[Lee Jae-min] Checks and balances key to ‘prosecution-police’ debate

Should police be permitted to terminate a criminal investigation on their own? This question is at the core of a long-standing debate between the prosecution and police over the adjustment of investigative power.

There are many other issues, but this one has become very symbolic. The prosecution opposes it, while the police treat it as the lynchpin of the whole debate. National Assembly deliberation this fall will finalize the adjustment. As expected, it was also a hot topic at the confirmation hearing of the new prosecutor general on Monday.

Korean criminal investigations center on the prosecution. Only a prosecutor can terminate an investigation and indict a person as a result of an investigation. Furthermore, only a prosecutor can seek an arrest warrant.

However, the reality is that police conduct most actual investigations. Once the investigation is over, police then transfer the case to the prosecution for either indictment or termination of the case. The reform being considered now is whether to permit police to end a case of their own volition.

Concerns have been raised. What if the police close a case inappropriately? Recent high-profile scandals implicating police officers have fanned such concerns. True, the police have a long way to go to earn the public’s trust. The power balance will shift toward the police if they can initiate and terminate an investigation. The question is how much of a shift we are looking at.

What has been missing in this debate -- and what should come up in this fall’s deliberation -- is what is a better model for the country? The benchmark, in short, should be how to ensure checks and balances between these two powerful law enforcement agencies. They are cut from the same cloth -- aren’t they? -- so checks and balances would be critical. The dominance of one agency may not work in today’s Korean society. The current system was structured as long ago as in 1962.

Viewed from that perspective, it is not entirely clear whether the proposed “police termination” option would have such large negative effects. I am thinking of a couple of things.

First, the prosecution can still request the reinvestigation of a case closed by the police. If misconduct is suspected, the prosecution can still reopen the investigation. Besides, the prosecution will still monopolize the indictment authority, which means it can decide not to press criminal charges after a police investigation. So, a rough balance between the two agencies seems to be there. Let’s see how this scheme shapes up in the final package.

To dispel worries, another safeguard can be put in place. For instance, a police officer in charge should remain and be held responsible in case of investigation termination. Administrative penalties and criminal sanctions for police misconduct can provide yet another layer of protection.

Also, come to think of it, the other party of the investigation, once termination is decided, will probably submit a petition to the prosecution for reinvestigation. The prosecution will be alerted and prodded anyway, which could serve as a counterweight to termination by police.

Therefore, the termination of investigation by police will still be self-censored, party-monitored and prosecution-examined. Incidents of misconduct may not arise as argued by the prosecution.

Of course, irregularities and controversies may appear here and there. However, it may not be an indication of a systematic problem as a result of the proposed overhaul.

On the other hand, the benefits arguably look tangible: checks and balances between the prosecution and police could be better ensured that way. A police termination model is presumably something that we can explore, with proper conditions in place.

The two agencies have been engaged in fierce debate for several years now. With proper consensus in the fall, it is about time to make a decision and move on.


Lee Jae-min
Lee Jae-min is a professor of law at Seoul National University. He can be reached at jaemin@snu.ac.kr -- Ed.