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.17-23420(E)
Human Rights Council
Working Group on Arbitrary Detention
Opinions adopted by the Working Group on Arbitrary
Detention at its eightieth session, 20–24 November 2017
Opinion No. 80/2017 concerning Il Joo, Cheol Yong Kim, Eun Ho Kim,
Kwang Ho Kim and Seong Min Yoon (Democratic People’s 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/36/38), on 14 September 2017 the
Working Group transmitted to the Government of the Democratic People’s Republic of
Korea a communication concerning Il Joo, Cheol Yong Kim, Eun Ho Kim, Kwang Ho Kim
and Seong Min Yoon. The Government replied to the communication on 25 September
2017. 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);
* In accordance with rule 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/2017/80
General Assembly
Distr.: General
27 December 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 source specifies that, when carrying out an arrest, the authorities of the
Democratic People’s Republic of Korea do not usually show the individual concerned an
arrest warrant or inform him or her of the applicable legislation at the time of arrest. The
source also submits that there is no official mechanism for filing complaints with the
Government of the Democratic People’s Republic of Korea on behalf of victims of arbitrary
detention, as there are no warrants, trials, appeal procedures or legal remedies. Furthermore,
if a family member or a friend of a detainee attempts to search for or rescue the detainee
using unofficial means, he or she will be convicted of guilt by association. The source
argues that this renders it impossible for family members or friends of detainees to employ
even unofficial means to search for or assist them.
5.
Il Joo is the first alleged victim of arbitrary detention. He was 50 years of age at the
time of his detention, is a national of the Democratic People’s Republic of Korea and
usually resides in South Hamgyong Province. Prior to his detention, Il Joo was a violinist
with the choir of the Ministry of the People’s Armed Forces of the Democratic People’s
Republic of Korea.
6.
It is reported that Il Joo was arrested in May 2001 in Sambong District, Onsong
County (a region located on the border with China), by officials of the national security
agency of the Democratic People’s Republic of Korea, who did not show an arrest warrant
or a copy of any other decision issued by a public authority.
7.
In this case, the applicable legislation can be assumed to be article 63 (Espionage) of
the Criminal Law of the Democratic People’s Republic of Korea, which stipulates that a
non-citizen of the Republic who detects, collects or transmits secret information with the
intention of conducting espionage against the Democratic People’s Republic of Korea is to
be sentenced to 5 to 10 years’ reform through labour. In cases where the person concerned
commits a grave offence, he or she is to be sentenced to 10 or more years’ reform through
labour.
8.
The source reports that Il Joo regularly contacted his sister, who sought asylum in
the Republic of Korea and became a citizen of that country. Il Joo has also regularly
received money from her. The source adds that contact with citizens of the Republic of
Korea is illegal under the Criminal Law.
9.
The source also notes that seeking asylum in the Republic of Korea is considered by
the authorities of the Democratic People’s Republic of Korea to be a criminal act involving
betrayal of the “fatherland”. Il Joo was therefore considered to be a relative of a criminal.
10.
The source reports that, in May 2001, the detainee went to Sambong District,
Onsong County, in order to receive money sent by his sister through a broker. However, he
was arrested by national security agency officials.
11.
The source submits that the authorities did not provide Il Joo with an opportunity to
obtain legal defence, nor did they inform his family of his whereabouts following his arrest.
12.
Cheol Yong Kim, the second alleged victim, was 38 years of age at the time of his
detention, is a national of the Democratic People’s Republic of Korea and usually resides in
Ryanggang Province. Prior to his detention, Cheol Yong Kim was an interpreter working
for the Foreign Trade Department of Ryanggang Province.
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13.
The source reports that, while studying in China, Cheol Yong Kim read a magazine
from the Republic of Korea. Officials from the national security agency established that
fact and, in November 2000, arrested Cheol Yong Kim in Ryanggang Province. The source
further states that the national security agency officials who arrested Cheol Yong Kim did
not show an arrest warrant or a copy of any other decision issued by a public authority.
14.
The source asserts that, in the Democratic People’s Republic of Korea, materials
produced in the Republic of Korea, such as television and radio programmes, books and
magazines, are considered to be enemy propaganda and anyone who watches, listens to or
reads such materials is regarded as a political criminal. Cheol Yong Kim was suspected not
only of reading a magazine from the Republic of Korea, but also of meeting with a national
of the Republic of Korea when he was in China, an act considered to constitute a crime of
espionage in the Democratic People’s Republic of Korea.
15.
In this case, it is assumed that the following laws would be applied to Cheol Yong
Kim: article 63 (Espionage) and article 195 (Listening to hostile broadcasting and
collection, keeping and distribution of enemy propaganda) of the Criminal Law. Article 195
states that any person who, without anti-state motives, listens to a broadcast that is hostile
to the Democratic People’s Republic of Korea, or collects, keeps or distributes enemy
propaganda, is to be sentenced to up to two years’ reform through labour. In cases where
the person has committed a grave offence, he or she is to be sentenced to up to five years’
reform through labour. Moreover, Cheol Yong Kim’s conduct would be considered to be a
violation of the “10 principles” that are the foundation of the State’s ideology and that take
precedence over the Criminal Law and the Constitution.
16.
Eun Ho Kim, the third alleged victim of arbitrary detention, was 52 years of age at
the time of his detention, is a national of the Democratic People’s Republic of Korea and
usually resides in South Pyongnam Province. Prior to his detention, Eun Ho Kim was the
head of a section of the Ministry of Foreign Trade.
17.
The source reports that Eun Ho Kim had a private conversation about the
disadvantages of the food-rationing system that was subsequently reported to the national
security agency.
18.
The source reports that, in March 2000, Eun Ho Kim was arrested by officials of the
national security agency. The source further reports that the arresting officials did not show
an arrest warrant or a copy of any other decision issued by a public authority.
19.
The source submits that, in the Democratic People’s Republic of Korea, Eun Ho
Kim’s acts constitute anti-State propaganda and agitation disdainful of the leader or critical
of the regime. It is therefore possible that article 61 (Anti-State propaganda and agitation)
of the Criminal Law was applied. This provision states that any person who, with a view to
harming the State, disseminates propaganda and engages in agitation, is to be sentenced to
up to five years’ reform through labour. In cases where the person commits a grave offence,
he or she is to be sentenced to 5 to 10 years’ reform through labour. Moreover, the act of
criticizing or complaining about the nation, the leader or the Workers’ Party of Korea
constitutes a violation of the “10 principles” that are the foundation of the State’s ideology.
20.
The fourth alleged victim is Kwang Ho Kim. He was 44 years of age at the time of
his detention, is a national of the Democratic People’s Republic of Korea and usually
resides in South Hamgyong Province. Prior to his detention, Kwang Ho Kim worked as an
agent in two departments of the People’s Safety Agency (formerly known as the Social
Safety Agency).
21.
The source reports that Kwang Ho Kim watched a video from the Republic of Korea
and his wife reported that fact to the national security agency.
22.
The source also reports that, in November 1999, Kwang Ho Kim was arrested in
Hamheung, South Hamgyong Province. The source states that the officials from the
national security agency who arrested Kwang Ho Kim did not show any arrest warrant or a
copy of any other decision issued by a public authority.
23.
The source submits that it can be assumed that Kwang Ho Kim’s act was regarded as
contrary to articles 63 (Espionage) and 195 (Listening to hostile broadcasting and
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collection, keeping and distribution of enemy propaganda) of the Criminal Law. It would
also be considered to be a violation of the “10 principles” that are the foundation of the
State’s ideology because it undermines the leader’s dignity and the superiority of socialism
over capitalism. The source adds that, given that Kwang Ho Kim was a public official, his
actions were considered to have undermined the dignity of the authorities and the agency
for which he worked.
24.
Lastly, Seong Min Yoon, the fifth alleged victim, was 40 years of age at the time of
his detention. He is a national of the Democratic People’s Republic of Korea and usually
resides in Pyongyang. Prior to his detention, Seong Min Yoon was deputy-director of the
Buheung Trade Company, a part of the Second Economic Commission of the Democratic
People’s Republic of Korea. In that capacity, Seong Min Yoon worked in the arms-export
sector.
25.
The source reports that Seong Min Yoon told a friend that he sold military
equipment abroad. National security agency officials established that fact and, in September
2001, Seong Min Yoon was arrested. The source further states that the national security
agency officials who arrested Seong Min Yoon did not show any arrest warrant or a copy of
any other decision issued by a public authority.
26.
The source submits that it can be assumed that Seong Min Yoon’s actions were
considered to be a breach of State secrecy, therefore falling under article 63 (Espionage) of
the Criminal Law.
27.
According to the source, the five individuals were sent to Yodok Political Prison
Camp (Camp 15), located in Yodok, South Hamgyong Province, where, according to
reports, they remain in detention to date.
28.
In each of these cases, the source concludes that, given the absence of an arrest
warrant, legal procedures, legal defence and the fact that Il Joo, Cheol Yong Kim, Eun Ho
Kim, Kwang Ho Kim and Seong Min Yoon’s families were not informed of their
whereabouts when they were taken into custody, their arrests and continued detention are
arbitrary and illegal.
Response from the Government
29.
On 14 September 2017, the Working Group transmitted the allegations made by the
source to the Government of the Democratic People’s Republic of Korea under its regular
communications procedure. The Working Group requested the Government to provide, by
13 November 2017, detailed information about the current situation of the five individuals
concerned and any comments on the source’s allegations.
30.
In its response dated 25 September 2017, the Government stated that, from its point
of view, the cases of Il Joo, Cheol Yong Kim, Eun Ho Kim, Kwang Ho Kim and Seong
Min Yoon were irrelevant. The Government further stated that such communications were
part of a “heinous” plot by forces hostile to the Democratic People’s Republic of Korea,
including the Republic of Korea, which used every means available to attack the
Democratic People’s Republic of Korea through the human rights “racket”. Consequently,
the Government categorically rejected the cases mentioned in the communication as
attempts by those hostile forces to link the Democratic People’s Republic of Korea to
human rights violations on the basis of false information and conjecture. The response of
the Government was transmitted to the source for further comments.
Discussion
31.
The Working Group is grateful to the Government for submitting its response in a
timely manner. However, the Working Group considers that the submission of the
Government did not address the substance of the serious allegations made against it. The
Working Group also notes that the Government did not request an extension in order to
provide a substantial rebuttal to the claims.
32.
Consequently, the Government has failed to refute the prima facie credible
allegations made by the source. According to the jurisprudence of the Working Group
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relating to evidentiary issues,1 it is for the Government to provide the necessary proof in
that regard.
33.
The allegations in this case can be summarized as follows: arrests without warrants;
incommunicado detention; detention based on political considerations, including contact
with materials produced abroad or foreign nationals, or on vague offences that are general
and imprecise; and the complete absence of judicial mechanisms for challenging the
legality of detention or for appealing against potentially indefinite detention at a political
prison camp. Although the cases are materially different, the Working Group notes that the
five petitioners are being held in the same camp for similar offences.
34.
There is a wealth of information concerning the allegations made by the source.
First, the Working Group recalls its opinion No. 35/2013,2 in which it was presented with
similar facts and concluded that the detention in question was arbitrary. The Working
Group also recalls the 2014 report of the commission of inquiry on human rights in the
Democratic People’s Republic of Korea, 3 which pointed to the continued existence of
political prison camps where a considerable number of nationals of the Democratic
People’s Republic of Korea suspected of committing major political crimes were held in
dire circumstances.
35.
Finally, it is worth recalling the concerns of the Special Rapporteur on the situation
of human rights in the Democratic People’s Republic of Korea in relation to the widespread
practices of arbitrary detention and enforced disappearances.4 For all those reasons, the
Working Group is of the view that the information from the source has been corroborated
and the credibility of the source has been established.
36.
The source has alleged that the five individuals concerned have been subjected to
arbitrary detention.
37.
Il Joo appears to have been detained for having received financial support from his
sister, who is a citizen of the Republic of Korea. This situation constitutes detention as a
result of the enjoyment of the right to family life, outlined in article 12 of the Universal
Declaration of Human Rights and article 17 of the International Covenant on Civil and
Political Rights. In addition, he is being held because of his status as the sibling of an
alleged criminal, his sister, despite the longstanding and widely accepted legal principle
that one cannot be charged or convicted for a crime committed by another person.
38.
Cheol Yong Kim is being detained for having allegedly read materials prohibited by
the Democratic People’s Republic of Korea and for having potentially interacted with a
national of the Republic of Korea. Both those acts are protected by the freedoms of opinion
and expression, as provided for in article 19 of the Universal Declaration of Human Rights
and article 19 of the Covenant, and cannot lawfully be criminalized.
39.
Eun Ho Kim is being held at Yodok Political Prison Camp simply for having
expressed a disparaging opinion regarding the food rationing system established by his
Government. Again, this conduct constitutes the clear and reasonable exercise of the
freedoms of opinion and expression and cannot be criminalized without violating the
international norms protecting those freedoms.
40.
Similarly, Kwang Ho Kim is being detained for having watched a television
programme produced in the Republic of Korea. This act constitutes enjoyment of the
freedom to access information and its criminalization in this case violates the legal norm
protecting that freedom.
41.
Seong Min Yoon is being detained for having revealed that he worked for the
Government in the arms-export sector. Such a statement does not contain any information
that could be objectively considered as sensitive for reasons of national security.
Furthermore, the Working Group has not received any evidence that such a statement
1 See, for example, A/HRC/19/57, para. 68.
2 See para. 38.
3 See A/HRC/25/63, paras. 59–61.
4 See A/70/362, paras. 8–18.
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jeopardized national security. Seong Min Yoon’s freedom of expression should therefore be
protected under both the Universal Declaration of Human Rights and the Covenant.
42.
In all five of these cases, the concerned individuals are being held on the basis of
unreasonable grounds, in violation of international norms, both customary and
conventional, bearing in mind that the Democratic People’s Republic of Korea is a party to
the Covenant.
43.
Moreover, as highlighted by the source, there is no information available on the
national legal framework justifying the continuation of the prolonged detention of these
five individuals. In the view of the Working Group, this situation is especially alarming
given the exceptional length of the periods of detention in question, namely over a decade,
as well as the probable lack of trial proceedings, in violation of rights regarding due
procedure. The unlawfulness of the detention in each of the cases concerned is aggravated
by the length of the periods of detention involved and the lack of a clear legal framework.
44.
The Working Group thus finds that there was no legal basis justifying the arrest and
detention of these five individuals. In its response, the Government failed to even attempt to
provide the Working Group with any relevant information regarding the legal framework
surrounding these detentions. The Working Group must therefore conclude that the
deprivation of liberty, in the present cases, falls within category I.
45.
Additionally, as detailed above, the arrests and prolonged detention are based on the
exercise, by each of the petitioners, of their basic freedoms of opinion and expression as
protected by the Covenant and the Universal Declaration of Human Rights. Therefore, the
Working Group concludes that the violations give the deprivation of liberty of the five
individuals an arbitrary character, falling within category II.
46.
Finally, and as per its well-established practice, the Working Group will refer the
situation of the five victims to the Special Rapporteur on the situation of human rights in
the Democratic People’s Republic of Korea for appropriate action.
Disposition
47.
In the light of the foregoing, the Working Group renders the following opinion:
The deprivation of liberty of Il Joo, Cheol Yong Kim, Eun Ho Kim, Kwang Ho Kim
and Seong Min Yoon, being in contravention of articles 17 and 19 of the Universal
Declaration of Human Rights and of articles 12 and 19 of the International Covenant
on Civil and Political Rights, is arbitrary and falls within categories I and II.
48.
The Working Group requests the Government of the Democratic People’s Republic
of Korea to take the steps necessary to remedy the situation of Il Joo, Cheol Yong Kim, Eun
Ho Kim, Kwang Ho Kim and Seong Min Yoon 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 International Covenant on Civil and Political Rights.
49.
The Working Group considers that, taking into account all the circumstances of the
case, the appropriate remedy would be to release Il Joo, Cheol Yong Kim, Eun Ho Kim,
Kwang Ho Kim and Seong Min Yoon immediately and accord them an enforceable right to
compensation and other reparations, in accordance with international law.
50.
In accordance with paragraph 33 (a) of its methods of work, the Working Group
refers the situation of these five individuals to the Special Rapporteur on the situation of
human rights in the Democratic People’s Republic of Korea for appropriate action.
Follow-up procedure
51.
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 Il Joo, Cheol Yong Kim, Eun Ho Kim, Kwang Ho Kim and Seong
Min Yoon have been released and, if so, on what date;
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(b)
Whether compensation or other reparations have been made to these five
individuals;
(c)
Whether an investigation has been conducted into the violation of the rights
of the five individuals 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 Democratic People’s Republic of Korea with its
international obligations in line with the present opinion;
(e)
Whether any other action has been taken to implement the present opinion.
52.
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.
53.
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.
54.
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 22 November 2017]
5 See Human Rights Council resolution 33/30, paras. 3 and 7.