Tongil news ( *meaning Unification News)
FOCUS: What is the meaning of an application for the trial to test
the unconstitutionality of the Protection of Communication Secrets Act
and how will be the trials in the future?”
Nov. 29, 2009
Koh, Sung-Jin (firstname.lastname@example.org)
The Seoul Central District Court totally embraced the appeal for the request of the trial on the issue of the unconstitutionality of the Protection of Communication Secrets Act, submitted by the Pan-Korean Alliance of Reunification (PKAR), South Korea branch on Nov. 27.
In the sense that it was raising the issue on the potentials of the unconstitutionality of the existing investigation custom by the inspection institutions, related to the case charged of the National Security Law, its significance is big and its influence in the trials in the future seem to be large.
The No. 25, Criminal Department of the Seoul Central District Court (Yoon Kyung, Chair judge of the department) saying, “ The clause of the act, applied to this case brings up the great suspicion that it violates the Constitution by overridingly infringes the freedom of the secret in communication and of privacy, committing against the principal of the prohibition of the excessiveness [of eavesdropping], elucidated in the clause NO. 2, article NO. 37 of the Constitution.” permitted the bail out of Lee Kyu-Jae, Lee Kyeong-Won and Choi Eun-A, the accused arrested, accepting the application for the appeal of the trial on the issue of the unconstitutionality of the Protection of Communication Secrets Act, submitted by the lawyers [on behalf of the PKAR] on last Nov. 3.
The court judged like above, in its decision statement, because in the [current] Protection of Communication Secrets Act: 1. The applied areas of the crimes targeted, under the measure for the limitation of communication, are too many, with more than 100: 2. The measure for the limitation of communication, despite the principal that it should be practiced within the limitation measured by the prosecutors [only] in the limitedly defined period, had been allowed to police etc. for a long time without limitation, being overly excessive, compared to the law clause examples of the Acts in the foreign countries: 3. The procedure for the permission for the [eavesdropping] in the extended period is [too] simple. For example, it did not require the [listing of] additional reasons, different from the case of the re-application [for eavesdropping on the targeted], thus had the potentials to infringe the essential parts for the freedom in privacy and communication, [expressed] in the Constitution.
Acceptance of the application for the Constitutional Court Hearing to Test the Constitutionality, in the National Security Law Case, is the Unprecedented:
Various Fields Welcome It As the “Historical Event” That Ringed the Warning Bell against the Law-Evasive Investigation(s).
It is for the first time that the application for the Constitutional Court hearing to test the constitutionality, related to Protection of Communication Secrets Act, was accepted. While it is a rare case to apply for the Constitutional Court hearing to test the constitutionality [of an act], in the trial of the National Security Law, it is very unusual that the department of judges embrace it, stopping the trial and releasing the accused in bail out.
Kwon Oh-Hun, the Honorary Chairman of the Sponsoring Committee for the Political Prisoners, who has watched the trials brought under the National Security Law for decades, saying, “It was for the first time in my life to see the application for the Constitutional Court hearing to test the constitutionality [of an act] in a National Security Law case was ever accepted and the restrained were released” told that “ [It is] a very epochal-making event, a historical [event].”
Chairman Kwon, following that, saying “It was braking the investigation against the self-reliance unification movement”, evaluated it “would bring into the tremendous influence not only in the National Security Law case but also in all security cases.”
Attorney, Chang Kyeong-Wook, one of the members of the attorney panel [on behalf of the PKAR], saying “ The decision of the court this time says that the investigation institutes should not monitor but collect information of [the targeted]”, did not hide his surprise, saying it was “an historical event that ringed the warning bell against the anti-human right & law-evasion behaviors [by the investigative institutes].”
Secretary Lee Kyeong Won Questioned on the Unlimited Eavesdropping by the National Intelligence Service:
It Would Be Likely That the Voice for the Measure for Limitation in the National Assembly Reform of the Protection of Communication Secrets Act, Would Be Heightened.
The application for the Constitutional Court hearing of Protection of Communication Secrets Act first began with the question by Mr. Lee Kyeong-Won, the Secretary of the PKAR, [who had been arrested] and had been eavesdropped in full spectrum of phone, fax, internet line for six years, by the National Intelligence Service (NIS) etc.
Secretary Lee, saying that he “ had known that the wiretapping of phone & fax had been done against the former Secretary, but became to finally confirm it during the trial process”, told he “became to think it was the severe violation of human rights, asked people to send the documents & reference materials, related to Protection of Communication Secrets Act, and perused them in the detention center.”
Attorney Cho Young-Sun, after the Court decision on Nov. 27, saying that, “It was the part that has largely been unconcerned by the attorney panel itself because of its long time inertia”, told himself was, “frankly not so sure whether the part would be accepted [by the court] even in the beginning when Secretary Lee raised the issue”.
The civil social organizations have poured the concern about the hidden eavesdropping by the investigative institutes such as the NIS but could neither raise the legal issue nor counter against it. It is because, even though the investigative institutes have the duty to inform the eavesdropped of the fact of eavesdropping, if they do not inform, there is no way to confirm the fact of eavesdropping.
In fact, it is in most cases, as in the cases of the Practice Solidarity of the South Korea-North Korea Joint Statement and the PKAR, that the accused are informed of the fact of eavesdropping, from the judges, during the process of trials.
In such situation, the legal response against the excessive eavesdropping by the investigative institutes would mostly be little concerned with, during the arguments on the major charges in trials.
However, in this case, the illegal investigative custom by the NIS that had extended the period of eavesdropping [on the accused] for 14times, 2months each, was braked to stop. It is the judgment of the Court that it was the eavesdropping not for the collection of the proofs but for the routine monitoring.
As of that matter, it would be likely that there would be the heightened voice that demands the fundamental measures that could limit the ways of the unlimited eavesdropping by the investigative institutes, in the [discussion] of the reform of the Protection of Communication Secrets Act, being processed by the National Assembly.
The Trials Will Be Stopped For the Unlimited Period Until the Decision of the Constitutional Hearing…”Perhaps More Than A Year”:
The Decision on the Unconstitutionality of the Act on the Prohibition of Night Rally, Last Year, Has Taken 11 Months, As Well.
The [Constitutional] Court hearing for the test of the unconstitutionality of an Act happens if a court makes a decision for the test of the (un)constitutionality, either by the application by the applicant or by the direct right of the court. If the official document form on the decision for the test of (un)constitutionality in the Constitutional Court hearing is sent to the Constitutional Court, through the Supreme Court, the Constitutional Court registers it and processes the procedures of the trial on it.
When the court applies for a trial for the constitutionality test of an act, the trial of the very case [connected to an act] is stopped, until the decision of the (un)constitutionality by the Constitutional Court is made. Even though the time to final decision is not defined, it is usually guessed for near a year to be taken so the trial on the PKAR [accused] would be stopped without defined time.
In October, last year, the decision of the unconstitutionality on the application, for the test of (un)constitutionality of the article No. 10 and clause No. 1 in article 23, in the Act on the Rally that prohibited the outside rally in the night, only came out in late this September, after 11 months have passed.
Attorney Cho Young Sun said, “ [I am] not so sure when the trial would open. [I think] we need to wait for at least more than a year. Even though it might take rather sooner because the issue is simple, I am expecting that it would be about a year”.
The Court said, “ Depending on the Issue of (Un)constitutionality, the issue of adoption of the [collected] Proofs and the Decision of Guilty or No Guilty could differ”.
Generally, the application for the test of constitutionality of an act is limited only when the issue of the (un)constitutionality of the targeted clauses in an act becomes the premise for the trial on the related case. In other words, it means, the issue of the (un)constitutionality of the measure for the limited communication, could seriously affect the result of the PKAR trial.
The court saying that “ The proof materials collected on the basis of the clauses of the Act, such as on the measure for the limitation of communication, look as the important proofs of the activities, traces and propositions of the accused at the time and of the content that supports the described [lists] in the accusation charges, such as the content of the meeting with the North Korean agent, in this case”, announced that “The basing Act with the measure for the limitation of communication, which was applied with extension period [of eavesdropping against the accused], could lose its effectiveness, depending on the issue of the unconstitutionality… Since that could affect the court decision whether the court would take the materials as proofs or not, and as a result of it, the decision of guilty or no guilty [of the accused] could differ in this case, as well. Therefore the issue of the unconstitutionality of the clauses of the Act becomes the premise of the trial of this case.”
In other words, while the prosecutors’ main accusation charges in the PKAR trial are ‘ infiltration & escape’ and ‘ meeting & communication [with enemy]’, the court sees that the collected proof material, according to the extended measure for the limitation of communication, could influence to prove the charge against them.
It is because, if the measure for the limitation of communication is decided as unconstitutional in the Constitutional Court, the materials collected according to the measure lose its effectiveness and can not be adapted as the proofs.
Cho Young Sun, “ If the Decision of the Unconstitutionality Is Made, the Aspects of the Trial Would Be Largely Differentiated.”
Lee Kyeong Won Has “a Thought That the Decision of the Unconstitutionality Will Not Largely Affect for the Prosecutors to Prove the Main Charges” and Says, He Would “ Focus on Proving the Legal Activities of the PKAR.”
Regarding [the judge’s remarks], it will be like that the future of the PKAR trial will be largely differentiated [depending on the decision]. The decision of the unconstitutionality would work not as a small factor in the trial.
Attorney Cho saying that, “If the decision of unconstitutionality is made, the proof materials for the main charges become nullified and following it, the aspect of the trial could be largely differentiated” expressed his expectation that that he could even prospect of [the court decision of] no-guilty [of the PKAR accused] in the best case.”
Kwon Oh-Hun, Honorary Chairman, saying that “ If there is the decision of unconstitutionality, the prosecutors may find the ways to re-compose of the accused charges”, predicted that “ The focus of the trial might be on the part of the issue of the enemy-benefiting propensity of the PKAR.”
Secretary, Lee Kyeong-Won, saying he would concentrate on informing the rightness of the PKAR activities, beyond the issue of the (un)constitutionality of the measure for the limitation of communication, looked not to put the big meaning on the decision of the (un)constitutionality, despite aligning his opinion on prospect same with that of Kwon, Honorary Chairman,
Secretary Lee, saying “The issue of the unconstitutionality of the Protection of Communication Secrets Act, could not so be so much applied to the trial. It seems it will be only a part”, predicted that “ Even though the effectiveness of the proof materials may be nullified, it would not greatly affect the decision of the trial.”
Saying, “The prosecutors seem to think there is no problem to prove the main charges, even if the measure comes out as unconconstitutional in the [Constitutional Court decision] , because [their] proof material for the charges of ‘meeting & communication [with the enemy] is such as the Joint statement between the South and North Korea, which is openly informed in the homepage site” and “ Also because the proof materials related to ‘infiltration & escape’ “ that are in the accusation documents” were acquired by the confiscation & search of the emails, it looks it is their position that the issue of unconstitutionality is not a matter.”
Following that, [reputedly] saying, “If all the talks heard from the North Koreans are considered as the order-receiving, [according to the logic of their] charge of ‘meeting & communication [with the enemy]”, how the talks by our side can be explained?” told, “ All those appear at the meeting record at the time and [I] would focus on proving the parts that the activities of the PKAR are legal exchange, with the permission by the both authorities of the South and North Korea.”