⑴ This study examines legal violations, human rights violations, and serious abuse
of power committed by police officers and prosecutors during investigations and
prosecution.
Many countries provide for the right to request a internal judicial review by the
investigation agency or an external judicial review, and Korea is one of them. However,
the country poses various issues when it comes to the human rights-friendliness and
fairness of the appeal procedures under the current law.
① The Korean law provides for various appeal procedures against legal violations,
human rights violations, and serious abuse of investigative power by judicial police
officers, including reviews by the Investigation Appeal and Review Committee at police
agencies, requests for change (recusal) of investigators, and prosecutors’ demands for
corrective actions. However, in cases where both a review by the Investigation Appeal
and Review Committee and a demand for corrective action from a prosecutor apply,
the committee can only function to the extent that its functions do not overlap with
the matters subject to the demand for corrective action. In addition, although an issue
not confined to the Investigation Appeal and Review Committee, discussions are required
on whether a civil-participatory committee can be allowed to decide on legal matters,
and how to resolve possible conflicts with decisions on legal matters by prosecutors
and courts.
② In cases involving a legal violation, human rights violation, or serious abuse of
power by a judicial police officer, the current appeal procedures, including a demand
for corrective action, do not provide cessation of the violation or abuse of power.
Even though one can still file a quasi-appeal with a court, a quasi-appeal can be filed
only in a limited scope of cases. Therefore, the quasi-appeal does not render judicial
control by prosecutors meaningless. In this regard, for cessation of violation
or abuse of power, protective actions are required before demanding corrective actions.
③ The 2020 amendment to the Criminal Procedure Act introduced the distinction
between a request for re-investigation and a demand for further investigation. However,
the amended Act does not clarify whether a demand for further investigation may be
filed after sending the case records, and whether a request for re-investigation may be
filed after the case is transferred to the prosecutor’s office. This issue is connected to
an even more complex issue involving Article 245-8 of the Criminal Procedure Act,
that is, whether a re-investigation is required when a further investigation suffices. Article
245-8 stipulates that a judicial police officer should transfer a case to the prosecutor’s
office if a complainant, etc. challenges his/her decision not to refer the case. Further
more, it is questionable whether it is reasonable to allow complainants, etc. to receive
a judicial review by a prosecutor only after challenging a judicial police officer’s decision
not to refer the case. Before the amendment, a compliant was able to have his/her
case reviewed by a prosecutor without further action. In addition, under the current
Act, to file an appeal against a judicial police officer’s decision, a complainant, etc. should
prove that his/her case satisfies the requirements for referral to the prosecutor’s office(shifted burden of proof).
④ Given the legislative treatment of the issues in other countries, in cases where
an investigation agency decides not to refer a case or not to institute a public prosecution,
such decisions need to be subject to prior control by, for example, requiring the consent
or approval from the victim or a court, if not from the complainant.
⑤ With regard to the abuse of power by a prosecutor, we need to adopt compulsory
indictment as way to restrict prosecutors’ prosecutorial discretion, thereby preventing
selective indictment and ensuring fair exercise of prosecutors’ prosecutorial power.
Granted, a rigid application of compulsory indictment poses a risk of failing to consider
the specificities of individual cases. However, at least with regard to crimes involving
the use of drugs or alcohol, those specificities can be sufficiently dealt with by listing
possible special circumstances such as treatment. Even if we maintain prosecutorial
expediency of prosecutors, we can at least consider adopting compulsory indictment for
the High-Ranking Officials Corruption Investigation Agency, which will exercise exclusive
jurisdiction on certain types of crime once it begins operation.
⑥ To ensure fair exercise of prosecutorial power, we need to introduce exclusion,
recusal, and evasion of prosecutors. In addition, we need to minimize the undermining
of legal stability by prolonged investigations, by setting a post-investigation deadline for
indictment as is the case in Italy, and requiring a court approval for the extension of
the deadline.
⑦ Currently, the quasi-appeal is the only option when it comes to the court’s judicial
control of legal violation, human rights violation, and serious abuse of investigation/
prosecutorial power by judicial police officers and prosecutors. However, according to
Article 417 of the Criminal Procedure Act, a quasi-appeal may be filed against a
prosecutor’s or a judicial police officer’s “disposition relating to confinement, release
on bail, or seizure or restoration of articles seized,” or “disposition regarding the presence
of an attorney and other matters under Article 243-2”. Therefore, it is difficult to attain
judicial review by a court for serious abuse of investigation or prosecutorial power. To
address this issue, we need to grant the courts the power to perform judicial reviews
against legal violations, human rights violations, serious abuse of power, and unfair use
of discretionary power. In addition, an immediate appeal should be allowed against human
rights violations or serious abuse of power, to allow for cessation of ongoing
violation.
⑧ We need to consider whether the numerous civil-participatory committees at the
police and the prosecutor’s office serve similar or overlapping functions.
⑨ The Prosecutor’s Office Act does not allow for filing an appeal against a prosecutor’s
decision to suspend indictment. The scope of prosecutors’ decisions subject to appeal
need to be expanded, to prevent subjecting suspects to prolonged uncertainties. On a
related note, the withholding of public prosecution under Article 20 of the National
Security Act seriously violates people’s freedom. The law does not provide any procedure
to appeal the decision, and a person who had an public prosecution withheld is required
to comply with the regulations concerning the supervision and guidance as prescribed
by the Minister of Justice. Therefore, a reasonable course of action would be to abolish
the withholding of public prosecution, rather than establishing an appeal procedure against
the decision.
⑵ When prosecutors’ investigation is affected by their relationship with the power
that be, or a prosecutor refuses to institute a prosecution against a crime that is clearly
prosecutable, it undermines the public trust toward the criminal justice system. To address
this issue, many commentators have pointed out the need for a system to control
prosecutors’ decision not to exercise their prosecutorial power. In June 2007, an
amendment to the Criminal Procedure Act expanded the scope of crimes eligible for
application for adjudication to all crimes. However, questions have been raised regarding
whether the amendment is true to the original intent of the application for adjudication,
and whether it sufficiently protects the basic rights, which constitute one of key interest
to be protected during criminal procedures. These issues call for a redesigning of the
corruption, political figures, or the prosecutor’s office, criminal investigation is initiated
by a media report or a complaint filed by an civil society organization. The current
Criminal Procedure Act does not provide any means to restrict prosecutorial discretion
in such cases. Given the need to protect people’s basic rights, the expansion of the
scope of application for adjudication seems to be reasonable. In cases where a court
orders the institution of a public prosecution refused by the prosecutor’s office, the
prosecution is tasked with maintaining the prosecution. However, the current system
may subject the prosecution to unreasonable pressure to change their legal judgement.
To free the prosecution from such pressure, ensure the fairness of prosecution, and
align the overall proceedings with the public sentiment, a more reasonable option would
be to designate an independent attorney to institute a public prosecution after a court’s
decision to proceed with public prosecution. In addition, the application period for
adjudication under the current law is ten days, which is not long enough to protect
the rights of the applicant. The period should be increased within an extent that does
not destabilize the legal status of the suspect. Lastly, to discuss a practical matter, the
law needs to specify the expenses to be paid for by an accuser or a complainant in
cases where the accused person is acquitted or not prosecuted, and the accuser/
complainant is at fault. The application for adjudication system was originally designed
to control prosecutorial power and protect criminal victims’ interest in having the suspects
criminally prosecuted. However, in practice, the workings of the system focused on
judicial control over prosecutors’ prosecutorial discretion, rather than protecting victims’
interests. Given the fact that the application for adjudication has been regarded as a
means of protecting criminal victims, the protection of victims’ interests should not be
neglected. In fact, the protection of victims’ interests is one of the key interests to be
protected under criminal procedures today. Therefore, the system needs to be improved
in terms of protecting victims’ interests.
In recent years, along with the expansion of the scope of application for adjudication,
civil participation has attracted attention as a means of external intervention aimed at
ensuring fairness in prosecution to prevent arbitrary and uncontrolled decisions by
prosecutors and eliminate political influence on indictment. Civil participation, above all
else, offers the benefit of protecting criminal victims, protecting the human rights of
criminal defendants, enhancing the democratic control over and transparency of
prosecutors’ exercise of their prosecutorial power, and improving the public’s trust toward
the prosecutor’s office. To that end, the prosecutor’s office organized various participatory
organizations such as the Prosecution Appeal Review Committee and the Citizens’
Prosecution Committee. However, the current organizations play limited roles in actual
control of prosecutorial power. For this reason, numerous commentators have proposed
the need for civil participation in judicial control against discretionary indictment as a
way to control the abuse of prosecutorial power. However, given the wide scope of
crimes eligible for application for adjudication, it would be impractical to involve citizens
in all court decisions regarding refusal to prosecute. Civil participation in this area warrants
careful consideration of various factors including the scope of the participating citizens’
power.
On another note, with the increasing emphasis on the need to protect the human
rights of victims, witnesses, and other parties involved in criminal proceedings, the
so-called “warrant appeal” system has been proposed. Scholars are divided over the issue.
Proponents of the system argue that the law should provide for post ipso facto control
over judges’ arbitrary exercise of their power, in accordance with the Constitutional
principles of citizens’ sovereignty and control of power. Others argue against the system,
saying that a prosecutor can always re-request a warrant even if the first request for
a warrant has been denied, and the system exposes suspects to prolonged uncertainties.
Personally, the researcher finds the proponents’ arguments more valid. However, the
“warrant appeal” system needs improvement as it may work in disfavor of criminal
suspects, and undermine the principle of investigation without detention. The system
needs to be considered along with, or as a part of, conditional release during the warrant
process or the current bail system.
As for appeals against court orders, the filing period for quasi-complaints has been
extended to seven days, which resolved the issues raised regarding with the period.
However, the amendment inserted provisions regarding appeals against specific court
orders such as an objection against a presiding judge’s disposition (Article 304 (1)) or
a quasi-complaint (Article 416). The Act needs to clearly specify the cases to which
the provisions apply. Such a provision can be inserted in a rule, if not in an Act. One
of the options for improvement worth considering is to adopt standard objection
procedures by benchmarking the provisions in the Civil Procedure Act, and use the
systems under the current Criminal Procedure Act, such as quasi-complaint (Article 416)
in exceptional cases.
Careful consideration is required for delivering a duplicate copy of a written indictment
to the defendant at the time of requesting a summary order, modifying the provisions
so that case records are immediately returned to the prosecutor once a full trial opens
upon request; and the follow-up procedures after a court’s referral of a case to a full
trial. There is also an issue of whether, if a judge who gave a summary order is the
judge presiding over the trial for the case, the judge should be disqualified because he/she
was involved in the preceding procedure. The researcher is of the opinion that the courts
need to change their stance regarding this issue in a way that helps criminal defendants
feel their right to fair trial is protected.
As for summary judgment, in case of filing for a formal trial, a defendant should
be required to submit the request to the court, rather than the chief of police station.
In addition, in a formal trial based on a summary judgment, the Criminal Procedure
Act prohibits imposing a type of punishment heavier than the type of punishment
imposed in the summary judgment. However, the prohibition on heavier “type” of
punishment may not apply to all formal trials based on summary judgments, and there
still exists room for applying the prohibition on heavier “punishment” as specified in
the old Act. The law needs to clarify on this issue.
A defendant can challenge a court ruling by filing a complaint. In the criminal justice
context, Articles 402 and 403 seem to be the provisions governing the complaint system.
However, the text of the provisions does not specify the cases in which an appeal may
be filed. Therefore, the Act needs to be amended to clarify the relationship between
Article 402 and 403. In addition, Article 408 (2) and Article 411 (3) provides for a
three-day period and a five-day period for sending the original court’s opinions and its
reason for providing case records to the appellate court, respectively. However, the
provisions had existed since the time when the filing period for an immediate complaint
was three days. Now that the filing period for an immediate complaint has been extended
to seven days, it is unclear whether the periods under the two articles should be extended
accordingly, or there still exists a reason for prescribing shorter periods under the articles.
Further discussions are needed regarding whether to extend the periods in a future
amendment to the Criminal Procedure Act.
Article 184 of the Criminal Procedure Act (Request and Procedure for Preservation
of Evidence) stipulates that, if a court rejects a request for investigation, etc., the a
complaint may be filed within three days. It seems that the three-day limitation needs
to be reconsidered, given the extension of the immediate complaint period to seven
days under the amended Act. On another note, the courts have maintained that a decision
rejecting a warrant request may not be appealed, because the law does provide for a
complaint or quasi-complaint procedure for such decision. However, the researcher
believes that an appeal procedure other than requesting re-issuance needs to be
considered.
With regard to the recovery of the right to appeal, we need to consider allowing
for the recovery to the possible extent. In addition, there still exists the issue of a
defendant’s right to consult with the attorney handling the defendant’s request for the
recovery of the right to appeal. The researcher believes that a defendant who requested
recovery should be able to consult with his/her lawyer without restriction.
With regard to the defendant’s ability to appeal a formal judgment by pleading not
only because he/she wanted a not guilty verdict. We need to discuss whether it is
reasonable to hold that a not-guilty appeal has no merit in all cases where a formal
judgment has been rendered.
As for an appeal claiming unjust sentencing, several improvements are required so
that defendants can meaningfully challenge sentencing decisions, including: allowing
defendants search for and access information regarding sentences and facts of crimes
indicated in court opinions; and providing clear sentencing criteria and detailed reasons
for sentencing decisions in court opinions.
Among the reasons for filing an emergency appeal, “violation caused by misperception
of facts” requires more in-depth discussions. The Supreme Court has accepted emergency
appeals in some cases and rejected them in others. The researcher believes that the
Supreme Court has its own criteria for application to such cases, the judgments themselves
do not provide any clarification of the criteria. The researcher hopes that the Supreme
Court will allow emergency complaints in cases involving legal violations caused by
misperception of procedural facts, and not allow emergency complaints in cases involving
misperception of substantive facts. If the case records clearly prove the existence of
misperception of substantive facts without further investigations.
The Supreme Court and the Constitutional Court work with each other to protect
the people’s basic rights, and control the abuse of judicial power. However, an even
more important function is to protect the people’s human rights by upholding the legal
principles. Despite their disagreements over numerous individual issues, the two courts
should make dedicated efforts to foster a single, consistent legal framework designed
to protect the people’s human rights. The researcher hopes to see the two courts work
with each other to take steps toward the realizing of a meaningful rule of law.
⑶ Need for judicial control over the execution of punishments and security measures
Various issues have been raised regarding the execution of criminal punishments and
security measures, including: courts exert little control over the enforcement of
punishments, and what little control they have are scattered across numerous laws;
punishments restricting criminals’ freedom of movement, by their very nature, poses
the issues of post ipso facto supplement and application; there exist various issues
regarding administrative bodies’ decision on parole and other security measures; and there
also exists the issue of effective remedies for the rights of convicted inmates serving
their sentences. To address these issues, courts need to control and intervene in the
execution of punishments and security measures.
With regard to the separation of power and the execution of punishments and security
measures, judicial control and adjudication are needed not only as remedies for human
rights violations, but also as a means to achieve the separation of power in the
contemporary sense of the principle. To achieve due process in the execution of
punishments and security measures, we need a substantive foundation based on the
principle of statutory reservation, procedural elements aligned with the principle of due
process, and the organizations and systems to realize due process in actual execution.
Furthermore, international discussions on the issue also call for judges’ engagement and
authorities in the execution of punishments and security measures, which provides an
important ground for the need for judicial intervention and control in the execution
of punishments and security measures, as well as changes thereof.
① Discussions on the establishment of a penal execution court.
The need for judicial control over the execution of punishments is linked with the
need for establishing a penal execution court. A penal execution court can be considered
in connection with the need for more active judicial intervention in penal execution
currently delegated to the execution bodies.
In adopting a penal execution court, we need to consider different types of penal
execution courts and the practical feasibility of each type. The Criminal Execution Judge
and Criminal Execution Court system in France, and the Supervisory Court system in
Italy allow for the most active judicial intervention in penal execution procedures.
However, these types of penal execution courts require extensive revisions to the current
criminal justice procedures and the Court Organization Act. Even if the adoption of a special court for penal execution is premature or lacks feasibility, we need to consider
the adoption of such a court as a long-term goal.
As a short/medium-term alternative, we can consider having the prosecutor’s office
control the overall execution of punishments, and establishing a department in the judicial
branch tasked with judicial control over significant changes in punishments, remedies
for infringements during a sentence, and changes to the terms of security measures.
In this regards, we can benchmark the Penal Execution Department in German criminal
courts. In addition, as a way to encourage judges’ involvement in the execution of
punishments and security measures, we can consider appointing judges specializing in
matters regarding penal execution.
② Improvements for appeal and control during the execution of punishments and
security measures
The previous sections explained the need for judicial review of penal execution as
a way to resolve issues related to the execution of punishments and security measures,
and called for judges’ engagement in the penal execution procedures and the establishment
of a penal execution court. In addition, this study proposes the following improvements
for appeal and control during the execution of punishments and security measures.
(a) As for parole, even if we do not agree with some commentators’ argument for
making parole a judicial disposition or subjecting all paroles to judicial review, we need
to find ways to protect inmates’ rights to the possible extent under the current
administrative measure procedures. In particular, an appeal procedure is direly needed
to ensure the fairness and equity of the parole review procedure. Firstly, an inmate’s
right to request a parole represents an important primary remedy during parole
procedures. Currently, parole is seen as a discretionary measure taken in accordance with
the policies of a correctional institution or criminal policy considerations, rather than
inmates’ requests. However, in order to recognize inmates’ right to request parole, the
relevant procedures need to be set in statutes. In addition, the current law does not
provide for objection procedures against a refusal to grant parole. In order to establish
human rights-friendly appeal procedures in criminal proceedings, objection or appeal
procedures need to be set up for different stages in the parole process, which will ensure
the fairness and reliability of penal execution.
(b) Parole is a type “exit strategy” in that it releases a convict early on after the
execution of the sentence. On the other hand, suspended execution is a type of “entry
strategy” for penal execution. In this sense, suspended execution is another type of penal
execution. Therefore, suspended execution requires a certain extent of control to minimize
arbitrary discretion. To that end, the law should specify strict requirements for suspended
execution, considering different elements depending on the length of the sentence.
The sentencing guidelines, which include guidelines for suspended execution, prevents
arbitrary suspension of execution and allows for control or supervision over suspension
of execution. In order to prevent suspended execution from turning into a favor arbitrarily
granted by a judge, the sentencing guidelines need to provide objective and concrete
principles and criteria for distinguishing between cases that require execution without
suspension and others that suspended execution is allowed.
(c) Security measures are justified as long as they comply with the principle of
proportionality. That is, a security measure should be imposed only if it is absolutely
required considering its purpose, after a review of the criminal’s recidivism risk and
the measure’s compliance with the principle of proportionality. Follow-up decisions
regarding a security measure during its execution are as crucial as the decision to impose
the security measure, and that is why judicial control over the execution of security
measures is necessary, as previously discussed.
While criminal punishments are imposed based on the principle of liability, security
measures are imposed based on the criminals’ risks of recidivism. The difference justifies
the dualism of the criminal sanctions. However, the distinction would lose its meaning
if punishments and security measures are executed in the same manner. A security
measure should be executed in a different way than penal execution.