All criminal cases deserve independent review

At a news conference on June 8, President Lee Jae-myung said he would leave it to the National Assembly to decide whether prosecutors should retain supplementary investigative authority. The comment was widely seen as a step back from his earlier position that prosecutors should keep at least limited powers to conduct follow-up investigations. On June 12, Democratic Party of Korea leader Chung Cheong-rae wrote on Facebook, "Completely abolish supplementary investigative authority." As lawmakers prepare to revise the Criminal Procedure Act, momentum appears to be building toward eliminating that authority altogether.

The rationale offered by the ruling camp is straightforward: under the principle of separating investigation from prosecution, prosecutors should not be granted any investigative powers. If that principle is to be upheld, however, there must also be safeguards to prevent investigative agencies such as the police and the proposed Serious Crimes Investigation Agency from wielding excessive power while ensuring that investigations remain thorough and reliable. One idea gaining traction among some legal experts is restoring the system under which every criminal case is forwarded to prosecutors for review and a final disposition decision.

Since the 2021 reform that redistributed investigative powers between prosecutors and police, investigative agencies have forwarded only those cases they believe warrant prosecution. Cases deemed unsupported by sufficient evidence are closed internally. At the time, the goal was to dilute the influence of a prosecution service that exercised both investigative and prosecutorial authority by narrowing prosecutors' investigative jurisdiction and granting police the power to close cases. The landscape has since changed. With the prosecution expected to be dismantled in October and prosecutors at the proposed Public Prosecution Office unlikely to retain investigative authority, concerns are increasingly shifting toward the potential for unchecked power within investigative agencies themselves. That is the central argument advanced by supporters of universal case referrals.

There is already a process for challenging police decisions not to forward a case. Complainants and victims may file objections that trigger prosecutorial review. Yet the system leaves significant blind spots. Only complainants and victims can file objections, meaning whistleblower cases and cases without identifiable victims often receive no secondary review. The process can also be costly, as many people require legal assistance to pursue an appeal. Prosecutors may independently review records from cases that were not forwarded and request additional investigation, but even then they lack effective means to compel compliance if investigators decline to act.

The numbers underscore the problem. Of the roughly 600,000 cases that police decided not to refer for prosecution last year, only about 50,000 were challenged through formal objections, and prosecutors requested reinvestigations in just 10,000. In effect, nearly 90% of the cases closed by police were resolved without any further review. It is no exaggeration to say that investigative agencies are, in practice, exercising a form of nonprosecution authority.

The power to close a case can be every bit as significant as the power to bring charges. Just as investigative and prosecutorial powers have been separated within the prosecution system, there is a strong argument for separating investigative agencies' authority to investigate from their effective power to determine whether a case goes forward.

Opponents of universal case referrals argue that there is no reason to assume prosecutors would make better judgments than police investigators or officials at the proposed Serious Crimes Investigation Agency. But that is not really the issue. The question is not who is more capable. An additional layer of review would encourage investigators to approach their work more carefully and reduce the likelihood that cases are overlooked. Prosecutors may also identify evidence or legal issues that investigators failed to recognize.

Some argue that stronger cooperation between prosecutors and investigative agencies would be enough to close any gaps in the system without further institutional changes. Yet, as the advisory committee to the Prosecutorial Reform Task Force under the Prime Minister's Office observed, "The completeness of investigations cannot be secured solely through the goodwill of investigative agencies, whether viewed from a historical, theoretical or practical perspective." Cooperation is important, but it is not a substitute for oversight. The criminal justice system should be designed to prevent excessive concentrations of power and ensure that investigative errors are identified and corrected.