[Stalled Investigations]② Abolition of Prosecution’s Supplementary Investigation Authority: "Delays in Investigations and Failure to Exonerate Innocent Victims"

Sharp Rise in Police Non-Referral Cases
Prosecution’s Oversight Power Significantly Weakened
Abolition of Supplementary Investigation Authority
Case Processing Times Expected to Lengthen Dramatically

#1. In Tongyeong, South Gyeongsang Province, a stepfather committed a heinous crime by sexually assaulting his teenage stepdaughters. The police immediately launched an investigation, applied for an arrest warrant, and forwarded the case to the prosecution. However, during the supplementary investigation phase by the prosecution, the case took a complete turn. The victims’ testimonies were inconsistent, and DNA from a third party was found on the underwear. The prosecution conducted a thorough reinvestigation, canceled the arrest of the initial suspect-the stepfather-and identified the real perpetrator, who had a close relationship with the victims. This individual was indicted, and a five-year prison sentence was confirmed.

#2. In Incheon, a man who stabbed his live-in girlfriend with a weapon was arrested and referred to the prosecution after a police investigation. The police had built the case on the premise that the man, as her partner, had stabbed and injured her. However, during the prosecution’s supplementary investigation, a suspicious detail was uncovered: evidence suggested the victim had self-inflicted her wounds. The prosecution restarted the investigation from scratch, reviewing the 112 and 119 emergency call records, police bodycam footage, and mobile phone forensics. They confirmed that only the victim’s DNA was found on the weapon and subsequently canceled the man’s arrest and cleared him of all charges.

#3. In Jangheung, South Jeolla Province, a woman with an intellectual disability was sexually assaulted by village residents. However, the police did not refer most of the residents involved to the prosecution. The prosecution ‘requested’ a reinvestigation from the police, but the police remained unresponsive. Ultimately, after the victim filed an objection, the prosecution took over the case and began a new review. By meticulously analyzing the victim’s testimony, the prosecution was able to bring the perpetrators to trial.

These cases illustrate the necessity of supplementary investigations by the prosecution. If the ‘Four Prosecution Reform Bills’ promoted by the government and ruling party are realized, it is expected to cause major turmoil in the criminal justice system that has been maintained for 70 years. The plan is to abolish the prosecution office and establish the Serious Crime Investigation Agency and the Public Prosecution Agency, thereby completely separating investigation and indictment functions. The problem is that even if investigation and indictment are separated, at least minimal oversight mechanisms must be established, yet discussions or measures regarding this are missing from the current reform efforts.

If investigations, which inherently carry the risk of human rights violations, are handled solely by a single investigative agency, there will be no way to control flawed investigations, and it could take a long time to bring hidden crimes to light and provide actual relief to victims. There is also the risk that innocent victims may not be exonerated. For these reasons, calls are growing for ‘democratic oversight’ to keep investigative agencies in check.

Sharp Increase in Cases Not Referred by Police... Prosecution’s Oversight Power Weakened

Since the adjustment of investigative powers between the police and prosecution, the police have been granted primary authority to close investigations, resulting in a sharp increase in cases not referred to the prosecution, while the prosecution’s involvement has decreased. According to the Supreme Prosecutors’ Office on September 2, the number of cases not referred to the prosecution rose from 379,821 in 2021 to 545,509 last year, a 43.6% increase over three years. However, of the cases the police sent to the prosecution with a non-referral opinion last year, the prosecution requested a reinvestigation in only 14,243 cases, or just 2.61%. This figure had remained in the 3% range since 2021, but dropped to the 2% range for the first time last year.

This is analyzed as being due to the abolition of the prosecution’s authority to direct investigations, which has eliminated prosecutorial responsibility for non-referral cases. Even if a prosecutor requests a reinvestigation, there is no legal basis for the prosecution to demand disciplinary action if the police do not comply. The system is no longer structured so that cases can be reviewed by multiple parties two or three times; in effect, the police now act as the sole judge. With both the authority and responsibility to review cases taken away, there is growing cynicism within the prosecution, with some calling themselves ‘well-being prosecutors.’ Attorney Yang Hongseok of the Law Firm Igong explained, “The records the police send with a non-referral opinion are filled only with information supporting non-indictment, and prosecutors are expected to make judgments just by reading the records. Even if prosecutors review them thoroughly, there is no visible result, and since they are no longer responsible, they just leave things as they are.”

Abolition of Prosecution’s Supplementary Investigation Power... Case Processing Times Drag On

If the government and ruling party’s prosecution reform bill passes as is, the problem will become even more serious. The legal community is concerned that abolishing the prosecution’s supplementary investigation power will worsen the ‘case ping-pong’ between police and prosecution and further delay investigations. Previously, the prosecution could directly conduct supplementary investigations to decide whether to indict, but if the current reform plan is implemented, the prosecution will have to return cases to the police for resubmission whenever there are doubts about police investigations, inevitably lengthening case processing times.

There are also concerns that if the prosecution’s supplementary investigation power is completely stripped away, there will be no effective oversight mechanism to check and correct poor police investigations. If the prosecution has doubts about a police investigation, it will not even be able to hear statements from those involved or collect evidence, making it impossible to correct errors in police investigations if they occur.

It appears that in the newly revised criminal justice procedures, correcting flawed investigations will not be easy. The Public Prosecution Agency, which will be responsible for indictment until questions about referred cases are resolved, will not be able to bring cases to trial, and cases sent back to the police will be left to the discretion of investigators, with no way to know when or if they will be concluded, increasing the risk of neglect.

A prosecution official stated, “Last year, there were over 10,000 cases where the prosecution directly conducted supplementary investigations on police-referred cases and found no charges, and about 1,000 cases where prosecutors indicted after directly supplementing or judicially controlling police non-referral cases. If suspects are unjustly detained during the police phase, but prosecutors cannot directly investigate or collect related materials to correct errors in police investigations, it could actually undermine human rights protection.”