▲ The South Korean national flag and the prosecution service flag
Amidst the heated controversy over the abolition of the prosecution's supplementary investigative authority, it has been found that prosecutors in Germany and Japan possess direct investigative authority and exercise both investigative command and supplementary investigations.
This serves as a rebuttal to claims raised in some quarters that prosecutors in Germany and Japan do not conduct investigations themselves.
According to the legal community on July 20, prosecutors in Germany hold both investigative authority and the power to command judicial police.
The German Code of Criminal Procedure stipulates that "the public prosecutor may conduct all types of investigations themselves or have them carried out by police authorities and police officers," and that "police authorities and police officers are obligated to carry out the requests or instructions of the public prosecutor."
Because of this, German prosecutors preside over investigations, and instead of having investigators within the prosecutor's office, judicial police perform the duties of assistants to the prosecutor.
In fact, past accounts from German overseas training programs for prosecutors include descriptions such as, "The prosecutor decided to conduct a search and seizure with two assistant police officers," and "After securing evidence through investigative command, the prosecutor personally drafted the suspect interrogation protocol for key suspects and requested warrants."
In 2009, Germany amended its Code of Criminal Procedure and Criminal Code to legislate general provisions for plea bargaining and leniency for cooperating witnesses.
Accordingly, the prosecution argues that German prosecutors possess more discretion than their South Korean counterparts.
Japan also allows prosecutors to investigate all crimes based on its Code of Criminal Procedure, and in practice, they conduct intelligence-based investigations and direct supplementary investigations.
However, by convention, departments other than the Special Investigation Department refrain from conducting direct intelligence-based investigations.
The Japanese Code of Criminal Procedure stipulates that "a public prosecutor may personally investigate a crime when they deem it necessary."
Furthermore, investigators called "prosecution officials" are exclusively assigned to each prosecutor, working together in the prosecutor's office and participating in interrogations.
Japan has adopted a system where suspects are not indicted immediately after detention, but rather the decision to indict is made after precisely assessing the possibility of a guilty verdict while in custody.
As the detention period is relatively short, there are many cases where prosecutors personally lead supplementary investigations.
In Japan, when judicial police arrest a suspect, they must transfer the suspect to the prosecution within 48 hours.
Upon receiving the suspect, the prosecution must decide whether to request an arrest warrant within 24 hours.
Afterward, the basic detention period at the prosecution is 10 days, and detention can be extended up to 20 days with court approval.
The process involves deciding whether to indict through investigative command via the police or through direct supplementary investigation during this 20-day detention period.
Previously, Gyeonggi Province Governor Choo Mi-ae criticized a bill to amend the Criminal Procedure Act proposed by Democratic Party of Korea lawmaker Hong Ki-won, which would allow for supplementary investigations by the prosecution in exceptional circumstances, by posting on Facebook that it "carries a high risk of regressing to the most anti-democratic prosecution system."
She stated, "Even if German prosecutors command the police, they do not have large-scale investigators in the prosecutor's office and each prosecutor's room to conduct direct investigations like South Korean prosecutors; they provide supervisory command over the police."
She added, "They also provide legal advisory command."
She further claimed, "While the investigative authority of prosecutors is specified under the Japanese Code of Criminal Procedure, it is understood as an abstract authority or general command power," and "In practice, prosecutors do not conduct direct investigations accompanied by investigators from the prosecutor's office, and there are no investigators in Japanese prosecutor's offices."
(Photo: Yonhap News)
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