Ministry of Justice: "Adjustment of Police and Prosecutor Investigation Authority Also Unconstitutional"

Minister of Justice Han Dong-hoon / Photo by Hyunmin Kim kimhyun81@

[Asia Economy Reporter Kim Daehyun] The Ministry of Justice, which filed a constitutional dispute adjudication with the Constitutional Court against the so-called 'Geomsu Wanbak' (Complete Removal of Prosecutorial Investigation Rights) law, also claimed that the 2020 adjustment of investigative authority between the prosecution and police was unconstitutional.

Although the unconstitutionality of the 2020 adjustment of investigative authority between the prosecution and police included in the petition for constitutional dispute adjudication is not a direct subject of the Constitutional Court's judgment, there is a prospect that if the court judges the unconstitutionality of this part as well, the ruling party may attempt to revise the law to completely restore prosecutorial investigation rights, known as 'Geomsu Wanbok'.

According to the legal community on the 6th, the Ministry of Justice argued in the petition submitted to the Constitutional Court that the essential part of the prosecutor's authority had already been infringed by the amendments to the Criminal Procedure Act and the Prosecutors' Office Act for the 2020 adjustment of investigative authority between the prosecution and police.

Regarding the introduction of the 'selective transfer principle', which requires the police to transfer cases only when they recognize criminal suspicion after initiating an investigation due to the law amendment at that time, the Ministry of Justice criticized, "In cases without objections or in the majority of recognized cases, the police ultimately exercise the authority to conclude investigations, so even if a criminal investigation has started, the prosecutor, who has the right to prosecute, is deprived of the very opportunity to decide whether to prosecute the case."

It also emphasized, "This became the only type of case that can be concluded without prosecution in criminal cases, directly infringing on the prosecutor's 'non-prosecution disposition' authority stipulated in the Constitution and essentially violating the prosecutorial authority, resulting in a violation of the Constitution."

The Ministry of Justice also argued that procedural delays infringed on the right to a speedy trial. It added, "The criminal justice procedure has become so excessively complicated that it is difficult to proceed with normal criminal procedures without legal advice," and "Even legal experts involved in criminal justice find it difficult to fully understand."

Furthermore, it stated, "The procedural revision, obsessed solely with reducing the authority of a specific institution, has resulted in a reduction in the scope of victim rights protection and caused harm to suspects and defendants due to procedural delays, thus causing only harm from the public's perspective."

The Ministry of Justice also raised concerns that excessive procedural burdens are imposed on the public, thereby violating the principle of due process itself.

In filing the constitutional dispute adjudication with the Constitutional Court, the Ministry of Justice targeted the Prosecutors' Office Act and the Criminal Procedure Act amended this year (such as reducing the crimes for which prosecutors can directly initiate investigations from six major crimes to two) for nullification confirmation.