Newsletter
Reform in Remedies Following Dismissal of Reconsideration for Non-Prosecution
On June 21, 2023, Article 258-1 and other concerned provisions of the Code of Criminal Procedure ("CCP") were amended and promulgated, changing the procedure of applying to the court for transfer to trial after non-prosecution to initiating private prosecution.
The CCP adopts a dual system of public prosecution and private prosecution. In public prosecution, the victim of a crime can choose to report the crime to a public prosecutor, who then has to open an investigation to determine whether there is sufficient evidence to prosecute and present the case to the court. After the case is prosecuted, the public prosecutor remains involved as the accuser. In private prosecution, the victim (the private prosecutor) can skip the prosecutor's investigation and directly file a criminal lawsuit with the court. However, the private prosecutor needs to gather and present evidence independently to prove the criminal facts, persuading the judge to find the defendant guilty. The prosecutor will not be involved during the trial.
Where the victim has filed a criminal complaint, the public prosecutor has to conduct an investigation. And if there is sufficient evidence to suspect the defendant of committing a crime, the prosecutor has to initiate a public prosecution. Otherwise, a non-prosecution decision will be rendered. If the complainant refuses to accept the non-prosecution decision, they can apply for reconsideration to the chief prosecutor of the higher-court prosecutors’ office. If the chief prosecutor finds grounds for reconsideration, they will revoke the decision and instruct the local prosecutors’ office to continue the investigation or initiate a prosecution. Before the CCP was amended, if the reconsideration was dismissed, the further recourse for the complainant was to apply to the first-instance court for a "transfer to trial." If the court found the application justified, the case would be treated as if it were prosecuted by a public prosecutor.
However, in the recent amendment to the CCP, the provision for "transfer to trial" has been removed. Now, the victim can, within 10 days of receiving the dismissal of the reconsideration, apply to the first-instance court for permission to initiate a private prosecution. If the court deems the application justified, it has to issue a ruling within a reasonable period permitting a private prosecution (Article 258-3(2) of the CCP).
When the transfer-to-trial mechanism was in place, it was widely criticized for treating the court-approved transfer as if it were a public prosecution, meaning that the prosecution had deemed the evidence insufficient to prosecute the case, leading to a non-prosecution decision, but owing to the court's approval, the prosecutor was required to act as the accuser in court. The reason for the amendment to Article 258-1 of the CCP states:
The current mechanism of criminal transfer to trial has been accused of violating the principle of separation of trial and prosecution and the principle of no trial without complaint. To avoid such accusation and maintain external judicial supervision over prosecutors’ non-prosecution or deferred prosecution decisions, and to grant the applicant the choice of initiating a private prosecution, the mechanism of 'permission to initiate private prosecution' as shown in the first paragraph is adopted, which is anchored in the dual system of public prosecution and private prosecution in our country.
The other key points of the mechanism of "permission to initiate private prosecution" under the amended CCP are as follows:
1. Enhancing the right of the parties to state their opinions. During the court's review of whether to permit the initiation of private prosecution, the applicants, their representatives, the prosecutor, the defendant, or the defense counsel may be given the opportunity to present their opinions orally or in writing (Article 258-3(3) of the CCP).
2. The right to withdraw the application or private prosecution. The applicant permitted to initiate a private prosecution may withdraw the application before the court makes a ruling on the case or withdraw the private prosecution during the trial, allowing the victim to make use of the restorative justice process (Articles 258-2 and 258-4 of the CCP).
3. Mandatory legal representation and access to case files. The mechanism of mandatory legal representation is adopted, and the appointed lawyer is allowed to review the investigation files and evidence and make copies or take photographs (Articles 258-1(1) and 258-3(1) of the CCP). Lawyers should apply for access to case files to the relevant prosecutors’ office, not the first-instance court (Point 135 of the guidelines for the courts’ handling of criminal cases).
4. Preventing pre-judgment. The judges rendering the decision to permit a private prosecution should not be involved in the trial for the private prosecution (Article 258-4(2) of the CCP).
5. Defining the scope of new facts/evidence for re-prosecution. The facts and evidence presented during the application for permission to initiate private prosecution are deemed new facts and evidence that the prosecutor may rely on for re-prosecution of the same case (Article 260-2 of the CCP).