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A/HRC/WGAD/2017/80

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)

UNO-Arbeitsgruppe über willkürliche Inhaftierung (WGAD) · 2017-11-24 · en UN

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

Volltext (verifizierbarer Originaltext)

GE.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.