[HRC28]Recently Developed Human Rights Concerns in the ROK_Special Rapporteur

2015-03-23 35

1. Disciplinary Action against the Human Rights Lawyers


Last October, the Prosecutors’ Office submitted to the Korean Bar Association (“KBA”) the application for commencement of the disciplinary action against seven Minbyun lawyers.  The government claimed in the applications that the lawyers violated professional ethics when they were acting in the best interest of their clients.


The summary of the facts:


  1. One lawyer advised the client to plead the right to remain silent during the interrogation process in an effort to defend the best interest of her client.


  2. Another lawyer advised to the client North Korean escapee nothing to conceal the truth and make false statement.  The prosecution said he did it.

    The truth is, this lawyer has defended in high profile cases and revealed the truth on fake espionages masterminded by the National Intelligence Agency and the Prosecution.  We believe this is retaliation.


  3. Five lawyers organized peaceful assemblies in issue because, for no reason, the police prohibited assemblies from taking place in front of the gate of the Deok-su Palace where dismissed Ssangyong workers exercised their right to freedom of expression and peaceful assembly.


    In fact, the court decision and the recommendation of the National Human Rights Commission of Korea said that the assembly should be guaranteed in front of the gate.


    The lawyers were acting to defend the rights of their clients. They have been accused of violating the professional ethics and obstructing performance of the official duties because they grabbed the shoulder and arms of the officer who interrupted the assembly by entering the assembly site in the middle of the assembly in an effort to escort the officer out of the site.


Even worse, the disciplinary proceeding is not independent from the influence of the government. The members of the disciplinary committee at the KBA include members from the prosecution and the judiciary.  And the government controls disciplinary committee at the Ministry of Justice as a second level of disciplinary review.  There is no perspective of fair review from it.  The one that applies for the commencement of the disciplinary action reviews the case.  It is not fair either.


Recent Development:


  1. Last November, the same Prosecutors’ Office submitted to KBA an application for the commencement of disciplinary action against Ha-kyeong RHU, member lawyer of Minbyun who participated in the assemblies.
  2. On 27 January 2015 the KBA board rejected the application for the commencement of disciplinary action against two lawyers: Kyeong-uk JANG and In-sook KIM.  The Prosecutors’ Office raised objection to the disciplinary committee of the KBA against this rejection in accordance with the Attorney-at-Law Act, Article 97-5.
  3. On 27 January 2015 the KBA board decided to suspend the disciplinary action proceeding against six lawyers until the criminal proceeding against them ends.


2. Dissolution of the UPP


On December 19, 2014 the Constitutional Court ordered the dissolution of the Unified Progressive Party (“UPP”), stripping 5 lawmakers with the UPP of their seats in the National Assembly.


The Constitutional Court held that the UPP became controlled by the leading core or group with hidden or real objectives and the leading core pursued North Korean style Socialism by means of violent measures, which is, the Constitutional Court believed, violation of democratic basic order under the Constitution.


First of all, the decision amounts to a violation of due process of law.

  1. The Court applied the rules of civil procedure instead of that of criminal procedure, which means that less strict standard was applied in term of burden of proof and admissibility of the evidence.
  2. Also, the Court arguably violated a provision of the Constitutional Court Act prohibiting evidences in the trial at pending from being admissible to the Constitutional Court review. The case in point is the Seok-gi LEE’s case.


Second, the Constitutional Court decision to dissolve the UPP is not ‘necessary in a democratic society’(Article 22 of ICCPR).

  1. There have been no compelling reasons for it. The UPP was no actual danger to the democratic basic order or national security because the UPP never attempted to resort or resorted to violent measures in order to achieve its political objectives.  The UPP should not be identified with the illegal actions that were taken by a few members who did not get approval from the UPP.
  2. Also, less restrictive measures were available.  Any inappropriate actions are always subject to the criminal and administrative measures. The Seok-gi Lee case is the case in point.  And there is a certain disciplinary procedure to disqualify any members who violate professional ethics and code of conduct in the National and Local Assemblies.
  3. Furthermore, the chilling effect on freedom of expression and association far outweighs the danger, if any, posed to our society due to the continuous existence of the UPP.  In fact, the UPP received lesser votes in the past election, which shows that the UPP was losing in the ‘free speech’ market.


Recent Development:


  1. On 22 December 2014 the National Election Commission made authoritative interpretation to disqualify the six proportional representatives of the UPP with the local assemblies.  The members of the local assemblies filed the suit against the Commission to contest such interpretation.
  2. On 6 January 2015 five lawmakers from the UPP filed a lawsuit to the court to seek confirmation of their status as lawmakers.  The lawsuit is at pending at court as of now.
  3. On 22 January 2015 the Supreme Court held that Seok-gi LEE was not guilty of conspiring insurrection, but only inciting insurrection and a violation of the National Security Act.
  4. Since last December, the Prosecutors’ Office has extended its investigation over the members of the UPP to indict and punish although the Constitutional Court decision specifically held not to do so.  On 27 February 2015, the Prosecution said that it is looking into the possible raising of illegal political funds.
  5. On 26 January 2015 two persons who were named in the Decision to be participating in the May 12 meeting with Seok-gi LEE, which it is not true, filed a lawsuit against justices of the Constitutional Court for the damages on the ground of defamation.  The court rejected the claim on 9 March 2015.
  6. On 16 February 2015 the former UPP filed to the Constitutional Court the petition for the re-trial on the dissolution of the UPP.  No official comment has been released from the Constitutional Court.
  7. On 17 March 2015 the Prosecutors’ Office carried out search and seizure against four members of the former UPP: Sun-haeng GANG, Seung-hee KIM, Soon-ju BAE and Seon-a GEUM who were responsible for the accounting in their respective branches.  The government accused the UPP of violating the Political Fund Law.  The government said that the former UPP violated the law when it used political fund raised by the lawmakers.


3. Mirang case and Korean Teachers and Education Workers’ Union (KTU) case


The stakeholders in civil society will submit rebuttal reports against the answers addressed by the government of the Republic of Korea within this month.


4. Gangjeong Crackdown


On 31 January 2015 the Ministry of National Defense took action to tear down tents set up by residents of Jeju‘s Gangjeong village to protest at the entrance of the site where a naval base family housing is being constructed.  This comes 99 days after the tents were first put up on October 25.  In the process, a clash broke out between local residents and 1,000 or so police and hired private security forces, resulting in both minor and serious injuries.  


Twenty-four residents and activists were hauled off to jail.  Some opponents of the housing’s construction climbed up an eight-meter watchtower and chained themselves together.  They were talked down 14 hours later by Bishop Peter U-il KANG of the Jeju diocese, and there were fortunately no more injuries.


The responsibility for this incident lies chiefly with the navy, which has gone ahead with building the housing in neglect of resident opinions.  Villagers in Gangjeong contend that the navy had not kept its promise early this year to build the housing in the village with the consent of residents.  Indeed, Navy Chief of Staff Ki-chul HWANG told villagers in November 2013 that the navy would “engage in genuine conversation and dialogue with residents going ahead and work to put to rest the distrust and misunderstandings from the construction process so far and proceed toward reconciliation and harmony.”  That same navy then turned around and pushed ahead with the housing construction. 


5. Human Rights Abuses based on the National Security Act


There has been increasing number of people who were criminally charged for violations of the National Security Act simply because they expressed their opinions over the last 8 years.  In total, 481 people were charged with violations of the Act since 2008 according to the Ministry of Justice. 


New trends:


  1. First, the government has punished the citizens for posting messages on-line.  There has been a case report that the prosecution arrested for investigation and indicted a person who followed the DPRK government on Twitter and retweeted.
  2. Second, there have been the espionage cases on the grounds of the Act against the North Korean escapees that turned out to be fabricated by the National Intelligence Service and/or the prosecution.


Recent Development:


  1. On 10 January 2015 the government expelled Korean-American travel writer Eun-mi SHIN over allegation that Ms. SHIN violated the National Security Act.  She gave public talks around the country with Hwang Seon, the former deputy spokeswoman of the Democratic Labor Party (DLP), the forerunner of the Unified Progressive Party (UPP).
  2. On 14 January 2015 the police have arrested an activist Seon HWANG on allegations of praising North Korea at public lectures last year, which is banned under the controversial National Security Act.  Ms. HWANG could face up to seven years in jail.
  3. On 5 March 2015 Ki-jong KIM, the radical anti-American activist attacked U.S. Ambassador to Korea Mark Lippert.  While Mr. KIM faced criminal indictment on the attack the government sought to charge him with violating the National Security Act for his statements made during the investigation.  Mr. KIM is believed to praise Il-sung KIM and North Korea.  Also, the police searched Mr. Kim’s residence and office and found some books and documents that are considered pro-North Korean propaganda, which is punishable under the National Security Act.


6. Criminal Defamation


On 27 November 27 2014 prosecutors opened a trial of Tatsuya Kato, a Japanese journalist accused of criminally defaming President Geun-hye PARK for reporting rumors that appeared first in domestic media regarding her whereabouts on the day of the sinking of the Sewol passenger ferry.


On 28 November 2014 the aides of President PARK filed a criminal defamation complaint against six reporters and staff members working at the newspaper Segye Ilbo for reporting about a leaked document from the president’s office. The leaked document reportedly says the aides regularly briefed a former Park aide even though he had no official government position.


Criminal defamation law is disproportionate and unnecessary to the need of protecting reputations of others because the laws chill freedom of expression.  The criminal defamation law in the Republic of Korea focuses solely on whether what was said or written was in the public interest, and not whether it was factually true or not.  If the court finds defamatory intent using “facts,” that is, truthful information, a person can still face as many as three years in prison or a fine up to 20 million won ($US 17,830). Defamation using “openly false facts” can result in a prison sentence of up to seven years or fines up to 50 million won ($US 44,577).