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.17-08659(E)
Human Rights Council
Working Group on Arbitrary Detention
Opinions adopted by the Working Group on Arbitrary
Detention at its seventy-eighth session, 19-28 April 2017
Opinion No. 22/2017 concerning Sang-gyun Han and Young-joo Lee
(Republic of Korea)
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 21 June 2016 the
Working Group transmitted to the Government of the Republic of Korea a communication
concerning Sang-gyun Han and Young-joo Lee. The Government replied to the
communication on 19 August 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);
(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);
In accordance with paragraph 5 of the Working Group’s methods of work, Seong-Phil Hong did not
participate in the discussion of the present case.
United Nations
A/HRC/WGAD/2017/22
General Assembly
Distr.: General
30 May 2017
Original: English
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(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.
Sang-gyun Han and Young-joo Lee are the President and Secretary-General,
respectively, of the Korean Confederation of Trade Unions (KCTU). KCTU is an
organization representing Korean workers and the trade union movement, and is committed
to advancing workers’ empowerment through economic, social and political reform, and the
overall democratization of the Republic of Korea.
5.
According to the source, Mr. Han participated in protests that took place in April
and May 2015 to commemorate the first anniversary of the sinking of the Sewol Ferry and
to call for an independent and transparent investigation into the incident. After the protests,
Mr. Han was summoned by the police for questioning, but he refused to appear for fear that
he would be arbitrarily arrested.
6.
On 23 June 2015, an arrest warrant was issued for Mr. Han, who subsequently went
into hiding in the KCTU offices for about five months. He later sought refuge at Jogye
Buddhist Temple in Seoul city centre for almost one month. The source reports that Mr.
Han began a hunger strike on 30 November 2015 in protest against the arrest warrant issued
against him and the proposed labour reforms, which would further limit workers’ rights.
7.
On 10 December 2015, Mr. Han was arrested by the police while leaving Jogye
Temple, after the police had surrounded it and attempted to forcibly enter the building. The
source states that Mr. Han was taken to Namdaemun Police Station where he was detained
for questioning until 18 December 2015, and then transferred to Seoul Detention Centre.
Mr. Han continued his hunger strike while in detention, but ended it in January 2016 after
his health deteriorated significantly.
8.
According to the information received, on 24 May 2016, Mr. Han faced his third
hearing in a trial for charges relating to his participation in demonstrations that took place
between April and November 2015. The charges filed against Mr. Han include “special
obstruction of public duty”, “special obstruction of public duty to injure public officials”,
“special destruction of public goods”, “general obstruction of traffic”, “violation of article
16 of the Assembly and Demonstration Act (matters observed by organizers)”, “failure of
dispersion order”, “hosting an assembly at a banned place”, “incitement to violence” and
“violation of article 11 of the Assembly and Demonstration Act (places prohibited for
outdoor assembly and demonstration)”.
9.
On 13 June 2016, the prosecution sought a sentence of eight years’ imprisonment for
Mr. Han. The source claims that such a long prison term is unprecedented for charges
linked to the organization of an “illegal rally”. The source states that the prosecution sought
to justify the harsh sentence on the basis that Mr. Han had refused to turn himself in to the
police when a warrant was issued for his arrest in June 2015, which was a major crime that
could destroy the basis of the rule of law due to his influence as the leader of KCTU. At the
time of the source’s initial communication to the Working Group, Mr. Han was in custody
at Seoul Detention Centre and his sentence was expected to be handed down in July 2016.
10.
The source also provided information on the situation of Ms. Lee, who has been in
hiding since December 2015 when the authorities issued a warrant for her arrest for
participating in the demonstrations between April and November 2015. The Working
Group has no further information on Ms. Lee’s situation.
11.
The source claims that labour activists are facing ongoing repression, intimidation
and judicial harassment in the Republic of Korea. In response to the crackdown on labour
activists and attempts by the Government to pass labour reforms that would further limit
workers’ rights, KCTU organized strikes across the country on 16 December 2015.
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Although there were no reported clashes with the police during the strikes, the authorities
declared them “illegal” and announced that they would take strict measures against the
organizers and participants. The Government has reacted in a similar way to strikes in the
past, imposing criminal and civil charges against union leaders and strike participants.
During the week of 21 to 25 December 2015, KCTU members reportedly organized another
strike to denounce the repression of the labour movement in the Republic of Korea.
12.
The source also reports that over 540 KCTU officers and members have been
questioned by the police in relation to their involvement in demonstrations, many of whom
have had to pay fines. Some 20 KCTU members have been arrested by the police in relation
to their involvement in a demonstration in November 2015. Twelve of them have been
released on bail or given suspended sentences and the other eight are still awaiting the
conclusion of their trials.
13.
Given those events, the source submits that Mr. Han’s detention and the arrest
warrant issued against Ms. Lee appear to be solely aimed at sanctioning the peaceful human
rights activities of labour unions and workers’ rights organizations.
14.
On 14 July 2016, the source informed the Working Group that Mr. Han had been
sentenced on 4 July 2016 to a five-year prison term. On 8 July 2016, Mr. Han filed an
appeal. On 11 July 2016, the prosecution also filed an appeal seeking a longer prison term
against Mr. Han. The source reports that both the prosecution and the defence were
required to submit formal justification for their respective appeals before 21 July 2016, and
that the appeal hearing would be scheduled after their submissions had been received. On
18 July 2016, that update from the source was forwarded to the Government with a request
that the Government respond to the additional information as part of its response to the
regular communication.
Response from the Government
15.
On 21 June 2016, the Working Group transmitted the allegations from the source to
the Government under its regular communication procedure. The Working Group requested
the Government to provide detailed information by 21 August 2016 about the current
situation of Mr. Han and Ms. Lee, and any comment on the source’s allegations. The
Working Group also requested the Government to clarify the factual and legal grounds
justifying Mr. Han’s arrest and continued detention, and to provide details regarding the
conformity of the legal proceedings against him with the international human rights treaties
to which the Republic of Korea is a party.
16.
The Government replied to the regular communication on 19 August 2016,
confirming that Mr. Han had been detained and prosecuted for charges including “special
obstruction of official duty”, “special obstruction of official goods” and “general
obstruction of traffic”, and had been sentenced to a five-year term of imprisonment on 4
July 2016. The Government also confirmed that both the prosecution and Mr. Han had
appealed against the sentence of the first instance court, and that the case had, at that time,
been forwarded to the second instance court. Moreover, the Government noted that an
arrest warrant against Ms. Lee had been issued by the court, but she had not been arrested.
17.
The Government submits that Mr. Han and Ms. Lee participated unlawfully and
violently in public assemblies. The Government alleges that Mr. Han violated the Assembly
and Demonstration Act of the Republic of Korea by organizing numerous assemblies
without notifying the authorities, and that the assemblies deviated from the declared range
of assemblies since April 2015. Furthermore, during the assembly of 1 May 2015, Mr. Han
and other participants assaulted police officers. As a result, Mr. Han was charged with
“special obstruction of official duty”. The Government asserts that Mr. Han refused to
appear before the police and defied the arrest warrant issued by the court. While hiding in
the KCTU building, Mr. Han planned and organized further illegal violent assemblies, such
as general strike assemblies held in September 2015 and the rally on 14 November 2015.
18.
The Government alleges that, prior to the 14 November rally, at which 108 police
officers were assaulted and 43 police buses were destroyed, Mr. Han prepared and
distributed dozens of aluminium ladders and ropes to the participants and made statements
such as “I will take full responsibility” and “Let’s show that we can paralyse Seoul” during
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the opening address at the demonstration. According to the Government, that resulted in the
demonstrators using ropes, iron pipes and bars to collectively assault police officers, and
destroying and setting fire to police buses. The Government alleges that the level of
violence during the demonstration was so high that it posed a threat to the lives of police
officers who were performing their official duties and almost resulted in great tragedy. As a
result of the demonstration, the centre of Seoul was brought to a standstill for many hours.
The Government notes that the actions led by Mr. Han were confirmed by evidence and
explicitly acknowledged in the first instance judgment in the criminal case against him.
19.
The Government also alleges that, on four occasions, Ms. Lee refused requests from
the police to be present at the investigation regarding charges relating to her participation in
the assembly on 14 November 2015. Ms. Lee is alleged to have prepared tools such as
ladders and ropes to be used to assault police officers and destroy police equipment, as well
as bringing parts of central Seoul to a standstill by obstructing traffic and exercising
violence with other demonstrators. The court therefore issued a warrant for Ms. Lee’s arrest
in December 2015. The Government states that the arrest warrant was not requested and
issued to sanction the legitimate exercise of the right to peaceful assembly guaranteed under
international human rights law.
20.
The Government notes that the Republic of Korea fully guarantees the right to
freedom of peaceful assembly under article 21 of the Constitution and under the Assembly
and Demonstration Act. However, the Government asserts that Mr. Han and Ms. Lee
engaged in acts of violence during the assemblies and have therefore lost the protection
afforded by those guarantees.
21.
In addition, the Government submits that Mr. Han’s arrest and detention and the
issuing of the warrant for Ms. Lee’s arrest were carried out in accordance with domestic
procedures. Mr. Han failed to appear after the police requested his appearance multiple
times. The police therefore requested a warrant for Mr. Han’s arrest under the Criminal
Procedure Act, and the court issued the warrant after considering whether there was
justifiable reason for doing so. Moreover, when Mr. Han was arrested on 10 December
2015, a detention warrant was requested pursuant to the provisions of the Criminal
Procedure Act within 48 hours of the time of his arrest. The detention warrant was issued
by the court after direct interrogation of Mr. Han, and examination of the necessity,
legitimacy and proportionality of his detention. Mr. Han’s case was therefore examined by
a court without delay, and he was subsequently detained pursuant to a warrant issued by the
court. Similarly, Ms. Lee refused four times the request by police to appear and the court
issued a warrant for her arrest after examining whether there was justifiable reason for
doing so. The Government states that, as of August 2016, Ms. Lee was presumed to be
hiding in the KCTU office in order to avoid arrest. The Government concludes that there
was no arbitrariness in the arrest and detention of Mr. Han and Ms. Lee and that the
procedure established under the Criminal Procedure Act complies with article 9 of the
International Covenant on Civil and Political Rights.
22.
Furthermore, the Government notes that the eight-year sentence sought by the
prosecution against Mr. Han took into consideration the fact that Mr. Han led excessively
violent assemblies that involved violence against police officers and police equipment and
brought the centre of Seoul to a standstill. According to the Government, Mr. Han had
previously been sentenced to imprisonment for a similar crime involving the occupation of
factory facilities. During an impartial hearing of the charges and relevant evidence, the
court sentenced Mr. Han to five years’ imprisonment on 4 July 2016 on the grounds that his
use of violence and his instigation of large-scale violence in central Seoul infringed the rule
of law and was thus inexcusable.
23.
The Government asserts that, throughout the process, Mr. Han received a fair trial,
in accordance with article 14 of the Covenant. The hearing was open to the public, Mr. Han
was represented by five lawyers of his own designation in his presence, and a court
composed of three judges declared him to be guilty. A second instance trial was under way
at the time the Government made its submission, as both Mr. Han and the prosecution
appealed on the grounds of unreasonable sentencing. The ruling of the second instance
court can be appealed before the Supreme Court.
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24.
The Government states that it has rightfully taken legal action against the
perpetrators of illegal violent assemblies and has not punished members of labour unions
and workers’ rights organizations for peaceful human rights activities. The issuing of
warrants for Mr. Han’s and Ms. Lee’s arrest, the issuing of a warrant for Mr. Han’s
detention and the sentence sought by the prosecution were in full compliance with domestic
law and were the result of a fair hearing and deliberation by the court. The case involved
violent rallies that caused great danger and infringed upon the rights of other residents and
the general public, and was dealt with in accordance with law and principle, and thus
cannot be viewed as unjust in the light of international human rights law guaranteeing
peaceful assembly.
25.
On 26 July 2016, the Special Rapporteur on the promotion and protection of the
right to freedom of opinion and expression, the Special Rapporteur on the rights to freedom
of peaceful assembly and of association and the Special Rapporteur on the situation of
human rights defenders sent a joint communication to the Government in relation to Mr.
Han.1 In the communication, the Special Rapporteurs noted the five-year prison sentence
imposed on Mr. Han, a human rights defender and trade unionist, and expressed concern at
his arrest, detention and sentence, which appeared to relate to the exercise of his rights to
freedom of expression, of association and of peaceful assembly undertaken in pursuit of his
work in defence of labour rights in the Republic of Korea. The reply of the Government to
the communication, dated 28 October 2016, contained very similar information to that
submitted in its responses to the Working Group’s communications.
Additional information from the source
26.
The response of the Government to the Working Group’s regular communication
was sent to the source on 1 September 2016 for comment. The Working Group requested
the source to provide a response by 31 October 2016. The source responded on 31 October
2016.
27.
The source submits that no satisfactory explanation was given in the response of the
Government regarding the arbitrary nature of Mr. Han’s detention and the warrant issued
for Ms. Lee’s arrest. According to the source, the justifications presented by the
Government are based on factually incorrect statements or on national laws and policies
that contravene international human rights law.
28.
The source states that, from April 2015 until his arrest in December 2015, Mr. Han
was involved in organizing seven rallies for KCTU, and in each case the authorities were
notified beforehand. However, the authorities systematically and severely repressed all
those legitimate, peaceful rallies, either authorizing the rally to take place in a small,
restricted area only or banning the rally outright under the guise of preventing traffic
obstruction. Since mid-2015, the police have prohibited all planned assemblies and
demonstrations in central Seoul, and the Seoul Metropolitan, Gyeonggi Provincial and
Incheon Metropolitan Police have been put on high alert. The police justified that blanket
ban based on article 12 of the Assembly and Demonstration Act, claiming that any
assemblies would disrupt the flow of traffic.
29.
The source also states that, in October 2015, a Seoul court ordered the ban on
assemblies to be lifted, but the order was ignored by police. In his report on his mission to
the Republic of Korea in January 2016, the Special Rapporteur on the rights to freedom of
peaceful assembly and of association noted that the reasons on which the police relied to
ban or find assemblies unlawful, such as obstruction of traffic, did not meet the criteria set
out in article 21 of the Covenant to justify limitations on assemblies (see
A/HRC/32/36/Add.2, para. 28). The ban was therefore illegitimate under international law,
and charging Mr. Han for having organized “illegal assemblies” in September and
November 2015 while the ban was in place violated his right to freedom of assembly under
the Universal Declaration of Human Rights and Covenant.
1 See https://spcommreports.ohchr.org/TMResultsBase/DownLoadPublicCommunication
File?gId=3284.
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30.
Furthermore, the source submits that the Government wrongfully claims that Mr.
Han, along with other assembly participants, assaulted police officers during the assembly
of 1 May 2015. During that assembly, there was a minor confrontation between dozens of
police officers wearing protection gear and a small number of unarmed protesters, including
Mr. Han, which lasted about ten minutes. No police officers were physically attacked or
injured during the confrontation. The incident took place because the police had illegally
blocked the street with bus barricades, preventing anyone from leaving the assembly area.
The Constitutional Court had ruled that any restrictions on an assembly by installing bus
barricades should not prevent individuals and civilians from free passage, and the police
were thus always obliged to secure an appropriate space between buses or at the end of the
bus barricade. However, on 1 May, there was no space between buses or at the end of the
bus barricades, and Mr. Han and some of the other demonstrators confronted the police to
demand that they stop the illegal blockade.
31.
The source refers to the statements of the Government indicating that Mr. Han made
statements inciting violence and prepared and distributed dozens of aluminium ladders and
ropes to the participants in the 14 November rally, who then allegedly used them to assault
police officers and destroyed and set fire to police buses. The source states that the
allegations put forth by the Government and by the prosecution during Mr. Han’s trial are
untrue. According to the evidence submitted during Mr. Han’s trial, there is no proof that
Mr. Han himself prepared and distributed the ropes and aluminium ladders, and none of the
comments he made prior to the rally incited physical violence.
32.
According to the source, demonstrators at the 14 November rally, including Mr.
Han, took to the streets with every intention of conducting a peaceful march, but were
confronted with a disproportionate and violent reaction from the police. Prior to the rally,
the police had mobilized some 20,000 officers from 248 squadrons, 19 water cannons, 679
buses and 580 pepper spray devices. Given the mass mobilization by the police, several
demonstrators prepared ropes and aluminium ladders with the aim of removing or climbing
over the bus barricades, but not intending to assault police officers.
33.
Furthermore, regarding the claim of the Government that the 14 November rally
posed a threat to the lives of police officers, the source notes that, according to the written
indictment by the prosecution against Mr. Han, in almost all of the 108 cases of alleged
police injury, the injuries were minimal and would take a maximum of one to two weeks to
heal completely. There was only one police officer who suffered a face injury that would
take eight weeks to heal completely. Moreover, it is not clear how the damage to the buses
and police officers’ injuries occurred; there was no concrete evidence showing that the
protesters caused the injuries.
34.
In addition, the source states that the Government failed to mention that it was the
police who attacked the demonstrators first and used undue force to stop the previously
peaceful rally. It was the unarmed demonstrators whose lives were at risk when faced with
heavily armed police in riot gear on top of buses, who indiscriminately fired water cannons
at the crowd. As a result, during the rally, 29 civilians were so seriously injured that they
were rushed to hospital. One demonstrator who was knocked to the ground by a water
cannon spent over 10 months in a coma and recently died from his injuries. Notably, the
Special Rapporteur on the rights to freedom of peaceful assembly and of association
criticized the use of water cannons during demonstrations, also citing that tragic case (see
A/HRC/32/36/Add.2, para. 33).
35.
The source claims that, despite national outcry and widespread international
condemnation of the police’s use of undue force against demonstrators during the 14
November rally, law enforcement agencies have refused to launch an official investigation
into the civilian injuries that resulted from the police intervention. Instead of investigating
allegations of police brutality, the authorities launched an extensive inquiry into the
participants and organizers of the rally, questioning over 1,000 witnesses and ultimately
indicting 20 KCTU members and officers, including Mr. Han. The source recalls that, with
regard to the charges brought against Mr. Han for “special obstruction of public duty to
injure public officials” and “incitement to violence”, Mr. Han did not plan any violence or
encourage violence during any demonstrations, and any violent clashes that occurred were
sparked by pre-emptive attacks by the police against peaceful demonstrators. Any tools that
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were prepared or distributed during the rallies were for the purpose of getting past the
illegal bus barricades or disarming the water cannons that had been disproportionately
deployed by police, and were not employed violently against police officers.
36.
In addition, the source recalls that, in their 2016 joint report on the proper
management of assemblies, the Special Rapporteur on the rights to freedom of peaceful
assembly and of association and the Special Rapporteur on extrajudicial, summary or
arbitrary executions stated that acts of sporadic violence or offences by some should not be
attributed to others whose intentions and behaviour remained peaceful in nature (see
A/HRC/31/66, para. 20). Therefore, if any demonstrators did violently assault police
officers, Mr. Han cannot be held responsible for their actions. The source argues that the
Government has penalized Mr. Han for the violent actions that occurred during the rally
because he is the leader of KCTU, one of the organizations that co-hosted the 14 November
rally. According to the source, that is based on a principle used in the legal system of the
Republic of Korea called the “joint principal through conspiracy without participation”.
The judiciary of the Republic of Korea adopted a unique form of the legal principle that
states that anyone who intended to engage or engaged in conspiracy to commit a crime is
liable even if they did not actively commit the crime. However, not only did Mr. Han not
intend to conspire or conspire in order for violence to take place during the 14 November
rally, but around 100,000 people from various groups, including farmers, students and non-
governmental organizations, participated in the rally, and Mr. Han had no influence or
control over them.
37.
With reference to the Government’s claim that Mr. Han refused to appear before the
police and defied the arrest warrant duly issued by the court, the source asserts that, prior to
the arrest warrant being filed against him, Mr. Han had cooperated and had been in contact
with the police through his attorney. However, the police unilaterally suspended that
communication and requested a warrant for his arrest. Given the well-documented
persecution and repression of labour leaders in the Republic of Korea, Mr. Han’s refusal to
surrender to the police once the arrest warrant was filed was based on a well-founded fear
that he would be arbitrarily detained and subjected to judicial harassment, as has proven to
be the case.
38.
Similarly, in relation to Ms. Lee, the source claims that the ladders and ropes that
were distributed to some participants in the 14 November rally were intended to be used to
get past the bus barricades and water cannons that had been deployed by the police ahead of
the rally, and were not intended as weapons or to exert bodily harm. Moreover, Ms. Lee’s
refusal to surrender to the police is based on a well-founded fear of being subjected to
arbitrary detention. Mr. Han’s arrest, trial and sentencing, along with the indictment of 19
other KCTU members and officers since November 2015 for having exercised their rights
to freedom of assembly and of expression, has confirmed that KCTU members and officers
are vulnerable to judicial harassment and arbitrary detention.
39.
The source maintains that Mr. Han’s arrest, detention, prosecution, conviction and
imprisonment, as well as the issuing of the warrant for Ms. Lee’s arrest, are arbitrary as
they are based only on the exercise of their right to freedom of peaceful assembly
guaranteed under international law.
Request for further information
40.
At its session in November 2016, the Working Group considered the submissions
from the source and the Government, and noted the serious factual conflict between the
parties as to whether Mr. Han and Ms. Lee had exercised their right to freedom of assembly
in a peaceful manner during the demonstrations in 2015. The Working Group therefore
decided to seek further submissions from the parties in order to ensure that they both had an
equal opportunity to expand upon their respective arguments.
41.
On 21 December 2016, the Working Group wrote to the source and to the
Government requesting further information on whether Mr. Han and Ms. Lee had
peacefully exercised their right to freedom of assembly during the 2015 demonstrations, as
well as any further submissions the parties might wish to make regarding Mr. Han and Ms.
Lee’s rights to freedom of expression and association. Both parties were requested to
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respond by 20 February 2017. In addition, the Working Group requested further
information from the source on Mr. Han and Ms. Lee’s due process rights, the trial and the
judgment, including a translation into English of the indictment and the judgment.
42.
The source responded in a submission dated 20 February 2017, which included a
copy of the final judgment handed down against Mr. Han by Seoul High Court on 13
December 2016 in Korean. The source had been unable to obtain a certified translation into
English. However, the source stated that Mr. Han’s legal counsel had provided informal
translations of key elements of the judgment, which are referenced in the source’s response.
43.
In its response, the source stated that according to the documentation presented
during Mr. Han’s trial, the police did not submit any concrete evidence showing that Mr.
Han had engaged in or incited violence during the 2015 demonstrations. Nevertheless, the
Court found Mr. Han guilty of “incitement to violence” on the basis that he was deemed to
be “complicit” with protestors who did engage in non-peaceful actions. In particular, the
Court based its reasoning on the following facts:
(a)
Mr. Han was the leader of the host organization of the rallies, and was
therefore obliged to ensure that all demonstrators remained peaceful;
(b)
During the KCTU leadership election in January 2015, at which Mr. Han was
elected president, one of his main election pledges was that he would help KCTU stage a
“people’s mass rally and a strike against the government’s labour reform”. In addition, Mr.
Han held several press conferences on 22 October 2015, during which he announced that a
rally would be organized in Gwanghwamun Square under the title of “People’s mass rally
calling for the resignation of President Park and for an overturn of chaebol-centred
society”. The January 2015 election pledge and the October 2015 proclamation were
deemed by the Court to constitute evidence of Mr. Han’s complicity in the violent acts
committed by some participants during the rally;
(c)
On 14 November 2015, Mr. Han made speeches in front of rally participants
at 1 p.m., 3.40 p.m. and 10.30 p.m. The Court found that parts of his speeches were
aggressive in nature and thus incited violent action from some of the rally participants. The
following excerpts from Mr. Han’s speeches were cited by the Court as evidence of his
incitement to violence:
(i)
“The Government declared the KCTU strike a political strike and it is thus
illegal. I am not scared of this. I am ready to be arrested. I will step forward to the
people’s mass mobilization with 130,000 people with my fists clenched and will
take the lead in the second mobilization later”;
(ii)
“The Saenuri Party Government is suppressing the people and has started a
war to reign over the people eternally. It represses us as it regards KCTU as a major
obstacle. We are here together to stage a mass mobilization against [President]
Park’s Government, which is attempting to revive the Yushin military dictatorship
by manipulating history. We don’t want an isolated and desperate fight. When we
fight together we can change the unjust Government. Let’s trust in ourselves! Let’s
be free from the sense of defeat! I believe that the reason why all of you came to
Seoul, having an early breakfast and spending every penny to afford the high cost of
travel, is that you wanted to see that you really have comrades who would struggle
together with you and to express our anger that we cannot stand it anymore. You
must be here with resolute determination and not resist a challenge! From now on
until late at night, let’s make the street ours! Let them know clearly that when
workers are full of indignation, we can paralyse all of Seoul or even the whole
country. If nothing changes today, we should continue our struggle with a second
and third mass mobilization and realize our goal by staging a general strike! … We
have to change the society where people cannot demonstrate for fear of a heavy fine.
If anyone has a picture taken of him/her at the rally site, he/she will be fined 3 to 5
million won. So far the government has collected 2 trillion won worth of fines from
protesters. This may be painful, but let’s get ready to be arrested. I am willing to be
the first detainee. We can crack the political power with mass action. Today we will
get back our self-confidence with the people’s mobilization and stage a general
strike in December for a final victory! Today, 14 November 2015, is our day to fight
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back. I, the KCTU president, will take responsibility, so don’t be afraid and take the
street to meet citizens and finally move forward to the Presidential House, the heart
of the governmental force!”.
44.
With regard to paragraph 43 (a) above, the source recalls that, according to the
report of the Special Rapporteur on the rights to freedom of peaceful assembly and of
association, and the Special Rapporteur on extrajudicial, summary or arbitrary executions
on the proper management of assemblies, while organizers should make reasonable efforts
to comply with the law and to encourage peaceful conduct of an assembly, they should not
be held responsible for the unlawful behaviour of others. To do so would violate the
principle of individual liability (see A/HRC/31/66, para. 26).
45.
With regard to paragraph 43 (b) and (c) above, the source notes that none of the
statements cited by the Court as proof of Mr. Han’s role in inciting violence explicitly
refers to engaging in violent acts, and no other proof was provided to show that participants
who engaged in violent acts had been incited by or mobilized as a result of Mr. Han’s
speeches.
46.
Moreover, the source submits that the criminal persecution of Mr. Han and Ms. Lee
for having participated in organizing rallies in 2015 is a clear violation of their right to
freedom of assembly, as enshrined in article 20 of the Universal Declaration of Human
Rights and article 21 of the Covenant. The fact that the Government has deemed those
rallies “illegal” and has thus pressed criminal charges against Mr. Han for organizing them
is a violation of his right to freedom of assembly. Furthermore, charging Mr. Han and Ms.
Lee with incitement to violence for the violent acts committed by other participants in the
2015 rallies is a further violation of Mr. Han and Ms. Lee’s right to freedom of assembly
and expression, as explained by the Special Rapporteur on the rights to freedom of peaceful
assembly and of association, who noted in 2013 that organizers of peaceful assemblies
should never be held liable for the unlawful behaviour of others. The principle of individual
liability of participants should be upheld, notably due to the presumption of peacefulness of
the assembly (see A/HRC/23/39, para. 78).
47.
In addition, the source states that, aside from some minor examples of Mr. Han
being denied visitation rights while in detention,2 Mr. Han’s due process rights, including
the right to access a lawyer and the right to appeal to a higher court, have been respected.
Nevertheless, it must be noted that the final judgment handed down by Seoul High Court on
13 December 2016 sentencing Mr. Han to three years in prison and a 500,000 won fine
does not provide sound reasoning on the facts and does not justify Mr. Han’s indictment
based on concrete evidence.
48.
The source submits that, although the charges filed against Mr. Han correspond to
the national legislation, it is important to note that the laws are themselves in violation of
international laws governing the rights to freedom of assembly and of expression. In
particular, the Assembly and Demonstration Act and the Criminal Act under which Mr.
Han was charged include articles that contradict international standards and have been
found to be in violation of the rights to freedom of assembly and of expression, as is well
documented in the report of the Special Rapporteur on the rights to freedom of peaceful
assembly
and
of
association
on
his
mission
to
the
Republic
of
Korea
(A/HRC/32/36/Add.2).
49.
The Government responded to the Working Group’s request for further information
on 20 February 2017. It noted that, on 13 December 2016, an appellate had court sentenced
Mr. Han to three years’ imprisonment and a fine of 500,000 won (approximately US$ 435).
The case is currently pending before the Supreme Court. Ms. Lee is still at large.
2 The source alleges that, on 16 December 2015, the General Secretary of the International Trade
Union Confederation for Asia and the Pacific was denied the right to visit Mr. Han at the police
station where he was being detained. The source adds that the police stated that the visit was refused
due to “worries about the possibility of conspiracy and destruction of evidence”, although those
allegations were never substantiated.
A/HRC/WGAD/2017/22
10
50.
The Government referred to its previous submission, which detailed the acts
committed by Mr. Han during the demonstrations in May, September and November 2015,
during which the demonstrations themselves and the acts committed by Mr. Han were
clearly violent in nature. Mr. Han was prosecuted for a number of offences committed
during a total of 11 violent assemblies from April to November 2015. The offences include
one count of inflicting bodily injury by special obstruction of public duty; three counts of
special obstruction of public duty; two counts of special obstruction of official goods; seven
counts of general obstruction of traffic; five counts of incompliance to order to disperse,
and four counts of participation in assemblies conducted in prohibited places.
51.
According to the Government, Mr. Han was represented by five defence lawyers of
his choosing in the lower court, and by a team of 98 lawyers in the High Court. The trial of
his case proceeded in accordance with the Criminal Procedure Act. The defence lawyers
freely held press conferences and the media covered the trial proceedings without any
interference. Eighteen hearings were held during the first instance trial and four hearings
were held for the second instance trial, spanning five months respectively. Mr. Han and his
lawyers presented counterarguments, denied the admissibility of evidence collected by the
police and conspiracy with other offenders, and called eight witnesses at the first trial and
three at the second.
52.
The Court found Mr. Han guilty of the charges against him after examining the vast
amount of evidence, including pictures and videos taken at the scene, testimonies of the
victims and arguments from both sides, and sentenced him under the law. The court of first
instance gave its reasons for a five-year sentence in the judgment, including the fact that
Mr. Han’s criminal behaviour was subject to a period of imprisonment, in accordance with
the sentencing guidelines on statutory penalties and multi-count convictions, and the fact
that Mr. Han had prepared tools for violence and had incited demonstrators. The Court also
took into account the fact that Mr. Han had already been sentenced to three years’
imprisonment for special obstruction of public duty. The judges explained that they
considered various circumstances such as the details of the crime, the situation after the
crime and the fact that some of Mr. Han’s criminal actions were subject to aggravated
punishment when they were committed within the three-year period of repeated crimes,
thus during a period of recidivism.
53.
Furthermore, the Government noted that it does not gather information regarding the
assemblies in which Mr. Han participated, except for the assemblies referred to in his
prosecution. However, there were 47,842 assemblies held in 2015, of which 20,362 were
reported by labour organizations, and most were conducted in a peaceful manner. The
police ensured that the demonstrations concluded peacefully, even when some participants
obstructed the traffic or disobeyed the order to disperse, in violation of the Assembly and
Demonstration Act.
54.
However, Mr. Han emphasized the struggle against the Government when he ran for
the presidency of KCTU. His election pledge was to confront the Government by
transforming KCTU into a general strike command and to provide a high-profile voice. He
also pledged to go on strike to advance struggles when people are mobilized to protest.
Soon after his election as President of KCTU on 26 December 2014, he took the lead in
planning numerous violent demonstrations and instigated and engaged in violence himself
at the demonstrations.
55.
The Government emphasizes that the KCTU executive, including Mr. Han and Ms.
Lee, organized a series of anti-government rallies in 2015. However, Mr. Han and Ms. Lee
were not prosecuted for anti-government rallying, as there were no violent acts committed
during those assemblies. Furthermore, the Government notes that after Mr. Han was
arrested, KCTU under acting leadership, as well as other civil and labour organizations,
continued to hold large-scale rallies to criticize the Government, but the organizers were
not prosecuted as no violent acts were committed during those rallies.
56.
The Government states that its prosecution and conviction of Mr. Han cannot be
regarded as arbitrary detention. He was punished for committing criminal acts involving
severe violence and for violating the law. There is no international norm to guarantee the
right to clearly violent assembly. The Government submits that the violence of the
A/HRC/WGAD/2017/22
11
assemblies can be easily verified in the mass media and on the Internet, as well as in
pictures submitted by the Government as evidence with its response to the Working Group.
57.
In addition, the Government recalls that the right to freedom of expression is
protected under article 21 of the Constitution, but is subject to the limitation in article 21 (4)
that “neither speech nor the press may violate the honour or rights of other persons nor
undermine public morals or social ethics”. It is also subject to article 37 (2) of the
Constitution, which states that “the freedoms and rights of citizens may be restricted by law
only when necessary for national security, the maintenance of law and order, or for public
welfare”. The right to freedom of expression is protected for every worker and individual
citizen, and restrictions imposed under the same conditions. A strike is not considered
legitimate if it is conducted for political purposes that are irrelevant to improving working
conditions. Apart from that, labour unions enjoy extensive freedom regarding political
activities or expression of opinions and criticism of employers and the Government.
58.
The Government states that it fully guarantees the right to freedom of peaceful
assembly and of association for all individuals within its jurisdiction, pursuant to the
Constitution and international human rights norms. The right to freedom of assembly is
specified in the Assembly and Demonstration Act, which allows anyone to hold an
assembly or demonstration by submitting a report to the police in advance. The Act
prohibits the obstruction of an assembly and punishes those who interfere with a peaceful
assembly, including aggravated punishment for a member of the armed forces, public
prosecutor or police officer who interferes with a peaceful assembly or demonstration.
Furthermore, a person may request protection from the police if there are reasonable
grounds for fear of obstruction of an assembly. The police also guarantee that right by
protecting participants from violence by installing police lines and maintaining public
order. The Government notes that very few ban notices were issued for assemblies between
2011 and 2015.
59.
If the assembly is unreported or poses a direct and clear threat to public order owing
to the violence of participants, it may be ordered to disperse. The Government notes that
police officers may use equipment according to the Act on the performance of their duties
by police officers and its regulations. They also receive training on human rights so as to
prevent human rights violations.
60.
In addition, the Government asserts that it is well established in the jurisprudence of
the Supreme Court that even unreported assemblies are not subject to an immediate
dissolution order. Such an order can only be made in relation to assemblies that directly or
clearly threaten public order. Assemblies are not immediately dissolved even when some of
the participants commit unlawful acts, but only when the assemblies pose a serious threat to
public order. It is only persons committing unlawful acts who are subject to judicial
procedure.
61.
The Government referred to the candlelight vigils that have been held nationwide in
the Republic of Korea since the end of 2016, noting that the police have managed and
responded to the assemblies in the manner described above. Even when the number of
participants in Seoul amounted to over 1 million, no one was arrested and the assembly
concluded without the police clashing with participants. That included rallies with
conflicting purposes which were held at the same time without restriction on the exercise of
freedom of expression. People were free to express their opinions individually and
collectively.
62.
According to the Government, that may be contrasted with the assembly of 14
November 2015, which was the most violent one in which Mr. Han participated. A total of
68,000 demonstrators refused to comply with police orders to disperse on 15 occasions, and
they committed collective assault against police officers with iron pipes and lumber bars, as
well as serious damage to police buses. The police deployed 20,000 police officers, 19
water cannons and 580 pepper spray devices. The Court acknowledged in its ruling that a
total of 108 police officers were injured, 2 of whom sustained severe injuries, and 43 police
buses and 138 pieces of equipment were damaged. It was one of the most violent
assemblies in recent years, during which the police were equipped only with helmets and
A/HRC/WGAD/2017/22
12
shields, not clubs, which was the minimum necessary defence from the violence used at the
scene.
63.
In summary, the Government submits that the prosecution and charges against Mr.
Han and Ms. Lee do not fall under any categories of arbitrary detention. The exercise of
human rights under international human rights instruments may be subject to limitation for
the legitimate purposes of national security, public order or protection of the rights of
others. Violent assemblies are outside the scope of article 21 of the Covenant. Other rights,
including the right to personal liberty and security, the right to humane treatment and the
right to a fair trial in articles 9, 10 and 14 of the Covenant, have been fully respected in the
course of the judicial procedures regarding Mr. Han and Ms. Lee.
Discussion
64.
The Working Group thanks the source and the Government for their submissions
and welcomes their extensive engagement with the Working Group. The prompt and
concise replies from both parties have allowed the Working Group to consider the present
case as expeditiously as possible, with a clearer understanding of the disputed matters.
65.
The Working Group notes that Mr. Han’s case is currently pending before the
Supreme Court in the Republic of Korea. However, that does not prevent the Working
Group from considering the case, as there is no requirement that domestic remedies be first
exhausted before the Working Group can issue an opinion (see, for example, opinions No.
19/2013 and No. 11/2000).
66.
There are serious contradictions between the claims made by the source and the
Government. There appear to be two key points that are disputed: firstly, whether
restrictions and bans placed by the Government on assemblies violated Mr. Han’s rights to
freedom of expression and of peaceful assembly, and secondly, whether Mr. Han and Ms.
Lee committed or incited any acts of violence during assemblies organized and held in
2015 and have therefore lost the protection of the right to peaceful assembly.
67.
On the one hand, the source maintains that bans placed on assemblies were not
justified under international law, that charging Mr. Han for organizing illegal assemblies in
2015 violated his right to peaceful assembly, that Mr. Han and Ms. Lee were not engaged in
acts of violence, and that the ropes and ladders prepared for the 14 November rally were
intended for use in climbing over illegal bus barricades or disarming water cannons and
were used in response to the disproportionate use of force by the authorities. In any event, if
there was any violence by other demonstrators, Mr. Han and Ms. Lee cannot be held
responsible for the actions of others. On the other hand, the Government claims that the
exercise of human rights under international human rights instruments may be subject to
limitation for the legitimate purposes of national security, public order or protection of the
rights of others, that Mr. Han unlawfully violated such restrictions, that Mr. Han and Ms.
Lee had organized, prepared for, incited and participated in acts of violence during the
assemblies, and that such conduct is outside the scope of the right to peaceful assembly.
68.
In order to resolve such conflicts, the Working Group has in its jurisprudence
established the ways in which it deals with evidentiary issues. If the source has established
a prima facie case for breach of the international requirements constituting arbitrary
detention, the burden of proof should be understood to rest with the Government if it
wishes to refute the allegations (see A/HRC/19/57, para. 68).3
3 See opinion No. 41/2013, in which the Working Group noted that the source of a communication and
the Government do not always have equal access to the evidence and frequently the Government
alone has the relevant information. In that case, the Working Group recalled that where it is alleged
that a person has not been afforded, by a public authority, certain procedural guarantees to which he
was entitled, the burden to prove the negative fact asserted by the applicant is on the public authority,
because the latter is “generally able to demonstrate that it has followed the appropriate procedures and
applied the guarantees required by law ... by producing documentary evidence of the actions that were
carried out” (paras. 27-28).
A/HRC/WGAD/2017/22
13
69.
In the present case, the Working Group considers that the source has established a
credible prima facie case that Mr. Han and Ms. Lee have been targeted solely for the
exercise of their rights to freedom of expression and of peaceful assembly in defending
labour rights in the Republic of Korea. In reaching that conclusion, the Working Group
took into account the following factors:
(a)
The Government has instituted criminal proceedings against two prominent
leaders of KCTU, the President and Secretary-General. In doing so, the authorities
demonstrated considerable determination to apprehend Mr. Han, having pursued him for six
months prior to his arrest;
(b)
The imposition of criminal sanctions on Mr. Han and the issuing of an arrest
warrant against Ms. Lee took place against a background of ongoing strikes initiated by
KCTU to protest against proposed reforms that would limit the rights of workers. As the
source claims and the Government has not denied, similar criminal prosecutions have been
brought against 19 other KCTU members since November 2015 in what appears to be a
concerted effort to curtail their activism in support of labour rights. The report of the
Special Rapporteur on the rights to freedom of peaceful assembly and of association on his
mission to the Republic of Korea in January 2016 confirms that the police investigated
hundreds of KCTU members following the KCTU rally in November 2015 (see
A/HRC/32/36/Add.2, para. 41).
(c)
The source reports that many of the individuals who have been investigated
have been ordered to pay fines, released on bail or given suspended sentences. The
prosecution initially sought an unprecedented sentence of eight years’ imprisonment for
Mr. Han’s alleged organization of an “illegal rally”, stating that such a sentence was
justified “due to the influence he holds as the leader of KCTU”. After the court of first
instance imposed a sentence of five years’ imprisonment on Mr. Han, the prosecution
unsuccessfully sought a heavier sentence on appeal. There appears to be a clear pattern of
the imposition of serious criminal sanctions on labour activists, including Mr. Han, which is
likely to have a significantly chilling effect on their willingness and ability to exercise their
rights and defend the rights of others in the future.
70.
Furthermore, the Working Group is of the view that the Government has not
rebutted the source’s prima facie case. The Working Group considers that the charges
against Mr. Han for organizing illegal assemblies in violation of the Assembly and
Demonstration Act were based on the exercise of his rights to freedom of expression and of
peaceful assembly guaranteed under articles 19 and 20 of the Universal Declaration of
Human Rights and articles 19 and 21 of the Covenant. As the source notes, from April 2015
until his arrest in December 2015, Mr. Han was involved in organizing seven KCTU rallies.
However, all of the rallies were subject to limitations which either confined the rallies to a
small, restricted area or imposed an outright ban on the rallies to prevent obstruction to
traffic. The Government does not deny that allegation, stating in its submissions that Mr.
Han violated the Assembly and Demonstration Act by organizing numerous assemblies
without notifying the authorities, and that the assemblies deviated from the declared range
of assemblies since April 2015.
71.
It is well established that the failure to notify the authorities of an assembly does not
render the assembly unlawful, and the organizers should not be subject to criminal
sanctions resulting in fines or imprisonment because of the failure to notify (see
A/HRC/31/66, para. 23). Furthermore, as the Special Rapporteur on the rights to freedom of
peaceful assembly and of association noted in the report on his visit to the Republic of
Korea in 2016, banning or finding assemblies unlawful based on the obstruction of traffic
or other disturbance to the daily lives of citizens does not meet the criteria set out in article
21 of the Covenant to justify limitations on assemblies. It is only restrictions that are
necessary in a democratic society in the interests of national security or public safety,
public order, the protection of public health or morals, or the protection of the rights and
freedom of others, and are lawful, necessary and proportionate to the aim pursued, that may
be applied (see A/HRC/32/36/Add.2, paras. 26-28). Freedom is considered the rule, and its
A/HRC/WGAD/2017/22
14
restriction the exception. Therefore, even if Mr. Han’s arrest and detention for having
organized “illegal assemblies” was in conformity with the Assembly and Demonstration
Act,4 criminal penalties for failing to notify the authorities and the imposition of blanket
bans to prevent traffic obstruction were not legitimate restrictions under international law.
Mr. Han was therefore charged in violation of his rights to freedom of expression and of
peaceful assembly under articles 19 and 20 of the Universal Declaration of Human Rights
and articles 19 and 21 of the Covenant.
72.
In addition, the Government has not presented sufficient evidence in its submissions
and accompanying materials to justify a finding by the Working Group that Mr. Han and
Ms. Lee were involved in preparing tools for, inciting or committing violence during the
2015 demonstrations, and therefore forfeited the right to freedom of peaceful assembly. As
the Special Rapporteur on the rights to freedom of peaceful assembly and of association has
noted, the peacefulness of an assembly should be presumed, and regard must be given to
the intentions of the organizers and the manner in which the assembly is held (see
A/HRC/23/39, para. 49).
73.
In the present case, the statements made by Mr. Han to participants at the rally held
on 14 November 2015 did not incite or encourage violence by other participants, nor did
they show any intention on Mr. Han’s part to engage in violence himself. While Mr. Han’s
statements, such as “I will take full responsibility” and “Let’s show that we can paralyse
Seoul” were clearly intended to mobilize the demonstrators to protest and were very critical
of the Government, they did not refer to any form of violence.
74.
Moreover, while the Working Group appreciates that the Government has forwarded
a large number of photographs of the demonstrations in 2015, they do not specifically show
Mr. Han or Ms. Lee engaging in acts of violence. Most of the photographs show
demonstrators destroying buses or the destroyed buses themselves, and in some cases,
protestors kicking or clashing with the police. Two of the photographs have a caption of
“Mr. Sang-gyun Han assaulting police”, but it is not clear which person shown in the
photographs is in fact Mr. Han, nor whether the person is actually assaulting police officers.
It is not for the Working Group to assess the probative value of photographs. Furthermore,
even if there were acts of violence committed at demonstrations organized by Mr. Han and
Ms. Lee, it is far from clear who committed those acts and whether they were associated
with Mr. Han and Ms. Lee. As the source pointed out, the rally on 14 November 2015
included around 100,000 people from groups including farmers, students and non-
governmental organizations, over which Mr. Han and Ms. Lee had no control. In addition,
the actions of other demonstrators at a large assembly cannot be attributed to Mr. Han and
Ms. Lee. As stated by two United Nations Special Rapporteurs in their recent joint report,
while organizers should make reasonable efforts to comply with the law and to encourage
peaceful conduct of an assembly, they should not be held responsible for the unlawful
behaviour of others. To do so would violate the principle of individual liability, weaken
trust and cooperation between assembly organizers, participants and the authorities, and
discourage potential assembly organizers from exercising their rights (see A/HRC/31/66,
paras. 20 and 26).
75.
Accordingly, in the view of the Working Group, Mr. Han’s deprivation of liberty is
arbitrary, as it has resulted from the exercise of his rights to freedom of expression and of
peaceful assembly under articles 19 and 20 of the Universal Declaration of Human Rights
and articles 19 and 21 of the Covenant. The present case falls within category II of the
arbitrary detention categories referred to by the Working Group when considering cases
submitted to it.
76.
The Working Group notes that Ms. Lee has not been detained by the authorities and
that the only step taken against her to date is the issuing of an arrest warrant. Currently, it is
understood that she is still in hiding, but has not been arrested. As the Working Group
4 The Working Group has repeatedly stated in its jurisprudence that, even when the detention of a
person is in conformity with national legislation or court decisions, the Working Group must still
ensure that the detention is consistent with international human rights law. See, for example, opinions
No. 24/2015 and No. 41/2014.
A/HRC/WGAD/2017/22
15
stated in a previous annual report, its methods of work do not provide for any mechanism to
address situations where there is reliable information that the execution of an order of arrest
will result in arbitrary deprivation of liberty. In effect, the Working Group currently has to
wait until the arrest warrant is executed and the person is arbitrarily detained (see
A/HRC/27/48, paras. 61-65). While the Working Group is unable to express an opinion in
relation to Ms. Lee’s current situation, it cannot help but notice the factual similarities
between the cases of Mr. Han and Ms. Lee. The Working Group recalls that the Human
Rights Council, in its resolution 25/38, recalled that States have the responsibility,
including in the context of peaceful protests, to prevent arbitrary arrest and detention, and
called upon States to avoid the abuse of criminal proceedings at all times.
Disposition
77.
In the light of the foregoing, the Working Group renders the following opinion:
The deprivation of liberty of Sang-gyun Han, being in contravention of articles 9, 19
and 20 of the Universal Declaration of Human Rights and articles 9, 19 and 21 of the
International Covenant on Civil and Political Rights, is arbitrary and falls within
category II of the arbitrary detention categories referred to by the Working Group
when considering cases submitted to it.
78.
The Working Group requests the Government of the Republic of Korea to take the
steps necessary to remedy the situation of Mr. Han without delay and bring it into
conformity with the relevant international norms, including those set out in the Universal
Declaration of Human Rights and the Covenant.
79.
The Working Group considers that, taking into account all the circumstances of the
case, the appropriate remedy would be to release Mr. Han immediately and accord him an
enforceable right to compensation and other reparations, in accordance with international
law.
80.
The Working Group urges the Government to ensure a full and independent
investigation of the circumstances surrounding the arbitrary deprivation of liberty of Mr.
Han and to take appropriate measures against those responsible for the violation of his
rights.
81.
As part of its reparations in the present case, especially the guarantee of non-
repetition, the Working Group urges the Government to bring its legal framework and
practices concerning the right of peaceful assembly, including the Assembly and
Demonstration Act, into line with the recommendations made in the report of the Special
Rapporteur on the rights to freedom of peaceful assembly and of association on his mission
to the Republic of Korea (A/HRC/32/36/Add.2).
Follow-up procedure
82.
In accordance with paragraph 20 of its methods of work, the Working Group
requests the source and the Government to provide it with information on action taken in
follow-up to the recommendations made in the present opinion, including:
(a)
Whether Mr. Han has been released and, if so, on what date;
(b)
Whether compensation or other reparations have been made to him;
(c)
Whether an investigation has been conducted into the violation of his rights
and, if so, the outcome of the investigation;
(d)
Whether any legislative amendments or changes in practice have been made
to harmonize the laws and practices of the Government with its international obligations in
line with the present opinion;
(e)
Whether any other action has been taken to implement the present opinion.
83.
The Government is invited to inform the Working Group of any difficulties it may
have encountered in implementing the recommendations made in the present opinion and
whether further technical assistance is required, for example, through a visit by the
Working Group.
A/HRC/WGAD/2017/22
16
84.
The Working Group requests the source and the Government to provide the above
information within six months of the date of the transmission of the present opinion.
However, the Working Group reserves the right to take its own action in follow-up to the
opinion if new concerns in relation to the case are brought to its attention. Such action
would enable the Working Group to inform the Human Rights Council of progress made in
implementing its recommendations, as well as any failure to take action.
85.
The Working Group recalls that the Human Rights Council has encouraged all
States to cooperate with the Working Group and requested them to take account of its views
and, where necessary, to take appropriate steps to remedy the situation of persons arbitrarily
deprived of their liberty, and to inform the Working Group of the steps they have taken.5
[Adopted on 25 April 2017]
5 See Human Rights Council resolution 33/30, paras. 3 and 7.