[AK Radio] Can the Corruption Investigation Office Arrest President Yoon?

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Chief Odongun "Apologize to the People, I Am Sorry"

As the first attempt to execute an arrest warrant against President Yoon Suk-yeol failed, the High-ranking Officials' Crime Investigation Office (hereinafter referred to as the HOCI) is accelerating the investigation by reapplying for the warrant. However, concerns are growing over confusion among investigative agencies during the investigation process and the investigative capabilities of the HOCI. Difficulties are expected in the future progress of the investigation.

Recently, the HOCI experienced confusion in cooperation with the police regarding the execution of the arrest warrant for President Yoon. The HOCI sent an official letter to the police requesting the arrest of President Yoon, but the police effectively rejected the request, stating that "there is a possibility of legal controversy." In response, the HOCI decided to step back and execute the warrant directly, stating that "in serious cases, there should be no room for controversy."

In the legal community, the prevailing criticism is that the HOCI's legal interpretation is premature. The HOCI claimed that HOCI prosecutors could direct the police based on the application provisions of the Criminal Procedure Act and the Prosecutors' Office Act. However, the Prosecutors' Office Act explicitly states that the authority to direct and supervise the execution of trials does not apply to HOCI prosecutors. This has led to criticism that the HOCI attempted to execute the warrant without sufficient review of the relevant laws.

In particular, the dominant analysis is that this incident reflects problems that had been anticipated since the Moon Jae-in administration's adjustment of investigative authority between the police and prosecution and the establishment of the HOCI. In a situation where the boundaries of investigative authority among the three investigative agencies?the police, prosecution, and HOCI?are ambiguous, each agency proceeded with investigations related to martial law as if competing. For example, in the investigation of former Minister of National Defense Kim Yong-hyun, the police conducted searches and seizures, while the prosecution filed detention warrants, resulting in a lack of consistency and efficiency in the investigation. The court even requested the investigative agencies to "coordinate and submit consolidated warrant applications."

The prosecution involved military prosecutors to form a special investigation headquarters, while the police, HOCI, and Ministry of National Defense formed a joint investigation headquarters in response. This was a result of aligned interests among the agencies. Since the police do not have the authority to request warrants, they needed cooperation from the prosecution, making it possible to request warrants through the HOCI. The HOCI could supplement its insufficient investigative personnel through the police. Additionally, the HOCI was able to avoid controversy over its authority to investigate the crime of rebellion.

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The investigative capabilities of the HOCI have also come under scrutiny. The HOCI has about 50 personnel in total, with only around 30 capable of executing warrants. The authorized number of prosecutors is 25, but only 14 are currently working, and during the first term of the HOCI, no detention warrants were issued, which is also pointed out as a problem. This raises concerns that the HOCI is insufficient to handle such a critical case involving an investigation of the president.

Inherent limitations have also surfaced. To check the prosecution, the principle of excluding former prosecutors was adopted, resulting in a structural problem where judges and lawyers with insufficient investigative experience lead investigations. This has been criticized as being "like performing surgery after only reading medical textbooks." Eventually, in the latter half of the first term, former prosecutors were recruited, but it is evaluated that the HOCI failed to secure investigative experts such as those from special investigation units. Due to such criticism, it is expected that the HOCI will prepare meticulously for the execution of the arrest warrant this time, unlike the first attempt, and the number of police officers dispatched to the scene is also expected to increase significantly.

On the 7th, HOCI Chief Oh Dong-woon appeared at the National Assembly Legislation and Judiciary Committee (Legislation Committee) urgent inquiry held in Yeouido, Seoul, stating, "As the HOCI chief, I attempted to execute the arrest warrant for President Yoon, but the Presidential Security Service used security as a pretext to prevent the execution of the warrant," and added, "I apologize to the public for that. As the HOCI chief, I feel deeply sorry and apologize to the people." Oh also promised, "I will prepare thoroughly to ensure there are no setbacks in the second execution of the arrest warrant and do my best."

Opinions in the legal community are divided regarding the charges against President Yoon. There is no disagreement that the declaration of martial law does not meet the constitutional and martial law requirements. The situational conditions of wartime, emergency, or equivalent national emergency and the condition that military necessity must be met with troops are not fulfilled. Furthermore, there is consensus that the proclamation banning the political activities of lawmakers, despite the martial law act not permitting measures against the National Assembly, is clearly illegal.

However, there is controversy over whether this directly constitutes the crime of rebellion. The question is whether the declaration of martial law by a sitting president for reasons other than regime seizure can be considered rebellion. President Yoon argues that he judged the Democratic Party's legislative rampage and continuous impeachment attempts as a national crisis, so whether this constitutes the "purpose of disturbing the constitutional order," a requirement for the crime of rebellion, is expected to be a key issue.

Currently, President Yoon faces charges including ▲attempting to obstruct the resolution to lift martial law by blocking the National Assembly ▲ordering the arrest of key figures such as Representative Lee Jae-myung and former Representative Han Dong-hoon ▲attempting to seize the Central Election Commission and its servers. It should also be considered that the statutory penalties for the crime of rebellion are limited to death, life imprisonment, or life imprisonment with labor, requiring strict proof.

Controversy continues regarding the arrest warrant filed with the Seoul Western District Court. Despite the HOCI Act specifying jurisdiction to the Seoul Central District Court, the warrant was filed with the Western District Court, leading to criticism of "warrant shopping." In particular, the fact that the judge in charge of warrants at the Western District Court explicitly excluded the application of certain provisions of the Criminal Procedure Act is also regarded as unprecedented.

Meanwhile, attention is focused on the vote on the special investigation law for rebellion scheduled for the 8th. If the special investigation team is launched, it is expected that the currently dispersed investigations among various agencies will be transferred to the special investigation team. In the past, during the Park Geun-hye administration's state corruption scandal, the prosecution's investigation was also transferred to a special investigation team. Special Prosecutor Park Young-soo took over the investigation of former President Park in addition to the Choi Soon-sil case prosecuted by the prosecution at that time.

This incident has been evaluated as clearly demonstrating the lack of cooperation systems among investigative agencies after the adjustment of investigative authority and the capability issues of the HOCI. The confusion that arose in the investigation of a serious case involving a sitting president has once again highlighted the need for clear authority definitions and cooperative systems among investigative agencies. If the investigation proceeds to a special investigation team, more thorough review of the legal issues of the charges along with the integration of dispersed investigations will be necessary.