[Column] Lee Seong-yoon, Chief Prosecutor, Must Make a Decision on Han Dong-hoon’s Indictment or Non-Indictment

Seokjin Choi, Head of the Legal Affairs Team.

[Asia Economy Reporter Choi Seok-jin] The year following the appointment of Minister of Justice Chu Mi-ae at the beginning of last year was marked by relentless conflict between Minister Chu and Prosecutor General Yoon Seok-youl, leaving Seocho-dong in turmoil.

To be more precise, rather than calling it a conflict, it would be more accurate to say that Minister Chu launched a one-sided attack against Prosecutor General Yoon.

Through two rounds of prosecutorial personnel reshuffles, most prosecutors trusted by Prosecutor General Yoon, including the senior staff of the Supreme Prosecutors' Office, were demoted to less significant positions, replaced by prosecutors categorized as part of the ‘Chu Mi-ae line’ or the ‘Lee Seong-yoon line.’

Due to several directives from Minister Chu regarding investigations and inspections, investigations are still ongoing into Prosecutor General Yoon himself, his family, and close associates.

However, no investigation results have yet shown that Prosecutor General Yoon exerted undue influence or intervened improperly in investigations concerning his family or associates, and the disciplinary actions against Prosecutor General Yoon, which Minister Chu aggressively pushed, were twice halted by the courts.

With the disciplinary actions against Prosecutor General Yoon failing, although it appeared as a voluntary resignation, Minister Chu was effectively dismissed, and Park Beom-gye, a member of the Democratic Party of Korea, was nominated as the successor minister, with a confirmation hearing scheduled for this week.

The ‘Prosecutor-Media Collusion’ Case Directed by Minister Chu... The Investigation Results Are Meager

Among Minister Chu’s various investigative directives, the one that drew the most attention was the July investigation directive last year concerning the ‘Prosecutor-Media Collusion’ case.

At that time, prosecutors affiliated with the Supreme Prosecutors' Office were skeptical about whether Prosecutor General Han Dong-hoon (then Deputy Chief Prosecutor of Gwangju High Prosecutors' Office) could be seen as conspiring to coerce Channel A reporter Lee Dong-jae and former VIK (Value Invest Korea) CEO Lee Cheol, as reported by MBC.

After reviewing this, Prosecutor General Yoon decided to convene a special investigative advisory panel composed of external legal experts following a Supreme Prosecutors' Office chiefs meeting.

However, on July 2, last year, Minister Chu issued an investigative directive to halt the advisory panel’s review process and ordered the independent investigation by the Seoul Central District Prosecutors' Office team, which was not under the supervision of the Supreme Prosecutors' Office, thereby completely excluding Prosecutor General Yoon’s investigative authority and entrusting full authority to Lee Seong-yoon, the head of the Seoul Central District Prosecutors' Office.

Consequently, the investigation proceeded under Prosecutor Lee’s command without involvement from the Supreme Prosecutors' Office, but internal criticism arose within the prosecution, accusing the investigation team of conducting unfair and biased investigations. On July 7, last year, Deputy Chief Prosecutor Jeong Hee-do publicly questioned these suspicions via the internal prosecution network ‘Eprose,’ to which Deputy Chief Prosecutor Jeong Jin-woong responded the same day, stating that “the investigation has secured numerous important pieces of evidence and is substantially approaching the substantive truth,” calming the criticism inside and outside the prosecution.

However, contrary to Deputy Chief Prosecutor Jeong’s confident remarks, the Prosecutorial Investigation Deliberation Committee held on July 24 that same year, with nearly unanimous quorum, resolved to ‘halt the investigation’ and ‘recommend non-prosecution’ of Prosecutor Han Dong-hoon. From the perspective of ordinary citizens’ common sense, it was concluded that the evidence presented by the prosecution was insufficient to recognize a conspiracy with former reporter Lee.

Despite the committee’s recommendation to stop the investigation, Prosecutor Lee did not cease the investigation against Prosecutor Han. Instead, to secure additional evidence, Deputy Chief Prosecutor Jeong Jin-woong, head of the investigative department, personally went to the Legal Research and Training Institute in Yongin, Gyeonggi Province, where Prosecutor Han was stationed, attempting to seize Han’s mobile phone SIM card, which led to an incident where Prosecutor Han was assaulted. Prosecutor Jeong was subsequently indicted and is currently on trial for ‘official assault’ under the Act on the Aggravated Punishment of Specific Crimes.

Nevertheless, Deputy Chief Prosecutor Jeong was promoted to Deputy Chief Prosecutor of Gwangju District Prosecutors' Office in the personnel reshuffle on August 27 last year and has not been removed from duty despite being indicted for assaulting a suspect during his official duties. This situation is difficult to understand, especially compared to last June when Minister Chu transferred Prosecutor Han to the Legal Research and Training Institute before the investigation had even begun in earnest, and in October last year, when Prosecutor Han was ordered to report to Jincheon, Chungbuk, the day after criticizing Minister Chu while working at the Yongin branch.

Most notably, on August 5 last year, the Criminal Division 1 of the Seoul Central District Prosecutors' Office (headed by Deputy Chief Prosecutor Jeong Jin-woong) indicted former Channel A reporter Lee Dong-jae on charges of ‘attempted coercion’ but ultimately failed to list Prosecutor Han as a co-conspirator in the indictment.

Lee Seong-yoon Delays Approval of Han Dong-hoon’s ‘No Charges’... Waiting for Ministerial Change?

Recent media reports revealed that Lee Seong-yoon, head of the Seoul Central District Prosecutors' Office, has been refusing to approve the ‘no charges’ disposition for Prosecutor Han Dong-hoon, who was investigated as a suspect in the ‘Channel A case.’

Prosecutor Lee rejected the detailed report exceeding 100 pages submitted last month by the Channel A investigation team explaining the basis for the ‘no charges’ conclusion and asked Second Deputy Chief Prosecutor Choi Seong-pil to review it again.

Originally, the Criminal Division 1 is under the command of the first deputy chief prosecutor of the Central District Prosecutors' Office, but since December last year, after First Deputy Chief Prosecutor Kim Wook-joon expressed his protest resignation, demanding an immediate halt to measures threatening the prosecution’s political neutrality and existence, Deputy Chief Prosecutor Choi has been acting in the role of first deputy chief prosecutor.

Even though Deputy Chief Prosecutor Choi agreed with the investigation team’s ‘no charges’ conclusion, Prosecutor Lee’s delay in approval led the entire investigation team to recently request a meeting with Prosecutor Lee to reiterate their opinions.

Nonetheless, Prosecutor Lee is reportedly refusing approval on the grounds that the digital forensic analysis of Prosecutor Han’s mobile phone has not yet been completed.

It seems Prosecutor Lee believes that if only the phone could be examined, some evidence might be found, and without unlocking the password, he cannot close the case with a ‘no charges’ decision.

However, this is merely Prosecutor Lee’s wish. After ten months of investigation without finding evidence to prove the charges, ignoring the unanimous opinion of the investigation team and delaying further is close to an abuse of authority.

A prosecutor, who must judge the establishment of a crime strictly based on objective evidence, especially the head of the Seoul Central District Prosecutors' Office, which handles the country’s most important cases, deliberately delaying case processing due to subjective beliefs, suspicions, or political considerations is an act against justice.

In particular, considering that Deputy Chief Prosecutor Jeong Jin-woong, who was in charge of the investigation as head of the Criminal Division 1 of the Seoul Central District Prosecutors' Office last July, stated that “the investigation has secured numerous important pieces of evidence and is substantially approaching the substantive truth” regarding the ‘Prosecutor-Media Collusion’ case, and Minister of Justice Chu Mi-ae confidently asserted that “there is more than enough evidence,” Prosecutor Lee’s refusal to approve based on the phone is illogical.

Where did all that abundant evidence go? Did they lie about having evidence to calm the public opinion, which had turned unfavorable due to ‘biased investigation’ allegations? Is the case being delayed because they cannot prosecute without finding something in the phone?

It appears that Prosecutor Lee’s attitude is partly out of consideration for Minister Chu.

As mentioned earlier, Minister Chu prematurely labeled this case as ‘Prosecutor-Media Collusion’ early in the investigation and deprived Prosecutor General Yoon of his investigative authority, entrusting full authority to Prosecutor Lee.

However, if Prosecutor Lee personally approves the ‘no charges’ non-prosecution disposition for Prosecutor Han, it would effectively acknowledge that Minister Chu’s investigative directive was inappropriate.

It is unclear whether Prosecutor Lee intends to conclude the case only after Minister Chu steps down or if he cannot approve it himself and plans to leave the position of head of the Seoul Central District Prosecutors' Office and leave the case to his successor, but neither scenario appears to be fair or proper handling of the case.

Proving Charges Is the Investigation Agency’s Responsibility... Not a Matter to Blame Prosecutor Han

Among ruling party politicians and supporters of the current government, some criticize Prosecutor Han for not disclosing his mobile phone password, asking, “If you are innocent, why not provide the password?”

Minister Chu even announced in November last year that she would consider legislation to forcibly unlock suspects’ mobile phone passwords targeting Prosecutor Han, but the Korean Bar Association, Seoul Bar Association, and even the pro-government Lawyers for a Democratic Society (Minbyun) criticized this as violating the constitution and the rule of law, leading her to quietly back down.

The presumption of innocence principle, which requires treating any suspect or defendant as innocent until proven guilty, is a fundamental principle of criminal law guaranteed by the constitution, and the right to refuse to testify against oneself is a constitutional basic right.

Former Minister of Justice Cho Kuk denied all charges applied to himself and his family throughout the prosecution investigation, claiming innocence and vowing to “reveal everything in court,” but once the trial began, he reversed his stance and exercised his right to remain silent in court.

While Cho may be morally criticized for reversing his initial statements, as a criminal defendant exercising his constitutionally guaranteed right to refuse self-incriminating testimony, he should not be blamed.

Moreover, the responsibility to prove criminal charges lies entirely with the investigative agencies, and securing evidence through lawful procedures is the role of the prosecution or police.

Article 155, Paragraph 1 of the Criminal Act states that “anyone who destroys, hides, forges, or alters evidence related to another person’s criminal or disciplinary case, or uses forged or altered evidence, shall be punished by imprisonment for up to five years or a fine of up to 7 million won.”

However, the legislature decided not to punish evidence destruction when a suspect hides or destroys evidence related to their charges because such behavior is a natural human reaction, and expecting the opposite is unreasonable.

The Supreme Court has consistently held that while instructing others to destroy evidence related to one’s crime can be punished as evidence destruction instigation, self-destruction of evidence cannot be punished.

This was the reason why the court last month recognized that former Minister of Justice Cho Kuk and his wife, Professor Jung Kyung-rim of Dongyang University, conspired to hide the hard disk of their home PC and the PC in the Dongyang University professor’s research office but did not convict Professor Jung of evidence destruction.

Returning to Prosecutor Han’s case, even if he hid the mobile phone or damaged it beyond recovery, it would legally be no problem and not subject to criticism.

However, misleading public opinion as if Prosecutor Han’s refusal to disclose the password of the seized mobile phone was the decisive reason for the lack of progress in the investigation is a distortion of facts.

No matter how strongly suspected, it is the investigation agency’s responsibility to find hidden incriminating evidence and unlock passwords, and if that is not feasible, the phone must be returned, which is a basic principle of criminal procedure law.

If, as Deputy Chief Prosecutor Jeong Jin-woong declared, there is already evidence proving Prosecutor Han’s conspiracy, the case should be immediately brought to trial for the court’s judgment.

However, if the prosecution cannot prove the conspiracy between Prosecutor Han and former reporter Lee and thus cannot indict, delaying the case based on vague hopes of finding something in the phone is contrary to the rule of law.

Lee Seong-yoon and Minister Chu Should Make a Decision Before Ministerial Change

One of the reasons Minister Chu and Prosecutor Lee have devoted so much effort to investigating Prosecutor Han is well known: Prosecutor Han is one of the core members of the so-called ‘Yoon Seok-youl faction.’

Prosecutor Han worked closely with Prosecutor General Yoon from the time of the Park Young-soo special prosecutor team investigating the Choi Soon-sil political scandal and was later appointed to key positions such as the 3rd Deputy Chief Prosecutor of the Seoul Central District Prosecutors' Office and head of the Anti-Corruption and Violence Division at the Supreme Prosecutors' Office, enjoying great trust from Prosecutor General Yoon.

Therefore, if the ‘Prosecutor-Media Collusion’ allegations were proven true and Prosecutor Han was indicted, it was expected to deal a significant blow to Prosecutor General Yoon, whose reputation had become a public asset of the government and ruling party following the investigation of former Minister Cho Kuk.

From the left, a Facebook capture of Hwang Hee-seok, Supreme Council Member of the Uri Party, released through the media; a Facebook capture of Ji Mo, the Channel A whistleblower who shared Hwang Hee-seok's Facebook post; and a Facebook capture of Choi Kang-wook, leader of the Uri Party.

On March 31 last year, long before MBC reported on the Prosecutor-Media Collusion allegations, Hwang Hee-seok, a Supreme Council member of the Open Democratic Party, shared a photo on his Facebook with party leader Choi Kang-wook, smiling, and wrote, “Now the two of us are going into operation.”

Just 30 minutes later, Hwang’s post was shared on the Facebook of Ji Mo, the whistleblower in the ‘Channel A case,’ along with the message, “Let’s break them! Yoon Seok-youl’s prosecutors!!”

Several days later, party leader Choi posted on his Facebook a message titled ‘Summary of Channel A reporter Lee Dong-jae’s statements in letters and recordings,’ which included content forcing former reporter Lee to testify that former VIK CEO Lee Cheol gave money to Yoo Si-min, chairman of the Roh Moo-hyun Foundation.

Currently, party leader Choi is under investigation after being reported to the prosecution by a civic group for defamation under the Information and Communications Network Act, claiming the post contained false information.

Chairman Yoo Si-min, regarding his allegations of ‘prosecutorial surveillance of the Roh Moo-hyun Foundation’s accounts,’ coincidentally stated on a radio broadcast on July 24 last year, the same day the Prosecutorial Investigation Deliberation Committee was held for Prosecutor Han, that “it is highly likely that the Anti-Corruption and Violence Division at the Supreme Prosecutors' Office, where Prosecutor Han was, viewed the Roh Moo-hyun Foundation’s accounts,” but later apologized, saying this was not true.

Whether they actually carried out the operation, as Hwang described (the so-called ‘Prosecutor-Media Collusion’ allegations are also under investigation following a civic group’s report), is unknown, but it is true that many ruling party figures, including party leader Choi and Supreme Council member Hwang, expected Prosecutor Han’s criminal punishment. And that operation seems to have ended in near failure.

It has been over five months since the prosecution indicted former reporter Lee. The core of the allegations was that the two conspired, but only one side was indicted, and Prosecutor Han was not named as a co-conspirator. Despite five more months of investigation, nothing has emerged.

Even if Prosecutor Han is not prosecuted, if truly decisive evidence emerges later from his mobile phone, the investigation can be resumed and prosecution pursued.

It is hoped that Prosecutor Lee will make a decision before the ministerial change. It is also expected that Minister Chu will withdraw the transfer order against Prosecutor Han and show a responsible resolution before stepping down.

As long as prosecutors appointed with the regime’s trust and holding key positions in the prosecution are suspected of lacking objectivity and fairness, no matter how much the system is changed, President Moon Jae-in’s prosecution reform is likely to be in vain.