This case has been most remarkable for the astonishing number of false accusations which have now been proven to have no basis in fact. The following is a speech, made before sentences were declared, that sets out facts that have been thoroughly checked.
Disclaimer: In translating this transcript, without altering the meaning, some points have been adjusted for ease of reading. A full transcript is available here.
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Transcript of key points from Attorney Lee Kyung-jae’s Final Oral Argument
Ⅰ. OPENING
(1) Honourable Chief Justice and Justices sitting on the left and right side of the Bench
◦ Public and special prosecutors and the members of the prosecution team who have worked tirelessly to convict the defendants
<Ellipse>
Ⅱ. OUR VIEW AND THE NATURE ON THE CASE
1. The heart of this case turns on a controversial, contemporary, political incident in the early 21st century which resulted in a criminal prosecution.
2. The majority party in South Korea’s National Assembly voted to impeach and prosecute, calling this matter the "Suspicious Case of the Interference of State Affairs" by civilians including Ms. Choe Soon-sil, as described in the Special Prosecutor's pleading. The Special Prosecutor and the 2nd Special Investigation Unit of the prosecution argued that former President Park Gyun-hye made an attempt to receive bribes for her personal gain in conjunction with Ms. Choe Seo-won, an accomplice. This may be deemed illegal acts of corruption and is the material issue of this case. The Korean Constitutional Court made a decision solely by accepting the allegations made by the Special Prosecutor in the indictment.
3. Yet, I, defence counsel, along with the people who are against her impeachment, strongly reject the belief that the President took a bribe and was corrupt. While she may have made an error or mistake in the course of her state affairs, I do not see these amount to be cause for impeachment and imprisonment through indictment. Instead, I suspect that this is a suspicious case of the interference in state affairs, grounded on falsified and distorted facts, and that its purpose is to oust President Park from power. I suspect that it is orchestrated by the certain segments of political parties, civic organizations, members of the media and politicized prosecutors, as well as some groups of people who wanted to escape their own liability in other matters by taking advantage of the situation.
4. There are many examples of circumstantial and factual evidence that support that this case is fabricated.
(1) Flooded with the news about the suspicion that Ms. Choi Seo-won (Choi Soon-sil) was President Park's secret confidante, and amidst the nationwide candlelight vigils and political upheavals growing ever stronger, the actions of the 1st Special Investigation Unit of the Prosecution Service and prosecution authority have changed frequently at the whim of the political wind. Originally, the case centred around the joint abuse of the public authority by the former Chief-of-Staff Mr. Ahn Jong-beom and Defendant Ms. Choi Seo-won (Choi Soon-sil), but later it changed to bring President Park in as a co-principal in conspiracy with three defendants.
(2) During the Special Prosecutor's Investigation, the case was again shifted to focus on the allegation that President Park took bribes from Samsung for the daughter of Defendant Ms. Choi Seo-won. As it becomes evident that President Park gained nothing of economic value in that case and there was no evidence to indict her for bribery, the case pivoted again, to incriminate her 40-year-long, trusted friend and aide by arguing that Ms. Choi was in a community of economic and pecuniary interests with President Park.
(3) The Speculative Fund Monitoring Centre of the Korean Confederation of Trade Unions has accused President Park of receiving donations from large corporations in exchange for resolving pending issues, via former Chief- of-Staff, Mr. Ahn Jong-beom and Ms. Choi Seo-won (Choi Soon-sil) and that these donations are, in fact, bribery. The chief executive officers and presidents of South Korea's major corporations were all convicted for offering and receiving bribes. This bill of indictment became a guide for the Special Prosecutor, for the investigation of the 2nd Special Investigation Unit of the Prosecutor Service, and the basis of this public prosecution.
(4) The prosecutors from the 1st Special Investigation Unit of the Prosecution Service elicited false testimonies from some witnesses - Mr. Go Young-tae, Mr. Park Heon-young, Mr. Choe Cheol and Mr. Ryu Sang-young - that the defendant established and ran the MIR and K Sport Foundation for the retirement of President Park. The prosecutors even coerced a confession that the defendant considered establishing a holding company named Intoliss affiliating MIR, K Sport Foundation and The Blue K. Later, it was revealed that the statements of Mr. Ryu Sang-young and Mr. Kim Soo-hyun were untrue. Mr. Ryu Sang-young and Mr. Kim Soo-hyun stated this in court. Nevertheless, some prosecutors still hold on to this view.
(5) In March 2017, long before the first trial of this case was decided and while it was in the early stage of investigating evidence and gathering facts, on March 10, 2017 the Constitutional Court ruled in favour of impeachment. This was an unpersuasive decision by the Court.
(6) There were innumerable circumstances deviating from proper investigation and prosecution standards, including: mistreating defendant Ms. Choe Seo Won by threatening to purge three generations of her family, the cruel and unusual investigatory tactic of blacklisting the defendant’s daughter Ms. Jung Yoo-ra - which was later rejected by the court, complaints made by the legal counsel for an equitable and balanced investigation since the investigation was focused primarily on arresting President Park. At the same time the investigation of Go Young-tae, who was definitely guilty, was put on hold, compromising the defendant’s right of defence. Rumours were spread, disguised as a Special Prosecutor's briefing, and steady and continuous coercion of and inducement to the defendant to testify against President Park took place.
(7) The most deviant example is the tablet PC submitted by a TV station, JTBC. In the early stage of this case, JTBC's report of Ms. Choe's tablet PC on October 24, 2016, was so damaging as to bring down Park’s administration. The prosecution could not disclose the tablet PC until it reached determination stage.
Thanks to the presiding judge's courageous decision, in the Court last month, one year after the tablet PC was submitted, the NFS (National Forensic Service)'s authentication bulletin and 20,000-page analysis report on the tablet PC was submitted to the Court.
It revealed that the tablet PC submitted by JTBC was neither owned nor used by the defendant. It belonged to a former the Blue House administrative official, Mr Kim Han Soo and was used by others including Mr Kim Hui-jong (Secretary of Administration in former President Park's government), as confirmed by forensic analysis and related evidence. The controversial speech made on March 27, 2014 in Dresden, Germany has nothing to do with the defendant.
Although the prosecution could have discovered the level of contamination of JTBC's tablet PC as evidence, its ownership, its usage, and the illegality of how JTBC obtained it, the prosecution did not interrogate Mr Go Young-tae, nor Mr Kim Hui-jong , nor Mr Kim Pil-joon (JTBC reporter).
The illegal act of installing a CCTV at the presidential dressing room was not examined. Mr Park Won Oh and Mr. Noh Seung Il, who stole the data from Defendant Ms Choe Seo Won's desktop computer and Core Sports company in Germany, have been given protection instead of being under investigation.
5. Conclusion
With great difficulty, the Court attempted to clarify the nature of this case.
I, the legal counsel, would like to once again emphasize that, although the prosecution alleged it to be a case of interference in state affairs in the criminal pleading, based on about a year of investigation and collecting evidence, it could very well be that this case has been orchestrated and fabricated. I kindly ask the court to take an objective, neutral stance and determine the nature of this case based on the factual evidence.
Ⅲ. ARGUMENTS
After a year of diligent research, let me explain you the uncontested facts as a defence counsel.
1. About the establishment and operating the MIR•K Sports Foundation.
(1) The intent behind establishing and operating this foundation has been the key reason for the allegation of the “Interference of State Affairs Scandal”. Therefore, if you search into the truth of the foundation's establishment and operation, you are able to reach the core of this case. First of all, the prosecution's claim and the public suspicion that the defendant Ms. Choi Seo-won had proceeded with establishing the foundation for the retirement of the former president Park, was found to be untrue and dark propaganda according to witnesses and voice recordings of Mr Su-hyeon-kim and Mr Rew Sang-yeong. It was not even an alleged fact.
(2) The principal who established the foundation was a chief secretary, Mr. Ahn Jong-beom.
① Mr. Ahn himself testified that there had been a discussion about establishing a foundation for cultural enrichment and athletic promotion in the Blue House since the beginning of the January 2015. Since the intent of the establishment was to serve the public good, it should not be a problem.
② By the order of Mr Ahn, the administrative officer Mr Gwan Ki-seon drafted and reported in ”Establishing a Cultural, Athletic, Non-profit Foundation Plan” on establishing a foundation for 30 billion Korean won around April/May of 2015. However, this document was never submitted to former president Park, who took an active interest in the establishment of the foundation.
③ Mr. Ahn gave a directive to Mr Lee Seung-cheol, the vice chairman of Jeon Kyeong Ryeon, , to establish the foundation, by saying that there was an agreement from the companies to fund it with 30 billion Korean won, with 3 billion from each of ten companies, even though during the meeting of the president and the heads of the large corporations on July 24th and 25th 2015, there was no such agreement whatsoever. When vice chairman Lee checked with the companies and found that there was no such agreement, he did not go ahead with establishing the Foundation.
④ Around October of 2015, when the then Chinese prime minister, Li Keqiang's visit was scheduled, Mr Ahn, afraid of former President Park's reprimand since he had not followed through Park’s agenda, nudged Vice Chairman Lee to establish the foundation in a hurry, and, during the 21st to the 24th of the same month, he established the MIR foundation hastily, even holding an urgent meeting at the Blue House. The K-Sports Foundation was established later, following the MIR foundation.
⑤ Former President Park did not receive a report that Mr Jong-bum Ahn had made the unusual push of establishing the foundation within a week. If she had known this, she would have stopped it immediately, because there was no need to set it up so rapidly.
(3) The establishment of both foundations were by Mr Ahn; the defendant has no involvement in it. While the defendant did recommend people for directors and employees for K-Sports Foundation, this has nothing to do with the establishment of it.
(4) Especially, defendant Choi Seo-won has nothing to do with the fundraising for the establishment of both foundations. The Prosecution charged both of them as co-conspirators with former President Park, even though the Prosecution failed to find any link between Mr. Ahn and the defendant in establishing the Foundation. This is a fabrication of the facts.
(5). The Prosecution’s argument that the defendant seized and ran the K-sports Foundation is based on the statement to shift blame made by Mr Young-tae Ko, Mr Seung-il No, Mr Heon-young Park etc., who would take profits on false pretexts. But their attempt to seize control of the foundation was proven by playing the Mr Su-hyeon Kim's recording. In fact, neither the defendant nor former President Park has ever taken any funds or profit from either foundation.
(6) The act of the Special Prosecutor of prosecuting bribery by singling out Samsung Group among the 16 corporations which funded the foundations is neither a fair administration of justice nor exercise of prosecutorial power. There is no ground to treat the 15 other corporate groups including Samsung, Hyundai, LG, SK differently in the application of the criminal law.
2. Winter Sports Centre for the Gifted
(1) The Centre for the Gifted is a foundation created by the defendant's niece 'Ms. Jang Si-ho' with the famous winter sports athletes, 'Mr. Kim Dong Sung' and 'Mr. Lee Kyu Huk'. The purpose is solely to contribute to the promotion of winter sports by finding and training gifted winter sports athletes.
(2) When the defendant was asked for help from his nephew, 'Mr. Jang Si-ho' about this, he lent 50 million Korean Won to establish the foundation and gave advice. She asked Vice Minister, 'Mr. Kim Jong', with whom he had a close relationship, to help the Centre for Gifted to run the foundation professionally. The defendant 'Choi Seo-won' asked the help of Vice Minister 'Mr. Kim Jong' for the public good, not to raise funds by pressuring particular corporations like Samsung.
(3) The defendant has never sought funding for the Centre for Gifted from former President Park. The defendant did not know or contact Samsung Group’s CEO, 'Mr. Kim Jae-youl' or people related to GKL.
(4) The defendant has not received any profit from the Centre for Gifted, and to the contrary, she is still owed for the loan she gave to 'Ms. Jang Si-ho' for the establishment of the foundation. 'Ms. Jang Si-ho' is trying to shirk her responsibility by saying she made and operated the Centre for Gifted at the defendant's will. According to the statements of related witnesses, this has been proven to be false.
(5) The 1st Special Prosecution Service originally targeted 'Ms. Jang Si-ho and investigated her in relation to embezzlement of the foundation’s funds. After they arrested 'Ms. Jang Si-ho' on a charge of embezzlement, the Prosecution Service pressured her to make a statement that the defendant 'Ms. Choi Seo-won' ordered her to do it. They pressured Ms Jang Si-ho, saying that if she testified that she had conspired with former President Park, the Prosecution would drop all the charges against her.
(6) The Special Prosecutor asserted that Samsung's donation of 1.628 billion Won for the Centre for the Gifted was bribery. This is one of the proofs showing the politicized nature of the special prosecutor when he deemed it bribery by connecting various Samsung issues simply because Samsung Group funded the establishment of the Centre for the Gifted.
(7) The facts pled by the special prosecutor that former President Park pressured Samsung to offer a bribe to Ms Jang Si-ho, who operated the Centre for the Gifted, at the request of defendant Choi Seo-won, show a complete disregard of obvious facts, blinded by a political motivation.
3. The Bribery Case
(1) The first Special Prosecution Service considered it as an abuse of authority and coercion, and by taking the establishment of both foundations as material, public facts, it proceeded with the prosecution.
(2) However, when the case was sent to the special prosecutor, they transformed the facts about the horse-riding foreign training camp funded by Samsung and led by Mr Park Won Ho, which was thoroughly investigated by the first special prosecution service, into a bribery case by Jung Yoo-ra, the defendant’s daughter. At that time, the press and the law community generally considered the case of funding horse-riding as a crime of fraud, embezzlement and breach of trust. Even at that time, there was a minority view that the prosecution service might try to force its way by applying bribery. This unlikely scenario has become a reality today.
(3) After the prosecution, the 2nd Prosecution Service also incriminated Lotte and SK as guilty of bribery. Given the precedent by the Prosecution Service, it was a very unusual decision. After the impeachment decision, the Prosecution Service was emboldened and went wild.
(4) As for the bribery case, there was a 3-day long presentation, and they argued even the most minute details. Let me tell you the conclusion of this argument.
① The allegation was that former President Park granted a succession of company ownership rights to vice president 'Mr. Lee Jae-yong'. It is alleged that in return, former President Park let Mr Lee create a local corporation in Germany specifically to help 'Ms. Jeong Yoo-ra'. The allegation that Park approved the service contract between Samsung and German Core Sports, and that Park received 7.8 billion Korean won as a bribe for buying horses and cars and for service fees, is just a highly tenuous conjecture.
Even though the defendant’s friendship with the president goes back over 40 years, it is impossible for former president Park to make a deal with Samsung to undertake the crime of bribery to support defendant’s daughter 'Yoo-ra'.
② The Prosecution Service did not see President Park’s one-on-one meetings with the owners of corporations like Samsung, Lotte, and SK as they are, and labelled them as a scene of bribery between President Park and them. The notebook of 'Mr. Ahn Jong-bum' is not an infallible Scripture, and some untruths have been discovered in the notebook. Even if we were to consider the content of the notepad to be 100% true, these meetings were a normal course of the president’s business and included meeting with major CEOs to exchange each other's opinions. There is no reason to look at these as bribery. The statements of the participants of the meetings corroborate this.
③ The prosecution has described the relationship between former President Park and Choi Seo-won as an economic community, community of interest relationships or close relationships in public and private spheres etc. in order to paint former president Park and the defendant as the conspirators in the crime of bribery. However, the concept of an economic community or community of interest relationships, which the defendant was made to concede to during the investigation, is nebulous and difficult to understand. The so-called close relationships in public and private spheres further add to the ambiguity.
The relationship of 40 years in the case of former President Park and Choi Seo-won isn't that of equals,. The defendant only helped former President Park privately at the pleasure of President Park. At least this is how President Park saw it.
(5) Neither Samsung, Lotte nor SK have made an unlawful appeal to Park. This was all identified in the evidence investigation. The special and 2nd Prosecution Service is making an unsubstantiated claim that the management agenda of each corporation is the aim of the bribe, but there is no corporation with a management agenda.
Following the logic of the prosecution, there is a risk to society that every CEO meeting with the president can be suspected of illegal bribery and must be under the surveillance of the Prosecution Service. Former President Park knew the issues the major business groups had, and that their issues influenced South Korea's economy enormously. Surely, meeting with key businesses is something we should encourage, in light of our being a democratic country.
The problem arises when money or economic profit, power and wealth collude. After a large-scale investigation and trials, the Prosecution still has not produced sufficient direct, indirect or even circumstantial evidence about it.
The reason lies elsewhere. It is because the Prosecution is lured by a certain romantic notion of punishing the collusion of power and wealth. This results from the political and social purpose that gave birth to the Special Prosecutor. It forgot its original mission, which was the administration of justice.
(6) This case, the Riding-Support Plan is pushed ahead by Park Won-oh, who is a problematic figure in riding circles.
<Ellipse>
Ⅳ. LEGAL ISSUES CONTENDED
As I, defence counsel, participated in the investigation, trial, impeachment trial and investigation of state affairs for six cases of the interference of state affairs against the defendant for about one year, I have raised many questions of legal issues. For this trial, I would like to raise three issues once again.
1. The issue of the interpreting Article 84 of the Constitution.
◦ Our Constitution Article 84 prescribes that “The President shall not be charged with a criminal offence during his tenure of office except for insurrection or treason.”
◦ The title of this Article is "Executive Criminal Privileges."
◦ The purpose of this law is that the president will not be impeached as long as he or she does not commit a crime to critically endanger the country during the presidency. It is the constitutional order that political resolutions should be sought unless the crime falls into the category of fomenting insurgency and/or betraying South Korea's national interest in an overseas disturbance.
◦ And it should be interpreted that the purpose of non-prosecution involves investigation in its scope of legal force. The acts of indictment without investigation shall not exist. When halting the indictment, the investigation should be halted as well.
◦ When the criminal investigation and the impeachment resolution are carried out separately, as we have caustically experienced so far, those who seize prosecutorial power can summon the president under the pretext of investigation, search and seize the Blue House and take out all the classified documents, which could cause a collapse in executive management of state affairs. In that case, it is certain that the regulation on presidental privilege of non-prosecution will be proven to be violated. In other wods, if the investigation is carried out similtaneously, this regulation can be nominal. (JinJoo's Note: I am not sure if this paragraph was translated properly. I am currently waiting for an expert's opinion.)
The constitutional provision shows that allowing the president to manage state affairs seamlessly unless the president has committed a crime such as rebellion and/or overseas disturbance during the presidency can benefit the country better than carrying out investigations which cause disruptions in state affairs. Therefore, all the investigative acts carried out for the imprisonment of former President Park during her presidency should be considered to be unconstitutional.
The constitutional provision shows that allowing the president to manage state affairs seamlessly unless the president has committed a crime such as rebellion and/or overseas disturbance during the presidency can benefit the country better than carrying out investigations which cause disruptions in state affairs. Therefore, all the investigative acts carried out for the imprisonment of former President Park during her presidency should be considered to be unconstitutional.
2. I would like to raise questions about the unconstitutionality of the Special Prosecutor.
◦ The case of the former Special Prosecutor Mr Park Young-soo's unconstitutionality is now under trial at the Constitutional Court. Even if the political party taking over the National Assembly makes laws in favour of the party against democracy and the constitution, and the judiciary declines to make a diversion, it might cause danger - the so-called legislative dictatorship and legal dictatorship.
◦ The former Special Prosecutor Mr Park Young-soo was also involved in a lot of illegality. He authorized 20 prosecutors including Team Leader Mr Yoon Seok-yeol to work on this case like a package subcontract. All the prosecutors sustained a public prosecution. Unfortunately, I still have not met the Special Prosecutor; he is not in court today. The entire investigation and sustainment of a public prosecution carried out by the special prosecutor are illegal.
3. Practice of Custodial Investigation and Trials
◦ An arrest warrant has been issued on defendant Ms Choe Seo-won three times, while imprisoned for over a year with ongoing investigations and trials.
◦ As a result, President Park was indicted as a co-conspirator and imprisoned for six months. After six months, another arrest warrant was issued. Her lawyers complained about it and resigned in unison.
◦ As this big case seems quite controversial, with its verdict depending on the stance, should we look at this case again to see if imprisonment was necessary for the trial?
◦ Almost all the people involved in this case, including the defendant, have no risk of flight and there is no chance of evidence being destroyed. If there is any reason for imprisonment, I believe it was the media's fury at the time.
◦ The major reason for the prolonged trial was because the prosecution blindly believed the statements made as a result of "confession-based" evidence.
I think it is necessary to stop the practice of conducting investigations while the accused are under arrest and in custody.
Ⅴ. APPEALS TO THE COURT
1. On the position of the defendants
In October 30, 2016, the defendant voluntarily entered Germany. If there was any offense committed, the defendant was ready to be punished. While being interrogated persistently and harshly, the defendant testified within the boundaries of her knowledge. Reasons aside, Ms Choi expressed sincere apologies to former President Park and to many people.
2. I, defence counsel,
◦ By observing the whole process of the investigation and judgement, I question what gain the defendant has obtained from them.
① Receiving one Chanel bag in return for introducing KD Corporation to Mr Jeong Ho-seong
② Core Sports, the legal entity in Germany just received 3.6 billion Korean Won as service payment. That was it.
If the two above are considered a criminal offence, the defendant is liable.
◦ However, we cannot accept the charges that the defendant spearheaded the establishment of the two foundations and took bribes from Samsung, Lotte and SK by manipulating President Park.
3. We hereby appeal to the Court.
(1) This fabricated case of interference in state affairs was prompted by the passions that existed in South Korea at the time. I think no one could be free from any suspicious amid long-term, various doubts raised by others and the expansion/reproduction of such doubts (concealing overseas wealth of over one trillion Won). However, as I mentioned earlier, I want you to judge by considering this could be a fabricated case of interference in state affairs.
(2) The heart of this case lies in the issue surrounding the establishment of MIR and K-Sports Foundation. However, as the case was turned over to the Special Prosecutor, it morphed into a case of bribery aimed at impeaching President Park. In order to do that, the Special Prosecutor and the 2nd Special Investigation Unit of the prosecution distorted the President's management agenda and exclusive face-to-face meetings as criminal opportunities. The defendant, who didn't know the agenda regarding three large corporations’ management, was turned into an accomplice. As former President Park and the defendant obtained no monetary gain from the two foundations or the corporations, it could be said to be immaterial to discuss whether it was bribery or not.
(3) I appeal to the Court that evidence-based trial, the principle of presumed innocence and constitutional human rights-related regulations need to be a beacon in this trial. Your honour, once again I would like to express my deepest respect for you for your dedication to the country, for the manner you have processed this trial, as you have sought to ensure a thorough examination of evidence and perseverance.
Source: 1. 최순실 측 결심공판 의견진술
Source: 2. Joongang Daily] [Full Oral Argument] Defence Counsel for Choi Soon-Sil “The heart of the case is the fabrication for the ouster of Park” [변론 전문] 최순실 변호인 “朴 퇴진 위한 왜곡이 본질”
