening standards for how evidence is gathered, defining what constitutes evidence and covering investigative procedures, passed the National Assembly. It is expected to be introduced next year.

Note that the above rules of evidence and requirement to exclude the illegally-obtained evidence are probably applicable to criminal procedure only, as the Supreme Court precedent reported by the JoongAng is based on an existing rule in the Code of Criminal Procedure.

This leaves open the possibility that evidence gathered by prosecutors in the course of a criminal investigation, even if not admissible for criminal purposes, could still turn up in civil process—as it is an ordinary component of civil process to use (or abuse, depending on your perspective) the prosecution’s investigative power to gather evidence which is not obtainable through civil discovery.

Full post as published by Korea Law Blog on November 16, 2007 (boomark / email).