What should USFK personnel know about criminal jurisdiction in Korea?
Korea has exclusive or primary jurisdiction over almost all offenses committed in Korea by US service members. The US has exclusive jurisdiction only when no crime has been committed under Korean law; the US has primary jurisdiction only in those limited instances when the alleged offense is solely against the property or security of the US, is solely against the person or property of another person covered by the SOFA or arises out of any act or omission done in the performance of official duty. Unless an alleged offense falls within one of these exceptions, Korea has exclusive or primary jurisdiction even where the offense occurs on a military installation. The Korean prosecutor is made aware of all alleged offenses investigated by US authorities because the provost marshal is required to report all such incidents. The US always requests the Korean Government to waive jurisdiction in cases involving US military members where Korea has primary jurisdiction; the Korean Government then has 28 days, with an additional extension of 14 days, in which to respond. If Korea elects not to exercise jurisdiction or does not respond within the time period the US military may exercise jurisdiction. If Korea exercises jurisdiction over an offense, the US may not try the soldier for the same offense within the Republic of Korea. The soldier may be prosecuted by both Korea and the US for different offenses arising out of the same incident. Korea is most likely to exercise jurisdiction over serious violent crimes (murder, rape, robbery, etc.), serious black-marketing offenses, hit-and-run driving, and attempts to commit such offenses.
1. Apprehension and custody.
Service members should not resist apprehension by Korean law enforcement officials, and they should present their military identification card and SOFA card upon being apprehended. US constitutional law and Article 31, UCMJ do not apply to the interrogation of service members by Korean officials. Specifically, although a suspect has a right to have an attorney present during questioning, the Korean Government need not provide an attorney for the suspect during questioning, nor must a suspect be advised of his 5th Amendment or Article 31, UCMJ rights. During questioning, service members are entitled to the presence of a US representative appointed by USFK. Service members have an absolute right to refuse to make a statement; and they should be highly discouraged against signing any purported statement unless it has been translated into English.
2. Pretrial custody and confinement.
A. The US retained custody until the completion of all judicial proceedings, including appeals prior to 2001. Under the revised SOFA, the ROK may now receive custody upon indictment if it requests in any one of twelve categories of serious cases. Such cases include murder, rape, kidnapping, arson, drug trafficking or manufacturing, robbery with a dangerous weapon, and cases of assaults, drunk driving or fleeing the scene of an accident that result in death. In very serious cases of murder or rape, if the Korean police arrest a SOFA accused in the act, in hot pursuit, or before he or she returns to military control, they may retain custody.
B. However, SOFA personnel are protected by a very strong package of “due process” rights while in Korean pretrial custody and confinement, including the right to release on bail. A person subject to custody upon arrest (e.g., caught in the act for murder) may not be interrogated until both a US representative and a lawyer representing the accused is present. Statements taken without their presence are not admissible in court. Korean authorities may not question an accused in their custody after indictment, except about totally unrelated matters; even then, a US representative must be present during the interrogation.
C. In addition, SOFA personnel are entitled to a pretrial confinement hearing with a lawyer present and will not be confined by the ROK without a judge’s determination that confinement is warranted because there is reasonable cause to believe that he/she committed the offense; and (1) that he/she may flee, or (2) that he/she has destroyed or may destroy evidence, or (3) that he/she may cause harm to a victim, witness or family member of a witness or victim. This is very similar to the due process procedures in US law.
D. When suspected of a criminal act, the service member is placed in an international hold status. He/She is issued an over-stamped ID card and is not permitted to leave Korea even if his/her unit redeploys. If the service member's ETS date is reached, he/she would be allowed to choose between extending enlistment or allowing the Koreans to take over his/her custody. If the US decides to impose pretrial confinement, the service member will be confined at a US confinement facility.
3. Trial. As with other aspects of criminal procedure in the Korean criminal justice system, US constitutional rights do not apply to Korean criminal trials. A US service member in a Korean court has the right to a prompt and speedy trial, to be informed in advance of trial of the charges, to confront adverse witnesses, to compel the presence of favorable witnesses and to choose their own counsel. All of the rights, however, are interpreted in light of Korean law and practice. A service member is not entitled to representation by a JAG attorney. The US Government will pay for the services of an English-speaking Korean attorney. The court will appoint an interpreter. A US official will act as a trial observer to ensure that the service member receives all the procedural safeguards to which he/she is entitled. The Department of Defense and the Department of State will be notified where it appears that the service member's SOFA rights are not being granted.
4. Post-trial. Post-trial confinement will be served in a Korean confinement facility in Cheonan, Korea, which meets certain agreed minimum standards of space, heat, health, etc. If confined, the service member will be visited monthly by a US representative.
1. Black-marketing. US regulations and Korean customs laws prohibit US personnel from transferring duty-free goods to persons not entitled to duty-free privileges except under limited circumstances. Duty-free goods are those imported into Korea by a SOFA status person, brought in through the APO or obtained at post exchanges, commissaries, shoppettes and Class VI stores. Transferring includes selling, bartering, pawning, loaning and giving a gift; however, gifts of duty-free goods are permitted, if the gift is under $50.00 and is not alcohol or tobacco, was not purchased from a commissary and is not a subsistence item. Service members may also be required to show continued possession or lawful disposition of high value duty-free purchases. If there is a question about a proposed transfer, prior approval from the command should be obtained.
2. Drug stores. Korean drug stores and similar establishments are off-limits to US personnel. This restriction is imposed because some controlled substances under US law can be purchased without prescription in Korean drug stores.
3. Drunk driving. Korean law concerning driving under the influence of alcohol is much stricter than US law. A blood alcohol percentage of 0.03% is a violation of Korean law. This is much stricter than the usual standard of 0.08% under most US jurisdictions.
4. Traffic accidents. Traffic in Korea is different than in the US. It is not uncommon for children to play in the streets, people to cross the street outside a crosswalk without looking and drivers to do the unexpected. Under Korean law, drivers are responsible for the safety of pedestrians and other drivers. If a driver is involved in an accident, it will almost always be considered his/her "fault" and may be treated as a criminal offense. In case of an accident not involving a fatality where the damage or injury is paid for, the Korean Government will usually not press charges unless alcohol, fleeing the scene, gross negligence (extreme carelessness or recklessness) or another major traffic offense is involved. The command can assist the service member in making a settlement; and no action should be taken which could aggravate the Koreans. If an accident occurs, the driver should stop immediately and not attempt to flee the scene. If the Koreans believe a driver has attempted to flee the scene, they are more likely to begin criminal proceedings. Anyone who is injured or may be injured should be transported to a hospital. The military police (MPs) should be notified immediately so that they can conduct their own investigation. If the driver cannot gain access to a telephone, he/she should ask the Korean police to call the MPs.
5. Assaults. In Korea, verbal altercations (shouting matches) are not unusual, but shoving is not tolerated. Service members should not be provoked into pushing a Korean. Under Korean law this is an assault.
6. Elderly people. Elderly people in Korea are treated with great respect and service members should make sure to treat them likewise. Violence or abuse of the elderly is a serious crime in Korea.
7. Counterfeit Products. Many "brand name" items can be purchased cheaply in Korea, but they may be counterfeit; and if so, they may be confiscated when taken or mailed back to the US. Personnel on leave to China or Southeast Asian countries may be tempted to purchase “bargain” goods that may be seized by Korean customs officials if they are determined to be counterfeit upon re-entry to Korea. There have been cases of Korean prosecutors seeking criminal indictment for smuggling when large quantities of counterfeit goods were involved.