[Law & Story] Public Prosecution Deliberation Committee and Prosecutor’s Investigation Deliberation Committee through the Case of Superintendent Cho Hee-yeon

On July 27, Cho Hee-yeon, Superintendent of Seoul Metropolitan Office of Education, appeared at the High-ranking Officials' Crime Investigation Department in Gwacheon, Gyeonggi Province. / Gwacheon = Photo by Kang Jin-hyung aymsdream@

In Choi Seok-jin's Legal Stories, we aim to cover various issues revolving around the legal community, focusing on courts and prosecutors. We plan to write somewhat freely on topics such as the legal points or prospects of major cases, behind-the-scenes stories, and untold anecdotes without being bound by specific themes or formats. Today’s seventh story is about the Public Prosecutor’s Office’s Public Prosecution Deliberation Committee and the Prosecutor’s Investigation Deliberation Committee.

[Asia Economy, Legal Affairs Specialist Reporter Choi Seok-jin] The Public Corruption Investigation Office for High-ranking Officials (PCC) is embroiled in controversy over the Public Prosecution Deliberation Committee (PPDC) meeting held regarding the special hiring allegations of dismissed teachers involving Cho Hee-yeon, the Seoul Metropolitan Office of Education Superintendent, which is the PCC’s 'first case' under investigation.

The PPDC recently resolved, with the majority of attending members voting in favor, to recommend prosecution against Superintendent Cho and former Chief Secretary Han, who are accused of abuse of authority. However, Superintendent Cho’s side requested a reconvening of the committee, claiming their right to present their opinions was not guaranteed.

Since Superintendent Cho’s case is the first to be assigned a case number by the PCC and is a case over which the PCC does not have prosecution authority, attention is focused on whether it will lead to prosecution by the prosecution and a guilty verdict in court.

So, is Superintendent Cho’s side’s claim that the procedure was violated because the suspect was excluded from the opportunity to appear and present opinions before the committee members, while the investigating prosecutor attended from the start of the meeting and presented opinions, valid? And is the PPDC’s resolution therefore invalid?

Superintendent Cho is accused of directing the Chief Secretary to improperly interfere with the selection of screening committee members to enable the special hiring of five dismissed teachers, including four from the Korean Teachers and Education Workers Union (KTU) in 2018, and excluding the then Deputy Superintendent who opposed this from their duties (charges of abuse of authority and obstruction of official duties and violation of the National Public Officials Act).

The PPDC is closer to a specialized investigation advisory panel than the Prosecutor’s Investigation Deliberation Committee

According to the 'Guidelines on the Operation of the Public Prosecution Deliberation Committee of the Public Corruption Investigation Office for High-ranking Officials' (PCC Regulation No. 11), which is the basis for establishing and operating the PPDC, there appears to be no significant procedural defect in the recent PPDC meeting.

Superintendent Cho’s side raised two main issues.

First, they argued that the PPDC violated the rights of the suspect or defense counsel to be notified in advance of the PPDC convening, to present statements at the PPDC, and to participate in the PPDC procedures, and that the resolution was made despite this. Second, they claimed that the attendance of the prosecutor violated the guidelines.

Regarding the infringement of the right to present opinions, Superintendent Cho’s side compared the case to the Prosecutor’s Investigation Deliberation Committee (PIDC).

The Supreme Prosecutors’ Office regulation, 'Guidelines on the Operation of the Prosecutor’s Investigation Deliberation Committee,' Article 13 (Submission of Opinion Documents, etc.) stipulates that the chief prosecutor and the applicant who requested the PIDC may submit opinion documents of up to 30 pages (A4) to the committee members on the day of deliberation.

Article 14 (Oral Statements, etc.) of the PIDC guidelines allows both the chief prosecutor and the applicant to attend the committee and present explanations or opinions on the case within 30 minutes, and to receive questions from and respond to the committee members.

However, the problem is that the PPDC guidelines do not include such procedural participation rights for the applicant side.

In response, a PCC official explained, "The PIDC members are composed of ordinary citizens, so it is effective for both sides to attend and explain, similar to a jury system. However, the PPDC is composed entirely of legal experts who review legal issues such as whether the investigation meets basic requirements, whether evidence or testimony has been secured on legal points, and whether there is sufficient value for prosecution."

In other words, the PCC’s position is that the PPDC is a different body from the PIDC.

In fact, examining the PPDC guidelines reveals many similarities to the prosecution’s specialized investigation advisory panel rather than the PIDC.

In the case of the PIDC, the convening authority is the Prosecutor General, but the request to convene is made by the Chief Prosecutor or the subcommittee composed of prosecution citizen committee members from each prosecution office. Complainants, institutional accusers, victims, suspects, and defense counsel can apply to convene the prosecution citizen committee.

In contrast, the PPDC is convened only at the request of the PCC Chief and by the PPDC Chairperson. The guidelines do not provide a procedure for suspects or defense counsel to request convening the PPDC.

Regarding oral statements, the PPDC guidelines only stipulate that the chief prosecutor prepares an opinion document and distributes it to the members on the day of deliberation (Article 8), and Article 9, Paragraph 3 states, "The committee may, if deemed appropriate, have the investigating prosecutor attend to provide explanations or opinions," but there is no procedure for the parties involved in the case to attend and present opinions.

This is similar to the 'Specialized Investigation Advisory Panel' regulated by the Supreme Prosecutors’ Office regulation 'Guidelines on the Operation of Consultative Bodies for Rational Decision-Making.'

The specialized investigation advisory panel established at the Supreme Prosecutors’ Office is convened by the Prosecutor General (Article 14), and investigation teams from local prosecution offices, relevant departments of the Supreme Prosecutors’ Office, and human rights investigation advisors may submit opinion documents and related materials to the advisory panel (Article 15). Also, investigation team members from local offices may attend the advisory panel to explain or present opinions on the case (Article 16).

In terms of member composition, with prosecutors and legal scholars as legal experts, the PPDC is similar to the specialized investigation advisory panel.

Thus, the PIDC and the specialized investigation advisory panel are completely different systems. This can be seen by comparing the purposes stipulated in Article 1 of each guideline.

Article 1 (Purpose) of the PIDC guidelines states, "The purpose of these guidelines is to stipulate necessary matters for the operation of the 'Prosecutor’s Investigation Deliberation Committee' (hereinafter referred to as the 'committee') established to enhance public trust in the procedures and results of prosecution investigations."

The PIDC system was introduced during the tenure of former Prosecutor General Moon Moo-il as one of the prosecution’s self-reform measures amid a strong government and ruling party drive for prosecution reform.

It was introduced as a means to check the prosecution’s exclusive right to prosecute by listening to the opinions of ordinary citizens rather than legal experts.

On the other hand, the specialized investigation advisory panel was created to make more rational decisions when various views arise within the prosecution on legal issues in socially significant cases.

The related guideline Article 1 (Purpose) states, "The purpose of these guidelines is to stipulate matters concerning the composition and operation of consultative bodies and advisory panels (hereinafter referred to as 'consultative bodies, etc.') established at the Supreme Prosecutors’ Office and local prosecution offices for rational decision-making on important matters."

Article 1 (Purpose) of the PPDC guidelines states, "The purpose of these guidelines is to stipulate necessary matters concerning the composition and operation of the Public Prosecution Deliberation Committee of the Public Corruption Investigation Office for High-ranking Officials, established to make substantial and rational decisions on the duties of PCC prosecutors regarding prosecution initiation, prosecution initiation requests, prosecution maintenance, and exercise of appellate rights." Like the specialized investigation advisory panel, it is a system designed to assist prosecutors in making rational decisions.

Thus, although the PPDC’s name resembles the prosecution’s PIDC, in terms of establishment purpose, convening authority, member composition, and procedures, it is closer to a specialized investigation advisory panel.

The PCC, which has emphasized human rights-friendly investigations... unlikely to accept Superintendent Cho’s request to reconvene the PPDC

The PCC has consistently emphasized 'human rights-friendly investigations.'

Since the PCC’s establishment itself was part of prosecution reform, it is true that it needs to show a differentiated image from the existing prosecution.

The PPDC is likely one of the systems introduced by the PCC from this perspective, but naming the system similarly to the PIDC, which involves ordinary citizens, has caused confusion like the current situation.

If the PPDC system had clearly stated from the outset that it is an advisory body to assist the PCC Chief or PCC prosecutors in decision-making on cases under investigation, situations like Superintendent Cho’s side’s backlash might have been avoided.

Within the ruling party and its supporters, there is considerable dissatisfaction over whether the PCC, introduced as part of prosecution reform, had to investigate the allegations of irregular hiring against Superintendent Cho, a ruling party figure, as its 'first case.' The decision by PCC Chief Kim Jin-wook to convene the PPDC seems partly aimed at finding justification for the inevitability of prosecuting Superintendent Cho.

However, according to the relevant guidelines, the fact that Superintendent Cho’s side was blocked from attending and presenting opinions at the meeting has led to criticism that the procedure was conducted while infringing on the suspect’s rights, resulting in a backlash.

Superintendent Cho’s side is surely aware that the PPDC guidelines do not stipulate a procedure for the suspect’s side to attend and present opinions.

However, their argument is that the suspect or defense counsel’s right to participate in criminal procedures is guaranteed by the PCC guidelines regardless of whether it is explicitly stated, and is a right protected under the Constitution and the Criminal Procedure Act.

In other words, their logic is that this right is not created only when stipulated in the PPDC guidelines, which are administrative rules enacted without delegation from higher laws, but is guaranteed by the principle of equality of arms in criminal procedure and the right of defense counsel to participate in investigation procedures as stipulated in the Criminal Procedure Act.

The second argument by Superintendent Cho’s side, claiming violation of guidelines regarding the investigating prosecutor’s attendance at the committee, seems somewhat excessive.

They argue that the guidelines allow the investigating prosecutor to attend and provide explanations only when the committee deems it appropriate, but in this case, Chief Prosecutor Kim Seong-moon, who investigated the case, attended and presented opinions from the beginning of the meeting before the committee made such a determination, thus violating the guidelines. However, since the guidelines stipulate the procedure for the investigating prosecutor’s attendance and opinion presentation, and no committee member objected, it appears there is no problem.

Personally, it seems unlikely that Chief Kim will accept Superintendent Cho’s request to reconvene the PPDC.

During the investigation, Superintendent Cho’s side requested more than two weeks after the summons to submit opinion documents, which led to criticism that the PCC was delaying the investigation.

The PCC explained that all opinion documents submitted by Superintendent Cho’s side several times, totaling over 100 pages, were delivered to the PPDC members in their original form.

Remaining procedure... final decision on prosecution rests with the prosecution

Under the PCC Act, the PCC does not have prosecution authority over Superintendent Cho’s abuse of authority charges.

According to the PCC Act, after completing the investigation of Superintendent Cho, the PCC will send related documents and evidence to the Seoul Central District Prosecutors’ Office, which has jurisdiction, and request prosecution.

Interpretation of the PCC Act indicates that the prosecution is not bound by the PCC’s prosecution request and will make the final decision on whether to prosecute.

Since the PCC’s establishment, the PCC and prosecution have clashed over several issues, including 'prosecution authority with reservation transfer,' 'scope of cases mandatorily transferred to the PCC,' and 'PCC’s non-prosecution decision authority over cases without prosecution authority.'

While there have been some confusions due to the incompleteness or deficiencies of the newly established PCC-related laws, it can be seen as a power struggle between the two agencies over the status of the top investigative body.

Since these are the first cases after the system’s introduction, it is natural for each agency to avoid unfavorable practices or legal interpretations.

There is no dispute that when the PCC completes investigation of a case without prosecution authority and sends it to the prosecution, the prosecution may conduct additional investigations to decide whether to prosecute.

However, there is controversy over whether the prosecution can request supplementary investigations from the PCC and the extent to which the PCC’s prosecution request binds the prosecution.

In this case involving Superintendent Cho, the facts are relatively straightforward, and it is known that testimonies from related parties and physical evidence such as mobile phone text messages have already been secured, so it seems unlikely that the prosecution will dismiss the case despite the PCC’s prosecution request.

Meanwhile, if Chief Kim does not accept the request to reconvene the PPDC, Superintendent Cho’s side may challenge the validity of the PPDC guidelines.

For example, they could argue that the PPDC procedures completely deny the suspect’s right to participate, infringing on Superintendent Cho’s fundamental rights, and file a constitutional complaint with the Constitutional Court claiming the guidelines are unconstitutional. However, since the Constitutional Court’s decision would take considerable time and there is debate over whether the procedures established internally by the PCC for rational decision-making must include the suspect’s attendance and opinion presentation, the likelihood of such a constitutional complaint is low.

Rather, after the case is transferred to the prosecution, there remains the possibility that Superintendent Cho’s side will apply to convene the PIDC at the Seoul Central District Prosecutors’ Office to seek judgment from ordinary citizens.

However, given that the PPDC, composed of legal experts, has already resolved that prosecution is necessary for Superintendent Cho’s abuse of authority charges, it is questionable how meaningful it would be for the PIDC, composed mostly of non-legal experts, to resolve a 'non-prosecution opinion.'

Questioning the efficiency of the investigation deliberation committee system... should not serve as a justification for non-prosecution in political cases

Personally, I have fundamental doubts about whether the current PIDC system is an effective means of controlling the prosecution.

Despite the PIDC’s resolutions of 'investigation suspension and non-prosecution opinions,' the prosecution indicted Samsung Electronics Vice Chairman Lee Jae-yong and has not yet suspended the investigation of Prosecutor General Han Dong-hoon. It is easy to see from several past cases that the prosecution indicts suspects it wants to indict and investigates them regardless of the PIDC’s conclusions. This is because the PIDC’s resolutions have no binding force on prosecutors and only advisory effect.

In the Channel A case, where opinions were divided within the prosecution over the establishment of the 'attempted coercion' crime, former Minister of Justice Choo Mi-ae blocked former Prosecutor General Yoon Seok-youl’s attempt to convene the specialized investigation advisory panel to hear legal experts’ opinions through investigation directives. Instead, the convened PIDC resolved a 'prosecution opinion' against former Channel A reporter Lee Dong-jae, but the court ultimately acquitted him. The court ruled that the essential element of 'threat of harm' required for the crime of coercion under criminal law was absent.

There is no dispute that Lee’s actions were clearly against journalistic ethics and morally condemnable, but the legal judgment on whether the elements of 'attempted coercion' were met is a difficult issue that can be controversial even among experts, so having ordinary citizens without legal knowledge decide is somewhat unreasonable.

Moreover, regarding the recent allegations of manipulation of the economic feasibility evaluation of the Wolseong Nuclear Power Plant Unit 1, the Daejeon District Prosecutors’ Office investigation team sought to apply charges of breach of trust against former Minister of Trade, Industry and Energy Baek Woon-gyu, but Prosecutor General Kim Oh-soo opposed this and decided to convene the PIDC. The PIDC’s 'non-prosecution opinion' resolution has served as a justification for the Prosecutor General to block the investigation team’s prosecution.

While no one can guarantee whether the court will ultimately convict or acquit, I believe the investigation team’s judgment that prosecution is necessary based on the revealed facts, evidence, and testimonies should be respected.

Notably, it was revealed that among the PIDC members was lawyer Oh Ji-won, spouse of Democratic Party lawmaker Itan-hee, which sparked fairness controversies. Oh, a member of the progressive lawyers’ group Lawyers for a Democratic Society (Minbyun), participated in the Sewol Ferry Special Investigation Commission and publicly criticized former Prosecutor General Yoon several times online.

Among the PIDC members, mostly non-legal experts, it cannot be ruled out that lawyer Oh actively advocated the non-prosecution opinion and influenced other members’ judgments. Concerned about this, the investigation team requested her recusal, but the PIDC rejected it.

When the PIDC convenes, 15 members who can attend the deliberation date are randomly selected from 150 to 250 PIDC members. However, if a person with a particular political inclination is included in the initial member pool or among those able to attend, as in this case, political judgments are highly likely to prevail over legal judgments.

It is time to reconsider and improve the PIDC system as a whole.