Victims forced to 'self-investigate' under new criminal procedure law, critics say

"Neither the police nor the prosecutors are perfect, and when investigative authority is concentrated in a single agency, the opportunities to correct errors diminish. Once checks and balances disappear, victims have no way to overturn the judgment of the agency that monopolizes the investigation."

Kim Jin-ju (a pseudonym), the victim in the Busan spinning-kick case, made those remarks at a National Assembly forum on July 23 titled "The Direction of Criminal Procedure Law Reform as Seen by Crime Victims." Speaking ahead of amendments that would strip prosecutors of their investigative powers, Kim described herself as "a lucky victim who was attacked while supplementary investigation powers still existed."

In May 2022, a man in his 30s identified as Lee followed Kim home in Busan, knocked her down with a spinning kick to the head, stomped on her until she lost consciousness, then dragged her to a blind spot outside CCTV coverage and attempted to sexually assault her before fleeing. Police questioned Kim — hospitalized with injuries requiring 16 weeks of treatment and suffering memory loss — asking whether she thought she had been sexually assaulted. When she replied that she probably had not been, police closed the case as simple assault. They had obtained the underwear and trousers Kim was wearing at the time of the attack but never sent them for forensic analysis.

It was only when prosecutors conducted a supplementary investigation that Lee's DNA was found on the inside of Kim's trousers. Prosecutors corrected the charges from assault to attempted rape-murder and indicted him. A court ruled in February that the state must pay Kim 15 million won ($10,600) in damages, finding that police had conducted an inadequate investigation by missing the sexual assault charges — a judicial acknowledgment of the police's shoddy work.

"If prosecutors had not pursued the supplementary investigation with such tenacity, I would never have known I had been sexually assaulted, the perpetrator's sentence would have been far lighter, and he might already be out of prison," Kim said. She added that once supplementary investigation powers are abolished, future victims — unlike her — will lose any chance of having a flawed investigation corrected. Her point: if the facts are not properly established during the police investigation, there will be no second opportunity through a prosecutorial investigation.

In response to concerns that stripping prosecutors of direct investigative powers would make it harder to establish the full truth of a crime, the Democratic Party of Korea — which drove the amendments — put forward "expanded victim participation in investigations" as its answer. Democratic Party lawmakers said they had strengthened victim rights by allowing victims to request access to and copies of investigation records (Article 245-12) and to raise objections when an investigation is delayed or unlawful (Article 245-11), framing the changes as "returning prosecutorial investigative power to the people."

Experts, however, warn that this approach will effectively make retaining a lawyer indispensable from the earliest stages of an investigation, fueling what they call the "privatization of criminal justice."

Attorney Kim Ye-won, head of the Disability Rights Law Center, wrote on social media that "the premise that victims will be able to spot investigative errors simply because they are given access to case records is unrealistic from the start." She said that identifying legal problems in those records requires substantial legal knowledge, time and physical stamina, and that the result will be a widening gap between victims who can afford a lawyer and those who cannot.

Kim said the state cannot offload onto victims its own duty to monitor the adequacy of investigations. "Shifting to victims the work that investigative agencies should be doing — and saying you will only re-examine cases where the victim personally finds and reports a problem — is not protection. It is passing the buck," she said.

A newly inserted provision on access to and copying of investigation records has itself become controversial, as it may actually restrict victims from raising concerns — because victims who share information from those records with the media could face criminal punishment.

Under the provision, a victim who discloses to another person the contents of an investigation learned through access to the records can be sentenced to up to one year in prison or fined up to 5 million won. Before the amendments, a victim who discovered evidence of improper police conduct in the investigation records could alert the media and bring the matter into public debate. Going forward, doing so would expose the victim to criminal prosecution.

Nor is access to records guaranteed simply because a victim applies for it — permission is granted only when the police or prosecutor deems it necessary. Before the amendments, victims could access and copy investigation records without restriction as to purpose.

The Democratic Party said the amendments expanded victims' right to participate in and access investigations, but in practice access to records is now decided at the discretion of the investigative agency, and victims who expose problems externally face criminal punishment.

Attorney Yang Hong-seok, a former advisory committee member of the Office for Government Policy Coordination's Prosecution Reform Task Force, called the provision "a law to prevent victims from tipping off the media — blocking them from exposing police misconduct to the outside world." He said that under the current system, victims and their representatives had sometimes used media disclosures as a way to break through an impasse, but that would now be far harder.

Public opinion on the amendments is broadly negative. Multiple polls conducted before and after the passage of the revised law showed opposition to abolishing supplementary investigation powers outweighing support. As concerns mounted over a structure in which police would handle investigations from start to finish, Democratic Party lawmakers floated remedies such as stationing lawyers at every police station — a proposal by lawmaker Park Ju-min — or allowing victims to use court-appointed attorneys, as suggested by lawmaker Seo Yeong-gyo.

One attorney was dismissive of those proposals. "Someone still has to perform the role prosecutors played in investigations — yet the plan is to dismantle the prosecution and flood police stations with lawyers. That is an enormous waste of taxpayer money and amounts to outsourcing criminal justice services," the attorney said.

Park Seon-yeong, a victim of a sulfuric acid attack in Seongnam, Gyeonggi Province, in June 2009 and now director of an integrated support center for crime victims, told the National Assembly forum that the ruling party "has created a system that bars prosecutors from investigating and dumps the burden of uncovering the truth onto individuals, yet claims it is a reform for the benefit of the people." She said: "Can a criminal justice system in which victims must personally gather evidence, spend their own money to hire lawyers and private investigators, and plug the gaps in an investigation themselves be called a system in which the state fulfills its responsibilities?"

She added that the state had monopolized the power to punish by promising citizens it would investigate and prosecute crimes in place of private vengeance. "That means the state has an obligation to see things through to the end so that no victim or suspect is left with a grievance," she said.