[HRC28]Updates on Key Human Rights Issues in the Republic of Korea

2015-03-23 38

1. 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 Seok-gi LEE’s case is in point.


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 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.
  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.


2. 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.


3. 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.


  3. The law requires the providers of the information that accompanies activities prohibited by the National Security Act as well as website managers to delete it from posting online.  Non-compliance may result in up to 2 years in prison or up to approximately 10,000 USD in fine.  In practice the police requests voluntary deletion of the posting online after inspection in cyberspace, which amounted to 200,000 cases over the last 5 years.


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.


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.


4. Criminal Defamation


On 27 November 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.


The 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).


5. Anti-discrimination Act


Despite the UN’s urging to adopt a comprehensive anti-discrimination act the government has failed to legislate it.  The recent studies show that more than majority of the public acknowledges its necessity.  In the past Congress failed to pass the anti-discrimination act due to the objection from the right-wingers. 


Recent Development:


Last December, the Seoul Metropolitan City failed to pass the human rights charter.


6. National Human Rights Commission of Korea


The National Human Rights Commission of Korea (NHRCK) has been questioned about its independence over the last 8 years.  The NHRCK has failed to equip with the transparent appointment procedure for its commissioners.  The NHRCK has appointed commissioners who lack expertise in the human right field.  The composition of the commissioners shows lack of diversity that enables to represents various voices from the society.  The government has cut the financial and personnel resources. 


Accordingly, the NHRCK has failed to function as it is supposed to.  The Sub-Committee on Accreditation of the International Coordinating Committee (ICC) continuously expressed concerns about the independence of the NHRCK and in March and November 2014, it withheld the status of the NHRCK and recommended to rebuild the NHRCK’s independence and create an appointment procedure for its commissioners.


Recent Development:


  1. On 12 January 2015 the chairperson of the NHRCK Mr. Byung-chul HYUN blamed the civil society for the deferral of its re-accreditation from the ICC at the committee member meeting.
  2. On 1 March 2015 the NHRCK deleted references to numerous potentially damaging human rights developments in a draft opinion on ICCPR implementation recently submitted to the United Nations.  Omissions included the fact-finding investigation into the April 2014 sinking of the Sewol ferry, legal complaints against the press by the Blue House, and the disbandment of the Unified Progressive Party – all of which could make South Korea appear to be regressing on human rights issues.


7. Arbitrary Detention of North Korean Escapees in NIS


The North Korean Defectors Support Center, previously known as the Central Joint Interrogation Center, established by the National Intelligence Service (“NIS”) is the very first facility to which the North Korean escapees are admitted upon their arrival.  The law allows the NIS to confine the North Korean escapees up to 6 months in the investigation process.


However, the human rights concerns exist with respect to the treatment of detainees at the Center.  The identities of the detainees are not disclosed.  The detainees are shut off from all outside contact including their family members.  There exist case reports that the due process of law failed to be guaranteed during the interrogation: no genuine mirandizing and no counsel’s presence.  The witnesses revealed that the detainees are subject to incommunicado for the certain period of time ranging from a few weeks to months.  Recently, it was revealed in court either that the investigation on suspicion of espionage has been carried out without presence of the counsel or that the suspects were forced to make false confessions under threats and inhumane treatment.


Recent Development:


Last October, the Prosecutors’ Office submitted an application of commencement of the disciplinary action against Mr. Kyeong-uk JANG, who has defended the North Korean escapees in the high profiled espionage cases.  The government failed to take measures against attempt of the governmental agent and the media to identify Mr. JANG as a follower of North Korea. 


8. Forced Labor and Human Trafficking


The Korea Minting, Security Printing & ID Card Operating Corporation (KOMSCO), a state-owned enterprise, continues to operate factories in Uzbekistan to produce cotton pulp even after the forced labor issue was raised during the parliamentary inspection in 2012 and 2013.  Also, Daewoo International, a Korea-based multinational corporation, also continues to operate factories through its local subsidiaries to process cotton harvested by forced labor.


In addition, the government of the Republic of Korea failed to redress the human trafficking and forced labor of foreign crews in Korean-flagged fishing vessels that occurred in New Zealand waters.  Despite international condemnation, the NHRCK dismissed the case citing lack of evidence, and no improvement was made for the recruitment procedure and in the treatment of foreign fishing crews even after a joint investigation was carried out by Korean government departments.


The amended Criminal Code that listed human trafficking as a crime still does not comply with the trafficking definitions in the UN Palermo Protocol. The arrest rates for human trafficking is very low and there were no indictments for the crime of “selling a woman” in 2012. From 2008 to June 2013, only nine bookings and indictments were made on charges of “coercing prostitution (including sex-trafficking)” of foreign women with E-6 (Culture and Entertainment) visas.


Despite the government’s effort, the number of the entertainers from the Philippines being sent to entertainment bar businesses has been increasing.  Even with a stringent visa screening process, since the fundamental problem is the employment of migrant women as persons of entertainment rather than performers, the government failed to carry out a more stringent supervision and monitoring of entertainment bar business.


9. Hate Speech


There is serious concern that hate speech is proliferating in the Republic of Korea.  Even politicians and religious leaders express their hostile views against sexual minorities and migrants on- and off-line.  In particular, hate against social minorities has drawn our attention in the process of attempting to legislate the anti-discrimination act and Human Rights Charter for Seoul Citizens.  The government failed to take appropriate measure to enhance public awareness on this particular issue. 


Recent Development:


The President appointed the Minister of Education as one of the joint representatives of an organization that has carried on the movement to delete the prohibition of discrimination against homosexuality from textbooks on the grounds that “textbooks promote immoral homosexuality.”  The government also appointed a figure who has opposed the legislation of the anti-discrimination act as one of commissioners of the NHRC.


10. Conscientious Objection to Military Service


Despite HRC’s recommendations, the government failed to implement an alternative service system because it believed that the national consensus has not been reached yet.  The government has not carried out any research on this related matter since 2008.  Last November, an amendment on the Military Service Act regarding an alternative service system has been proposed at the National Assembly with no progress.


Recent Development:


On 9 December 2014 an amendment was made in the Military Service Act to allow that the conscientious objectors’ personal information including prison sentence be made public on-line.