Opinion; Subjects: CHINA, 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.18-17642(E)
Human Rights Council
Working Group on Arbitrary Detention
Opinions adopted by the Working Group on Arbitrary
Detention at its eighty-second session, 20–24 August 2018
Opinion No. 54/2018 concerning Kyeong-Hee Kang, Seung Cheol Kim,
Keum Nam Lee and Myung-Ju Lee (China and the 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. In its resolution 1997/50, the Commission extended and
clarified the mandate of the Working Group. Pursuant to General Assembly resolution
60/251 and Human Rights Council decision 1/102, the Council assumed the mandate of the
Commission. The Council most recently extended the mandate of the Working Group for a
three-year period in its resolution 33/30.
2.
In accordance with its methods of work (A/HRC/36/38), on 25 January 2018 the
Working Group transmitted to the Governments of China and the Democratic People’s
Republic of Korea a communication concerning Kyeong-Hee Kang, Seung Cheol Kim,
Keum Nam Lee and Myung-Ju Lee. The Government of China has not replied to the
communication, while the Government of the Democratic People’s Republic of Korea
replied to it on 13 February 2018. The Democratic People’s Republic of Korea is a party to
the International Covenant on Civil and Political Rights, while China is not.
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 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/2018/54
General Assembly
Distr.: General
23 October 2018
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.
Kyeong-Hee Kang, born on 7 June 1964, is a national of the Democratic People’s
Republic of Korea. She resided in the city of Cheong-Jin, in the Democratic People’s
Republic of Korea, and ran a store in Jangmadang.
5.
The source indicates that, on 17 May 2008, Ms. Kang escaped the Democratic
People’s Republic of Korea and arrived in the city of Yanji in China. On 23 August 2008,
Ms. Kang moved to the city of Shenyang. Two days later, on 25 August 2008, Ms. Kang
went to the Shenyang bus station. When Ms. Kang boarded the bus, together with her
teenage son and other defectors, the Chinese security police detained them. They were then
moved to the city of Yanji in China. From there they were repatriated to the Democratic
People’s Republic of Korea.
6.
According to the source, the authorities did not present an arrest warrant. The source
explains that the Chinese police are not required to have a warrant to arrest a defector from
the Democratic People’s Republic of Korea. Allegedly, when the police raid a place that is
believed to be a shelter for defectors from the Democratic People’s Republic of Korea, no
legal process is followed. Having apprehended defectors, the Chinese police authorities
transfer them to the custody of the National Security Agency of the Democratic People’s
Republic of Korea.
7.
The source also indicates that, after her repatriation to the Democratic People’s
Republic of Korea, Ms. Kang was imprisoned in Yodok political prison camp. Her son was
sentenced to 15 years’ imprisonment in Gaecheon re-education camp.
8.
The source states that an officer from the National Security Agency was quoted as
saying that Ms. Kang could not be saved and would never be allowed to leave the prison
camp.
9.
The source adds that 2008 was during the period when the alleged crime of national
treason was treated most severely by the Government of the Democratic People’s Republic
of Korea.
10.
Seung Cheol Kim, 35 years of age at the time of his detention, is a national of the
Democratic People’s Republic of Korea. He resided in Musan County, North Hamkyung
Province, in the Democratic People’s Republic of Korea. Prior to his detention, Mr. Kim
worked at the Musan Station.
11.
The source indicates that Mr. Kim defected from the Democratic People’s Republic
of Korea to the city of Shenyang in China. In July 2001, he was waiting near the border
between China and Mongolia with 12 other defectors from the Democratic People’s
Republic of Korea in order to enter Mongolia. At that moment, he was arrested by the
national police and repatriated to the Democratic People’s Republic of Korea. The source
adds that the National Security Agency of the Democratic People’s Republic of Korea
manages the cases of repatriated defectors.
12.
The source specifies that Mr. Kim was arrested without any warrant being presented,
legal procedure being followed or opportunity being afforded for legal defence. The source
argues that these elements render his detention arbitrary.
13.
The source explains that, if a person defects from the Democratic People’s Republic
of Korea, especially with the goal of reaching the Republic of Korea, he or she is regarded
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as a political criminal and is punished through detention. Mr. Kim could not deny his
attempt to defect to the Republic of Korea, since he was arrested at the border between
China and Mongolia, which is a frequently used route for defectors from the Democratic
People’s Republic of Korea who seek asylum in the Republic of Korea.
14.
According to the source, Mr. Kim was sent to Yoduk political prison camp, where
he remained at the time of submission of the communication.
15.
Keum Nam Lee, 35 years of age at the time of her detention, is a national of the
Democratic People’s Republic of Korea. She resided in Namcheon, South Hamkyung
Province, in the Democratic People’s Republic of Korea. Ms. Keum Nam Lee was a
housewife.
16.
The source indicates that, in December 1999, Ms. Keum Nam Lee defected from the
Democratic People’s Republic of Korea to China. Reportedly, she intended to seek asylum
in the Republic of Korea after crossing the border between China and Mongolia. However,
Ms. Keum Nam Lee, together with other defectors from the Democratic People’s Republic
of Korea who were with her at the time, was arrested by the national police and repatriated
to the Democratic People’s Republic of Korea.
17.
Since Ms. Keum Nam Lee planned to go to the Republic of Korea, she was
considered to be a political criminal. She was therefore liable to receive punishment in the
form of detention and surveillance.
18.
The source adds that Ms. Keum Nam Lee could not deny her attempt to defect to the
Republic of Korea since she was arrested at the border between the People’s Republic of
China and Mongolia, which is a frequently used route for defectors from the Democratic
People’s Republic of Korea who seek asylum in the Republic of Korea.
19.
Reportedly, following the instruction of the National Security Agency of the
Democratic People’s Republic of Korea, Ms. Keum Nam Lee was sent to Yoduk political
prison camp, where she remained at the time of submission of the communication.
20.
The source argues that Ms. Lee was arrested without any warrant being presented,
legal procedure being followed or opportunity being afforded for legal defence. The source
states that these elements render Ms. Lee’s detention arbitrary.
21.
Myung-Ju Lee, born on 21 July 1973, is a national of the Democratic People’s
Republic of Korea. She resided in the city of Hoeryong, North Hamgyong Province, in the
Democratic People’s Republic of Korea.
22.
According to the source, Ms. Myung-Ju Lee was a clothes merchant at a market
located in the city of Hoeryong. Reportedly, Ms. Myung-Ju Lee wanted to buy clothes from
China in order to sell them in the Democratic People’s Republic of Korea at a price higher
than that of the locally produced garments. She therefore crossed the border between China
and the Democratic People’s Republic of Korea. Ms. Myung-Ju Lee had planned to return
to the Democratic People’s Republic of Korea after buying clothes. While staying at
temporary accommodation near the province of Heilongjiang, Ms. Myung-Ju Lee found a
copy of the Bible and read it.
23.
The source indicates that neighbors reported the presence of Ms. Myung-Ju Lee to
the authorities. In December 2004, the national police went to the temporary
accommodation to apprehend Ms. Myung-Ju Lee. During the arrest, the police found the
Bible.
24.
The source states that authorities sent Ms. Myung-Ju Lee from China to the Onsung
Region in the Democratic People’s Republic of Korea. On 8 March 2005, Ms. Myung-Ju
Lee was reportedly transferred, under the custody of the National Security Agency, to the
city of Hoeryong.
25.
The source asserts that the authorities would have referred to “The 10 principles for
the establishment of the one ideology system” when arresting Ms. Myung-Ju Lee.
Defecting from the Democratic People’s Republic of Korea and reading the Bible are
considered to harm the dignity of Kim Il-sung and Kim Jong-il and to violate the above-
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mentioned principles. Such infringements lead to the detention of defectors in political
prison camps.
26.
Reportedly, the authorities have informed Ms. Myung-Ju Lee’s family of her
detention and requested them to bring her food. However, her family members have not
been allowed to visit her.
27.
The source indicates that, on 25 May 2005, Ms. Myung-Ju Lee was briefly released
before being rearrested one week later, in June 2005.
28.
The source reports that, during the investigation process conducted by the National
Security Agency, Ms. Myung-Ju Lee was held in solitary confinement in the dark. She was
therefore not able to distinguish between night and day. The authorities allegedly seriously
abused her during the investigation. Reportedly, officers would beat Ms. Myung-Ju Lee and
force her to periodically sit and stand up. Whenever she had to answer questions, Ms.
Myung-Ju Lee was forced to kneel. The source attests that, when Ms. Myung-Ju Lee was
temporarily released from detention, she was only able to crawl. The source also points to
evidence that Ms. Myung-Ju Lee was severely abused and has suffered sustained injuries as
a result. Furthermore, the source alleges that, during the investigation process, officers from
the National Security Agency made sure that Ms. Lee did not miss meals and abused her if
she did not eat –— the reason for this being that, had Ms. Lee died during the investigation
process, the officer in charge would have been punished.
29.
In September 2015, Ms. Myung-Ju Lee was sent to political prison camp No. 16 in
Hwasung, where she remained at the time of submission of the communication. The source
adds that Ms. Lee was sent to a political prison camp rather than to an ordinary prison
because she confessed to the authorities that she had read the Bible, which is strictly
forbidden in the Democratic People’s Republic of Korea.
30.
The source notes that, while it is not known whether the police presented an arrest
warrant or other decision by a public authority at the time of the arrest in the present case,
according to numerous witness accounts, such a practice does not exist in the Democratic
People’s Republic of Korea.
31.
In all four cases, the source notes that the agreements and protocols that may have
been used by the Chinese security police as the basis for detaining the above-mentioned
citizens of the Democratic People’s Republic of Korea and then repatriating them include:
the Mutual Cooperation Agreement for the Extradition of Defectors and Criminals
(Democratic People’s Republic of Korea — People’s Republic of China Agreement on
Repatriation of Illegal Entrants) (1966); the Mutual Cooperation Protocol for the Work of
Maintaining National Security and Social Order and the Border Areas (1986); the Bilateral
Agreement on Mutual Cooperation for the Maintenance of State Safety and Social Order
(1998); and the Democratic People’s Republic of Korea — People’s Republic of China
Civil and Criminal Law Cooperation Treaty (2003).
32.
In addition, the source states that the authorities of the Democratic People’s
Republic of Korea may have invoked article 62 of its Criminal Law (“Treason against the
Fatherland”), which stipulates that: “A citizen of the Republic who commits treason against
the Fatherland by defection, surrender, betrayal, or disclosure of secrets shall be punished
by reform through labour for more than five years. In cases where the person commits a
grave offence, he or she shall be punished by reform through labour for more than five
years and less than ten years.” Furthermore, the source states that authorities would have
referred to “The 10 principles for the establishment of the one ideology system”.
33.
The source notes that there is no official mechanism to file a complaint with the
Government of the Democratic People’s Republic of Korea on behalf of victims of arbitrary
detention because there are no warrants, trials, appeal processes or legal procedures to seek
relief. Furthermore, it is alleged that, if a family member or a friend of an arbitrarily held
detainee attempts to search for or rescue the detainee through unofficial means, he or she
would immediately be arrested and convicted of guilt by association. The source argues that
this makes it impossible for family members or friends of arbitrarily held detainees to
employ even unofficial means to search for them.
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Response from the Government of the Democratic People’s Republic of Korea
34.
On 25 January 2018, the Working Group transmitted the allegations from the source
to the Governments of China and the Democratic People’s Republic of Korea under its
regular communication procedure. The Working Group requested both Governments to
provide, by 26 March 2018, detailed information about the current situation of Ms. Kang,
Mr. Kim, Ms. Keum Nam Lee and Ms. Myung-Ju Lee. The Working Group also requested
the Governments to clarify the legal provisions justifying their detentions, and the
compatibility of their detention with the States’ obligations under international human
rights law. The Working Group called upon the Governments to ensure the physical and
mental integrity of the above-mentioned individuals.
35.
The Working Group regrets that it did not receive a response from the Government
of China, nor did the Government request an extension of the time limit for its reply, as
provided for in the Working Group’s methods of work.
36.
On 13 February 2018, the Government of the Democratic People’s Republic of
Korea submitted its response. In the response, the Government concludes that the cases of
Ms. Kang, Mr. Kim, Ms. Keum Nam Lee and Ms. Myung-Ju Lee have no relevance for the
Democratic People’s Republic of Korea.
37.
The Government reiterates that such communications represent part of a
stereotypical political plot against the Democratic People’s Republic of Korea by hostile
forces, which resort to “human rights” rhetoric against the country. Therefore, the
Government once again categorically rejects the above-mentioned cases as being part of a
plot against the Democratic People’s Republic of Korea launched for political purposes
under the guise of upholding human rights.
Further information from the source
38.
On 14 February 2018, the response from the Government of the Democratic
People’s Republic of Korea was transmitted to the source for possible further comment.
The source did not provide an additional response.
Discussion
39.
The Working Group thanks the source and the Government of the Democratic
People’s Republic of Korea for their submissions.
40.
Notwithstanding the absence of a response by the Government of China, the
Working Group has decided to render the present opinion, in conformity with paragraph 15
of its methods of work.
41.
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
international requirements constituting arbitrary detention, the burden of proof should be
understood to rest upon the Government if it wishes to refute the allegations
(A/HRC/19/57, para. 68).
42.
In the present case, the Government of the People’s Republic of China has chosen
not to challenge the prima facie credible allegations made by the source. The Government
of the Democratic People’s Republic of Korea in its response has made general allegations
questioning the intentions of the source but has not provided any relevant information on
the factual and legal aspects surrounding the detention of four of its nationals who were
repatriated from China, and whether those detentions were made in compliance with
applicable international norms. In the absence of a rebuttal from the respondent States, the
Working Group must limit itself to assessing the credibility and reliability of the source
solely on the basis of the information at its disposal. In this regard, the Working Group
notes that the source’s account is consistent and presents no contradictions.
43.
The Working Group recalls that the prohibition of arbitrary detention is absolute,
meaning that it is a non-derogable norm of customary international law or jus cogens.
Arbitrary detention can never be justified, including for any reason related to national
emergency, maintaining public security or the large movements of immigrants or asylum
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seekers.1 That implies that the detention of any individual should be justified and provided
with legal basis.
44.
This case involves two States and the Working Group will discuss the issues related
to each of them separately.
Allegations against China
45.
In the present case, the Working Group is convinced by the information of the
source, which was not rebutted by the authorities of China, that no legal basis was invoked
by the Government to justify the deprivation of liberty of Ms. Kang, Mr. Kim, Ms. Keum
Nam Lee and Ms. Myung-Ju Lee. The Working Group therefore concludes that their
detentions are arbitrary in violation of articles 9 and 10 of the Universal Declaration of
Human Rights and fall within category I.
46.
With regard to the detentions carried out by the authorities of China, the Working
Group is convinced that Ms. Kang, Mr. Kim, Ms. Keum Nam Lee and Ms. Myung-Ju Lee
were detained by them and then transferred under the custody of the security forces of the
Democratic People’s Republic of Korea.
47.
In all four cases, the authorities of China have neither shown an arrest warrant, nor
granted the detained individuals access to a lawyer. Furthermore, the four detainees were
not subject to any legal repatriation process.
48.
The Working Group did not receive any information that could serve as evidence
that the authorities of China informed, at the moment of the arrest, Ms. Kang, Mr. Kim, Ms.
Keum Nam Lee and Ms. Myung-Ju Lee of the reasons for their deprivation of liberty.
Furthermore, the authorities have neither shown a judicial order, nor guaranteed the rights
of the above-mentioned individuals to have access to a lawyer. From the information
received by the Working Group, it appears that the four detainees could not bring
procedures before a court in order that it may decide without delay on the lawfulness of
their detention. For the Working Group, these are violations by China of articles 9, 10 and
11 of the Universal Declaration of Human Rights and are of such gravity that they give the
deprivation of liberty an arbitrary character in conformity with category III.
49.
The Special Rapporteur on the situation of human rights in the Democratic People’s
Republic of Korea has stated that the pattern of forced repatriation of citizens of the
Democratic People’s Republic of Korea, including children, from China is continuing. The
authorities of China regard these nationals as economic migrants, which makes them
ineligible for any protection and exposes them to the risk of torture once repatriated. The
Special Rapporteur has urged the Government of China to abide by the principle of non-
refoulement and to seek avenues for dialogue on this issue with the Special Rapporteur and
the United Nations system as a whole, with a view to granting access to the field and to
providing escapees with the protection to which they are entitled under international as well
as Chinese law.2
50.
The Working Group notes with concern the consistent pattern of systematic return
by China of nationals of the Democratic People’s Republic of Korea arrested at the border
(CAT/C/CHN/CO/5, para. 46). In this regard, the Working Group considers that the
detention of Ms. Kang, Mr. Kim, Ms. Keum Nam Lee and Ms. Myung-Ju Lee due to their
nationality is discriminatory in nature and therefore their arrest and detention fall within
category V.
Allegations against the Democratic People’s Republic of Korea
51.
The Working Group was made aware that, after the repatriation of Ms. Kang, Mr.
Kim, Ms. Keum Nam Lee and Ms. Myung-Ju Lee by China, the authorities of the
Democratic People’s Republic of Korea imprisoned the above-mentioned individuals in
different camps: Ms. Kang (Gaecheon re-education camp); Mr. Kim and Ms. Keum Nam
1 Revised deliberation No. 5, para. 8.
2 A/HRC/37/69, para. 23.
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Lee (camp No. 15, Yoduk political prison camp) and Ms. Myung-Ju Lee (camp No. 16 in
Hwasung).
52.
The Working Group expresses its concern about the detention of these four
individuals in camps for political prisoners. Moreover, the Special Rapporteur on the
situation of human rights in the Democratic People’s Republic of Korea has recently
received testimonies pointing to the widespread fear among the population of political
prison camps. The apprehension is so fierce that people assume that anyone who disappears
must be detained in one of the camps that are said to be currently operational.3 There is,
however, insufficient information on the situation of detainees in those prisons, but the
Commission of Inquiry on human rights in the Democratic People’s Republic of Korea, in
its 2014 report, estimated their number at between 80,000 and 120,000.4
53.
In the present case, the Working Group was convinced by the information from the
source, which was not rebutted by the authorities of the Democratic People’s Republic of
Korea, that no legal basis was invoked by the Government to justify the deprivation of
liberty of Ms. Kang, Mr. Kim, Ms. Keum Nam Lee and Ms. Myung-Ju Lee. The Working
Group therefore concludes that their detention by the Democratic People’s Republic of
Korea is arbitrary in violation of articles 9 and 10 of the Universal Declaration of Human
Rights and of article 9 of the Covenant, and falls within category I.
54.
The Working Group notes that the Democratic People’s Republic of Korea has a
systematic policy of detaining anyone that leaves the country and considering them as a
defector. Also, the Working Group is aware that the National Security Agency of the
Democratic People’s Republic of Korea manages the cases of repatriated defectors.
Defecting from the Democratic People’s Republic of Korea is considered to harm the
dignity of Kim Il-sung and Kim Jong-il and to violate the Party’s “10 principles for the
establishment of the one ideology system”, and leads to detention in political prison camps.
In the present case, the Working Group considers that the detention of Ms. Kang, Mr. Kim,
Ms. Keum Nam Lee and Ms. Myung-Ju Lee by the authorities of the Democratic People’s
Republic of Korea results from their exercising their right to leave their own country, which
is enshrined in article 13 of the Universal Declaration of Human Rights, as well as in article
12 of the Covenant. Therefore, the Working Group deems the detention of the four
individuals as arbitrary in accordance with category II.
55.
Furthermore, the Working Group is aware that reading the Bible in the Democratic
People’s Republic of Korea is a violation of the “The 10 principles for the establishment of
the one ideology system” and leads to the detention of individuals in camps for political
prisoners. In the present case, the Working Group is convinced that the detention of Ms.
Myung-Ju Lee was also the result of her exercising the right to freedom of conscience and
religion, as she confessed to the authorities of the Democratic People’s Republic of Korea
that she had read the Bible. For the Working Group, such detention is arbitrary as it violates
article 13 of the Universal Declaration of Human Rights and article 18 of the Covenant. It
therefore falls within category II.
56.
In the present case, the Democratic People’s Republic of Korea did not provide
information to prove that the authorities had respected the right to a fair trial of Ms. Kang,
Mr. Kim, Ms. Keum Nam Lee and Ms. Myung-Ju Lee.5 Therefore, the Working Group
considers that the non-observance of the international norms relating to the right to a fair
trial in these cases is of such gravity as to give the deprivation of liberty an arbitrary
character. Thus, the deprivation of liberty of Ms. Kang, Mr. Kim, Ms. Keum Nam Lee and
Ms. Myung-Ju Lee falls within category III.
57.
The Working Group further considers that, under certain circumstances, widespread
or systematic imprisonment or other severe deprivation of liberty in violation of
fundamental rules of international law may constitute crimes against humanity. The present
case makes it necessary to reaffirm this. The duties to comply with international human
3 See www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=23352&LangID=E.
4 A/HRC/25/63, para. 61.
5 Opinions No. 32/2015, No. 35/2013 and No. 36/2013.
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rights that are peremptory and erga omnes norms, such as the prohibition of arbitrary
detention, rest with all bodies and representatives of the State, and with all individuals.
58.
The Working Group would also like to encourage the Government of the
Democratic People’s Republic of Korea to comply with the recommendations of the
Special Rapporteur on the situation of human rights in the Democratic People’s Republic of
Korea, in particular to refrain from using any form of punishment or retaliation against
people who are forcibly repatriated.6 It refers the present case to the Special Rapporteur on
the situation of human rights in the Democratic People’s Republic of Korea for
consideration and possible action.
59.
The Working Group received allegations by the source that, during an investigation
by the National Security Agency of the Democratic People’s Republic of Korea, Ms.
Myun-Ju Lee was subjected to acts of torture and other cruel, inhuman or degrading
treatment or punishment, including sexual abuse, and therefore it refers this case to the
Special Rapporteur on the situation of human rights in the Democratic People’s Republic of
Korea and the Special Rapporteur on torture and other cruel, inhuman or degrading
treatment or punishment for consideration and possible action.
60.
Finally, the Working Group would welcome the opportunity to work constructively
with the Government of the Democratic People’s Republic of Korea to address the Working
Group’s concerns in relation to arbitrary detention in the country by undertaking a country
visit.
Disposition
61.
In the light of the foregoing, the Working Group renders the following opinion:
The deprivation of liberty by the authorities of China of Kyeong-Hee Kang,
Seung Cheol Kim, Keum Nam Lee and Myung-Ju Lee, being in contravention of
articles 9, 10 and 11 of the Universal Declaration of Human Rights, is arbitrary and
falls within categories I, III and V.
The deprivation of liberty by the authorities of the Democratic People’s
Republic of Korea of Kyeong-Hee Kang, Seung Cheol Kim, Keum Nam Lee and
Myung-Ju Lee, being in contravention of articles 9, 10, 11 and 13 of the Universal
Declaration of Human Rights and articles 9, 14 and 18 of the International Covenant
on Civil and Political Rights, is arbitrary and falls within categories I, II and III.
62.
The Working Group requests the Governments of China and the Democratic
People’s Republic of Korea to take the steps necessary to remedy the situation of Ms. Kang,
Mr. Kim, Ms. Keum Nam Lee and Ms. Myung-Ju Lee without delay and bring it into
conformity with the relevant international norms, including those set out in the Universal
Declaration of Human Rights and, in the case of the Democratic People’s Republic of
Korea, the International Covenant on Civil and Political Rights.
63.
The Working Group considers that, taking into account all the circumstances of the
case, the appropriate remedy would be to release Ms. Kang, Mr. Kim, Ms. Keum Nam Lee
and Ms. Myung-Ju Lee immediately and accord them an enforceable right to compensation
and other reparations, in accordance with international law.
64.
The Working Group urges the Governments to ensure a full and independent
investigation of the circumstances surrounding the arbitrary deprivation of liberty of Ms.
Kang, Mr. Kim, Ms. Keum Nam Lee and Ms. Myung-Ju Lee and to take appropriate
measures against those responsible for the violation of their rights.
65.
In accordance with paragraph 33 (a) of its methods of work, the Working Group
refers the present case to the Special Rapporteur on the situation of human rights in the
Democratic People’s Republic of Korea and the Special Rapporteur on torture and other
cruel, inhuman or degrading treatment or punishment, for appropriate action.
6 A/72/394, para. 47 (a).
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66.
The Working Group requests the Governments to disseminate the present opinion
through all available means and as widely as possible.
Follow-up procedure
67.
In accordance with paragraph 20 of its methods of work, the Working Group
requests the source and the Governments to provide it with information on action taken in
follow-up to the recommendations made in the present opinion, including:
(a)
Whether Ms. Kang, Mr. Kim, Ms. Keum Nam Lee and Ms. Myung-Ju Lee
have been released and, if so, on what date;
(b)
Whether compensation or other reparations have been made to Ms. Kang,
Mr. Kim, Ms. Keum Nam Lee and Ms. Myung-Ju Lee;
(c)
Whether an investigation has been conducted into the violation of the rights
of Ms. Kang, Mr. Kim, Ms. Keum Nam Lee and Ms. Myung-Ju Lee 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 China or the Democratic People’s Republic of Korea
with their international obligations in line with the present opinion;
(e)
Whether any other action has been taken to implement the present opinion.
68.
The Governments are invited to inform the Working Group of any difficulties they
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.
69.
The Working Group requests the source and the Governments to provide the above-
mentioned information within six months of the date of 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.
70.
The Working Group recalls that the Human Rights Council has encouraged all
States to cooperate with the Working Group and has 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.7
[Adopted on 23 August 2018]
7 See Human Rights Council resolution 33/30, paras. 3 and 7.