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A/HRC/WGAD/2018/54

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)

UNO-Arbeitsgruppe über willkürliche Inhaftierung (WGAD) · 2018-08-24 · en UN

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

A/HRC/WGAD/2018/54

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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.