'Fair trial standards' in document 'Korea - Constitution'

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RELEVANT SECTIONS OF THE IMPLEMENTING LEGISLATION

CHAPTER Ⅱ Rights and Duties of the Citizen

Article 12 [Personal Liberty, Personal Integrity
(1) All citizens enjoy personal liberty. No person maybe arrested, detained, searched, seized, or interrogated except as provided by law. No person may be unished, placed under preventive restrictions, or subject to involuntary labor except as provided by law and through lawful procedures.
(2) No citizens may be tortured or be compelled to testify against himself in criminal cases.
(3) Warrants issued by a judge through due procedures upon the request of a prosecutor have to be presented in case of arrest, detention, seizure, or search: Provided, that in a case where a criminal suspect is a apprehended in flagrante delicto, or where there is danger that a person suspected of committing a crime punishable by imprisonment of three years or more may escape or destroy evidence, investigative authorities may request an ex post facto warrant.
(4) Any person who is arrested or detained has the right to prompt assistance of counsel. When a criminal defendant is unable to secure counsel by his own efforts, he State assigns counsel for the defendant as prescribed by law.
(5) No person may be rrested or detained without being informed of the reason therefore and of his right to assistance of counsel. The family and other related persons, as designated by law, of person arrested or detained shall be notified without delay of the reason for and the ime and place of the arrest or detention.
(6) Any person who is arrested or detained, has the right to request the court to review the legality of the arrest or detention.
(7) In a case where a nfession is deemed to have beenmade against a defendant's will due to torture, violence, intimidation, unduly prolonged arrest, deceit or similar action, or in a case where a confession is the only evidence against a defendant in a formal trial, such a confession may not be admitted as evidence of guilt, nor may a defendant be punished by reason of such a confession.

CHAPTER Ⅱ Rights and Duties of the Citizen

Article 27 [Right to Trial ]

(1) All citizens have the right to be tried in conformity with the law by judges qualified under the Constitution and the law.
(2) Citizens who are not on active military service or employees of the military forces may not be tried by a court martial within the territory of the Republic of Korea, except in case of crimes as prescribed by law involving important classified military information, sentinels, sentry posts, the supply of harmful food and beverages, prisoners of war, and military articles and facilities, and in the case of the proclamation of extraordinary martial law.
(3) All citizens have the right to a speedy trial. The accused have the right to a public trial without delay in the absence of justifiable reasons to the contrary.
(4) The accused are presumed innocent until a judgment of guilt has been pronounced.

RELEVANT ROME STATUTE PROVISIONS

Article 55
Rights of persons during an investigation
1. In respect of an investigation under this Statute, a person:
(a) Shall not be compelled to incriminate himself or herself or to confess guilt;
(b) Shall not be subjected to any form of coercion, duress or threat, to torture or to any other form of cruel, inhuman or degrading treatment or punishment;
(c) Shall, if questioned in a language other than a language the person fully understands and speaks, have, free of any cost, the assistance of a competent interpreter and such translations as are necessary to meet the requirements of fairness; and
(d) Shall not be subjected to arbitrary arrest or detention, and shall not be deprived of his or her liberty except on such grounds and in accordance with such procedures as are established in this Statute.
2. Where there are grounds to believe that a person has committed a crime within the jurisdiction of the Court and that person is about to be questioned either by the Prosecutor, or by national authorities pursuant to a request made under Part 9, that person shall also have the following rights of which he or she shall be informed prior to being questioned:
(a) To be informed, prior to being questioned, that there are grounds to believe that he or she has committed a crime within the jurisdiction of the Court;
(b) To remain silent, without such silence being a consideration in the determination of guilt or innocence;
(c) To have legal assistance of the person's choosing, or, if the person does not have legal assistance, to have legal assistance assigned to him or her, in any case where the interests of justice so require, and without payment by the person in any such case if the person does not have sufficient means to pay for it; and
(d) To be questioned in the presence of counsel unless the person has voluntarily waived his or her right to counsel.

Article 63
Trial in the presence of the accused
1. The accused shall be present during the trial.
2. If the accused, being present before the Court, continues to disrupt the trial, the Trial Chamber may remove the accused and shall make provision for him or her to observe the trial and instruct counsel from outside the courtroom, through the use of communications technology, if required. Such measures shall be taken only in exceptional circumstances after other reasonable alternatives have proved inadequate, and only for such duration as is strictly required.

Article 66
Presumption of innocence
1. Everyone shall be presumed innocent until proved guilty before the Court in accordance with the applicable law.
2. The onus is on the Prosecutor to prove the guilt of the accused.
3. In order to convict the accused, the Court must be convinced of the guilt of the accused beyond reasonable doubt.

Article 67
Rights of the accused
1. In the determination of any charge, the accused shall be entitled to a public hearing, having regard to the provisions of this Statute, to a fair hearing conducted impartially, and to the following minimum guarantees, in full equality:
(a) To be informed promptly and in detail of the nature, cause and content of the charge, in a language which the accused fully understands and speaks;
(b) To have adequate time and facilities for the preparation of the defence and to communicate freely with counsel of the accused's choosing in confidence;
(c) To be tried without undue delay;
(d) Subject to article 63, paragraph 2, to be present at the trial, to conduct the defence in person or through legal assistance of the accused's choosing, to be informed, if the accused does not have legal assistance, of this right and to have legal assistance assigned by the Court in any case where the interests of justice so require, and without payment if the accused lacks sufficient means to pay for it;
(e) To examine, or have examined, the witnesses against him or her and to obtain the attendance and examination of witnesses on his or her behalf under the same conditions as witnesses against him or her. The accused shall also be entitled to raise defences and to present other evidence admissible under this Statute;
(f) To have, free of any cost, the assistance of a competent interpreter and such translations as are necessary to meet the requirements of fairness, if any of the proceedings of or documents presented to the Court are not in a language which the accused fully understands and speaks;
(g) Not to be compelled to testify or to confess guilt and to remain silent, without such silence being a consideration in the determination of guilt or innocence;
(h) To make an unsworn oral or written statement in his or her defence; and
(i) Not to have imposed on him or her any reversal of the burden of proof or any onus of rebuttal.
2. In addition to any other disclosure provided for in this Statute, the Prosecutor shall, as soon as practicable, disclose to the defence evidence in the Prosecutor's possession or control which he or she believes shows or tends to show the innocence of the accused, or to mitigate the guilt of the accused, or which may affect the credibility of prosecution evidence. In case of doubt as to the application of this paragraph, the Court shall decide.