Prosecutorial investigative powers fully abolished after 78 years… How will my case be handled? - 경향신문

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Supreme Prosecutors' Office in Seocho-gu, Seoul. Han Su-bin, reporter

With the amendment to the Criminal Procedure Act led by the Democratic Party of Korea passing the National Assembly plenary session on the 31st of last month, prosecutorial investigative authority will be completely abolished for the first time in the 78 years since the founding of the Republic of Korea. The legal community points out that cases involving citizens who cannot afford to hire former officials turned attorneys are likely to be delayed indefinitely by repeated supplemental investigations or effectively buried through non-referral.

On October 2, when the current prosecutors office is reorganized into the Public Prosecution Office and the amended Criminal Procedure Act takes effect, all cases will be investigated by judicial police officers (the police and the Serious Crimes Investigation Agency) and the Corruption Investigation Office for High-ranking Officials. Prosecutors at the Public Prosecution Office can only demand supplemental investigations.

Citizens must determine which charges may apply to their case and file a complaint or accusation with the appropriate investigative body. If a case transfer occurs due to jurisdictional issues, the initiation of the case itself may be delayed for months. The police can investigate all crimes. However, the six major crime categories (corruption, economic, defense acquisition, narcotics, national protection, and cyber) fall primarily to the Serious Crimes Investigation Agency, and specific offenses committed by high-ranking public officials are under the primary investigative authority of the Corruption Investigation Office for High-ranking Officials.

Even if an investigative body recognizes criminal suspicion and refers a case, if a Public Prosecution Office prosecutor deems it insufficient for indictment, the prosecutor will return the case by demanding a supplemental investigation. Under the amendment, prosecutors cannot conduct supplemental investigations themselves. In principle, the investigative body must complete the supplemental investigation within one month, or within two months if approved by the prosecutor, and re-refer the case. If the Public Prosecution Office still finds it insufficient, it can again demand a supplemental investigation. There is no limit on the number of times supplemental investigation demands and supplemental investigations can be repeated.

A senior prosecutor said by phone on the 2nd, “Given how many cases each judicial police officer handles, how could they possibly complete a flawless supplemental investigation within just 1 to 2 months,” adding, “Requests for supplemental investigation and the supplemental investigations themselves will basically be repeated several times.”

Judicial police officers do not refer a case if, as a result of their investigation, they do not recognize criminal suspicion. If a complainant files an objection within three months, a Public Prosecution Office prosecutor receives and reviews the case. If the filer is an accuser, even if an objection is filed, the case is referred only if the investigative body recognizes it as ‘a crime prescribed by presidential decree as a case equivalent to that of a victim.’ Public Prosecution Office prosecutors also cannot directly conduct supplemental investigations in non-referral cases and can only demand reinvestigation. Even if the investigative body again decides on non-referral, the Public Prosecution Office prosecutor can demand reinvestigation once more.

If there is no objection to a non-referral, the prosecutor reads only the investigation records and determines whether the investigation was appropriate. In legal circles, many have argued that, as in the recent murder of the female high school student Jang Yun-gi, if a judicial police officer attempts to bury a case, it is difficult to uncover without the prosecutor conducting a supplemental investigation directly. However, the Democratic Party and the police maintain that demands for supplemental investigation are sufficient.

Acting Prosecutor General Koo Ja-hyun (Deputy Chief Prosecutor at the Supreme Prosecutors' Office) expresses his intent to resign in front of the Supreme Prosecutors' Office on the 31st of last month after the amendment to the Criminal Procedure Act that completely abolishes prosecutorial investigative powers passed the National Assembly plenary session. Yonhap News

Complainants and accusers may request a meeting with a Public Prosecution Office prosecutor to state their views on their case and provide materials. However, under the amended law, opinions and materials submitted to Public Prosecution Office prosecutors cannot be used as trial evidence. Because prosecutors cannot investigate directly, they return cases to investigative bodies by demanding supplemental investigation or reinvestigation. If dissatisfied with a Public Prosecution Office prosecutor's non-indictment disposition, one may appeal to the head of the metropolitan Public Prosecution Office and then file a re-appeal to the Public Prosecution Office chief (Prosecutor General). If a higher Public Prosecution Office upholds the appeal, it also returns the case to the investigative body.

Criticism is emerging that the case-processing delays, which have been continuously pointed out since the 2021 adjustment of investigative powers between prosecutors and police, will become even more serious due to the prohibition on prosecutorial supplemental investigations. Attorney Yang Hong-seok, who served as an advisor to the Government Prosecution Reform Task Force, wrote on Facebook the previous day that “since 2021, investigative delays have gone beyond a serious level and are almost akin to torture,” adding, “What on earth makes anyone think things will improve while dropping an even heavier workload bomb on the police than now.”

It is also argued that, from the perspective of judicial police officers, even if a supplemental investigation is incomplete, they will simply refer the case within the deadline expecting it to be returned later, and that, from the prosecutor's perspective, they will be inclined to issue non-indictments rather than repeatedly demanding supplemental investigation or reinvestigation. There are also projections that prosecutors and judicial police officers will keep sending cases to each other, repeatedly shifting responsibility.

Attorney Kwon Nae-geon, a former legal affairs deliberation officer at the Ministry of Justice, said, “From a prosecutor's standpoint, they will face the fundamental question, ‘Prosecutors are not investigation chiefs, so why should I even bother to demand a supplemental investigation,’” adding, “In such a system, citizens have no choice but to rely on the goodwill of whoever is in charge of the case, and if outcomes differ depending on the person in charge, they will have no choice but to seek ‘connections.’”

Led by the Democratic Party of Korea, the National Assembly plenary session on the 31st passed the amendment to the Criminal Procedure Act that completely abolishes prosecutorial investigative powers. Democratic Party lawmaker Gwak Sang-eon and Reform Party lawmaker Lee Ju-young voted against it, and Democratic Party lawmaker Lee So-young abstained. Yonhap News