In the early 2000s, efforts by the prosecution and police to prevent human rights violations by suspects and defendants amid human rights violations that shook our society led to the first official recognition of its illegality and possible human rights violations in late-night investigations, which had been regarded as a practice as a kind of investigative technique until then. The international community has also raised the possibility of human rights violations against Korea’s late-night survey practices and called for improvement of practices and institutional arrangements.
An empirical study of the correlation between false and late-night investigations indicates that there is a high possibility of falsehood due to sleep deprivation, and therefore sleep deprivation is not an effective newspaper technique. Because the inability to sleep impairs the ability to store and utilize information in long-term memory or various cognitive skills. Already in the United States, torture and abuse, including sleep deprivation of terror suspects, have been officially halted by Obama’s executive order. Of course, there is still controversy over the fact that a sleep deprivation newspaper is being carried out on a terrorist, but it is highly suggestive that in cases such as cases, sleep deprivation is regarded as a violation of the legal procedures of the 14th Amendment. Even in Germany, late-night investigations can be seen as a problem because they could infringe on freedom of decision-making and expression, and in Japan, it is highly suggestive that the government should consider imposing a regulation that prohibits late-night investigations in principle, not in managerial oversight, and that it needs to be defined in more detail even if it has provisions such as “unavoidable,” “night” and “long hours”.
In addition, if there is a need or urgency to investigate as an exception to night and late night investigations, it is also necessary to clarify certain restrictions in consideration of international human rights norms even if arrested late at night. In order to respond to various incidents or situations and conduct a proper investigation, it was revealed during the discussion at the National Assembly that there may be a question that it is not appropriate to uniformly decide on the contents of “if there are unavoidable reasons” and “long hours” in this clause.
It should be remembered that the investigation itself could be a forced situation, as seen through the analysis of cases of human rights violations and current status data of suspects’ defendants. In this regard, a concrete approach to the methods and procedures of the suspect’s newspaper is needed and under this approach, specific regulatory measures for nighttime and late-night investigations should be devised. First of all, it is meaningful that the revised Criminal Procedure Act defines the methods and procedures of the suspect’s questioning, thus drawing up and implementing legal procedures for the suspect’s questioning. However, since there is no regulation for night and night investigations, and there is no agreement on this in the current police and prosecution guidelines, it seems that discussions are needed to come up with an alternative plan. As long as night and night investigations are recognized for their illegality and possible human rights violations, it is necessary to present measures to improve the system.
Based on the above findings, this study proposes a principled ban on late-night surveys. This is in the same vein as the recommendations made by the Justice and Prosecutors’ Reform Committee. According to the recommendations of the Justice Ministry’s reform committee, the scope of newspaper time, which is prohibited by pledging to establish and implement the principle of human rights protection investigation, is not to be completely banned from all-night or all-night investigation, but rather to be completely reviewed from the perspective of guaranteeing the right to sleep of suspects and defendants. This study basically agrees with the basic principle that the late-night investigations should be banned in principle in order to guarantee basic rights such as the right to sleep and the right to rest. The scope of late-night surveys, which are prohibited in principle here, other issues of whether to allow nighttime surveys, and what are the scope and reasons for such investigations if they are allowed.
Prohibition of Night and Late-night Investigations
* Instead of sticking to the late-night concept in the dictionary sense, the question of the late-night investigation should be decided by considering that both investigators and suspects are feeling a lot of fatigue due to the late-night investigation, the implementation of the 52-hour workweek and changes in the social environment, such as the so-called war-label, are affecting the investigative practice and the basic rights of human beings, and the limitations of human cognitive ability.
* It is reasonable to ban all investigations after 10 p.m. during the late hours of the night when the suspect newspaper is banned, and to make an exception when there are unavoidable reasons to guarantee his or her right to rest and sleep after 8 p.m. Therefore, it is expected that both the investigator and the suspect can be naturally induced to conduct a suspect newspaper or investigation in the normal working environment and time.
Clarification of the Permissible Cause of Night Investigation
* Even if night-time surveys are exceptionally allowed, it is necessary to drastically reduce the agency’s judgment by specifying reasons more specifically.
* Night investigation without obvious and reasonable reasons should be considered unacceptable as an act of human rights violation. In other words, nighttime surveys should be limited to the extent that one feels tired enough to lose normal cognitive and judgment.
* Specifically, if there is an urgent risk of another person's body or life, and if there is a difficulty in the arrest and evidence collection of accomplices, that is, if there is a concern of evidence destruction or flight, third, if the statute of limitations is imminent, it is reasonable to allow night investigations but exceptionally with the participation of lawyers.
* However, the arrest of a current criminal or emergency arrest of a suspect at night is not an urgent and necessary reason. In this case, the defendant can be detained in custody and investigated within the working hours. In the case of a suspect arrested suddenly at night, it can be difficult to find a lawyer right away, which can result in limiting his or her right to participate.
* Exceptionally permissible is the current offender arrested at night or late at night, especially if he or she requests an overnight investigation or if the suspect requests an overnight investigation after work without detention.
* The reason shall be recorded during the nightly investigation, and the start and end times of the newspaper shall be recorded.
Deletion of Party Consent Requirements
* In the case of late-night surveys, it is not desirable to allow night and late-night surveys on the basis of the consent of the parties, such as the fact that it may be mandatory for a lawyer to be admitted, and that it may be necessary for a lawyer to be admitted.
Ensuring the Right to Rest and Drink During Long-term Surveys
* If a suspect takes a long time to investigate, he/she shall guarantee 8 or more hours of sleep per day and give at least 10 minutes of rest every 2 hours during the investigation.
* If a suspect requests rest during an investigation, he/she should be allowed to take into account the suspect’s health condition and newspaper time.