The court also has concerns about the manipulated-indictment special counsel bill··· Criteria for ‘abuse of prosecutorial power’ are vague, and there is no prior control over unlawful investigations - 경향신문

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Seo Young-kyo, chair of the National Assembly's Legislation and Judiciary Committee, delivers a review report on the 5th during the plenary session on the ‘Act on the Appointment of a Special Prosecutor for Fact-Finding into Allegations of Fabricated Investigations·Fabricated Indictments by the Prosecution Service, National Intelligence Service, and Board of Audit and Inspection under the Yoon Suk-yeol Administration’. Park Min-kyu, senior reporter

It has been found that the Supreme Court pointed out aspects of the so-called ‘manipulated-indictment special counsel bill’, which passed the National Assembly on the 6th, including that the criteria for investigation targets are vague. The Supreme Court expressed concern that, if the special counsel bill is enacted as is, indictments could be dismissed or evidence could lose admissibility during trial.

According to review materials from the Legislation and Judiciary Committee's First Subcommittee on Bill Review, obtained by the Kyunghyang Shinmun on the 6th, the Supreme Court's Court Administration Office submitted opinions such as ‘careful review’ and ‘further review needed’ on some provisions of the special counsel bill. This amounts to a de facto opposition, indicating that those provisions should not be enacted as written.

The Court Administration Office pointed out that the provision designating ‘suspected abuse of prosecutorial administrative authority’ as a subject of the special counsel's investigation is vague from the outset. Article 2(1)2 of the bill designates, in connection with the incidents specified in the bill, including the Daejang-dong and Baekhyun-dong development projects and the Ssangbangwool remittances to North Korea, "criminal cases allegedly involving the abuse of prosecutorial power by the concentrated mobilization, over an extended period and unlike ordinary practice, of a large number of prosecutorial personnel to achieve purposes such as removal of the opposition leader" as subjects of the special counsel's investigation.

The clause was intended to define related cases so the investigation could be expanded beyond those enumerated in the bill, but the Court Administration Office noted that what ‘removal of the opposition leader’ means is unclear. It also said the criteria for abuse of prosecutorial power are vague. The office stated, "It is difficult to readily predict the period and scale of personnel mobilization that would have to be reached to fall within the special prosecutor's investigative scope."

The committee's expert advisor offered a similar review, citing a Supreme Court precedent that dismissed an indictment filed by the Kim Keon-hee special counsel team. Although that team had as many as 16 investigative targets, it expanded the Seoul-Yangpyeong Expressway case into alleged personal corruption by an official of the Ministry of Land, Infrastructure and Transport, but ultimately failed to have investigative relevance recognized by the Supreme Court and the dismissal of the indictment was finalized.

The Court Administration Office also raised issues with the provision that gives the Seoul Central District Court exclusive jurisdiction over warrant applications. The Daejang-dong and Baekhyun-dong development projects and the Ssangbangwool remittances to North Korea are already being tried at the Seoul High Court, the Suwon High Court, and the Suwon District Court. Under the bill, the special counsel must file warrant applications related to these cases with the Seoul Central District Court.

However, the Criminal Procedure Act permits evidence in cases on trial to be collected only with search-and-seizure warrants issued by the trial panel and its court; the same applies to arrest warrants. Accordingly, the Court Administration Office noted that "there may be controversy over whether the exclusive-jurisdiction provision applies to compulsory investigations such as warrant applications in cases already indicted," adding that "this could also lead to issues of evidentiary admissibility during trial."

In a subsequent revision, the provision granting the Seoul Central District Court exclusive jurisdiction over warrant applications was deleted.

The court particularly pointed out that the provision on a ‘prosecution-maintenance attorney’ could be problematic, as it delegates to special investigators, who perform the duties of judicial police officers, the authority to maintain prosecutions that is granted to prosecutors. Article 7 of the special counsel act allows the special counsel to designate, from among special investigators who are qualified as attorneys, an attorney to handle maintenance of prosecutions.

The Court Administration Office stated, "Special investigators basically perform the duties of judicial police officers, and further review is needed as to whether it is appropriate for the special counsel to unilaterally designate them and grant them the constitutionally conferred authority of the executive branch, without the involvement of the President who heads that branch, merely because they hold attorney qualifications." It also said, "If their litigation acts exceed the scope of delegation, they become null and void, creating a risk that trial proceedings may stall or be prolonged."

It was also noted that the special counsel bill lacks any procedure for suspects, etc., to file objections during the investigative stage. The previous four special counsel bills and the bill on the National Election Commission all included a provision allowing objections over the special counsel's overstepping of authority to be filed with the Seoul High Court.

The revised draft newly establishes a provision allowing investigation subjects to file objections with the Seoul High Court through the special counsel.