German International Law Professor: “Consider Alternatives to Detention for 95-Year-Old Man Hee Lee, Given His Advanced Age”

German International Law Professor: “Consider Alternatives to Detention

for 95-Year-Old Man Hee Lee, Given His Advanced Age”

“Pretrial detention of a 95-year-old defendant should be subject to exceptionally strict justification, and less restrictive alternatives, such as bail, house arrest, or electronic monitoring, should be considered first.”

There has been growing controversy surrounding the detention of a 95-year-old elderly defendant, which has become a hotly debated issue in recent days. The presumption of innocence should, of course, be upheld until a verdict is reached. However, heated debate continues over whether it is truly necessary to deprive an individual of their liberty before the trial has even concluded. 

In this regard, I would like to discuss an interview with Professor Ciarán Burke, a German scholar of international law. He participated in a written interview conducted by HWPL (Heavenly Culture, World Peace, Restoration of Light), an international peace organization. The interview addressed the general principles of international human rights law. This is particularly relevant because, in cases that are still pending trial, statements by public officials declaring a defendant guilty can undermine the principle of the presumption of innocence. Professor Burke also noted that the European Court of Human Rights has previously found such conduct to constitute a violation of human rights.

◆ No one is guilty until the trial is over.

Professor Burke emphasized that the principle of the presumption of innocence does not apply solely to the court’s judicial proceedings, but is a fundamental principle that must be observed by all public officials exercising state power.

He emphasized that the principle of the presumption of innocence applies not only to the court’s judicial proceedings but is also a fundamental principle that must be observed by all public officials exercising state power. He said, “Not every statement made by a public official automatically constitutes a violation of international human rights law. However, the speaker’s position, the manner in which the statement is expressed, and the stage of the proceedings must all be taken into consideration. Statements that fail to clearly distinguish between allegations and established facts and that characterize a defendant as a criminal before a verdict is reached may violate the principle of the presumption of innocence.”

He went on to explain that in a landmark case before the European Court of Human Rights (ECHR), “the Court found that public statements by a senior government official categorically declaring a suspect to be guilty violated the principle of the presumption of innocence. This case demonstrates that the more authority a person holds within the state, the more careful they must be in choosing their words.”

He also said, “When government statements, political commentary, and media reports converge, there is a risk that a social verdict of guilt may be formed before the court reaches its final judgment. Public officials should consistently use terms such as ‘allegation’ and make it clear that the final determination rests with the court. Generalized statements that associate an entire religious community with criminality may also raise separate human rights concerns in terms of freedom of religion, the right to equality, and the principle of non-discrimination.”

Professor Burke emphasized that, in order to ensure a fair trial, the defendant’s right to a defense must be guaranteed. This principle means that the defendant must be able to present their case under conditions that do not place them at a substantial disadvantage compared with the opposing party.

The defendant must be able to clearly understand the charges against them and the facts of the case, and must have meaningful access to the evidence held by the prosecution as well as materials that may support their defense. They must also be able to receive adequate assistance from legal counsel.

He said, “In the case of elderly defendants who are being detained, the state must take active measures to ensure that their access to legal counsel and participation in the trial are not effectively restricted. They must be provided with a meaningful opportunity to challenge the prosecution’s evidence, examine witnesses, and present evidence of their own.”

◆ Is detention absolutely necessary?

Regarding the decision to detain and investigate the 95-year-old defendant, we must ask the question: Is detention really necessary?

Professor Burke prefaced his remarks by stating, “Detention does not automatically become unlawful simply because a person is elderly, and it is not possible to determine the legality of detention in a specific case without reviewing the case records, medical information, and other relevant materials.”

He also said, “For an elderly defendant whose identity is clearly established and who has cooperated with the investigation, continuing to detain them requires highly compelling and specific grounds. The state must demonstrate that the risk cannot be adequately addressed through less restrictive measures than detention.”

He emphasized, “Pretrial detention should be an exceptional measure, and it is a fundamental principle of international human rights law that less restrictive alternatives, such as bail, house arrest, electronic monitoring, and no-contact orders, should be considered first. Courts should not simply repeat abstract grounds for detention; they must continually assess the defendant’s health, age, and ability to exercise their right to a defense.”

He went on to say, “It cannot be categorically stated that pretrial detention of a 95-year-old defendant is, in itself, a violation of international human rights law. However, if the authorities cannot demonstrate with concrete evidence that a serious risk still exists and that it cannot be adequately addressed through alternative measures, continued detention may be difficult to reconcile with the right to liberty, the principle of the presumption of innocence, and international standards that require pretrial detention to remain an exceptional measure.”

Everyone facing trial should be guaranteed a fair procedure and should not be presumed guilty before a final verdict is reached. The fundamental principles applied under the law should be the same for everyone. When considering the issue of pretrial detention involving a 95-year-old elderly defendant, much of the debate has centered on whether people should support or oppose a particular individual or a particular religion. I hope this debate will serve as an opportunity for our society to reflect on the standards of the rule of law and human rights that we uphold. 

The rule of law should not be swayed by a person’s social status or influence. It should apply equally to everyone. Whatever the outcome of the trial may be, I hope that the process leading to that outcome will, at the very least, be fair.

Reference : https://vo.la/ZCxuSGk