1. After its inauguration, the current administration included state power reform in its list of agendas, which propelled discussions on the reform of the country’s criminal investigation structure. The reform is driven by two theses, objectiveness and fairness of investigation. These constitute two absolute imperatives to regain the people’s trust after the near-collapse of Korea’s rule of law and justice system at the hands of those who used state power and law to consolidate their hold on power.
The reform of investigation structure in the Korean society should be informed by discussions on how the state’s control mechanism can operate in a democratic way that the people can trust. Based on these discussions, the reform efforts should be directed at figuring out ways to ensure that the country’s criminal justice system operates objectively beyond the control of political and economic power in a way that respects the people’s basic rights, and promote fairness and transparency in the society. To this end, this study seeks to analyze the structural factors that undermine the objectiveness and fairness of investigation under the current structure, and use the findings to propose ways to uphold the rule of law and give the people’s basic rights the due respect.
This study approaches this subject matter in four parts. Firstly, it lays down specific directions and issues of investigation structure reform as identified from changes in the investigation structure, the reform efforts of investigative agencies, and other legislative and institutional changes. Secondly, the study compares the investigative agencies of the United Kingdom and Germany, the two countries that represent the Common Law System and the Civil Law System, respectively, to see Thirdly, it discusses the findings of a national awareness survey and in-depth interviews with experts to assess the propriety of the directions of the reform. Fourthly, the study evaluates the directions of the investigation structure reform, and provides suggestions for legislative policies to achieve the purpose of the reform.
2. Investigation structure reform has been at the center of numerous talks of justice reform since the democratization of Korea. The discussions of investigation structure reform, which have been continuing for over two decades now, were driven by two main theses: the reform of the prosecution and the strengthening of mechanisms to protect human rights during investigation. The talks of prosecution reform focused on the control of prosecutors’ prosecuting power, their political neutrality, and the adjustment of their investigative power. As for the latter, the main topics included the minimization of forced investigation and the protection of suspects’ rights.
However, the prosecution reform efforts so far focused on internal reform efforts for self-directed control of prosecutors’ power, which posed limitations in overcoming the issues caused by the prosecution’s nature as an agency of power. Faced with these limitations, the talks on prosecution reform changed course to focus on the dispersion of, and control of, the prosecution’s power. The proponents of this new direction hold that it is difficult to achieve fair and objective investigation that the people can trust unless the investigative power is further dispersed through full-on reform of the laws and institutional devices that made the prosecution into an agency of power, while exacting control over prosecutors’ prosecuting power and ensuring their political neutrality. In addition, the adoption of even the most essential mechanisms for human rights protection had been reduced to an absolute minimum due to the resistance from the investigative agencies. These agencies considered the strengthening of human rights protection as undermining the efficiency of their investigation. Given this fact, the reform of investigation structure may be left unfinished without efforts to raise awareness that protecting human rights is not an optional choice, but a requirement for investigative agencies.
3. A review of the laws on investigation structure enacted and amended by the National Assembly from its 17th to 20th sessions shows that, despite differences in specific terms, they are directed at ensuring control over the power of the investigative agencies and their political neutrality. In other words, the legislators held the position that the people’s trust toward the fairness and objectivity of investigation cannot be achieved unless these two issues are addressed.
Firstly, the legislative efforts to control the power of the investigative agencies were taken in different directions for the prosecution and the police. For the prosecution, the efforts were directed at dispersing the investigative power and controlling the prosecuting power. For the police, the efforts focused on separation between the state police and the municipal police. With regard to the exclusion of the prosecution’s influence through the Minister of Justice, the bills proposed in connection with the political neutrality of investigative agencies mainly propose the restriction of intervention in the appointment of the Supreme Prosecutor, the restriction of the Supreme Prosecutor’s power to direct investigations, and the restriction and prohibition of dispatch of prosecutors to the Blue House, and the prohibition of their dispatch to, and concurrent holding of positions at, the Ministry of Justice. In addition, the bills on the political neutrality of the police propose an organizational separation between the administrative police and the judicial police so that the former cannot directly involve themselves in the investigation of the latter.
Meanwhile, after the inauguration of the new administration spurred the talks of investigation structure reform, under the thesis of the investigation structure reform for the people, the prosecution and the police formed their respective reform committees consisting of experts from outside their organizations. The two committees proposed their respective recommendations, which put forward the objectives of “establishing the image of the prosecution as the protector of democracy and human rights,” and “the police trusted by the people.” The Ministry of Justice also put together a committee for reform of legal affairs and the prosecution, which proposed a recommendation aimed at “developing plans for sustainable institutionalized reforms from the viewpoint of the people.” In sum, the respective committees formed by the Ministry of Justice, the prosecution, and the police have respectively established reform committees with external experts to propose their own recommendations for investigation structure reform. This fact betrays their sense of crisis that they cannot regain the trust of the people toward the fairness and objectivity of investigation, as well as toward the agencies themselves, without fundamental changes to their investigation structure. They also seem to share a common understanding that such changes should start with proactively embracing the demands for reform from outside, rather than relying on internal efforts. The reform committee recommendations from the Ministry of Justice, the prosecution, and the police are framed mainly in three ways. Firstly, they offer self-criticism of their past practices by way of discovering truths about the past cases handled in violation of the law and the principles and the abuse of power, and the remedy for violated human rights. Secondly, they demonstrate awareness on the legal and institutional issues that undermined the fairness and neutrality of investigation and resulted in the people’s distrust. Lastly, they discuss plans for internal reforms and the acceptance of external control to rebuild themselves into investigative agencies that serve the people. These recommendations should be efficiently implemented, with legal and institutional supports to ensure that they result in meaningful changes for the people rather than being reduced to makeshift measures.
4. The key issues brought up by the discussions on the reform of the current investigation structure can be summarized into the following points: establishment of the High-Ranking Official Crime Investigation Agency to disperse the prosecution’s power, separation of the investigative power and the prosecuting power, and the adoption of the municipal police system to disperse (control) the police’s investigative power.
The talks of the High-Ranking Official Crime Investigation Agency began in the 1990’s. It was proposed for the purpose of controlling and dispersing the prosecution’s power, in an effort to correct the political bias shown by the agency in its investigation of crimes involving officials in positions of power. According to the currently proposed bills on the High-Ranking Official Crime Investigation Agency, the agency has both investigative power and prosecuting power. As this dual power poses a risk of the agency being used for political purposes, the limits and control over these powers would have to be clearly defined. In addition, the organizational structure of the High-Ranking Official Crime Investigation Agency should be designed based on consideration of the independence of the power over personnel matters and budgets, the protection of the status of its prosecutors (investigators), restriction of employment of its retirees by organizations investigated by the agency, the In addition, as a prerequisite for ensuring independent operation of the agency, it should be accorded an independent status under the law. In addition, it should be given functional independence from the existing investigative agencies by securing its own experts and technologies.
Another core issue regarding the investigation structure reform is the separation of the investigative power and the prosecuting power. The proponents of the separation justifies their claim by arguing that the prosecution should not have investigative power if it is to maintain its objectivity as a quasi-judicial agency, and exercise its judicial control over police investigation. However, as investigation and prosecution cannot be clearly separated by their nature, it would be difficult to prevent the prosecution from intervening in investigations under Korea’s criminal justice procedure. Therefore, the crux of the discussion lies in how we should separate the prosecuting power and the investigative power of the prosecution to achieve a reasonable control over the abuse of the prosecution’s power. The prosecution and the police are sharply divided over this issue. However, the Blue House intervened and proposed a adjustment plan under an agreement between the two agencies. The agreement stems from the realization of the two investigative agencies tasked with upholding criminal justice that they need to change their mindset in fundamental ways to reorganize their powers for the safety and rights of the people.
The plan includes the abolishment of the prosecution’s power to give investigative directions, the police’s power to close investigations, restriction of the prosecution’s power to direct investigations, the establishment of the High-Ranking Official Crime Investigation Agency, and the adoption of the municipal police system. Of the many reforms proposed by the plan, the abolishment of direction of investigation should not mean the exclusion of control over police investigation. Therefore, the control over police investigation needs to be designed in the form of limited, horizontal control solely for the purpose of ensuring the legality of investigation and protecting the human rights, departing from the current practice of vertical control and direction over a subordinate agency. In addition, when the police decides not to forward a case to the prosecution, it constitutes an exercise of the state power that may significantly impact the rights of the suspect and the victim. For this reason, a non-forward decision should be subject to judicial review, which should be ultimately conducted by the courts including the Constitutional Court. Such adjustment raised the need to address the issue of possible over-expansion of the police’s power, and the undermining of the neutrality and fairness of investigation. In this regard, the adjustment plan provides for the adoption of the municipal police system to disperse the police’s power, and the ban on the administrative police’s intervention in the duties of the judicial police. In particular, the National Police Agency, the Seoul Metropolitan Government, and the Municipal Decentralization Committee proposed three different proposals. In this regard, we need to clearly understood why the municipal police system is being proposed in the discussions for the investigation structure reform. The adoption of the municipal police system is on the discussion table for the purpose of decentralizing the police by dispersing the police’s power and the power of the state police, so as to establish a system of check and balance between the state police and the municipal police, and promoting the political neutrality of the police’s power by engaging the citizens through the municipal police. Therefore, to build a municipal police system that conforms to the purpose of the investigation structure reform, the following is required: firstly, the municipal police should have the power that they can exercise as the agency tasked with maintaining order in their area; secondly, the relationship between the state police and the municipal police should be that of cooperation, and the supervision of the municipal police should be the responsibility of the local government; thirdly, to ensure the political neutrality of the municipal police, its personnel and financial matters should be handled by a police committee consisting of citizens and the local council; and lastly, to ensure fair exercise of the municipal police’s investigative power, the police should be divided into the administrative police and the judicial police, and the former should not be allowed to intervene in the latter’s exercise of its investigative power.
5. This study compared the investigative agencies of the United Kingdom and Germany, the two countries that represent the Common Law System and the Civil Law System, respectively, to understand the history leading up to their current investigation structures and how they gained the trust from the people.
The German investigation structure is basically similar to the Korean counterpart. Its characteristics can be summarized in five points presented below. Firstly, given the birth and the contemporary significance of the prosecution system, the prosecution is an agency, the “watcher of the law,” tasked with discovering substantial truths between the two extremes of the administrative power and the judicial power. On one hand, it exercises rule-of-law control over the administrative power. On the other hand, it keeps the judicial power in check to prevent the abuse of its monopoly over trials. Secondly, the prosecution’s powers to direct and close investigations is a logical outcome derived from its responsibility over the overall matters of public trial. In this sense, these powers stand at the center of the investigation structure under the German criminal procedure law. Thirdly, despite the fundamental principles of the criminal procedure act, the police holds a superior position over the prosecution in actual investigations. There also exists the issue regarding whether to allow the prosecution to make the decisions in cases where the prosecution’s prosecuting power conflicts with the police’s duty to prevent risks (as prosecutors may not have accurate knowledge over the practical matters regarding the case). To address this issue, under the guidelines enacted in agreement between the ministry of justice and the ministry of internal affairs, the police’s judgment prevails in such cases as long as int does not violates the fundamental principles of the criminal procedure law. Fourthly, Germany restricts the discretionary power of the police and the prosecution in criminal investigation by allowing the courts to discover substantial facts on its own and force agencies to conduct investigations, and checks the discretionary power of the prosecution in prosecution by requiring prosecutors to seek indictment (although there exist many exceptions to the principle). Fifthly, the German investigation structure is characterized by the power of the Minister of Justice to direct investigations. Even though the prosecution is accorded independence from the administration at least with regard the investigation and indictment, the existence of external supervision and direction restricts it from achieving full independence. The prosecution is often criticized for serving political agendas. The sixth characteristic of the German investigation structure is that an abuse of investigative power or prosecuting power is punishable by the law, and actually subject to punishment in actual cases.
As for the United Kingdom, even though the structure of its criminal procedure is fundamentally different from the Korean structure, their experience has important implications for Korea’s reform in that the country also pursued efforts to strengthen the principle of public trial and exact judicial reforms, and prevents the overexpansion of power and maintains check and balance (cooperation) under the adversarial system that characterizes the British criminal justice.
The directions of changes in the British investigation structure can be divided into five categories: transition from private prosecution to public prosecution; separation and independence of prosecution from investigation; the nature of public prosecution as the “last resort” and the minimization of punishment; control against concentration and sprawl of state power; and, lastly, emphasis on efficiency and cooperation among agencies. Across these five points, the study overviewed the British criminal procedure to look into the special characteristics of the criminal procedure and its concept of investigation and prosecution, and used the findings to explore the country’s investigation agencies and organizations in further details. The analysis revealed the following characteristics and implications of the British investigation structure.
Firstly, the judicial reform in the United Kingdom can be characterized by the gradual transition from private prosecution to public prosecution. Private prosecution is a markedly British system in that citizens control arbitrary exercise of the state power by the police. The transition represents the country’s prolonged efforts to disperse the police’s power, which used to have both investigative power and prosecuting power. Secondly, the changes are directed toward the separation and independence of prosecution from investigation. Through analysis of certain authoritative reports and the enactment and revision of certain laws, the United Kingdom seems to have achieved its goal to separate prosecution from investigation to an extent. One noteworthy change in this regard is that the Criminal Justice Act 2003 enhanced the functions of the Crown Prosecution Service (CPS) established under the Prosecution of Offences Act 1985. Thirdly, despite the above changes, the British civil society upholds the tradition of seeking autonomous resolution of cases through concilations, recommendations, and civil resolutions whenever possible to prevent the over-expansion of state power. The British people also are highly cautious when it comes to legal and institutional reforms. For example, the Serious Fraud Office (SFO) can investigate and prosecute suspects, even though it does not have the power to arrest. However, in lieu of prosecuting suspects, the SFO allows for deferred prosecution agreements (PDAs), which provide an opportunity to avoid prosecution if the entity compensates for the damage, improves its business practices, cooperates with the investigation, and meets other requirements. Fourthly, the separation of investigation and prosecution took place over a period of more than 150 years, which allowed the United Kingdom to control the over-expansion and concentration of the criminal justice power and develop a wide range of controls. The country took away the police’s prosecuting power, and designed the criminal justice structure so that the police and the prosecution have powers and responsibilities toward each other, provided for various functions to inspect the operations of investigative agencies, and instituted devices to check the prosecution’s power to prosecute. Fifthly, despite these reforms, prosecutors’ intervention in criminal investigation is still limited in this country where the police have a long history of leading criminal investigations. For example, the police has sole discretion over its implementation of advices from the CPS, which shows that the prosecution does not have the power to supervise police investigation. This structure reflects a number of considerations: the prosecution cannot focus on its duty to prosecute criminals if it involves itself in investigation by directing investigations; when the prosecution directs investigations, it is impossible to place responsibilities for unreasonable investigations and the resulting acquittals; and, ultimately, allowing the prosecution to direct investigations makes it difficult to protect human rights, which is one of the principles of criminal litigation.
It should be noted that, over a long period of time, the British investigation structure has changed toward preventing the concentration of power and protecting the people’s rights from the state. Another useful implication for Korea’s reform efforts is that the changes were directed at achieving check and balance and placing responsibilities through external control or mutual control between agencies of power. In addition, it should be noted that, throughout the long history of investigation structure reform, the United Kingdom has viewed all reform efforts as contemporaneous and provisional, and gradually advances through the goal of discovering substantial truths and protecting the human rights.
6. To identify the various issues related with the investigation structure reform, and analyze the possible problems arising from the reform, the researchers conducted focus group interviews with experts and a general awareness survey. The focus group interviews targeted a focus group consisting of prosecutors, police officers, and lawyers, who are the experts and the concerned parties at the same time. The interviews were aimed at identifying the issues related with the adjustment of investigative power from diverse perspectives. In the awareness survey, a population consisting of males and females aged 20 or order were asked to provide their thoughts on crimes and criminal justice, investigative agencies, and the investigation structure.
The findings of the focus group interview are as follows. With regard to investigation structure, most prosecutors expressed an opinion that the prosecution needs to have the power to direct police investigations. They tend to hold that prosecutors should have the power to make final decisions on investigations. In addition, they emphasized the need to correct inappropriate investigative practices by directing investigations, directing the details of each investigation from the very beginning, and the importance of the experience and judgement of legal experts in criminal investigations. On the other hand, police officers responded that prosecutors’ direction distort investigations in a way, and there are some cases where prosecutors give unjustifiable directions for their investigations.
The prosecutors, police officers, and lawyers agreed that the prosecution’s authority to conduct investigations constitutes power in itself. In this regard, some prosecutors maintained that prosecutors should be allowed to directly investigate fewer cases or no case at all. Their rationale was that prosecutors are legal experts, not investigators, and should be restricted from directly involving themselves in investigations so that they can focus on making legal decisions. However, these prosecutors also expressed an opinion that, while minimizing their direct involvement, prosecutors should be given more power to direct investigations. On the other hand, police officers were of the opinion that the police should assume the leading role in investigations, with prosecutors’ roles limited to prosecution. Even though some officers agreed that the police somewhat lacks the capabilities to take the lead in investigations, they argued that such shortcoming comes from the current structure that does not motivate middle-managers to take responsibility, not from actual lack of officers’ capabilities.
Regarding the government’s adjustment plant that gave the police the power to close investigations, most prosecutors were against it. They pointed out that, once a case is closed, it is practically difficult for prosecutors to reopen the case for investigation. They also expressed concerns about the police’s abuse of power. The prosecutors took the view that the adjustment plan restricted their power to direct investigations while preserving the prosecution’s investigative power. They were concerned that the plan may only result in heavier workloads without producing meaningful changes, and demotivate them from thoroughly reviewing cases by reducing their responsibilities. The same opinions were identified with the police officers as well, who expressed concerns that the power to close investigations may only increase workloads without producing meaningful results. Lawyers also expected that the power to close investigations will not affect the actual investigations in meaningful ways. With regard to the High-Ranking Official Crime Investigation Agency, many respondents opined that it will not produce meaningful results, and only serve to expand the total amount of power. However, some prosecutors responded that, even though the agency does not produce meaningful results, it can be conducive to regaining the people’s trust.
The findings of the general awareness survey on the investigation structure reform are as follows. Many of the respondents were not meaningfully interested in the adjustment of investigative power between the prosecution and the police. Those respondents who showed interest in the matter thought that the investigative power needs to be adjusted. When asked about the need for such adjustment after a brief introduction to the issue, the percentage of respondents answering that the adjustment is necessary substantially increased. As for the reason for the adjustment, the highest number of respondents pointed to the concentration of investigative power in the prosecution, and the resulting possibility of abuse of power. However, some respondents also worried that giving the police more power may exacerbate human rights violations caused by police investigations.
In the same vein, most respondents welcomed the idea of giving the police the power to conduct investigations on their own without directions from the prosecution. The most cited reasons for the opinion was that, as was the case above, the prosecution has too much investigative power. However, many of the respondents who hold that prosecutors should have the power to direct police investigations also thought that prosecutors’ direction should be strictly subject to the relevant laws, and expressed concerns about arbitrary investigation by the police.
The majority of the respondents agreed with giving the police the power to close investigations. However, the percentage was lower than that of respondents who agree with abolishing prosecutors’ power to direct investigations. The respondents who had experiences with investigation by the police and/or the prosecution were more likely to agree with allowing the police to close investigations. This finding implies that being investigated by the prosecution undermined the investigatees’ trust toward the prosecution. The respondents who agree with the police’s power to close investigations expected that giving the power will expediate investigations, and seem to think that it is only natural to allow the police to close investigations when it is the police who conduct those investigations. However, many respondents expressed concerns about illegal investigation and possible concealment by the police, and not a small number of respondents pointed out that the police lacks the legal expertise required.
As for the High-Ranking Official Crime Investigation Agency, most respondents agreed with the need to establish the agency, and expressed expectations that the agency will be able to handle corruptions by high-ranking officials in an objective and fair manner.
This shows that there exists a certain degree of consensus on the need to disperse power across multiple organizations by adjusting the current structure where the investigative power is concentrated in the prosecution. However, it is also required to clearly identify the new and persisting issues that may be brought on by conferring investigative power to the police or the agency, and seek ways to address them.
In particular, attention should be paid to those voicing concerns about possible human rights violations during police investigations, and the opinions that the police currently lacks the capabilities to conduct investigations on its own. It should be clearly understood that having more investigative power means taking more responsibility, and the police should have the capabilities to perform its roles befitting its expanded authority. Even in case of dispersing investigative power to the police or the High-Ranking Official Crime Investigation Agency, it is imperative to ensure cooperation between the prosecution and the police, and between the prosecution and the agency. Regardless of how the investigation structure is adjusted, such efforts should be accompanied by plans to promote cooperation among the agencies to ensure effective response to crimes.
7. For the purpose of investigation structure reform, the dispersion and control of power constitutes the “external frame,” while the people’s trust toward the fairness and objectivity of the investigative agencies constitute the “internal frame.” Therefore, the issue of the direction of the investigation structure reform should be approached from the following aspects: dispersion and control of power, political neutrality of the investigative agencies, and the investigation structure centered on the human rights.
The dispersion and control of investigative power represents a reform frame required for both the police and the prosecution. Therefore, to ensure meaningful dispersion of the prosecution’s investigative power, the police should be given the power to close investigations, while conferring the power to the High-Ranking Official Crime Investigation Agency. In addition, the exercise of the prosecution’s investigative power should be subject to review by the prosecution investigation review committee and the warrant review committee consisting of neutral members appointed from outside the organization (tentative titles). In addition, the prosecution should not be allowed to investigate crimes by prosecutors and employees of prosecutors’ offices. To ensure fair exercise of prosecutors’ discretionary power to investigate suspects, parties should be allowed to apply for court ruling against crimes accused by third parties as well as crimes accused by victims. In addition, in case of an application for court ruling, a lower should be assigned for the maintenance of prosecution rather than a prosecutor. In addition, another option worth considering is the adoption of the grand jury system as a means to allow citizens control the prosecution’s power. In fact, the prosecution’s prosecuting power effectively replaced court judgment in many cases. Given this fact, changes should be made toward subjecting the prosecuting power to civil control, just as citizens are allowed to participate in trials through the participatory trial system. Furthermore, given the purpose of the investigation structure reform, the investigative power of the police should be dispersed by adopting the municipal police system and transferring the investigative power over less severe crimes to the municipal police. In addition, regarding the police’s power to make non-forward decisions, the exercise of the power should be subject to possible appeals from the parties involved, as well as the control by the courts including the Constitutional Court.
Along with the dispersion and control of investigative power, another key issue with the investigation structure reform is the political neutrality of the investigative agencies. To ensure that the prosecution stays politically neutral, the Minister of Justice’s intervention in the appointment of the Supreme Prosecutor and other prosecutors should be minimized or banned altogether. In addition, dispatch of prosecutors or their holding of concurrent positions at the Ministry of Justice should be minimized or prohibited. In addition, to ensure political neutrality and fair exercise of the prosecution’s power, the power of the Minister of Justice to issue directions to the Supreme Prosecutor in criminal investigations should be abolished. To ensure the political neutrality of the police, a national investigative agency should be established to prevent the administrative police from intervening in the investigations of the judicial police. One of the prerequisites is to transfer the investigative power over less serious crimes to the municipal police to reduce the investigative power of the state police, separating the power over personnel matters and the power for internal inspection, and instituting democratic controls that engage citizens. And all directions given for investigations should go through the Korea Information System of Criminal Justice Service (KICS), to prevent unjustifiable intervention in investigations.
Ultimately, the investigation structure reform should be directed under the premise that such structure fully protects the people’s human rights and basic rights. In this sense, the investigative agencies should prepare the institutional means to offer such protection in actual investigations, and go through changes required to implement such means. Firstly, to provide enhanced human rights protection during investigations, suspects’ attorneys to be given more room to participate in investigations. To ensure the efficacy of such participation, institutional changes should be made to provide counsel by public attorney to suspects who cannot afford representation. In addition, all investigation should be recorded as a means to protect human rights, and suspects’ statements prepared by investigative agencies should not be admitted in court so as to stem the possibility of human rights violations during the preparation of the statements.