Prosecutors Oppose Pre-Examination of Search Warrants... "Selective Examination Raises Fairness Concerns"

Daegum Collects Opinions from 66 Prosecutors' Offices Nationwide... Ministry of Justice Submits Opposition
"No Precedent in Major Advanced Countries like the US... Makes Investigation Difficult"

The prosecution submitted a position to the Ministry of Justice stating that the Supreme Court's proposed 'pre-hearing system for search and seizure warrants' is nonsensical.

On the 7th, the Supreme Prosecutors' Office collected opinions from 66 prosecution offices nationwide and delivered the prosecution's final opinion on the Supreme Court's legislative notice of the amendment to the Criminal Procedure Rules to the Ministry of Justice.

The prosecution criticized the court's face-to-face hearing system for search and seizure warrants, expressing significant concerns about potential delays in investigations. In the opinion letter sent to the Ministry of Justice, the prosecution stated, "This system is unprecedented in major advanced countries, raising concerns that investigation details could be exposed to suspects in real time, and that conducting a separate hearing procedure alone could considerably delay investigations." They sharply criticized, "Introducing the face-to-face hearing system through Supreme Court rules rather than law violates the constitutional principle that criminal procedures must be stipulated by law."

They further expressed concern, "There is a possibility that hearings will only be conducted for corruption cases involving those in power and conglomerates, and selective hearings could cause fairness controversies."

Additionally, the prosecution voiced concerns about restrictions on the execution methods of electronic information search and seizure warrants. They stated, "Limiting search methods such as keywords when issuing search and seizure warrants for electronic information makes criminal investigations extremely difficult and is unprecedented in major advanced countries like the United States." They explained, "If the file names subject to seizure contain slang or typos, or in the case of images, videos, or PDF files, it is impossible to search using pre-set keywords."

They added, "Even for internet browsing history or Google Timeline, it is technically impossible to search only by keywords or file extensions," and warned, "Restricting execution methods of electronic information search and seizure warrants through keyword limitations makes it difficult to secure evidence related to the suspect's facts, hindering the discovery of substantive truth and weakening crime response capabilities."

Furthermore, the prosecution raised issues regarding the expansion of suspects' participation rights in the execution of search and seizure warrants. They stated, "The amendment granting participation rights in search and seizure to suspects, lawyers, or those subject to seizure could be interpreted as granting participation rights to suspects who are not the custodians or managers of the seized items." They warned, "If suspects are allowed to participate in the search and seizure of a sexual crime victim's mobile phone, the suspect could learn all contents stored on the victim's phone, leading to evidence exposure and significant concerns about evidence tampering and secondary harm to the victim."

Earlier, on the 3rd of last month, the Supreme Court's Judicial Administration Office announced a legislative notice for the 'Partial Amendment to the Criminal Procedure Rules,' introducing a new Article 58-2 (Hearing on Search and Seizure) that establishes a pre-hearing system allowing the court to question suspects or their lawyers before issuing search and seizure warrants.

The newly established Article 58-2 (Hearing on Search and Seizure) Paragraph 1 states, "When the court deems it necessary, it may set a hearing date before issuing a search and seizure warrant to question persons who have information necessary for examining the requirements of search and seizure." Paragraph 2 of the same article stipulates, "The prosecutor may attend the hearing under Paragraph 1 and present opinions."

As concerns grew following the disclosure of the amendment details, the Supreme Court explained that the phrase "persons who have necessary information" in the amendment refers typically to investigative agencies or informants, and suspects and lawyers would only be questioned in very exceptional cases considering investigation confidentiality.

Additionally, the amendment introduces a new subparagraph 2-2 to Article 107 (Matters to be Stated in the Application for Search, Seizure, and Inspection Warrants), requiring that applications for search and seizure warrants related to electronic information, such as mobile phones, include the 'keywords' to be used for analysis.

Article 107 Paragraph 1 states, "The application for a warrant for search, seizure, or inspection must include the following matters." The newly added subparagraph 2-2 specifies, "The following items (applicable only when the seizure target is electronic information)," including in item (a) "the information storage medium where the electronic information is stored," and in item (b) "the keywords to be used for analysis, the target period for the search, and the execution plan" as required contents of the warrant application.

The Judicial Administration Office has announced that it will accept opinions on the amendment until the 14th of this month. The office also specified in the amendment's supplementary provisions that the rules will be enforced starting June 1.

This content was produced with the assistance of AI translation services.