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COMMITTEE AGAINST TORTURE HEARS RESPONSE OF THE REPUBLIC OF KOREA
15 May 2006
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12 May 2006
The Committee against Torture this afternoon heard the response of the Republic of Korea to questions raised by Committee Experts on the second periodic report of that country on how it is implementing the provisions of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
Responding to a series of questions raised by the Committee members on Thursday, 11 May, the delegation, which was led by Kim Joon-gyu, Deputy Minister for Legal Affairs of the Republic of Korea, said that although the Criminal Act of the Republic of Korea did not specifically define torture, there were instruments in place for securing legal grounds for punishment of any act of torture or other cruel, inhuman or degrading treatment. Following discussions among the delegation they had decided that upon returning home, they would make recommendations on revising the law and incorporating specifically the Convention’s definition.
With regard to the issues surrounding correctional facilities, in the suicide case of a female inmate following her rape by a prison guard, the Minister of Justice had carried out thorough investigations, announced key measures to prevent a reoccurrence, and issued a public apology. The perpetrator had been indicted with detention. Disciplinary action had been taken against the six other staff involved, including the head of the Seoul regional corrections headquarters and the warden of the Seoul detention centre, on charges of concealment.
The Committee will submit its conclusions and recommendations on the report of the Republic of Korea towards the end of the session on Friday, 19 May 2006.
As one of the 141 States parties to the Convention against Torture, the Republic of Korea is obliged to provide the Committee with periodic reports on the measures it has undertaken to fight torture.
The Committee will next meet in public on Friday, 19 May to issue its observations and recommendations on the reports of the countries which it has considered this session.
Response of the Republic of Korea
Responding to a series of questions raised by the Committee Experts on Thursday, 11 May, the delegation of the Republic of Korea said that, although the Criminal Act of the Republic of Korea did not specifically define torture, there were instruments in place for securing legal grounds for punishment of any act of torture or other cruel, inhuman or degrading treatment. Following discussions among the delegation they had decided that upon returning home, they would make recommendations on revising the law and incorporating specifically the Convention’s definition.
The Public Prosecutor's Office applied Article 125 of the Criminal Act to punish acts of assault or cruel acts by prison guards. The Gwangju case that the Committee had asked about, and which had been mentioned in a non-governmental organization’s report, was an exception, the delegation said. It had been ruled on by a lower court. The Public Prosecutor's Office had been debating the validity of that particular ruling. Article 125 had been applied in March in a case involving sexual harassment by a prison guard of a female inmate. If the Supreme Court ruled in future that Article 125 was not applicable to prison guards, the Government would consider amending the relevant laws so as to ensure there were no loopholes in punishment.
The Committee had asked about the torture case involving an entertainment manager, who had died. The persons suspected of torture had carried out a similar attack in another case and had already been convicted on those grounds. They had received an additional five months for this crime. Stripping a suspect naked, as was done in this case, was very rare, the delegation said.
Regarding the National Security Law, the Committee had raised a number of questions. The proportion of confession cases was high, the delegation admitted. Cases related to the violation of National Security Law were basically handled with caution, given that before those cases often entailed the violation of human rights. The criminal law stipulated that confession obtained under torture was prohibited.
In Sept 2000, 63 long-term prisoners were sent to “North Korea”. Currently, no persons who were recognized as long-term prisoners were in jail in the Republic of Korea.
With regard to the issues surrounding correctional facilities, in the suicide case of a female inmate following her rape by a prison guard, the Minister of Justice had carried out thorough investigations, announced key measures to prevent a reoccurrence, and issued a public apology. The perpetrator had been indicted with detention. Disciplinary action had been taken against the six other staff involved, including the head of the Seoul regional corrections headquarters and the warden of the Seoul detention centre, on charges of concealment.
Gender discrimination was regularly monitored by the National Human Rights Commission and the Ministry of Justice. Surveillance activity had also been reinforced. As of May 2006, the number of female prisoners in the Republic of Korea was 2,500, and the number of women correctional officers, was 940 nationwide the delegation said.
The delegation said that the Ministry of Justice had abolished the use of leather belts and face masks for restraining purposes in June 2004. The maximum term for solitary confinement was currently one month.
It was true that a number of inspections by judges and officials had been superficial and had not been done thoroughly. Last April, however, the Ministry of Justice had established monitoring bodies of civilians such as the correctional administration advisory committee, the correctional citizen Ombudsman system and the sexual violence monitoring board for correctional facilities.
Regarding accessibility to medical facilities, medical examinations of prisoners were carried out, including on both the physical and mental conditions of inmates, immediately after their incarceration. If any disorder were found, prisoners were immediately transferred to outside health facilities for appropriate treatment.
The Ministry of Justice had analysed the cause of suicide in order to reduce the number of suicides among the prisoner population. They had found that the main reason for such suicides included feelings of guilt, discontentment with heavy sentences and feelings of abandonment.
Amendments in the Criminal Procedure Act were under way to reduce the cases of urgent arrest. Under the current act, and in practice, detained suspects were guaranteed the right to legal counsel in every case.
The immigrant who had been repatriated to Nepal in 2004 had never claimed at the time that he would be in danger upon his return, nor did any NGO at the time assert that expectation. Those statements had only been brought to the Government’s attention now, the delegation said.
The delegation said that under the unique situation in the Korean Peninsula, the Government of the Republic of Korea considered defectors from “North Korea” as a special group of people. According to Article 3 of the Republic of Korea, the people of “North Korea” were considered to be Korean citizens. They were therefore treated differently from foreigners. The Republic of Korea accepted all people from “North Korea” that wished to come to the Republic of Korea.
If a defendant denied the confession made previously when being tried by a court, that confession could only be used in cases where there were exceptionally good reasons for believing it had not been made under torture.
Regarding comments by an Expert, based on an NGO report, that an average of 3,600 persons a day were held in short-term detention facilities, that was not the case. The number was 385. The Government had plans to build new facilities to address that situation, the delegation said.
While opinions were divided on whether spousal rape fell within the concept of a punishable rape, the Supreme Court had ruled that spousal rape was not punishable, therefore no cases of spousal rape had been brought to court. The possible introduction of the crime of spousal rape into legislation would be done by careful decision, taking public opinion into account, the delegation said. The low indictment rate for domestic violence was because there were many cases in which family members settled and came to agreement during the investigation process.
In their written reply, the delegation of the Republic of Korea had provided statistics on the rate of suicide in the military. Briefly, there had been 56 cases of suicides among soldiers in 2000 and 49 in 2004. Those figures should be put in context. There had been 49 suicides among soldiers out of 500,000. That was comparable to the suicide rate for those in their twenties among the general population, which was 12 for 100,000. Given that the cause of suicide was complicated, the delegation said that it was difficult to determine the number of suicides that were directly caused by cruelty of their superiors. However, the Seoul District Court and Supreme Court had concluded that there were 5 cases of suicide owing to cruelty by superiors in 2000, 3 in 2002, 5 in 2003 and 13 in 2004.
Treatment of juvenile delinquents was ruled by the Juvenile Act. Those juveniles who had gotten criminal sentences were confined to correctional facilities separated from adult prisoners. Those who had received protection sentences were confined in reformatories. Since 2000, they had restructured all reformatories into specialized training schools and had been doing academic education and training to develop professional capacity. The same was being done for correctional programmes.
Corporal punishment that went beyond the level allowed by the relevant legislation was prohibited, the delegation noted.
Questions and Comments by Experts
FELICE GAER, the Committee Expert serving as Rapporteur for the report of the Republic of Korea, thanked the members of the delegation for the efforts made to provide exhaustive and clear replies to the many questions the Committee had asked.
The delegation had said that the Gwangju case was unusual and that they hoped that the laws would be revised and interpreted to ensure that there were no loopholes in the punishment. That was why the question was asked, she said, so that there should be no such loopholes.
If she understood correctly, a large number of persons held under the National Security Law had been released, or had been sent to “North Korea”. Was it understood that those that had been sent to “North Korea” would be detained in “North Korea” upon their return? If so, that would bring up the issue of Article 3 obligations, Ms. Gaer said. That was additionally complicated by the delegation's assertion that anyone from “North Korea” was considered to be a citizen of the Republic of Korea, as she understood it.
Regarding the use of face masks and leather belts as a restraint, the delegation had made a reference to a Supreme Court ruling about the use of headgear for protection, but the purpose of that headgear, and whom it was intended for, was completely unclear. She also noted the assertion that, if restraining tools were used for longer than seven days, that had to be reported to the prison warden. How was that regulation monitored and implemented?
On the topic of the Nepalese man who had been repatriated, she wanted to be clear: did the delegation's response indicate that the Government only regarded threats to those to be repatriated that were provided by the individuals themselves, and that the Government had no responsibility to look into that?
NORA SVEAASS, the Committee Expert serving as Co-Rapporteur for the report of the Republic of Korea, said she welcomed the delegation's assertion that they would address the incorporation of the Convention's definition of torture in the law of the Republic of Korea upon their return home.
Ms. Sveaass said she would appreciate hearing any details on what preventive action was being taken to reduce the phenomenon of suicide in the military. She had heard, for example, that they were trying to ensure that military recruits were kept in the same barracks as their acquaintances, to help keep them from feelings of isolation, but she would like to hear any other such measures.
An Expert said that normally a judge was responsible for ordering a detention and the investigation and follow up. But it was unclear who made the first decision here. She understood that the police had a 10-day time period to detain the suspect. She had the impression that that first phase was not really under the strict control of the judicial authorities.
Another Expert asked for details of how it was deemed that a suspect's lawyer was likely to impede the course of investigation and thus not be allowed to have contact with them.
Response by Delegation
Responding briefly, the delegation said that, under the urgent arrest mechanism, there was a 48-hour period of detention that was possible without the ruling of a judge, for that reason they had put very stringent regulations in place for such cases.
Regarding foreign migrant workers, although they were not legally binding, 95 per cent of the recommendations of the National Human Rights Council in those cases were accepted.
On the topic of the Nepalese migrant worker, the delegation said that the Government looked at two questions, the situation of the worker and the conditions in the country. At the time of the expulsion of the Nepalese worker, even though there was political insecurity in the country, there had appeared to be a free flow of people from Nepal to their country. Also, that worker had been in the Republic of Korea for nine and a half years, and it did not make sense that after all that time he would face persecution. In addition, the worker himself had not raised any concerns for his safety at that time.
In the immigration control office every individual could have access to counsel. There was no impediment whatsoever. The delegation said that there was no provision as yet to provide legal aid in the form of state counsel, but upon their return they would look into that question.
Concerning asylum-seekers, the delegation said that they could be denied asylum at the borders, such as at the airport.
Facemasks were no longer used in correction facilities, the delegation said. But for those prisoners who might harm themselves by hitting their heads on the wall, they were still provided with facemasks and headgear.
As far as the long-term prisoners that had been sent back to “North Korea” in 2000 -- most of whom had been in the country ever since the war -- the situation was very clear: upon requesting to go back, all those requests had been granted and they were sent back, the delegation said.
* *** *
For use of the information media; not an official record
The Committee against Torture this afternoon heard the response of the Republic of Korea to questions raised by Committee Experts on the second periodic report of that country on how it is implementing the provisions of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
Responding to a series of questions raised by the Committee members on Thursday, 11 May, the delegation, which was led by Kim Joon-gyu, Deputy Minister for Legal Affairs of the Republic of Korea, said that although the Criminal Act of the Republic of Korea did not specifically define torture, there were instruments in place for securing legal grounds for punishment of any act of torture or other cruel, inhuman or degrading treatment. Following discussions among the delegation they had decided that upon returning home, they would make recommendations on revising the law and incorporating specifically the Convention’s definition.
With regard to the issues surrounding correctional facilities, in the suicide case of a female inmate following her rape by a prison guard, the Minister of Justice had carried out thorough investigations, announced key measures to prevent a reoccurrence, and issued a public apology. The perpetrator had been indicted with detention. Disciplinary action had been taken against the six other staff involved, including the head of the Seoul regional corrections headquarters and the warden of the Seoul detention centre, on charges of concealment.
The Committee will submit its conclusions and recommendations on the report of the Republic of Korea towards the end of the session on Friday, 19 May 2006.
As one of the 141 States parties to the Convention against Torture, the Republic of Korea is obliged to provide the Committee with periodic reports on the measures it has undertaken to fight torture.
The Committee will next meet in public on Friday, 19 May to issue its observations and recommendations on the reports of the countries which it has considered this session.
Response of the Republic of Korea
Responding to a series of questions raised by the Committee Experts on Thursday, 11 May, the delegation of the Republic of Korea said that, although the Criminal Act of the Republic of Korea did not specifically define torture, there were instruments in place for securing legal grounds for punishment of any act of torture or other cruel, inhuman or degrading treatment. Following discussions among the delegation they had decided that upon returning home, they would make recommendations on revising the law and incorporating specifically the Convention’s definition.
The Public Prosecutor's Office applied Article 125 of the Criminal Act to punish acts of assault or cruel acts by prison guards. The Gwangju case that the Committee had asked about, and which had been mentioned in a non-governmental organization’s report, was an exception, the delegation said. It had been ruled on by a lower court. The Public Prosecutor's Office had been debating the validity of that particular ruling. Article 125 had been applied in March in a case involving sexual harassment by a prison guard of a female inmate. If the Supreme Court ruled in future that Article 125 was not applicable to prison guards, the Government would consider amending the relevant laws so as to ensure there were no loopholes in punishment.
The Committee had asked about the torture case involving an entertainment manager, who had died. The persons suspected of torture had carried out a similar attack in another case and had already been convicted on those grounds. They had received an additional five months for this crime. Stripping a suspect naked, as was done in this case, was very rare, the delegation said.
Regarding the National Security Law, the Committee had raised a number of questions. The proportion of confession cases was high, the delegation admitted. Cases related to the violation of National Security Law were basically handled with caution, given that before those cases often entailed the violation of human rights. The criminal law stipulated that confession obtained under torture was prohibited.
In Sept 2000, 63 long-term prisoners were sent to “North Korea”. Currently, no persons who were recognized as long-term prisoners were in jail in the Republic of Korea.
With regard to the issues surrounding correctional facilities, in the suicide case of a female inmate following her rape by a prison guard, the Minister of Justice had carried out thorough investigations, announced key measures to prevent a reoccurrence, and issued a public apology. The perpetrator had been indicted with detention. Disciplinary action had been taken against the six other staff involved, including the head of the Seoul regional corrections headquarters and the warden of the Seoul detention centre, on charges of concealment.
Gender discrimination was regularly monitored by the National Human Rights Commission and the Ministry of Justice. Surveillance activity had also been reinforced. As of May 2006, the number of female prisoners in the Republic of Korea was 2,500, and the number of women correctional officers, was 940 nationwide the delegation said.
The delegation said that the Ministry of Justice had abolished the use of leather belts and face masks for restraining purposes in June 2004. The maximum term for solitary confinement was currently one month.
It was true that a number of inspections by judges and officials had been superficial and had not been done thoroughly. Last April, however, the Ministry of Justice had established monitoring bodies of civilians such as the correctional administration advisory committee, the correctional citizen Ombudsman system and the sexual violence monitoring board for correctional facilities.
Regarding accessibility to medical facilities, medical examinations of prisoners were carried out, including on both the physical and mental conditions of inmates, immediately after their incarceration. If any disorder were found, prisoners were immediately transferred to outside health facilities for appropriate treatment.
The Ministry of Justice had analysed the cause of suicide in order to reduce the number of suicides among the prisoner population. They had found that the main reason for such suicides included feelings of guilt, discontentment with heavy sentences and feelings of abandonment.
Amendments in the Criminal Procedure Act were under way to reduce the cases of urgent arrest. Under the current act, and in practice, detained suspects were guaranteed the right to legal counsel in every case.
The immigrant who had been repatriated to Nepal in 2004 had never claimed at the time that he would be in danger upon his return, nor did any NGO at the time assert that expectation. Those statements had only been brought to the Government’s attention now, the delegation said.
The delegation said that under the unique situation in the Korean Peninsula, the Government of the Republic of Korea considered defectors from “North Korea” as a special group of people. According to Article 3 of the Republic of Korea, the people of “North Korea” were considered to be Korean citizens. They were therefore treated differently from foreigners. The Republic of Korea accepted all people from “North Korea” that wished to come to the Republic of Korea.
If a defendant denied the confession made previously when being tried by a court, that confession could only be used in cases where there were exceptionally good reasons for believing it had not been made under torture.
Regarding comments by an Expert, based on an NGO report, that an average of 3,600 persons a day were held in short-term detention facilities, that was not the case. The number was 385. The Government had plans to build new facilities to address that situation, the delegation said.
While opinions were divided on whether spousal rape fell within the concept of a punishable rape, the Supreme Court had ruled that spousal rape was not punishable, therefore no cases of spousal rape had been brought to court. The possible introduction of the crime of spousal rape into legislation would be done by careful decision, taking public opinion into account, the delegation said. The low indictment rate for domestic violence was because there were many cases in which family members settled and came to agreement during the investigation process.
In their written reply, the delegation of the Republic of Korea had provided statistics on the rate of suicide in the military. Briefly, there had been 56 cases of suicides among soldiers in 2000 and 49 in 2004. Those figures should be put in context. There had been 49 suicides among soldiers out of 500,000. That was comparable to the suicide rate for those in their twenties among the general population, which was 12 for 100,000. Given that the cause of suicide was complicated, the delegation said that it was difficult to determine the number of suicides that were directly caused by cruelty of their superiors. However, the Seoul District Court and Supreme Court had concluded that there were 5 cases of suicide owing to cruelty by superiors in 2000, 3 in 2002, 5 in 2003 and 13 in 2004.
Treatment of juvenile delinquents was ruled by the Juvenile Act. Those juveniles who had gotten criminal sentences were confined to correctional facilities separated from adult prisoners. Those who had received protection sentences were confined in reformatories. Since 2000, they had restructured all reformatories into specialized training schools and had been doing academic education and training to develop professional capacity. The same was being done for correctional programmes.
Corporal punishment that went beyond the level allowed by the relevant legislation was prohibited, the delegation noted.
Questions and Comments by Experts
FELICE GAER, the Committee Expert serving as Rapporteur for the report of the Republic of Korea, thanked the members of the delegation for the efforts made to provide exhaustive and clear replies to the many questions the Committee had asked.
The delegation had said that the Gwangju case was unusual and that they hoped that the laws would be revised and interpreted to ensure that there were no loopholes in the punishment. That was why the question was asked, she said, so that there should be no such loopholes.
If she understood correctly, a large number of persons held under the National Security Law had been released, or had been sent to “North Korea”. Was it understood that those that had been sent to “North Korea” would be detained in “North Korea” upon their return? If so, that would bring up the issue of Article 3 obligations, Ms. Gaer said. That was additionally complicated by the delegation's assertion that anyone from “North Korea” was considered to be a citizen of the Republic of Korea, as she understood it.
Regarding the use of face masks and leather belts as a restraint, the delegation had made a reference to a Supreme Court ruling about the use of headgear for protection, but the purpose of that headgear, and whom it was intended for, was completely unclear. She also noted the assertion that, if restraining tools were used for longer than seven days, that had to be reported to the prison warden. How was that regulation monitored and implemented?
On the topic of the Nepalese man who had been repatriated, she wanted to be clear: did the delegation's response indicate that the Government only regarded threats to those to be repatriated that were provided by the individuals themselves, and that the Government had no responsibility to look into that?
NORA SVEAASS, the Committee Expert serving as Co-Rapporteur for the report of the Republic of Korea, said she welcomed the delegation's assertion that they would address the incorporation of the Convention's definition of torture in the law of the Republic of Korea upon their return home.
Ms. Sveaass said she would appreciate hearing any details on what preventive action was being taken to reduce the phenomenon of suicide in the military. She had heard, for example, that they were trying to ensure that military recruits were kept in the same barracks as their acquaintances, to help keep them from feelings of isolation, but she would like to hear any other such measures.
An Expert said that normally a judge was responsible for ordering a detention and the investigation and follow up. But it was unclear who made the first decision here. She understood that the police had a 10-day time period to detain the suspect. She had the impression that that first phase was not really under the strict control of the judicial authorities.
Another Expert asked for details of how it was deemed that a suspect's lawyer was likely to impede the course of investigation and thus not be allowed to have contact with them.
Response by Delegation
Responding briefly, the delegation said that, under the urgent arrest mechanism, there was a 48-hour period of detention that was possible without the ruling of a judge, for that reason they had put very stringent regulations in place for such cases.
Regarding foreign migrant workers, although they were not legally binding, 95 per cent of the recommendations of the National Human Rights Council in those cases were accepted.
On the topic of the Nepalese migrant worker, the delegation said that the Government looked at two questions, the situation of the worker and the conditions in the country. At the time of the expulsion of the Nepalese worker, even though there was political insecurity in the country, there had appeared to be a free flow of people from Nepal to their country. Also, that worker had been in the Republic of Korea for nine and a half years, and it did not make sense that after all that time he would face persecution. In addition, the worker himself had not raised any concerns for his safety at that time.
In the immigration control office every individual could have access to counsel. There was no impediment whatsoever. The delegation said that there was no provision as yet to provide legal aid in the form of state counsel, but upon their return they would look into that question.
Concerning asylum-seekers, the delegation said that they could be denied asylum at the borders, such as at the airport.
Facemasks were no longer used in correction facilities, the delegation said. But for those prisoners who might harm themselves by hitting their heads on the wall, they were still provided with facemasks and headgear.
As far as the long-term prisoners that had been sent back to “North Korea” in 2000 -- most of whom had been in the country ever since the war -- the situation was very clear: upon requesting to go back, all those requests had been granted and they were sent back, the delegation said.
* *** *
For use of the information media; not an official record