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A/HRC/WGAD/2013/36

Opinion No. 36/2013, Democratic People's Republic of Korea

UNO-Arbeitsgruppe über willkürliche Inhaftierung (WGAD) · 2013-11-22 · en UN

Opinion; Subjects: DEMOCRATIC PEOPLE'S REPUBLIC OF KOREA, ARBITRARY DETENTION; [WGAD: UNO-Arbeitsgruppe über willkürliche Inhaftierung, willkürliche Haft; Groupe de travail sur la détention arbitraire; Gruppo di lavoro sulla detenzione arbitraria]

Volltext (verifizierbarer Originaltext)

GE.14-13232

*1413232*

Human Rights Council

Working Group on Arbitrary Detention

Opinions adopted by the Working Group on Arbitrary

Detention at its sixty-eighth session,

13-22 November 2013

No. 36/2013 (Democratic People’s Republic of Korea)

Communication addressed to the Government on 27 August 2013

Concerning Choi Sang Soo, Choi Seong II, Kim Hyeon Sun, Kim Gyeong II and

Park Sung Ok

The Government replied to the communication on 7 October 2013.

The State is a party to the International Covenant on Civil and Political Rights.

1.

The Working Group on Arbitrary Detention was established in resolution 1991/42 of

the former Commission on Human Rights, which extended and clarified the Working

Group’s mandate in its resolution 1997/50. The Human Rights Council assumed the

mandate in its decision 2006/102 and extended it for a three-year period in its resolution

15/18 of 30 September 2010. The mandate was extended for a further three years in

resolution 24/7 of 26 September 2013. In accordance with its methods of work

(A/HRC/16/47, annex, and Corr.1), the Working Group transmitted the above-mentioned

communication to the Government.

2.

The Working Group regards deprivation of liberty as arbitrary in the following

cases:

(a)

When it is clearly impossible to invoke any legal basis justifying the

deprivation of liberty (as when a person is kept in detention after the completion of his or

her sentence or despite an amnesty law applicable to the detainee) (category I);

(b)

When the deprivation of liberty results from the exercise of the rights or

freedoms guaranteed by articles 7, 13, 14, 18, 19, 20 and 21 of the Universal Declaration of

Human Rights and, insofar as States parties are concerned, by articles 12, 18, 19, 21, 22,

25, 26 and 27 of the International Covenant on Civil and Political Rights (category II);

(c)

When the total or partial non-observance of the international norms relating

to the right to a fair trial, established in the Universal Declaration of Human Rights and in

United Nations

A/HRC/WGAD/2013/36

General Assembly

Distr.: General

4 April 2014

Original: English

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the relevant international instruments accepted by the States concerned, is of such gravity

as to give the deprivation of liberty an arbitrary character (category III);

(d)

When asylum seekers, immigrants or refugees are subjected to prolonged

administrative custody without the possibility of administrative or judicial review or

remedy (category IV);

(e)

When the deprivation of liberty constitutes a violation of international law for

reasons of discrimination based on birth, national, ethnic or social origin, language,

religion, economic condition, political or other opinion, gender, sexual orientation, or

disability or other status and which aims towards or can result in ignoring the equality of

human rights (category V).

Submissions

Communication from the source

3.

The case concerns five individuals, all nationals of the Democratic People’s

Republic of Korea, usually residing in Hoiryeong, North Hamkyung Province. These

individuals attempted to defect and seek asylum in the Republic of Korea. In doing so, they

crossed the border into China and were arrested by agents of the National Security Agency

of the Democratic People’s Republic of Korea. Following their repatriation, they were

detained at the Hoireyong National Security Agency before being transferred to Susung

Kwanliso Political Prison Camp No. 25 in Chongjin, where they are believed to remain

today. The petitioners have been kept incommunicado from the time of their arrest.

4.

Choi Sang Soo, male, born in 1921, is a prisoner of war from the Republic of Korea,

who failed to be repatriated after the Korean War. He was 78 years old at the time of his

arrest. His son, Choi Seong Il, born in 1948, worked as a farmer at Wonsan 5-ban Work

Unit in Hoiryeong. He was 51 years old at the time of his arrest.

5.

In July 1999, Choi Sang Soo and Choi Seong Il fled from the Democratic People’s

Republic of Korea to China. On 18 September 1999, at approximately 9 pm, they were

arrested by four agents of the National Security Agency in their hotel room in Yanji, Jilin.

Following their repatriation, they were both detained in the Hoiryeong National Security

Agency for a period of three months. The source cites an eyewitness account of the severe

physical abuse they suffered whilst in detention there. On 12 December 1999, Choi Sang

Soo and Choi Seong Il were transferred to Camp No. 25. Their former cellmate in the

Hoiryeong detention centre and the wife of Choi Sang Soo report they were informed of

this fact by agents of the National Security Agency.

6.

The source alleges that the detention of Choi Sang Soo and Choi Seong Il was

ordered by a branch of the National Security Agency in charge of the Hoiryeong crop-

processing factory, the conspiracy research office of the National Security Agency in North

Hamkyung Province and the National Security Agency in Pyongyang.

7.

Kim Hyeon Sun, female, born on 6 February 1971, residing at 5-ban, Ohsanduck-

dong, was 40 years old at the time of her arrest. Her son, Kim Gyeong Il, born on 10 May

1994, was a student at Dongmyung Middle School.

8.

Kim Yong Sik, the husband of Kim Hyeon Sun and the father of Kim Gyeong Il,

who resides in the Republic of Korea, commissioned two defection brokers in Hoiryeong,

Kim Eung Guk and Kim Eung Chan, to assist his wife and son with crossing the border into

China. In January 2011, Kim Hyeon Sun and Kim Gyeong Il were arrested by three agents

of the Hoiryeong National Security Agency at the Tumen riverside, Manghyang-dong,

Hoiryeong, whilst attempting to cross the border in to China. They were thereafter

repatriated to the Democratic People’s Republic of Korea, where they were detained in the

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Hoiryeong National Security Agency for six months and later in the North Hamkyung

Provincial National Security Agency for three months, for purposes of interrogation. In

September 2011, Kim Hyeon Sun and Kim Gyeong Il were transferred to Camp No. 25.

9.

Kim Yong Sik speculates that the National Security Agency may have become

aware of the defection plan of his wife and son through wire-tapping their telephone and

thereafter employing the defection broker, Kim Eung Guk, in the plan to arrest them. The

source cites conflicting reports as to whether Kim Gyeong Il is deceased.

10.

Park Sung Ok, female, born 21 September 1989, ordinarily residing at 18-ban,

Kangan, was a student at Kangan Senior Middle School. She was 19 years old at the time

of her arrest. In January 2005, she defected from the Democratic People’s Republic of

Korea to Yanji, China, and was joined by her mother in May 2005. They worked together

in restaurants.

11.

On 9 July 2007, Park Sung Ok was part of a group of seven individuals who used

the services of a defection broker to travel to Nei Mongol Autonomous Region with the

objective of entering Mongolia to seek asylum at the embassy of the Republic of Korea

there. On 11 July 2007, Park Sung Ok was arrested by the border garrison of the Chinese

police at Erenhot, Xilin Gol. She was temporarily imprisoned in Tumen frontier detention

house in China before being repatriated to the Democratic People’s Republic of Korea.

12.

In November 2007, Park Sung Ok was transferred to Onsung National Security

Agency, North Hamkyung Province, where she was placed under investigation for a month.

In December 2007, she was transferred to Hoiryeong National Security Agency. On 15 July

2008, Park Sung Ok was transferred to the National Security Agency of North Hamkyung

Province and later that year was reportedly sentenced to three years’ imprisonment in Camp

No. 25.

13.

The source does not know whether a warrant was presented for the arrest of the

petitioners and whether the petitioners are aware of the reasons for their detention. It reports

that family members, despite their efforts, have not been provided with any official

communication from the National Security Agency or any other body justifying the legal

basis on which the petitioners are being detained. Furthermore, the source reports that

family members have been discouraged from seeking information about the well-being and

whereabouts of the petitioners. The source submits that their detention is arbitrary pursuant

to category I of the legal categories applied by the Working Group.

14.

The source conjectures that the petitioners are being detained according to article

62(3) of the Criminal Law of the Democratic People’s Republic of Korea which states: “A

citizen of the Republic who commits treason against the Fatherland by defection, surrender,

betrayal or disclosure of secrets shall be punished by reform through labour for more than 5

years. In cases where the person commits a grave offence, he or she shall be punished by

reform through labour for more than 5 years and less than 10 years.”

15.

The source notes that, contrary to the provisions of the law, the petitioners are being

detained in a political prison camp, not a labour re-education camp. It understands this to be

the customary procedure for defectors to the Republic of Korea, as they are considered to

have directly assaulted the authority of the leadership, thereby committing an act of treason

against the State. Furthermore, the source argues that the petitioners have received

especially harsh treatment in detention due to the fact they have family members residing in

the Republic of Korea.

16.

The source adds that the petitioners may also be detained for violating the “Party’s

Ten Principles for the Establishment of the One-Ideology System”, and in particular the

following:

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“1.

We must give our all in the struggle to unify the entire society with the

revolutionary ideology of the Great Leader Kim Il-Sung.

2.

We must honour the Great Leader comrade Kim Il-Sung with all our loyalty.

4.

We must make the Great Leader comrade Kim Il-Sung’s revolutionary

ideology our faith and make his instructions our creed.

8.

We must value the political life we were given by the Great Leader comrade

Kim Il-Sung, and loyally repay his great political trust and thoughtfulness with

heightened political awareness and skill.

10.

We must pass down the great achievement of the revolution by the Great

Leader comrade Kim Il-Sung from generation to generation, inheriting and

completing it to the end.”

17.

The source was informed by a former guard of a political prison camp in the

Democratic People’s Republic of Korea that it is very rare for a prisoner to be released

from these camps. In the case of Park Sung Ok, the source observes that she continues to be

detained following the termination of her sentence.

18.

The source reports that no judicial remedies or appeal procedures are made available

to detainees of political prison camps in the Democratic People’s Republic of Korea. As

such, the petitioners have not had the opportunity to seek redress for their sudden arrest,

interrogation in a National Security Agency prison and indefinite detention in a political

prison camp. The source argues that the deprivation of liberty of the petitioners falls within

category III of the arbitrary detention categories referred to by the Working Group when

considering the cases submitted to it.

Response from the Government

19.

By a letter dated 27 August 2013, the Working Group transmitted the allegations set

out above to the Government of the Democratic People’s Republic of Korea, requesting

detailed information about the current situation of the above-mentioned petitioners.

20.

The Government, in its reply dated 7 October 2013, stated that these alleged cases

form part of a political plot against the People’s Democratic Republic of Korea by the

authorities of the Republic of Korea. The Government therefore “categorically rejects the

cases … as one of the anti-DPRK attempts”.

Discussion

21.

Three different communications were transmitted to the Government and it is

unfortunate that in all three instances (see also No. 34/2013 (Democratic People’s Republic

of Korea) and No. 35/2013 (Democratic People’s Republic of Korea)), it responded in

exactly the same way as above, by means of the same letter, without any attempt to discuss

the serious allegations against it.

22.

The allegations in this case comprise arrests without warrants; indefinite

interrogation periods in the premises of the National Security Agency; incommunicado

detention; prosecution based on political considerations, including as an act of reprisal for

leaving the country, or on the basis of allegations of vague offences that are general and

imprecise; a total absence of judicial mechanisms to challenge the legality of the detention

or to launch an appeal against conviction; and indefinite detention in political prison camps,

often following the completion of the prison sentence.

23.

In view of these serious allegations, the Working Group considers that the reply

given by the Government, which does not address any of these violations of international

law relating to the arrest, detention, judgment, sentencing and appeal procedures

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concerning persons deprived of their liberty, is unlikely to facilitate any constructive

dialogue.

24.

As the Government has not provided any information about the situation of the

petitioners, the Working Group, according to its methods of work, has to rely on the

information provided by the source concerning the detention of the petitioners.

25.

The Working Group recalls its Opinion No. 4/2012 (Democratic People’s Republic

of Korea) and No. 47/2012 (Democratic People’s Republic of Korea) in which the Working

Group held that the detention of the persons concerned was arbitrary. It requested that the

Government take the necessary steps to remedy the situation, i.e. the immediate release of

these individuals, and accord them an enforceable right to compensation in accordance with

article 9, paragraph 5 of the International Covenant on Civil and Political Rights.

26.

The Working Group also takes note of Human Rights Council resolution 7/15 of

2008 on the situation of human rights in the Democratic People’s Republic of Korea and

recalls all previous resolutions adopted by the Commission on Human Rights and the

General Assembly on the situation of human rights in the Democratic People’s Republic of

Korea, including Commission resolutions 2004/13 and 2005/11 and Assembly resolution

62/167.

27.

In addition, the Working Group refers to the concluding observations of a number of

treaty bodies in respect of the Democratic People’s Republic of Korea, including the

Committee on the Rights of the Child (CRC/C/PRK/CO/4), the Committee on the

Elimination of Discrimination against Women (CEDAW/C/PRK/CO/1), the Committee on

Economic, Social and Cultural Rights (E/2004/22, paras. 510-558) and the Human Rights

Committee (CCPR/CO/72/PRK). The Human Rights Committee expressed its serious

concern at several issues related to detention and the lack of compatibility of the legislation

of the Democratic People’s Republic of Korea with the prohibition of forced labour

contained in article 8, paragraph 3 (a), of the International Covenant on Civil and Political

Rights.

28.

The Working Group further notes the important work of other charter-based bodies

of the United Nations, including resolution 2004/13 of the Commission on Human Rights

on the appointment of a Special Rapporteur on the situation of human rights in the

Democratic People’s Republic of Korea, and reporting by the special procedures mandate

holders.

29.

In his most recent report to the General Assembly (A/68/319), the Special

Rapporteur on the situation of human rights in the Democratic People’s Republic of Korea

stated that, according to information received, labour camps have been in operation in the

country since the 1950s and individuals who have committed, or are perceived to have

committed, a political crime are involuntarily or forcibly taken to an interrogation facility,

detained and typically subjected to torture until a confession is obtained. Once declared

guilty, detainees are either executed or transferred to a prison camp where they are held

incommunicado and without trial in harsh conditions. Furthermore, it is alleged that

prisoners, including children, have been subjected to forced labour and that torture and

public executions are common within the camps. It is also reported that women are subject

to rape, forced abortion and killing and that the majority of prisoners in at least four camps

remain in custody until their death. At least 40,000 prisoners have reportedly perished in

the camps.

30.

The Working Group further takes note of the attention drawn by the Special

Rapporteur to the particularly worrying practice, widely documented by the United

Nations, of detention due to guilt by association, whereby when a person is punished for a

political or ideological crime, members of his or her family are also punished, with up to

three generations of family members sent on this basis to the camps. Detainees are often not

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told the reasons for their detention or whether they will ever be released and no information

regarding their whereabouts is provided to friends, neighbours, co-workers or more distant

relatives who enquire about them (Ibid.).

31.

The Working Group recalls that on 3 October 2012, together with the Special

Rapporteur on the situation of human rights in the Democratic People’s Republic of Korea,

the Special Rapporteur on extrajudicial, summary or arbitrary executions, the Special

Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment and

the Working Group on Enforced or Involuntary Disappearances, it sent a joint letter to the

Government of the Democratic People’s Republic of Korea on the alleged use of labour

camps for political prisoners. Having received no response from the Government, the

mandate holders issued a press release in February 2013 calling for an international inquiry

into the human rights abuses in the Democratic People’s Republic of Korea, which would

shed light on the country’s extensive political prison camp system.

32.

The Working Group takes note of the recently established Commission of Inquiry on

human rights in the Democratic People’s Republic of Korea that was mandated by the

Human Rights Council in resolution 22/13 to investigate the systematic, widespread and

grave reports of violations of human rights in the Democratic People’s Republic of Korea,

with a view to ensuring full accountability, in particular for violations which could amount

to crimes against humanity. Among the violations to be investigated are those pertaining to

the right to food, those associated with prison camps, torture and inhuman treatment,

arbitrary detention, discrimination, freedom of expression, the right to life, freedom of

movement and enforced disappearances, including in the form of abductions of nationals of

other States.

33.

In a statement made to the sixty-eighth session of the Third Committee of the

General Assembly on 29 October 2013, the Chair of the Committee noted that the final

conclusions and recommendations of the Commission of Inquiry would have to await the

end of the investigation, but that the entire body of evidence gathered to date pointed to

what appeared to be large-scale patterns of systematic and gross human rights violations.

34.

The Working Group recalls that it noted in its Opinions No. 4/2012 and No. 47/2012

that under certain circumstances, widespread or systematic imprisonment, or other severe

deprivation of liberty in violation of fundamental rules of international law, may constitute

crimes against humanity. The current case makes it necessary to reaffirm this. The duties to

comply with international human rights that are peremptory and erga omnes norms, such as

the prohibition of arbitrary detention, rests on all bodies and representatives of the State and

on all individuals.

35.

The Working Group holds that the detention of the petitioners in the present case is

arbitrary and in violation of articles 8, 9, 10, 11, 13, 14, 18, 19 and 20 of the Universal

Declaration of Human Rights and articles 8, 9, 12 and 14, 18, 19 of the International

Covenant on Civil and Political Rights. Their detention thus falls within categories I, II and

III of the categories applicable to the cases submitted to the Working Group.

36.

The Working Group will remind the Democratic People’s Republic of Korea of its

duties to comply with international human rights obligations not to detain arbitrarily, to

release persons who are arbitrarily detained and to provide compensation to them. The

Working Group has recalled above that, under certain circumstances, widespread or

systematic imprisonment or other severe deprivation of liberty in violation of fundamental

rules of international law may constitute crimes against humanity. The duties to comply

with international human rights that are peremptory and erga omnes norms, such as the

prohibition of arbitrary detention, rests not only on the Government but on all officials with

relevant responsibilities, including judges, police and security officers and prison officers.

No person can contribute to human rights violations.

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Disposition

37.

In the light of the preceding, the Working Group on Arbitrary Detention renders the

following Opinion:

The detention of Choi Sang Soo, Choi Seong II, Kim Hyeon Sun, Kim Gyeong II

and Park Sung Ok is arbitrary and in violation of articles 8, 9, 10, 11, 13, 14, 18, 19

and 20 of the Universal Declaration of Human Rights and articles 8, 9, 12 and 14,

18, 19 of the International Covenant on Civil and Political Rights and falls within

categories I, II and III of the arbitrary detention categories referred to by the

Working Group when considering the cases submitted to it.

38.

Consequent upon the Opinion rendered, the Working Group requests the

Government to take the necessary steps to remedy the situation, which, in its view, include

immediate release of the petitioners from detention and an enforceable right to

compensation, in accordance with article 9, paragraph 5, of the International Covenant on

Civil and Political Rights. It recommends that the Government harmonize its legislation

with the International Covenant on Civil and Political Rights. Finally, the Working Group

invites the Government to cooperate better with its procedures in the future, pursuant to the

relevant resolutions of the Human Rights Council.

[Adopted on 13 November 2013]