Opinion; Subjects: 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.17-10901(E)
Human Rights Council
Working Group on Arbitrary Detention
Opinions adopted by the Working Group on Arbitrary
Detention at its 78th session, 19-28 April 2017
Opinion No. 13/2017 concerning 12 female defectors of the Democratic
People’s Republic of Korea (whose names are known by the Working
Group) (Republic of Korea)1
1.
The Working Group on Arbitrary Detention was established in resolution 1991/42 of
the Commission on Human Rights, which extended and clarified the Working Group’s
mandate in its resolution 1997/50. Pursuant to General Assembly resolution 60/251 and
Human Rights Council decision 1/102, the Council assumed the mandate of the
Commission. The mandate of the Working Group was most recently extended for a three-
year period in Council resolution 33/30 of 30 September 2016.
2.
In accordance with its methods of work (A/HRC/33/66), on 24 June 2016 the
Working Group transmitted a communication to the Government of the Republic of Korea
concerning the deprivation of liberty of 12 female citizens of the Democratic People’s
Republic of Korea. The Government replied to the communication on 22 September 2016.
The State is a party to the International Covenant on Civil and Political Rights.
3.
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 him or her) (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 Covenant (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
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);
1 In accordance with rule 5 of the methods of work, Seong-Phil Hong did not participate in the
discussion of the present case.
United Nations
A/HRC/WGAD/2017/13
General Assembly
Distr.: General
30 June 2017
Original: English
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(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 on
the grounds of discrimination based on birth, national, ethnic or social origin, language,
religion, economic condition, political or other opinion, gender, sexual orientation,
disability, or any other status, that aims towards or can result in ignoring the equality of
human beings (category V).
Submissions
Communication from the source
4.
The 12 women, whose names are known by the Working Group, are reportedly
defectors of the Democratic People’s Republic of Korea. They had been working at a
restaurant located in Zhejiang Province, China, before they reportedly left China on 5 April
2016 in order to go to Malaysia.
5.
The source reports that the women arrived in Seoul on 7 April 2016 and were
detained by the National Intelligence Service of the Republic of Korea in order to conduct
an investigation on their eligibility for protection as potential defectors from the
Democratic People’s Republic of Korea, under article 7 of the Act on the Protection and
Settlement Support of Residents Escaping from the Democratic People’s Republic of
Korea, which reportedly allows the National Intelligence Service to hold such defectors in
custody at a centre in Siheung, Gyeonggi Province, for up to six months for interrogation in
order to decide on their eligibility for protection.
6.
At the time of the submission by the source, the women had been held for over two
months at the centre. According to the source, detention in the facility is compulsory for all
citizens of the Democratic People’s Republic of Korea seeking protection. On 8 April 2016,
the Ministry of Unification of the Republic of Korea made an official statement at a press
conference that the 12 women had defected to the Republic of Korea.
7.
The source reports that the Democratic People’s Republic of Korea accused the
Republic of Korea of abducting the women and called for their immediate repatriation.
Their families reportedly addressed a letter of petition on 18 April 2016 to the Human
Rights Council and the Office of the United Nations High Commissioner for Human
Rights, stating that they also allege an abduction by the Republic of Korea.
8.
The source alleges that the women have not had proper access to legal counsel.
When lawyers from the organization Minbyun (Lawyers for a Democratic Society)
requested access to them in order to inform them of their legal rights along with proper
explanations regarding their current situation, the lawyers were reportedly rejected by the
National Intelligence Service on four separate occasions (16, 24 and 27 May and 3 June
2016) stating that documents brought into the centre could contain hazardous and noxious
substances that would endanger the centre. The Ministry of Unification added that the
women had defected voluntarily to the Republic of Korea and had asked for protection
under article 7 of the above-mentioned Act; therefore, access to family or legal counsel
would not be permitted.
9.
The source reports that representatives of the women filed a habeas corpus petition
with the Seoul Central District Court on 24 May 2016.
10.
The source informs the Working Group that, on 22 June 2016, the first hearing on
the habeas corpus petition was held at the Seoul Central District Court. The hearing was
closed to the public and no independent observer was allowed to attend. The women
reportedly did not appear at the Court, and the National Intelligence Service alleged that
they had refused to do so owing to protection concerns. The Court reportedly did not allow
lawyers to take records of the case, citing the closed nature of the proceedings, and did not
hear the merits but focused mainly on whether or not the attorneys had the legitimate power
to represent the individuals. The lawyers reportedly filed a motion to request that the
victims be present at the next hearing, but the request was dismissed and the Court
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announced that it would review the cases on the merits without further hearing. The lawyers
therefore requested a change of judge, citing possible infringement in the fairness of the
proceedings. At the time of the submission by the source, the proceedings had been put on
hold until a panel of judges had made a decision on the request by the lawyers to change the
judge.
11.
The source submits that the rights of the 12 women have not been guaranteed or
protected while awaiting the decision on their eligibility for protection under article 7 of the
Protection and Settlement Support Act, and that the procedure under that article does not
conform with international human rights standards.
12.
The source alleges that they were not informed either of the reason for their
placement in custody or of their rights, and that such treatment does not conform with
article 9 (2) of the Covenant and principle 10 of the Body of Principles for the Protection of
All Persons under Any Form of Detention or Imprisonment, which state that “[a]nyone who
is arrested shall be informed at the time of arrest of the reasons for his arrest and shall
promptly be informed of any charges against him”.
13.
The source further alleges that the families of the women were not notified of their
arrest, in violation of principle 16 of the Body of Principles, stipulating that “[p]romptly
after arrest … a detained or imprisoned person shall be entitled to notify or to require the
competent authority to notify members of his family or other appropriate persons of his
choice of his arrest, detention or imprisonment or of the transfer and of the place where he
is kept in custody”. Such notification “shall be made or permitted to be made without
delay” unless “exceptional needs of the investigation so require”. Furthermore, the source
submits that numerous surveys have showed that the majority of detainees at the centre had
not been notified about the duration of and/or grounds for their detention.
14.
According to the source, their right to legal counsel has not been respected during
the time of detention, violating principle 18 of the Body of Principles. Principle 18 further
elaborates that “[a] detained or imprisoned person shall be entitled to communicate and
consult with legal counsel” with “adequate time and facilities for consultations” and
“without delay or censorship and in full confidentiality”. Furthermore, Principle 15
stipulates that “communication of the detained or imprisoned person with the outside world,
and in particular his … counsel, shall not be denied for more than a matter of days”.
15.
The source further alleges that the freedom of expression has not been upheld, in
violation of article 19 (2) of the Covenant. It specifies that this right includes “freedom to
seek, receive and impart information and ideas of all kinds”. Furthermore, the source
submits that the complete isolation of the women from the outside world violates their right
to freedom of expression to make their voice heard about their current situation.
16.
Finally, the source submits that their deprivation of liberty constitutes arbitrary
detention under category III of the categories applicable to the consideration of cases
submitted to the Working Group.
Response from the Government
17.
On 24 June 2016, the Working Group transmitted the allegations from the source to
the Government of the Republic of Korea under its regular communications procedure. The
Working Group requested the Government to provide detailed information regarding the
situation of the 12 women since their arrest, including any comment on the source’s
allegations. The Working Group also requested the Government to clarify the facts and
legal provisions justifying their continued detention, and its compatibility with the
obligations of the Government under international human rights law, particularly those
treaties that the Republic of Korea has ratified.
18.
On 17 August 2016, the Government sought an extension of the deadline to submit
its response. In conformity with paragraph 16 of its methods of work, the Working Group
granted the Government a one-month extension to submit its response.
19.
In its response of 22 September 2016, the Government informed the Working Group
that the women had left the centre for defectors in groups, between 8 and 11 August 2016,
as they had completed the relevant assessment and education for their successful settlement
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in accordance with the Protection and Settlement Support Act. They are now living in the
Republic of Korea as fully pledged, ordinary citizens, without any physical restrictions,
enjoying fundamental freedoms and human rights guaranteed under the Constitution of the
Republic of Korea.
20.
Thus, the Government of the Republic of Korea is of the view that the
communication submitted to the Working Group regarding the women should be dismissed
because they are now living in freedom outside the centre.
21.
The Government notes that the international community has repeatedly expressed its
strong concerns about the human rights situation in the Democratic People’s Republic of
Korea, including through resolutions adopted on an annual basis by the General Assembly
and the Human Rights Council.
22.
The Government indicates that defectors from the Democratic People’s Republic of
Korea are those who have escaped the systematic, widespread and gross human rights
violations committed by the regime of the Democratic People’s Republic of Korea.
Thousands of people of the Democratic People’s Republic of Korea defect every year at the
risk of their life. The total number of such defectors who are currently living in the
Republic of Korea amounts to almost 30,000.
23.
According to the Government, it provides those individuals with the measures
necessary to protect them from possible reprisals and attacks and to help them recover their
physical and mental health, and conducts assessment at the centre pursuant to the Act. The
assessments are of an administrative nature to verify relevant facts about them and are
required to make an informed decision as to whether or not each of them is qualified for
benefits, such as subsidies for accommodation and settlement, in accordance with the Act.
It is not an investigation for the purpose of criminal justice, and the centre is not a facility
for detention or confinement, but rather for an administrative assessment and protection.
24.
The Government notes that some people might argue that the protection provided for
the women at the centre was equivalent to an arrest or detention. However, the women
entered the Republic of Korea of their free will to seek protection from the Government of
the Republic of Korea and they were accommodated at the centre for an administrative
assessment needed for settlement, just like any other defectors from the Democratic
People’s Republic of Korea. It is therefore groundless to say that they had been in a state of
arrest or detention or that the women had been accommodated arbitrarily at the centre. It is
also unjustifiable to say that the rights of the women guaranteed under the Covenant and the
Body of Principles were not respected at the centre. The Government submits that this
argument is based on a false premise that the women had been in a state of arrest or
detention.
25.
In order to address any possible misunderstanding that assessment and protection
measures for defectors at the centre would amount to a de facto arbitrary detention, and in
an effort to ensure that such measures are in conformity with international human rights
standards, the Government of the Republic of Korea informs the defectors, including the
women, prior to their accommodation, of the legal grounds for the assessment and
protection, of the duration, purpose and contents of the assessments and of the remedies
available in the event of any human rights violations.
26.
Moreover, the Government also notes that, although the defectors who undergo the
assessment are not necessarily entitled to access to legal counsel, which is fully recognized
as a fundamental right for criminal defendants or suspects subject to investigation, the
Government appointed a female judge-turned-attorney recommended by the Korean Bar
Association as human rights protection officer for the defectors at the centre in order to
ensure that they received legitimate assistance, including legal counsel. The officer has the
authority to monitor all kinds of human rights violations that may occur in the process of
assessments and have confidential one-on-one meetings with defectors who need legal
support at any time.
27.
Against this backdrop, the Government underlines that the women were fully
informed of the legal grounds under which they would be protected at the centre and of the
purpose, contents and duration of the assessments. They also received necessary legal
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advice through such means as face-to-face interviews with the human rights protection
officer. Moreover, they were always able to have access to various media outlets, such as
television and newspapers, at the centre. Realizing that so many reports were being made
about their defection in the media, they reportedly became extremely concerned about the
safety of their families back home and experienced psychological anxiety.
28.
The Government reiterates that the women were protected temporarily at the centre
in accordance with the Act, which was enacted in 1997 to provide for matters relating to the
protection and support necessary to help residents of the Democratic People’s Republic of
Korea who escape from the area north of the Military Demarcation Line and who desire to
receive protection from the Republic of Korea, as swiftly as possible to enable them to
adapt to and settle in all spheres of their lives, including political, economic, social and
cultural spheres, as stipulated in article 1 of the Act. The Government provides more
information about the contents of the Act and an unofficial translation of the Act for the
reference of the Working Group.
29.
The Government notes that, while the women were staying at the centre, Minbyun
filed a petition for habeas corpus on their behalf at the Seoul Central District Court on 24
May 2016. In the course of the proceedings, one of the main factors debated was whether or
not the women should appear in person at the Court. However, the women expressed their
strong will not to appear at the Court out of fear that they would expose their identities and
also possible reprisals by the regime of the Democratic People’s Republic of Korea against
their families. They also refused an interview with representatives of Minbyun for the same
reasons. As they possessed full legal capacities, the Government of the Republic of Korea
could not force them to attend the proceedings or be interviewed by anyone against their
will. However, the Government underlines that, if the women were to pursue legal
proceedings, an interview with the lawyers concerned would be ensured.
30.
On 9 September 2016, the Court reportedly dismissed the petition of Minbyun
without further hearing on the basis that there were clear grounds for dismissal, namely, the
applicants represented by Minbyun were barely acknowledged as the family members of
the women and the interest in the litigation no longer existed in that the women had already
left the centre.2
31.
The Government notes that the finding of the Court was made by a judge whose full
independence and neutrality is safeguarded by the Constitution of the Republic of Korea,
on the basis of relevant laws and rules of procedures. The Constitution and its subsidiary
laws are in full conformity with the principles and standards of international human rights
law.
32.
The Government reiterates that the assessment and protection at the centre had not
been designed or implemented to deprive the 12 women of their personal liberty. As such,
claims that the assessment and protection for them at the centre had constituted arbitrary
detention are groundless and unfounded. Taking into account the predictability of
administrative measures conducted according to the Act and all due process, it is also
unjustifiable to say that the protective measures for the women had been arbitrary. To the
contrary, the protection had been provided on the basis of statutory provisions.
33.
Moreover, the decision by the women not to appear at the Court and not to see
lawyers of Minbyun was made of their free will as they had been deeply concerned about
exposure of their identities and the safety of their families living in the Democratic People’s
Republic of Korea. The allegation that they had been denied their right to a fair trial under
the terms of the Universal Declaration of Human Rights and the Covenant, and that their
accommodation at the centre had amounted to arbitrary detention, under category III, are
just unreasonable.
2 Under the Republic of Korea Habeas Corpus Act, article 10 (1), a court shall appoint a date for
examination of a petition for habeas corpus and summon the relevant habeas corpus petitioner and
inmate on the date so appointed, except in cases where such petition is dismissed.
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34.
Most importantly, the women are now living in the Republic of Korea as fully
pledged, ordinary citizens without any physical restrictions, enjoying fundamental freedoms
and human rights, as they had wished.
Further comments from the source
35.
The response from the Government was transmitted to the source for comments on
29 September 2016. In its comments, the source notes that the Working Group reserves the
right to render an opinion as to the arbitrariness of the deprivation of liberty,
notwithstanding the release of the persons concerned. It also highlights the legal nature of
the deprivation of liberty within the centre for defectors and the applicable international
norms related to such detention. In addition, the source reiterates its concerns in relation to
violations of the rights to legal counsel; of access to information; and to a fair trial by an
impartial tribunal.
Disposition
36.
The Working Group was informed by the Government and this was confirmed by
the source that the 12 women are now living in the Republic of Korea as ordinary citizens
without any physical restrictions.
37.
In the light of the foregoing, the Working Group decides to file the case, in
accordance with paragraph 17 (a) of its methods of work.
[Adopted on 20 April 2017]