[Impeachment Q&A] If President Yoon is Impeached, Is Pre-Detention Possible Before the Constitutional Court's Decision?

On the 14th, the impeachment motion against President Yoon Suk-yeol was passed. If the Constitutional Court proceeds to hear the impeachment trial against President Yoon, what will happen to the investigations by the prosecution or police into President Yoon?

Article 84 of the Constitution stipulates the president's immunity from prosecution, stating that "the president shall not be subject to criminal prosecution during the term of office, except in cases of treason or bribery."

This privilege is granted to maintain the dignity of the president as the head of state and to facilitate the smooth execution of presidential duties. However, the constitutional immunity does not apply if the president commits treason or bribery.

In President Yoon’s case, he is currently under investigation for charges of treason related to his declaration of martial law on the 3rd, which was made without meeting constitutional or legal requirements, and his attempt to ban political activities of the National Assembly and arrest prominent politicians in violation of the Constitution and the Martial Law Act. Therefore, investigations by law enforcement agencies will continue independently of the Constitutional Court’s impeachment trial. It is possible that he could be detained during the investigation process or indicted and face criminal trial before the conclusion of the impeachment trial.

This differs from the case of former President Park Geun-hye in 2016. Park was investigated for abuse of power and other charges, not treason. Special Prosecutor Park Young-soo indicted her only after the Constitutional Court accepted the impeachment motion and she was removed from office.

Meanwhile, Article 51 of the Constitutional Court Act (Suspension of Trial Procedure) states that "If a criminal case is underway for the same reasons as the impeachment trial request against the respondent, the court may suspend the trial procedure."

This can be interpreted to mean that if President Yoon is indicted and faces criminal trial for treason, the Constitutional Court may temporarily halt its proceedings and observe the court’s judgment before considering the impeachment.

However, since the impeachment trial is not a procedure to determine the criminal liability of the respondent but rather to decide whether a public official violated the Constitution or laws to an extent warranting removal from office, it is likely to proceed separately from the criminal process.

Professor Kim Seon-taek of Korea University Law School said, "The Constitutional Court will not specifically determine whether treason is established but will use it as reference material. It will evaluate the series of events including President Yoon’s declaration of martial law, the riot in the National Assembly on the 3rd, and the raid on the Election Commission, to prove that it was not a constitutional martial law and conclude whether it is appropriate for the president to continue holding office."

Currently, investigations into President Yoon and others are being conducted competitively by the Special Investigation Headquarters on Martial Law (Special Headquarters), formed by the prosecution with personnel dispatched from the military prosecution, the National Investigation Headquarters of the National Police Agency, the Corruption Investigation Office for High-ranking Officials (CIO), and the Ministry of National Defense Investigation Headquarters, which together form a joint investigation headquarters (abbreviated as Joint Investigation Headquarters).

As multiple investigative agencies conduct investigations simultaneously, confusion has arisen with different agencies obtaining search warrants and arrest or detention warrants for the same suspect. The CIO announced that it requested again yesterday that the prosecution and police transfer cases related to the "declaration of martial law."

However, since opposition parties are pushing for the appointment of a standing special prosecutor or individual special prosecutors regarding this case, if a special prosecutor is appointed in the future, the focus of the investigation is expected to shift to the special prosecutor.

Previously, during former President Park Geun-hye’s state affairs manipulation case, a special prosecution headquarters was conducting investigations when Special Prosecutor Park Young-soo was appointed. At that time, Choi Seo-won (formerly Choi Soon-sil) was indicted by the prosecution, but after the special prosecutor’s office was launched, all cases under investigation by the prosecution were transferred to the special prosecutor, who took charge of indictment and prosecution.