Ruling Party and Prosecutors Clash on the Authority of the Serious Crime Investigation Agency: Will the Separation of Investigation from Prosecution Weaken the Capacity to Conduct Investigations?

[경향신문]

On February 8, the ruling party motioned a bill on the establishment of a serious crime investigation agency, quickly launching “season 2” of reforms in the Prosecution Service. Twenty-one lawmakers including Democratic Party of Korea lawmaker Hwang Un-ha proposed a bill on “the establishment and operation of a serious crime investigation agency,” which stipulates that the new agency will oversee the six major crimes--corruption, economic crimes, crimes by public officials, election crimes, crimes involving the defense industry and major disasters--on which the prosecutors can launch an investigation, after the investigative authority between the police and prosecutors was adjusted. In other words, the law will completely abolish the prosecutors’ right to launch an investigation and simply turn the Prosecution Service into an agency to prosecute cases and support public action. On February 24, the Kyunghyang Shinmun listened to the opinions of two incumbent prosecutors, four law professors and two lawyers on the establishment of the serious crime investigation agency and noted several issues.

■ Nation Has Yet to Adapt to the Newly Adjusted Investigative Authority

Many experts worried that it was too soon to promote the establishment of a new investigative agency when we have yet to verify the changes and side effects from adjusting the investigative authority between the police and the Prosecution Service and from establishing the Corruption Investigation Office for High-ranking Officials, commonly referred to as “season 1 of reforms in the Prosecution Service.” Han Sang-hee, a professor at Konkuk University law school and a member of the executive committee of the People’s Solidarity for Participatory Democracy’s Center for Judicial Watch said, “So far there is no reason why we need to move on to a second round of reforms in the Prosecution Service,” and added, “The investigation of the six major crimes are irrelevant to 99% of the people, and there is a lack of explanation on why we need to rush this issue.” One chief prosecutor familiar with criminal cases said, “On site, the number of cases handed to the Prosecution Service by the police has dropped dramatically, and there has been a big change due to the adjusted investigative authority,” and argued, “Drawing up measures to deal with side effects, such as a gap in handling some crimes due to the adjusted investigative authority, should be first.”

■ Will It Be Efficient to Establish a Serious Crime Investigation Agency?

Another controversial issue is whether or not establishing a new investigative agency and stripping away the investigative authority of the Prosecution Service would be useful. Those in favor of establishing the serious crime investigation agency argue that establishing several investigative agencies and dispersing the investigative authority itself can reduce the possibility of any abuse of investigative authority. Kim Ki-chang, a professor at Korea University law school said, “If there are several investigative agencies, when one agency does something wrong, another agency can investigate the matter,” and explained, “Even if it (serious crime investigation agency) has investigative authority, without the authority to prosecute a case, it will be difficult to abuse investigative authority like the Prosecution Service.”

Meanwhile, experts are also worried that if prosecutors are deprived of their investigative authority due to the establishment of a serious crime investigation agency when their authority to lead an investigation has already been reduced following the adjustment of authority between the police and the Prosecution Service, it would be harder to supplement or correct an investigation poorly conducted by the police or the serious crime investigation agency. Attorney Lee Wan-kyu, chief vice president of the Korea Criminal Procedure Law said, “If the prosecutors cannot even conduct a supplemental investigation or an additional investigation to prepare for a hearing, it would be impossible to support public action, because it would be difficult to identify the specific circumstances or evidence.”

The Prosecution Service is concerned that if its investigative authority is placed in the hands of the serious crime investigation agency, the state’s capacity to respond to corruption would decrease and there would be practical problems in supporting public action. Prosecutors experienced in special criminal cases develop into elite prosecutors inside the organization and increase their capacity and experience on special investigations involving economic and financial crimes and corruption. These are the prosecutors who investigated and prosecuted cases such as the abuse of state authority by the Park Geun-hye government, the alleged abuse of court authority by the Supreme Court under Yang Seung-tae, and a number of corruption cases involving chaebol heads. In the case of important cases, the prosecutor conducting the investigation takes part in the trial and supports public action.

The people supporting the establishment of a serious crime investigation agency suggest transferring a number of prosecutors and investigators from the Prosecution Service to the newly established agency and have them oversee investigations after changing their status to judicial police officers until the new agency can secure the capacity and experience to conduct investigations. Professor Kim Ki-chang said, “The police can sufficiently accumulate investigative capacity if given the time, and we can temporarily send some of the investigative personnel at the Prosecution Service to the serious crime investigation agency.”

If the investigative authority of the prosecutors is transferred to the serious crime investigation agency, the number of investigative agencies will increase and will be likely to push the total volume of investigations up. There is also the concern of how the state will control the serious crime investigation agency, which will have immense investigative authority. Yang Hong-seok, a lawyer who served as the director of the Public Interest Law Center at the People’s Solidarity for Participatory Democracy said, “Creating several investigation agencies will not guarantee checks and balances. We need detailed discussions to minimize the abuse of investigations, but the discussions simply focused on transferring the authority of the prosecutors.” The draft by lawmaker Hwang does not include any clauses on a device to control the investigations by the new investigation agency.

■ Is the Separation of Investigation and Prosecution Universal?

Behind the heated debate on the establishment of the serious crime investigation agency lies a difference in perspective on whether or not it is appropriate to separate investigation from prosecution. The people supporting the serious crime investigation agency argue that the authority to investigate six major crimes by the prosecutors following the adjustment in investigative authority between the police and the prosecutors and the establishment of the Corruption Investigation Office for High-ranking Officials is still strong and voice concerns of the abuse of such strong authority. Since the prosecutor who oversees the investigation of cases concerning the six major crimes will also prosecute the case, he is likely to opt to prosecute the person subject to the investigation and lean towards establishing his guilt. Suh Bo-hak, a professor at Kyunghee University law school said, “If we separate the investigation from the prosecution, we can filter out tendencies to establish a person’s guilt and end up closer to the actual truth.”

People supporting the new investigation agency mention the United Kingdom (U.K.) and argue that the separation of investigation and prosecution is the global standard. Originally, in the U.K. the police had both the authority to investigate and prosecute a case, but due to problems, they established the Crown Prosecution Service in October 1986 and turned over the authority to prosecute cases to the new service. In a report, Suh said, “Countries with Anglo-American law (U.K., U.K.) distinguish the right to investigate and the right to prosecute a case and has the prosecutors, the agency in charge of prosecution, concentrate on the institution and support of public action. Continental law countries (Germany, France) recognize the prosecutors’ right to investigate and to lead an investigation, but do not give the prosecutors the capacity to conduct investigations, so prosecutors do not directly investigate a case.”

Some experts argue that the separation of the authority to investigate and to prosecute a case is not a global trend. Shin Tae-hun, deputy chief prosecutor of the Masan Branch of the Changwon District Prosecutors’ Office wrote in an article, “Of the 35 member states of the OECD, 28 countries stipulate the prosecutors’ right to lead an investigation in the Constitution or in law, and 27 countries grant the prosecutors the authority to conduct an investigation.”

Professor Han Sang-hee said, “At the heart of reforms in the Prosecution Service is reducing the immense authority of the Prosecution Service and returning that power to the people,” and added, “There is a need to further discuss methods of citizen control, such as a jury or a citizen committee to determine whether or not to prosecute a case.”