Fine-tuning criminal justice systems

Hwang Cheol-kyu
The author is the president of the International Association of Prosecutors (IAP).

According to the Vatican News website, Pope Francis told the members of Italy’s High Council of the Judiciary in a recent meeting that justice can be trusted when it is free from political influence. He also told it that when powerful people form alliances with one another to protect their vested interests, innocents pay the price. As the ruling Democratic Party (DP) is attempting to completely take away the prosecution’s investigating authority, the pope’s remarks seem pertinent.

Italy is the home of the Mafia. I had a meeting with the prosecutor general of Italy last year. In February, I had a meeting with the head of the prosecution in Sicily, the hometown of the Mafia. Through the meetings, I was able to confirm that the highest prosecutors and the regional prosecution offices of Italy are operating investigation teams exclusively handling crimes by the Mafia.

During the “Mani pulite” campaign in 1992, which investigated politicians cooperating with the Mafia, a judge and a prosecutor died, while massive numbers of Mafia members were arrested.

Do prosecutors in other countries carry on direct investigations as in Italy? The International Association of Prosecutors (IAP) is an international organization of prosecutors in 177 countries. It was launched in 1995 by the United Nations to effectively combat cross-border crimes. I served as an executive member and vice president of the IAP starting in 2011. Since September 2019, I have been serving as president of the organization and had opportunities to closely observe prosecutions around the world.

The role and function of the state prosecution differ by country, but prosecutions around the world mainly investigate, indict and present indictments throughout a trial. Indicting and presenting the indictment in a trial are mostly done exclusively by the prosecutors. As investigations are preconditioned to indictment, prosecutors generally have investigative power in countries with democracies and criminal justice systems.

The United States and the UK are often mentioned as countries where police conduct investigations while prosecutors only make indictments. But that is not true. In the case of the U.S. Attorney, which handles major cases, federal prosecutors have the right to open an investigation and conduct the investigation in consultation with federal investigators such as the Federal Bureau of Investigation (FBI). State prosecutors also conduct investigations to complete the probe outcomes sent by the police; they also have separate investigative departments where prosecutors directly investigate major cases.

Britain introduced the prosecution system for the first time in 1985 to establish an exclusive investigation and indictment system by law experts. In 1988, the Serious Fraud Office (SFO) was set up and prosecutors and investigators cooperate to conduct probes and make indictments.

The global standard of who is in charge of investigations and indictments can be found in Europe. Including Italy, almost all European countries such as Germany and France give prosecutors investigative powers. The state prosecution offices of 27 European Union member countries exercise warrants across borders through the Eurojust, an agency of the EU dealing with judicial cooperation. When necessary, multinational investigation teams are operated, presenting a model of advanced cooperation of international criminal investigation.

As countermeasures against cross-border crimes such as corruption, economic crimes, tax evasion and money laundering became weak, the EU created the European Public Prosecutor’s Office (EPPO) last June. Prosecutors are in charge of investigation and indictment in the new office, comprised of the chief prosecutor and prosecutors from 22 member countries. Prosecutors of the member countries that have jurisdiction over particular cases conduct investigations, make indictments, and present the indictments. The EPPO seeks to maintain a consistent and effective criminal justice system through prosecutors’ investigations and indictments.

The prosecutor generals of the EU countries will have a meeting in Austria next month, a major agenda of which is boosting the operation of EPPO. As I prepare my keynote speech for the event, I am perplexed to see in Korea that the DP is trying to strip the prosecution of its investigative powers in a move totally the reverse of the global trend. In order to make effective indictments and arguments, prosecutors must conduct investigations to confirm facts. I hope a proper system that serves the global standard will be established in Korea.
Translation by the Korea JoongAng Daily staff.