Starting in Oct., under the amended Criminal Procedure Act, when police decide not to refer a case to prosecutors, they must provide the complainant, the accuser, and the victim with a non-referral decision letter and instructions on how to file an objection. The aim is to clearly inform the parties of the reasons the police closed the case and to strengthen accountability in investigations.
However, even if a challenge is filed with the Police Investigation Deliberation Committee, there is no rule requiring outside members to review the decision letter and the party's rebuttal. Legal circles say related rules need further refinement to ensure substantive external scrutiny of non-referral cases.
◇Receive the non-referral decision letter… but the accuser's right to object is limited
According to legal sources on the 3rd, the amendment to the Criminal Procedure Act newly added Article 245-6, which requires police to send the non-referral decision letter together with instructions and forms for filing an objection.
Until now, those notified of non-referral had to figure out on their own how to object, but the amendment is seen as making it relatively easier to challenge non-referral decisions. The provision was inserted by the Democratic Party as a supplement amid concerns that abolishing prosecutors' supplementary investigation authority would weaken protections for the socially vulnerable.
But receiving a non-referral decision letter and qualifying to object are separate issues. Article 245-7, Paragraph 2 of the amendment allows objections by accusers only in crimes specified by presidential decree when they have a direct interest comparable to that of a crime victim.
For example, if a civic group reports a third party for alleged embezzlement but the police decide on non-referral, the group, in principle, cannot object. Given that in corruption or drug cases whistleblowers often file through civic groups to avoid revealing their identities, some worry that internal reporting could be discouraged.
◇Committee tasked with external review… but it cannot see the non-referral decision letter
Accusers without the right to object can apply for review by the Police Investigation Deliberation Committee as an alternative to contest the propriety of a non-referral.
The committee is a body in which outside citizens and legal experts participate to examine the lawfulness and propriety of police investigations. Applications for review have steadily increased. Requests numbered 2,131 in 2021 and rose to 6,223 last year, about a threefold increase.
The problem is that the non-referral decision letter prepared by police is not designated as a mandatory review document for the committee.
A non-referral decision letter is a document detailing why police did not refer a case to prosecutors. It states the grounds for non-referral decisions, such as insufficient evidence to acknowledge the alleged facts, the absence of a crime, or the absence of prosecutorial authority.
But under the current Rules on the Review of Police Investigation Cases, there is no provision requiring automatic submission of the non-referral decision letter to the committee or requiring members to review it.
In principle, the materials provided to members are an investigative report prepared by the Investigation Review Division's investigator based on the case file, the responsible investigator's explanation, and submitted materials. Only when the commissioner general of the Korean National Police Agency, the head of the National Office of Investigation (NOI), or the committee chair deems it necessary for deliberation can the parties be instructed to submit additional materials such as opinion letters.
As a result, even if accusers receive the non-referral decision letter under the amendment, there is no guarantee that the letter and their rebuttal will actually be used as review materials by the committee, which is the appeal procedure.
◇"To prevent sloppy non-referrals, start by reviewing the decision letter"
Legal circles say the relevant guidelines and rules should be amended to designate the non-referral decision letter and the parties' rebuttal statements as mandatory review materials for the committee.
When prosecutorial investigative authority is fully abolished in Oct., the number of non-referral cases concluded at the police stage is likely to increase further. In fact, after the prosecution–police investigative authority adjustment took effect, non-referral cases rose from 370,000 in 2021 to 600,000 in 2025.
Experts say that if the non-referral decision letter is used as a key review material by the committee, it could help deter shoddy non-referral judgments by police. With outside members reviewing the materials, police would have little choice but to write more specific grounds for non-referral and their evaluation of the evidence.
Professor Lee Seong-il of Konkuk University Law School said, "A non-referral decision is a kind of quasi-judicial judgment that closes a case," and added, "Not only the police non-referral decision letter but also the parties' rebuttal statements should be allowed to be submitted to the committee." He added, "If police are aware of external scrutiny, they will reduce sloppy non-referrals and draft the decision letters more thoroughly."