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.25-01606 (E) 120225 120525
Human Rights Council
Working Group on Arbitrary Detention
Opinions adopted by the Working Group on Arbitrary
Detention at its 101st session, 11–15 November 2024
Opinion No. 59/2024 concerning Chun-gil Choi, Kook-kie Kim and
Jung-wook Kim (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 26 July 2024 the Working Group
transmitted to the Government of the Democratic People’s Republic of Korea a
communication concerning Chun-gil Choi, Kook-kie Kim and Jung-wook Kim. The
Government replied to the communication on 12 August 2024. The State is a party to the
International Covenant on Civil and Political Rights.
3.
The Working Group regards deprivation of liberty as arbitrary in the following cases:
(a)
When it is clearly impossible to invoke any legal basis justifying the
deprivation of liberty (as when a person is kept in detention after the completion of his or her
sentence or despite an amnesty law applicable to him or her) (category I);
(b)
When the deprivation of liberty results from the exercise of the rights or
freedoms guaranteed by articles 7, 13, 14, 18, 19, 20 and 21 of the Universal Declaration of
Human Rights and, insofar as States parties are concerned, by articles 12, 18, 19, 21, 22, 25,
26 and 27 of the Covenant (category II);
(c)
When the total or partial non-observance of the international norms relating to
the right to a fair trial, established in the Universal Declaration of Human Rights and in the
relevant international instruments accepted by the States concerned, is of such gravity as to
give the deprivation of liberty an arbitrary character (category III);
(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
* Mumba Malila did not participate in the discussion of the case.
1 A/HRC/36/38.
United Nations
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General Assembly
Distr.: General
13 February 2025
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
(i)
Context
4.
Mr. Chun-gil Choi, born on 19 September 1959, is a citizen of the Republic of Korea.
He is a Christian missionary and a trader who carried goods for residents of the Democratic
People’s Republic of Korea, travelling between the Republic of Korea and China for religious
and humanitarian purposes.
5.
Mr. Kook-kie Kim, born on 23 July 1954, is a citizen of the Republic of Korea. He is
a Christian missionary belonging to the General Assembly of the Presbyterian Church in the
Republic of Korea. He operated a shelter in Dandong City, Liaoning Province, China,
providing accommodation, food and medicines to citizens of the Democratic People’s
Republic of Korea visiting China. He also provided financial support for citizens of the
Democratic People’s Republic of Korea.
6.
Mr. Jung-wook Kim, born on 20 January 1964, is a citizen of the Republic of Korea.
He is a Christian missionary belonging to the Korea Baptist Convention. He operated a
shelter located in Dandong City, Liaoning Province, China. The shelter provided citizens of
the Democratic People’s Republic of Korea with accommodation, food and other necessities.
7.
Mr. Jung-wook Kim also operated a small noodle factory to provide citizens of the
Democratic People’s Republic of Korea with noodles, until the factory was shut down.
Furthermore, he delivered tuberculosis prevention drugs, vitamins, clothes, and other donated
necessities.
8.
These individuals have reportedly carried out religious and humanitarian work as
Christian missionaries and have reportedly been detained because of their foreign nationality
and their religion.
(ii)
Arrest and detention of Jung-wook Kim
9.
In August 2012, 12 citizens of the Democratic People’s Republic of Korea whom
Mr. Jung-wook Kim was sheltering were forcibly repatriated to the Democratic People’s
Republic of Korea.
10.
Mr. Jung-wook Kim decided to travel to the Democratic People’s Republic of Korea
to find out the fate of the repatriated individuals.
11.
On 8 October 2013, he was arrested at an unspecified location on his way to
Pyongyang. At the time of the arrest, the authorities did not explain to him the reasons for
his arrest, nor did they state the charges against him promptly. Furthermore, they did not
present an arrest warrant.
12.
On 7 November 2013, the State media reported a statement from the spokesperson of
the State Security Department (renamed the Ministry of State Security in 2016) that the
security authorities were investigating an unnamed spy from the Republic of Korea under
arrest who had infiltrated Pyongyang with the aim of destroying the “society and system”.
13.
Mr. Jung-wook Kim was disappeared and held incommunicado for almost the entire
duration of his detention, except during his forced appearance before the State media and
during his trial on 30 May 2014.
14.
On 27 February 2014, in his first public appearance at a press conference held at the
People’s Palace of Culture in Pyongyang, Mr. Jung-wook Kim confessed to and apologized
for “anti-Republic criminal acts”, namely (a) “anti-Republic spying acts” of recruiting
citizens of the Democratic People’s Republic of Korea as collaborators for the National
Intelligence Service of the Republic of Korea in return for money and providing internal
information collected from citizens of the Democratic People’s Republic of Korea to the
National Intelligence Service; (b) “anti-Republic religious acts” of giving sermons to citizens
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of the Democratic People’s Republic of Korea insulting their political system and making
them slander the Democratic People’s Republic of Korea, as well as paying them to establish
500 underground churches in the Democratic People’s Republic of Korea to bring down the
national political system; (c) smuggling citizens of the Democratic People’s Republic of
Korea to the Republic of Korea; and (d) corrupting the thought and spirit of citizens of the
Democratic People’s Republic of Korea brought into the underground church by
indoctrinating them with satellite television broadcasts from the Republic of Korea and
“anti-Republic books”.
15.
According to his confession, on the night of 7 October 2013 he crossed the border and
entered the Democratic People’s Republic of Korea with an individual who he thought was
a collaborator from the Democratic People’s Republic of Korea. He was apprehended by the
authorities of the Democratic People’s Republic of Korea on 8 October 2013 at around
4.40 a.m. He was carrying with him copies of the Bible, memory cards, MP3 modules,
medicines and food, microcameras and video CDs with explicit content.
16.
Reportedly, this was not the first time that the authorities of the Democratic People’s
Republic of Korea had held a staged news conference where detainees were presented before
the media to make statements that they later withdrew.
17.
There seemingly exists a slightly different account of the circumstances of
Mr. Jung-wook Kim’s arrest and detention, according to which he helped escapees and
focused on humanitarian assistance for people in the Democratic People’s Republic of Korea
because the authorities of that country were opposed to religion. His business partner invited
him to visit the country promising access to the clandestine church. Despite concerns about
the visit, Mr. Jung-wook Kim went ahead with it.
18.
According to that account, Mr. Jung-wook Kim entered the Democratic People’s
Republic of Korea around 20 September 2013 but was arrested almost immediately by the
authorities upon entering Sinuiju. His ligaments were reportedly torn by severe torture
inflicted by the authorities.
19.
On 30 May 2014, the State media of the Democratic People’s Republic of Korea
reported that the Supreme Court (renamed the Central Court in 2016) had tried and convicted
Mr. Jung-wook Kim and sentenced him to life imprisonment with labour. He had been
indicted for violations of article 60 (conspiracy to subvert the State) (currently art. 61 (act of
subverting the State)), article 64 (currently art. 67) (espionage), article 62 (currently art. 66)
(anti-State propaganda and agitation) and article 221 (currently art. 260) (illegal border
crossing) of the Criminal Code. The judge had presented the religious books and memory
cards, the videos with explicit content and the spying hardware that Mr. Jung-wook Kim had
brought with him. Mr. Jung-wook Kim had admitted to all his crimes; the prosecutor had
sought the death sentence, while his lawyer had pleaded for a penalty other than death, despite
the gravity of his criminal acts and the consequences, as he had been genuinely repentant.
20.
The authorities have reportedly used torture to extract confessions from
Mr. Jung-wook Kim. His interrogation was carried out without the presence of legal counsel
and while he was being held incommunicado. His right to consular assistance was also
reportedly breached.
21.
On 10 June 2014, the Government of the Republic of Korea proposed a meeting to
discuss Mr. Jung-wook Kim’s case. However, on 12 June 2014, the Government of the
Democratic People’s Republic of Korea replied that Mr. Jung-wook Kim had illegally
entered the country to commit hostile anti-Republic acts under the cover of being a pastor
and had been exposed and arrested and that his case had been handled in accordance with the
law.
22.
Mr. Jung-wook Kim continues to serve his sentence in a detention facility for foreign
detainees at an unspecified location.
(iii)
Arrests and detentions of Kook-kie Kim and Chun-gil Choi
23.
In October 2014, Mr. Kook-kie Kim was reportedly lured by traders taking orders
from the State Security Department to travel to the Democratic People’s Republic of Korea
to observe the existence of clandestine churches. He was arrested at an unspecified location
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inside the Democratic People’s Republic of Korea. At the time of the arrest, the authorities
did not explain to him the reasons for his arrest, nor did they state the charges against him
promptly. Furthermore, they did not present an arrest warrant.
24.
Similarly, in December 2014, Mr. Chun-gil Choi was reportedly lured across the
border to the Democratic People’s Republic of Korea and arrested by the State Security
Department. At the time of the arrest, the authorities did not explain to him the reasons for
his arrest, nor did they state the charges against him promptly. Furthermore, they did not
present an arrest warrant.
25.
Mr. Kook-kie Kim and Mr. Chun-gil Choi were disappeared and held incommunicado
for almost the entire duration of their detention, except during their appearance before the
State media and during their trial.
26.
On 26 March 2015, in their first public appearance since their respective arrests, at a
press conference held at the People’s Palace of Culture in Pyongyang, Mr. Kook-kie Kim
and Mr. Chun-gil Choi confessed and apologized for their “absolutely unforgivable criminal
acts” as intelligence spies of the Republic of Korea, namely: (a) spying acts opposing the
Democratic People’s Republic of Korea; (b) slanderous acts against the Democratic People’s
Republic of Korea; (c) criminal acts to break up the Democratic People’s Republic of Korea
from inside; and (d) luring residents of the Democratic People’s Republic of Korea to the
Republic of Korea.
27.
On 2 April 2015, a statement issued by the spokesperson of the National Committee
for the Peaceful Reunification of the Fatherland (of the Democratic People’s Republic of
Korea) condemned the “anti-Republic spying and slanderous machinations” confessed to by
Mr. Kook-kie Kim and Mr. Chun-gil Choi at the recent press conference, and referred to
Mr. Jung-wook Kim’s earlier case as another attempt by the Republic of Korea to deny
“abominable criminal acts”.
28.
On 3 April 2015, in response to that statement, the Ministry of Unification of the
Republic of Korea demanded the release and return of Mr. Jung-wook Kim, Mr. Kook-kie
Kim and Mr. Chun-gil Choi.
29.
On 3 May 2015, the authorities of the Democratic People’s Republic of Korea allowed
a visiting CNN team to separately interview Mr. Kook-kie Kim and Mr. Chun-gil Choi, with
guards present, in different rooms of a hotel in Pyongyang, where they admitted to the
allegations against them and said they were “being kept in a place that is not a prison but that
belongs to the agency that is investigating them” where they were “being treated well”.
30.
On 23 June 2015, the State media of the Democratic People’s Republic of Korea
reported that the Supreme Court had tried and convicted Mr. Kook-kie Kim and Mr. Chun-gil
Choi and sentenced them to life imprisonment with labour. According to the report, they had
been indicted for violations of article 60 (conspiracy to subvert the State) (currently art. 61
(act of subverting the State)), article 64 (currently art. 67) (espionage), article 65 (destruction
and sabotage) and article 221 (currently art. 260) (illegal border crossing) of the Criminal
Code. The trial reportedly lasted only one day.
31.
It was further stated in the report that both individuals had admitted to all their crimes
and that the evidence against them had been presented; and that the prosecutor had sought
sentences of death against them while their lawyers had pleaded for a penalty other than
death, despite the gravity of their criminal acts and the consequences, so as to allow them to
repent more deeply for their crimes while directly witnessing the prosperous Democratic
People’s Republic of Korea.
32.
The authorities allegedly used torture to extract confessions from Mr. Kook-kie Kim
and Mr. Chun-gil Choi. Their interrogation was carried out without the presence of legal
counsel. Their right to consular assistance was also reportedly breached.
33.
Although the State media claimed that the two individuals had been represented by a
lawyer during the trial at the Supreme Court, that lawyer’s name was not revealed. The State
media did not mention the availability of legal counsels during the pretrial detention and
interrogation of the two defendants.
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34.
The Supreme Court’s judgment of 23 June 2015 concerning Mr. Kook-kie Kim and
Mr. Chun-gil Choi was reportedly not shared with their families, lawyers of their own
choosing or consular officers.
35.
Mr. Kook-kie Kim and Mr. Chun-gil Choi continue to serve their sentences at the
unspecified location.
36.
The cases of the three aforementioned individuals have received considerable
attention from various United Nations mechanisms.2
(iv)
Legal analysis
37.
The source submits that the arrest and detention of Mr. Jung-wook Kim, Mr. Kook-kie
Kim and Mr. Chun-gil Choi is arbitrary, falling under categories I, II, III and V of the
Working Group.
38.
In relation to category I, it recalls that the above-mentioned individuals were not
presented with an arrest warrant or informed of the reasons for their arrests at the time of the
arrests.
39.
The source notes that the right to be presented with an arrest warrant to ensure the
exercise of effective control by a competent, independent and impartial judicial authority is
procedurally inherent in the right to liberty and security of person and the prohibition of
arbitrary deprivation under articles 3 and 9 of the Universal Declaration of Human Rights
and article 9 (1) of the Covenant, as well as principles 2, 4 and 10 of the Body of Principles
for the Protection of All Persons under Any Form of Detention or Imprisonment.3
40.
Furthermore, the authorities should have informed the three aforementioned
individuals of the reasons for their arrests at the time of arrest, and of the charges against
them promptly.4 Failure to do so violates article 9 of the Universal Declaration of Human
Rights and article 9 (2) of the Covenant, as well as principle 10 of the Body of Principles for
the Protection of All Persons under Any Form of Detention or Imprisonment, and renders
arrests devoid of any legal basis. The individuals in question were held incommunicado for
almost the entire duration of their detention, except during their forced appearance before the
State media, and in their show trials on 30 May 2014 and 23 June 2015.
41.
Such refusal to disclose the fate or whereabouts of the person concerned or to
acknowledge his or her 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.5 It
also negates the right to challenge the legality of detention, in violation of articles 6 and 8 of
the Universal Declaration of Human Rights and articles 2 (3) and 9 (4) of the Covenant.6
42.
The above-mentioned individuals were not brought promptly before a judge – within
48 hours of their arrest barring absolutely exceptional circumstances, as per the international
standard set out in the Working Group’s jurisprudence,7 nor were they afforded the right to
2 A/70/362, para. 15; A/73/308, para. 20; General Assembly resolution 72/188, para. 15 (g); Human
Rights Council resolution 37/28, para. 2 (j); and General Assembly resolution 78/218, para. 3.
3 Decisions No. 1/1993, paras. 6 and 7; No. 3/1993, paras. 6 and 7; No. 4/1993, para. 6; No. 5/1993,
paras. 6, 8 and 9; No. 27/1993, para. 6; No. 30/1993, paras. 14 and 17 (a); No. 36/1993, para. 8;
No. 43/1993, para. 6; and No. 44/1993, paras. 6 and 7. See also opinions No. 38/2013, para. 23;
No. 48/2016, para. 48; No. 21/2017, para. 46; No. 63/2017, para. 66; No. 76/2017, para. 55;
No. 83/2017, para. 65; No. 88/2017, para. 27; No. 93/2017, para. 44; No. 3/2018, para. 43;
No. 10/2018, para. 46; No. 26/2018, para. 54; No. 30/2018, para. 39; No. 38/2018, para. 63;
No. 47/2018, para. 56; No. 51/2018, para. 80; No. 63/2018, para. 27; No. 68/2018, para. 39; and
No. 82/2018, para. 29.
4 Opinions No. 10/2015, para. 34; No. 32/2019, para. 29; No. 33/2019, para. 48; No. 44/2019, para. 52;
No. 45/2019, para. 51; and No. 46/2019, para. 51.
5 Opinion No. 82/2018, para. 28.
6 Opinions No. 57/2016, paras. 110 and 111; No. 2/2018, para. 49; No. 83/2018, para. 47; No. 11/2019,
para. 63; and No. 30/2019, para. 30.
7 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, paras. 2 and 3.
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take proceedings before a court so that it may decide without delay on the lawfulness of the
detention in accordance with articles 3, 8 and 9 of the Universal Declaration of Human Rights
and articles 2 (3) and 9 (1) and (4) of the Covenant as well as principles 11, 32 and 37 of the
Body of Principles for the Protection of All Persons under Any Form of Detention or
Imprisonment.
43.
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 indicates
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.8 This right, which is a peremptory norm of international law,
applies to all forms and situations of deprivation of liberty.
44.
The three above-mentioned individuals were deprived of liberty under the following
provisions of the Criminal Code: article 60 (conspiracy to subvert the State) (currently art. 61
(act of subverting the State)); article 62 (currently art. 66) (anti-State propaganda and
agitation); article 64 (espionage); article 65 (destruction or sabotage); and article 221
(currently art. 260) (illegal border crossing).
45.
The term “anti-State purpose” under article 60 (conspiracy to subvert the State) and
article 65 (destruction or sabotage) is unacceptably vague. The commission of inquiry on
human rights in the Democratic People’s Republic of Korea specifically recommended
reforming the Criminal Code and the Criminal Procedure Code to abolish vaguely worded
“anti-State” and “anti-people” crimes.9
46.
Vaguely worded provisions, which cannot qualify as lex certa, could be used to
deprive individuals of their liberty without a specific legal basis and violate the due process
of law undergirded by the principle of legality in article 11 (2) of the Universal Declaration
of Human Rights and article 15 (1) of the Covenant. As the Working Group has previously
stated, the principle of legality requires that laws be formulated with sufficient precision so
that the individual can access and understand the law and regulate his or her conduct
accordingly.10
47.
The Human Rights Committee has found, in its case law, that detention pursuant to
proceedings that were incompatible with article 15 of the Covenant are necessarily arbitrary
within the meaning of article 9 (1) of the Covenant.
48.
The principle of legality further requires the substance of penal law to be due and
appropriate in a democratic society that respects human dignity and rights. Hence, the penal
punishment must satisfy the principle of necessity, the prerequisite of injustice and the
principle of guilt in the interests of formal and material justice.11
49.
The provisions of article 60 (conspiracy to subvert the State) (currently art. 61 (act of
subverting the State)) and article 65 (destruction or sabotage) that provide for imprisonment
for a minimum of five years and even death for aggravating circumstances, for peaceful
religious and humanitarian activities, are neither necessary to protect public or private
interests against injury nor proportionate to guilt.
50.
Lastly, the source notes that the laws adopted by the Supreme People’s Assembly,
including the Criminal Code and the Criminal Procedure Code, are not accessible to the
public.
51.
In relation to category II, the source submits that Mr. Jung-wook Kim, Mr. Kook-kie
Kim and Mr. Chun-gil Choi have been deprived of their liberty for the exercise of their rights
to freedom of movement and residence, freedom of thought, conscience and religion,
freedom of opinion and expression and freedom of peaceful assembly and association.
8 A/HRC/25/CRP.1, para. 1220 (c).
9 Opinions No. 10/2018, para. 50; and No. 36/2019, para. 40.
10 Opinion No. 62/2018, para. 57.
11 Opinions No. 10/2018, para. 53; and No. 36/2019, para. 44.
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52.
Article 29 (2) of the Universal Declaration of Human Rights provides that the only
legitimate limitations to the exercise of one’s rights and freedoms must be for the purposes
of securing due recognition and respect for the rights and freedoms of others and of meeting
the just requirements of morality, public order and the general welfare in a democratic
society. Article 1 (3) of the Declaration on the Elimination of All Forms of Intolerance and
of Discrimination Based on Religion or Belief also stipulates that freedom to manifest one’s
religion or belief may be subject only to such limitations as are prescribed by law and are
necessary to protect public safety, order, health or morals or the fundamental rights and
freedoms of others.
53.
The principle of necessity and proportionality inheres equally in all fundamental
human rights. The Working Group, in its deliberation No. 9, confirmed that the notion of
“arbitrary” stricto sensu includes both the requirement that a particular form of deprivation
of liberty is taken in accordance with the applicable law and procedure and that it is
proportional to the aim sought, reasonable and necessary.12 In its jurisprudence, with regard
to the application of the principle of proportionality, the Working Group has applied the
four-pronged test of: (a) whether the objective of the measure is sufficiently important to
justify the limitation of a protected right; (b) whether the measure is rationally connected to
the objective; (c) whether a less intrusive measure could have been used without
unacceptably compromising the achievement of the objective; and (d) whether, balancing the
severity of the measure’s effects on the rights of the persons to whom it applies against the
importance of the objective, to the extent that the measure will contribute to its achievement,
the former outweighs the latter.13
54.
In view of this standard, the situation in the present case falls short of such
requirement. There is no evidence of any violence or incitement to violence, and the standard
for permissible restriction of the right, requiring a legitimate aim or objective in a free and
democratic society, has not been met.
55.
Moreover, the language used in article 60 (conspiracy to subvert the State) and
article 65 (destruction or sabotage) such as “anti-State purpose” is vague and overly broad.
These provisions appear to lack a clear definition and as such may be used to punish the
peaceful exercise of human rights.
56.
The source thus concludes that the deprivation of liberty of Mr. Jung-wook Kim,
Mr. Kook-kie Kim and Mr. Chun-gil Choi is arbitrary, falling within category II, as it violates
articles 13 (1) and (2), 18, 19 and 20 of the Universal Declaration of Human Rights and
articles 12 (1) and (2), 18 (1) and (3), 19 (1) and (2), 21 and 22 (1) of the Covenant.
57.
In relation to category III, the source submits that the authorities failed to respect the
right to legal assistance of the three individuals concerned. Their 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 and
articles 9 (1) and 14 (1) of the Covenant, has also been infringed. Their interrogation without
the presence of lawyers while being held incommunicado deprived them of the right to legal
counsel at a critical stage of the criminal proceedings and removed the effective checks
against torture and other coercive means used in the attempt to extract their confessions.
58.
Although the State media claimed that Mr. Jung-wook Kim, Mr. Kook-kie Kim and
Mr. Chun-gil Choi were represented by a lawyer, the lawyer’s names were not revealed. Also,
the State media only mentioned the presence of and defence by the lawyer during the trials
at the Supreme Court on 30 May 2014 and 23 June 2015 and was silent about availability of
legal assistance during the pretrial detention and interrogations.
59.
The confessions of the three defendants at their first public appearances since their
arrests, at press conferences held on 27 February 2014 and 26 March 2015, violated their
right to the presumption of innocence under article 11 (1) of the Universal Declaration of
Human Rights and article 14 (2) of the Covenant.
12 A/HRC/22/44, sect. III, para. 61.
13 Opinions No. 54/2015, para. 89; No. 87/2018, para. 64; No. 32/2020, para. 49; and No. 92/2020,
para. 63.
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60.
The trials at the Supreme Court of the above-mentioned individuals reportedly lasted
one day. Therefore, these trials were reportedly not a fair and public hearing by a competent,
independent and impartial tribunal, as required by article 10 of the Universal Declaration of
Human Rights and article 14 (1) of the Covenant.
61.
The source maintains that the Supreme Court is not a competent, independent and
impartial tribunal. The names of the Supreme Court judges who tried and convicted the
above-mentioned individuals remain unknown. The trials were not known about in advance
and were reported only after their convictions, contrary to article 14 (1) of the Covenant.
62.
Furthermore, there is no report or proof that Mr. Jung-wook Kim, Mr. Kook-kie Kim
and Mr. Chun-gil Choi were informed promptly of the nature and cause of the charges against
them, contrary to article 14 (3) (a) of the Covenant.
63.
There is no proof that the three defendants had adequate time and facilities for the
preparation of their defence or an opportunity to communicate with counsel of their own
choosing, in contravention of article 14 (3) (b) of the Covenant.
64.
There is no proof that they were allowed to defend themselves in person or through
legal assistance of their own choosing. Neither is there proof that they were informed, if they
did not have legal assistance, of this right. According to the source, this contradicts provisions
under article 14 (3) (d) of the Covenant.
65.
There is no proof that Mr. Jung-wook Kim, Mr. Kook-kie Kim and Mr. Chun-gil Choi
were allowed to examine, or to have examined, the witnesses against them. Furthermore, they
were not allowed to obtain the attendance and examination of witnesses on their behalf under
the same conditions as witnesses against them, contrary to article 14 (3) (e) of the Covenant.
The three defendants were most likely compelled to testify against themselves and to confess
guilt, contrary to provisions under article 14 (3) (g) of the Covenant.
66.
Furthermore, neither of the three above-mentioned individuals were allowed to
exercise the right to have their conviction and sentence reviewed by a higher tribunal as
provided for in article 14 (5) of the Covenant. Article 53 (jurisdiction of the Supreme Court)
of the Criminal Procedure Code provides that “the Supreme Court tries appeal or complaint
cases concerning first instance trials by the provincial (direct-administered city) courts and
special courts. According to the needs, it may try directly a first instance case under the
jurisdiction of any court or transfer it to another court of the same level or kind.” The Supreme
Court’s judgment was not shared with the defendants’ families, lawyers of their own
choosing or consular officers.
67.
The reports of torture by the authorities to extract a confession from the three
individuals named above suggest a prima facie breach of the absolute prohibition of torture,
which is a peremptory norm of international law, of article 5 of the Universal Declaration of
Human Rights, of principle 6 of the Body of Principles for the Protection of All Persons
under Any Form of Detention or Imprisonment and of rule 1 of the United Nations Standard
Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules).
68.
Not only is torture a grave human rights violation, it also seriously undermines the
ability of persons to defend themselves and hinders their exercise of the right to a fair trial,
especially in light of the right not to be compelled to testify against oneself or to confess guilt
under provisions of article 14 (3) (g) of the Covenant. The use of a confession extracted
through ill-treatment also constitutes a violation of principle 21 of the Body of Principles for
the Protection of All Persons under Any Form of Detention or Imprisonment.
69.
The Government appears not to have fully implemented the formal procedures
necessary to establish the legal basis for the arrest and detention of a foreign national under
the provisions of article 36 of the Vienna Convention on Consular Relations, to which the
Democratic People’s Republic of Korea is a party.
70.
The source notes that the General Assembly has strongly urged the Government of
the Democratic People’s Republic of Korea to provide citizens of other countries detained in
the country with protections, including freedom of communication with, and access to,
consular officers in accordance with the Vienna Convention on Consular Relations, to which
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9
the Democratic People’s Republic of Korea is a party, and any other necessary arrangements
to confirm their status and to communicate with their families.14
71.
The Human Rights Council has also urged the Government of the Democratic
People’s Republic of Korea to provide detained nationals of other countries with protections,
including freedom of communication with and access to consular officers, in accordance with
the Vienna Convention on Consular Relations, to which the Democratic People’s Republic
of Korea is a party, and any other necessary arrangements to confirm their status and to
communicate with their families.15
72.
The source emphasizes that the importance of consular assistance for a detained or
imprisoned foreign national is recognized in the Body of Principles for the Protection of All
Persons under Any Form of Detention or Imprisonment (principle 16 (2)) by specifically
mentioning his or her right to communicate by appropriate means with a consular post or the
diplomatic mission of the State of which he or she is a national. The Nelson Mandela Rules
also provide, in rule 62 (1), that prisoners who are foreign nationals are to be allowed
reasonable facilities to communicate with the diplomatic and consular representatives of the
State to which they belong.
73.
Failure to respect the right of Mr. Jung-wook Kim, Mr. Kook-kie Kim and
Mr. Chun-gil Choi to consular protection under customary international law, as codified in
article 36 of the Vienna Convention on Consular Relations, is in violation of articles 9, 10
and 11 (1) of the Universal Declaration of Human Rights, articles 9 (1) and 14 (1) of the
Covenant and principle 16 (2) of the Body of Principles for the Protection of All Persons
under Any Form of Detention or Imprisonment.
74.
Finally, in relation to category V, the source submits that the deprivation of liberty of
the three individuals resulted from the questionable claim that they were foreign agents and
their religious and humanitarian work as a Christian missionaries. The source argues that the
three above-mentioned individuals have become the target of official persecution because of
their foreign nationality and their religion.
75.
The source notes that six citizens of the Republic of Korea have been arrested and
have continued to be detained by the authorities of the Democratic People’s Republic of
Korea in the past 10 years.
76.
The source further notes that the Working Group, in its jurisprudence, has identified
a practice of arbitrarily detaining persons who are foreign nationals, dual nationals or
nationals with permanent residence in another country in concluding that an individual was
deprived of his or her liberty on discriminatory grounds, on the basis of being a foreign
national, in violation of his or her rights under articles 2 and 7 of the Universal Declaration
of Human Rights and articles 2 (1) and 26 of the Covenant, and that his or her deprivation of
liberty was arbitrary, falling within category V.16
77.
The Declaration Against Arbitrary Detention in State-to-State Relations provides that
“the arbitrary arrest or detention of foreign nationals to compel action or to exercise leverage
over a foreign government is contrary to international law, undermines international
relations, and has a negative impact on foreign nationals travelling, working and living
abroad”.
78.
There is a pattern of placing foreign detainees on trial on State security grounds by
the authorities of the Democratic People’s Republic of Korea and it is discriminatory in
nature.
(b)
Response from the Government
79.
On 26 July 2024, the Working Group transmitted the allegations from the source to
the Government under its regular communications procedure. The Working Group requested
14 General Assembly resolutions 72/188, para. 15 (g); 73/180, para. 16 (g); 74/166, para. 17 (g); 75/190,
para. 17 (g); 76/177, para. 18 (h); 77/226, para. 18 (h); and 78/218, para. 18 (h).
15 Human Rights Council resolutions 37/28, para. 2 (j); 40/20, para. 2 (j); 43/25, para. 2 (j); 46/17,
para. 2 (k); 49/22, para. 2 (l); 52/28, para. 2 (l); and 55/21, para. 2 (l).
16 Opinion No. 37/2023, paras. 75 and 78.
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the Government to provide detailed information by 24 September 2024 about the current
situation of Mr. Jung-wook Kim, Mr. Kook-kie Kim and Mr. Chun-gil Choi. The Working
Group also requested the Government to clarify the legal provisions justifying their detention,
as well as their compatibility with the obligations of the Government of the Democratic
People’s Republic of Korea under international human rights law and in particular with
regard to the treaties ratified by the State. Moreover, the Working Group called upon the
Government to ensure physical and mental integrity of Mr. Jung-wook Kim, Mr. Kook-kie
Kim and Mr. Chun-gil Choi.
80.
The Government submitted its response on 12 August 2024, in which it stated that the
communication was “part of the stereotyped anti-Democratic People’s Republic of Korea
‘human rights’ racket using every conceivable means” and that it was “an unacceptable act
of political scheming that tarnishes the image of our dignified State and seriously infringes
on the judicial jurisdiction of a sovereign State”.
81.
The Government noted that “the Democratic People’s Republic of Korea resolutely
rejects this as an infringement on our sovereignty and interference in our internal affairs”.
82.
The Government recommended that the Working Group “see through the vicious
motive behind the above communication and take a fair and critical attitude toward the
ill-minded attempts by the hostile forces that recklessly link any issues with the Democratic
People’s Republic of Korea on the basis of false information and conjecture”.
(c)
Further comments from the source
83.
The Government’s reply was sent to the source for further comments on 16 August
2024, which the source submitted on 16 August 2024. In its further comments, the source
pointed out that the Government’s response contained no substance concerning the arrest,
detention and disappearance of the three missionaries.
84.
The source further referred to preambular paragraph 19 of resolution 55/21 of the
Human Rights Council of 4 April 2024, in which the Council stressed “again with grave
concern the urgency and importance of the issue of international abductions, which involves
a serious violation of human rights, and of the immediate return of all abductees, as they and
their family members are ageing and there is no time to lose, expressing grave concern at the
long years of severe suffering experienced by abductees and their families”, and expressed
grave concern at “the identical and non-substantive replies by the Democratic People’s
Republic of Korea to the numerous communications transmitted by the Working Group on
Enforced or Involuntary Disappearances and the Working Group on Arbitrary Detention”.
85.
The source regretted that the Government had repeated its practice of conveying
“identical and non-substantive replies” to the communications transmitted by the Working
Group.
2.
Discussion
86.
The Working Group regrets the repeated unwillingness of the Government to engage
with it constructively over the allegations raised.17 It reiterates that it always seeks the
productive engagement of Governments during its regular communications procedure.
However, in those instances where Governments choose not to engage with the Working
Group or to limit such engagement to a summary dismissal of the allegations raised, the
Working Group must limit itself to assessing the credibility and reliability of the source solely
on the basis of the information at its disposal. In that regard, the Working Group notes that
the source’s account is consistent and presents no contradictions.
87.
In determining whether the detention of Mr. Jung-wook Kim, Mr. Kook-kie Kim and
Mr. Chun-gil Choi is arbitrary, the Working Group has regard to the principles established in
its jurisprudence to deal with evidentiary issues. If the source has established a prima facie
case for breach of international law constituting arbitrary detention, the burden of proof
should be understood to rest upon the Government if it wishes to refute the allegations. Mere
17 Opinions No. 69/2019, No. 52/2019, No. 54/2018 and No. 54/2017.
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assertions by the Government that lawful procedures have been followed are not sufficient
to rebut the source’s allegations.18
88.
The source has argued that the detention of Mr. Jung-wook Kim, Mr. Kook-kie Kim
and Mr. Chun-gil Choi is arbitrary and falls under categories I, II, III and V of the Working
Group. The Working Group will proceed to examine the submissions under each of the
categories in turn.
(a)
Category I
89.
The source submitted that none of the detainees had been presented with any arrest
warrant or been informed of the reasons for their arrests at the moment of arrest.
90.
The Working Group recalls that article 9 (2) of the Covenant provides that anyone
who is arrested is to be informed, at the time of arrest, of the reasons for the arrest and is to
be promptly informed of any charges. The Working Group has previously stated that in order
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.19 This is typically done through an arrest warrant or arrest order
(or equivalent document).20 The right to be presented with an arrest warrant is inherent to the
right to liberty and security of person and to the prohibition of arbitrary detention, under
articles 3 and 9 of the Universal Declaration of Human Rights as well as principles 2, 4 and
10 of the Body of Principles for the Protection of All Persons under Any Form of Detention
or Imprisonment.21
91.
As the Government does not explicitly contest the source’s allegation that no arrest
warrant was presented to Mr. Jung-wook Kim, Mr. Kook-kie Kim and Mr. Chun-gil Choi,
the Working Group concludes that their detention failed to satisfy the requirements of
article 9 (2) of the Covenant.
92.
The Working Group further notes that it is not contested by the Government that the
above-mentioned individuals were not brought promptly before a judge, within 48 hours of
their arrest, in accordance with international standards.22 According to the source, they were
held incommunicado for the entirety of their detentions, except for short periods where they
appeared before the media and the trial court. The Government has not submitted any
information to the contrary. The Working Group therefore concludes that the three
individuals were not brought promptly before a judicial authority, in violation of article 9 (3)
of the Covenant. Therefore, in the arrest and detention of Mr. Jung-wook Kim, Mr. Kook-kie
Kim and Mr. Chun-gil Choi, the Government acted contrary to articles 3 and 9 of the
Universal Declaration of Human Rights, article 9 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.
93.
Furthermore, as the Working Group has consistently argued, holding persons
incommunicado violates their right to challenge the lawfulness of detention before a court
which is enshrined in article 9 (4) of the Covenant. The Working Group stresses that judicial
18 A/HRC/19/57, para. 68.
19 Opinions No. 9/2019, para. 29; No. 46/2019, para. 51; and No. 59/2019, para. 46.
20 Opinions No. 88/2017, para. 27; No. 3/2018, para. 43; and No. 30/2018, para. 39. In cases of arrests
made in flagrante delicto, the opportunity to obtain a warrant will typically not be available.
21 The Working Group has maintained from its early years that the practice of arresting persons without
a warrant renders their detention arbitrary. See decisions No. 1/1993, paras. 6 and 7; No. 3/1993,
paras. 6 and 7; No. 4/1993, para. 6; No. 5/1993, paras. 6, 8 and 9; No. 27/1993, para. 6; No. 30/1993,
paras. 14 and 17 (a); No. 36/1993, para. 8; No. 43/1993, para. 6; and No. 44/1993, paras. 6 and 7. For
more recent jurisprudence, see opinions No. 66/2019, para. 61; No. 6/2020, para. 40; No. 11/2020,
para. 38; No. 13/2020, para. 47; No. 14/2020, para. 50; and No. 89/2020.
22 Human Rights Committee, general comment No. 35 (2014), para. 33, citing
CCPR/C/107/D/1787/2008, paras. 7.3–7.5. See also CCPR/C/79/Add.89, para. 17;
CCPR/C/SLV/CO/6, para. 14; and CCPR/CO/70/GAB, para. 13; and opinions No. 57/2016,
paras. 110 and 111; No. 2/2018, para. 49; No. 83/2018, para. 47; No. 11/2019, para. 63; No. 20/2019,
para. 66; No. 26/2019, para. 89; No. 30/2019, para. 30; No. 36/2019, para. 36; No. 42/2019, para. 49;
No. 51/2019, para. 59; No. 56/2019, para. 80; No. 76/2019, para. 38; and No. 82/2019, para. 76.
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oversight of detention is a fundamental safeguard of personal liberty and is essential in
ensuring that detention has a legal basis. In the absence of any information to the contrary,
the Working Group considers that the detention of Mr. Jung-wook Kim, Mr. Kook-kie Kim
and Mr. Chun-gil Choi amounted to incommunicado detention, as they were denied any
contact with the outside world. This also violated their right to an effective remedy under
article 8 of the Universal Declaration of Human Rights and article 2 (3) of the Covenant. The
Working Group further notes that giving prompt and regular access to family members, as
well as to independent medical personnel and lawyers, is an essential and necessary
protection against arbitrary detention which is enshrined in article 9 of the Universal
Declaration of Human Rights, as well as a safeguard for the prevention of torture. 23
Moreover, prohibiting contact with the outside world may violate rule 58 of the Nelson
Mandela Rules24 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.
94.
In the light of the above, the Working Group considers that the deprivation of liberty
of Mr. Jung-wook Kim, Mr. Kook-kie Kim and Mr. Chun-gil Choi is arbitrary under
category I.
(b)
Category II
95.
The source argues that the detention of the three above-mentioned individuals is
arbitrary under category II as their arrest and detention is related to their rights to freedom of
movement and residence, freedom of thought, conscience and religion, freedom of opinion
and expression and freedom of peaceful assembly and association. The Government has
chosen not to address these specific allegations.
96.
The Working Group considers that the prosecutions of Mr. Jung-wook Kim,
Mr. Kook-kie Kim and Mr. Chun-gil Choi should be assessed against the backdrop of the
current human rights situation in the country. Despite the constitutional guarantees of
freedom of movement and expression, the reality is that these rights are systematically
suppressed through strict internal controls, mandatory permission for travel and pervasive
surveillance of those entering the country. The three missionaries were convicted of
“anti-State” crimes, including charges of conspiracy to subvert the State, anti-State
propaganda, espionage and illegal border crossing. However, these charges arise from the
ambiguous and expansive legal framework, which includes provisions in its Criminal
Procedure Code to combat “anti-State and anti-national crimes” without clearly defining
what constitutes such crimes. This lack of clarity allows the authorities to wield these laws
arbitrarily, suppressing dissent and curtailing individual freedoms without legitimate
justification, as has been highlighted by the Special Rapporteur on the situation of human
rights in the Democratic People’s Republic of Korea.25
97.
United Nations mechanisms have long voiced concern over practices in the
Democratic People’s Republic of Korea, with the Human Rights Committee noting as early
as 2001 that the undefined notion of “threat to State security” is routinely used to restrict
freedom of expression and freedom of conscience.26 The commission of inquiry on human
rights in the Democratic People’s Republic of Korea has specifically recommended
abolishing the vaguely worded “anti-State” and “anti-people” crimes from the Criminal Code
and the Criminal Procedure Code, underscoring that these laws are designed not to protect
the State from genuine threats, but rather to silence perceived opponents.27 The Special
Rapporteur on the situation of human rights in the Democratic People’s Republic of Korea
was of the view that the State needed to review what acts could genuinely be a threat to State
security, and to define “anti-State” and “anti-people” crimes in detail.28
98.
The present case concerns Mr. Jung-wook Kim, Mr. Kook-kie Kim and Mr. Chun-gil
Choi – missionaries, whose actions were guided by their beliefs and commitment to their
23 Opinion No. 19/2022, para. 52.
24 Opinions No. 35/2018, para. 39; No. 44/2019, paras. 74 and 75; and No. 45/2019, para. 76.
25 A/74/275 and A/76/242.
26 CCPR/CO/72/PRK.
27 See A/HRC/25/CRP.1.
28 A/74/275, para. 36.
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faith – a right enshrined in the Universal Declaration of Human Rights and the Covenant,
which the Democratic People’s Republic of Korea, as a signatory, is obliged to uphold. The
principles of freedom of thought, conscience and religion, as well as freedom of expression,
require that any limitations imposed be necessary, proportionate, and applied solely for
legitimate purposes. The repressive measures in the country, including arrests, convictions
and detentions based on such ill-defined offences, fall far outside of these standards. Rather
than demonstrating a legitimate exercise of State authority, these actions constitute a severe
infringement on the missionaries’ right to freely express their beliefs and opinions.
99.
Given the general context of the case and the failure by the Government to provide a
detailed account of the charges and evidence against the three individuals, it is clear to the
Working Group that in fact the basis for their arrest and subsequent conviction under
“anti-State” charges was their exercise of freedom of expression, freedom of conscience and
freedom of movement, guaranteed by articles 13, 18 and 19 of the Universal Declaration of
Human Rights and articles 12, 19 and 21 of the Covenant.
100.
The Working Group concludes that the arrest and detention of Mr. Jung-wook Kim,
Mr. Kook-kie Kim and Mr. Chun-gil Choi is arbitrary and falls under category II.
(c)
Category III
101.
Given its finding that the deprivation of liberty of Mr. Jung-wook Kim, Mr. Kook-kie
Kim and Mr. Chun-gil Choi is arbitrary under category II, the Working Group wishes to
emphasize that in such circumstances, no trial should have taken place. However, as their
trial has taken place, the Working Group will proceed to examine the source’s submissions
concerning the denial of fair trial rights to them.
102.
The source submits under this category that the three individuals were denied access
to a lawyer. The Government has chosen not to address this allegation. The Working Group
recalls that all 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 their
apprehension, and that such access must be provided without delay.29 The right to prompt
legal assistance is essential to the right to a fair trial, as it serves to ensure that the principle
of equality of arms is duly observed. In the present case, given the source’s uncontested
submissions that Mr. Jung-wook Kim, Mr. Kook-kie Kim and Mr. Chun-gil Choi were held
incommunicado, it appears that articles 10 and 11 of the Universal Declaration of Human
Rights and article 14 (3) (d) of the Covenant were violated.
103.
The Working Group considers that this violation substantially undermined and
compromised the detainees’ capacity to have adequate time and facilities for the preparation
of their defence, in contravention of article 14 (3) (b) of the Covenant. Equally, the
Government failed to refute the source’s submissions that Mr. Jung-wook Kim, Mr. Kook-
kie Kim and Mr. Chun-gil Choi were not allowed to examine, or to have examined, the
witnesses against them, nor were they allowed to obtain the attendance and examination of
witnesses on their behalf, contrary to article 14 (3) (e) of the Covenant.
104.
As regards independence of the judiciary, the Working Group recalls that this is a sine
qua non for the right to a fair hearing, which is enshrined in article 10 of the Universal
Declaration of Human Rights and article 14 of the Covenant. The notion of the separation of
powers between the political organs of government and the judiciary, as well as safeguarding
the independence of the judiciary, have assumed growing importance. The Working Group
refers to the findings of the Special Rapporteur on the situation of human rights in the
Democratic People’s Republic of Korea that even though the law of the Democratic People’s
Republic of Korea law guarantees judicial independence, the judicial institutions are only
delegated bodies with limited power that are managed and supervised by higher authorities,
such as the Supreme People’s Assembly and the Workers’ Party of Korea.30 In view of this,
29 A/HRC/45/16, paras. 51 and 52; and 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, principle 9 and guideline 8. See also the Basic Principles on the Role of Lawyers,
paras. 16–22.
30 A/HRC/55/63, para. 15.
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given the submissions of the source and in the absence of any information by the Government
to refute these allegations, the Working Group cannot but find that Mr. Jung-wook Kim,
Mr. Kook-kie Kim and Mr. Chun-gil Choi have not been tried by an independent and
impartial tribunal, contrary to article 10 of the Universal Declaration of Human Rights and
article 14 (1) of the Covenant.
105.
Furthermore, article 14 (1) of the Covenant provides that, in the determination of any
criminal charge, everyone is to be entitled to a public hearing. Article 10 of the Universal
Declaration of Human Rights similarly guarantees the right to a public hearing. As the
Human Rights Committee has explained in its general comment No. 32 (2007): “The
publicity of hearings ensures the transparency of proceedings and thus provides an important
safeguard for the interest of the individual and of society at large.”31 Although the right to a
public hearing is not absolute, it may only be restricted “for reasons of morals, public order
(ordre public) or national security in a democratic society, or when the interest of the private
lives of the parties so requires, or to the extent strictly necessary in the opinion of the court
in special circumstances where publicity would be prejudicial to the interests of justice”, and,
in the absence of such exceptional circumstances, “a hearing must be open to the general
public, including members of the media”, without entrance being limited to a select group of
people.32
106.
As is stated in the source’s submissions, the trials of Mr. Jung-wook Kim,
Mr. Kook-kie Kim and Mr. Chun-gil Choi were closed to the public and the media, in
violation of the above-mentioned provisions. Moreover, the right to a public hearing and the
right to public pronouncement of a judgment are two separate rights under article 14 (1) of
the Covenant, and it follows from the submissions that the second of these two rights was
also violated in the present case. In the absence of any information to the contrary, the
Working Group thus finds that the hearing of the three individuals’ cases behind closed doors
violated their rights under article 10 of the Universal Declaration of Human Rights and
article 14 (1) of the Covenant.
107.
Concerning the allegations by the source that the self-incriminating statements of
Mr. Jung-wook Kim, Mr. Kook-kie Kim and Mr. Chun-gil Choi could have been made under
duress, which was not commented on by the Government, the Working Group notes that the
admission into evidence of a statement allegedly obtained through torture or ill-treatment
renders the entire proceedings unfair, regardless of whether other evidence was available to
support the verdict.33 The burden is on the Government to prove that the statements were
given freely.34 The Government has failed to disprove the source’s allegations that the
absolute prohibition of torture enshrined in article 5 of the Universal Declaration of Human
Rights, article 7 of the Covenant and articles 2 and 16 (1) of the Convention against Torture
and Other Cruel, Inhuman or Degrading Treatment or Punishment has been at stake in the
present case.35 In addition, the use of confessions extracted through ill-treatment that is
tantamount if not equivalent to torture is a breach of article 14 (3) (g) of the Covenant and
may also constitute a violation of the State’s obligations under article 15 of the Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
Furthermore, the Body of Principles for the Protection of All Persons under Any Form of
Detention or Imprisonment specifically prohibits taking undue advantage of the situation of
detention to compel confession or incriminating statements.
108.
Moreover, the source alleges that the fair trial rights of the three individuals were
severely compromised, as the entire trial proceedings were concluded within a single day –
a fact that remains uncontested by the Government. The Working Group expresses deep
concern, finding this to constitute a violation of their fair trial rights guaranteed under
article 10 of the Universal Declaration of Human Rights and article 14 of the Covenant.
31 See para. 28.
32 See para. 29.
33 Opinions No. 73/2019, para. 91; No. 59/2019, para. 70; No. 32/2019, para. 43; No. 52/2018,
para. 79 (i); No. 34/2015, para. 28; and No. 43/2012, para. 51.
34 Human Rights Committee, general comment No. 32 (2007), para. 41; see also opinions No. 86/2020
and No. 41/2020.
35 Arts. 8 (1) and 20 (1) of the Arab Charter on Human Rights.
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While judicial proceedings should indeed be conducted expeditiously, there exists a broader
principle rooted in the proper administration of justice, necessitating a fair balance among its
various aspects. The essence of a fair trial demands that the procedure be adversarial,
thorough, comprehensive and conclusive. Judicial authorities are thus obligated to carefully
assess the material in the case file, ensuring oral presentation of evidence, and opportunities
to cross-examine witnesses, and providing the accused with a full and fair opportunity to
present their case and challenge the evidence brought against them. The court, tasked with
examining both the facts and the law, must conduct a complete evaluation of the accused’s
guilt or innocence. Here, the hasty proceedings that resulted in the sentencing of three
individuals for serious crimes failed to uphold these critical requirements, casting doubt on
the fairness of their trials.
109.
The Working Group further notes the denial to the above-mentioned individuals of
the right to due process, within the ambit of articles 3, 9 and 10 of the Universal Declaration
of Human Rights and articles 9 (1) and 14 (1) of the Covenant, to be visited by and to
correspond with their families and to be given adequate opportunity for communication 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 Nelson Mandela Rules. Giving prompt and regular access to family members,
as well as to independent medical personnel and lawyers, is an essential and necessary
safeguard for the prevention of torture as well as for protection against arbitrary detention
and infringement of personal security.36
110.
Finally, the Working Group notes the Government’s failure to observe the right of
Mr. Jung-wook Kim, Mr. Kook-kie Kim and Mr. Chun-gil Choi to be informed of their right
to consular assistance under article 36 (1) (b) of the Vienna Convention on Consular
Relations. This and other violations of the rights guaranteed under article 36 (1) (a), (b) and
(c) of the Vienna Convention on Consular Relations constitute violations of the rights to due
process and to a fair trial under articles 10 and 11 (1) of the Universal Declaration of Human
Rights and principle 16 (2) of the Body of Principles for the Protection of All Persons under
Any Form of Detention or Imprisonment.
111.
Given the above, the Working Group concludes that the violations of the right to a
fair trial and due process are of such gravity as to give the deprivation of liberty of Mr. Jung-
wook Kim, Mr. Kook-kie Kim and Mr. Chun-gil Choi an arbitrary character under category
III.
(d)
Category V
112.
Lastly, the source alleges that the detention of Mr. Jung-wook Kim, Mr. Kook-kie
Kim and Mr. Chun-gil Choi is arbitrary under category V as they have been deprived of their
liberty for reasons of discriminatory intent against them, because they were foreign nationals
and because of their religious and humanitarian work as Christian missionaries. The
Government has chosen not to address these allegations.
113.
The Working Group has found under category II that the detention of these individuals
resulted from their legitimate exercise of freedom of expression, freedom of conscience and
freedom of movement. When a detention results from the active exercise of civil and political
rights, there is a strong presumption that the detention also constitutes a violation of
international law on the grounds of discrimination based on political or other views.
114.
In one of its previous opinions regarding the Democratic People’s Republic of Korea,
the Working Group stressed that even reading the Bible in the country is a violation of “The
10 principles for the establishment of the one ideology system” and leads to the detention of
individuals in camps for political prisoners. In that case, it found that the detention of a person
36 Opinions No. 10/2018, para. 74; No. 30/2018, para. 47; No. 35/2018, para. 39; No. 39/2018, para. 41;
No. 47/2018, para. 71; No. 22/2019; para. 71; No. 36/2019, para. 56; No. 44/2019, paras. 74 and 75;
No. 45/2019, para. 76; No. 56/2019, para. 83; No. 65/2019, para. 68; No. 6/2020, para. 54;
No. 11/2020, para. 54; No. 31/2020, para. 51; No. 32/2020, para. 59; No. 33/2020, para. 87;
No. 34/2020, para. 57; and No. 89/2020, para. 80.
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was the result of her exercising the right to freedom of conscience and religion, as she had
read the Bible.37 Furthermore, the source contends that the three individuals, among other
citizens of the Republic of Korea, have been subjected to arrest and prolonged detention by
the authorities of the Democratic People’s Republic of Korea on the basis of their nationality.
As the Government has failed to refute these claims, the Working Group concludes that their
detention is indeed rooted in discriminatory practices towards citizens of the Republic of
Korea, in violation of international law.
115.
Given the above, and noting the religious mission of Mr. Jung-wook Kim,
Mr. Kook-kie Kim and Mr. Chun-gil Choi, as well as their nationality, and also noting its
findings under category II, the Working Group finds that they were detained on
discriminatory grounds in a manner that ignores the equality of human rights – a prohibited
ground of discrimination under article 2 of Universal Declaration of Human Rights and
articles 2 (1) and 26 of the Covenant. The Working Group considers that the facts in the
present case disclose a violation under category V.
(e)
Concluding remarks
116.
The situation of human rights in the Democratic People’s Republic of Korea remains
deeply concerning, as evidenced by several comprehensive reports presented recently by the
Special Rapporteur on the situation of human rights in the Democratic People’s Republic of
Korea.
117.
The Working Group recalls that, under certain circumstances, widespread or
systematic imprisonment or other severe deprivation of liberty in violation of fundamental
rules of international law may constitute crimes against humanity. The present case makes it
necessary to reaffirm this. The duties to comply with international human rights that are
peremptory and erga omnes norms, such as the prohibition of arbitrary detention, rest with
all bodies and representatives of the State, and with all individuals.
118.
The Working Group would also like to encourage the Government of the Democratic
People’s Republic of Korea to comply with the recommendations of the Special Rapporteur
on the situation of human rights in the Democratic People’s Republic of Korea. It would also
welcome the opportunity to work constructively with the Government of the Democratic
People’s Republic of Korea to address the Working Group’s concerns in relation to arbitrary
detention in the country by undertaking a country visit.
3.
Disposition
119.
In the light of the foregoing, the Working Group renders the following opinion:
The deprivation of liberty of Jung-wook Kim, Kook-kie Kim and Chun-gil Choi,
being in contravention of articles 2, 3, 8, 9, 10, 13, 18 and 19 of the Universal
Declaration of Human Rights and articles 2, 9, 12, 14, 19, 21 and 26 of the
International Covenant on Civil and Political Rights, is arbitrary and falls within
categories I, II, III and V.
120.
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. Jung-wook Kim,
Mr. Kook-kie Kim and Mr. Chun-gil Choi 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.
121.
The Working Group considers that, taking into account all the circumstances of the
case, the appropriate remedy would be to release Mr. Jung-wook Kim, Mr. Kook-kie Kim
and Mr. Chun-gil Choi immediately and accord them an enforceable right to compensation
and other reparations, in accordance with international law.
122.
The Working Group urges the Government to ensure a full and independent
investigation of the circumstances surrounding the arbitrary deprivation of liberty of
37 Opinion No. 54/2018.
A/HRC/WGAD/2024/59
GE.25-01606
17
Mr. Jung-wook Kim, Mr. Kook-kie Kim and Mr. Chun-gil Choi and to take appropriate
measures against those responsible for the violation of their rights.
123.
The Working Group requests the Government to disseminate the present opinion
through all available means and as widely as possible.
4.
Follow-up procedure
124.
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. Jung-wook Kim, Mr. Kook-kie Kim and Mr. Chun-gil Choi have
been released and, if so, on what date;
(b)
Whether compensation or other reparations have been made to the above-
mentioned individuals;
(c)
Whether an investigation has been conducted into the violation of their 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.
125.
The Government is invited to inform the Working Group of any difficulties it may
have encountered in implementing the recommendations made in the present opinion and
whether further technical assistance is required, for example through a visit by the Working
Group.
126.
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 of any failure to take action.
127.
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.38
[Adopted on 12 November 2024]
38 Human Rights Council resolution 51/8, paras. 6 and 9.