Disappearance of 'Confirmed Prisoners' Hits Five-Year High... Is the Rule of Law Collapsing?

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[Asia Economy Reporter Heo Kyung-jun] The number of ‘unexecuted custodial sentences’?cases where a sentence has been handed down but the individual has not been apprehended, making it impossible to carry out the sentence?exceeded 2,000 last year. This has raised concerns that the rule of law is collapsing, as law enforcement cannot be carried out despite crimes requiring social isolation.

The problem is that if the amendments to the Criminal Procedure Act and the Prosecutors' Office Act, originally proposed by the Democratic Party of Korea, pass the National Assembly plenary session, the prosecution’s function to execute sentences could be nullified. Although the so-called ‘Prosecution Reform Bill’ that passed the Legislation and Judiciary Committee did not include this, there is still a possibility that the final amendment will reflect provisions eliminating the prosecution’s sentence execution function, which would cause significant obstacles to the exercise of the state’s penal authority.

According to data obtained by Asia Economy on the 27th, the number of unexecuted custodial sentences last year was 2,347 (including domestic and overseas fugitives), marking a record high. This number has increased by double digits annually from 1,363 in 2017 to 1,440 in 2018, 1,470 in 2019, and 1,964 in 2020.

An unexecuted custodial sentence refers to cases where imprisonment or detention has been sentenced, but the individual has disappeared, causing the execution of the sentence to be postponed.

The annual increase in unexecuted custodial sentences appears to be due to courts expanding non-custodial or absent trials, making individuals subject to execution only after the sentence is finalized, leading to an overall increase in unexecuted cases.

The courts have established a principle of conducting non-custodial trials emphasizing the ‘defendant’s right to defense.’ In fact, the number of detained individuals in first-instance criminal trials steadily decreased from 28,728 (10.9%) in 2017 to 24,876 (10.4%) in 2018, 24,608 (10%) in 2019, and reached a record low of 21,753 (8.4%) in 2020.

The prosecution analyzes that the increase in unexecuted sentences is due to the sophistication of fugitives’ evasion methods and significant restrictions on arrest activities caused by the spread of the COVID-19 pandemic.

However, the fundamental problem lies in the inability to conduct compulsory investigations to apprehend fugitives with finalized custodial sentences. Under the current Criminal Procedure Act, there are no provisions authorizing compulsory investigations such as search and seizure for sentence execution. Consequently, it is impossible to obtain search warrants to secure custody, preventing the use of the most reliable means such as credit card records and account tracking. Arrest activities must rely only on indirect methods like communication inquiries and location tracking, which can be conducted without search warrants.

In this situation, if the prosecution’s sentence execution function disappears due to the prosecution reform bill, it is expected that fugitives with confirmed guilty verdicts will find it even easier to evade capture. Currently, prosecution investigators perform sentence execution duties in their capacity as judicial police officers, but if the prosecution’s sentence execution function is abolished, there are concerns that 70 years of accumulated expertise in sentence execution will be lost.

For overseas fugitives, the probability of capture will inevitably decrease further. This is because fugitives with finalized custodial sentences must be extradited only through countries that have signed extradition treaties (about 80 countries), following the judicial systems and procedures of those countries and obtaining approval from their courts. For example, former Lotte Hi-Mart Chairman Seon Jong-gu, who was sentenced to prison for causing losses worth hundreds of billions of won during the sale of Hi-Mart, fled to the United States immediately after the retrial verdict last August and remains at large. The prosecution has canceled his passport and requested Interpol to issue a red notice.

There are also criticisms that a shortage of personnel for apprehension contributes to the increase in unexecuted custodial sentences. While large prosecutors’ offices such as the Seoul Central District Prosecutors’ Office operate arrest teams, smaller branch offices typically have only one or two investigators responsible for apprehensions.

In the field, there are complaints that “it’s like sending soldiers to the battlefield without weapons or ammunition.” Although search warrants are issued for suspects protected by the presumption of innocence during the investigation stage, it is illogical that there are no compulsory measures to apprehend those whose guilt has been confirmed.

One investigator lamented, “It is difficult to obtain hospital records or even CCTV footage. It is common to plead for at least minimal data during the arrest process, but even this is not easy due to personal information protection.”

There are also problems with executing ‘property penalties’ such as fines or confiscations. The execution of property penalties is hindered because warrants for account tracking are not issued, causing difficulties in recovering criminal proceeds. As of last year, there were 95,363 wanted individuals for unpaid fines.

Executing property penalties involves tracking the financial flow of those sentenced to property penalties, but without a way to verify accounts?the ‘reservoirs’ of assets?it is like searching for a needle in a haystack. Due to the lack of mechanisms for account tracking, investigators must resort to ‘primitive investigations’ by visiting real estate offices or public institutions to check asset details one by one and seize the accounts of those sentenced to property penalties.

The consensus among legal circles is that amendments to the Criminal Procedure Act are necessary to establish legal grounds for identifying the whereabouts of sentence execution targets, including the issuance of search warrants, to facilitate the smooth execution of custodial and property penalties.

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