[Law & Story] What's Wrong with the 'Regulation on the Prohibition of Disclosure of Criminal Cases'?

The press is waiting around the photo line installed at the Seoul Central District Prosecutors' Office in Seocho-dong, Seoul. Photo by Hyunmin Kim kimhyun81@

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 marks the sixteenth story, discussing the recently filed constitutional complaint regarding the 'Regulation on the Prohibition of Disclosure of Criminal Cases.'

[Asia Economy, Choi Seok-jin, Legal Affairs Specialist Reporter] #. October 31, 2016, 3 p.m. Choi Seo-won (formerly Choi Soon-sil), a key figure in the Park Geun-hye administration's state affairs manipulation scandal, stood at the photo line installed at the entrance of the Seoul Central District Prosecutors' Office in Seocho-dong, Seoul. The photo line collapsed due to the crowd of reporters and citizens, causing some reporters to fall and one of Choi's shoes to come off, creating a chaotic scene. While some might have felt sympathy seeing Choi being pushed around with her arm held by investigators, most citizens likely felt a moment of satisfaction and relief as they watched Choi, who wielded immense power behind former President Park and ruined the country, say, "I have committed a grave sin. I am sorry. Please forgive me, fellow citizens."

The Disappearance of the Prosecutors' Photo Line... Ministry of Justice Ordinance Established During Former Minister Cho Kuk's Family Investigation in 2019 to Block It

Former and current presidents such as Park Geun-hye, Lee Myung-bak, Roh Moo-hyun, Roh Tae-woo, and Chun Doo-hwan, as well as prime ministers, members of the National Assembly, and major business figures like Lee Jae-yong, Choi Tae-won, and Kim Seung-yeon, could not avoid the prosecutors' photo line.

That photo line disappeared from the prosecution during former Minister of Justice Cho Kuk's tenure. In October 2019, when the prosecution's investigation into Cho Kuk's family, starting with his wife, former Dongyang University professor Jung Kyung-shim, intensified, Cho Kuk created a Ministry of Justice ordinance called the 'Regulation on the Prohibition of Disclosure of Criminal Cases' to replace the existing investigation publicity guidelines, which took effect on December 1 of the same year.

The Regulation on the Prohibition of Disclosure of Criminal Cases principally prohibits the disclosure of information related to criminal cases, such as the suspect's charges, investigation status, and real names of those involved, allowing disclosure only in extremely exceptional cases after resolution by the Criminal Case Disclosure Deliberation Committee and, in principle, only through the chief public relations officer.

Chapter 4 includes provisions related to the protection of portrait rights, prohibiting the disclosure of attendance information such as the date and time of appearance and return of those involved in the case (Article 28, Paragraph 1), and forbidding media or third-party photography, recording, or live broadcasting of all investigative processes such as attendance, investigation, seizure, search, arrest, and detention (Paragraph 2).

Furthermore, the Prosecutor General or heads of each prosecutor's office (chief prosecutors or branch chiefs) may restrict the installation of photo lines within the prosecutor's office (Article 29, Item 2), and heads of prisons or detention centers must take appropriate measures to prevent suspects or defendants from being exposed to the media through photography during transportation for prosecution or court appearances (Article 30).

Of course, discussions about abolishing the prosecutors' photo line based on the constitutional presumption of innocence principle have existed in the past. However, the Moon Jae-in administration, which allowed unfiltered exposure of former government officials such as former President Park Geun-hye, former Chief Secretary Kim Ki-choon, and former Secretary Jeong Ho-sung, including their appearances in prison uniforms during transportation to investigative agencies or courts, suddenly took such measures during investigations into Cho Kuk's family and the Blue House's interference in the Ulsan mayoral election, sparking controversy that this was an attempt to block media coverage of power-related corruption cases.

Regulation on the Prohibition of Disclosure of Criminal Cases Goes to the Constitutional Court... A Matter of Constitutional Justices' Will

Recently, a civic group filed a constitutional complaint with the Constitutional Court, arguing that the Regulation on the Prohibition of Disclosure of Criminal Cases infringes on the public's right to know and freedom of the press, fundamental rights. The petitioner claimed that the regulation has deviated from its original purpose of 'protecting suspects' human rights' and is being misused as a shield against investigations of 'power-related corruption cases.'

Kim Soon-hwan, Secretary-General of the People's Livelihood Countermeasure Committee, identified Articles 4 (which prohibits any disclosure of criminal cases except in permitted cases), 5 (which prohibits disclosure of all content including charges and investigation status before indictment), and 6 (which restricts disclosure even after indictment) as the most problematic provisions.

He also cited Article 32-2, which allows a human rights protection officer to initiate fact-finding investigations and even internal inquiries if a prosecutor or investigator other than the public relations officer is suspected of leaking investigation information to the media, as an unconstitutional provision. This article was added by Minister of Justice Park Beom-gye in August last year and, as will be mentioned later, is highly problematic.

Secretary-General Kim pointed out, "Most criminal cases reported in the media are power-related corruption cases, and this regulation is being used as a shield for such investigations, with the prosecution conducting opaque investigations to downplay the cases."

He continued, "Criminal cases are reported through various channels such as those involved in the case or their lawyers, and allowing internal inquiries based solely on significant suspicion without clear evidence that the investigation team leaked information is excessive legislation," emphasizing, "The mere possibility of an internal inquiry can exert tremendous pressure on the investigation team, and if an inquiry proceeds, the investigation may be halted or severely curtailed."

Secretary-General Kim also stated, "For a democratic rule-of-law state to function properly, the media must raise suspicions, civic groups must file complaints and accusations, the police and prosecution must investigate and prosecute, and the courts must deliver judgments to uncover the truth," adding, "This system is ideal and protects the constitutional 'right of the people to know' and 'freedom of the press.'"

He further explained, "However, in 2019, the Ministry of Justice invoked the presumption of innocence and human rights to introduce the prohibition on disclosure of suspect facts, which serves some power holders or politicians and directly conflicts with the constitutionally pursued fairness, rationality, and universal rights," and "Especially, ignoring the mission and responsibility of the media and depriving and regulating the 'people's right to know the truth' was seen as a barbaric and inappropriate act trampling on the noble spirit of the 2016 Candlelight Revolution," revealing the background for filing the constitutional complaint.

The question of whether the problematic Regulation on the Prohibition of Disclosure of Criminal Cases excessively restricts the public's right to know and freedom of the press to the point of unconstitutionality can be viewed as a conflict of fundamental rights. That is, the human rights and portrait rights of suspects or defendants presumed innocent until proven guilty under the constitution clash with the public's right to know and freedom of the press.

One way to resolve conflicts of fundamental rights is the balancing of interests method. Since there is a hierarchy among conflicting fundamental rights, the principle is that higher-value rights should be protected preferentially over lower-value rights. However, since suspects' human rights are not absolute fundamental rights like the right to life, they cannot be regarded as rights that must be protected over the public's right to know or freedom of the press.

Another method accepted by the Constitutional Court is the principle of harmonious interpretation of norms. When two fundamental rights conflict, this principle resolves the conflict by finding a way to harmonize them so that both conflicting rights can maximize their functions and effectiveness while maintaining the unity of the constitution, rather than prioritizing one right over the other through balancing of interests.

If the Constitutional Court proceeds to the substantive judgment of this constitutional complaint case, it will assess whether the Ministry of Justice's principle of abolishing the photo line and restricting all disclosure of investigation-related content was not excessively infringing on the public's right to know and other rights.

However, to do so, the designated bench must first pass a preliminary review on whether the constitutional complaint meets the requirements.

A constitutional complaint, a procedure to remedy fundamental rights violations, can be filed only when the complainant's fundamental rights are directly infringed. Legally called the interest of rights protection, it means that the complainant's fundamental rights violated by the exercise of public authority must be remedied by the Constitutional Court's acceptance decision for the interest of rights protection to be recognized. This personal interest of the complainant is called subjective interest of rights protection.

However, even if there is no subjective interest of rights protection, the Constitutional Court exceptionally accepts constitutional complaints by recognizing objective interest of rights protection when there is a risk of repeated similar violations in the future and constitutional clarification is necessary to protect and maintain the constitutional order.

The civic group that filed this constitutional complaint also argued the risk of repeated violations and the need to protect the constitutional order objectively. Ultimately, the Constitutional Court may dismiss the case for lack of subjective interest of rights protection or accept it for substantive judgment to review the constitutionality of the regulation based on recognized objective interest of rights protection.

Voices for "Improvement Needed" Even Within the Prosecution... Criticisms Over Selective Disclosure, Closed Deliberation Committee Operations, and Opaque Fact-Finding Investigations

Even within the prosecution, there are many opinions that the current regulation is too focused on protecting suspects and that internal revision is necessary regardless of the Constitutional Court's decision on unconstitutionality. Prosecutors who have been or are in charge of public relations under this regulation share similar views.

The biggest problem they pointed out is that the decision on what content of which case to disclose is effectively determined by the Ministry of Justice or prosecution's discretion. Also, the fact-finding investigation provision added last year for the human rights protection officer was criticized as inconsistent with the purpose of having such an officer.

Prosecutor A said, "The biggest problem with the regulation is that the prosecution arbitrarily decides whether to disclose specific cases," pointing out, "For example, detailed investigation information about the family of Yoon Seok-youl, the People Power Party's presidential candidate, was reported, but the Ministry of Justice or prosecution did not particularly object, whereas in the case of Chief Prosecutor Lee Seong-yoon, even after indictment, the Ministry of Justice and the Supreme Prosecutors' Office's Inspection Department made a fuss about identifying the leaker of the indictment."

He added, "The regulation and practice are inconsistent in reality," criticizing, "There is a high possibility of arbitrary operation depending on the case or who is involved in the investigation."

In May last year, the Suwon District Prosecutors' Office indicted Seoul High Prosecutor Lee Seong-yoon on charges of covering up the illegal departure investigation of Kim Hak-eui, and Minister of Justice Park Beom-gye ordered a fact-finding investigation into the pre-leak of the indictment. Han Dong-soo, head of the Supreme Prosecutors' Office Inspection Department, strongly suspected the Suwon District Prosecutors' Office investigation team and began identifying the leaker.

However, forensic results showed no abnormal signs on the PCs of the Suwon District Prosecutors' Office investigation team prosecutors. The indictment draft file was found on the PCs of Prosecutor A, a key aide when Lee was the head of the Seoul Central District Prosecutors' Office, and Prosecutor B, who worked with Lee, but the Inspection Department did not convert the investigation into a formal inspection and did not report to the Ministry of Justice under Han's instructions, raising suspicions and controversy.

Later, the Inspection Department suggested the possibility that the file was leaked before the indictment was received, but the Suwon District Prosecutors' Office investigation team argued that the explanation was inconsistent and weak since the characteristics of downloading the indictment file from the prosecution's internal network were clear.

Even after the regulation was implemented, in the 'prosecutor's drinking party incident,' the base station information of the involved prosecutors' mobile phones was reported in detail by time on the day of the incident, and detailed investigation information related to Yoon's wife, Kim Geon-hee, was reported, but the Ministry of Justice or prosecution did not verify the source of the information. In short, they showed strong will to identify leakers through inspection and investigation when unfavorable reports for their side were leaked by the prosecution, but turned a blind eye to favorable reports.

The problem is that such unfair regulation operation is expected to continue. Whether to order a fact-finding investigation when investigation-related articles are reported depends on the minister or prosecutor general's discretion, and even if an investigation is conducted, whether it is done with genuine intent to find and severely punish leakers or just as a formality depends on higher-ups' instructions or which side the human rights protection officer supports, making it highly variable.

There were also opinions pointing out problems with the Criminal Case Disclosure Deliberation Committee (Deliberation Committee), which deliberates and decides on exceptional disclosure targets and scope. Whether to request the committee's meeting depends on the subjective judgment of each prosecutor's office public relations officer, and the committee's decisions are only advisory, so even if the committee decides to disclose, non-disclosure is still possible, which is problematic. Article 23, Paragraph 2 of the Regulation stipulates that the chief public relations officer, a prosecutor, or at least one investigator of grade 5 or higher must serve as the committee's secretary.

Prosecutor B said, "It is problematic that the prosecution decides whether to submit disclosure issues to the committee, but the committee's decisions are mostly made according to the prosecutor's office's will," adding, "Although the majority of members are supposed to be civilian members, in reality, one or two loud voices often lead the meeting and guide the conclusion."

Article 28, which prohibits disclosure of attendance information such as the date and time of appearance or return of those involved, was also criticized as excessive legislation. This provision was the very reason former Minister Cho Kuk could avoid standing at the prosecutors' photo line.

Prosecutor C said, "The current regulation contradicts the personal information disclosure system allowed by other laws for certain serious criminals," and "It is problematic that public figures' summons investigations are not disclosed in cases of national interest, and if a suspect whose attendance was disclosed without the committee's resolution claims damages for mental harm against the prosecution, the court might recognize it."

Criticism also arose regarding the human rights supervisor (human rights protection officer) system, which took charge of public relations in the prosecution after the regulation's implementation.

Prosecutor D said, "The human rights supervisor system was not created after thorough review," criticizing, "Public relations previously handled by deputy chief prosecutors were assigned to human rights supervisors, but since they do not approve investigations, they only read prepared materials without knowing the investigation details."

He added, "Assigning fact-finding investigations and internal inquiries to human rights supervisors, who are supposed to focus on human rights protection, is contradictory."

Prosecutor E said, "Although the human rights protection officer system was created to strengthen human rights protection, in many prosecutor's offices, it has been used as a position to sideline prosecutors who fell out of favor with the regime."

In fact, since the regulation's implementation, the public relations work at the Seoul Central District Prosecutors' Office, previously divided among the 1st, 2nd, 3rd, and 4th deputy chiefs, is now handled by a single public relations officer. Considering the number of major cases under investigation or prosecution at the Central District Prosecutors' Office, proper public relations is physically impossible. (Refer to our December 8, 2021 article '[Pros and Cons] Investigation Public Relations Becoming Too Convenient' below for related articles.)

Since the regulation's enforcement, prosecutor briefings in the form of tea times related to major investigations have disappeared, and even after indicting key suspects in high-profile cases like the 'Daejang-dong case,' there are no sessions to announce investigation results or take reporters' questions. Everything is replaced by distributing a few pages of press releases.

Of course, suspects' human rights are important values. However, using suspects' human rights as an excuse to thoroughly conceal the progress of investigations into power-related corruption cases and exempting the obligation to explain to the public the investigative process and conclusions raises doubts about the appropriateness of the current regulation. The problem becomes more serious if the regulation's operators have political bias.

Even if the Constitutional Court dismisses the constitutional complaint for failing to meet the requirements or rejects it by sticking to the literal interpretation of the regulation's exceptions without considering the reality of its operation, the Ministry of Justice should consider revising the problematic regulation itself.