Conflict between the Corruption Investigation Office and Prosecution over 'Transfer' and 'Warrant' Deepens... "Confusion Inevitable Until Legal Revision" (Part 2)

On the afternoon of January 21, at the government Gwacheon complex, Nam Gi-myeong, head of the Preparatory Group for the establishment of the Corruption Investigation Office for High-ranking Officials, Choo Mi-ae, Minister of Justice, Yoon Ho-jung, Chairman of the National Assembly Legislation and Judiciary Committee, and Kim Jin-wook, Chief of the Corruption Investigation Office, unveiled the office signboard during the inauguration ceremony. Photo by Moon Ho-nam munonam@

[Asia Economy Reporter Choi Seok-jin] The conflict over the division of authority between the High-ranking Officials' Crime Investigation Office (HCIO) and the prosecution, which began over the scope of case transfers, is intensifying due to the recently enacted and promulgated "HCIO Case Handling Rules" (hereinafter referred to as the Case Handling Rules) by the HCIO.

While this can be seen as an inevitable phenomenon arising during the institutional establishment of the newly created HCIO, there are also criticisms that the HCIO hastily included gaps created by the rapid passage of the law without sufficient consultation during the legislative process into the rules, thereby inviting controversy.

Both the HCIO and the prosecution emphasize inter-agency cooperation externally, but since there seems to be little chance of narrowing differences during practical consultations, confusion is inevitable until authoritative interpretations of the "Act on the Establishment and Operation of the High-ranking Officials' Crime Investigation Office" (HCIO Act) or the Case Handling Rules, which are currently controversial in courts or the Constitutional Court, are issued or the law is amended.

The most controversial provisions among the Case Handling Rules enacted and promulgated by the HCIO are ▲ Article 14, Paragraph 3, Subparagraph 1 (b) and Article 25, Paragraph 2, which explicitly stipulate the "transfer with prosecution rights reserved," the biggest point of conflict with the prosecution ▲ Article 25, Paragraph 3, which assumes that the police can apply for arrest warrants to the HCIO instead of the prosecution ▲ Articles 28, Paragraph 2, and 31, Paragraph 1, which stipulate that the HCIO can forward cases to the prosecution for crimes where it only has investigative authority without prosecution rights and that the prosecution can decide not to prosecute.

Prior to this, there is a significant difference in perspective between the HCIO and the prosecution regarding the legal nature of the "HCIO Rules," specifically whether the HCIO rules can regulate matters related to citizens' rights and obligations such as bodily freedom or relationships with other state agencies.

HCIO Establishes Rule Allowing Police to Apply for Warrants to HCIO in Case Handling Rules

At the beginning of this month, the HCIO enacted and promulgated the Case Handling Rules, stipulating in Article 25 (Transfer to Other Investigative Agencies, etc.), Paragraph 3 that "When judicial police officers apply for warrants, etc., to the HCIO for cases where the HCIO has investigative and prosecution rights pursuant to Article 3, Paragraph 1 of the Act, the case handling staff shall separately receive the application forms for warrants, etc., along with related records for each application."

The types of warrants listed from items 1 to 4 include arrest warrants, detention warrants, seizure warrants, search warrants, and verification warrants.

Article 3, Paragraph 1, Subparagraph 2 of the HCIO Act stipulates that for high-ranking officials' crimes and related crimes committed by the Chief Justice of the Supreme Court, Supreme Court Justices, Prosecutor General, judges, prosecutors, and police officers of rank Superintendent or higher during their tenure or by their family members, the HCIO has not only investigative authority but also prosecution and prosecution maintenance rights.

This provision assumes that when the HCIO transfers a case for which it has prosecution rights to the police, and the police seek to obtain detention or search warrants for suspects during the investigation, they must naturally apply for such warrants to the HCIO.

The HCIO holds the position that since HCIO prosecutors have the authority to request arrest, detention, seizure, and search warrants pursuant to Article 8, Paragraph 4 of the HCIO Act, which allows them to perform the duties of prosecutors as stipulated in Article 4 of the Prosecutors' Office Act, the HCIO must receive warrant applications from the police and apply for warrants to the court for cases transferred to the police.

One of the main arguments supporting this position is that if the police must apply for search or detention warrants to the prosecution when the HCIO transfers high-ranking officials' crime cases to the police for investigation, it contradicts the purpose of establishing the HCIO Act, which allows the HCIO to investigate and prosecute prosecutors' high-ranking officials' crime cases.

Constitutional Court Upholds Constitutionality of Article 8, Paragraph 4 of HCIO Act... Recognizes HCIO Prosecutors' Warrant Application Rights

Article 12, Paragraph 3 of the Constitution states, "When making an arrest, detention, seizure, or search, a warrant issued by a judge upon the request of a prosecutor must be presented in accordance with due process."

Article 201, Paragraph 1 of the Criminal Procedure Act states, "When there is reasonable suspicion that a suspect has committed a crime and any of the reasons listed in Article 70, Paragraph 1 apply, a prosecutor may request a detention warrant from the judge of the competent district court and detain the suspect, and judicial police officers may apply to the prosecutor, who then requests a detention warrant from the judge of the competent district court to detain the suspect."

Earlier in January, the Constitutional Court ruled constitutional the scope of duties of HCIO prosecutors stipulated in Article 8, Paragraph 4 of the HCIO Act in a constitutional complaint case.

The majority opinion of the court stated that the claim that the provision infringed on the constitutional warrant application rights of prosecutors was unfounded, explaining that "the prosecutor as the warrant applicant under the Constitution refers to a state agency exercising prosecutorial authority, representing the public interest and protecting human rights during the investigation stage, and is not limited to prosecutors under the Prosecutors' Office Act," thereby recognizing the warrant application rights of HCIO prosecutors.

Prosecution: "Contrary to Amended Criminal Procedure Act"... Police Must Apply for Warrants to Prosecutors Even in Transferred Cases

On the other hand, the prosecution argues that Article 25, Paragraph 3 of the Case Handling Rules, which assumes that the police can apply for warrants to the HCIO in transferred cases, violates the current Criminal Procedure Act.

Although the HCIO Act allows HCIO prosecutors to perform the duties of prosecutors under the Prosecutors' Office Act and the Constitutional Court has ruled the relevant provision constitutional, confirming that HCIO prosecutors have warrant application rights, the prosecution contends that HCIO prosecutors can only apply for detention or search warrants when the HCIO directly investigates cases, not when cases are transferred to the police.

The current Criminal Procedure Act, amended on February 4 last year and effective this year, abolished the prosecutor's "investigative supervision authority" over the police as part of the adjustment of investigative authority between the prosecution and police, but newly established in Article 197-2, Paragraph 1 the prosecutor's "right to request supplementary investigation" to judicial police officers.

This means that when the prosecutor deems the investigation insufficient to decide whether to prosecute or whether to apply for a warrant in cases transferred by the police, the prosecutor can request supplementary investigation from the police.

Paragraph 3 of the same article also newly establishes the "right to request disciplinary action," allowing the Prosecutor General or heads of prosecution offices to request the exclusion from duty or disciplinary action of judicial police officers who unjustifiably refuse to comply with the prosecutor's supplementary investigation request.

The HCIO Act was enacted in January last year and came into effect in July of the same year. In other words, even though the Criminal Procedure Act, which newly established the prosecutor's right to request supplementary investigation and the right of the Prosecutor General and heads of prosecution offices to request disciplinary action against the police, was amended after the HCIO Act was created, the Criminal Procedure Act does not include provisions allowing HCIO prosecutors to request supplementary investigations from the police or the HCIO chief to request disciplinary action, indicating that the police did not consider the possibility of applying for warrants to the HCIO, according to the prosecution.

The prosecution also argues that such confusion over the subject of warrant applications could hinder the defense rights of the parties involved in the cases.

Before Amendment of HCIO Act or Rulings by Constitutional Court or Courts... Police Likely to Face Choice

Both the HCIO and the prosecution have their own logical arguments, making it difficult to find a point of agreement.

Therefore, until the HCIO Act is amended or rulings on the validity or interpretation of the HCIO Act or the HCIO Case Handling Rules are issued by the Constitutional Court or courts, the power struggle between the HCIO and the prosecution is expected to continue.

Ultimately, when the HCIO transfers a case to the police and the police need to apply for search or detention warrants, the police will likely face a situation where they must choose whether to apply for warrants to the HCIO as stipulated in the HCIO rules or to the prosecution according to the Criminal Procedure Act.

Meanwhile, like the prosecution, the police recently stated that the HCIO Case Handling Rules regarding "transfer with prosecution rights reserved" do not have binding force over other investigative agencies.