[Takryucheongron] Prior Disclosure of Crime Facts, Negative Impact on Fair Trial

Controversy continues over the non-disclosure of the indictment in the case of Minister of Justice Choo Mi-ae's interference in the Ulsan mayoral election. Considering the public's right to a fair trial, the right to defense in criminal trials, and the presumption of innocence, honor, and personal rights, it is reasonable not to disclose the full text of the indictment before the commencement of the trial proceedings. In the United States, there are many precedents ruling that extensive media coverage that presumes guilt violates due process and is therefore unconstitutional. The German Penal Code punishes the disclosure of indictments before the start of the trial, and countries like the UK and the US also penalize violations of non-disclosure orders as contempt of court. Especially in countries where the jury system and citizen participation trials are established, the period before the trial begins and the jury is formed is considered crucial. Fair procedures must be guaranteed regardless of the type of crime.

Since we also introduced citizen participation trials in 2008, disclosure of indictments before the start of the trial should be restrained. However, driven by long-standing practices and public demand for the right to know, even though there is a crime of disclosing suspect facts, 'real-time crime reporting' by the prosecution overflows, and in many cases, public opinion trials are concluded before the formal trial even begins. There are many people who believe only the prosecution's claims, turn a deaf ear to the defendant's rebuttals, and condemn the defendant by presuming guilt. Therefore, the prior disclosure of criminal facts adversely affects fair trials and is a harmful practice that threatens the rule of law and democracy.

Now, we have come to realize that the prosecution is not a 'representative of the public interest' but a party with its own interests, unwilling to reduce its authority and passive about prosecution reform. This awareness that the prosecution's claims can be unfair is a significant advancement from a democratic perspective.

Some argue that the Minister of Justice's refusal to submit materials requested under the National Assembly-related laws is illegal. However, the Constitution, which takes precedence over the National Assembly Act, not only guarantees the public's right to a fair trial but also explicitly states that the National Assembly shall not request materials for the purpose of interfering with ongoing trials. Nevertheless, attempts to obtain indictments of ongoing cases under the pretext of agenda review, disclose them to the media, and spread impressions of guilt to criticize defendants have been repeated. Such improper demands and conduct by members of the National Assembly may rather constitute abuse of authority.

Some claim that indictments are disclosed in the United States as well. However, according to the judicial manual applicable to federal prosecutors, prosecutors cannot disclose case details if it threatens a fair trial, and such decisions are made by the Department of Justice. Stricter requirements apply to congressional requests. Moreover, the indictment itself is vastly different from ours. Most indictments are about 10 pages long and briefly describe the facts. The content of the indictment is 'allegations,' and there is a cautionary note that the defendant is presumed innocent until guilt is confirmed. In contrast, the indictment disclosed by one media outlet in this case is over 70 pages long and reprimands the accused with definitive expressions of detailed criminal facts. There is no mention of the presumption of innocence, and even statements from the defendant and witnesses are quoted as is. These matters are all important criminal facts that must be confirmed through cross-examination in court by judges and jurors. The name 'indictment' does not mean the content is the same. Comparison with the United States is meaningless.

Although indictments were disclosed during the Roh Moo-hyun administration in 2005, that was before the introduction of citizen participation trials, and during the 2016 political scandal, it was the media, not investigative agencies or the Ministry of Justice, that uncovered hidden truths, so the subject of disclosure was different from that of the Ministry of Justice. Considering freedom of the press, our crime of disclosing suspect facts targets investigative agencies, not the media. The public's right to know is naturally guaranteed once the trial begins.

Finally, some question why this case in particular. However, it should be recalled that after the excessive investigation and indiscriminate media coverage of former Minister of Justice Cho Kuk last year, the Ministry of Justice's regulations were revised in October and implemented from December. Rather, the same principles should be demanded to be applied to other cases in the future. The crime of disclosing suspect facts, established in 1953, no longer fits the changed system and consciousness and should be revised on this occasion.

Han Sang-hoon, Professor, Yonsei University Law School