opencaselaw.ch

A/HRC/WGAD/2024/59

Opinion No. 59/2024 concerning Chun-gil Choi, Kook-kie Kim and Jung-wook Kim (Democratic People's Republic of Korea)

UNO-Arbeitsgruppe über willkürliche Inhaftierung (WGAD) · 2024-11-15 · en UN

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

A/HRC/WGAD/2024/59

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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15

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.

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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.