The prosecution and the police are again locking horns over police officers’ right to open criminal investigations. In June, the two law enforcement agencies fought bitterly over the issue, which prompted the resignation of the then prosecutor general, Kim Joon-gyu. The dispute was papered over with a vague agreement, mediated by the presidential office.
At the time, the police demanded that the prosecution officially recognize their right to initiate investigations without a prosecutor’s approval, given that police stations actually do so in 90 percent of criminal investigations. The police urged prosecutors to come to terms with reality.
Prosecutors accepted this demand, agreeing to empower police officers to launch criminal investigations when there is reasonable suspicion of a crime. In return, they wanted to reassert their authority to supervise police. Hence the prosecution had the police reaffirm police officers’ obligation to follow the direction of prosecutors in all types of investigations.
Based on this agreement, the Criminal Procedure Act was amended. But the amendment did not put an end to the long-running dispute. It simply kicked the can down the road. The problem with the revised law is that it refers to wider investigation rights for police without specifically delineating its scope or enumerating the kind of investigations they can initiate.
At the time, the two sides had no time to thrash out such details. So they agreed to have them specified in the enforcement ordinance of the law. The authority to rewrite the ordinance rests with the Ministry of Justice, which came up with a proposal last week, jointly written with the prosecution but without any input from the police.
The draft infuriated police. It sought to tighten prosecutors’ supervision of police officers without recognizing the latter’s right to initiate criminal investigations. It even proposed to reduce the scope of the investigations that police officers currently carry out without prosecutor approval.
Currently, police stations normally perform investigations such as questioning witnesses, tracing bank accounts and search and seizure under their own initiative. The police regard these acts as constituting the initial inquiry phase of a pre-trial criminal investigation.
But the ministry’s draft would ban police from carrying out these acts without prosecutors’ direction, reflecting the prosecution’s view that they go beyond the phase of the initial inquiry. It would only allow police to gather information and perform detective work independently.
The proposal reflects prosecutors’ concern that the current police practices can lead to serious human rights violations. This concern is valid. Especially, search and seizure can violate a suspect’s human rights. In principle, police should not be allowed to perform this coercive investigation act without the approval of the prosecution or the court.
Yet the ministry’s draft goes against the agreement between the prosecution and the police reached in June. The intent underlying the compromise mediated by the presidential office was to empower police to open criminal investigations. Practically, it is difficult for police to consult prosecutors regarding investigation decisions in advance. This is why 90 percent of criminal investigations are initiated without a prosecutor’s approval.
Hence the prosecution needs to acknowledge reality and accommodate the police demands. Even if police are allowed to launch investigations, they are still obliged to report the processed cases to the prosecutor’s office and are subject to the prosecutor’s supervision and examination.
Following the Justice Ministry’s submission of the draft enforcement ordinance to the Prime Minister’s Office, the police came up with their own version aimed at restricting the prosecutors’ power. But escalating the clash this way will benefit neither side. The ugly dispute over the investigation rights four months ago is still fresh in people’s memory.
Furthermore, the two law enforcement agencies have a more urgent thing to do. The Anti-Corruption and Civil Rights Commission recently disclosed the outcome of its integrity assessment conducted on 12 state agencies with investigatory and regulatory powers. The prosecution earned the lowest score, with the police second to last. This makes clear what should be the top priority for the two powerful agencies. They should clean up their act first.