[보도자료]
아시아인권위원회, 검찰의 민변 변호사 7명 징계개시신청에
대한 비판 성명 발표
“검찰의 징계신청은 민변 변호사에 대한 보복에 불과, 즉각 중단되어야”
1. 지난 11월 11일, 홍콩에 위치한 아시아인권위원회(AHRC: Asian Human Rights Commission)은 최근 검찰의 민변 회원 7명에 대한 대한변호사협회 징계신청개시에 대해 “문명화된 사회에서 변호사들에 대한 보복들”이라는 제목의 성명서(원본 첨부)를 발표했다.
2. 아시아인권위원회는 위 성명서에서 검찰의 민변 회원들에 대한 징계개시신청 중 특히 피고인이 묵비권을 행사하도록 강요했다는 내용으로 징계개시신청을 받은 변호사들과 관련하여, ① 검찰이 인터뷰를 통해서 ‘재판 및 심문과정에서 민변 변호사들의 묵비권 오용이 도를 넘었다’는 취지로 발표를 한 것에 대하여, 이는 오히려 검찰이 수사과정에서 피고의 자백을 받는 것에 집중되어 있었기 때문에, 묵비권을 권유하는 변호사들의 행동이 자백을 받아내는 심문을 방해한다는 태도에서 비롯된 것이란 점, ② 위와 같은 징계가 인정될 경우, 변호인들이 묵비권을 사용할 것을 조언할 수 없게 되어, 묵비권이 법전이나 수업시간에서나 볼 수 있는 조항이 되어 피의자(및 피고인)의 권리를 방해하는 것이 된다는 점을 지적하였다.
3. 또한 아시아인권위원회는 위 성명서에서 국제사회에서가 위와 같은 변호사들에 대한 징계개시신청이 ‘변호사들에 대한 제도적인 보복과 복수를 위하여 공적인 지위를 남용하는 행위’로서 사법 시스템 전반을 약화시킬 수 있는 것으로 보고 있다는 점, 이러한 움직임은 (시대를) 역행하는 것으로 문명화된 사회라면 이러한 비문명적인 관행에 대하여 대응하여야 한다고 밝히기도 하였다.
3. 검찰의 민변 변호사 징계청구에 대한 아시아인권위원회의 비판성명은 검찰의 징계청구 취지가 과거 군사독재시절에 있었던 인권변호사들의 재갈물리기 조치와 다름없다는 것을 지적하고 있다. 민변은 유엔의 인권메커니즘뿐만 아니라 국제사회와의 공조를 통해 검찰의 부당한 징계청구 조치와 추후의 진행상황에 적극 대처할 예정이다.
* 아시아인권위원회 소개: 아시아인권위원회는 아시아의 인권을 모니터링하고, 인권침해에 대한 문서를 작성하고 인권의 보호와 증진을 보장하기 위해 정의와 기구개혁을 주창하는 단체이다. 홍콩 기반의 이 단체는 1984년 설립되었다.
2014. 11. 12.
민주사회를위한변호사모임 국제연대위원회
위원장 장영석 (직인생략)
첨부 1. 성명서 원본
FOR IMMEDIATE RELEASE
AHRC-STM-195-2014
November 11, 2014
A Statement from the Asian Human Rights Commission
SOUTH KOREA: Reprisals against lawyers in a civilised society
Reprisals against lawyers defending the right of the accused are a historical reality of past military and authoritarian regime in South Korea. Those who received either disciplinary punishment or imprisonment, and provided legal advice at that time later earned the label “human rights lawyers”.
As often witnessed in developing countries under military and authoritarian regimes, the public institutions in South Korea were also controlled by the respective executive branches of the time. The concepts of separation of powers, democracy, rule of law, and human rights, which are taken for granted these days, used to be interpreted in a way to serve the executive. The judiciary more or less existed in order to deliver an executive order in a formalistic way. Completely controlled by the executive, the prosecutor’s office was there to prosecute dissenters. Thus, the law was there to serve the rulers, not to protect the people. The role of the public institutions was to intimidate or restrict the rights of people.
Among others, the successful nationwide democracy movement in 1987 triggered the constitutional amendment guaranteeing direct election for the president as well as an independent Constitutional Court to determine the constitutionality of any legislation adopted by the national assembly members. This was the result of reflection regarding the past fear of failure of the independence of the judiciary. However, the discourse on transition for democracy did not go into deeper problems caused by other institutions, such as the police and the prosecutor’s office, that deal with citizens in their daily routine operations.
In a case where the National Intelligence Service sued the current Mayor of Seoul for compensation for damages on defamation, in 2009 the court took the view that the entitlement of a government institution shall be narrowly interpreted. Despite this, a series of lawsuits asking for compensation were still filed, regardless of their result, a tactic known in the US as “strategic lawsuit against public participation”.
On November 3, the Seoul Central District Prosecutor’s Office applied to the Korean Bar Association (KBA) for initiating disciplinary actions against 7 lawyers, all of whom are members of MINBYUN-Lawyers for a Democratic Society, a prominent lawyers’ group, on the reason of being demeaning in their activities of advocacy. The prosecutor’s office recommended that the KBA take administrative disciplinary action against two of the accused: Ms. Kim In-sook, for advising a client to exercise the right to remain silent; and Mr. Jang Kyung-wook, who also advised a client charged with espionage to remain silent during interrogation. According to the prosecutor’s office, the remaining lawyers, Mr. Kwon Young-guk, Ms. Kim You-jeong, Mr. Kim Tae-wook, Mr. Song Young-seop and Mr. Lee Duk-woo, were indicted for alleged obstruction of official duties and their cases are currently pending in court.
Many commentators criticised the prosecutor’s initiatives as an attempt to undermine not only the role of lawyers, but also the basic principle of criminal law. Similarly, it has been denounced as a restriction on lawyers’ ability to properly advise their clients in the interrogation process. Other allegations are that it is a targeted reprisal, since those lawyers representing clients charged with espionage have recently won their cases, and the National Intelligent Agents was exposed for fabricated evidence submitted to the court.
The media interview on November 7 may provide more details for the reason why the prosecutor’s office applied for disciplinary action. In the interview, the prosecutor insisted that a “couple of cases were recently reported that the abuse of those lawyers went too far in the process of interrogation as well as court proceedings.” In a nutshell, lawyers’ advice to their client to remain silent is an act of “going too far”, thus hampering investigation, and it could result in disciplinary action by the Korean Bar Association at the request of the prosecutor’s office.
The media interview also indicates the mindset of the role of prosecutor in the process of interrogation. The intended purpose of investigation is to secure evidence in order to prove one’s criminal liability before an independent institution, the court. However, the interview indicates that the interrogation still focus almost solely on getting a confession from the accused and thus, the defence lawyers’ advice to the accused to remain silence obstructs the interrogation process to get that confession.
In other words, the right to remain silent is one of the rights of the accused, but a lawyer cannot advise their client to actually use the right. Lawyers who advise a client to exercise the right are liable to be sanctioned by the Korean Bar. The practical effect of this is making the right to remain silent a law that can only be found in books or classrooms, but not in practice; it deprives the defendant of knowledge of the law, and prevents them from exercising their right at all.
Consequently, the role of the prosecutor appears to be targeting the defence lawyers, not improving interrogation techniques and the ways to gather evidence to prove criminal liability. Targeting defence lawyers is not relevant to the immediate improvement of the investigation methodology; instead, departing from a systems that puts undue focus on collecting confession and working to improve the how and why of interrogation procedure should be the priority of the justice system.
Such attacks on lawyers must stop as even the perception by the international community that they are an abuse of public position to conduct systemic reprisals or personal vendettas against lawyers can undermine the justice system as a whole. These sort of reprisals are so flagrant, and so unbecoming of civilised society, that they may trigger public outrage like that which occurred as a result of the abuse during the military or authoritarian regimes. South Korea needs to continue to move forward, but attacks like these are a move backwards; a civilised society must respond to this sort of uncivilised practice.
About AHRC: The Asian Human Rights Commission is a regional non-governmental organisation that monitors human rights in Asia, documents violations and advocates for justice and institutional reform to ensure the protection and promotion of these rights. The Hong Kong-based group was founded in 1984.
Read this Statement online http://www.humanrights.asia/
