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.20-01131(E)
Human Rights Council
Working Group on Arbitrary Detention
Opinions adopted by the Working Group on Arbitrary
Detention at its eighty-sixth session, 18–22 November 2019
Opinion No. 57/2019 concerning Lee Hak Su (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 42/22.
2.
In accordance with its methods of work (A/HRC/36/38), on 21 May 2019, the
Working Group transmitted to the Government of the Democratic People’s Republic of
Korea a communication concerning Lee Hak Su. The Government replied to the
communication on 7 June 2019. The Democratic People’s Republic of Korea is a party to
the International Covenant on Civil and Political Rights.
3.
The Working Group regards deprivation of liberty as arbitrary in the following
cases:
(a)
When it is clearly impossible to invoke any legal basis justifying the
deprivation of liberty (as when a person is kept in detention after the completion of his or
her sentence or despite an amnesty law applicable to him or her) (category I);
(b)
When the deprivation of liberty results from the exercise of the rights or
freedoms guaranteed by articles 7, 13, 14, 18, 19, 20 and 21 of the Universal Declaration of
Human Rights and, insofar as States parties are concerned, by articles 12, 18, 19, 21, 22,
25, 26 and 27 of the Covenant (category II);
(c)
When the total or partial non-observance of the international norms relating
to the right to a fair trial, established in the Universal Declaration of Human Rights and in
the relevant international instruments accepted by the States concerned, is of such gravity
as to give the deprivation of liberty an arbitrary character (category III);
(d)
When asylum seekers, immigrants or refugees are subjected to prolonged
administrative custody without the possibility of administrative or judicial review or
remedy (category IV);
* In accordance with paragraph 5 of the Working Group’s methods of work, Seong-Phil Hong did not
participate in the adoption of the present opinion.
United Nations
A/HRC/WGAD/2019/57
General Assembly
Distr.: General
27 January 2020
Original: English
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(e)
When the deprivation of liberty constitutes a violation of international law on
the grounds of discrimination based on birth, national, ethnic or social origin, language,
religion, economic condition, political or other opinion, gender, sexual orientation,
disability, or any other status, that aims towards or can result in ignoring the equality of
human beings (category V).
Submissions
Communication from the source
4.
Lee Hak Su is a 40-year-old national of the Democratic People’s Republic of Korea
who previously resided in Taehongdan County, Ryanggang Province.
5.
The source reports that Mr. Lee was the head of the Foreign Currency Exchange
Department of Kim Il Sung University, within the Social Sciences College. His primary
activity was to import and export goods to China. In this context, he had access to large
amounts of Chinese currency and travelled to China and met with Chinese nationals. The
source states that in the Democratic People’s Republic of Korea, individuals are not
allowed to run businesses; running a business with foreign countries is assumed to be an act
of espionage. As a result, Mr. Lee was under intense scrutiny by the State Security
Department.
6.
According to the information received, Mr. Lee was arrested on 23 January 2009 at
his home by military officials from the Security Bureau. The source alleges that the arrest
was carried out without a judicial warrant being shown, and that Mr. Lee, his family and his
lawyers were not informed of the reasons for his deprivation of liberty. Mr. Lee was
subsequently transferred to the offices of the Security Bureau until September 2009, when
he was sent to Yodok prison camp, where he is believed to remain at present.
7.
According to the source, the charges against Mr. Lee remain unknown, as his trial
was confidential. The source submits that it is likely that Mr. Lee was charged under
several provisions of the Criminal Law, namely: treason against the fatherland (art. 63),
illegal trade of equipment and supplies in foreign currency (art. 107), unfair commercial
activity of institutions or trade and foreign currency earning agency or organization (art.
111) and illegally crossing the border (art. 221).
8.
In addition, the source alleges that military officers from the Security Bureau visited
Mr. Lee’s house in September 2009 and stated that he had been transferred to Yodok prison
camp. According to the source, the officers took Mr. Lee’s personal belongings, including
spoons, chopsticks and dishes for him to use in the prison camp. The military officers came
to Mr. Lee’s house several times after September 2009 and took away the books about
politics that Mr. Lee had received from Kim Il Sung University. The source considers that it
is likely that possession of these books resulted in Mr. Lee being suspected of espionage.
9.
The source states that there is a complete absence of information about Mr. Lee, his
detention, trial and conviction. To date, there has been no official communication from
State officials to Mr. Lee’s family or other representatives. His family has received only
unofficial information that he is detained in Yodok prison camp and that his status is highly
confidential. The source alleges that military officers have not produced evidence
suggesting that Mr. Lee was involved in any form of espionage. The source does not know
if Mr. Lee is still alive.
10.
According to the source, it has not been possible to establish the legal grounds for
Mr. Lee’s detention. The source reports that if anyone takes any action against the
authorities to protect the rights of a political prisoner in the Democratic People’s Republic
of Korea, he or she will also be detained. The source explains that there is no official
avenue to file a complaint on behalf of victims of arbitrary detention. There are no
warrants, trials, appeal processes or other legal procedures for obtaining relief or due
process. If a family member or a friend attempts to search for a detainee using unofficial
means, he or she would immediately be punished, detained and convicted through guilt by
association. While there are lawyers in the Democratic People’s Republic of Korea, their
work is merely formal.
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11.
Furthermore, the source reports that when someone is sent to a prison camp, no
official notification procedure exists. As a result, the unofficial route for seeking
information about a detainee’s location is through an agent of the State Security
Department who will trade basic information about a detainee in return for an expensive
meal and beverage. However, after providing information about a detainee, such agents
often warn the family that if they attempt to find out more, they will be prosecuted. The
source argues that this has rendered it impossible to protect Mr. Lee or to make enquiries
about his detention.
12.
The source notes that the lack of due process when someone is detained in a prison
camp means that there are no terms of imprisonment and no possibility of an appeal, and
detainees are therefore held indefinitely. It is now nearly 11 years since Mr. Lee was
arrested in January 2009, when he was 29 years of age.
Response from the Government
13.
On 21 May 2019, the Working Group transmitted the allegations from the source to
the Government under its regular communication procedure. The Working Group requested
the Government to provide detailed information by 22 July 2019 about the current situation
of Mr. Lee. The Working Group also requested the Government to clarify the legal
provisions justifying his continued detention, and its compatibility with the obligations of
the Democratic People’s Republic of Korea under international human rights law.
Moreover, the Working Group called upon the Government to ensure Mr. Lee’s physical
and mental integrity.
14.
On 7 June 2019, the Government submitted its response. The Government states
that, after having reviewed the communication regarding Mr. Lee, it has concluded that the
case has no relevance to the Democratic People’s Republic of Korea. In addition, the
Government states that, as in previous cases, 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 present case as part of a plot against the
country for political purposes under the guise of upholding human rights. The Government
recommended that the Working Group see through the ulterior motive behind such
communications and take a fair and critical attitude towards the ill-minded attempts by
hostile forces to recklessly link any issues with the Democratic People’s Republic of Korea
on the basis of false information and conjecture. The response from the Government was
transmitted to the source for further comment.
Discussion
15.
The Working Group thanks the source and the Government for their submissions.
16.
In determining whether the deprivation of liberty of Mr. Lee is arbitrary, the
Working Group has regard to the principles established in its jurisprudence to deal with
evidentiary issues. If the source has presented a prima facie case of breach of the
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). In the present case, the Government has chosen not to present
any arguments directly addressing the source’s allegations.
17.
The Working Group regrets the repeated unwillingness of the Government to engage
constructively with it and to provide a substantive response to the Working Group’s
communications under its regular procedure.1 The Working Group makes every attempt to
seek information from governments in relation to each individual case. However, when
governments do not respond or limit their response to a summary dismissal of the
allegations raised, the Working Group has no choice but to examine the source’s
1 See, for example, opinions No. 52/2019, para. 16; No. 54/2018, para. 37; No. 80/2017, para. 30; No.
29/2015, para. 19; No. 36/2013, para. 20; No. 35/2013, para. 21; No. 34/2013, para. 19; and No.
47/2012, para. 10.
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submissions in the light of all the information at its disposal, in accordance with paragraph
16 of its methods of work. Accordingly, the Working Group has taken into account the
findings of relevant United Nations human rights mechanisms in considering the present
case.
18.
In this regard, the Working Group notes that, in his most recent report to the Human
Rights Council, the Special Rapporteur on the situation of human rights in the Democratic
People’s Republic of Korea stated that he continued to receive reports about people who
had been accused of committing crimes against the State being sent to political prison
camps, without any legal or procedural guarantees, in a manner that amounted to enforced
disappearance, with their families not knowing their whereabouts and with little to no
chance of them returning to society. Fear of being sent to a political prison camp was very
real and deeply embedded in the consciousness of ordinary citizens. Although the
Democratic People’s Republic of Korea continued to deny the existence of such camps, the
Government had an obligation under international human rights law to address those
extremely serious allegations (A/HRC/40/66, para. 26).2
19.
In addition, during the most recent universal periodic review of the Democratic
People’s Republic of Korea in May 2019, a series of recommendations were made by States
in relation to the closure of political prison camps, with serious concerns expressed about
the arbitrary deprivation of liberty of people in such camps (A/HRC/42/10, paras. 127.25–
127.26, 127.29, 127.32–127.34 and 127.36–127.41).
20.
Similar findings were made by the commission of inquiry on human rights in the
Democratic People’s Republic of Korea in its report of 2014 (A/HRC/25/63), in which it
noted that persons who were found to have engaged in major political crimes were
“disappeared”, without trial or judicial order, to political prison camps (kwanliso). There,
they were incarcerated and held incommunicado. Their families were not even informed of
their fate if they died (para. 59). The commission of inquiry recommended that the
Democratic People’s Republic of Korea acknowledge the existence of human rights
violations, including the political prison camps; provide international humanitarian
organizations and human rights monitors with immediate access to the camps and their
surviving victims; dismantle all political prison camps and release all political prisoners;
and clarify with full detail the fate of any disappeared persons who could not be readily
traced (para. 89 (b)).
21.
Lastly, the Working Group recalls that there is a wealth of information in its
jurisprudence relating to the allegations made by the source. In recent years, the Working
Group has been presented with similar facts and has concluded that the detention in
question was arbitrary, including in cases involving arrest without a warrant; enforced
disappearance; incommunicado detention; detention based 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 in political
prison camps in the Democratic People’s Republic of Korea.3 Having reviewed all of the
above information, the Working Group is of the view that the information provided by the
source is credible.
22.
In the present case, the source alleges that Mr. Lee was arrested on 23 January 2009
without a warrant and without being informed of the reasons for his arrest. The Government
did not address either of these allegations. In the absence of any rebuttal from the
Government, the Working Group is convinced by the information provided by the source.
23.
The Working Group recalls that, according to article 9 (1) of the Covenant, no one
shall be deprived of liberty except on such grounds and in accordance with such procedure
2 See also A/74/275/Rev.1, paras. 30–37 and 40, on detention and enforced disappearance in political
prison camps, and General Assembly resolution 73/180 on the situation of human rights in the
Democratic People’s Republic of Korea, in which the General Assembly expressed very serious
concern at the existence of an extensive system of political prison camps, and strongly urged the
Government to immediately close them and to release all political prisoners.
3 See, for example, opinions No. 52/2019, No. 54/2018, No. 81/2017, No. 80/2017, No. 32/2015, No.
29/2015, No. 36/2013, No. 35/2013, No. 34/2013, No. 47/2012 and No. 4/2012.
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as are established by law. Moreover, article 9 (2) provides that anyone who is arrested shall
be informed, at the time of arrest, of the reasons for his or her arrest. In the present case,
Mr. Lee was arrested without a warrant, in violation of article 9 (1) of the Covenant. As the
Working Group has stated, in order for a deprivation of liberty to have a legal basis, it is not
sufficient for there to be a law authorizing the arrest. The authorities must invoke that legal
basis and apply it to the circumstances of the case through an arrest warrant.4 Furthermore,
Mr. Lee was not informed of the reasons for his arrest, in violation of article 9 (2) of the
Covenant.
24.
In addition, it appears from the information submitted by the source that Mr. Lee has
been held incommunicado at Yodok prison camp since September 2009. There has been no
official communication from the Government to Mr. Lee’s family or his representatives
about his situation, and it was only revealed that Mr. Lee had been transferred to Yodok
prison camp when military officers from the Security Bureau visited his house in
September 2009. The source reports that his status is “highly confidential”. These factors
suggest that Mr. Lee has had no contact with the outside world, particularly his family and
lawyers. The Government has not provided any alternative explanation.
25.
As the Working Group has consistently argued, holding persons incommunicado
violates their right to challenge the lawfulness of detention before a court under article 9 (4)
of the Covenant.5 In the present case, the situation is made worse by the fact that there
appears to be no means of challenging the legality of detention in the Democratic People’s
Republic of Korea. The Working Group considers that judicial oversight of the deprivation
of liberty is a fundamental safeguard of personal liberty6 and is essential in ensuring that
detention has a legal basis. Given that there is no indication that Mr. Lee was able to
challenge his detention, his right to an effective remedy under article 8 of the Universal
Declaration of Human Rights and article 2 (3) of the Covenant was violated. Moreover,
being held in incommunicado detention placed Mr. Lee outside the protection of the law, in
violation of his right to be recognized as a person before the law under article 6 of the
Universal Declaration of Human Rights and article 16 of the Covenant.
26.
According to the source, Mr. Lee was sent to Yodok prison camp in September
2009, but there is no information as to whether any charges were brought against him,
whether there were any trial proceedings (the source reports that he had a “confidential
trial”), whether he has been convicted of any offence and if so, the sentence imposed, or
indeed whether he is still alive. In summary, there is no information that would legitimize
Mr. Lee’s deprivation of liberty for nearly 11 years, in denial of his rights under articles 9
and 14 of the Covenant.
27.
The Working Group concludes that the Government did not take the necessary steps
to establish a legal basis for Mr. Lee’s arrest, and has not disclosed to the Working Group
any information regarding the legal framework justifying his detention at Yodok prison
camp. As a result, Mr. Lee’s deprivation of liberty is arbitrary under category I.
28.
The Working Group is extremely concerned that the Government has provided no
information about Mr. Lee, particularly as to his location and current status. The Working
Group has decided to refer the present case to the Working Group on Enforced or
Involuntary Disappearances. The Working Group will also refer the present case to the
Special Rapporteur on the situation of human rights in the Democratic People’s Republic of
Korea.
29.
The Working Group 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 duty to comply with international human rights that are
4 See, for example, opinions No. 52/2019, No. 9/2019 and No. 46/2018.
5 See, for example, opinions No. 52/2019, No. 79/2017 and No. 45/2017.
6 See the United Nations Basic Principles and Guidelines on Remedies and Procedures on the Right of
Anyone Deprived of Their Liberty to Bring Proceedings Before a Court (A/HRC/30/37, annex),
principle 3.
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peremptory and erga omnes norms, such as the prohibition of arbitrary detention, rests with
all bodies and representatives of the State, and with all individuals.7
30.
The Working Group would welcome the opportunity to work constructively with the
Government to address its concerns surrounding the arbitrary deprivation of liberty by
conducting a country visit to the Democratic People’s Republic of Korea. The Working
Group awaits a positive response to its previous request of 17 April 2015 to undertake a
country visit.
Disposition
31.
In the light of the foregoing, the Working Group renders the following opinion:
The deprivation of liberty of Lee Hak Su, being in contravention of articles 3, 6, 8,
9, 10 and 11 of the Universal Declaration of Human Rights and articles 2 (3), 9, 14
and 16 of the International Covenant on Civil and Political Rights, is arbitrary and
falls within category I.
32.
The Working Group requests the Government of the Democratic People’s Republic
of Korea to take the steps necessary to remedy the situation of Mr. 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 the International Covenant on Civil and
Political Rights.
33.
The Working Group considers that, taking into account all the circumstances of the
case, the appropriate remedy would be to release Mr. Lee immediately and accord him an
enforceable right to compensation and other reparations, in accordance with international
law.
34.
The Working Group urges the Government to ensure a full and independent
investigation of the circumstances surrounding the arbitrary deprivation of liberty of Mr.
Lee and to take appropriate measures against those responsible for the violation of his
rights.
35.
In accordance with paragraph 33 (a) of its methods of work, the Working Group
refers the present case to the Working Group on Enforced or Involuntary Disappearances
and the Special Rapporteur on the situation of human rights in the Democratic People’s
Republic of Korea for appropriate action.
36.
The Working Group requests the Government to disseminate the present opinion
through all available means and as widely as possible.
Follow-up procedure
37.
In accordance with paragraph 20 of its methods of work, the Working Group
requests the source and the Government to provide it with information on action taken in
follow-up to the recommendations made in the present opinion, including:
(a)
Whether Mr. Lee has been released and, if so, on what date;
(b)
Whether compensation or other reparations have been made to Mr. Lee;
(c)
Whether an investigation has been conducted into the violation of Mr. Lee’s
rights and, if so, the outcome of the investigation;
(d)
Whether any legislative amendments or changes in practice have been made
to harmonize the laws and practices of the 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.
38.
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
7 See opinion No. 54/2018, para. 57.
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whether further technical assistance is required, for example through a visit by the Working
Group.
39.
The Working Group requests the source and the Government 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.
40.
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.8
[Adopted on 18 November 2019]
8 See Human Rights Council resolution 42/22, paras. 3 and 7.