[The Editors' Verdict] 'Complete Prosecution Disarmament' and Han Dong-hoon's Concerns

[Asia Economy Reporter Choi Seok-jin, Legal Affairs Specialist] “It makes punishing corrupt politicians and public officials difficult, and the damage that the public will witness in the process is very clear.”

“This is essentially a constitutional-level legislation that changes the backbone of the judicial system that has continued for 74 years. Therefore, the public should have been thoroughly informed about what kind of law is being created.”

These were the remarks made by Han Dong-hoon, nominee for Minister of Justice, at the confirmation hearing held on the 9th, pointing out the contents of the amended Prosecutors' Office Act and Criminal Procedure Act, known as the ‘Complete Prosecution Disarmament’ (Geomsu Wanbak) bill, as well as procedural issues during the legislative process.

The amended Prosecutors' Office Act, which will take effect on September 10, limits the crimes prosecutors can initiate investigations into to two categories: corruption crimes and economic crimes. Since January last year, prosecutors have only been able to initiate investigations into six major crimes, but just over a year after the revised law was implemented, it again prohibits investigations into four types of crimes including public official crimes and election crimes. Additionally, prosecutors will no longer be able to prosecute crimes they have initiated investigations into.

The amended Criminal Procedure Act significantly restricts prosecutors' investigations to the extent that it does not harm the ‘identity of the case’ in incidents where ‘legal violations,’ ‘human rights infringements,’ ‘abuse of investigative authority,’ or ‘illegal arrest/detention’ were issues during police investigations, or where complainants or victims have appealed police decisions not to prosecute and the case was forwarded to the prosecution. Even if other criminal charges emerge during the investigation, prosecutors are instructed not to investigate them. Complainants are completely barred from appealing police decisions not to prosecute.

Having already abolished the prosecution’s supervisory authority over police investigations and granted the police investigative and case-closing authority over 99% of cases, the Democratic Party now seeks to transform the prosecution from an investigative agency into a purely prosecutorial office. Although this is claimed to be a global trend, a review of overseas legislative examples shows this is not true.

Investigation is often compared to surgery, described as a ‘surgical operation that only removes the affected part.’ Regarding the opposition party’s attempt to turn the prosecution into an agency that only prosecutes cases investigated by the police or the Serious Crime Investigation Office, the legal community has remarked, “It’s like telling a surgeon not to examine the patient directly but to perform surgery based only on the medical charts prepared by nurses or other doctors.”

Just as a surgeon performing an operation must naturally check the patient’s condition directly to determine the precise surgical site and method, a prosecutor deciding whether to bring a suspect to trial must also meet and hear from the suspect and key witnesses directly to make an accurate judgment.

The Democratic Party argues that separating investigation and prosecution is necessary to decentralize the concentrated power of the prosecution, but nominee Han expressed concern, saying, “If investigation and prosecution are separated, the prosecution leadership could ignore the opinions of investigative prosecutors in political cases and arbitrarily select prosecutors for prosecution, thereby mishandling cases at will.”

Above all, the biggest problem is that the police, who will have to take on all the investigations that the prosecution can no longer conduct, are not prepared at all. This is not just talk; it is a consistent voice coming from frontline investigative sites since the adjustment of investigative authority. Although there are plans to establish the Serious Crime Investigation Office, there is a high possibility of repeating the failure of the Corruption Investigation Office for High-ranking Officials.

A current chief prosecutor said, “It’s not that we don’t trust police investigations. However, I don’t understand why prosecutors are prohibited from reviewing cases once more to supplement police investigations, which can never be perfect. Even when I ask Democratic Party lawmakers, no one can answer.”

There are less than four months left until the law takes effect. It is time for the National Assembly, government, Constitutional Court, and all relevant parties to come together and find extraordinary measures to prevent public harm caused by investigative gaps and avoid great confusion.