변호인의 도움을 받을 권리: 비교법제적 분석

Abstract

The right to counsel has been developed as an integral part of the fair trial. With the guarantee of this right, the accused can get the equal arms against the prosecution to protect his/her human rights in a criminal trial. Sometimes the lawyer of the accused may serve as the “watchdog of procedural regularity” for the public interest as well as that of his/her client. It is just the reason why so many jurisdictions have said that it is not theoretical or illusory but practical and effective. This essay deals with the ways this right has been construed and applied into the concrete cases in three major jurisdictions such as the U.S. Supre me Court, the European Court of the Human Rights, and the UN Human Rights Commission. Even though these courts held that the Contracting States or the States should have full discretion on the choice of the means of ensuring the rights in their judicial systems, they tried to set the minimal requirements of a fair trial and of the way to guarantee the right to counsel in practical and effective manners. Some decisions have expanded the scope of the right to the pre-trial procedures as well as to that of the appeal court, while a few cases have gone so far to deal with the problem of the right to the effective assistance of the counsel. These courts show some different understanding of the right: the U.S. Supreme Court and the UNHRC tend to construe the right independently from the other procedure, whereas the ECHR interprets the related clause of the Covenant in conjunction with the totality of the judicial procedure. In spite of such difference, however, it is highly consensual that the right is such an indispensible part of these democratic and civilized societies that every government shall have an obligation to fulfil it as well as to respect and protect it. Their concerns on the right to legal aid are made from this perspective. This essay compares such findings with the Korean Constitutional Cour t’s constellations of the right. On Oct. 29, 2009, the KCC rejected the constitutional petition of an accused who complained that his right to counsel had been denied because he was banned to meet his counsel in the court house. The KCC’s rationale for that rejection was rather simple: the petition was held to be rejected because there was no facility in that courthouse for such right to be practiced. The KCC did not review the constitutionality of the general instructions of the Ministry of Justice,which generally prohibited any meeting and consulting of the accused and his/her counsel in the courthouse. It did not even try to take account of the totality of the whole criminal procedure to ascertain what impact the denial of the meeting might influenced on the right of the petitioner to fair trial. The KCC has construed the right to counsel as an absolute right, which should not be restricted at any circumstance, which is deeply criticised by this essay : such constellation serves only to administrative expediency of the police and/or the prosecution rather than to realization of the constit utional principle of the fair trial. To speak again, the right to counsel is not theoretical or illusionary. It should be practical and effective. The KCC should have considered practical conditions which have restrained full enjoyment of that right of the people as well.