Blog, Criminal

Facts & Key point

• The criminal defendant had filmed the victims doing their business at the restroom of “○○ Karaoke Bar” located in Uijeongbu-si (address omitted), including taking a photograph of an unidentified woman’s buttocks and genitals. 
• The criminal defendant in total had filmed 296 times by using a miniature camera covered with plastic wrap. 
• Meanwhile, the prosecutor requested an arrest warrant for the criminal defendant on October 25, 2019. 
• The judge of the Uijeongbu District Court interrogated the criminal suspect and issued an arrest warrant before the criminal defendant was placed under arrest after appointing Nonindicated 3 attorneys as the public defender of the criminal defendant on October 26, 2019.
• The criminal defendant signed and imprinted thumbmark after putting a tick (‘V’ sign) in his/her own handwriting on the checkbox, stating that “I participated in the process of sealing digital devices and storage media, confirmed that there is nothing wrong with the seal, and was informed that I could participate in the process of removing the seal, obtaining the copies thereof, and navigating, duplicating, and printing out digital devices and storage media or the copies thereof, but I will not participate in the above process” of each export confirmation of the original copy of his own computer and cell phone at that time.
• Nevertheless, the investigative institution did not give the public defender of the criminal defendant previous notice of the investigation and duplication of the instant computer and the creation process of the instant outputs as above, and thus the criminal defendant or the above public defender did not participate in the above procedure.

Can The Korean Authorities Seize My Phone? 

As a ground rule, yes, they can. 

Seizure is a method used by police or other authorities to take one’s property so that they can search out for evidence related to a crime and is generally used in a lot of countries. It is also used in South Korea to find out crime-related evidence. In order to commence seizure, principally law enforcement is required to obtain a seizure/search warrant issued by a judge (principally – which means that there are some exceptions allowed though.) 

Criminal Procedure Act, Article 215 (Seizure, Search and, Inspection)

• • • If necessary for the investigation of crimes, prosecutors may seize, search, or inspect articles or persons according to the warrant issued by a judge of the competent district court upon request of the prosecutors, only when there are circumstances where a criminal suspect is suspected of having committed a crime and the articles or persons to be seized, searched, or inspected are deemed to be connected with the relevant case.

• • • If necessary for the investigation of crimes, senior judicial police officers may seize, search, or inspect articles or persons according to the warrant issued by a judge of the competent district court upon request of a prosecutor who is requested by the senior judicial police officers, only when there are circumstances where a criminal suspect is suspected of having committed a crime and the articles or persons to be seized, searched, or inspected are deemed to be connected with the relevant case.

Ok, so we have seen that the authorities can seize your properties. Then, can they take your phone or PC? The answer is yes, as Article 106 allows it as follows.

A brief explanation about Article 106 is as follows: 

Criminal Procedure Act, Article 106 (Seizure)   

• • • Where the object to be seized is a computer disc or other data storage medium similar thereto (hereafter referred to as “data storage medium or such” in this paragraph), the court shall require it should be submitted after the data therein are printed out or it is copied within the specified scope of the data stored: Provided, That the data storage medium or such may be seized, when it is deemed substantially impossible to print out or copy the specified scope of the data or deemed substantially impracticable to accomplish the purpose of seizure.

• • • Where the court receives the data pursuant to paragraph (3), it shall inform, without delay, the subject of information defined in subparagraph 3 of Article 2 of the Personal Information Protection Act, of the relevant fact. 

The authorities can seize your computer disc or data storage medium (which include PC, cell phone, USB memory stick, etc.). they shall print the related data and then seize the printed hard copy version of the data. Still, when it is inevitable, they can seize your data storage medium as a whole, take it to their office, and then inspect your data storage medium. 

What Are My Rights When Being Seized In Korea?

To guarantee the rights of criminal suspects to defend themselves and to prevent illegal investigations of the authorities, Korean Criminal Procedure Act prepares certain defensive devices for criminal suspects, such as ‘the right to presence,’ ‘right to be noticed’, prescribed in the Article 121 and Article 122. 

Article 121 (Execution of Warrant and Presence of Parties)

A prosecutor, the criminal defendant, or his/her defense counsel may be present when a warrant of seizure or of search is being executed.

Article 122 (Execution of Warrant and Notice of Presence)

Where a warrant of seizure or of search is to be executed, the persons listed in the preceding Article shall be notified of the date and place of execution in advance: Provided, That this shall not apply in cases where a person prescribed in the preceding Article, clearly expresses his/her will in advance to the court that he/she does not desire to be present or in case of urgency.

Article 129 (Delivery of Inventory of Property)

In case of seizure, an inventory of the seized property shall be made and given to the owner, possessor, or custodian of the property, or to the person corresponding thereto.

These basic defensive rights also are applied to the cases of data storage medium seizure. Especially when the authorities seize the data storage medium as a whole, it is the right of the criminal suspect to be present during the execution of seizure and search in the police office. The criminal suspect can monitor the authorities searching it, and prevent the related data from being modified, changed, and unrelated data from being seized. These are basic defense rights of the criminal suspect, while these could be renounced willingly.

The case of Supreme Court Decision 2020Do10729, Decided November 26, 2020 is the exact case where the criminal suspect had renounced the right to be present. The criminal suspect wrote checked the checkbox with his own handwriting and put his thumbmark on the sealing of the seized evidence (a computer and a cell phone), stating that “I participated in the process of sealing digital devices and storage media, confirmed that there is nothing wrong with the seal, and was informed that I could participate in the process of removing the seal, obtaining the copies thereof, and navigating, duplicating, and printing out digital devices and storage media or the copies thereof, but I will not participate in the above process.” Though the criminal suspect was informed, and had a chance to participate, but renounced the right to be present willingly. 

What Happens To My Attorney’s Rights When Renouncing My Rights? 

This is a tricky question. Your attorney is basically your ‘agent’, which means that they will work for you, will make decisions for you, and will exercise your rights for you. Therefore, in general, if you had abandoned your own rights, then your attorney also cannot exercise your rights for you. However, there are certain rights unaffected by you renouncing your rights and are called ‘inherent rights of the attorney’.

And now we have reached the final question. Is the right to participate (be present) is an inherent right of the attorney? Even if I renounce my right, should my attorney be informed of the search and seizure to defend? The answer of the Supreme Court is yes, as follows:

“Examining the above factual basis in light of the aforementioned legal doctrine, even if the criminal defendant expressed his/her intention that he/she will not participate in the process of navigating, duplicating, and printing out the instant computer to the investigative institution, the investigative institution ought to provide an opportunity to participate in the above procedure by notifying the public defender of the criminal defendant of the date, time, and place of the execution before navigating, duplicating, and printing out the instant computer, corresponding to storage media, in its office on October 30, 2019, but it didn’t. Therefore, the determination of the lower court that the investigative institution, which executed the instant warrant, violated the seizure procedure is just, and in so determining, the lower court did not err and adversely affect the conclusion of the judgment by exceeding the bounds of the principle of free evaluation of evidence in violation of the logical and empirical rules or misapprehending the legal doctrine regarding the nature of the right of the defense counsel to participate.”

In sum, the authorities can seize your phone, computer, or other data storage medium. Still, they must give you a chance to participate during the process of seizure and search. Even if you have renounced your right to be present, the same right of your attorney remains unaffected. Therefore, if your attorney is not informed about the process of search and seizure of your data storage medium, it is an illegal investigation. 

So, even if the police take your phone, don’t panic, and call us. You still have your right to defend yourself. Seoul Law Group is here to help you exercise your right fully.