HUMAN RIGHTS COMMITTEE CONSIDERS REPORT OF THE REPUBLIC OF KOREA

The Human Rights Committee has considered the third periodic report of the Republic of Korea on how that State party is implementing the provisions of the International Covenant on Civil and Political Rights.

Introducing the report, Chong-hoon Kim, Director General of the Human Rights Bureau of the Ministry of Justice of the Republic of Korea, noted that, in addition to the Paris Principles body – the National Human Rights Commission set up in 2001 – the Human Rights Bureau had been established under the Ministry of Justice in May 2006 to oversee human rights related policies of the Government and to devise and implement the National Action Plan. The Bureau conducted investigations into and sought remedies for human rights infringements within the judicial sphere, and engaged in research by visiting national confinement facilities, including prisons and detention centres, and looked into plans to improve such systems and facilities and their practices.

In preliminary concluding remarks, Christine Chanet, Committee Chairperson, welcomed the abolition of the head of family system, and new legislation that seemed to be ushering in a new egalitarianism in the gender sphere. The dissemination of the final observations and conclusions of the Committee on government websites was also an important achievement. There were, however, a number of recurring issues of concern for the Committee, including a lack of written rules on restrictions to defence lawyers’ ability to participate in interrogations, the length of detentions, and the system of urgent arrests. The right to demonstrate, the situation of foreign workers, the situation of conscientious objectors and the National Security Law were further concerns that had not received adequate replies.

Other Committee Experts raised questions and asked for further information on various subjects, including on the structure and membership of the National Human Rights Commission; what protections existed for victims of domestic violence; a practice of “stacking” of disciplinary measures for prisoners; protections for patients in mental health facilities; the very low rate of arrests made on the basis of a warrant; the procedure for issuing a warrant for wiretapping; and information about the closure of the Korean Government Employee’s Union offices.

The Committee will issue its formal, written concluding observations and recommendations towards the end of its session, which will conclude on 3 November 2006.
The delegation of the Republic of the Korea also included other members of the Ministry of Justice, as well as representatives of the Ministry of Government Administration and Home Affairs, the Ministry of National Defence, the Ministry of Foreign Affairs and Trade, the Ministry of Labour, the National Youth Commission and the Permanent Mission of the Republic of Korea to the United Nations Office at Geneva.

The Republic of Korea is among the 159 States parties to the International Covenant and as such it is obligated to submit reports on its performance aimed at implementing the provisions of the treaty. It is also one of the 107 States parties to the Optional Protocol to the Covenant, which provides for the confidential consideration of communications from individuals who claim to be victims of a violation of any rights proclaimed in the Covenant.

When the Committee next reconvenes in public, on Friday, 27 October, at 10 a.m., in Room XII at the Palais des Nations, it will hold its Fourth Meeting with States Parties to the Covenant.

Report of the Republic of Korea

According to the third periodic report of the Republic of Korea (CCPR/C/KOR/2005/3), since the submission of its second periodic report, the Government has committed itself to bringing about human rights related institutional and legislative reforms and creating a free, just and democratic society that respects human rights. The Government enacted the Act on Gender Discrimination and Relief on 8 February 1999 to prevent gender discrimination in employment, education, provision and use of goods, facilities, and services, and in the implementation of policies and laws, and established the Ministry of Gender Equality on 29 January 2001. On 12 January 2000, the Government enacted the Act on Restoration and Compensation of Persons Involved in the Democratization Movement to restore honour to those who perished during their struggle against the past authoritarian rule and for the promotion of human rights and democracy generally, and to give compensation to their families. Furthermore, the Government enacted the Special Act on Inquiries into Suspicious Deaths on 15 January 2000 to verify the facts surrounding suspicious deaths in connection with the democratization movement.

A National Human Rights Commission was set up in accordance with the Paris Principles relating to the status of national institutions and began its operations on 26 November 2001. In the presidential election of 19 December 2002, Roh Moo-hyun, a long-time human rights lawyer, was elected President. The current self-proclaimed “Participatory Government,” inaugurated in February 2003, works to realize visions of “democracy with the people, a society of balanced development, and an era of peace and prosperity in Northeast Asia,” and continues to fulfil its duty as a State party to international human rights treaties by building a democratic society where justice and human rights are respected.

Presentation of Report

CHONG-HOON KIM, Director General of the Human Rights Bureau of the Ministry of Justice of the Republic of Korea, noted that, in accordance with the Paris Principles, the National Human Rights Commission had been launched as an independent State organ on 25 November 2001. Among the Commission’s various activities, it had recommended policies for legislation, engaged in constructive expression of opinions on current human rights issues, made recommendations for the National Action Plan for the Promotion and Protection of Human Rights, conducted comprehensive research on the current state of human rights, executed investigations on and made recommendations regarding acts of human rights infringements and discrimination and carried out human rights education and promotion. In addition, the Human Rights Bureau had been established under the Ministry of Justice in May 2006 to oversee human rights related policies of the Government and to devise and implement the National Action Plan. In that connection, the Bureau conducted investigations into and sought remedies for human rights infringements within the judicial sphere and engaged in research by visiting national confinement facilities, including prisons and detention centres, and looked into plans to improve such systems and facilities and their practices.

In January 2006, the Ministry of Justice had submitted a revised bill on the Criminal Procedure Act to conform with international human rights standards, in particular with regard to protecting the rights of the accused and suspects and guaranteeing the rights and interests of victims of crimes in investigations and trial procedures. Mr. Kim observed that the revised bill required mandatory interrogations of suspects prior to detention, immediately after arrest, and sharply increased their right to receive assistance from court-appointed defence lawyers. In addition, in June 2006, the Ministry of Justice had amended the Investigation Standards for the Protection of Human Rights to strengthen protections, including through the guarantee of participation of defence counsel, the right of families to observe the investigations, the prevention of secondary victimization and the enforcement of protections for juveniles, the disabled and foreigners, among others.

The family head system had been abolished in March 2005, Mr. Kim noted, thus allowing a child to take its mother’s surname and family origin after consultation with both parents, which would make a significant contribution towards the realization of an equal family system.

To increase women’s participation in public service, the gender equal recruitment target scheme was instituted in 2003, improving on a similar scheme set up in 1996. A five-year plan on increasing the appointment of women in managerial positions in public service had been issued. A scheme on target ratios for women’s participation in governmental commissions had been set up for various government committees, increasing the ratio of female members from 6.9 per cent in 1993 to 32.2 per cent in 2005. Finally, Mr. Kim observed that the Government promoted women’s employment opportunities by taking proactive measures, such as improving childcare policies and providing incentives to businesses with high employment rates for females.

On refugees, Mr. Kim noted that, since joining the Refugee Convention in 1992, the refugee recognition rate had been extremely low, with only two persons recognized as refugees until 2002. Since the implementation of reformed policies and the beginning of the Participatory Government, in 2003, however, a total of 50 people had been granted refugee status. A research committee on refugee legislation reforms had been organized to improve the overall system, which had resulted in the abolition of the maximum one-year limit for the application of refugee recognition, the extension of the timeframe for filing of formal objections, the guarantee of the status and treatment of those who had been granted refugee recognition and the permission of employment for those who had been granted humanitarian status and for those applying for recognition as refugees.

Questions by the Committee Experts

A series of questions were submitted in writing by the Committee Experts in advance of the meeting, to which the delegation responded.

Constitutional and Legal Framework

Responding to the first written question on the legal status of the Covenant, the delegation of the Republic of Korea said that the Covenant had the same status as domestic law. In enacting any legislation, the Ministry of Legislation and the National Assembly had to consider any conflicts with the proposed laws and the Covenant, which rendered the possibility of conflicts between the Covenant and domestic law highly unlikely. In the case of conflict between the two, domestic legislation should be modified to conform to the International Covenant. In principle, international treaties, such as the Covenant, could be invoked in court trials. In practice, however, such decisions were usually made in accordance with national legislation and the Constitution.

In response to a request for information on follow-up to the recommendations and requests for indictments or investigation made by the National Human Rights Commission, the delegation observed that out of the 24 requests for indictment or investigation made by the Commission from 2001 to 2005, there had been 7 indictments, 12 cases of acquittal on the basis of unsubstantiated charges; and 5 cases were still pending.

On the issue of reservations to the Covenant, the delegation confirmed that procedures for the withdrawal of its reservation to paragraph 5 of Article 14 of the Covenant were under way.

Counter-Terrorism Measures and Respect of Covenant Guarantees

Responding to a request for information on counter-terrorism legislation, the delegation noted that, since the opening of the National Assembly in June 2004, three draft laws on counter-terrorism had been submitted to the Assembly for consideration. The draft bills provided, among others, for the establishment of a national counter-terrorism committee to set policy; the setting up of a national centre to track terrorists and gather information; provision for deployment of military forces for the protection of facilities against attack; and plans to compensate physical and property damage. All three proposed bills regulated the search procedures, telephone tapping, interception of communications and deportation.

Principles of Equality and Non-Discrimination

The delegation said that the Government planned to establish an Anti-discrimination Committee under the Labour Relations Commission. To protect disabled workers, the Government had promulgated the Employment Promotion and Vocational Rehabilitation of Disabled Persons Act, which instituted a quota-levy system under which employers and businesses with over 50 employees were obliged to hire disabled persons for at least 2 per cent of their workforce.

On the issue of violence against women, from 2004 to July 2006, 39,467 offenders had either been charged, investigated or prosecuted in relation to crimes of domestic violence. Following investigations, 5,743 offenders had been prosecuted. Out of 20,751 rape cases filed from 1 April 2004 to 30 June 2006, 9,929 offenders had been prosecuted and 8,216 convicted. Among those convicted, one offender had received the death penalty, 25 had been sentenced to life imprisonment, and 5,728 had received prison sentences. In relation to spousal rape, there was no legal impediment to imposing punishment in such cases under current law. However, there was no case law precedent for criminal prosecution for spousal rape. Therefore, the delegation opined, it would be more a case of changing social attitudes and stereotypes, rather than revising legislation.

Regarding initiatives to combat the practice of identifying the sex of foetuses and then aborting female foetuses, the identification of the sex of the foetus for pregnant women had been strictly prohibited by the Medical Treatment Act. Between 2001 and 2005, four doctors and nurses, respectively, had had their medical licenses revoked for identifying the gender of a foetus.

On the issue of guaranteeing equal wages for women, the Government was supervising and providing guidelines to workplaces with a high number of employees or businesses prone to sexual discrimination to prevent gender discrimination in employment, including with regard to the issue of receiving equal pay for work of equal value. In 2003, 1,020 workplaces had been inspected; in 2004,1,192; in 2005, 717; and in 2006, some 1,000 workplaces were currently undergoing such inspections. In March 2006, as a proactive effort, public enterprises and businesses with over 500 employees whose gender ratios were low were required to submit employment improvement plans.

In Government, measures had been taken to improve the number of women in decision-making positions. As of October 2006, 14 per cent of the members of the National Assembly were female, and 16.8 per cent of the judges and 11.5 per cent of the public prosecutors were women.

Right to Life and Prohibition of Torture

During the period 2002 to 2005, there were only two cases of suspension of sentence related to acts of violence or cruelty committed against prisoners. However, there had been a case of sexual harassment of a female inmate by a prison guard in March this year. The accused prison guard was currently in confinement and undergoing trial.

Amendments to the Criminal Procedure Act submitted to the National Assembly in January 2006 included plans to strengthen observance of legal procedures, to reduce reliance on confessions, and to enhance human rights protections. Unjustly obtained confessions and improper collection of testimony were guarded against by allowing for attorney participation in interrogations. Furthermore, confession-based investigations were discouraged by a decree of the Ministry of Justice on investigation standards.

Liberty and Security of the Person and Treatment of Prisoners, Right to a Fair Trial

A bill amending the Criminal Procedure Act had been submitted to the National Assembly on 6 January 2006, and was currently under examination by the Legislation and Judiciary Committee. The delegation stressed that the extension of the period of arrest – or pre-trial detention – by the investigating agency had not been included in the amendment.

Responding to a request for further details on a petition to the National Human Rights Commission of Korea concerning the excessive use of isolation and constraint on patients at a mental health hospital, the delegation observed that, in accordance with the Mental Health Act, psychiatric patients who were hospitalized by force could receive an examination by regional mental health committees every six months to determine whether further hospitalisation or treatment was necessary. The enforcement of guidelines for admission and discharge and the condition of facilities were monitored by persons appointed by the Government to protect the human rights of patients in mental health and nursing care institutions.

Oral Questions by Committee Experts

Committee Experts then asked various questions and made comments on a number of topics, including whether the Covenant would take precedence over domestic law in cases of conflict; information on the appointment, terms, structure and membership of the National Human Rights Commission; information regarding any activities of international criminal syndicates that arranged for migrant labourers to be trafficked to the Republic of Korea; what protections existed for victims of domestic violence, such as shelters; whether there were any plans to criminalize spousal rape; concern that the law allowed defence counsel to be barred during interrogation; urgent arrest procedures that provided for the exclusion of judges; a lack of civil liability for police brutality; a practice of “stacking” of disciplinary measures for prisoners that could effectively negate time-limits, in particular with regard to solitary confinement; protections for patients in mental health facilities; the very low rate of arrests on the basis of a warrant (from 1 to 8 per cent); and the high rate of those who were subject to urgent arrests that received unconditional releases (some 30 to 40 per cent), particularly in view of the fact that most allegations of police brutality were associated with those arrests.

Response to Oral Questions

Responding to these oral questions and others, the delegation said that the National Human Rights Commission was composed of 11 members, four of whom were women. Recommendations made by the Commission to the Government were non-binding. However, the delegation stressed, the Government took those recommendations seriously. Statistics showed that some 70 per cent of the recommendations made had been implemented.

Regarding the withdrawal of the reservation to Article 14, the delegation emphasized that the process was in its very last stages. It was fully expected that the reservation would be withdrawn.

On the issue of how a child could now take it’s mother’s name under the new laws on the family, the delegation said that, before marriage, both husband and wife could decide what name their children would take. In that case, they would make a written agreement to that effect, which would be submitted with their marriage license and would be legally binding. If that had not been done, it was also possible for a parent to make a request for a change of family name for the child’s benefit.

On violence against women, the delegation noted that there were 175 shelters for women as of the end of 2005. There were also hotlines and domestic violence counselling centres, as outlined in the report.

Responding to queries about the case of a suspect who had been tortured and had died in detention as a result of injuries received, the delegation said that case had been thoroughly investigated and prosecuted and the perpetrators punished. The prosecutor in the case, who had not been present during the torture, had been convicted of negligence and other charges and was currently serving a sentence of 18 months; the two persons directly responsible for the acts were serving, respectively, sentences of two and a half and two years; finally, the Prosecutor General had resigned and the President had made a public apology to the nation.

On the issue of the right to counsel, when a suspect was examined, if the suspect wished for the participation of defence counsel, the chief of the police station would determine whether that was allowed. In cases involving terrorism or drug trafficking, or where the possibility of evidence destruction or of otherwise influencing the investigation existed, the participation of the defence counsel could be restricted.

Under the Criminal Procedure Act, the urgent arrest procedure was permitted only if there were substantial reason to believe the suspect had committed a grave crime and the suspect was discovered by accident. In all cases of arrest, suspects could only be detained for 48 hours before being brought before a judge for a further extension of detention. In normal cases the time limit on detention was for a maximum of 30 days total, and in national security cases the limit was 50 days. The delegation wished to note, however, that for over 90 per cent of detention cases, suspects were held for less than 20 days.

In response to assertions that inmates were subject to excessive disciplinary actions, the delegation noted that there were strict guidelines on the punishments that could be applied. Under criminal legislation, restraining tools were prevented in punishment. Restraining tools were only used after full consideration was given to the various factors, including the health of the prisoner, and such restraints were minimally used and only for the prevention of accidents occurring in criminal facilities. New legislation required the prison warden to approve the use of the restraining tools and required him to oversee the use of restraining tools. When the use of restraining tools on an inmate exceeded 7 days, the warden was required to report such use to an oversight board to make a decision on further use.

On the issue of punishing homosexual acts in the military context, the delegation stressed that homosexuals were in no way singled out in the military. Homosexual acts and heterosexual acts fell under the same rules.

Right to Privacy and Freedom of Thought, Conscience and Religion

Under domestic legislation, communications could be monitored for two months in criminal investigations; for four months for national security purposes; and for 36 hours for urgent cases without a permit from the court. Strong punishments were provided in the Criminal law and the Communications Privacy Protection Act for illegal wiretapping. Furthermore, the delegation noted that to eradicate arbitrary wiretapping, a warrant system had been adopted. In addition, under the Privacy Act wiretapping was strictly monitored by the State administration and regular reports on the number of wiretapping cases had to be made to standing committees of the National Assembly.

Between 2000 and 30 June 2006, a total of 3,665 conscientious objectors to military service had either undergone or been referred to trial. Some 86 per cent had been imprisoned, usually to terms of one and a half to two years. Almost 100 per cent of the objections to military service were due to religious conscience, with only some 1 per cent made on other grounds. The delegation noted, however, that alternative forms of service within the military or in society were now under consideration, and a joint public research committee had been formed in April 2006 to review Government policies on conscientious objection.

Right to Peaceful Assembly and Freedom of Association

Upon giving prior notice to the police, an outdoor assembly was legal, unless specifically prohibited by the Act on Assembly and Demonstration. Under that Act, the delegation said, illegal demonstrations were defined as those held without prior notice having been given to the police station; assemblies that presented a threat to public safety and order; or assemblies during which prohibited acts were committed. To be prohibited the threat to public safety and order had to be clear: resulting from, for example, mass violence, intimidation, destruction or arson.

Right to Freedom of Opinion and Expression

On the issue of migrant workers’ rights, the delegation noted that there were no special restrictions on the rights of foreign workers to enjoy the same rights as domestic workers to organize or join unions. Foreign workers who had lawfully obtained residency were protected under the labour laws, including the Labour Standards Act, the Industrial Safety and Health Act and the Industrial Accident Compensation Insurance Act. Migrant workers legally in the country enjoyed the same freedom of assembly guaranteed to all under the Act on Assembly and Demonstration.

Further Oral Questions Posed by Experts

Committee Members asked other questions and made comments on varied topics, including what categories of persons had been the subject of illegal wiretapping activities; what was the procedure for issuing a warrant for wiretapping; whether there was an unofficial 10 per cent quota on women’s participation in the military; and whether conscientious objectors suffered further social stigma after having served their prison sentences, in particular, with regard to finding employment.

An Expert asked if it was true that if violent acts occurred during a demonstration, all those who had taken part in the demonstration, even those who had not taken part in those violent acts, could be charged as accomplices?

Response by Delegation

Responding to these and other questions, the delegation confirmed that warrants for wiretaps had to be issued by court judges. One example of sanctions for illegal wiretaps was the case of two former directors of the National Intelligence Service, who had been indicted on charges of illegal wiretapping in 2006. Two additional staff of the Intelligence Service had been indicted in the same case: one was still on trial while the other had been sentenced to a prison term of over a year.

Regarding the possibility of alternative service for conscientious objectors, the delegation wished, first, to draw attention to the fact of the Korean Civil War and the present nuclear threat facing the nation; the Committee was asked to bear in mind the real urgency of national security issues in the Republic of Korea. Mandatory universal military service was among the most delicate social or political issues in the Republic of Korea. When a judge was appointed, for example, not only was his military service record thoroughly checked, but that of his sons as well. The issue of who was exempt from such service was thus a very tense one.

The delegation said that the joint committee to consider alternatives to military service consisted of members from the private sector – professors, lawyers, representatives of non-governmental organizations and religious groups – as well as military personnel, and representatives from the draft board. It was expected that the committee would finalize its work by June 2007.

There was no 10 per cent quota on women’s participation in the military forces, the delegation insisted. There was a universal conscription system for men, but women only served on a voluntary basis. Women served both in traditional roles – as nurses and administrative personnel – but there were also women officers and even female commanders of naval vessels and commanders of ground forces. There was no restriction of roles for women in the military.

On the issue of the closure of the offices of the Korean Government Employee’s Union, which had 76,000 public officials among its members – some 27 per cent of all public officials – the delegation said that the Union was an illegal organization that had taken over the offices of a legally constituted trade union of public officials. Led by a member who was not a public official, the Employee’s Union then began to run a number of illegal activities from those offices, incurring the growing opposition of the heads of local government. The Government therefore gave the union one month to voluntarily close down its offices. As of today, there were 58 legal trade unions that had applied for collective bargaining with the Government.

The delegation confirmed that the Government of the Republic of Korea did not punish those who had participated in a violent assembly. Only those who had either committed the violent acts or who had led and organized the assembly could be charged.

The claim that migrant worker groups could not associate and express their views was not true, the delegation insisted. In fact, the improvement of human rights conditions of migrant workers had been demanded in demonstrations held before government offices in Seoul.

Preliminary Remarks

CHRISTINE CHANET, Chairperson of the Committee, thanked the delegation of the Republic of Korea for its presentation and for the responses to the Committee’s questions. She regretted, however, that the delegation’s responses had been somewhat sketchy on some issues and had stayed at a level of generalities.

On the positive side, Ms. Chanet welcomed the abolition of the head of family system, and the new legislation that seemed to be ushering in a new egalitarianism in the gender sphere. The dissemination of the final observations and conclusions of the Committee on government websites was also an important achievement.

Regarding information from the delegation that the Government was working on withdrawing its reservations to articles 14 and 22 of the Covenant, Ms. Chanet could not help but observe that this was not the first time they had been told this. The Committee could only take into account what had been actually done, however.

Ms. Chanet expressed disappointment that the delegation had not cited a single case in which the Covenant had been invoked by domestic tribunals.

She drew attention to recurring issues of concern for Committee Members, including a lack of written rules on restrictions to defence lawyers’ ability to participate in interrogations, which could lead to abuse, the length of detentions, and the system of urgent arrests.

The right to demonstrate, the situation of foreign workers, the situation of conscientious objectors and the National Security Law were further concerns that had not received adequate replies. Freedom of conscience was another issue, as illustrated by the case of the professor who had been imprisoned for his beliefs. There were other ways to respond to dissenting views other than imprisonment, Ms. Chanet observed.