수사절차에서의 장애인의 인권－신뢰관계자 동석을 중심으로－

Abstract

Human rights of persons with disabilities in criminal interrogation have been improved by amendment of Criminal Procedure Act (CPA) and enactment of Antidiscrimination Act for People with Disabilities (AAD). Specifically, CPA (Art.244-5) allows persons who have reliable relationships with a suspect to sit in company with the suspect with disabilities and AAD has a similar provision (Art.26). However, there is a risk to consider these provisions contradict because they are different in forms and contents. This article studies how to minimize the contradiction and how persons with disabilities can appropriately exercise the right of presence of persons with reliable relationship in interrogation procedure. The conclusions of the article are as follows:Firstly, the provisions of assistants (CPA, Art. 29), presence of persons with reliable relationship (CPA, Art. 244-5) and assistance by guardian and other assistants (AAD, Art. 26, Para. 5) shall be appropriately applied to protect human rights of people with disabilities during interrogation. Secondly, CPA’s provision (Art. 244-5) does not reflect the right of persons with disabilities to assistance by guardian and other assistants prescribed in AAD (Art. 26,Para.5). Therefore, AAD shall be applied directly to criminal procedures for persons with disabilities. In this sense, AAD shall be construed as a special criminal procedure act before the relevant revision is made to CPA. The presidential regulation of AAD (Art. 17,Para.2), which does not allow AAD’s provision (art. para.5) to be applied to criminal procedure, should be ineffective for violation of mandate’s limitation. Thirdly, investigation agencies shall notify before interrogating suspects with disabilities of the right of presence of persons with reliable relationship, as they notify the Miranda Warning. This interpretation is reasonable when the right of presence of persons with reliable relationship is recognized as the right of persons with disabilities. Lastly, interrogation during which the right of presence persons with reliable relationship is not protected or denied shall be illegal so that it can be excluded as evidences in court proceedings.