A roughly four-hour debate unfolded at the Constitutional Court over whether copies of search and seizure warrants must also be handed to witnesses who are not criminal suspects. It was the first public hearing held by the court since the introduction of a system allowing challenges to final court rulings on constitutional grounds.
The court held the hearing on the 21st in its main courtroom on a case filed by Kim Young-soo, a lawyer at the law firm Haengbok, who asked the court to overturn a Supreme Court decision that found the refusal to provide him with a copy of a search warrant lawful.
At issue is whether a provision of the Criminal Procedure Act that exempts authorities from giving warrant copies to search targets who are not suspects violates basic rights including the right to equality, and whether a Supreme Court ruling applying that provision can be overturned.
Article 118 of the Criminal Procedure Act requires that a copy of a search and seizure warrant be given to the subject of the measure when that person is a defendant. Under Article 219, the same applies to suspects at the investigative stage.
Kim argued at the hearing that the provision runs counter to the constitutional principle of guaranteeing citizens' basic rights, calling it the product of incomplete legislation designed for the convenience of investigators. Because searches are carried out openly through the presentation of a warrant, he said, the claim that handing over a copy would leak additional investigative secrets does not hold.
Choi Ho-jin, a law professor at Dankook University who appeared as a witness, said suspects and non-suspect witnesses form an essentially identical group in that both are subject to search and seizure measures, and that there is no reasonable basis for treating them differently on the question of warrant copies.
The Government Legal Service, representing the Ministry of Justice as an interested party, countered that the legislature's intent in limiting who receives copies should be respected, citing the need to maintain investigative confidentiality and the risk of evidence being destroyed. The ministry said that in practice, searches of witnesses often precede searches of suspects, so a leaked warrant copy could allow suspects to destroy evidence. Given the need for investigations to proceed discreetly and the risk of exposing personal information recorded on warrants, it said, there is a reasonable basis for providing copies only to search targets who are suspects. The ministry also argued that the petition should be dismissed on procedural grounds, saying Kim did not pursue a separate constitutional complaint after his request for a referral on the constitutionality of the statute was rejected.
Eight of the court's justices, excluding Chief Justice Kim Sang-hwan, posed questions during the hearing. Justice Kim Hyoung-du displayed an actual search warrant on screen and asked whether simply presenting a warrant allows the person being searched to understand its contents.
Kim said he had asked to photograph the warrant or take notes but was refused. "It is impossible, in just five or 10 minutes of looking at what is presented, to grasp the connection between the alleged offense and the items to be seized," he said.
The ministry acknowledged that practical improvements may be needed, such as allowing continued access to the warrant during the execution of a search. But it argued that the problem of inadequate warrant presentation should be distinguished from the question of making copies mandatory.
Justice Kim also asked whether warrant copies could be provided in a way that does not compromise the discretion of investigations. The ministry said a deferred-delivery arrangement could be considered through legislation, but added that because searches of witnesses often come before those of suspects, the risk of leaking investigative secrets would remain. The absence of such an alternative does not by itself render the current provision unconstitutional, it said.
Justice Oh Young-jun said that searches of digital evidence can sweep up extensive private information unrelated to a case, adding, "There is room to view the protections for third parties as highly inadequate."
Justice Jeong Hyung-sik asked Kim why he had not filed a separate constitutional complaint after his request for a referral on the statute's constitutionality was rejected. Kim replied that because the Supreme Court's decision on his re-appeal ended the appeals process, he judged that the decision itself could be challenged through the new system.
The case stems from July 2022, when a special counsel team led by Ahn Mi-young, investigating the death of Air Force Staff Sgt. Lee Ye-ram, searched Kim's home and his law firm's offices while he was classified as a witness. After his request for a copy of the warrant was refused, Kim filed a quasi-appeal seeking to overturn both the search and the refusal. The Seoul Central District Court in 2023 overturned the search of items including his smartphone but found there was no obligation to provide a warrant copy to a witness who is not a suspect. Both Kim and the special counsel filed re-appeals, but the Supreme Court upheld the lower court's judgment.
The court closed arguments that day and said it would set a ruling date later.
Separately, the court is scheduled to hold a public hearing on the 23rd in a case concerning a fine imposed on GC Biopharma. That case was the first to be referred to the full bench for formal review since the new system took effect.