Canceling detention and giving up on an appeal

The Supreme Prosecutors' Office on Tuesday sent a directive to all prosecution offices across the country, directing them to calculate detention periods in the same manner as before until the final judgment is made. As the court last Friday canceled the detention of President Yoon Suk Yeol, citing that the indictment was made after the expiration of the detention period by calculating the period of warrant review in “hour counts,” prosecutors did not immediately appeal but freed him from detention. The issue is that their recent directive runs counter to the move, given that it instructs prosecutors to calculate detention periods for other suspects based on the number of "days" as done until now.

It has practically been a procedural practice for courts and prosecutors to calculate detention periods based on the number of "days." Even from a legal perspective, the Criminal Procedure Act states that the detention period does not include the time from the day the court receives documents related to warrant reviews to the day they are returned. As it is a highly controversial matter, and prosecutors are allowed by law to file an immediate appeal against a decision to cancel detention, it would have been appropriate to follow relevant legal procedures. On Wednesday, Cheon Dae-yeop, chief of the Supreme Court’s Court Administration Office, also stated that asking for a higher court’s judgement would be necessary by filing an immediate appeal.

Despite this, Prosecutor General Shim Woo-jung decided not to appeal, saying that the Constitutional Court’s past rulings suggest that it may be unconstitutional to appeal against detention cancellations. Indeed, this decision is a complete 180-degree turn in President Yoon’s case from how they have routinely appealed unfavorable rulings. As a result, it has become difficult to ask for a higher court's ruling on whether detention periods should be calculated based on "days" or "hours." There has been criticism internally in the prosecution that the court's decision is hard to understand, but giving up on an immediate appeal is even more appalling, and that the Supreme Prosecutors' Office should disclose the basis for its decision.

After creating such confusion, the Supreme Prosecutors' Office instructed prosecutors not to accept the court's method of calculating detention periods, but to refrain from applying it in the future. This behavior only shows how they are utterly inconsistent. It is no different from applying a double standard by calculating detention periods based on "hours" for President Yoon and "days" for everyone else.