[VIEWPOINT]Courts can’t ignore investigative side

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[VIEWPOINT]Courts can’t ignore investigative side

Supreme Court Chief Justice Lee Yong-hun has created a lot of controversy while touring around district courts by making unhindered remarks that sounded as if the court stood in a superior position on judicial reform. His remarks included such comments as: “Although they call it the three wheels of the judiciary, the backbone of the judiciary is the court, and the prosecution and the bar associations are auxiliary organizations,” and, “How can statements obtained by prosecutors behind closed doors be put above statements that come out in the open court?”
Nobody is raising any objections to the idea that we should adopt, in place of the existing trial method that depends heavily on investigation records, the trial methods of other advanced countries in which the prosecutors and the accused vie for the truth in court, with equal rights given to the attackers and defenders. The purpose lies in implementing judicial justice: guaranteeing the basic rights of the accused while also proving the actual truth at the same time. However, there is an illogical idea hidden behind this proposal that is regarded as being natural. The remarks of the chief justice sound as if he presupposes that the “discovery of the truth” is a value that can only be pursued in the courtroom. In that case, we conclude that the current investigation-based system is wrong and should be changed unconditionally. In other words, the chief justice seems to consider the investigations carried out by present authorities with mistrust and sees them as a common practice that should be abolished in the future.
However, the problems related to the criminal court proceedings have a conflicting structure of protecting the human rights of the suspects and the accused on one hand, while punishing criminals and defending the rights of the victims on the other.
The problem of how to realize these conflicting values should be approached from a practical point of view, not from unconditional mistrust of the role of the investigative authorities.
After all, the reason for the judicial branch, including the court and the prosecution, is to minimize the people’s discomfort and pursue actual truth through appropriate procedures. Yet according to the words of the chief justice, the investigative procedure should be ignored and all investigations should start all over again in court. If the truth was pursued only in the court in this way, it is questionable whether the courts would realistically be able to proceed with all the hearings it would need, considering its current manpower and organization.
Also, the fundamentals of the current investigation system, which is separate from the court and is entrusted to prosecutors and the police who get their orders from the prosecutor’s office, would have no other choice but to crumble. Moreover, when the accused or witnesses deny or reverse statements in court that they originally made to investigative authorities, trying to blindly stop the use of investigation reports as evidence would be biased ― from the view that only emphasizes the human rights of the criminals. When the prosecutors decide whether to prosecute or not, they make their decisions on the basis of statements made by the accused during investigations. But if those statements can’t be used in open courts, then how should the prosecutor decide whether to prosecute? If things go this way, there arise such fundamental questions as to whether there is any need to go through investigational procedures at all and who will protect the basic rights of the victims.
The reason people submit to the court’s decisions is not just because it is the ruling of “the court.” They believe that the court should be the most objective and neutral organization, independent from the administration and the last bastion that defends people’s human rights. The court also benefits from the people’s confidence that it is the most ethically superior institution of all of the branches of government. But what is the reality?
There is still a lot of mistrust among the people, not only due to the low ethical standards of judicial officers, but also from overall distrust toward the legal profession due to the practice of such vices as special favors to recently retired judicial officers, which result in unreasonably higher fees for lawyers who just retired. The current effort to introduce a jury system where people participate directly in trials has begun, in part, due to people’s distrust of the system. In the end, the only way to make people trust the judicial system is to provide a systematic guarantee that individual judges can preside in court proceedings according to their consciences.
It would be dangerous, in the absence of such conditions, to try to open trials in a populist way in the name of judicial reform. If open trials centered on the law are pursued without preparation, the people will ultimately have to pay the damages, such as trial delays and high costs.

* The writer is a professor of law at SeoKyeong University. Translation by the JoongAng Daily staff.

by Chung Woong-suk
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