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Lee Jong-seok, the president of the Constitutional Court of Korea, announces the court’s ruling on a case involving the impeachment of a prosecutor on May 30, 2024. (Yonhap) 

On Thursday, Korea’s Constitutional Court overturned the impeachment of a sitting prosecutor who had indicted Yu Woo-sung as revenge for his acquittal on charges of spying while working as a civil servant for the city of Seoul. 

The National Assembly had passed a bill of impeachment against a prosecutor named Ahn Dong-hwan after the Supreme Court ruled that Ahn had abused his authority to indict, but five conservative-leaning justices on the nine-person Constitutional Court opposed the bill. 

Those five justices said that Ahn’s behavior was not grounds for being dismissed from his post. But what would be grounds for dismissal if not tormenting a citizen with an indictment that was unlawful and vindictive, as the Supreme Court itself effectively acknowledged? 

In 2014, Yu was acquitted of espionage charges after a Chinese government document submitted to a court as supporting evidence turned out to have been forged. After some of Ahn’s fellow prosecutors were disciplined in connection with the incident, Ahn charged Yu with violating the Foreign Exchange Transactions Act by remitting money to North Korea, a charge that prosecutors had decided not to file against Yu four years earlier. 

In 2021, the Supreme Court upheld a high court’s dismissal of the charges against Yu. The high court had ruled that the indictment of Yu “did not appear to be a normal or appropriate exercise of prosecutorial discretion” and that “given the apparent existence of ulterior motivations, the arbitrary exercise of the authority to indict is unlawful.” In short, the court found that Ahn had abused his authority to indict because of his desire to retaliate against Yu for being acquitted of the espionage charges. 

Yu had undergone immense mental and physical suffering during the long trial after he was indicted based on evidence that had been forged by the National Intelligence Service. To then indict Yu on a separate case, subjecting him to even more suffering, goes against public servants’ constitutional duty to serve the public interest. 

That duty is particularly heavy for a prosecutor like Ahn who wields immense power to apply the state’s criminal code. And yet, the five judges on the Constitutional Court who overturned Ahn’s impeachment asserted that his behavior did not amount to grounds for dismissal. We wonder whether the court would have reached such a decision if Ahn had been not a prosecutor, but an ordinary civil servant. 

Given prosecutors’ de facto monopoly on both investigations and indictments in Korea, they’re rarely even investigated for most kinds of criminal behavior. Ahn did not face an internal probe or disciplinary measures and cannot face criminal charges because the statute of limitations has expired. Prosecutors are a privileged bunch who face no consequences for misconduct unless they’re impeached. 

That’s why we should pay even more attention to the minority opinion of justices Kim Ki-young, Moon Hyung-bae, Lee Mi-son and Jung Jung-mi: “Considering that prosecutors have been bestowed with various kinds of authority as representatives of the public interest and institutional advocates of human rights, violations of their duty to serve the public interest should face heavy constitutional penalties to ensure that prosecutorial infractions of the constitution are not repeated.” 

Regrettably, this decision by the Constitutional Court is likely to only reinforce prosecutors’ sense of privilege. 

Please direct questions or comments to [english@hani.co.kr]