[Young Domain] Where Have 180,000 Unresolved Cases Gone?

'Investigation vacuum' at agencies with new names
90 days remain in grace period for Prosecution Office's direct investigations
Lost cases must be helped back onto the right track

"Where is my case now?"

It is the question most often asked in calls to law offices, a month after the prosecution offices closed. Lawyers do not necessarily know the answer either. Opinions are divided over the sweeping change, the first in 78 years, separating investigations from indictments. But there can be no disagreement over a justice system that cannot answer this question.

Let’s start with the numbers. At the end of September, there were more than 186,000 unresolved cases nationwide, an increase of more than 20,000 in a month. According to the Ministry of Justice’s response to a parliamentary audit, the number of unresolved cases per prosecutor is more than four times what it was two years ago. The newly opened Serious Crimes Investigation Agency (SCIA) does not even have a criminal justice information system, so warrants are being requested on paper, and plans are underway to print out case records and have people transport them. Even two weeks after the agency began operations, not a single unresolved case had been transferred from the Prosecution Office to the SCIA. At a parliamentary audit, the head of the Office for Government Policy Coordination said, "It is true that there has been some confusion." What we are seeing now is not confusion; it is a vacuum.

For four years, the reform debate revolved around "who should investigate." There is one person who was never made the subject of that debate: the complainant. The blueprint for rearranging the roles of powerful institutions left no place for the people involved in cases. The result is the vacuum we see today. Institutions can change their signs and still pay their employees, but no one compensates complainants for the time they lose. The longer investigations take, the harder it becomes to recover a rental deposit withheld from them or the few million won they lost to fraud. Meanwhile, perpetrators gain time to hide their assets. High-profile abuse-of-power cases are watched by cameras, but no one pays attention to ordinary people’s complaints.

The gaps in the blueprint remain in the statutory language as well. They are found in Article 245-13(3) of the amended Criminal Procedure Act. Under this provision, prosecutors may receive materials from victims, but they cannot use those materials as evidence at trial. Until now, a victim could submit evidence to the trial prosecutor, who would review it and apply to the court to have it admitted. Now, that routine procedure is subject to dispute over whether it violates the law. Some argue that after an indictment is filed, victims may submit evidence themselves to the court because doing so is part of maintaining the prosecution, not conducting an investigation. But the provision excludes materials obtained not only through "investigation" but also through "fact-finding," and includes fact-finding for the purpose of maintaining a prosecution. As long as the provision remains as written, defendants will challenge the admissibility of evidence in every case, and different courts will reach different conclusions. Evidence that could put a perpetrator in the dock may be in the victim’s hands but still unable to enter the courtroom.

A bigger wave is coming at the end of the year. The 90-day grace period during which the Prosecution Office can retain and handle cases it investigates directly ends at the end of December. One prosecutor on the front lines admitted, "It is practically impossible to wrap up cases we have not even touched within 90 days." Cases that remain unresolved will be transferred to the police and the SCIA, where they will have to go through the handover and reassignment process all over again. The Prosecution Office says, "There will be no wholesale transfer," but a phased transfer will only prolong the wait; it will not make the problem go away. December, when the grace period ends, is also when the SCIA’s computer system is expected to finally return to normal. There is no plan for the point at which the two deadlines overlap.

This is not a call to turn back the clock on reform. It is a call to help people find cases that have lost their way. Three steps would be enough. First, whenever a case moves between institutions, complainants must be notified of the transfer and told which institution is handling it. In a country where you can track even a single parcel, not knowing where a criminal case has gone is a matter of will, not technology. Second, cases affecting ordinary people that require urgent recovery of losses, such as rental deposit fraud and voice phishing, should be prioritized for transfer. Third, all cases should be reviewed before transfer to ensure that none with an imminent statute of limitations are left drifting between institutions. All three steps can be started immediately with a single directive. A separate step requires an amendment to the law: Article 245-13(3) must explicitly state that materials submitted by victims themselves are exempt.

Interpretation and consultation cannot eliminate uncertainty over the admissibility of evidence. Reform is not complete on the day a law is passed. It is complete when a single complaint does not lose its way. The signs have changed. Now it is time to find the cases.

Attorney Lee Jae-hong

[Young Domain]

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