23 October 2015
The Human Rights Committee today finished the consideration of the fourth periodic report of the Republic of Korea on its implementation of the provisions of the International Covenant on Civil and Political Rights.
The report was presented by Joo Hyun Kim, Vice Minister of Justice of the Republic of Korea, who explained that the Government had adopted a wide variety of policies to improve individual human rights, in cooperation with civil society. Through such pluralistic approach the Government was implementing balanced human rights policies that reflected diverse public opinions. The Second National Human Rights Action Plan had been implemented in 2012 and then amended in 2013. Human rights protection of persons with disabilities and foreigners was rectified. Non-discrimination was established as the outmost value regarding all social welfare services provided by the Government, and the Government was mandated to provide human rights education for the social service providers.
In the interactive dialogue, Committee Experts regretted the fact that the country report had only covered the period from 2006 until 2010. They particularly drew attention to the reservation of the Government on Article 22 of the Covenant, namely the prohibition of the freedom of association for senior public officials. They also raised the issues of the use of solitary confinement and protective devices for punishment purposes in detention centers, legal definition of torture, the use of forced labour by overseas Korean companies, discrimination against lesbian, gay, bisexual and transsexual persons, particularly in the military, limited support for single mothers, limitations on dual citizenship for migrants, female participation in high-level decision-making, marital rape and violence against children, the lack of legal provisions for racial discrimination, frequent occurrence of violence and abuse in the military, high suicide rate, continued handing down of the death penalty, and the lack of reform of defamation provisions.
In his concluding remarks, Mr. Joo Hyun said that he was certain that the constructive dialogue between the Committee Experts and the delegation would be of great help to the Government in deciding how to implement additional human rights policies and practices.
In his concluding remarks, Fabián Omar Salvioli, Chairman of the Human Rights Committee, highlighted the need for the withdrawal of the Government’s reservation on Article 22 of the Covenant, as well as the need to address the issue of conscientious objection to military service.
The delegation of the Republic of Korea included representatives from the Ministry of Justice, the Ministry of Foreign Affairs, the Ministry of National Defense, the Ministry of Employment and Labour, the Ministry of Health and Welfare, the Ministry of Gender Equality and Family, the Ministry of Oceans and Fisheries, the Ministry of Education, the National Police Agency, the Communications Commission and the Permanent Mission of the Republic of Korea to the United Nations Office at Geneva.
The Human Rights Committee will next meet in public on Monday, 26 October, at 10 a.m. to make general comment on Article 6, and then at 3 p.m. to consider the fifth periodic report of Iraq (CCPR/C/IRQ/5).
The fourth periodic report of the Republic of Korea (CCPR/C/KOR/4) is available here.
Presentation of the Report
JOO HYUN KIM, Vice Minister of Justice of the Republic of Korea, noted that the delegation of the Republic of Korea had gone to great lengths to prepare the country report. Since the review of its third periodic report in 2006, the Republic of Korea had endeavored to incorporate the Committee’s recommendations. To that end, it had implemented a wide variety of policies to improve individual human rights. It highly valued the constructive criticism and advice of the National Human Rights Committee, which had helped the Government to pursue balanced human rights policies. All citizens had unlimited access to information on the Internet and conventional media outlets, such as broadcasting companies and newspapers. The Government encouraged citizens’ participation in policy decision-making procedures, including private sector experts. Through public debates the Government pursued social consensus. Human rights violations could be subject to judicial review without exception and the Constitutional Court continued to set legal standards favourable to human rights protection. In the National Assembly countless bills for the promotion of human rights had been submitted.
The Second National Human Rights Action Plan had been implemented in 2012, whereas it had been amended in 2013. The Government had selected projects based on the recommendations of international human rights bodies in order to ensure that the Committee’s recommendations were followed. In order to improve overall basic human rights, the Social Welfare Service Act had been amended in 2012. Non-discrimination was established as the outmost value regarding all social welfare services provided by the Government, and the Government was mandated to provide human rights education for the social service providers. International human rights treaties could be invoked during judicial procedures and in December 2014 the Supreme Court had translated and published in Korean the professional training material by the Office of the High Commissioner for Human Rights. Human rights protection of persons with disabilities and foreigners was rectified. The Government had also improved the legal system that provided assistance to persons with disabilities, so that they could become socially and financially independent. The Second Basic Plan for Foreigners, which had entered into force in 2013, aimed at prohibiting discrimination and at maintaining respect for cultural diversity. In 2012, the Government had enacted the Refugee Law which regulated refugee status procedures and treatment of refugees. The law provided recognized refugees with social security benefits and basic livelihood security equivalent to those given to Korean nationals. The Government also guaranteed foreign children education at both primary and secondary levels.
With respect to the rights of women and children, the Government took stronger actions against domestic violence, sexual violence, child abuse and neglect. Although the death penalty remained as a form of statutory punishment, it had not been used since 1997 and the country was categorized as having abolished the death penalty in practice. It was difficult to abolish the death penalty due to a sharp difference of opinion between those who supported it and those who opposed the death penalty. As for human trafficking, the Government was proceeding with the ratification of the Convention against Transnational Organized Crime and its three supplementary protocols. It also amended its Criminal Act in April 2013 to establish a general provision against human trafficking. The amendments included clauses on sex trafficking, sexual exploitation and organ harvesting. The rights of prisoners had significantly improved and juvenile prisoners were treated according to their age and aptitude. Female inmates were now required to have regular medical examinations, including gynecological exams.
The Government had enacted the Personal Information Protection Act in 2011 and it had established the Personal Information Protection Commission to ensure privacy invasion relief. In August 2014 the Government had prohibited the use of resident registration number, except in cases of taxation or when necessitated by law. Due to the confrontation with the Democratic People’s Republic of Korea, the National Security Act was needed to protect the existence, security and basic liberal democratic order in the country. Article 7 was to be strictly interpreted and applied only when there was a clear risk of actual harm to the basic order of liberal democracy. In 2012, the Public Official Election Act had been amended and it expanded the right to freedom of expression and political rights by eliminating limits in the period of Internet campaigning. In 2014, the Constitutional Court had ruled that all legal provisions limiting the right to election of convicts and persons whose criminal sentences were suspended were unconstitutional because they had violated individuals’ political rights.
Questions by Experts
An Expert remarked that the country report had only covered the period from 2006 until 2010, which posed some problems for the work of the Committee. Why was the reservation on the freedom of association for senior public officials still in place? According to the Act on the Establishment and Operation of Public Officials’ Union of the Republic of Korea, officials who were in managerial positions were prohibited from entering the union.
There was a lack of provisions to enable a transparent election process for members of the National Human Rights Commission. What was the status of the proposed measures to resolve the problem? There was no information on the recent work of the Commission. The submitted country report only contained the stock of its work until 2010. Meanwhile, there was an increase in complaints.
As for torture and treatment of prisoners, what was the legal definition of torture and was it in line with the international human rights standards? It was not clear how the complaints of torture and mistreatment in police detention were investigated, and there was no statistical data on that issue. There was only one disciplinary proceeding of mistreatment by the police, whereas there were hundreds of complaints against the police in the past three years. What was the reason behind such a large discrepancy between the number of complaints and investigations?
Regarding the imposition of solitary confinement, did the involvement of medical personnel in solitary confinement not raise ethical issues? Who decided when solitary confinement was imposed? Civil society claimed that protective devices were used for punishment in prisons and detention. How could the State Party ensure that the use of protective devices conformed to the law?
Another Expert inquired about the constitutional legal framework that ensured that businesses respected human rights standards, in particular in their overseas operations. Civil society criticized that the measures were insufficient in preventing forced labour by Korean companies (notably the Korea Minting and Security Printing Corporation, KOMSCO) in Uzbekistan and India. There were also allegations of the use of forced labour on Korean fishing ships. What measures had been taken to inform businesses about their human rights obligations?
The Government’s budget for single mothers was still insufficient. There was a high drop-out rate at universities due to pregnancy. The new sex education guidelines did not mention homosexuality.
What measures had been taken to combat discrimination against lesbian, gay, bisexual and transsexual persons? Did the Government plan to eradicate the criminalization of same-sex activities in the military by repealing certain articles of the Military Act? What steps were made to ensure that individuals could freely decide on their gender identity?
What were the reasons for the limitation of dual citizenship for migrants, an Expert inquired. What measures were taken to mitigate the requirements of nationalization for the victims of domestic violence?
As for female participation in politics, the Expert took note of the adoption of gender quotas. However, the participation of women in managerial positions was still low. How could that figure be increased? Child rearing was cited as the primary reason for the lower participation of women in the labour force and the gap in salaries between men and women. However, the male-dominant culture could be the main explanatory factor.
Marital rape was now recognized as a crime of rape through case law. Did the Government plan to criminalize marital rape through a separate provision? There were inadequate resources to guarantee the rights of children in that respect. The percentage of sexual abuse of children cases when probation was given had risen.
Another Expert inquired about comprehensive anti-discrimination legal framework. As for racial discrimination, there was only one case reported in 2008. However, there were reports of increased level of racial discrimination. There was also no criminal provision for the incitement of racial hatred and violence.
An Expert asked whether the State Party enacted counter-terrorism legislation that regulated interception of communications, searches, detention and deportation in strict compliance with the Covenant. Did it provide legal safeguards for persons suspected of terrorist crimes, as well as effective remedies? Proper balance needed to be struck between liberty and security. What was the working definition of terrorism and cyber-terrorism?
What were the measures taken to reduce the number of persons with psychosocial disabilities who were involuntarily hospitalized and to protect them against solitary confinement, physical violence, restraint and excessive drug treatment? Such detention had to be applied only as a measure of last resort, and it had to be accompanied by adequate procedural and substantive legal safeguards. The Expert welcomed the abolishing of the policy of forced sterilization of persons with psychosocial disabilities. Was it true that the use of physical constraints was still retained?
Another Expert inquired about the right to life, notably the death penalty and the high suicide rate. Despite the Government’s claim that the death penalty had not been executed since 1997, two to three death sentences were handed down annually. The Republic of Korea had the highest suicide rate among the countries of the Organisation for Economic Co-operation and Development. Elderly persons were particularly affected, and suicide was the second cause of death among women. What were the reasons for that situation?
Violence and abuse in the military occurred frequently. According to the Ministry of Defence, there were more than 17,000 incidents in 2013. There were plans to criminalize such incidents. When would the State Party adequately address the problem? There was also a problem of arbitrary confinement in the military.
Replies by the Delegation
The delegation explained that the reservation to the Article 22 of the Covenant, which prohibited the membership of senior public officials in unions, was due to the involvement of high-ranking officials in decision-making. For that reason it was difficult to withdraw the reservation. Otherwise, freedom of association was ensured by relevant laws.
As for the definition of torture, Korean legislation stipulated that those who conducted torture and mistreatment would be imprisoned for no more than five years. That provision was subject to statute of limitation. Detailed statistical data on cases of torture and mistreatment would be supplied later. There were three cases prosecuted in the previous three years. A different police station conducted investigations of such cases.
As for the solitary confinement and the use of protective devices, the delegation explained that when inmates violated facility rules, they could be subjected to solitary confinement of up to 30 days. Inmates were medically examined before going to solitary confinement and during that sentence they could perform physical exercise, use showers and write letters. The use of protective devices was allowed only when there was risk of flight. If they were used, such use had to be recorded and prisoners could file a complaint. There was a mechanism to monitor their use through an audit to ensure due process.
Concerning the respect for human rights in business operations overseas and the use of forced labour, the Government was trying to ensure that those companies respected human rights through seminars, trainings and constant monitoring. The Government provided recommendations in cases of human rights violations. Experts from the private sector and the Commercial Board were now taking part in those processes. As for the use of forced labour on a Korean fishing ship, the Government had conducted an investigation and introduced improvement measures, notably a hotline for foreign sea fearers, education on human rights for the ship owner and crew, and a fact-finding investigation. Regarding the case of forced labour at cotton farms in Uzbekistan, the Government was monitoring the situation and it recommended the involved company to improve their working conditions. When companies made overseas investments, the Government ensured that they were in compliance with international human rights standards. Republic of Korea had many trade agreements with different countries and those agreements had provisions which were in line with the International Labour Organization standards.
Concerning support for single mothers, the Government provided subsidies for mothers below the age of 25 so that they could continue their studies. Self-support allowances, housing and medical were also provided. Welfare facilities were set up in 58 locations throughout the country. There were school regulations that provided for continued learning after pregnancy.
Turning to the rights of lesbian, gay, bisexual and transsexual persons, in 2014 after a case of death in the military, human rights education had been made part of the regular curriculum. Budget was increased for such education in the military. As a result, assault and ill-treatment had significantly decreased. In elementary and middle schools there was no mention of same-sex couples in sex education. Gender identity correction required permission from the court.
Concerning the nationality of migrants married to Korean citizens, the law had been amended as to ensure that citizenship was granted. In the case of domestic violence, migrants could receive extension of residency.
In order to increase women’s participation in high-ranking positions in the public sector, political parties were asked to nominate women for 50 per cent of seats in the National Assembly and for 30 per cent of seats in local councils. That quota system was mandatory under the law and targets were set to be achieved by 2017. In the private sector, businesses that did not comply with the quotas for women’s participation were named and shamed. The work-family balance policy looked to improve the participation of women in the labour force, and men’s participation in child rearing. Measures were taken to ensure that no gender was represented with more than 60 per cent across a sector.
Marital rape was regulated under the Criminal Code. There was no provision that excluded rape of a spouse. In 2013, the Supreme Court had ruled that even rape in cohabitation would be prosecuted.
Child abuse reporting was increasing, partly due to increased occurrences. However, there was an improvement in the awareness of such crimes. Child protection institutions had difficulty with resources and, starting in 2013, the Government was working with local authorities to increase funding of those institutions.
A comprehensive anti-discrimination legal framework had been adopted as a policy goal by the Government in 2013. A task force had been set up to research its provisions. There was a lot controversy in the public on the inclusion of sexual orientation in that framework. The Government continued to listen to different voices in the society, and it was looking into experiences of other countries.
With regard to racial discrimination, the delegation said that in 2014 there was a case of hate speech. The perpetrator had been charged with the crime of insult. There had not been many of such cases. Racial discrimination on its own was not criminalized. However, racial discrimination as a motivation for some other crimes could influence sentencing. Racially discriminatory remarks on Internet were punishable. The right balance between the freedom of expression and anti-discrimination had to be found.
Responding to the Committee’s observation that since 2012, when the State party report had been submitted to the Committee, there had not been any updates, the delegation clarified that it had also submitted supplementary information, in addition to the presentation of the report.
As for the definition of terrorism and cyber-terrorism, it was explained that counter-terrorism bills were currently pending. The range of opinions on the definitions of terrorism and their potential infringement on fundamental rights were still being discussed in the National Assembly. The Government would strive to preserve fundamental rights when adopting counter-terrorism measures.
Regarding the abolishment of the capital punishment, the National Assembly was holding hearings and discussions to reach a national consensus on that issue. In terms of the number of reports of mistreatment by police, cases were reported when police officers lacked respect in their dealings with citizens. Due to the lack of evidence, however, there was a low level of prosecution of those cases.
The Government took measures to prevent involuntary hospitalization of persons with psychosocial problems and their sterilization. In 2014, a bill had been introduced in order to impose stricter conditions for involuntary hospitalization. Forced sterilization constituted an illegal act. As for the management and supervision of mental institutions, it was carried out by State and local governments. Personnel who worked at mental institutions were obliged to take human rights education.
The root causes for the high suicide rate was the economic crisis and the feeling of loneliness among the elderly. Community-based suicide prevention efforts were implemented to reduce the suicide rate.
Regarding frequent violence and abuse in the military, the Ministry of Defense had introduced a bill to criminalize assault. It also introduced comprehensive measures to eliminate sexual violence in the barracks. If a person was to be put into custody in a military prison, the commander had to respect the opinions of the judiciary.
As for the suggestions by the National Human Rights Institution, those were taken into account in adoption of laws. Also, functional immunity would be provided to members of the Institution.
Follow-up Questions by Experts
An Expert clarified that counter-terrorism measures would be problematic if they were based on open-ended definitions of terrorism in legislations. He inquired about the right of arrested persons to be brought promptly in front of a judge. There did not seem to have been a change with respect to the Committee’s recommendation to introduce a 48-hour deadline. What was the length of permissible pre-trial detention? Was it true that for juvenile offenders pre-trial detention was not included in sentences?
With respect to the treatment of defectors from the Democratic People’s Republic of Korea, what legal safeguards governed detention of many thousands of those defectors?
Did alternative options to religious education exist in school curricula?
As for the freedom of expression and defamation on Internet, what was the impact of the 2010 court ruling on harming the public interest? Restrictions on the freedom of expression and opinion had to be carefully defined and meet the standards of necessity and proportionality. Current legal provisions seemed to be open-ended. The Expert drew attention to the lack of interest of the State Party in reforming defamation legislation. The State Party should consider decriminalization of defamation, and removing prison sentences for defamation. As for the Act on the Promotion of Information and Communication Network Utilization and Information Protection, what safeguards were in place to ensure that its provisions were not used to stifle online expression? What was the rationale behind the provision that prohibited public officials from criticizing Government policies?
Another Expert inquired about detention of refugees and asylum seekers, noting that as of September 2015, 17 asylum seekers were detained. In practice indefinite detention could occur. Regarding trafficking of persons, she noticed that in 2014, 507 cases had been registered, whereas by May 2015, 185 cases had been registered. The current definition of trafficking of persons was not consistent with the international standards. The definition criminalized only the act of buying and selling, which made it difficult to hold accountable individuals who profited from forced labour.
As for birth registration, the Expert asked what happened to children of non-nationals born on the territory of the Republic of Koreas? What would happen if parents were undocumented?
Did the existing torture legislation cover mental torture? Was it not necessary to sharpen the rules on when solitary confinement was used? Was it true that solitary confinement could be ordered for a period of 30 days? How was it ensured that protective devices were not used for the purpose of punishment?
The Expert noted that civil society and the bar association had not been impressed by how unrestricted access to legal counsel was exercised in practice. Was it true that the right to remain silent was considered as interference in the investigation? There were allegations of cases of unfair interrogation methods and oppressive questioning without presence of legal counsel. The Expert also raised the issue of the treatment of potential deportees.
There was a complete refusal of the State Party to honour its obligations under Article 18 of the Covenant and conscientious objection to military service. There was no alternative service provided. There was discrimination by the Government and the private sector in employment of those who did not complete their military service.
As for the freedom of assembly, clarification was sought on prior authorization of assembly. Apparently, some demonstrations were banned. What was the legal status of a demonstration that had not been registered with the police? Even registered assemblies were met with police blockade and sealing off from the public, which defeated the purpose of their assembly.
Another Expert inquired about conditions of detention, namely the issue of overcrowding in correctional facilities. Did the Government plan to increase space per capita? Was solitary confinement used arbitrarily in migrant detention centers? Medical treatment of prisoners was insufficient. Access to justice for prison inmates was lacking as well since there were reports that they had to pay for certain costs of legal procedures.
As for the freedom of assembly and expression, an Expert noted that there were reports that journalists and human rights defenders had been subjected to harassment, intimidation and surveillance. Restrictions on the freedom of assembly and expression could only be imposed in line with the standards of strict proportionality and necessity. Regarding the right to form and join trade unions, the Expert noted that the Government’s reservation on Article 22 of the Covenant was vague.
An Expert noted that his question about the criminalization of same-sex relations in the military remained unanswered. HIV tests seemed to have been compulsory for inmates and foreigners who taught at Korean schools, whereas Korean nationals were exempted from that test.
Regarding the surveillance of private information on the Internet, the Expert noted that such practices could be easily lead to abuse of fundamental freedoms. How could access to that data be made stricter?
How many defectors from the Democratic People’s Republic of Korea were there? What were the guarantees granted to those defectors? The Expert also raised the issue of perceived discrimination of the defectors.
An Expert noted that the lack of national consensus prevented the adoption of a comprehensive anti-discrimination legal framework, which included protection of the right of lesbian, gay, bisexual and transsexual persons. Was legal aid provided to migrant workers?
Replies by the Delegation
The delegation stated that the Government was trying very hard to implement legal measures in accordance with the Covenant. Fundamental freedoms could only be limited by law. However, any such restrictions were subject to disclosure and relevant committees took a lot of time to ensure the constitutionality of laws and to ensure for fundamental freedoms. The Constitutional Court made sure that the principles of necessity and proportionality were observed.
As for the abolition of the capital punishment, a due legislative processes needed to be held and the majority of the National Assembly representatives had to vote to abolish it. The Government did not disregard the Committee’s recommendations, but it had to respect the political process in the country. The Government ensured broad disclosure of information to the public, in accordance with the Covenant.
The 48-hour duration of detention was observed, and if an arrest demand was not made, the person in question would be immediately released. Judges examined cases even on weekends in order to expedite decisions. As for detention of migrants, there was no specific limit on the period of detention. Regarding the detention period for juveniles, they differed because there were two types. General juvenile criminal cases went through formal criminal proceedings, while other cases were treated as educational ones. Defectors from the Democratic People’s Republic of Korea were informed about the basis of inquiry and protection measures.
The Government provided guidelines on education curricula. Some 209 religiously affiliated schools offered alternative classes. However, since children went there because they chose so, no classes were imposed on them.
The concept of restricted information was ruled unconstitutional. In order to make sure that the freedom of expression was not undermined, a committee had been established. The Constitutional Court ensured the system for objections. As for the decriminalization of defamation, Internet and the social media led to an increased spread of information. Government public officials had the obligation to remain neutral politically, but that did not restrict their freedom of expression and opinion.
Article 7 of the National Security Act referred to the confrontation between the Republic of Korea and the Democratic People’s Republic of Korea, and as such it did limit certain fundamental freedoms when there was an indication of clear harm. The Constitutional Court ruled against socialist ideas spread by a certain political party.
Detention for migrants and refugees was not unlimited. A maximum of 20 days of detention was prescribed, and the extension of detention had to be pre-approved by the Ministry of Justice. Since the employment of foreign sea farers was contractual, it could not be considered as trafficking of persons. The act of transferring for purposes of sexual exploitation was punishable under law.
The birth registration of migrants and refugees was made in cooperation with the country of origin of parents. Nevertheless, the Government granted them a legitimate status and it was improving the current birth reporting system. In exceptional cases, nationality at birth in the Republic of Korea was granted, such as when parents were unknown and the child was orphaned.
The legal definition of torture under the Criminal Act defined it as cruel assault and treatment. The statute of limitation for that crime was seven years. Solitary confinement was prescribed by the correctional facility, whereas the Ministry of Justice acted as a monitoring institution. The Ministry of Justice approved adequate space for inmates in new correction facilities. If an inmate filed a civil litigation and wished to appear in court, they had to pay for transportation. However, those who could not afford it were not charged those expenses.
As for the conscientious objection to military service, the delegation explained that the military service was considered as a duty of the citizen. Failure to complete it could lead to destabilization of the country, due to the particular security situation in the Korean peninsula.
According to the relevant laws on assembly, if there was a clear possibility of a serious threat to public order, police could prohibit assemblies. The police could intervene when there was direct physical confrontation among participants of the assembly. Unreported assemblies were punished.
Protection of foreigners in facilities was ensured through the provision of social and medical services. Defectors from the Democratic People’s Republic of Korea were given relief support, in cooperation with human rights activists.
As for the right to form and participate in unions, the Government granted that right only to the incumbent officials. The Government was making changes to ease restrictions on the change of workplace for migrant workers.
The Military Criminal Act stipulated that the same-sex sexual relations were not allowed in the barracks.
Suspension of prosecution of alleged perpetrators of domestic violence was done on the basis of case circumstances.
Follow-up Questions by Experts
Could the delegation provide statistics on the advice to remove information from websites and other public domains?
Had there been any prosecuted cases of mental torture? What was illegal conscientious objection to military service?
JOO HYUN KIM, Vice Minister of Justice of the Republic of Korea, said that he was certain that the constructive dialogue between the Committee Experts and the delegation would be of great help to the Government in deciding on how to implement additional human rights policies and practices. Considering the highly pluralistic and developing human rights circumstanced in the Republic of Korea, the Government would continue to pursue balanced and comprehensive human rights policies, which accommodated diverse public opinions from every sphere of society.
FABIÁN OMAR SALVIOLI, Chairman of the Human Rights Committee, reassured the State Party that the Committee afforded the same treatment to all examined States. He highlighted the need for the withdrawal of the Government’s reservation to Article 22 of the Covenant, and to address the issue of conscientious objection to military service. It was problematic to consider those who objected to serve in the military to be considered as criminals when they, in fact, exercised their right. Counter-terrorism measures had to effectively comply with the international human rights standards. The use of protective devices in detention centers and prisons as a punishment tool was also not acceptable. Mr. Salvioli expressed hope that the Government would fully protect the freedom of assembly.
For use of the information media; not an official record