"The Reason Is Just One Line": Police Non-Referral... A Victim's Survival Strategy of 'Filing an Objection'

Column by Choi Kwang-hyun, Attorney at Daeryun LLC

Recently, as the story of a sexual violence victim in her 20s who made a tragic choice out of despair over an investigative agency's non-referral decision became known, public outrage is growing. In light of this, I intend to examine the structural reality in which crime victims must face frustration at the threshold of investigative agencies even after summoning the courage to file a complaint, and the legal breakthroughs to overcome it.

Under the past 'full-case referral' system, even if the police judged there was no offense, in principle all case records were transferred to the prosecution so that a prosecutor could review the legal principles once more. However, since the adjustment of investigative authority, as the police's primary investigative authority and responsibility have been emphasized, the police can now conclude investigations on their own under Article 245-5, Item 2 of the same Act. Of course, a prosecutor can review the non-referral records and request re-investigation, but that rate is only about 2%.

In particular, in sex crimes or complex property crimes, initial investigations relying only on fragmentary evidence can lead to undesirable outcomes. For example, when judging a victim's state of mental incapacity or inability to resist in a quasi-rape case, it is essential to examine the surrounding context three-dimensionally, including blood alcohol concentration, call records before and after the incident, and messages sent to acquaintances.

Nevertheless, when the police hastily reach conclusions based only on partial evidence such as fragments of CCTV footage or the suspect's statement, or conclude a case without even explaining which parts are legally insufficient, it is a point at which complainants cannot help but plead injustice.

If you have received such an unjust non-referral decision, rather than despairing you must promptly take legal action. The most reliable remedy is the 'objection' system under Article 245-7 of the Criminal Procedure Act. When a complainant, victim, or their legal representative (including a spouse, lineal relative, or sibling if the victim is deceased) submits a written objection to the head of the office to which the relevant judicial police officer belongs, the police must refer the case to the prosecutor without delay.

However, this does not mean the police mandatorily begin a re-investigation; it means the investigation records are transferred to the prosecution to be reviewed again by a prosecutor. In particular, there is no legally set deadline for an objection, but in practice, if a considerable period has elapsed from the date of receiving notice of the non-referral decision, the legitimacy of the objection may become an issue, and above all, since a prosecutor must return the non-referral records to the judicial police officer within 90 days from the date of receiving them (Article 245-5, Item 2 of the Criminal Procedure Act), after that return it may be difficult to expect a substantial effect from the objection. In other words, since securing objective evidence becomes more difficult as time passes, it is important to respond promptly.

In actual practice, when handling objection cases, I sometimes encounter the unfortunate situation of clients submitting dozens of petitions claiming 'the police believed only the perpetrator's words.' However, merely pleading injustice or repeating existing arguments cannot elicit a supplementary investigation order from the prosecution.

One must pinpoint subtle temporal contradictions in the suspect's statement by cross-checking call records, find the pieces omitted in the initial investigation such as circumstances in the CCTV blind spots overlooked by the police, and weave them into a tightly reasoned legal opinion. An objection is not simple defiance but a highly strategic procedure that dissects the gaps in the existing investigation records, reconstructs the evidence, and persuades a new arbiter, the prosecution.

A non-referral decision is not the end of a case but the beginning of another legal procedure. What matters is, rather than despairing over a single notice, to carefully analyze what reasons and evidence the investigation was based on and to supplement it. In this process, if necessary to probe the blind spots of the initial investigation and systematically collect objective evidence, it would be advisable to seek the help of a legal expert.

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"The Reason Is Just One Line": Police Non-Referral... A Victim's Survival Strategy of 'Filing an Objection' (Go to link)