'Complete Abolition of Prosecution Investigation' Bill Passed... Final Round Expected at Constitutional Court

▲ 'Criminal Procedure Act Amendment' Passes National Assembly Plenary Session

As controversies continue over the Criminal Procedure Act amendment, which aims to abolish prosecutors' supplementary investigation rights and even restrict their authority to directly request warrants, the final judgment is expected to fall on the Constitutional Court.

Professor Park Chan-woon of Hanyang University Graduate School of Law, who served as the chairperson of the advisory committee for the prosecution reform promotion task force, wrote on Facebook on the 2nd, "This Criminal Procedure Act amendment must cross the river of the Constitution," adding, "To prevent confusion, the Constitutional Court must reach a conclusion as quickly as possible."

Lawyer Park Seung-ok also pointed out the unconstitutional elements of the amended Criminal Procedure Act, stating, "If changes in the allocation of authority between investigative and prosecuting agencies alter whether criminal charges can be discovered in a timely manner, whether illegal and unfair acts by investigative agencies can be controlled, and whether victims' rights can be effectively protected, this becomes a constitutional issue directly related to the fundamental rights of the people."

Following the passage of the bill, the People Power Party also announced legal responses, stating, "We plan to legally contest this through competence disputes, constitutional complaints, and constitutional reviews of statutes," signaling continued legal battles at the Constitutional Court.

Under the 2021 prosecution-police investigation power adjustment, prosecutors' investigative command rights were abolished and their direct investigations were limited to six major crimes, while the 2022 "complete abolition of prosecution investigation" (Geomsuwanbak) act further narrowed the scope of direct investigations to corruption and economic crimes.

And with the passage of the Criminal Procedure Act amendment at the end of July, even prosecutors' direct supplementary investigation rights have disappeared, realizing a complete abolition of prosecution investigations.

Back in 2022, the Ministry of Justice and the prosecution filed a competence dispute trial regarding the reduction of prosecutors' investigative jurisdiction to six major crimes.

The intent was that the Democratic Party of Korea, holding a majority in the National Assembly, unilaterally pushed through the bill, and as a result, restricting the prosecution's investigative and indicting functions would lead to unconstitutional consequences that paralyze the criminal justice system.

However, in March 2023, 11 months after the legislation, the Constitutional Court dismissed the competence dispute petition with a 5-to-4 opinion among the justices.

The majority opinion dismissing the case held that "it is difficult to logically and inevitably deduce 'the prosecutor's investigative right under the Constitution' from the constitutional provision regarding the prosecutor's right to apply for warrants."

The court's stance was that while the right to apply for warrants belongs to prosecutors, it was introduced into the Constitution to control the potential abuse of compulsory investigations, and directly linking it to a "constitutional investigative right of prosecutors" is a stretch.

However, while the past prosecution investigation reduction law only partially narrowed the scope of prosecutors' investigations to "corruption crimes, economic crimes, etc.," the latest Criminal Procedure Act amendment completely strips prosecutors of any investigative power.

In particular, legal circles voice strong concerns that the provision prohibiting prosecutors from directly requesting warrants and requiring them to be requested only upon application by judicial police officers infringes upon the prosecutor's constitutional right to request warrants.

Article 12, Paragraph 3 of the Constitution stipulates that "in case of arrest, detention, seizure, or search, a warrant issued by a judge upon application by a prosecutor must be presented in accordance with due procedures."

In an explanatory document released on the 29th of last month, the Supreme Prosecutors' Office pointed out that "stipulating that prosecutors cannot request warrants without an application from judicial police officers renders the prosecutor's constitutional right to request warrants hollow."

Given that the Constitutional Court justices' opinions were split 5 to 4 during the 2023 judgment, some voices suggest that another judgment should be sought.

In their minority opinion, four constitutional justices stated that the amendment procedures and contents of the prosecution investigation reduction law "infringed upon the prosecutors' constitutional prosecution and investigative rights and the Minister of Justice's authority over administrative affairs concerning prosecutors."

Furthermore, they viewed that prosecution and investigative rights are state functions that cannot be abolished by legislation, and that state agencies performing these functions are "prosecutors."

However, it has been understood that the Ministry of Justice and the Supreme Prosecutors' Office have not yet officially decided to directly file a competence dispute trial.

While active issues could be raised in 2022 due to the administration change from the Moon Jae-in government to the Yoon Suk Yeol government, it is not easy to voice differing opinions within the same administration this time around.

Some opinions suggest that rather than a competence dispute trial battling over powers between government agencies, citizens who are subject to investigations filing constitutional complaints claiming violations of their fundamental rights would be more likely to be accepted.

A prosecution official stated, "Since it is difficult for government agencies to fight among themselves within the administration, it would be much more effective for citizens who are parties involved to contest the matter through constitutional complaints," adding, "Parties such as victims or suspects can file constitutional complaints claiming that their right to secondary relief from the prosecution has been infringed."

Nevertheless, the option for individual prosecutors to file a competence dispute trial remains open.

Previously, Seoul High Prosecutors' Office Prosecutor Song Yeon-gyu filed a competence dispute trial and applied for an injunction to suspend the effect, arguing that the Public Prosecution Office Act and the Major Crime Investigation Agency Act infringe upon prosecutors' prosecution rights, investigative rights, investigation control rights, and warrant application rights.

Prior to this, Cheongju District Prosecutors' Office Senior Prosecutor Kim Seong-hoon also filed a constitutional complaint regarding the Government Organization Act amendment that abolishes the prosecution service, but the Constitutional Court dismissed it in the preliminary review stage, citing no possibility of fundamental rights infringement.

(Photo: Yonhap News)

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