The Duty to Notify an Arrested Foreigner of Consular Notification Rights (in South Korea)
I. The Big Picture
1. Relevant Statutes and Conventions
The basis for the duty to notify of consular notification rights when arresting or detaining a foreigner is as follows.
- Vienna Convention on Consular Relations, Article 36(1)(b): where a national of the sending State is arrested, taken into custody, or detained, the competent authorities of the receiving State must, without delay, inform the person concerned of the right to request that notification be given to the consular post.
- Police Investigation Rules, Article 91(2), (3): when arresting or detaining a foreigner, a judicial police official must inform him that he may freely meet and communicate with a consular officer, and may request that the fact of the arrest or detention be notified to the consular post; and where the foreigner requests notification, the official must notify the relevant consular post without delay.
- Human Rights Protection Investigation Rules, Article 62: when arresting or detaining a foreigner, the official must inform him that he may freely meet and communicate with a consular officer of his home country, and may request that the fact of the arrest or detention be notified to the consular post (Human Rights Protection Investigation Rules, Article 62(1)).
2. The Key Supreme Court Judgment: Supreme Court, Apr. 28, 2022, 2021do17103
A. Facts
While a judicial police officer arrested the defendant—a foreigner of Indonesian nationality—as a flagrant offender for violating the Immigration Act, he did not, without delay, give notice of the consular notification right and the like, even though it was clear the defendant was a foreigner. Thereafter, a voluntary-submission seizure of urine and hair, confirmation of a positive reaction for a narcotic (MDMA), and the defendant’s confession and detention took place; the defendant first learned of the possibility of consular notification at the prosecutorial-investigation stage, but did not himself request notification.
B. The holding
1) Violation of the duty to notify of consular notification rights = unlawfulness of the arrest/detention procedure
The Supreme Court held as follows.
If an investigative agency, in arresting or detaining a foreigner, did not without delay give notice that there is a consular notification right and the like, the arrest or detention procedure violates Article 36(1)(b) of the Convention—which has the same effect as domestic law—and is unlawful.
That is, it made clear that a violation of the duty to notify of consular notification rights makes the arrest/detention procedure itself unlawful.
2) Recognition of the exception to the exclusionary rule
However, the Supreme Court regarded the case as falling within the exception to the exclusionary rule and recognized the admissibility of evidence collected after the arrest/detention. The grounds were as follows.
- The defendant, although he learned of the possibility of consular notification at the prosecutorial-investigation stage, did not request notification, so it is hard to see that he would have sought consular assistance even had he been given notice.
- The defendant was, at the time of arrest, informed in Indonesian of the reason for arrest, the opportunity to explain, the right to appoint counsel, and the like, and confessed with the assistance of an interpreter.
- It cannot be regarded that substantive disadvantage was brought about to the defendant by the failure to give notice of the consular notification right.
Accordingly, the court judged that—the content and degree of the procedural violation not being grave, and it not being possible to regard the procedural provision as having essentially infringed the right or legal interest of the foreign defendant it seeks to protect—the evidence collected after the arrest/detention and the evidence based on it could be used as evidence for a finding of guilt (Supreme Court, Apr. 28, 2022, 2021do17103).
3. Lower-Court Judgments
A. Seoul Central District Court, Dec. 12, 2017, 2017gadan25114 (damages). A foreign plaintiff of Nigerian nationality was detained when a detention warrant was executed due to another person’s misappropriation of his name, and the officers and prosecutor did not notify the plaintiff of the consular notification right and consular access right—to notify the Nigerian embassy of the detention and contact a consular officer. The court found: under Article 36(1)(a), (b) of the Vienna Convention on Consular Relations, the receiving State must without delay inform an arrested or detained foreigner of the consular notification right and consular access right; these rights are properly regarded as the individual right of the national concerned; and the failure of the defendant’s officials to perform the duty to notify amounts to an unlawful act in the course of duty. The court recognized consolation money of KRW 7,000,000, but—after deducting criminal compensation—ordered payment of KRW 5,401,369.
B. Seoul Western District Court, Nov. 2, 2018, 2018gohap124 (special obstruction of official duties causing injury, etc.). After a foreign defendant of U.S. nationality was arrested as a flagrant offender, an officer notified the consular section of the U.S. embassy of the arrest by electronic fax around 4:07 p.m. on the day of arrest. The defendant argued that lawful notification to the U.S. embassy (consul) had not been made. The court rejected the argument, finding that the defendant had a telephone call with the U.S. embassy around 3:53 p.m. on the day of arrest, the officer notified the embassy’s consular section of the arrest by electronic fax around 4:07 p.m. that day, and an embassy staff member visited and met the defendant the next day—so the consular-notification procedure and other procedures related to the physical custody of a foreigner appear to have been carried out appropriately.
C. Seoul Administrative Court, Dec. 15, 2023, 2022guhap2626 (cancellation of a reprimand disposition). In a case where an officer (the plaintiff), while arresting Chinese-national international students as flagrant offenders, did not perform procedures such as giving notice of the Miranda rule or the consular access-and-communication right in Chinese using a polyphone, the issue was whether the defendant’s reprimand disposition against the plaintiff was lawful. The court judged the reprimand lawful, finding that—although Article 91(2) of the Police Investigation Rules requires giving notice of the right of access and communication with a consular officer and the right to request notification to the consular post when arresting or detaining a foreigner—the plaintiff’s failure to perform this amounts to a violation of the duty of good faith and the duty of obedience.
D. Busan High Court (Changwon), Apr. 19, 2023, 2022no329 (sexual-violence offense, etc.). A case in which a foreign defendant was given notice of the consular notification right upon detention and, at his request, the investigative agency notified the consular post; the defendant argued an infringement of the right to consular assistance. The court judged that—the agency having given notice of the consular notification right upon detention and notified the consular post at the defendant’s request—it could not be regarded as having infringed the right to consular assistance set by the Vienna Convention on Consular Relations.
4. Comprehensive Summary of the Judgments
| Court | Judgment | Notice of consular right | Conclusion |
|---|---|---|---|
| Supreme Court | 2021do17103 | Not given | Procedure unlawful, but exception to the exclusionary rule recognized → admissibility maintained |
| Seoul Central Dist. Ct. | 2017gadan25114 | Not given | State’s unlawful act recognized; consolation money awarded |
| Seoul Western Dist. Ct. | 2018gohap124 | Appropriately notified | No infringement of the right to consular assistance |
| Seoul Administrative Ct. | 2022guhap2626 | Not given | Reprimand of the officer lawful |
| Busan High Ct. (Changwon) | 2022no329 | Appropriately notified | No infringement of the right to consular assistance |
5. Practical Points
According to Supreme Court, Apr. 28, 2022, 2021do17103, failure to give notice of the consular notification right makes the arrest/detention procedure unlawful, but that alone does not immediately exclude the admissibility of subsequently collected evidence. Whether to exclude unlawfully collected evidence is judged by considering comprehensively: (1) the content and degree of the procedural violation; (2) whether substantive disadvantage arose to the defendant; and (3) the effect on the investigative agency’s collection of evidence or on the trial procedure (Supreme Court, Apr. 28, 2022, 2021do17103).
Meanwhile, according to the interpretation of the International Court of Justice (ICJ), notice of the consular access right need not necessarily be given immediately upon arrest, but the view is that this right must be notified as soon as it is recognized that the arrested person is a foreigner, or there is a ground to think he is a foreigner.
II. The Rules on the Duty to Notify of Consular Notification Rights: Their Relationship, Hierarchy, and Priority of Application
1. The Current State and Legal Character of the Relevant Rules
A. Article 91 of the Police Investigation Rules
The Police Investigation Rules are an Ordinance of the Ministry of the Interior and Safety (a ministerial ordinance), amounting to a legal order issued by the Minister of the Interior and Safety—not by the Commissioner General of the National Police Agency. Article 91(2) of those Rules requires a judicial police official, when arresting or detaining a foreigner, to give notice of the right of access and communication with a consular officer and the right to request notification to the consular post; and paragraph 3 requires, where the foreigner requests notification, notification to the relevant consular post without delay (Police Investigation Rules, Article 91(2), (3)).
B. Article 62 of the Human Rights Protection Investigation Rules
The Human Rights Protection Investigation Rules are an Ordinance of the Ministry of Justice (a ministerial ordinance), a legal order whose main objects of application are prosecutors and other personnel engaged in investigation work belonging to the Ministry of Justice. Article 62(1) of those Rules requires that, when arresting or detaining a foreigner, notice be given of the right of access and communication with a consular officer of his home country and the right to request notification to the consular post; and paragraph 2 requires, upon a request for notification, notification to the relevant consular post without delay (Human Rights Protection Investigation Rules, Article 62(1), (2)).
2. The Common Higher Basis of the Rules: Article 36 of the Vienna Convention
The common highest basis of the above rules is Article 36(1)(b) of the Vienna Convention on Consular Relations (Treaty No. 594). This Convention is a treaty that entered into force for the Republic of Korea on April 6, 1977, and has the same effect as domestic law. The Supreme Court made this clear, holding that if an investigative agency, in arresting or detaining a foreigner, does not without delay give notice of the consular notification right and the like, the arrest/detention procedure “violates Article 36(1)(b) of the Convention—which has the same effect as domestic law—and is unlawful” (Supreme Court, Apr. 28, 2022, 2021do17103).
3. The Legal Hierarchy of the Rules
The legal hierarchy of the above rules may be organized as follows.
| Norm | Form | Issuing authority | Legal character | Object of application |
|---|---|---|---|---|
| Vienna Convention, Article 36 | Treaty | — | Same effect as domestic law | All investigative agencies |
| Police Investigation Rules, Article 91 | Ordinance of the Ministry of the Interior and Safety | Minister of the Interior and Safety | Legal order | Judicial police officials |
| Human Rights Protection Investigation Rules, Article 62 | Ordinance of the Ministry of Justice | Minister of Justice | Legal order | Prosecutors and other Ministry of Justice investigation personnel |
| (Former) Criminal Investigation Rules, Article 241, etc. | National Police Agency directive, etc. | Commissioner General of the National Police Agency, etc. | Administrative rule | Police officers, etc. |
The Vienna Convention sits at the top; below it sit the Police Investigation Rules and the Human Rights Protection Investigation Rules, which are legal orders; and the former Criminal Investigation Rules and other directives and established rules sit lower than those. The Police Investigation Rules and the Human Rights Protection Investigation Rules are both ministerial ordinances and thus legal orders of equal rank, but their objects of application differ.
4. The Relationship Between the Rules and the Distinction of Their Objects of Application
A. The principle of distinction by object of application
Article 91 of the Police Investigation Rules applies to judicial police officials, and Article 62 of the Human Rights Protection Investigation Rules applies to prosecutors and other Ministry of Justice investigation personnel. Accordingly, in principle, because the two rules have different objects of application, no conflict problem arises.
B. Handling where there is a substantive discrepancy in content
Because the content of the two rules is substantively identical, a discrepancy in content is not at issue at present. However, should a discrepancy in content arise, it should be handled according to the following principles.
1) The principle of priority of the higher norm
Because both rules give concrete form to Article 36(1)(b) of the Vienna Convention, a provision of either rule that is contrary to the content of the Convention has no effect. The Supreme Court expressly stated that the Convention has “the same effect as domestic law,” so the content of the Convention takes priority over the two rules (Supreme Court, Apr. 28, 2022, 2021do17103).
2) The principle of priority of the special law and the principle of priority of the later law
Where content conflicts between legal orders of equal rank, a rule that specifies and regulates the object of application takes priority over a general rule (priority of the special law). Also, where the timing of amendment differs as to the same matter, the principle of priority of the later law applies.
3) Conflict between an administrative rule and a legal order
Where the former Criminal Investigation Rules or other directives and established rules (administrative rules) conflict with the Police Investigation Rules or other legal orders, the legal order takes priority. Because an administrative rule in principle has effect only within the administrative organization, an administrative rule contrary to the content of a legal order has no effect to that extent.
5. Practical Points
A. The substantive identity of the duty to notify
The current Article 91 of the Police Investigation Rules and Article 62 of the Human Rights Protection Investigation Rules both give concrete form to Article 36(1)(b) of the Vienna Convention, and their content is substantively identical. Accordingly, whichever rule applies, the content and scope of the duty to notify are interpreted identically.
B. The legal effect of violating the duty to notify
According to Supreme Court, Apr. 28, 2022, 2021do17103, on whichever rule it is based, failure to give notice of the consular notification right makes the arrest/detention procedure unlawful. That said, this does not immediately lead to exclusion of unlawfully collected evidence; whether to exclude admissibility is judged by considering comprehensively: (1) the content and degree of the procedural violation; (2) whether substantive disadvantage arose to the defendant; and (3) the effect on the investigative agency’s collection of evidence or on the trial procedure (Supreme Court, Apr. 28, 2022, 2021do17103).
C. The timing of notice
Article 36(1)(b) of the Vienna Convention requires notice “without delay.” According to the interpretation of the International Court of Justice (ICJ), the duty to give notice immediately arises where the arresting authority knew or could have known that the arrested person was a foreigner; it need not necessarily be immediately after arrest or before the commencement of interrogation, but notice must be given without delay from the point the person is confirmed to be a foreigner. In the case of Supreme Court 2021do17103 as well, the failure to give notice despite it being clear at the time of arrest that the person was a foreigner was recognized as unlawful (Supreme Court, Apr. 28, 2022, 2021do17103).
III. The “Without Delay” Notice Standard, and the Possibility of Delay When No Interpreter Is Present
1. The Meaning of “Without Delay” and the Concrete Time Standard
A. The text of the relevant provisions
Article 36(1)(b) of the Vienna Convention provides that the investigative agency “must inform the person concerned of his rights under (b) without delay.” Article 91(3) of the Police Investigation Rules and Article 62(2) of the Human Rights Protection Investigation Rules, which give it concrete form, likewise require notice “without delay.”
B. The absence of a concrete time standard
Within the scope of the available materials, no Supreme Court judgment or subordinate provision is found that specifies a concrete time standard (e.g., within so many hours) in relation to the duty to notify of the consular notification right under Article 36 of the Vienna Convention or the Police Investigation Rules and the Human Rights Protection Investigation Rules.
That said, Supreme Court, Apr. 28, 2022, 2021do17103 judged the arrest/detention procedure unlawful, finding there was no material to recognize that the consular notification right and the like had been given notice of, even though it was clear at the time the judicial police officer arrested the defendant as a flagrant offender that the defendant was a foreigner of Indonesian nationality; this premises that, where it is clear the person is a foreigner, notice must be given immediately at the time of arrest (Supreme Court, Apr. 28, 2022, 2021do17103).
C. Comparison with the “without delay” interpretation for the Miranda rule
No time standard directly related to the duty to notify of the consular notification right is found, but for the Miranda-rule notice—a similar “without delay” duty to notify—the following precedent standard has formed, which can be referred to.
1) The principle: advance notice before the exercise of force for arrest
The Supreme Court held that, as a principle, the Miranda-rule notice is given in advance before entering the exercise of force for arrest (Supreme Court, Sept. 21, 2017, 2017do10866).
2) The exception: without delay after suppression
Where the suspect flees or resists with violence, it suffices to give notice without delay after first seizing or suppressing him (Suwon District Court, Anyang Branch, Oct. 1, 2021, 2020godan1410). The Supreme Court has held that where, without justifiable reason, the rights notice is given after about 30 minutes have passed from the arrest, it is a violation of the duty to give the rights notice and amounts to an unlawful arrest.
This interpretive standard for the Miranda-rule notice can be applied by analogy to the “without delay” interpretation of the duty to notify of the consular notification right. That is, the consular-notification notice must also be given without delay immediately after arrest or immediately after suppressing the suspect, and giving notice after a considerable time has passed without justifiable reason may amount to a violation.
2. The Possibility of Delaying Performance of the Duty to Notify Where No Interpreter Is Present Immediately After Arrest
A. Framing the issue
Article 91(1) of the Police Investigation Rules provides that “when investigating a foreigner, a judicial police official must interpret into a language the foreigner under investigation can understand.” In relation to this, whether performance of the duty to notify of the consular notification right may be delayed where no interpreter is present immediately after arrest is at issue.
B. The attitude of the precedents
1) Recognition of using means by which notice is possible even without an interpreter
Lower-court judgments regard the duty to notify as performable—even where no interpreter is on the scene—by methods such as a translation app (Papago, etc.), telephone interpretation, or written notice.
- Suwon District Court, Ansan Branch, Sept. 11, 2023, 2023godan760: the court judged that the officers’ delivering, after taking the defendant to the police station, a rights-notice confirmation document stating the Miranda rule in Chinese, and delivering a “rights-notification document under the Korea–China consular agreement” in Chinese, observed the procedure for giving notice of the consular access right and the like (Suwon District Court, Ansan Branch, Sept. 11, 2023, 2023godan760).
- Daegu District Court, Jan. 31, 2023, 2022gohap263: in a case of giving notice of the Miranda rule by telephone through an interpreter after suppressing a foreign suspect, the court judged it had been given without delay, finding the notice was given within only about 10 minutes from the start of the arrest. That said, this judgment also recognized that, in a chaotic situation where the co-perpetrators were attempting to flee and destroy evidence, calling an interpreter to give notice was realistically impossible (Daegu District Court, Jan. 31, 2023, 2022gohap263).
- Cheongju District Court, Sept. 8, 2021, 2021no436: while recognizing that it could not be known at the time of the flagrant-offender arrest that the offender was a foreigner, and that it is practically impossible to prepare interpretation or documents in various languages in anticipation of a foreigner every time one is dispatched to make a flagrant-offender arrest, the court—considering that the officers, as soon as they arrived at the substation after arresting the defendant, again gave notice of the Miranda rule via a translation app and reconfirmed it through an interpreter—judged it a lawful arrest (Cheongju District Court, Sept. 8, 2021, 2021no436).
2) Delaying notice on the ground of an interpreter’s absence is in principle not permitted
By contrast, Seoul Central District Court, Oct. 8, 2009, 2009no1841 judged it unlawful that, in emergency-arresting a foreigner of Nigerian nationality, the officers did not bring a professional interpreter fluent in English but brought only a fellow officer whose English ability was doubtful. This judgment pointed out that, although there had been a prior instance of bringing a professional interpreter when arresting a foreigner of the same nationality before, this was not performed (Seoul Central District Court, Oct. 8, 2009, 2009no1841).
Also, Suwon District Court, Anyang Branch, Oct. 1, 2021, 2020godan1410 judged that where the defendant is a deaf person, an oral arrest notice cannot be regarded as a valid notice; this emphasizes that notice must be given by a method the arrested person can understand (Suwon District Court, Anyang Branch, Oct. 1, 2021, 2020godan1410).
C. Comprehensive standard of judgment
Taking the above precedents together, the standard for judging the possibility of delaying performance of the duty to notify where no interpreter is present may be organized as follows.
| Situation | Direction of judgment |
|---|---|
| Where it was known the person was a foreigner from before the arrest | There is a duty to prepare an interpreter or a multilingual notice document in advance |
| Where it was first learned on the scene that the person was a foreigner | Give notice by immediately using available means such as a translation app or telephone interpretation |
| An urgent arrest situation (resistance, flight, etc.) | Give notice without delay by available means after suppression |
| Notice after a considerable time has passed without justifiable reason | Highly likely to be judged an unlawful delay of notice |
| Delivery of a multilingual written notice document | Recognizable as a lawful method of notice |
3. Practical Points
Supreme Court, Apr. 28, 2022, 2021do17103 held that even where there is a procedural violation due to failure to give notice of the consular notification right, the exception to the exclusionary rule may be recognized; but this is only where there is no substantive disadvantage to the defendant. Where notice is delayed for a long time on the ground of an interpreter’s absence, thereby substantively depriving the defendant of the opportunity for consular assistance, the exception to the exclusionary rule may not be recognized (Supreme Court, Apr. 28, 2022, 2021do17103).
Accordingly, for an investigative agency it is important to: (1) prepare a multilingual notice document in advance where a foreigner’s arrest is anticipated; (2) give notice of the consular notification right by using available means such as a translation app or telephone interpretation immediately upon confirming on the scene that the person is a foreigner; and (3) clearly state the fact and method of the notice in the investigation documents.
IV. Whether Notice by Translation App or Telephone Interpretation Meets the “Adequate Interpretation” Requirement
1. The Structure of the Relevant Provision and the Relationship Between the Two Duties
Article 91 of the Police Investigation Rules provides for two separate duties.
- Paragraph 1: the duty to interpret into a language the foreigner can understand when investigating a foreigner (the duty to interpret during investigation).
- Paragraphs 2 and 3: the duty to give notice of the consular notification right and the like when arresting or detaining a foreigner, and, upon request, to notify the consular post without delay (the duty to give notice of, and to notify, the consular notification right).
The two duties have different phases of application. The interpretation duty of paragraph 1 is mainly at issue at the investigation stage, such as suspect interrogation, while the consular-notification duty of paragraphs 2 and 3 is at issue at the time of arrest or detention. That said, the two duties are substantively connected, in that even when giving notice of the consular notification right at the arrest scene, notice must be given by a method the foreigner can understand (Police Investigation Rules, Article 91(1), (2)).
2. The Lawfulness of Notice by Translation App (Papago, etc.)
A. A precedent recognizing lawfulness
Seoul Eastern District Court, Feb. 9, 2023, 2022no1262, in a case in which an investigator, while emergency-arresting a foreign suspect, used the PAPAGO interpretation tool to give notice of the right to remain silent and the like and proceeded with an emergency seizure, judged there was no procedural unlawfulness for the following reasons.
It is hard to expect that an investigator, encountering a foreigner and emergency-arresting him and then immediately conducting an emergency seizure, would have an interpreter accompanying him and communicate with the foreigner through the interpreter’s interpretation; not only does it appear that important communication was appropriately achieved at the time, but an interpreter appears to have participated in the subsequent document work and investigation procedure related to the seizure, and considering even the urgency of the emergency arrest and emergency seizure, it is hard to assess the emergency-arrest or emergency-seizure procedure as having procedural unlawfulness merely because it was conducted by a communication method using the PAPAGO interpretation tool without an interpreter’s participation.
(Seoul Eastern District Court, Feb. 9, 2023, 2022no1262)
The key grounds on which this judgment regarded the use of a translation app as lawful are as follows:
- That having an interpreter accompany in advance in an emergency-arrest/emergency-seizure situation is realistically impossible.
- That important communication was substantively achieved through the translation app.
- That a formal interpreter participated in the subsequent investigation procedure, so the procedural defect was supplemented.
B. A precedent to the effect that the use of a translation app alone is insufficient
By contrast, Suwon High Court, Nov. 5, 2020, 2020no336 held that where the person whose property is seized is a foreigner not fluent in Korean, one must interpret into the person’s language or present a translation so that he perceives the content (Suwon High Court, Nov. 5, 2020, 2020no336). This judgment did not regard the use of a translation app as unlawful in itself, but presented whether the foreigner substantively perceived the content as an important standard of judgment.
3. The Lawfulness of Notice by Telephone Interpretation
A. A precedent recognizing lawfulness
Daejeon District Court, Dec. 15, 2022, 2021gohap478, in a case in which the investigative agency, while emergency-arresting a Vietnamese suspect, telephoned an interpreter and, on speakerphone, gave notice—interpreted into Vietnamese—of the gist of the suspected facts, the reason for arrest, the right to remain silent, the right to appoint counsel, and the like, judged as follows.
It would have been practically impossible for the investigative agency to have an interpreter accompany when it did not even accurately know the nationality or language of the recipient of the mail at the time of the controlled delivery; that the agency first learned, only in the course of emergency-arresting the defendant, that the defendant was Vietnamese and did not speak Korean, and at that point had interpretation into Vietnamese done, has an unavoidable aspect; and there is no relevant provision that an interpreter must interpret directly on the scene when arresting a suspect who does not speak Korean.
(Daejeon District Court, Dec. 15, 2022, 2021gohap478)
This judgment, while recognizing the lawfulness of telephone interpretation, expressly confirmed that there is no provision requiring an interpreter to be present and interpret directly on the scene.
B. A precedent pointing out the limits of telephone interpretation
Uijeongbu District Court, July 21, 2023, 2023godan1562, in a case in which notice of the right to remain silent and the like was given by telephone interpretation at the arrest scene, while recognizing the first interpretation at the arrest scene, pointed out that it was not confirmed whether a second interpretation—on the meaning and effect of voluntary submission at the subsequent seizure—was done, and denied the lawfulness of that seizure (Uijeongbu District Court, July 21, 2023, 2023godan1562). This suggests that, even if telephone interpretation is permitted for the arrest notice, a separate interpretation is required at each subsequent investigation stage.
4. The Requirements of “Adequate Interpretation” in the Precedents — Comprehensive Standard
Taking the above precedents together, whether notice by translation app or telephone interpretation meets the requirement of “adequate interpretation” is judged by the following standards.
| Factor | Toward lawful | Toward unlawful |
|---|---|---|
| Urgency / unavoidability of the interpretation means | Accompanying an interpreter in advance impossible, as in an emergency arrest | No interpreter prepared despite knowing in advance the person was a foreigner |
| Whether substantive communication was achieved | Communication on the important content substantively achieved | The suspect did not understand the content |
| Whether a formal interpreter later participated | A formal interpreter participated in the subsequent investigation procedure, supplementing it | Only a translation app used throughout |
| Whether interpretation occurred at each investigation stage | Interpretation at each stage—arrest notice, seizure, suspect interrogation, etc. | One interpretation at arrest, then interpretation omitted at subsequent stages |
| Whether substantive disadvantage arose to the suspect | No substantive disadvantage from the limits of the interpretation method | Substantive infringement of the defense right due to insufficient interpretation |
For consular-notification notice in particular, Supreme Court, Apr. 28, 2022, 2021do17103 presents whether substantive disadvantage was brought about to the defendant as the key standard even where there is a violation of the duty to notify; so even if the consular notification right was given notice of through a translation app or telephone interpretation, if the foreigner did not substantively understand the content, it is hard to recognize it as a lawful notice (Supreme Court, Apr. 28, 2022, 2021do17103).
5. Practical Points
A. The limits of using a translation app
A translation app may not guarantee the accurate translation of legal terms. Legal technical terms such as “consular notification right” and “right of access and communication” in particular may have low translation accuracy in a translation app, so where possible it is safer to use a standard notice document prepared in advance in multiple languages. In the case of Changwon District Court, Miryang Branch, July 19, 2022, 2022godan216, it is confirmed that written forms such as a “consular-post notification-request confirmation” and a “consular-post arrest/detention notification” were used (Changwon District Court, Miryang Branch, July 19, 2022, 2022godan216).
B. A comparative-law reference to Japanese criminal procedure
Article 233 of the Japanese National Police Agency Rules (the Criminal Investigation Norms) expressly provides for an exception—“this does not apply in the case of a flagrant-offender arrest, an emergency arrest, or where it is otherwise difficult to attach an interpreter immediately.” Korea has no corresponding express exception provision, but the precedents interpret in the direction of permitting the use of a translation app or telephone interpretation in consideration of urgency.
C. Concluding summary
Notice of the consular notification right by translation app or telephone interpretation may be recognized as a lawful notice where: (1) in a situation where accompanying an interpreter is impossible, as in an emergency arrest; (2) substantive communication on the important content was achieved; and (3) a formal interpreter participated in the subsequent investigation procedure, supplementing the procedural defect. By contrast, where no interpreter was prepared despite knowing in advance the person was a foreigner, or where the suspect did not substantively understand the content due to the translation app or telephone interpretation, it is highly likely to be judged an unlawful notice (Seoul Eastern District Court, Feb. 9, 2023, 2022no1262; Daejeon District Court, Dec. 15, 2022, 2021gohap478; Uijeongbu District Court, July 21, 2023, 2023godan1562).
V. Proving Whether the Consular Notification Right Was Given, and the Allocation of the Burden of Proof
1. Framing the Issue
Where the consular notification right is given notice of through a translation app or telephone interpretation, if this is not recorded by audio or in writing, whether notice was given at all may be contested afterward. In this case, what is at issue is (1) who bears the burden of proving whether notice was given, and (2) by what evidentiary methods it can be proved.
2. The Legal Character of the Duty to Notify and the Default Allocation of the Burden of Proof
A. The legal basis of the duty to notify
Article 91(2) of the Police Investigation Rules provides that, when arresting or detaining a foreigner, a judicial police official must inform him of the consular notification right and the like. This is an affirmative duty imposed on the investigative agency, and whether it is performed is a requirement of the lawfulness of the arrest/detention procedure (Police Investigation Rules, Article 91(2); Supreme Court, Apr. 28, 2022, 2021do17103).
B. The default allocation of the burden of proof
The context in which whether the consular notification right was given is contested is mainly raised as the premise of an argument for excluding unlawfully collected evidence. In this case, the allocation of the burden of proving whether the evidence was collected following due process is at issue.
Within the scope of the available materials, no Supreme Court judgment directly addressing the allocation of the burden of proving whether the consular notification right was given is found. That said, lower-court precedents on whether the similarly structured Miranda rule was given handle the proof issue in the following ways.
3. Precedent Standards on Proving Whether the Miranda Rule Was Given
A. Methods of proving the fact of notice
Lower-court precedents judge whether the Miranda rule was given by taking the following evidence together.
1) Signature and seal on a rights-notice confirmation document
Where the defendant personally signed and sealed a rights-notice confirmation document stating “I confirm that I have been informed of the gist of the suspected facts and the reason for arrest, together with the fact that I may appoint counsel, may refuse to make statements or may give an explanation, and may request an arrest-legality review,” the courts recognize this as strong evidence of the fact of notice (Daegu District Court, Sangju Branch, Nov. 23, 2022, 2021godan350, 2022godan330 (consolidated); Cheongju District Court, May 11, 2022, 2022no173).
2) The officer’s court testimony
Where the dispatched officer concretely states the course of the notice in court, the courts recognize this as evidence of the fact of notice (Changwon District Court, June 14, 2024, 2023no3046; Daejeon District Court, Apr. 12, 2024, 2023godan3552).
3) Objective records such as body-cam footage
Where the notice scene is recorded in an officer’s body-cam footage, this is used as objective evidence directly proving the fact of notice (Daejeon District Court, Apr. 12, 2024, 2023godan3552).
4) Statements in investigation documents
Where the fact of notice is stated in investigation documents such as a flagrant-offender arrest report, a suspect-apprehension report, or a 112-report-case processing sheet, this too is used as evidence of the fact of notice (Cheongju District Court, May 11, 2022, 2022no173).
B. The degree of proof of the fact of notice — free proof suffices
The courts regard facts concerning the lawfulness of the arrest procedure as procedural facts, so they do not require strict proof and free proof suffices. Accordingly, it is enough if the fact of notice is recognized by taking together the rights-notice confirmation document, the officer’s testimony, the statements in investigation documents, and the like; there need not necessarily be an audio recording or a separate written record.
C. Handling where the fact of notice is contested
Where the defendant argues that he was not given notice, the courts handle it as follows.
| Situation | The court’s handling |
|---|---|
| Where there is a signature and seal on a rights-notice confirmation document | The fact of notice is recognized (the defendant’s denial is rejected) |
| Where the officer’s testimony is concrete and consistent | The fact of notice is recognized |
| Where there is objective record such as body-cam footage | The fact of notice is recognized |
| Where there is no material whatsoever to recognize the fact of notice | The arrest procedure is recognized as unlawful for violation of the duty to notify |
In particular, Supreme Court, Apr. 28, 2022, 2021do17103 judged the arrest procedure unlawful on the ground that “there is no material to recognize that the consular notification right and the like were given notice of to the defendant”; this shows that whether material to recognize the fact of notice exists is the key standard of judgment.
4. The Particularity of Proving Notice When Using Telephone Interpretation or a Translation App
A. The difficulty of proof in the absence of a record
Where notice is given through telephone interpretation or a translation app, if this is not separately recorded by audio or in writing, it is difficult to prove afterward whether notice was given. In this case, the investigative agency mainly relies on (1) the interpreter’s testimony, (2) statements in the investigation report, and (3) the officer’s court testimony.
B. Whether the content was substantively understood also requires separate proof
Furthermore, in the case of notice through a translation app or telephone interpretation, the mere fact that there was an act of notice is not enough, and whether the suspect substantively understood the content may also be at issue (Suwon District Court, Anyang Branch, Oct. 1, 2021, 2020godan1410). That judgment held that an oral notice to a deaf person could not be understood and so was not a lawful notice; likewise, in the case of translation-app notice to a foreigner, proof of whether the suspect understood the content may be required.
5. Practical Points — the Importance of Recording in Advance
Taking the above precedents together, where the consular notification right is given notice of through a translation app or telephone interpretation, it is important to take the following recording measures to prepare for a later dispute.
A. Statement in investigation documents
The investigation report, the flagrant-offender arrest report, and the like should concretely state: (1) the date and time of notice; (2) the method of notice (the name of the translation app or the name of the telephone interpreter); (3) the content of the notice; and (4) the suspect’s reaction (confirmation of whether he understood).
B. Use of a multilingual written notice document
Where possible, delivering a standard notice document prepared in advance in the foreigner’s language and obtaining the suspect’s signature and seal is the most certain evidentiary method. This accords with the precedent trend of recognizing a signature and seal on a rights-notice confirmation document as strong evidence of the fact of notice (Daegu District Court, Sangju Branch, Nov. 23, 2022, 2021godan350, 2022godan330 (consolidated)).
C. Preservation of body-cam footage
Where a body-cam is worn at the arrest scene, preserving footage that records the notice scene is the strongest means of proof as objective evidence (Daejeon District Court, Apr. 12, 2024, 2023godan3552).
6. Conclusion
No Supreme Court judgment directly addressing the proof of whether the consular notification right was given is found within the scope of the available materials. That said, taking together precedents on whether the similarly structured Miranda rule was given: (1) proof of the fact of notice is satisfied by free proof; (2) it is judged by taking together a signature and seal on a rights-notice confirmation document, the officer’s testimony, statements in investigation documents, body-cam footage, and the like; and (3) where there is no material whatsoever to recognize the fact of notice, the arrest procedure is judged unlawful for violation of the duty to notify (Supreme Court, Apr. 28, 2022, 2021do17103). Accordingly, where the consular notification right is given notice of through a translation app or telephone interpretation, the most effective way to prevent a later dispute is to state the course and content concretely in the investigation documents without fail and, where possible, to obtain the suspect’s signature on a multilingual written notice document.
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