The Constitutional Court will hold its first public hearing on the 21st since the introduction of a system allowing finalized court rulings to be subject to constitutional review.
At 3 p.m. that day, the court will hear oral arguments in a case filed against the Supreme Court by Kim Young-soo, an attorney at Daeryun Law Firm, who argued that he was not given a copy of a search and seizure warrant during the investigation into the death of Air Force Staff Sgt. Lee Ye-ram.
At issue is whether a court decision — holding that investigators need not provide a copy of a warrant when the person subject to search is not a suspect — violates the right to equality and other constitutional rights. A quasi-appeal is a procedure in which a party objects to an action by investigators and asks a court to cancel or modify it.
Kim filed a quasi-appeal seeking cancellation of both the search and seizure and the refusal to provide a copy of the warrant, saying that in July 2022 the special counsel team led by Ahn Mi-young searched his home and office in connection with Lee's death without giving him a copy of the warrant, even though he was classified as a witness.
The Seoul Central District Court in 2023 canceled the search and seizure but ruled that investigators had no obligation to provide a copy of the warrant because Kim was a witness rather than a suspect. The ruling held that investigators are not required to hand over a copy of a warrant when executing a search against a third party who is not a suspect. Both Kim and the special counsel appealed again, but the Supreme Court upheld the lower court's decision.
Article 118 of the Criminal Procedure Act requires that a search and seizure warrant be presented to the person subject to it, and that a copy be provided if that person is a defendant. Article 219 of the same law applies these provisions to searches and seizures conducted by investigators.
Kim filed the constitutional challenge, arguing that the Supreme Court's decision interpreted and applied the Criminal Procedure Act provisions on who must receive a copy of a warrant in an unconstitutional manner, infringing on his right to equality, his right to privacy and his right to trial. "It discriminates without reasonable grounds between those subject to search who are suspects and those who are not, and therefore violates the right to equality," Kim said. His argument is that third parties such as witnesses, who face no criminal allegations, should receive stronger protection than suspects, yet the current system affords them less protection without reasonable justification.
The Constitutional Court recently asked Kim, the petitioner; the Korean Bar Association and the justice minister, as interested parties; and Choi Ho-jin, a professor of law at Dankook University, as an expert witness, to appear at the hearing.
The Ministry of Justice, an interested party, said through its counsel, the Government Legal Service, that "it is for the legislature to decide to whom copies of warrants must be provided," adding that there is a fundamental difference between suspects and third parties in terms of guaranteeing the right to defense, and that providing copies of warrants to people who are not suspects could compromise the confidentiality of investigations.
The Korean Bar Association rebutted the ministry's position in a written opinion. "The need to maintain confidentiality in an investigation diminishes significantly from the moment a search and seizure warrant is presented," the association said. "In cases of unlawful searches, problems must be pointed out and corrections demanded on the spot, but human memory has its limits, and simply presenting a warrant is not enough to protect the rights of those subject to search who are not suspects."
Because the Constitutional Court did not ask the courts to appear at this hearing, no court officials are expected to attend. The courts are also under no obligation to do so.