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.24-16277 (E) 200924 230924
Human Rights Council
Working Group on Arbitrary Detention
Opinions adopted by the Working Group on Arbitrary
Detention at its 100th session, 26–30 August 2024
Opinion No. 37/2024 concerning Kim Cheol-Ok (China and 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 51/8.
2.
In accordance with its methods of work, 1 on 10 May 2024 the Working Group
transmitted to the Governments of China and the Democratic People’s Republic of Korea a
communication concerning Kim Cheol-Ok. The Government of China submitted a late reply
on 11 July 2024. The Government of the Democratic People’s Republic of Korea also replied
late, on 12 August 2024. 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);
(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
1 A/HRC/36/38.
United Nations
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General Assembly
Distr.: General
24 September 2024
Original: English
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or any other status, that aims towards or can result in ignoring the equality of human beings
(category V).
1.
Submissions
(a)
Communication from the source
4.
Kim Cheol-Ok, born on 18 August 1983, is a citizen of the Democratic People’s
Republic of Korea.
(i)
Context
5.
According to the information provided by the source, Ms. Kim grew up in Musan
County, North Hamgyo’ng Province, in the Democratic People’s Republic of Korea. It is
reported that in the 1990s, because of food shortages, she was trafficked to China and, in
1998, at the age of 14, she was married to a Chinese man. In 1999, she gave birth to a
daughter.
6.
While Ms. Kim’s child was given Chinese nationality, Ms. Kim was never given any
legal status in China despite having lived there with her family for over two decades.
Furthermore, Ms. Kim was reportedly only able to speak Chinese, as she had lost proficiency
in the Korean language owing to her lack of communication in Korean since 1998.
7.
As an illegal economic migrant from the Democratic People’s Republic of Korea,
Ms. Kim allegedly had to make annual payments of up to 2,000 yuan to the police authorities
in Yushu city. She was also regularly summoned and questioned by the authorities, in order
to prevent her from fleeing to the Republic of Korea. During these summons, Ms. Kim was
reportedly told to stay home, away from the public. As a result, she would have to suspend
her part-time jobs in restaurants or farms for several weeks before resuming her work.
8.
Ms. Kim has lived with her family in Xinzhuangzhen, Yushu city, Jilin Province, for
25 years.
(ii)
Arrest, detention and forcible repatriation of Ms. Kim
9.
Ms. Kim was arrested on 5 April 2023, at 9 a.m., in Dehui, Changchun, Jilin Province,
on the Changyu Expressway, a section of the G1 Beijing-Harbin Expressway (commonly
known as the Jingha expressway). She was reportedly arrested with two other citizens of the
Democratic People’s Republic of Korea and their Chinese driver.
10.
Ms. Kim was reportedly arrested by agents from the public security bureau of
Changbai County, China, who did not show a warrant or any other decision by a public
authority at the time of the arrest.
11.
Ms. Kim’s family was not officially informed of her arrest, or of her subsequent
detention at the Baishan city detention centre in Hunjiang District, Jilin Province. The family
learned of the arrest and detention only from eyewitnesses, on 16 April 2023.
12.
Reportedly, no reasons for the arrest were given to Ms. Kim. According to the source,
it appears that her arrest was a result of an operation organized to arrest perpetrators of
traffickers in persons and to apprehend women from the Democratic People’s Republic of
Korea who wished to travel to the Republic of Korea or other third countries. Ms. Kim was
reportedly attempting to reunite with a family member who had settled in a third State.
13.
After her arrest on 5 April 2023, Ms. Kim was taken to and detained at the Baishan
city detention centre. The authorities reportedly failed to bring Ms. Kim before a judge
promptly (within 48 hours of her arrest).
14.
On 17 April 2023, members of Ms. Kim’s family visited the Baishan city detention
centre. The officials of the facility confirmed that Ms. Kim, along with two other individuals
apprehended in the same context, was in their custody. The source notes that Ms. Kim was
therefore forcibly disappeared by the authorities between 5 April 2023 and 17 April 2023.
15.
The authorities further explained that the family members were not allowed to visit
Ms. Kim because of the ongoing investigation. Instead, the family was shown the
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closed-circuit television (CCTV) footage of Ms. Kim in her detention cell with several other
inmates, still in the clothes that she had been wearing when she left home on 5 April 2023.
The conditions in the cell on the footage seemed adequate. Ms. Kim’s family had brought
clothes and money for Ms. Kim and requested the authorities to give them to her.
16.
On 20 April 2023 and 20 June 2023, Ms. Kim’s family again went to the Baishan city
detention centre. However, they were turned away at the entrance gate on both occasions.
The family left clothes and money with the officials at the gate, and asked for them to be
delivered to Ms. Kim.
17.
At approximately 7 p.m. on 9 October 2023, Ms. Kim’s family was informed that she
would be returned to the Democratic People’s Republic of Korea through Nanpingzhen,
Helong, Yanbian, Jilin Province, China. The source notes that Ms. Kim continued to be
deprived of her liberty, and held incommunicado, until her deportation on 9 October 2023.
18.
On the night of 9 October, the Chinese authorities reportedly repatriated over
500 detainees, all citizens of the Democratic People’s Republic of Korea, to their country of
origin.
19.
Since 9 October 2023, Ms. Kim has allegedly been subjected to enforced
disappearance and incommunicado detention by the authorities of the Democratic People’s
Republic of Korea. The authorities of the Democratic People’s Republic of Korea have
reportedly declined to confirm the arrest and detention of the above-mentioned group of
individuals, including Ms. Kim, following their forced repatriation from China.
20.
Ms. Kim was reportedly not shown an arrest warrant by the authorities of the
Democratic People’s Republic of Korea after her forcible transfer. Furthermore, she was not
able to challenge the legality of her detention after forcible removal from China because the
authorities of the Democratic People’s Republic of Korea failed to bring her before a judge
promptly – that is, within 48 hours of her arrest. Ms. Kim was also effectively deprived of
her right to legal counsel and representation.
(iii)
Legal analysis
21.
The source recalls that the Working Group has in the past found the arrest and
detention of escapees forcibly returned to the Democratic People’s Republic of Korea from
China to be arbitrary, falling within categories I, II, III and V.
22.
It submits that Ms. Kim’s arrest and detention by the authorities of China and of the
Democratic People’s Republic of Korea follows a similar pattern and is thus arbitrary, falling
under categories I, II, III and V.
a.
Allegations against the Government of China
23.
In relation to category I, the source recalls that at the time of her arrest on 5 April
2023, Ms. Kim was not presented with a warrant for her arrest by agents of the Changbai
County public security bureau.
24.
The source asserts that for a deprivation of liberty to have a legal basis, it is not
sufficient for there to be a law authorizing the arrest, assuming arguendo that such a law
existed. The authorities must invoke that legal basis and apply it to the circumstances of the
case through an arrest warrant, which the Chinese authorities failed to do in the case of
Ms. Kim.
25.
It further notes in this regard that international law on the right to personal liberty
includes the right to be presented with an arrest warrant to ensure the exercise of effective
control by a competent, independent and impartial judicial authority, which is procedurally
inherent in the right to personal liberty and security and the prohibition of arbitrary
deprivation of liberty under articles 3 and 9 of the Universal Declaration of Human Rights
and principles 2, 4 and 10 of the Body of Principles for the Protection of All Persons under
Any Form of Detention or Imprisonment.
26.
There are no valid grounds, such as arrest in flagrante delicto, to justify an exception
to this rule in the present case. In its jurisprudence, the Working Group has consistently found
that an arrest is considered to have been made in flagrante delicto if the accused is either
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apprehended during the commission of a crime or immediately thereafter or is arrested in hot
pursuit.
27.
To invoke a legal basis for deprivation of liberty, the authorities of China should have
informed Ms. Kim of the reasons for her arrest at the time of her arrest, and should have
promptly informed her of the charges. Their failure to do so therefore violated articles 3 and 9
of the Universal Declaration of Human Rights, article 9 (1) and (2) of the Covenant and
principle 10 of the Body of Principles for the Protection of All Persons under Any Form of
Detention or Imprisonment, rendering her arrest devoid of any legal basis.
28.
Ms. Kim was forcibly disappeared by the Chinese authorities from 5 April 2023 until
her family’s visit to Baishan city detention centre on 17 April 2023. She continued to be held
incommunicado until her deportation from China to the Democratic People’s Republic of
Korea on 9 October 2023.
29.
Enforced disappearances violate international law and constitute a particularly
aggravated form of arbitrary detention. Such deprivation of liberty, entailing a refusal to
disclose the fate or whereabouts of the persons concerned or to acknowledge their detention,
lacks any valid legal basis under any circumstance and is inherently arbitrary as it places the
person outside the protection of the law, in violation of article 6 of the Universal Declaration
of Human Rights.
30.
Moreover, the practice violates the right to be brought promptly before a judge and to
challenge the lawfulness of detention before a court to ensure judicial oversight of
deprivation of liberty as a fundamental safeguard of personal liberty, which is essential in
ensuring that detention has a legal basis, in accordance with article 10 of the Universal
Declaration of Human Rights. It also prevents the disappeared person from exercising the
right to an effective remedy under article 8 of the Universal Declaration of Human Rights.
31.
The act of enforced disappearance is defined in a way that clearly distinguishes it from
related offences, such as enforced deprivation of liberty, abduction, kidnapping and
incommunicado detention, among others. The following three cumulative minimum elements
should be contained in any definition: deprivation of liberty against the will of the person
concerned; involvement of government officials, at least indirectly by acquiescence; and
refusal to disclose the fate and whereabouts of the person concerned.
32.
In this regard, Ms. Kim’s enforced disappearance by the Chinese authorities and the
failure to investigate or to bring those responsible to justice violated articles 3, 5, 6, 8, 9 and
10 of the Universal Declaration of Human Rights, principles 1, 2, 6, 7 (1), 15, 16 (1) and 19
of the Body of Principles for the Protection of All Persons under Any Form of Detention or
Imprisonment and articles 2 (1) and (2), 3, 10, 13 (1), (2) and (3), 14 and 19 of the Declaration
on the Protection of All Persons from Enforced Disappearance, and rendered her deprivation
of liberty devoid of any legal basis.
33.
According to the source, the Chinese authorities failed to bring Ms. Kim promptly
before a judge, within 48 hours of her arrest. Her pretrial detention therefore lacked a legal
basis as it was not based on an individualized determination that it was reasonable and
necessary. Therefore, the Government of China has violated articles 3 and 9 of the Universal
Declaration of Human Rights and principles 11, 37 and 38 of the Body of Principles for the
Protection of All Persons under Any Form of Detention or Imprisonment.
34.
In addition, the authorities did not afford Ms. Kim the right to take proceedings before
a court so that it may decide without delay on the lawfulness of her detention in accordance
with articles 3, 8 and 9 of the Universal Declaration of Human Rights and principles 11, 32
and 37 of the Body of Principles for the Protection of All Persons under Any Form of
Detention or Imprisonment. The Working Group on Arbitrary Detention has affirmed that
the right to challenge the lawfulness of detention before a court is a self-standing human
right, the absence of which constitutes a human rights violation, and is essential to preserve
legality in a democratic society.2 This right, which as a core component of the prohibition of
all forms of arbitrary deprivation of liberty constitutes customary international law and a
2 A/HRC/30/37, paras. 2 and 3.
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peremptory norm (jus cogens),3 applies to all forms and situations of deprivation of liberty,
including not only to detention for purposes of criminal proceedings but also to situations of
detention under administrative and other fields of law, irrespective of the place of detention
or the legal terminology used in the legislation.4 Effective judicial oversight and control of
deprivation of liberty are essential in ensuring that detention has a legal basis.
35.
Furthermore, Ms. Kim was also effectively deprived of her right to legal counsel and
representation, which is procedurally inherent in the right to liberty and security and the
prohibition of arbitrary detention. The authorities have therefore violated articles 3 and 9 of
the Universal Declaration of Human Rights, principles 15, 17 and 18 of the Body of
Principles for the Protection of All Persons under Any Form of Detention or Imprisonment
and principles 1, 5, 7, 8, 21 and 22 of the Basic Principles on the Role of Lawyers. In
accordance with principle 9 and guideline 8 of 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, persons deprived of their liberty have the right to legal
assistance by counsel of their choice, at any time during their detention, including
immediately after the moment of apprehension, and must be promptly informed of this right
upon apprehension, and access to legal counsel should not be unlawfully or unreasonably
restricted. The source further recalls that the Working Group has previously noted that access
to legal counsel from the outset of detention is an essential safeguard in ensuring that
detainees can challenge the legal basis for their detention.
36.
In relation to category II, the source argues that Ms. Kim’s deprivation of liberty in
and by China resulted from her exercise of the right to freedom of movement, the right to
leave any country, including her own, and to return to her country, and the right to seek and
to enjoy in other countries asylum from persecution, under articles 13 (1) and (2) and 14 (1)
of the Universal Declaration of Human Rights.
37.
According to the source, Ms. Kim left the Democratic People’s Republic of Korea
because she was deprived of her right to food. The source submits that she was in need of
protection as a refugee sur place, referring to a statement made by the United Nations High
Commissioner for Refugees in March 2006, in which he noted that some citizens of the
Democratic People’s Republic of Korea in China might become refugees sur place because
they faced a risk of deportation back to the Democratic People’s Republic of Korea that was
associated with the risk of persecution in the areas covered by the Convention relating to the
Status of Refugees.5
38.
The Working Group has previously condemned the arrest and detention by China of
escapees as a clear violation of the principle of non-refoulement, enshrined in article 33 of
the Convention relating to the Status of Refugees and in the Protocol thereto, instruments to
which China is a party, and has determined that such detention is arbitrary under category II,
as resulting from the exercise of the right to seek and enjoy asylum.
39.
The source further argues that the forced repatriation violates the non-refoulement
provisions in article 3 (1) of the Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, to which China is a party, and article 8 (1) of the
Declaration on the Protection of All Persons from Enforced Disappearance, given the
substantial grounds to believe that these persons would be in danger of torture and enforced
disappearance.
40.
In December 2015, the Committee against Torture expressed concern at the rigorous
policy of China to forcibly repatriate all nationals of the Democratic People’s Republic of
Korea on the ground that they had illegally crossed the border solely for economic reasons.
It stated that China should immediately cease forcible repatriation of undocumented migrants
and victims of trafficking to the Democratic People’s Republic of Korea, and allow personnel
of the Office of the United Nations High Commissioner for Refugees unimpeded access to
3 Ibid., para. 11.
4 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, para. 47 (a) and (b).
5 See https://www.unhcr.org/publications/statement-media-mr-antonio-guterres-united-nations-high-
commissioner-refugees.
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nationals of the Democratic People’s Republic of Korea who had crossed the border, in order
to determine if they qualified for refugee status.6
41.
The source also recalls that in May 2023, the Committee on the Elimination of
Discrimination against Women raised concerns about the trafficking of women and girls from
the Democratic People’s Republic of Korea for purposes of sexual exploitation, forced
marriage or concubinage. The Committee had also noted with concern that women and girl
defectors from the Democratic People’s Republic of Korea were classified as “illegal
migrants” and that some were forcibly returned. The Committee further noted that children
born in China to women from the Democratic People’s Republic of Korea were deprived of
their rights to birth registration, nationality, education and health care. The Committee
recommended that China: (a) ensure that women and girls from the Democratic People’s
Republic of Korea who were victims of trafficking were not criminalized and had access to
temporary residence permits and basic services; (b) provide the Office of the United Nations
High Commissioner for Refugees and relevant humanitarian organizations with full and
unimpeded access to victims of trafficking from the Democratic People’s Republic of Korea;
and (c) regularize the status of women victims of trafficking who had married, or were in an
unregistered union and had a child with, a citizen of China and ensure that their children
obtained birth registration, were eligible for Chinese nationality and had access to education
and health care without discrimination and would be allowed to leave China with their
mothers.7
42.
In relation to category III, the source submits that Ms. Kim was forcibly transferred
to the Democratic People’s Republic of Korea by the Chinese authorities without the benefit
of a fair and public hearing by an independent and impartial tribunal. The Working Group
has held in its earlier jurisprudence that involuntary expulsion to a foreign State without a
hearing by judicial authorities cannot be in conformity with the due process of the law.8
43.
International law regarding extradition provides procedures that must be observed by
countries in arresting, detaining and returning individuals to face criminal proceedings in
another country in order to ensure that their right to a fair trial is protected. It is submitted
that those procedures were not observed in Ms. Kim’s case.
44.
Forced repatriation by China of escapees to the Democratic People’s Republic of
Korea is based on four bilateral treaties: the mutual cooperation agreement for the extradition
of defectors and criminals (agreement on repatriation of illegal entrants) of 1966; the Mutual
Cooperation Protocol for the Work of Maintaining National Security and Social Order in the
Border Areas (1986); the Bilateral Agreement on Mutual Cooperation for the Maintenance
of State Safety and Social Order (1998); and the treaty of 2003 on cooperation between China
and the Democratic People’s Republic of Korea on civil and criminal law.
45.
In this context, the source submits that even assuming that all four treaties qualify as
valid, binding legal documents, they may facilitate the forced return of escapees in violation
of the international obligation to respect the right to asylum under article 14 (1) of the
Universal Declaration of Human Rights, the right to leave one’s own country under
article 12 (2) of the International Covenant on Civil and Political Rights and the principle of
non-refoulement under article 3 (1) of the Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment.
46.
The source notes that a similar concern was expressed in February 2016 by the Special
Rapporteur on the situation of human rights in the Democratic People’s Republic of Korea.9
47.
The source recalls that the Working Group on Arbitrary Detention has, referring to
international refugee law and international human rights law, reiterated that individuals
should not be expelled to another country when there are substantial grounds for believing
that their life or freedom would be at risk, or that they would be in danger of being subjected
6 See CAT/C/CHN/CO/5.
7 See CEDAW/C/CHN/CO/9.
8 Opinion No. 33/2020, para. 62.
9 See communication PRK 1/2016, available at
https://spcommreports.ohchr.org/TMResultsBase/DownLoadPublicCommunicationFile?gId=17685.
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to torture or ill-treatment.10 In addition, the risk of arbitrary detention in the receiving State
must also be among the elements taken into consideration before individuals are expelled.
48.
In the case of Ms. Kim, the Government of China did not avail itself of the option of
resorting to the regular extradition procedure or obtaining credible assurances from the
Democratic People’s Republic of Korea on due process and fair trial guarantees or on the
prevention of torture and enforced disappearance.
49.
The forced repatriation of Ms. Kim by the Chinese authorities without due process or
individualized judicial determination therefore violated the principle of non-refoulement,
especially the State’s obligations under article 3 (1) of the Convention against Torture and
article 8 (1) of the Declaration on the Protection of All Persons from Enforced Disappearance.
Moreover, the violations of the right to a fair trial and due process, as set out in articles 9 and
10 of the Universal Declaration of Human Rights, are of such gravity as to give Ms. Kim’s
deprivation of liberty in and by China an arbitrary character, falling within category III.
50.
Finally, in relation to category V, the source submits that the authorities of China
repatriated Ms. Kim because she was a national of the Democratic People’s Republic of
Korea. In this context, it notes the Working Group’s earlier findings with respect to consistent
patterns of systematic return by the Chinese authorities of nationals of the Democratic
People’s Republic of Korea arrested at the border, namely that the detention, based on their
nationality, was discriminatory in nature and therefore their arrest and detention fell within
category V.
51.
According to the source, Ms. Kim’s arrest, detention and forced repatriation owing to
her presumed nationality are equally discriminatory in nature, in violation of articles 2 and 7
of the Universal Declaration of Human Rights, and therefore fall within category V.
52.
The source concludes that with regard to China, the deprivation of liberty of Ms. Kim,
being in contravention of articles 2, 3, 5, 6, 8, 9, 10, 13 (1) and (2) and 14 (1) of the Universal
Declaration of Human Rights and article 3 (1) of the Convention against Torture, is arbitrary
and falls within categories I, II, III and V of the Working Group.
b.
Allegations against the Government of the Democratic People’s Republic of Korea
53.
In relation to category I, the source notes that Ms. Kim was not presented with a
warrant for her arrest by the authorities of the Democratic People’s Republic of Korea at the
time of her removal from China on 9 October 2023.
54.
The authorities must invoke a legal basis and apply it to the circumstances of a case
through an arrest warrant, which the Democratic People’s Republic of Korea failed to do in
the present case.
55.
International law on the right to personal liberty includes the right to be presented with
an arrest warrant to ensure the exercise of effective control by a competent, independent and
impartial judicial authority, which is procedurally inherent in the right to personal liberty and
security and the prohibition of arbitrary deprivation of liberty under articles 3 and 9 of the
Universal Declaration of Human Rights, article 9 (1) of the Covenant and principles 2, 4 and
10 of the Body of Principles for the Protection of All Persons under Any Form of Detention
or Imprisonment.
56.
There are no valid grounds, such as arrest in flagrante delicto, to justify an exception
to this rule in the case of Ms. Kim. In its jurisprudence, the Working Group has consistently
found that an arrest is considered to have been made in flagrante delicto if the accused is
either apprehended during the commission of a crime or immediately thereafter or is arrested
in hot pursuit.
57.
To invoke a legal basis for deprivation of liberty, the authorities of the Democratic
People’s Republic of Korea should have informed Ms. Kim of the reasons for her arrest at
the time of her expulsion from China on 9 October 2023, and should have promptly informed
her of the charges. Their failure to do so violated articles 3 and 9 of the Universal Declaration
of Human Rights, article 9 (1) and (2) of the Covenant and principle 10 of the Body of
10 A/HRC/4/40, paras. 44 and 45.
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Principles for the Protection of All Persons under Any Form of Detention or Imprisonment,
rendering the arrest of Ms. Kim devoid of any legal basis.
58.
The source recalls that since 9 October 2023, Ms. Kim has been subjected to enforced
disappearance and incommunicado detention by the authorities of the Democratic People’s
Republic of Korea.
59.
Enforced disappearances violate numerous substantive and procedural provisions of
the International Covenant on Civil and Political Rights and constitute a particularly
aggravated form of arbitrary detention. Such deprivation of liberty, entailing a refusal to
disclose the fate or whereabouts of the persons concerned or to acknowledge their detention,
lacks any valid legal basis under any circumstance and is inherently arbitrary as it places the
person outside the protection of the law, in violation of article 6 of the Universal Declaration
of Human Rights and article 16 of the Covenant.
60.
Moreover, the practice violates the right to be brought promptly before a judge and to
challenge the lawfulness of detention before a court to ensure judicial oversight of
deprivation of liberty as a fundamental safeguard of personal liberty, which is essential in
ensuring that detention has a legal basis, in accordance with article 10 of the Universal
Declaration of Human Rights and articles 9 (3) and (4) and 14 (1) of the Covenant. It also
prevents the disappeared person from exercising the right to an effective remedy under article
8 of the Universal Declaration of Human Rights and article 2 (3) of the Covenant.
61.
The source recalls in this context that the act of enforced disappearance is defined in
a way that clearly distinguishes it from related offences, such as enforced deprivation of
liberty, abduction, kidnapping and incommunicado detention, among others. The following
three cumulative minimum elements should be contained in any definition: deprivation of
liberty against the will of the person concerned; involvement of government officials, at least
indirectly by acquiescence; and refusal to disclose the fate and whereabouts of the person
concerned.
62.
The failure of the Democratic People’s Republic of Korea to investigate or bring to
justice perpetrators of enforced disappearances, which are recognized as criminal under
international law, can in and of itself give rise to a separate breach of article 2 (3) of the
Covenant. In accordance with article 7 of the Rome Statute of the International Criminal
Court, enforced disappearances are considered crimes against humanity when committed as
part of a widespread or systematic attack on a civilian population.
63.
Ms. Kim’s enforced disappearance in and by the Democratic People’s Republic of
Korea and the failure to investigate or to bring those responsible to justice violated articles
3, 5, 6, 8, 9 and 10 of the Universal Declaration of Human Rights, articles 2 (3), 7, 9 (1), (3)
and (4), 14 (1) and 16 of the Covenant, principles 1, 2, 6, 7 (1), 15, 16 (1) and 19 of the Body
of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment
and articles 2 (1) and (2), 3, 10, 13 (1), (2) and (3), 14 and 19 of the Declaration on the
Protection of All Persons from Enforced Disappearance, rendering her deprivation of liberty
devoid of any legal basis.
64.
The authorities of the Democratic People’s Republic of Korea failed to bring Ms. Kim
promptly before a judge, within 48 hours of her arrest, after her unlawful removal from China
on 9 October 2023. The pretrial detention (which should be the exception rather than the rule)
of Ms. Kim lacked a legal basis as it was not based on an individualized determination that
it was reasonable and necessary, taking into account all the circumstances, for such purposes
specified in law as to prevent flight, interference with evidence or the recurrence of crime,
and as there was no consideration of alternatives. Therefore, concludes the source, the
Government of the Democratic People’s Republic of Korea has violated articles 3 and 9 of
the Universal Declaration of Human Rights, article 9 (1) and (3) of the Covenant and
principles 11, 37 and 38 of the Body of Principles for the Protection of All Persons under
Any Form of Detention or Imprisonment.
65.
In addition, the Democratic People’s Republic of Korea has not afforded Ms. Kim the
right to take proceedings before a court so that it may decide without delay on the lawfulness
of her detention in accordance with articles 3, 8 and 9 of the Universal Declaration of Human
Rights, articles 2 (3) and 9 (1) and (4) of the Covenant and principles 11, 32 and 37 of the
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9
Body of Principles for the Protection of All Persons under Any Form of Detention or
Imprisonment. The Working Group has affirmed that the right to challenge the lawfulness of
detention before a court is a self-standing human right, the absence of which constitutes a
human rights violation, and is essential to preserve legality in a democratic society.11 This
right, which as a core component of the prohibition of all forms of arbitrary deprivation of
liberty constitutes customary international law and a peremptory norm (jus cogens), applies
to all forms and situations of deprivation of liberty, including not only to detention for
purposes of criminal proceedings but also to situations of detention under administrative and
other fields of law, irrespective of the place of detention or the legal terminology used in the
legislation.12 Effective judicial oversight and control of deprivation of liberty are essential in
ensuring that detention has a legal basis.
66.
Ms. Kim was also effectively deprived of her right to legal counsel and representation
in and by the Democratic People’s Republic of Korea, which is procedurally inherent in the
right to liberty and security and the prohibition of arbitrary detention. This was in violation
of articles 3 and 9 of the Universal Declaration of Human Rights, principles 15, 17 and 18 of
the Body of Principles for the Protection of All Persons under Any Form of Detention or
Imprisonment and principles 1, 5, 7, 8, 21 and 22 of the Basic Principles on the Role of
Lawyers. The source recalls that in accordance with principle 9 and guideline 8 of 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, persons deprived of their
liberty have the right to legal assistance by counsel of their choice, at any time during their
detention, including immediately after the moment of apprehension, and must be promptly
informed of this right upon apprehension, and access to legal counsel should not be
unlawfully or unreasonably restricted. It also notes that the Working Group has previously
held that access to legal counsel from the outset of detention is an essential safeguard in
ensuring that detainees can challenge the legal basis for their detention.
67.
In relation to category II, the source submits that Ms. Kim’s deprivation of liberty in
and by the Democratic People’s Republic of Korea resulted from her exercise of the right to
freedom of movement, the right to leave any country, including her own, and to return to her
country and the right to seek and to enjoy in other countries asylum from persecution, under
articles 13 (1) and (2) and 14 (1) of the Universal Declaration of Human Rights and
article 12 (1) and (2) of the International Covenant on Civil and Political Rights.
68.
Ms. Kim left the Democratic People’s Republic of Korea because she was deprived
of her right to food. She was in need of protection as a refugee sur place because she faced a
risk of deportation to the Democratic People’s Republic of Korea that was associated with
the risk of persecution in the areas covered by the Convention relating to the Status of
Refugees.13
69.
According to the source, the arrest and detention of the escapees, including Ms. Kim,
by the authorities of the Democratic People’s Republic of Korea are arbitrary as they resulted
from the individuals’ exercise of their rights under articles 13 (1) and (2) and 14 (1) of the
Universal Declaration of Human Rights and articles 12 (1) and (2) of the International
Covenant on Civil and Political Rights.
70.
In relation to category III, the source submits that during and after Ms. Kim’s removal
from China to the Democratic People’s Republic of Korea, the latter State failed to respect
her right to legal assistance at all times, which is inherent in the right to liberty and security
of person and the right to a fair and public hearing by a competent, independent and impartial
tribunal established by law, in accordance with articles 3, 9, 10 and 11 (1) of the Universal
Declaration of Human Rights, articles 9 (1) and 14 (1) and (3) (b) and (d) of the Covenant,
principles 15, 17 and 18 of the Body of Principles for the Protection of All Persons under
Any Form of Detention or Imprisonment and principles 1, 5, 7, 8, 21 and 22 of the Basic
11 A/HRC/30/37, paras. 2 and 3.
12 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, para. 47 (a) and (b).
13 See https://unhcr.org/publications/statement-media-mr-antonio-guterres-united-nations-high-
commissioner-refugees.
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Principles on the Role of Lawyers. This violation substantially undermined and compromised
Ms. Kim’s capacity to defend herself in any subsequent judicial proceedings.
71.
The Government of the Democratic People’s Republic of Korea also denied
Ms. Kim’s due process right to be visited by and to correspond with her family and to be
given adequate contact with the outside world, subject to reasonable conditions and
restrictions as specified by law or lawful regulations, in accordance with principles 15 and
19 of the Body of Principles for the Protection of All Persons under Any Form of Detention
or Imprisonment and rules 43 (3) and 58 of the United Nations Standard Minimum Rules for
the Treatment of Prisoners (the Nelson Mandela Rules). In this regard, the source recalls that
the Human Rights Committee has observed that giving prompt and regular access to family
members, and to independent medical personnel and lawyers, is an essential and necessary
safeguard for the prevention of torture and for protection against arbitrary detention and
infringement of personal security.14
72.
The source submits that Ms. Kim’s arrest, detention and unlawful removal from China
to the Democratic People’s Republic of Korea occurred at the latter State’s request and as a
result of close collaboration between the two States. The Democratic People’s Republic of
Korea is also responsible for the failure to afford Ms. Kim her due process rights during her
unlawful expulsion from China, concludes the source.
73.
Finally, in relation to category V, the source submits that Ms. Kim’s deprivation of
liberty resulted from her status as an escapee from the Democratic People’s Republic of
Korea and was in violation of articles 2 and 7 of the Universal Declaration of Human Rights,
articles 2 (1) and 26 of the International Covenant on Civil and Political Rights and
article 5 (a) and (b) of the International Convention on the Elimination of All Forms of Racial
Discrimination, falling under category V.
74.
The source concludes that with regard to the Democratic People’s Republic of Korea,
the deprivation of liberty of Ms. Kim, being in contravention of articles 2, 3, 5, 6, 8, 9, 10,
11 (1), 13 (1) and (2) and 14 (1) of the Universal Declaration of Human Rights and
articles 2 (1) and (3), 7, 9 (1), (2), (3) and (4), 12 (1) and (2), 14 (1) and (3) (b) and (d) and
16 of the International Covenant on Civil and Political Rights, is arbitrary and falls within
categories I, II, III and V.
(b)
Response from the Government
75.
On 10 May 2024, 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
communications procedure. The Working Group requested the Governments to provide, by
9 July 2024, detailed information about the current situation of Ms. Kim and to clarify the
legal provisions justifying her continued detention, and the compatibility of her detention
with the States’ obligations under international human rights law. The Working Group called
upon both Governments to ensure the physical and mental integrity of Ms. Kim.
76.
The Government of China submitted a response on 11 July 2024, that is, after the
deadline given by the Working Group. The Government of the Democratic People’s Republic
of Korea submitted a reply on 12 August 2024, well after the deadline. These responses are
therefore considered late, and the Working Group cannot accept them as if they had been
presented within the time limit. Neither Government requested an extension of the time limit
for its response, within the deadline, as provided for in paragraph 16 of the Working Group’s
methods of work.
2.
Discussion
77.
In the absence of a timely response from either Government, the Working Group has
decided to render the present opinion, in conformity with paragraph 15 of its methods of
work.
78.
In determining whether Ms. Kim’s detention was arbitrary, the Working Group has
regard to the principles established in its jurisprudence to deal with evidentiary issues. If the
14 General comment No. 35 (2014), para. 58.
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11
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. Mere assertions by the Government that lawful procedures
have been followed are not sufficient to rebut the source’s allegations.15 In the present case,
the Governments have chosen not to challenge, in a timely manner, the prima facie credible
allegations made by the source.
79.
The source has submitted that Ms. Kim’s detention is arbitrary and falls under
categories I, II, III and V. The Government of China, in its late response, while not addressing
the categories cited in the source’s submission, argues that all citizens of the Democratic
People’s Republic of Korea who cross the border into China illegally for economic reasons
are not refugees; that they have violated the entry and exit administration laws and regulations
of China; and that, in relation to those people, China has always maintained a responsible
attitude, and has insisted on handling it properly, in accordance with the principle of
combining domestic law, international law and humanitarianism, safeguarding the rights and
interests of relevant people in accordance with the law. The Government of the Democratic
People’s Republic of Korea, in its late response, provided no specific details regarding
Ms. Kim’s case.
80.
The Working Group notes that, because of the inaccessibility of information regarding
Ms. Kim, the source has been unable to provide details regarding her detention in several
respects. As noted, in their late responses, neither the Government of China nor that of the
Democratic People’s Republic of Korea addressed her case at an individual level. This
opacity, in which information regarding detainees is not provided by authorities with control
over them, forms a concerning backdrop to the current claims.
81.
This case involves two States, and the Working Group will discuss the issues related
to each of them in turn.
(a)
Allegations against China
(i)
Category I
82.
Under category I, the source submits that Ms. Kim was not presented with an arrest
warrant when she was arrested by Chinese authorities on 5 April 2023. The Government did
not address this claim in its late reply.
83.
Persons who are detained have the right to be promptly informed of the charges
against them. This is inherent in article 9 of the Universal Declaration of Human Rights and
principles 2 and 10 of the Body of Principles for the Protection of All Persons under Any
Form of Detention or Imprisonment. The Working Group has previously stated that, for a
deprivation of liberty to have a legal basis, it is not sufficient that there is a law that may
authorize the arrest. The authorities must invoke that legal basis and apply it to the
circumstances of the case.16 This is typically done through an arrest warrant or arrest order
(or equivalent document).17
84.
In the light of the source’s submissions and the lack of any specific information from
the Government refuting those submissions, the Working Group concludes that the detainee’s
rights under article 9 of the Universal Declaration of Human Rights and principles 2 and 10
of the Body of Principles for the Protection of All Persons under Any Form of Detention or
Imprisonment were violated.
85.
The source further argues that Ms. Kim was forcibly disappeared by the Chinese
authorities between 5 April 2023 and 17 April 2023 and was held incommunicado until her
deportation from China to the Democratic People’s Republic of Korea on 9 October 2023.
The Government does not address those specific submissions.
15 A/HRC/19/57, para. 68.
16 Opinions No. 9/2019, para. 29; No. 46/2019, para. 51; and No. 59/2019, para. 46.
17 Opinions No. 88/2017, para. 27; No. 3/2018, para. 43; and No. 30/2018, para. 39. In cases of flagrante
delicto, the opportunity to obtain a warrant will not be typically available. See also opinion
No. 30/2017, paras. 58 and 59.
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86.
The Working Group recalls that enforced disappearances are prohibited by
international law and constitute a particularly aggravated form of arbitrary detention. 18
Enforced disappearance is considered to be the arrest, detention, abduction or any other form
of deprivation of liberty by agents of the State or by persons or groups of persons acting with
the authorization, support or acquiescence of the State, followed by a refusal to acknowledge
the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared
person, which place such a person outside the protection of the law.19 By depriving the person
of any recognition before the law and any recourse to legal procedures, enforced
disappearance violates the right to challenge the lawfulness of detention before a court under
article 9 of the Universal Declaration of Human Rights.20 This is significant, as judicial
oversight of detention is a fundamental safeguard of personal liberty21 and is essential in
ensuring that detention has a legal basis.
87.
On the basis of the undisputed facts, the Working Group considers that the
disappearance of Ms. Kim for 12 days in April 2023 placed her outside the protection of the
law, in violation of her rights under article 6 of the Universal Declaration of Human Rights.
It also violated her rights to challenge the legal basis for her detention, her right to be brought
before an independent judge promptly (normally within 48 hours of arrest) and her right to
an individualized determination that pretrial detention was reasonable and necessary, all
under article 9 of the Universal Declaration. The Working Group refers the case to the
Working Group on Enforced or Involuntary Disappearances for appropriate action.
88.
Regarding the continued holding of Ms. Kim incommunicado, the Working Group
notes that giving prompt and regular access to family members and to independent medical
personnel and lawyers is an essential and necessary protection against arbitrary detention and
a safeguard for the prevention of torture;22 the failure to ensure this protection is in violation
of article 9 of the Universal Declaration of Human Rights. Moreover, prohibiting contact
with the outside world may violate rule 58 of the Nelson Mandela Rules23 and principles 15,
16 (1) and 19 of the Body of Principles for the Protection of All Persons under Any Form of
Detention or Imprisonment.
89.
Noting the lack of a response to this argument from the Government and noting that
Ms. Kim was not able to communicate with her family when they visited on 17 April 2023,
the Working Group considers that Ms. Kim was held incommunicado over an extended
period, from her arrest until her deportation to the Democratic People’s Republic of Korea.
This also rendered her detention arbitrary, in violation of article 9 of the Universal
Declaration of Human Rights. Additionally, she was unable to contact a lawyer during this
time, which undermined her fair trial rights under articles 9, 10 and 11 of the Universal
Declaration of Human Rights and principles 11 (1) and 32 and 37 of the Body of Principles
for the Protection of All Persons under Any Form of Detention or Imprisonment.
90.
In the light of the preceding considerations, the Working Group considers that the
deprivation of liberty of Ms. Kim is arbitrary under category I.
(ii)
Category II
91.
Under category II, the source submits that Ms. Kim’s deprivation of liberty by China
resulted from her exercise of the right to freedom of movement, the right to leave any country,
including her own, and to return to her country, and the right to seek and to enjoy in other
countries asylum from persecution under articles 13 (1) and (2) and 14 (1) of the Universal
Declaration of Human Rights. The Government has not responded to this allegation, other
than stating in its late reply that citizens of the Democratic People’s Republic of Korea who
cross the border into China illegally for economic reasons are not considered refugees and
18 See Opinions No. 5/2020, No. 6/2020, No. 11/2020, No. 13/2020, No. 77/2020, No. 38/2021 and
No. 25/2022.
19 International Convention for the Protection of All Persons from Enforced Disappearance, art. 2.
20 See opinions No. 45/2017, No. 46/2017, No. 35/2018, No. 9/2019, No. 44/2019 and No. 45/2019.
21 A/HRC/30/37, para. 3; CAT/C/VNM/CO/1, para. 24.
22 Opinion No. 19/2022, para. 52.
23 Opinions No. 35/2018, para. 39; No. 44/2019, paras. 74 and 75; and No. 45/2019, para. 76.
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13
instead are considered to have violated the entry and exit administration laws and regulations
of China.
92.
The Working Group notes that the right to freedom of movement, and the right to
leave any country, including one’s own, and to return to one’s country, are protected under
articles 13 (1) and (2) of the Universal Declaration of Human Rights and are included among
the rights relevant to category II.
93.
According to the source’s unrefuted allegations, Ms. Kim was arrested together with
two other citizens of the Democratic People’s Republic of Korea and their Chinese driver, as
a result of an operation to detain individuals from the Democratic People’s Republic of Korea
who wished to travel to the Republic of Korea or other third countries. According to the
source, Ms. Kim was reportedly attempting to reunite with a member of her family who had
settled in a third country. On that basis and noting the lack of a timely response from the
Government of China, the Working Group considers that Ms. Kim was arrested as a result of
her attempt to exercise her rights under article 13 of the Universal Declaration of Human
Rights, which renders her detention arbitrary.
94.
The Working Group considers that the return of Ms. Kim to the Democratic People’s
Republic of Korea by the Chinese authorities was inconsistent with the principle of
non-refoulement provisions in article 3 (1) of the Convention against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment, to which China is a party. It refers
the case to the Special Rapporteur on torture and other cruel, inhuman or degrading treatment
for consideration, under paragraph 33 of its methods of work. The Working Group notes that
the Committee against Torture has expressed concerns about the policy of China to forcibly
repatriate all nationals of the Democratic People’s Republic of Korea on the ground that they
have illegally crossed the border solely for economic reasons, and that the Committee urged
China to immediately cease forcible repatriation of undocumented migrants and victims of
trafficking to the Democratic People’s Republic of Korea. It also notes that the Committee
on the Elimination of Discrimination against Women raised concerns about the trafficking of
women and girls from the Democratic People’s Republic of Korea for purposes of sexual
exploitation, forced marriage or concubinage, about their classification as “illegal migrants”
and about their forcible return; the Committee had also noted with concern that their children
were deprived of their rights to birth registration, nationality, education and health care. The
Working Group reminds the Government of China of its human rights obligations in these
respects.
95.
In relation to the other claims under category II, there is insufficient information for
the Working Group to reach any conclusions as to any other bases apart from article 13 of
the Universal Declaration of Human Rights.24
(iii)
Category III
96.
The source submits that Ms. Kim was forcibly transferred to the Democratic People’s
Republic of Korea by the Chinese authorities without the benefit of a fair and public hearing
by an independent and impartial tribunal. The Government does not address this specific
submission.
97.
The Working Group has previously held that involuntary expulsion to a foreign State
without a hearing by judicial authorities cannot be in conformity with the due process of the
law. It has noted that international law regarding extradition provides procedures that must
be observed by countries when arresting, detaining and returning individuals to face criminal
proceedings in another country to ensure that their right to a fair trial is protected, 25
particularly the transferee’s access to court proceedings.
98.
The Working Group notes that the bilateral treaties pursuant to which Ms. Kim was
reportedly transferred to the Democratic People’s Republic of Korea include the mutual
24 The Working Group notes that Ms. Kim’s case differs from that of opinion No. 81/2017, for example,
because in the latter case the individuals sought were detained as a direct result of seeking asylum in
China.
25 See, for example, opinion No. 33/2020, para. 63. See also opinions No. 57/2013, No. 2/2015,
No. 11/2018 and No. 10/2019.
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cooperation agreement for the extradition of defectors and criminals (agreement on
repatriation of illegal entrants) of 1966 and the treaty of 2003 on cooperation between China
and the Democratic People’s Republic of Korea on civil and criminal law cooperation, both
of which imply that she may have faced criminal proceedings in the Democratic People’s
Republic of Korea.
99.
Noting the source’s unrefuted allegations that the Government of China did not use
the regular extradition procedure and did not obtain credible assurances from the Democratic
People’s Republic of Korea that due process and fair trial guarantees would be adhered to
and that torture and enforced disappearance would not be imposed on her, the Working Group
considers that a failure to protect Ms. Kim’s due process rights has been demonstrated. The
Working Group recalls its finding above that Ms. Kim was denied regular access to legal
counsel and communications with her family. On these bases, the Working Group finds that
the violations were of sufficient gravity to render Ms. Kim’s detention in China arbitrary
under category III.
(iv)
Category V
100.
Under category V, the source submits that the authorities of China detained and then
repatriated Ms. Kim because she is a national of the Democratic People’s Republic of Korea.
The source argues that this fits within a pattern of detention of nationals of the Democratic
People’s Republic of Korea. It submits that the detention of those individuals owing to their
nationality is discriminatory in nature and that therefore their arrest and detention fall within
category V. In its late reply, the Government of China responded that citizens of the
Democratic People’s Republic of Korea who cross the border into China illegally for
economic reasons are not considered refugees and instead are considered to have violated the
entry and exit administration laws and regulations of China.
101.
On the basis of the source’s unrefuted submissions, and of the late reply of the
Government of China, which itself refers to persons from the Democratic People’s Republic
of Korea being arrested without stating whether this is part of the usual procedure applicable
to any national of any country, the Working Group considers that the source has demonstrated
that Ms. Kim’s arrest was based on discriminatory grounds, particularly her nationality,
rendering her detention contrary to articles 2 and 7 of the Universal Declaration of Human
Rights and therefore arbitrary under category V.
(b)
Allegations against the Democratic People’s Republic of Korea
102.
In relation to Ms. Kim’s detention in the Democratic People’s Republic of Korea,
there is very little information available, as discussed above. In particular, the late reply from
the Government of the Democratic People’s Republic of Korea does not provide any
substantive response to the allegations made by the source.
103.
The source reports that Ms. Kim was not shown an arrest warrant by the authorities
of the Democratic People’s Republic of Korea after her forcible transfer. According to the
source, Ms. Kim was not able to challenge the legality of her detention after her forcible
removal from China because the authorities of the Democratic People’s Republic of Korea
failed to bring her promptly before a judge, within 48 hours of her arrest. The source further
submits that Ms. Kim was also effectively deprived of her right to legal counsel and
representation.
104.
Moreover, the source argues that since her transfer to the Democratic People’s
Republic of Korea on 9 October 2023, Ms. Kim has been subjected to enforced disappearance
and incommunicado detention by the authorities of the Democratic People’s Republic of
Korea.
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15
105.
The Working Group considers that the lack of information regarding Ms. Kim’s fate
is at the heart of her detention in the Democratic People’s Republic of Korea. As noted above,
enforced disappearances are prohibited by international law and constitute a particularly
aggravated form of arbitrary detention.26 By depriving Ms. Kim of any recognition before the
law and any recourse to legal procedures, her enforced disappearance violates the right to
challenge the lawfulness of detention before a court under article 9 of the Universal
Declaration of Human Rights and article 9 of the International Covenant on Civil and
Political Rights.27
106.
Under category I, the failure of the Democratic People’s Republic of Korea to specify
a legal basis for Ms. Kim’s detention, and its deprivation of her access to legal procedures,
renders the detention of Ms. Kim contrary to article 9 of the Universal Declaration of Human
Rights and article 9 of the Covenant and therefore arbitrary. The conditions imposed on
Ms. Kim have also deprived her of the right to an effective remedy under article 8 of the
Universal Declaration of Human Rights and article 2 (3) of the Covenant.
107.
Under category II, the source has argued that Ms. Kim’s arrest derived from her
exercise of her right to leave her country under article 13 (2) of the Universal Declaration of
Human Rights and article 12 (2) of the Covenant. Noting the lack of a response by the
Government of the Democratic People’s Republic of Korea on this issue, the Working Group
is satisfied that the source has demonstrated a violation of these provisions and thereby the
arbitrariness of her detention under category II.
108.
Similarly, under category III, the unrefuted allegations concerning the lack of access
to legal counsel and the detention without due process before an independent tribunal are
sufficiently grave to indicate violations of articles 10 and 11 of the Universal Declaration of
Human Rights and article 14 of the Covenant, which therefore result in arbitrariness under
category III.
109.
Regarding category V, the source argues that Ms. Kim’s deprivation of liberty resulted
from her status as an escapee from the Democratic People’s Republic of Korea. Based on the
information received, and noting the multiple agreements that China and the Democratic
People’s Republic of Korea have concluded concerning transfers of citizens of the
Democratic People’s Republic of Korea from China to the Democratic People’s Republic of
Korea, and the allegations of the source, which have not been directly addressed in detail, the
Working Group considers that the Democratic People’s Republic of Korea is assisting and
participating in a discriminatory programme of deportations conducted by China. The
detention of Ms. Kim in the Democratic People’s Republic of Korea is contrary to articles 2
and 7 of the Universal Declaration of Human Rights and article 26 of the Covenant and is
therefore arbitrary under category V.
(c)
Concluding remarks
110.
The Working Group wishes to emphasize that the prohibition of arbitrary detention
bears an absolute character: it is indeed a peremptory norm of international law. The
International Court of Justice has stated that wrongfully to deprive human beings of their
freedom is in itself manifestly incompatible with the fundamental principles enunciated in
the Universal Declaration of Human Rights.28 The Working Group notes with concern the
consistent pattern of systematic deportation by China of nationals of the Democratic People’s
Republic of Korea arrested at the border or in targeted operations, to their country of origin,
particularly considering the threat of punitive and unfair proceedings and sentences that the
detainees face in the Democratic People’s Republic of Korea.29
26 See opinions No. 5/2020, No. 6/2020, No. 11/2020, No. 13/2020, No. 77/2020, No. 38/2021 and
No. 25/2022.
27 Opinion No. 45/2017, No. 46/2017, No. 35/2018, No. 9/2019, No. 44/2019 and No. 45/2019.
28 United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran),
Judgments, I.C.J. Reports 1980, p. 3, para. 91.
29 CAT/C/CHN/CO/5, para. 46.
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3.
Disposition
111.
In the light of the foregoing, the Working Group renders the following opinion:
Regarding China:
The deprivation of liberty of Kim Cheol-Ok by the authorities of China, being in
contravention of articles 2, 7, 9, 10, 11 and 13 of the Universal Declaration of Human
Rights, is arbitrary and falls within categories I, II, III and V.
Regarding the Democratic People’s Republic of Korea:
The deprivation of liberty of Kim Cheol-Ok by the authorities of the Democratic
People’s Republic of Korea, being in contravention of articles 2, 7, 8, 9, 10, 11 and
13 of the Universal Declaration of Human Rights and of articles 2, 9, 12, 14 and 26
of the International Covenant on Civil and Political Rights, is arbitrary and falls within
categories I, II, III and V.
112.
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. Kim 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.
113.
The Working Group considers that, taking into account all the circumstances of the
case, the appropriate remedy would be to release Ms. Kim immediately and accord her with
an enforceable right to compensation and other reparations, in accordance with international
law.
114.
The Working Group urges the Governments of China and the Democratic People’s
Republic of Korea to ensure a full and independent investigation of the circumstances
surrounding the arbitrary deprivation of liberty of Ms. Kim and to take appropriate measures
against those responsible for the violation of her rights.
115.
In accordance with paragraph 33 (a) of its methods of work, the Working Group refers
the present case to the Special Rapporteur on torture and other cruel, inhuman or degrading
treatment and the Working Group on Enforced or Involuntary Disappearances.
116.
The Working Group requests the Governments of China and the Democratic People’s
Republic of Korea to disseminate the present opinion through all available means and as
widely as possible.
4.
Follow-up procedure
117.
In accordance with paragraph 20 of its methods of work, the Working Group requests
the source and the Governments of China and the Democratic People’s Republic of Korea to
provide it with information on action taken in follow-up to the recommendations made in the
present opinion, including:
(a)
Whether Ms. Kim has been released and, if so, on what date;
(b)
Whether compensation or other reparations have been made to Ms. Kim;
(c)
Whether an investigation has been conducted into the violation of Ms. Kim’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 China and 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.
118.
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.
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119.
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.
120.
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.30
[Adopted on 30 August 2024]
30 Human Rights Council resolution 51/8, paras. 6 and 9.