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| TITLE | Supreme Court Decision 2021Do17103 Decided April 28, 2022 【Violation of the Narcotics Control Act (Psychotropic); Violation of the Immigration Act】 [full Text] |
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| Summary | |
| 【Main Issues and Holdings】 [1] Intention of Article 36(1)(b) of the Vienna Convention on Consular Relations and Article 91(2) and (3) of the Rules of Police Investigation that obligate the law enforcement agency, in case of arrest or detention of a foreign national, to inform the said foreigner, without delay, of the right to consular notification, and obligate the law enforcement agency to notify the consular post of the arrest or detention upon request of the arrested or detained foreign national Whether the procedure of arrest or detention is deemed unlawful in a case where the law enforcement agency failed to notify without delay a foreigner under arrest or detention of his or her right to have the consular post of his or her country notified of the arrest or detention (affirmative) [2] Cases of exception where evidence obtained without due process is admissible as incriminating evidence and standards for determining whether certain evidence falls within such an exception [3] In the case where: (a) a judicial police officer arrested the Defendant, an Indonesian national, on the charge of violating the Immigration Act as a flagrant offender, and seized a urine and hair sample that the Defendant voluntarily submitted; (b) upon a positive result of the urinary drug test for the presence of MDMA (“ecstasy”), a psychotropic substance, the Defendant confessed to all his violations of the Immigration Act and the Narcotics Control Act (Psychotropic) and was placed under detention; (c) the Defendant became aware of the right to consular notification of his arrest and detention in the stage of prosecutorial investigation, but he did not request the law enforcement agency to notify his consul, the case holding that although there is an infraction of Article 36(1)(b) of the Vienna Convention on Consular Relations regarding the procedure of arrest or detention, the contents and severity of the procedural violations are neither grave nor considered to have fundamentally violated the rights and legal interest of the Defendant of a foreign nationality whom the procedural provisions intend to afford protection to, and, therefore, that the evidence obtained after the Defendant’s arrest or detention and evidence based thereon may be used as incriminating evidence | |
