Supreme Court "Analysis of evidence after search and seizure... It is illegal to exclude the parties involved"

(Seoul = Yonhap News) Reporter Bitna Kim = The Supreme Court ruled that it was illegal to not guarantee the participation rights of the parties or their lawyers while analyzing the laptop confiscated by the police.

According to the legal community on the 22nd, the 2nd Division of the Supreme Court (Chief Justice Oh Gyeong-mi) overturned the original ruling on the 16th and sent the case back to the Seoul Central District Court in a reappeal case filed by an MBC reporter requesting cancellation of the investigative agency's seizure.

In May 2023, the police received a search and seizure warrant for the reporter's laptop while investigating charges of violating the Personal Information Protection Act for passing on personal information acquired in the course of work to a third party.

At the time, the warrant clearly stated that the parties' right to participate must be guaranteed throughout the entire search and seizure process.

The police confiscated the laptop from the reporter's residence, and the following month, in June, all electronic information on the laptop was copied with the participation of the reporter and his lawyer.

The police immediately began analyzing digital evidence on the same day, but did not inform reporters and lawyers of the date and location of the work.

Accordingly, the reporter filed a quasi-appeal seeking cancellation of the search and seizure order, claiming that the police did not guarantee the right to participate.

However, the Seoul Central District Court dismissed this on the grounds that the police's violation of procedures was not serious enough to make the entire search and seizure illegal.

The Supreme Court's judgment was different.

The Supreme Court ruled that “the process of analyzing digital evidence is also part of search and seizure,” and that it was a violation of the Criminal Procedure Act to conduct the analysis without notifying the parties or their lawyers of the date and location of the work and without their participation.

The Supreme Court stated, “If the right to participate is excluded from the digital evidence analysis process, the degree of expected legal infringement cannot be considered minor.”

In particular, it was pointed out that all electronic information that the police could extract was converted into general compressed files and provided to the investigation team, increasing the risk of privacy being violated.

The Supreme Court pointed out, "The warrant in this case stipulates that the parties' right to participate must be guaranteed throughout the entire search and seizure process," and "The quasi-appellant has repeatedly expressed his intention to participate in the entire search and seizure process from the time the laptop was taken out."

The Supreme Court overturned the original trial ruling, saying that even though there was a procedural violation serious enough to warrant canceling the entire search and seizure, the original trial dismissed the quasi-appeal due to a misunderstanding of the relevant legal principles.