Introduction - Detention
Detention of the accused means limiting the accused’s liberties to ensure that he/she appears in a criminal trial, to help findings of fact by preventing destruction of evidence, and to enforce affirmed penalty. It is to secure the operation of the criminal procedure and enforcement of penalty.
Detention and Warrant Requirement
To detain the accused, the prosecutor must apply for a warrant to the judge and present the warrant, that has been issued according to due procedure by the judge, to the accused.
If there is considerable reason to believe that the accused is guilty and in cases where the accused does not have a fixed residence, there is a risk of destruction of evidence, or the accused flees or may flee, the prosecutor may detain the accused upon issuance of the warrant of detention from the judge of competent court. Also, the law enforcement officer may request the prosecutor to apply to the judge of competent court for issuance of the arrest warrant, and upon obtaining the warrant, the law enforcement officer may detain the accused. But, in cases where the subject to a penalty of fine, detention, or assessment of 500,000 KRW or less, the accused may be arrested only if he does not have a fixed residence.
Exception to the Warrant Requirement
If there is considerable reason to believe that the accused is guilty of a crime which is subject to capital punishment, life imprisonment, or imprisonment of 3 years or more and that there is a risk of flight, destruction of evidence, or in an urgent case, the prosecutor or the law enforcement officer may arrest the accused without a warrant.
The offender who is in the act of committing a crime or has just committed a crime is referred to as a flagrant offender. Any person, including the law enforcement agency, may arrest a flagrant without a warrant. Where a person other than a prosecutor or judicial police officer arrest a flagrant offender, he/she shall immediately turn over the offender a prosecutor or judicial police officer.
If the law enforcement agency arrests an accused by urgent arrest or arrested a flagrant offender, the agency shall apply for a detention warrant from a judge within 48 hours of the capture. If the warrant has not been applied or has not been issued within that time, the accused must be released immediately.
When an accused is arrested by urgent arrest, the application for arrest warrant shall be made without delay. Applying for a warrant within 48 hours does not automatically satisfy the meaning of the “without delay.”
Enforcement of detention warrant
A warrant of detention is enforced by a judicial police officer under the direction of a prosecutor. A warrant of detention issued against the criminal suspect who is in prison or detention shall be executed by a correctional officer under the direction of a prosecutor.
To execute a warrant of detention, the criminal suspect must be notified of the gist of charge, the cause for detention, and the right to appoint a lawyer. The criminal suspect must also be given an opportunity to explain his actions and the warrant of detention must be presented to him/her. In case of urgency, execution is possible even if the warrant of detention is not in hand but upon completion of the execution, the warrant of detention shall be shown as soon as possible.
When the criminal suspect is detained, his/her defense counsel shall be notified of the gist of facts concerning the name of of offense, the time and place of detention, the gist of charge, and the cause for detention. If the criminal suspect does not have a defense counsel, the person disginated by the criminal suspect from among the criminal suspect legal agent, spouse, lineal relation, or siblings designated shall be informed of the aforementioned facts of the case and of the facts that he/she may select a defense counsel.
When a senior judicial police officer detains a criminal suspect, the detention lasts for 10 days or less and no extension is allowed. If a prosecutor detains a criminal suspect for 10 days from the date the prosecutor received the suspect from a senior judicial police officer. Where it is deemed that there is a good reason to continue investigation, upon request of a prosecutor, and only one extension shall be granted by the judge not exceeding 10 days.
The period of detention by court is 2 months and the periods for arrest, custody, or confinement before the institution of public trial are not added to the computation of the period of detention. The first day of detention is considered one full day irrespective of the number of hourse involved, and even if the last day is Saturday or a holiday, it is counted towards the period of detention. While the period of detention is 2 months, if there is a specific need to continue the detention, then it may be extended up to 2 times at each instances, for periods of 2 months each time. In the appeals to the Supreme Court, however, if additional deliberation is necessary due to the examination of evidence requested by the defendant or the lawyer, or due to the submission of documents that further expounds on the reason for appeal, the arrest period may be extended for a third time. Therefore, the possible periods of detention at each instances are 6 months for first instance, and four months to six months for each of the appeal and the supreme court appeal. The total period of detetion could be from one year and two months to one year and six months.
Restrictions on Re-Detention
Any person who is detained but later released by a prosecutor or senior judicial police officer shall not be again arrested in connection with the same crime unless other important evidence is found.