CONSIDERATION OF REPORTS SUBMITTED BY STATES PARTIES UNDER ARTICLE
19 OF THE CONVENTION
Initial reports of States parties due in 1996
Addendum
REPUBLIC OF KOREA
[10 February 1996]
Introduction
1. The Republic of Korea, on 9 January 1995, deposited with the
Secretary-General of the United Nations documents of accession to
the Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment (referred to hereafter as the Convention),
and the Convention took effect in the Republic of Korea on 8 February
of the same year.
2. This initial report for the Convention is written, pursuant to
article 19, paragraph 1, with regard to the measures which the Republic
of Korea has adopted to fulfil the obligations of the Convention
as it acceded to this Convention, and any achievements in fulfilling
the said obligations.
3. The Republic of Korea is a democratic republic, centred around
a presidential system based on the principle of checks and balances.
Sovereignty resides with the people. The Korean Government is composed
of three branches, which are legislative, executive, and judiciary.
The Government is obligated to guarantee, to the fullest extent,
the fundamental freedoms of all individuals. It shall honour international
obligations set forth in treaties and respect the generally accepted
rules of international law. The President is elected through direct
balloting by the people for a term in office of five years, and
he is ineligible for re-election.
4. In order to guarantee human rights, drafting and establishing
relevant laws and institutions are important. But the strong will
of the people and the Government towards enhancing human rights
is the most crucial element. Laws and institutions, however beneficial
they may be, hold no significance for the enhancement of human rights
if unbolstered by the will of the people and the Government. In
this regard, the launching of the civilian Government of the Republic
of Korea by the Korean people in February 1993 was an important
milestone towards improving and enhancing human rights. Firmly rooted
in the people's courage and hopes for democracy, this move to establish
a civilian Government was boldly made despite the many adversities
caused by the division of the Korean peninsular and authoritarian
rule.
5. The civilian Government put an end to three decades of authoritarian
rule. Based on the support and approval of the people, the Government
continues to build a society characterized by respect for human
worth and dignity, guarantees of each citizen's creativity and freedom,
and acceptance of diversity in society. These efforts are made in
order to secure the freedoms and equality of all people, and to
enable them to lead dignified, peaceful and active lives in society.
6. The civilian Government granted amnesty and restored the rights
of a total of 44,659 citizens on four different occasions, including
in March 1993, when the greatest number of pardons was issued since
the foundation of the Republic of Korea. The pardons freed most
inmates who had been imprisoned for violating public peace and security
(including espionage from the Democratic People's Republic of Korea),
with the exception of those who could not be tolerated under the
newly established liberal democratic system. Also, the civilian
Government continues to deliberate the issue of physical detention
and the prevention of torture. It is perceived that physical detention
is
the most powerful legal measure in a democratic society which restricts
the guarantee of personal liberty, affecting both the one who is
detained and those around him. Therefore, prudent and cautious measures
must be applied to cases of physical detention. Moreover, the Government
has made every effort to devise legal and institutional mechanisms
to further guarantee human rights, including increasing defence
counsel visitation rights and expanding the scope of legal aid available
to the economically underprivileged. These mechanisms are being
perfected instituting severe punishment for those who violate the
standards of the investigation process.
7. Furthermore, the Government endeavours to guarantee decency in
all aspects of human life, including housing, education, culture,
medical care, a clean environment, and the right to pursue happiness.
Among the important measures that have been taken are the introduction
of allowances for the unemployed, the expansion of medical insurance
and national pension policies, the extension of welfare benefits
to the handicapped and the elderly, and legislation for protecting
the environment, etc.
8. In addition, the Republic of Korea is in the midst of achieving
great economic, social and cultural reforms. It is doing its utmost
to contribute to the smooth functioning of a democratic society
where justice prevails. The goal is to establish a solid democracy
by ensuring a system of local self-government, a substantial expansion
of political rights through integrated election laws, and promoting
economic fairness through a real-name business system for real estate
and finances.
9. The Government of the Republic of Korea, in working out this
initial report, has referred to the General Guidelines on the Form
and Content of Reports of Contracting Parties which the Committee
against Torture adopted at its first meeting on 20 April 1988. Part
I of this report states general information, including all provisions
of the Constitution and laws regarding the prevention of torture,
the relationship between the Convention and domestic laws, instruments
of human rights protection, measures that individuals claiming damage
from acts of torture can take, the right to legal counsel, and factors
that affect the prevention of torture. Part II of this report describes
legislative, judicial and administrative measures which relate to
the implementation of the provisions in articles 2 to 16 of the
Convention.
I. GENERAL INFORMATION
A. Relevant provisions of the Constitution and laws concerning
the prevention of torture
10. The first
Constitution of the Republic of Korea was promulgated on 17 July 1948.
Following several amendments, the current Constitution was promulgated
on 25 February 1988. The amended Constitution was founded upon a procedure
reflecting the ardent aspirations and consent of the people. It contains
provisions for strengthened guarantees of the entire scope of fundamental
human rights. As the superior organizing and ruling principle of the
State, the Constitution has played a great role not only in political,
economic and social developments, but also in improving human rights.
11. Human
rights are guaranteed by the Constitution of the Republic of Korea.
Article 10 of the Constitution of the Republic of Korea provides that
"All citizens shall be assured of human worth and dignity and
have the right to pursue happiness. It shall be the duty of the State
to confirm and guarantee the fundamental and inviolable human rights
of individuals." In addition, article 37, paragraph 1, provides
that "Freedoms and rights of citizens shall not be neglected
on the grounds that they are not enumerated in the Constitution."
This stipulation indicates that all citizens of the Republic of Korea
are protected from all forms of torture. Related to article 2, paragraph
2, of the Convention, article 37, paragraph 2, of the Constitution
of the Republic of Korea states that "The freedoms and rights
of citizens may be restricted by law only when necessary for national
security, the maintenance of law and order or for public welfare.
Even when such restrictions are imposed, no essential aspect of freedoms
or rights shall be violated." Thus, the violation of fundamental
human rights through torture, or any means, cannot be justified by
any reason.
12. Article
12, paragraphs 2 and 7, of the Constitution of the Republic of Korea
provide respectively that "No citizen shall be tortured or compelled
to testify against himself in criminal cases" and that "In
a case where a confession is deemed to have been made against a defendant's
will due to torture, violence, intimidation, unduly prolonged arrest,
deceit, etc., or in a case where a confession is the only evidence
against a defendant in a formal trial, such a confession shall not
be admitted as evidence of guilt, nor shall a defendant be punished
by reason of such a confession." Therefore, the Constitution
prohibits torture and cruel treatment or punishment, and provides
that confessions obtained or resulting from torture cannot be admitted
as evidence of guilt. This stipulation safeguards defendants from
such violations.
13. In accordance
with these articles, laws and regulatory statutes contain more detailed
provisions guaranteeing constitutional rights and prohibiting torture
and other cruel, inhuman and humiliating treatment and punishment.
14. In order
to ensure the Constitutional provisions which prohibit torture, it
is provided that any public official who commits an act of torture,
cruel treatment, or inhuman punishment shall be severely punished
(details are found in the comments in relation to article 4 of the
Convention).
(a) A person
who, in performing or assisting in activities concerning a judicial
trial, prosecution, police investigation or other functions involving
physical restraint, commits an act of violence or cruelty against
a criminal suspect or against another person while in the performance
of his duties shall be punished. In cases of unlawful arrest and confinement
or death or injury resulting from those acts, the offender shall receive
aggravated punishment;
(b) In cases
of acts of torture committed by other public officials, the offenders
shall be punished for acts of violence, intimidation, bodily injury,
false arrest, illegal confinement and cruel treatment of those who
are under their protection or supervision, according to the substance
of their acts. Offenders shall receive aggravated punishment if the
acts are committed at night by two or more persons, or if the use
of deadly weapons is involved;
(c) Specifically,
in cases in which acts of torture are committed by any staff member
of the National Security Planning Agency, provisions subject the offenders
to aggravated punishment.
15. In addition,
when public officials participate in such acts of torture, the officials
and their seniors are not exempt from prosecution, apart from penal
punishment, or from discipline by those who are entitled to appoint
them. Offenders shall bear civil liability for their acts (details
are found in the comments in relation to art. 4 and art. 14 of the
Convention).
16. Past
experience suggests that most acts of torture in the Republic of Korea
are principally committed by public officials to extract information
or confessions from individuals. In this regard, provisions guaranteeing
the right not to answer questions and the inadmissibility of confessions
obtained through torture or other unlawful forms of coercion as evidence
help to prevent such acts of cruelty as torture (details are found
in the comments in relation to art. 2, para. 1, and art. 15 of the
Convention).
(a) The
provisions of the Constitution (art. 12, para. 2) and the Penal Procedure
Code (art. 200, para. 2, and art. 289), which stipulate the right
of the suspect or the accused not to answer questions, also guarantees
the right of refusal to answer questions even when threatened by such
compulsive measures as torture;
(b) The
Constitution (art. 12, para. 7) and the Penal Procedure Code (art.
309) make clear that if the confession of a suspect or an accused
defendant which was obtained in the investigative offices is suspected
to have been made involuntarily by means of torture, violence, threat
or unduly prolonged arrest, or if the confession has no other supportive
evidence, it cannot be admitted as evidence in court. Therefore, the
results of acts of torture are nullified.
17. Apart
from all these provisions, other institutional devices such as cautionary
provisions urging the protection of human rights by investigating
officials, a public prosecutor's inspection of detention places, a
process of appeal and reappeal, constitutional petitions, quasi-indictment
procedures, arrest and detention warrants, and requests for the courts
to examine the legality of arrest or detention may also be regarded
as mechanisms to prevent acts of torture both directly and indirectly
(details are found in the comments in relation to art. 2, para. 1,
of the Convention).
Protection
of the rights of foreigners
18. In principle,
the fundamental human rights guaranteed by the Constitution of the
Republic of Korea apply equally to foreigners who do not have citizenship
of the Republic of Korea. In this regard, article 11, paragraph 1,
of the Constitution provides that "there shall be no discrimination
in political, economic, social or cultural life on account of sex,
religion or social status." The concept of social status only
means an inherent status which is determined from birth, but also
designates whatever measures are used in the social evaluation of
persons. Furthermore, all prohibitions of discrimination provided
in the Constitution are enumerated simply for illustrative reasons.
Discrimination is never permissible merely because the cause was not
delineated specifically in the Constitution as prohibited.
19. Citizenship
of the Republic of Korea is required in order to be privileged to
certain rights, for example, the right to vote and the right to be
elected to public office. Nevertheless, most rights are equally guaranteed
to all foreigners who reside or sojourn temporarily within the territory
of the Republic of Korea. Thus, foreigners enjoy the same protection
concerning torture as that of nationals of the Republic of Korea,
as prescribed by the Constitution and relevant laws. However, in cases
in which a foreigner claims damages against the Republic of Korea,
the State is held liable only if a mutual guarantee exists between
the home State of the foreigner and the Republic of Korea (art. 7
of the National Compensation Act).
B. The relationship between the Convention and Korean domestic
laws
20. Article
6, paragraph 1, of the Constitution of the Republic of Korea provides
that "Treaties duly concluded and promulgated under the Constitution
and the generally recognized rules of international law shall have
the same effect as the domestic laws of the Republic of Korea."
The Convention has the same effect as domestic laws following executive
ratification and the promulgation of the Convention, with the consent
of the National Assembly. Additional legislative measures are not
necessary. Therefore, when conflicts between domestic laws and the
Convention arise, the lex posteriori rule and the principle
of the precedence of special law shall be applied.
21. The Constitution
and domestic laws of the Republic of Korea do not conflict with the
Convention. However, owing to the special situation between the Republic
of Korea and North Korea on the Korean peninsula, article 21 (Right
of States parties to send communications) and article 22 (Right of
individuals to petition for injuries inflicted by torture) of the
Convention were selectively deferred by the Republic of Korea when
joining the Convention. Nevertheless, as the Government of the Republic
of Korea has sanctioned the Optional Protocol to the International
Covenant on Civil and Political Rights, allowing torture victims to
send communications to the Human Rights Committee for damage and injuries.
There are no barriers to demands to international organizations for
redress by torture victims.
22. In addition,
the Government of the Republic of Korea has acceded directly or indirectly
to human rights covenants dealing with torture. Examples include the
International Covenant on Civil and Political Rights, the Optional
Protocol to the International Covenant on Civil and Political Rights,
the four Geneva Conventions of 1949 concerning the protection of victims
of armed conflict, the two Additional Protocols of 1977 to the Geneva
Conventions, the Convention on the Elimination of All Forms of Discrimination
against Women, the Convention on the Rights of the Child, the Convention
for the Suppression of the Traffic in Persons and of the Exploitation
of the Prostitution of Others, the Convention on the Prevention and
Punishment of the Crime of Genocide, the International Convention
on the Elimination of All Forms of Racial Discrimination, etc.
23. The Republic
of Korea also respects and observes United Nations declarations and
standard rules such as the Universal Declaration of Human Rights,
the Declaration on the Protection of Women and Children in Emergency
and Armed Conflict of 1974, the Standard Minimum Rules for the Treatment
of Prisoners, the Declaration on the Protection of All Persons from
Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment, the Code of Conduct for Law Enforcement Officials,
etc.
24. The Government
of the Republic of Korea also supports the activities of the special
rapporteurs of the United Nations Commission on Human Rights concerning
issues of torture.
C. Instruments for human rights protection
25. As mentioned
above, the Convention has the same effect as the domestic laws of
the Republic of Korea, without necessitating additional legislative
measures. Therefore, the Convention should be observed by all State
agencies, including the judiciary branch, investigative agencies,
and the agencies responsible for executing punishment.
The courts
26. The courts
are the instrument for guaranteeing the fundamental rights of the
people by granting them redress of rights infringed upon by State
power. The fundamental rights of people are preserved by the guarantee
of the right to a trial provided in the Constitution.
27. The Constitution
of the Republic of Korea guarantees all individuals the right to a
trial by judges qualified under the law (arts. 27 and 101 of the Constitution).
28. Judicial
power is vested in the Supreme Court, which is the highest court of
the State, and other courts at specified levels (art. 101, para. 2,
of the Constitution). The Constitution also provides that "Judges
shall rule independently according to their consciences and in conformity
with the Constitution and the laws (art. 103 of the Constitution).
Therefore, judges should rule independently from various social interest
groups and be unswayed by public opinion, not to mention the executive
and legislative government branches.
29. Qualifications
for judges are determined by law in order to prevent abuse of judicial
power by the executive (art. 101, para. 3, of the Constitution). The
Chief Justice of the Supreme Court is appointed by the President with
the consent of the National Assembly; the Supreme Court Judges are
appointed by the President on the recommendations of the Chief Justice
and with the consent of the National Assembly; and other judges are
appointed by the Chief Justice with the consent of the Conference
of Supreme Court Justices. Therefore, the independent administration
of judicial affairs is assured (art. 104 of the Constitution). No
judge shall be removed from office except by impeachment or a sentence
of imprisonment or a more severe punishment (art. 106, para. 1, of
the Constitution).
30. In cases
in which fundamental rights are infringed upon by torture, etc. the
courts may sentence violators/offenders as prescribed by law. Courts
further contribute to guaranteeing fundamental rights of the people
by awarding appropriate compensation to the victims against State
agencies which committed torture, both preventing illegal acts such
as torture and providing redress to the victims.
The Constitutional
Court
31. The Constitutional
Court is the instrument for adjudicating petitions relating to the
Constitution. Such adjudication guarantees fundamental rights. Any
person whose fundamental rights were infringed upon due to the exercise
or non-exercise of public power may request redress from the Constitutional
Court. In addition, the Constitutional Court plays an effective role
as the organ for guaranteeing fundamental rights by making an adjudgement
on whether any law involving the infringement of fundamental rights
is unconstitutional. The Constitutional Court takes charge of the
following matters: (a) adjudgement on whether or not any law is unconstitutional
upon the proposition of the Court; (b) adjudgement on an impeachment;
(c) adjudgement on the dissolution of a political party; (d) adjudgement
on competence disputes between State organs, between a State organ
and a local government, and between local governments; and (e) adjudgement
on constitutional petitions as prescribed by law.
32. The Constitutional
Court is composed of nine adjudicators qualified to be court judges.
They are appointed by the President, three from persons selected by
the National Assembly and three from persons nominated by the Chief
Justice (art. 111, paras. 2 and 3, of the Constitution). No adjudicator
of the Constitutional Court shall be expelled from office except by
impeachment or a sentence of imprisonment or heavier punishment (art.
112, para. 3, of the Constitution). This provision safeguards the
adjudicators' ability to decide according to their consciences in
conformity with the Constitution as its guarantors.
Courts
martial
33. In consideration
of the special nature of the military in the Republic of Korea, article
27, paragraph 2, of the Constitution provides that courts martial
may be established as special courts, distinct from the standard judicial
system, and that their organization, authority, and the qualifications
of their judges shall be determined by law. The Court Martial Act
confers upon courts martial the jurisdiction over persons in active
military service, or employees of the military forces who have special
status, and over nationals and foreign aliens who violate some provision
of military penal law within the territory of the Republic of Korea,
including crimes involving important classified military information
and prisoners of war (art. 2 of the Court Martial Act). Courts martial
also have jurisdiction, in principle, over those who commit acts of
torture while on active military service or employed by military forces,
regardless of whether the crime is committed within or outside the
territory of the Republic of Korea.
34. Courts
martial are established within the military and have jurisdiction
over crimes concerning military matters. Thus, they have special status
in terms of establishment and jurisdiction. However, their administration
is similar to that of general courts, thereby guaranteeing fairness
and justice.
(a) In cases
in which courts martial have handed down judgements, defendants may
appeal to the Supreme Courts, the highest court in the nation. They
may also request the Constitutional Court for redress of their rights
through constitutional petitions regarding the exercise of public
power by a military prosecutor;
(b) Military
judges and prosecutors are appointed from among military legal officers
who have the same qualifications as judges of the general courts and
whose statuses are guaranteed;
(c) The
Court Martial Act and other acts have almost the same provisions as
the Penal Procedure Code, from investigation and trial to pronouncement
of a sentence. Thus the procedural code is not much different from
that of a general penal one (in cases in which the Court Martial Act
provides the same stipulations as the Penal Procedure Code when referring
to institutions of the Republic of Korea in relation to each article
of the Convention, statements regarding the Court Martial Act are
omitted).
Other
instruments for human rights protection
35. The Republic
of Korea prevents acts of cruelty, including torture, by imposing
responsibilities concerning the guarantee of human rights on public
prosecutors who take charge of the investigation and prosecution of
crimes.
(a) The
Human Rights Division, which is a part of the Ministry of Justice
of the Republic of Korea, deals solely with human rights affairs and
is composed of three public prosecutors and an assistant. The Division
oversees human rights protection, legal aid and observance of the
spirit of law and order. The Human Rights Division is particularly
concerned with the following: laying out and implementing a master
plan regarding the defence of human rights; conducting research on
laws and institutions in relation to human rights; cooperating with
other ministries regarding the defence of human rights; campaigning
for human rights issues; reviewing proposals to accede to international
conventions concerning human rights and legal questions involved in
implementing the conventions domestically;
(b) As a
measure to protect and improve the fundamental rights of individuals,
consultation offices for human rights are established in each district
public prosecutor's office and branch office throughout the nation.
Furthermore, public prosecutors in charge of human rights affairs
are appointed to collect information on cases involving human rights
violations, and to place criminal cases or petitions involving the
infringement of human rights under special administration.
36. Responsibilities
are also imposed on the judicial police officers who take charge of
investigations, to prevent them from infringing human rights. Beginning
in 1982, police stations received complaints regarding partial or
improper investigation or acts of cruelty, reinvestigating and correcting
them. From May 1993, report centres for human rights violations, such
as acts of violence or acts of cruelty committed during investigations,
have been established in inspection rooms of the National Police Office,
District Police Offices and the Marine Police Office, and in offices
of police superintendents. Moreover, beginning in January 1992, heads
of investigation divisions in the National Police Office and District
Police Offices throughout the nation have been appointed as human
rights protectors, educating investigators on human rights protection
during investigations and conducting inspections of sites which are
vulnerable to human rights violations, such as detention centres,
and promoting measures for human rights protection. From December
1994, police superintendents have conducted interviews with suspects
in police detention centres prior to being committed to jail, hearing
their complaints personally to ensure that no doubt exists concerning
partial investigations or acts of cruelty.
D. Measures which can be taken by individuals alleging injury from
torture
37. According
to the Constitution and relevant laws, various measures of redress
are available to individuals who allege violation of their human rights
such as injuries inflicted by torture. This report deals with general
measures of remedy having to do directly or indirectly with torture,
which is one form of infringement upon fundamental human rights.
38. Petition.
In general, individuals who allege violation of their fundamental
human rights through acts of torture committed by government officials/agencies
may seek redress by means of petition according to article 26 of the
Constitution. The result is reparation for damages and disciplinary
action or punishment of the public officials involved. Detailed procedures
can be found in article 6 through article 8.
39. Quasi-appeal.
Those protesting against confinement or seizure by a prosecutor or
a judicial police official, or demanding restoration of seized articles,
may request revocation or change (art. 417 of the Penal Procedure
Code). Accordingly, in cases in which detention becomes a form of
torture, or acts committed in association with that detention constitute
torture or other atrocious, inhumane or humiliating treatment, the
injured parties may request its revocation or change to the court.
40. Redress
for damages incurred by the infringement of rights. Those who
are injured by wrongful acts committed during the performance of official
duties have the right to claim damages, according to the National
Compensation Act and Civil Code (art. 29, para. 1, of the Constitution).
Furthermore, in cases in which a public prosecutor does not seek indictment
of a criminal suspect arrested or detained, or if the Court acquits
the accused, the suspect or the accused has the right to claim penal
compensation against the Government according to the Penal Compensation
Act (art. 28 of the Constitution).
41. Request
for aid by victims of criminal acts. The Constitution of the Republic
of Korea provides for the rights of victims of criminal acts to claim
aid from the Government. Article 30 of the Constitution provides that
"Citizens who have suffered bodily injury or death due to criminal
or other acts may receive aid from the State as prescribed by law."
The Aid to the Criminal Victims Act, which entered into force from
1 July 1988, provides detailed methods and procedures of receiving
government aid.
42. Complaint
and accusation. When fundamental rights are infringed upon by
public officials' acts of torture, the victim has the right to request
the public prosecutor's office or the police to rectify the wrongful
act. The individual may also demand an investigation or prosecution
procedure by means of complaint or accusation regarding wrongful detention
or torture. To support those complaints or accusations institutionally,
the laws of the Republic of Korea provide the procedure of applying
for a ruling (arts. 260-265 of the Penal Procedure Code; arts. 301-306
of the Martial Court Act), and procedures of appeal or reappeal to
a higher public prosecutor's office.
43. Furthermore,
victims may lodge complaints and accusations based on the provisions
of the Criminal Execution Act, the Juvenile Agency Act, and the Military
Criminal Execution Act.
44. Detailed
explanations of methods and procedures of redress will be provided
in each statement concerning the provisions of the Convention.
E. The rights to counsel
45. Although
the rights of victims of torture are guaranteed under domestic and
international law, it is difficult for those who do not have knowledge
of law to claim for damages/redress without the assistance of counsel.
The Penal Procedure Code guarantees the right to counsel for the suspect
or the accused in order to protect against atrocities such as torture
(art. 29 and art. 30 of the Penal Procedure Code). Without notification
of the right to counsel, the suspect or the accused cannot be arrested
or detained (arts. 209, 72, 88, 200-5 of the Penal Procedure Code),
and the right to interview and communicate with counsel is provided
in the Code (art. 34). Moreover, in cases in which the suspect is
a minor, elderly (over 70), deaf, mute and mentally or physically
handicapped, destitute, etc. the court may elect the counsel ex officio
(art. 33 of the Code).
46. The Government
of the Republic of Korea is implementing a Judicial Aid Programme
which provides free legal consultation, assistance with court costs,
and free procuration for those who do not have knowledge of law or
cannot afford counsel. Korea Legal Aid Corporation (hereafter KLAC),
established on 1 September 1987, is operated with the financial support
of the State. Currently, KLAC had 51 offices providing legal aid for
farmers and fishermen, labourers whose monthly earnings are under
1 million won (equivalent to US$ 1,250), and small-scale businessmen.
The record of achievements for the past three years is as follows:
legal consultations:
303,234 cases 1992; 342,049 in 1993; 344,364 in 1994,
aid in lawsuits:
28,321 cases in 1992; 34,625 in 1993; 37,729 in 1994.
47. The number
of those passing the bar examination in the Republic of Korea has
increased to 300 per year since 1981. Some are appointed as judges
or public prosecutors, and others become lawyers. As of July 1995,
despite the fact that the country's population stands at 46 million,
the total number of lawyers is approximately 3,700, indicating a grave
shortage of lawyers, considering the economic and social development
of the Republic of Korea. As a result, citizens do not have easy access
to lawyers. This means that there is a limit on the extent to which
individuals may exercise their rights guaranteed by law. Also, despite
its achievements, KLAC also has its own limits. It did not extend
its services to farming and fishing areas, barely able to provide
aid in criminal cases. The KLAC could not expand its legal aid objectives
because the fees of the lawyers who belonged to KLAC were relatively
low and the working conditions were poor (in the Republic of Korea,
as mentioned before, the number of lawyers is limited, and most of
them work in big cities where fees are relatively high).
48. However,
in 1995, two revolutionary measures were adopted to expand the right
to counsel. One was to increase the number of those who passed the
bar exam from 300 to 500. The other was to adopt the Public Judge
Advocate System.
Public
Legal Officer System
49. Given
the special circumstances of confrontation between the North and South,
nationals of the Republic of Korea are required to carry out military
obligations. The Public Legal Officer System allows those who completed
the Judicial Academy (the status of lawyer is conferred upon those
completing the two-year Judicial Academy training courses after passing
the bar exam), but have not yet been elected as judge advocates due
to incomplete military obligations, to be appointed as public legal
officers to engage in legal aid, with the exception of those who are
appointed as military legal officers. The Public Legal Officer System
allows qualifiers who have not yet completed their military service
to become lawyers engaged in community service in place of carrying
out their military obligations. Even countries that do not prescribe
such legally required military obligations may adopt this system,
because it may be said that the services of the legal profession for
society will be required for some time, regardless of the social status
and public perception of lawyers; the stronger the rule of law becomes,
the higher the social status of and esteem for members of the legal
profession.
50. Serving
as a public legal officer is a form of military service. To guarantee
successful service, public legal officers are given the status of
officials. They belong to the Ministry of Justice, and the Minister
appoints and supervises them collectively. The duties of public legal
officers are mainly to provide legal aid, to serve as defence counsel
appointed by the Government and agencies of the Government in public
and administrative suits. An idea is being considered to have them
engage in law-related fields at the local government level if their
number increases. Public legal officers serve at legal aid corporations
or public prosecutors' offices. To ensure expert legal services in
farming and fishing regions, they are appointed to courts and public
prosecutors' offices where there are no lawyers at all or no lawyers
providing legal aid.
51. The introduction
of the Public Legal Officer System made it possible to provide expert
legal services for farmers and fishermen. It provided actual legal
aid, solving the problem of legal advice being given by non-legal
professionals. The scope of legal aid was also expanded to penal procedural
aid and the legal aid objectives were expanded. The Republic of Korea
has been criticized for defence counsel appointed by the Government
being non-committal due to the low fees. The public Legal Officer
System overcame this problem with the obligatory engagement of legal
specialists in lieu of military obligations. As a result, suspects
and the accused may interview and communicate with legal experts easily,
thus safeguarding them from injury by torture, and allowing torture
victims easier access to civil and penal procedures.
F. Investigating agencies and correctional facilities
52. Institutionally
and historically, the typical agencies in which torture or other cruel,
inhuman or humiliating treatment or punishment can be committed are
investigating agencies and correctional facilities. Therefore, before
discussing the measures concerning the implementation of the Convention
and improvements, general references have been made to the investigating
agencies and the correctional facilities.
The public
prosecutor
53. The public
prosecutor is the agent who contributes to the implementation of criminal
justice, being involved in every step of the criminal procedure, from
the investigation of crimes to the execution of judgements. In other
words, the public prosecutor is the one who presides over investigations,
directs and supervises judicial police officials, and independently
determines whether or not to institute a public prosecution after
completing the investigation. In addition, he has broad authority,
on the one hand as a party against the accused in public trials requesting
the court for due application of laws and regulations, and on the
other hand as director over the execution of criminal judgements when
the judgement has become final.
54. As mentioned
above, while the office of the public prosecutor is an instrument
of the executive branch of government, in fact it is a quasi-judicial
organ which is closely related to the judicial power and is under
the obligation to act only for truth and justice. The requisite qualifications
to be appointed as public prosecutor are the same as those for a judge
(art. 29 of the Public Prosecutor's Office Act) and his/her status
is guaranteed (art. 37 of the above Act); that is, he shall not be
subject to dismissal, suspension of office or reduction of salary
unless he is impeached or sentenced to imprisonment without hard labour
or more severe punishment, or if he is subject to disciplinary measures.
55. In the
Republic of Korea, the public prosecutor is the one who presides over
investigations and the judicial police officials are his auxiliary
agents (arts. 195 and 196 of the Penal Procedure Code; art. 4, para.
2, of the Public Prosecutor's Office Act). By granting the right to
direct investigations to the public prosecutor, who has the same qualifications
as a judge and whose status is guaranteed, fairness can be assured
and investigations of illegal activities may detect unlawful acts
such as torture more easily, thus enhancing guarantees of human rights
during investigations.
(a) The
public prosecutor directs the judicial police officials during investigations,
both general and specific, and they shall obey any official order
issued by the competent public prosecutor in the criminal investigation
(art. 53 of the Public Prosecutor's Office Act). Provisions (b) through
(d) institutionally ensure the rights of the public prosecutor to
direct judicial police officials;
(b) Issuance
of detention or arrest warrants and search and seizure warrants can
only be requested by the public prosecutor. In other words, either
the public prosecutor personally requests a warrant, or the public
prosecutor requests a warrant on behalf of the judicial police officers
and, if granted, the warrants are issued by the competent court judge
(art. 200-2, para. 1; art. 201, para. 1; art. 215 of the Penal Procedure
Code). In addition, only the public prosecutor has the right to terminate
an investigation, and he may also order the police officers to immediately
transfer cases to the public prosecutor's office (art. 198-2, para.
2 of the Code);
(c) If a
judicial police officer commits any unjust act in the performance
of his duties, the chief public prosecutor of the district public
prosecutor's office may order him to suspend the investigation of
the case concerned and request the person having the competence to
appoint a replacement. The person having the competence to appoint
shall comply with the request for a replacement unless he presents
any justifiable reason not to (art. 54 of the Public Prosecutor's
Office Act);
(d) There
is a difference of probative value between the protocol prepared by
the public prosecutor and that prepared by the judicial police officers
(art. 312 of the Penal Procedure Code), and a judicial police official
shall notify the chief public prosecutor of the district public prosecutor's
office or the branch office regarding investigations outside his jurisdiction
(art. 210 of the Code). There are also some special provisions, stipulating
the inspection of detention places by the public prosecutor (art.
198-2 of the Code); the right of permission concerning urgent arrests
(art. 200-3, para. 2, of the Code); the obligation of a judicial police
official to notify the chief public prosecutor of the district public
prosecutor's office or of the branch office regarding the investigation
(art. 11 of the Rules concerning the Performance of the Judicial Police
Officials); and the obligation to relay relevant information (art.
12 of the Rules).
Judicial
police officials
56. Judicial
police officials consist of general judicial police officials and
special judicial police officials.
(a) General
judicial police officials include judicial police officers and judicial
police assistants. Investigators, police administrative officials,
police superintendents, police captains and police lieutenants shall
investigate crimes as judicial police officers under the authority
of a public prosecutor (art. 196, para. 1, of the Penal Procedure
Code; art. 46, para. 2, of the Public Prosecutor's Office Act; addendum,
art. 6 of the Police Service Act). Police sergeants and patrolmen
shall assist in the investigation of crimes as judicial police assistants
under the authority of a public prosecutor or a judicial police officer
(art. 196, para. 2, of the Penal Procedure Code). Also other judicial
police officers may be appointed in accordance with the law (para.
3 of the same article);
(b) Judicial
police officials who take charge of investigations in special areas
are called special judicial police officials. These special officials
shall perform the duties of judicial police officials regarding forestry,
maritime affairs, monopoly, taxation and other special circumstances.
The extent of the duties shall be prescribed by law (art. 197 of the
Act Concerning Persons Who Perform the Duties of Judicial Police Officials
and the Extent of Their Duties). Special judicial police officials
are characterized by the fact that the extent of their authority is
restricted in terms of the regions and subject matter of their duties,
even though they possess the same authority and status as general
judicial police officials;
(c) Some
staff members of the National Security Planning Agency, appointed
by the director of the Agency, may perform the duties of judicial
or military judicial police officials in the following circumstances
(art. 16 of the National Security Planning Agency Act):
(i) Crimes
concerning insurrection and foreign aggression as delineated in the
Criminal Code, and crimes concerning mutiny and illegal use of military
codes as defined by the Military Criminal Code;
(ii) Crimes
delineated in the Military Secret Protection Act and in the National
Security Act (excluding crimes defined in arts. 7 and 10 of the Act);
(iii) Other
crimes concerned with the duties of the staff of the National Security
Planning Agency.
Correctional
facilities
57. Correctional
facilities refer to State facilities in which punishment by deprivation
of freedom, such as penal servitude, imprisonment, or detention, are
carried out, as well as facilities in which criminal suspects, the
accused, and persons sentenced to death are held. In the Republic
of Korea, the head of the correctional facilities is the Minister
of Justice, and he has been appointed from among those employed in
the office of the public prosecutor or the judiciary. The current
minister of Justice has served as a Supreme Court Justice. In addition,
the Office of the head of the Correction Bureau, the highest office
responsible for the practical affairs of correctional facilities,
is held by a public prosecutor. Such a structure reflects the will
of the Government of the Republic of Korea to prevent human rights
violations such as torture in correctional facilities and to respecting
human rights. Moreover, as will be mentioned later, patrol examinations
by the Minister of Justice or inspection tours by a public prosecutor
contribute to improving the actual conditions of the criminal suspects
and legitimacy regarding execution of punishment.
58. The Institute
for Examining the Classification of Juvenile Criminals is entrusted
with classifying juvenile criminals between the ages of 12 and 14
who do not comply with the legitimate supervision of their guardian.
The Institute conducts the examinations necessary to decide on protective
measures, based on the specialized knowledge of psychiatry, psychology,
pedagogy, sociology, etc., and it notifies the court of the results.
The term of trust shall not be longer than one month, and may be extended
only once by court decision if considered necessary. If results of
the examinations demonstrate that protective measures are necessary
for some juveniles, a judge for the Juvenile Department may transfer
the youths to a juvenile reformatory for a short term, according to
article 32, paragraph 1, subparagraph 6, of the Juvenile Act, or transfer
them to a juvenile reformatory without mentioning a length of term.
If the transfer is for a short term, it shall not be longer than six
months, but it may be extended once within that six-month period (arts.
32 and 33 of the Juvenile Reformatory Act). Even in these cases, as
will be mentioned later, the director of a juvenile reformatory or
the director of the Institute for Examining the Classification of
Juvenile Criminals may conduct interviews with juveniles under protection
at any time, to hear about their treatment or their personal affairs,
ensuring the observance of due process (art. 10 of the Juvenile Reformatory
Act).
59. Protective
custody facilities are established and run by the Protection of Society
Act. Custody facilities hold criminals who have the potential to repeat
their offence and criminals for whom special education rehabilitation
and treatment are deemed necessary, assisting their reintegration
and protecting society. Regarding protective custody, the Penal Procedure
Code and the Criminal Execution Act are applicable unless prescribed
otherwise, ensuring the protection of those who are under protective
custody (art. 42 of the Protection of Society Act).
Military
investigating agencies, etc.
60. As for
the cases mentioned in paragraph 33 above concerning military public
prosecutors and military police officers who engage in the criminal
investigations, most of the procedures are similar to penal ones.
Furthermore, the military prison is a facility which, unlike the general
prison, holds military convicts and unconvicted prisoners. It is regulated
by the Military Criminal Execution Act and the Military Prison Ordinance.
However, most provisions are the same as those of the Criminal Execution
Act.
G. Other significant circumstances to be considered
61. To have
a correct understanding of all the relevant measures for preventing
torture in the Republic of Korea, there should exist, above all, an
objective perception of the changes in economic and social conditions.
This is especially true regarding the educational level of the people
and the confrontational circumstances between the North and South.
Population,
economic structure and educational level
62. Changes
in the population, the economic structure, and the improvement of
the educational level throughout this country have brought new meaning
to the concept of human rights. As the people have been enlightened
to new aspects of human rights, they have come to protest actively
against unjust treatment by the State including torture.
63. The population
of the Republic of Korea was 44,450,000 as of the end of 1994, and
the population density is 447.3 persons per square kilometre. As in
other developing countries, the rapid increase in population was once
considered a serious social problem, but the rate of increase in population
dropped significantly as a result of successful family planning movements
and the people's increased awareness of the population issue. For
example, the rate of population increase in 1994 was 0.9 per cent.
Furthermore, one of the most outstanding features in the demographic
structure is the continuous increase in the number of young people
with high education levels, as demonstrated by the 1994 census which
showed that the proportion of people under 25 years of age was 42.8
per cent of the whole population. The working age population, signifying
persons over 15 years of age, has increased from 20.9 million in 1975
to 33.2 million in 1994.
64. The economic
structure has under gone great transformation resulting from more
than 30 years of economic growth. In 1966, the year in which the first
five-year economic development plan ended, the first industry was
credited with earning 34.8 per cent of GNP, the second industry 20.5
per cent and the third industry 44.7 per cent. However, by 1994, the
proportions of each industry had changed to 7.3 per cent, 42.7 per
cent, and 50.0 per cent, respectively. Presently, the Republic of
Korea is a fast-industrializing country and upper-middle-level incomes.
In addition, GNP in 1962 was 2.3 billion dollars and GNP per capita
was 87 dollars. By 1994 GNP had increased to 376.9 billion dollars
and the GNP per capita to 8,483 dollars. Therefore, the Republic of
Korea is considered to have recorded one of the highest rates of economic
growth during the last quarter century. Such economic growth is promoted
by the fact that the Republic of Korea adopted an export-oriented
industrial strategy based on a large and well-educated labour force.
The Republic of Korea is one of the top 10 steel-exporting countries
in the world. Other major industries in the Republic of Korea are
the semiconductor, electronics, shipbuilding, automobile and chemical
industries.
65. Primary
education has become compulsory since the enactment of the Education
Law in 1949. Since 1970, virtually the entire population has received
primary education and 99 per cent of them have entered middle schools;
98 per cent of middle school graduates enter high schools and 51.4
per cent of high school graduates enter universities. In the Republic
of Korea, virtually everyone is literate, except for some in the elderly
population (under Japanese colonial rule before 1945, the right of
education was restricted to a few) and those with mental handicaps.
In addition, as most people have received or are receiving secondary
or higher education, the consciousness of the Korean people about
rights and their demands for redress against the infringement of their
rights are second to none in the world.
Security
on the Korean peninsula
66. Although
the cold war has come to an end and a new era of détente has
begun, security of the Korean peninsula remains unstable.
67. Recognizing
that the Democratic People's Republic of Korea is a member of the
national community and a partner in reunification efforts towards
bringing peace to the Korean peninsula through dialogue and cooperation,
the Government of the Republic of Korea has continually made efforts
to hold talks with the Democratic People's Republic of Korea, even
under circumstances of military confrontation. For example, the Government
of the Republic of Korea has sent substantial amounts of rice to the
Democratic People's Republic of Korea as humanitarian aid. It also
returned Mr. In-mo Lee, a long-term communist convict, to the Democratic
People's Republic of Korea in the spirit of détente. However,
the Democratic People's Republic of Korea which provoked the tragic
Korean War, has not given up its desire to conquer the Republic of
Korea by force. In 1968, it sent armed espionage agents to the Republic
of Korea on a mission to attack the Blue House, which is the presidential
residence. In the 1983 bombing in Yangon, Myanmar, it killed leading
figures of the Government of the Republic of Korea visiting the country.
Moreover, in 1987 it blew up a KAL airplane, killing 155 civilians
on board. Apart from these acts of terrorism, the Democratic People's
Republic has relentlessly made efforts to overthrow the Government
of the Republic of Korea by organizing espionage groups, and has been
attempting to instigate the insurrection of the people against the
Government through official broadcasts.
68. The division
of the Korean peninsula between North and South is an undeniable fact
which may serve to restrict the exercise of fundamental rights in
the Republic of Korea, but it cannot justify the violation of essential
aspects of the rights of the people. Therefore, acts which violate
essential aspects of fundamental rights such as torture are not permissible
in the Republic of Korea under any circumstances. Moreover, the civilian
Government is making efforts to guarantee and improve the rights and
freedoms of the people, despite the present conditions and security
concerns on the Korean peninsula. Nevertheless, owing to the division
of the Korean peninsula there have been distortions of the truth that
have ignored objective appraisals of the human rights conditions in
the Republic of Korea.
II. INFORMATION IN RELATION TO ARTICLES IN PART I OF THE CONVENTION
Article 2
Paragraph
1
69. The ideals
of the Universal Declaration of Human Rights and the Convention against
Torture prevention are realized in the legal system of the Republic
of Korea through provisions prohibiting torture and cruel and inhuman
treatment or punishment.
70. Direct
and indirect provisions of legislative, executive and judicial measures
for torture prevention are included in the Constitution of the Republic
of Korea, such as:
(a) We the
people of Korea, proud of a resplendent history and tradition ...
pledge to ensure security, liberty, and happiness for ourselves and
for future generations forever ... (preamble to the Constitution);
(b) All
citizens shall be assured of human worth and dignity and have the
right to pursue happiness. It shall be the duty of the State to confirm
and guarantee the fundamental and inviolable human rights of individuals
(art. 10 of the Constitution);
(c) All
citizens shall enjoy personal liberty. No person shall be arrested,
detained, searched, seized, or interrogated in an unlawful manner.
No person shall be punished, places under preventive restrictions
or subject to involuntary labour except as provided by law and through
lawful procedures (art. 12, para. 1, of the Constitution);
(d) No citizen
shall be tortured or be compelled to testify against himself in criminal
cases (art. 12, para. 2, of the Constitution);
(e) In a
case where a confession is deemed to have been made against a defendant's
will due to torture, violence, intimidation, unduly prolonged arrest,
deceit, etc. or in a case where a confession is the only evidence
against a defendant in a formal trial, such confessions shall not
be admitted as evidence of guilt, nor shall a defendant be punished
by reason of such confessions (art. 12, para. 7, of the Constitution);
(f) Freedoms
and rights of citizens shall not be neglected on the grounds that
they are not enumerated in the Constitution (art. 37, para. 1, of
the Constitution);
(g) The
freedoms and rights of citizens may be restricted by law only when
necessary for national security, the maintenance of law and order
or for public welfare. Even when such restrictions are imposed, no
essential aspect of the freedoms or rights shall be violated (art.
37, para. 2, of the Constitution).
71. In addition,
the Constitution provides for the issuance of warrants (art. 12, para.
3); the right to prompt assistance of counsel (art. 12, para. 4);
notification of detention and appointment of defence counsel (art
12, para. 5); examination of the legality of confinement (art. 12,
para. 6); the presumption of innocence (art. 27, para 4); the right
to demand compensation for unfair detention (art. 28); and the right
to make claims for damages to the State (art. 29), in order to prevent
unfair detention and torture during legal confinement.
72. In accordance
with such constitutional provisions, laws and regulatory statutes
further delineate principles and methods of preventing torture.
Caution
to those who engage in investigations
73. The Penal
Procedure Code orders those who engage in investigations to respect
the human rights of a suspect or other persons, prohibiting illegal
acts such as torture. That is to say, a public prosecutor, judicial
police officials or others involved in an investigation shall maintain
secrecy in order not to violate the personal rights of a suspect or
other persons, and shall not infringe the rights of others in the
course of an investigation (art. 198 of the Penal Procedure Code).
74. There
have been assertions of human rights violations committed by staff
members of the National Security Planning Agency while investigating
communist elements. Such allegations have led to the creation of a
new provision to prohibit the abuse of authority. These new provisions
are an expression of the will of the Government to prevent torture
and other violations of human rights by the staff of the National
Security Planning Agency. That is to say, the revision of the law
completed on 5 January 1994 prohibits staff members of the National
Security Planning Agency from arresting or detaining a person, compelling
a person to do something that is not required of him, or obstructing
a person from exercising his rights. In case a member of the National
Security Planning Agency violates these obligations, he shall be subjected
to punishment heavier than for other public officials who violate
human rights while conducting investigations (arts. 11 and 19 of the
National Security Planning Agency Act).
Principles
of the presumption of innocence and the right to refuse to answer
questions
75. In accordance
with the provisions of the Constitution, article 275-2 of the Penal
Procedure Code provides that the accused shall be presumed innocent
until he is adjudged to be guilty, thereby prohibiting unfavourable
treatment such as physical detention and torture.
76. The right
to refuse to answer questions derives from the privilege against self-incrimination
in common law, and it designates the right of a suspect or the accused
not to answer the questions of the court or investigative agencies
in public trials or investigations. The right to refuse to answer
questions is a humane safeguard against confessions compelled by torture.
77. On the
basis of article 12, paragraph 2, of the Constitution, which provides
that "No citizen shall be tortured or be compelled to testify
against himself in criminal cases", the Penal Procedure Code
provides for the right of the accused or a suspect to refuse to answer
questions.
(a) In cases
which require an investigation, a public prosecutor or a judicial
police officer may request the suspect to appear for interrogation.
The suspect must be notified in advance that he may refuse to answer
questions, and an accused may refuse to answer inquiries by the public
prosecutor or judicial police officer (art. 200, para. 2, and art.
289 of the Penal Procedure Code);
(b) The
protocol of the interrogation of a suspect shall be shown to him for
inspection or read to him. In case the suspect demands an amendment,
deletion or change, the statement of the change shall be recorded
therein (art. 224, para. 2, or the Code);
(c) Not
informing a suspect of the right to refuse to answer questions is
a serious violation of interrogation procedure and in some cases the
probative value of the confession obtained by interrogation of the
suspect may be nullified (Supreme Court judgement 923 DO 682, rendered
on 23 June 1992);
(d) In interrogating
the accused, a public prosecutor shall not compel him to testify,
induce his answers, or interrogate him coercively or insultingly (art.
128 of the Penal Procedure Rule).
78. Concerning
article 15 of the Convention, compelled confessions constitute an
infringement of the right not to answer questions. The probative value
of such confessions is therefore negated.
Issuance
of warrants, interrogation of suspects, and the examination of the
legality of arrest and confinement
79. Powers
of arrest or detention which restrict an individual's personal liberty
may be abused and constitute a form of torture. Because of the gravity
of the issue of detention, the Penal Procedure Code strictly limits
the conditions for detention and mandates the issuance of a warrant
for detention by a competent court judge in order to prohibit abuse
of detention and secure human rights under judicial control (arts.
73, 200-2 and 201 of the Penal Procedure Code).
80. In an
urgent case or one involving a flagrant offender, arrests may be made
without a warrant, but the requirements are strictly stipulated. When
a prosecutor needs to detain such an offender, he must apply for a
detention warrant within 48 hours of the arrest, otherwise he must
release the offender immediately according to the above Code (arts.
200-4 and 213-2 of the Penal Procedure Code). This provision is intended
to keep the prosecutor from taking advantage of the arrest to extract
information or a confession from the suspect.
81. Urgent
arrest is limited to cases in which there is valid reason to suspect
that the crimes committed are punishable by penalty, penal servitude,
life imprisonment, or imprisonment for three years or more; in which
there is fear of the destruction of evidence or attempts to escape;
and cases in which it is impossible to obtain a warrant from a judge
of the competent district court because of urgencies. However, the
prosecutor's immediate approval is required even in these cases (art.
200, para. 3, of the Penal Procedure Code). An individual who is caught
in the act of committing an offence or having just committed an offence;
who is being pursued by law enforcement officers; who is carrying
stolen goods or a weapon or other objects recognized as being used
in connection with a crime; who has apparent evidence on his body
or clothes; or one who attempts to flee when questioned, is regarded
as a flagrant offender, and he may be arrested without a warrant (art.
211 of the Code).
82. In accordance
with the Constitution of the Republic of Korea, the Penal Procedure
Code provides for the examination of the legality of confinement,
originating from the writ of habeas corpus in common law. When a suspect,
his defence counsel, lineal relative, etc. submits a petition to an
appropriate court, the court shall hold an open trial to examine the
legality of the confinement and the necessity of continued detention.
If the court finds that the confinement is illegal or unreasonable,
the suspect's release shall be ordered by the court's authority (art.
214-2 of the Code). That is, if the detention is imposed as a form
of torture, the court may revoke the detention upon examination of
the legality of the confinement. Even if the detention is legally
legitimate, unreasonable acts such as torture committed during confinement
may be revealed through the court's enquiries. Thus examination of
the legality of confinement has great significance in this regard.
83. The Penal
Procedure Code was amended in December 1995, allowing court judges
to personally interrogate the suspect concerning the issuance of a
detention warrant (enforced as of January 1997), and for exercising
caution and prudence in cases of physical detention and prevention
of illegal acts such as torture by investigative agencies (art. 201-2
of the Code).
(a) The
judge of a competent district court who receives a request for a detention
warrant for an arrested suspect, in accordance with the law, may question
the suspect if he deems it necessary to examine the reasons for the
detention (para. 1 of the same article);
(b) The
judge of a competent district court who receives a request for a detention
warrant for a suspect not yet arrested shall issue a detention warrant
for arrest if there are reasonable grounds of suspicion that the suspect
committed the crimes, and if the judge deems it necessary to examine
the reasons for the detention. After the suspect has been arrested
and questioned, if there are valid reasons to detain him, the judge
shall issue a warrant of detention for confinement (paras. 2 and 6
of the same article).
Inspection
of detention centres
84. In the
Republic of Korea, a public prosecutor, who has the same qualifications
as a judge and whose status is guaranteed, takes charge of investigations,
thereby ensuring fairness in the investigative process and the strengthening
of human rights protection during investigations.
85. To prevent
the infringement of human rights by such acts as physical detention
and torture committed by investigative agencies, current laws order
public and military prosecutors to regularly inspect detention places
in police stations.
(a) The
chief public prosecutor of the district public prosecutor's office
or the chief of the branch office shall detail a public prosecutor,
under the authority of said offices, to inspect places where suspects
are detained in police bureaux or police stations at least once every
month, in order to investigate whether or not there have been cases
of illegal detention. The inspecting public prosecutor shall examine
and question the detainee and shall examine documents relating to
the detention (art. 198-2, para. 1, of the Penal Procedure Code);
(b) If given
valid reason to suspect that a prisoner has been detained through
unlawful procedures, the public prosecutor shall order the prisoner's
release or the immediate transfer of his case to the public prosecutor's
office (art. 198-2, para. 2, of the Code). This is a provision to
guarantee the effectiveness of a public prosecutor's inspection of
detention places;
(c) Furthermore,
public prosecutors shall direct and supervise judicial police officers
and those who take charge of investigations to ensure their observance
of the due process of law, in an effort to eradicate at all costs
any act of cruelty during an investigation;
(d) Military
prosecutors shall also inspect the detention places of military investigative
agencies at least once every month, with a view towards eliminating
illegal acts such as torture (art. 230 of the Court Martial Act).
86. On the
other hand, both public and military prosecutors and judges may inspect
prisons to ensure that the human rights of inmates are also guaranteed.
(a) The
Criminal Execution Act: The Minister of Justice may perform a
patrol examination of prisons, the Juvenile Reformatory and detention
places, or order other officials in the Ministry of Justice to do
so. Judges and public prosecutors may inspect prisons, the Juvenile
Reformatory or detention places at any time (art. 5 of the Criminal
Execution Act);
(b) The
Juvenile Reformatory Act: The head of the Juvenile Reformatory
may conduct interviews at any time with juveniles under protection
to hear about their treatment or their personal affairs (art. 10 of
the Juvenile Reformatory Act);
(c) The
Military Criminal Execution Act: The General Chiefs of Staff in
each Force may perform a patrol examination of prisons, or order other
officials in the military to do so. Military judges and prosecutors
in each Force may make inspection tours of prisons at any time (art.
3 of the Military Criminal Execution Act).
87. Furthermore,
the Criminal Code prescribes that police officers must cooperate with
public prosecutors in executing their duties of protecting human rights,
and abide by the instructions of public prosecutors given in that
regard, subjecting them to punishment in cases of violation. That
is, a person who, while performing or assisting in police duties,
interferes with the execution of the duties of a prosecutor concerning
the safeguarding of human rights, or a person who does not follow
the prosecutor's instructions concerning the vindication of human
rights shall be punished by penal servitude not exceeding 5 years,
or by suspension of qualifications for a period of time not exceeding
10 years (art. 139 of the Criminal Code).
Quasi-indictment,
appeal and reappeal, and constitutional petitions
88. To ensure
more severe punishment of those who commit torture, the Penal Procedure
Code grants victims of torture the right to lodge complaints. Moreover,
the Penal Procedure Code provides for quasi-indictment procedures
by request for a ruling, apart from indictment procedures initiated
by a public prosecutor (arts. 260-265 of the Penal Procedure Code).
(a) In the
Republic of Korea, the right of appeal is attributed to a public prosecutor,
to ensure appropriate institution of the appeals process. In addition,
to safeguard against possibilities that the exercise of prosecutorial
power may be arbitrary or expedient, or affected by politics, quasi-indictment
procedures are provided in relation to principal crimes;
(b) When
a person lodges complaints or accusations of abuse by the authorities,
including unlawful arrest and confinement, or of acts of violence
or cruelty committed by investigating officials in the performance
of duties (crimes such as those referred to in arts. 123-125 of the
Criminal Code), and is notified of a public prosecutor's decision
not to institute public prosecution, he/she may appeal to the competent
High Court, according to the quasi-indictment procedures in trials,
as delineated in arts. 260, 261, 262, 262-2, 263, 264, and 265 of
the Penal Procedure Code;
(c) When
the High Court rules that the case ought to be referred to the competent
district court, public prosecution shall be deemed to have been instituted
in the case, and a court-appointed advocate shall maintain the appeals
process as a special prosecutor.
89. On the
other hand, when a person who lodges complaints or accusations is
dissatisfied with a military prosecutor's decision not to institute
prosecution, he/she may appeal to the High Court Martial. Furthermore,
contrary to the Penal Procedure Code, there are no provisions in the
Court Martial Act restricting the scope of the crimes fit for application.
Therefore, criminal punishment of those who commit acts of cruelty
such as torture is more effectively guaranteed in the military (arts.
301-306 of the Court Martial Act).
90. A person
who lodges complaints or accusations may appeal to the chief public
prosecutor of the competent High Public Prosecutor's Office against
a public prosecutor's decision not to institute a prosecution (art.
10, para. 1, of the Public Prosecutor's Office Act), and may reappeal
to the Prosecutor General if the initial appeal is rejected (art.
10, para. 2, of the Act).
91. When
a person who lodges complaints or accusations considers that his/her
fundamental rights as guaranteed by the Constitution have been infringed
upon due to a non-indictment decision by a public prosecutor, he/she
may request to the Constitutional Court for an adjudgement on constitutional
petition for that reason (art. 68 of the Constitutional Court Act).
Restrictions
on evidence
92. In order
to ensure the due process of law during investigation, victims of
torture are granted the right to lodge complaints. In such cases,
the torturers are punished, and evidence obtained through torture
shall not be used as proof of guilt. More detailed descriptions are
found in the comments in relation to articles 4, 13 and 15 of the
Convention. In addition, with a view to preventing torture and other
cruel, inhuman or humiliating treatment or punishment, statements
on the prohibition of torture are included in the statutes and directives
used for educating those who participate in investigations; all institutions
and practices are under systematic review and, taking into account
that the State shall be held liable for damages to torture victims,
those who serve in State organs are obligated to supervise persons
working under their charge, preventing illegal acts such as torture.
More detailed descriptions are found in the comments in relation to
articles 10, 11 and 14 of the Convention.
Paragraph
2
93. The Constitution
of the Republic of Korea and the international conventions to which
the Republic of Korea accedes and promulgates comply with article
2, paragraph 2, of the Convention stipulating that no exceptional
circumstances whatsoever, whether a state of war or a threat of war,
internal political instability or any other public emergency, may
be invoked as a justification of torture.
94. The Constitution
of the Republic of Korea states that the freedoms and rights of citizens
may be restricted by law only when necessary "for national security,
the maintenance of law and order or for public welfare" (art.
37, para. 2, of the Constitution). However, "national security",
"the maintenance of law and order" and "public welfare"
are understood as norms included in fundamental rights in order to
mitigate conflicts between certain rights and to guarantee all possible
human rights. Strict and limited implementation of the National Security
Law has been carried out, even when fundamental rights were to be
limited on the basis of this concept. In addition, the Constitution
provides that even when such restrictions are imposed "no essential
aspect of freedoms or rights shall be violated" (art. 37, para.
2, of the Constitution), thus preventing abuse of the restriction
by the State. Therefore, in the Republic of Korea, no reason can justify
acts which violate the essential aspects of fundamental human rights.
95. According
to article 4 of the International Covenant on Civil and Political
Rights, which the Republic of Korea has ratified and promulgated,
even during officially declared public crises which threaten to destroy
the nation, no one shall be subject to torture or cruel, inhuman and
insulting treatment or punishment. In addition, according to the Geneva
Convention of 12 August 1949 for the Amelioration of the Condition
of the Wounded and Sick in Armed Forces in the Field; the Geneva Convention
of 12 August 1949 for the Amelioration of the Condition of the Wounded,
Sick and Shipwrecked Members of Armed Forces at Sea; the Geneva Convention
of 12 August 1949 relative to the Treatment of Prisoners of War; the
Geneva Convention of 12 August 1949 relative to the Protection of
Civilian Persons in Time of War; and the Protocol Additional of 8
June 1977 to the Geneva Conventions of 12 August 1949, and relating
to the Protection of Victims of International Armed Conflicts, significant
violations of the conventions' provisions on armed conflict are considered
to be war crimes, and torture is one of these violations. On the other
hand, article 6, paragraph 1, of the Constitution of the Republic
of Korea states that international covenants which are ratified and
promulgated by the Republic of Korea have the same effects as domestic
law. Therefore, even when extraordinary martial law is proclaimed
to maintain public safety and order by the mobilization of the military
force in time of war, armed conflict or similar national emergency;
hostilities against enemies; and even when there is extreme disorder
with significant difficulties existing in administrative and judicial
functions, bodily injuries such as those inflicted by torture are
absolutely prohibited under any, albeit exceptional, circumstances,
and any violation shall be punished in wartime as well as in time
of peace.
Paragraph
3
96. The relevant
statutes and case-laws of the Republic of Korea satisfy the conditions
of article 2, paragraph 3, of the Convention, which provides that
an order from a superior officer or a public authority may not be
invoked as a justification of torture.
97. Every
public official, in the performance of his duties, shall obey any
order of his superior officer as an obligatory duty (art. 57 of the
National Civil Service Act; art. 46 of the Local Civil Service Act).
Public prosecutors, prosecution public officials and police officials
are, in the performance of their duties, under instruction and supervision
of their superiors, in accordance with the provisions of the Public
Prosecutor's Office Act (arts. 7 and 46) and the National Police Agency
Act (art. 24). However, as orders with respect to duties must be given
according to due process and as they must not conflict with any laws,
the execution of illegal orders given by superiors, e.g. orders of
torture, cannot be regarded as one's obligatory duty. Therefore, if
a public official commits an act of torture according to the orders
of his superior, he is not exempted from penal responsibility.
98. The Supreme
Court of the Republic of Korea also states: "As for a public
official who performs his duties, his superior officer has no authority
to order him to commit illegal acts such as crimes. Although it is
true that a public official is under obligation to obey any legal
order of his superior officer, if the order is clearly illegal or
unlawful, such as an order to commit an act of cruelty to a person
who has been summoned as a witness, it is no longer regarded as an
obligatory duty to follow the order and therefore, he is not required
to obey it" (Supreme Court judgement 87 DO 2358, rendered on
23 February 1988).
99. Military
organizations, unlike civil society, require perfect unity to function
in an orderly fashion. None the less, orders from superior agencies
or officers are expected to be obeyed only if they are legally legitimate.
In cases in which illegal orders are given by superiors, such as instructions
to commit acts of torture, the subordinates are under no obligation
to follow them. They are not subject to penal punishment for mutiny.
Rather, if persons execute such illegal orders, they are punished
according to the relevant provisions of the Military Penal Law and
the Criminal Code.
Article 3
100. The
Constitution and relevant laws of the Republic of Korea correspond
with article 3 of the Convention, ensuring that a person will not
be extradited to another State where he might be treated in a manner
contrary to the Convention, thus preventing human rights violations.
101. As mentioned
earlier, all citizens shall be assured of human worth and dignity,
the right to pursue happiness, and protection from torture. It shall
be the duty of the State to confirm and guarantee the fundamental
and inviolable human rights of individuals (art. 10 of the Constitution).
As for the fundamental human rights guaranteed by the Constitution,
foreigners shall be treated equally as nationals (art. 11, para. 1).
Considering the ideals and the spirit of the Constitution, the Government
of the Republic of Korea shall not expel, return or extradite a person
to another State where there are substantial grounds to suspect that
he would be in danger of being subjected to torture.
102. Under
any relevant domestic laws related directly or indirectly to the Convention,
the Government of the Republic of Korea shall not extradite a person
to another State where he is in danger of being subjected to torture.
(a) The
Extradition Act (5 August 1988, Law No. 4015) provides that a criminal
may be extradited only if the punishment for an extraditable crime
committed corresponds to capital punishment, imprisonment with or
without hard labour for life or for more than one year under the laws
of the Republic of Korea and the requesting State (art. 6 of the Extradition
Act). However, the criminal shall not be extradited in a case where
there is no valid reason to suspect that he committed an extraditable
crime (unless he was convicted in the requesting State), or in a case
where it is deemed that the criminal might be punished or suffer unfavourable
consequences due to reasons of race, religion, nationality or specified
social organizations (art. 7, subparas. 3 and 4, of the above Act);
(b) Moreover,
the above Act provides that no criminal shall be extradited if the
extraditable crime committed is of a political nature; or if it is
deemed that an extradition request is made for the purpose of bringing
to trial a separate crime of a political nature committed by the same
criminal; or if the extradition is requested to execute a sentence
of punishment for such crimes (art. 8 of the Act). The Act states
that no criminal shall be extradited in a case where it is deemed
inhuman to extradite him in light of the nature of the extraditable
crime and the environment of the criminal (art. 9, subpara. 5, of
the Act), prohibiting extradition of cases in which acts of torture
are foreseen;
(c) The
Immigration Control Act provides that any foreigner who receives a
deportation order for unlawful entry, etc. shall, in principle, be
repatriated to the country of his nationality or citizenship. If such
measures are impossible he may be repatriated to another country of
his choosing (art. 64, para. 2, of the Immigration Control Act). On
the other hand, it is provided that no refugee shall be repatriated
to a country which, under article 33, paragraph 1 of the Refugee Agreement,
prohibits deportation or repatriation (art. 64, para. 3, of the above
Act). Therefore the Government of the Republic of Korea shall repatriate
foreigners who receive deportation orders to countries to which they
desire to be repatriated, according to the Immigration Control Act.
For humanitarian reasons, foreigners shall not be repatriated in cases
where there are substantial grounds to believe that persons are in
danger of being subjected to torture in the country of his nationality;
(d) The
International Judicial Cooperation on Criminal Cases Act (8 March
1991, Law No. 4343) provides that mutual cooperation is not required
in cases where it is deemed that a criminal might be punished or subject
to unfavourable penal consequences due to his race, nationality, sex,
religion, or social status, or the fact that he is a member of a specified
social organization, or by reason of his maintaining different political
views, or where it is deemed that the crime under consideration for
mutual cooperation is one of a political nature, or if the request
for mutual cooperation is made for the purpose of an investigation
or trial of another crime of a political nature committed by the same
criminal (art. 6, subparas. 2 and 3, of the above Act). Therefore,
this Act indirectly prevents the criminal from being deported, repatriated
or transferred in a case where there are substantial grounds for believing
that he is in danger of being subjected to torture in the requesting
State.
103. Furthermore,
because the Convention is an international treaty duly concluded and
promulgated under the Constitution it has the same effect as domestic
laws. Therefore, article 6 of the Constitution prohibits the expulsion,
return or extradition of a criminal to another State when there are
substantial grounds for believing that he would be in danger of being
subjected to torture. This constitutional provision is applied in
the Republic of Korea in the same capacity as domestic laws.
104. In addition,
the Republic of Korea observes article 3, paragraph 2, of the Convention
which provides that, for the purposes of determining whether there
are substantial grounds for believing that a person would be in danger
of being subjected to torture if that person was to be expelled, returned,
or extradited to a relevant State, the competent authorities shall
take into account all relevant considerations including, where applicable,
the existence of a consistent pattern of gross, flagrant or mass violation
of human rights in the State concerned.
Article 4
105. The
Criminal Code of the Republic of Korea does not have a specific provision
which deals directly with torture. However, the current Criminal Code
and relevant special acts contain provisions which are sufficient
to punish those who commit torture as defined in article 1 of the
Convention, fulfilling the requirements of article 4, paragraphs 1
and 2, of the Convention, and even designating acts of cruelty as
punishable.
106. Current
laws contain special provisions related to persons who engage in judicial
prosecutorial, police or other functions involving physical restraint.
(a) Article
125 of the Criminal Code provides that "a person who, in performing
or assisting in activities concerning judgement, prosecution, police
or other functions involving physical restraint, commits an act of
violence or cruelty against a criminal suspect or against another
person while performing his duties, shall be punished by penal servitude
not exceeding 5 years, and suspension of qualifications not exceeding
10 years". It is understood that an act of violence signifies
the exercise of force against the human body, not necessarily exerted
directly against a person, and that an act of cruelty includes all
other acts, excluding acts of violence, which cause a person to suffer
mentally and physically. Meanwhile, torture as defined in article
1 of the Convention implies severe pain or suffering, both physical
and/or mental, imposed by public officials, etc. to extract confessions
or information relevant to a crime. Article 16 of the Convention stipulates
provisions for cruel, inhuman or degrading treatment other than torture.
Thus, it may be interpreted that the concept of torture under the
Convention is defined as more severe than concepts of an act of violence
or cruelty under the Criminal Code of the Republic of Korea. Therefore,
it may be said that, in a case in which a person who engages in activities
concerning judgement, prosecution, police or other functions involving
physical restraint, commits torture, he shall be punished under article
125 of the Criminal Code;
(b) The
Criminal Code provides that if a person who performs or assists in
activities concerning judgement, prosecution, police or other functions
involving physical restraint, commits an act of violence against another
by abusing his official authority, he shall receive aggravated punishment
of penal servitude not exceeding 7 years and suspension of qualifications
not exceeding 10 years (art. 124, para. 1, of the Criminal Code).
In other words, if a person who engages in investigative activities
arrests or imprisons another by abusing his official authority, he
is subject to aggravated punishment for the higher degree of severity
of the crimes he has committed;
(c) Furthermore,
a person who commits such crimes as described in the preceding paragraphs
and causes injury, shall be punished by penal servitude for a minimum
of one year. If his crime causes the death of another, he shall be
punished by penal servitude of three years to life (art. 4-2 of the
Act Concerning Aggravated Punishment Against Specified Crimes);
(d) On the
other hand, if persons who perform activities involving physical restraint
commit crimes for which the punishment is more severe than that provided
for in article 125 of the Criminal Code, such as rape or an indecent
act by compulsion, as will be mentioned later, the act is regarded
as a compound crime, and the punishment provided for the most severe
crimes shall be imposed (art. 40 of the Criminal Code).
107. If a
person, other than a public official as mentioned above, commits acts
of torture as defined in article 1 of the Convention, he shall be
punished for the following crimes, under the relevant provisions elaborating
upon the pattern of the crimes, such as an act of violence, intimidation,
bodily injury, false arrest and illegal confinement. Specifically,
if a public official commits a crime by taking advantage of his official
authority, he shall be punished with an increase by one half of the
penalty specified for the crimes committed (art. 135 of the Criminal
Code):
(a) Act
of violence (art. 260, para. 1, of the Criminal Code), penal servitude
not exceeding two years;
(b) A person
who commits an act of violence, thereby causing death or injury, shall
receive the same punishment as for crimes of bodily injury, aggravated
bodily injury, or death resulting from bodily injury, according to
the results (art. 262 of the Criminal Code);
(c) Intimidation
(art. 283, para. 1, of the Criminal Code), penal servitude not exceeding
three years;
(d) Obstructing
a person, through force, from exercising his rights (art. 324 of the
Criminal Code), penal servitude not exceeding five years;
(e) Bodily
injury (art. 257, para. 1, of the Criminal Code), penal servitude
not exceeding seven years;
(f) Aggravated
bodily injury (endangering a person's life or causing him to be crippled
or incurably diseased) (art. 258 of the Criminal Code), penal servitude
for a minimum of 1 year, but not exceeding 10 years;
(g) Death
resulting from injury (art. 259 of the Criminal Code), penal servitude
for a minimum of three years;
(h) Cruelty
to another under his protection or supervision (art. 273, para. 1,
of the Criminal Code), penal servitude not exceeding two years;
(i) Death
or injury resulting from cruelty (art. 275 of the Criminal Code),
more severe punishment by comparing penalties of abandonment, abandoning
infants, and cruelty to a person under his protection or supervision,
resulting in injury;
(j) False
arrest or illegal confinement (art. 276, para. 1, of the Criminal
Code), penal servitude not exceeding five years;
(k) Aggravated
false arrest or aggravated illegal confinement (art. 277 of the Criminal
Code), penal servitude not exceeding seven years;
(l) Special
false arrest or illegal confinement (art. 278 of the Criminal Code),
punishment by increasing the penalty specified for the relevant crime
by one half;
(m) Sexual
intercourse with a female under his protection or supervision through
the abuse of authority (art. 303 of the Criminal Code), penal servitude
not exceeding five years;
(n) Rape
(art. 297 of the Criminal Code), penal servitude for a minimum of
three years;
(o) Indecent
act by compulsion (art. 298 of the Criminal Code), penal servitude
not exceeding 10 years;
(p) Death
or injury resulting from rape or an indecent act by compulsion (art.
301 of the Criminal Code), penal servitude for five years to life;
(q) Defamation
(art. 307 of the Criminal Code), penal servitude not exceeding two
years;
(r) Insult
(art. 311 of the Criminal Code), penal servitude not exceeding one
year;
(s) Bodily
injury, an act of violence, false arrest, illegal confinement, or
intimidation committed at night and/or by two or more persons (art.
2, para. 2, of the Act Concerning the Punishment Against Acts of Violence
and Other Crimes), punishment by increasing the penalty specified
for the relevant crime by one half;
(t) Bodily
injury, an act of violence, false arrest, illegal confinement, or
intimidation committed by using deadly weapons (art. 3 of the above
Act), penal servitude for a minimum of three years.
108. Furthermore,
the Criminal Code of the Republic of Korea provides that, in a case
in which a public official abuses his authority and obstructs a person
from exercising a right to which he is entitled, the official shall
be punished by penal servitude not exceeding 5 years and suspension
of qualifications not exceeding 10 years for the act itself, although
the crime committed was not an act of torture, violence or cruelty
(art. 123 of the Criminal Code).
109. The
Military Criminal Code provides that if a soldier treats a person
cruelly or commits an act of cruelty through the abuse of his official
authority, he shall be punished by penal servitude not exceeding five
years (art. 62 of the Military Criminal Code). Furthermore, the National
Security Planning Agency Act stipulates that a staff member of the
National Security Planning Agency who, by abusing his official authority,
illegally arrests or confines a person, or causes a person to perform
a duty for which he is not responsible, shall be punished by penal
servitude not exceeding seven years and suspension of qualifications
not exceeding seven years (art. 19 of the National Security Planning
Agency Act).
110. The
Criminal Code of the Republic of Korea provides that when an intended
crime is not completely carried out or if the intended results fail
to occur, it shall be punishable as an attempted crime only if the
punishment for the attempted crime is specifically provided for in
each article concerned. The punishment for an attempted crime may
be mitigated from the degree of punishment for a crime completely
carried out (arts. 25 and 29 of the Criminal Code). Regarding this
statutory mitigation for criminal attempts, penal servitude for life
may be reduced to limited penal servitude for a minimum of seven years.
Limited penal servitude and a fine may be reduced by one half of the
term of the punishment (art. 55, para. 1, of the Criminal Code).
(a) Under
the current laws, the punishment for attempted criminal acts is provided
for only in articles for unlawful arrest and unlawful confinement
by public officials (art. 124, para. 2, of the Criminal Code); bodily
injury (art. 257, para. 3, of the Criminal Code); false arrest and
illegal confinement (art. 280 of the Criminal Code); intimidation
(art. 286 of the Criminal Code); rape and indecent act by compulsion
(art. 300 of the Criminal Code); acts of violence (art. 6 of the Act
Concerning the Punishment Against Acts of Violence and Other Crimes);
and abuse of official authority by staff members of the National Security
Planning Agency (art. 19, para. 3, of the National Security Planning
Agency Act). Therefore, in a case in which one of the crimes enumerated
above also involved attempted torture, the criminal shall be punished
by the penalties in the above provisions or by mitigated penalties;
(b) However,
given that the current articles of the Criminal Code do not provide
for punishment against attempted criminal and violent or cruel acts
by investigative public officials (art. 125 of the Criminal Code),
there has been some discussion as to whether or not measures need
to be taken to amend the various articles if the Republic of Korea
accedes to the Convention. For an act to be declared torture as defined
in the Convention, it must have caused severe pain or suffering, both
mental and/or physical. In this regard, attempted torture under the
Convention is understood as the initiation of an act of torture which
does not cause severe pain or suffering. Also, as mentioned above
in paragraph 106, article 125 of the Criminal Code of the Republic
of Korea punishes an act of violence or cruelty. Therefore, even if
acts of investigative public officials constitute only attempted torture
as defined in the Convention, their acts are still punishable under
article 125 of the Criminal Code of the Republic of Korea;
(c) In summary,
when a public official of the Republic of Korea commits an act constituting
attempted torture as defined in the Convention, he shall be sentenced
to punishment for committing, during the performance of his duties,
cruel and/or violent acts which correspond to attempted bodily injury,
attempted false arrest or illegal confinement, intimidation or attempts
to intimidate, attempted rape or indecent act by compulsion, or an
act of violence.
111. The
Criminal Code of the Republic of Korea contains provisions for punishing
co-principals or participants in a crime, according to the concreteness
of their acts. Therefore, accomplices are punished as principal offenders
of the said crime or given mitigated sentences.
(a) When
two or more persons have jointly committed a crime, each shall be
punished as a principal offender for the crime committed (art. 30
of the Criminal Code);
(b) Accessories
to a crime committed by another person shall be punished for aiding
and abetting, but their sentences shall be mitigated to less than
that of the principals (art. 32 of the Criminal Code);
(c) If a
person collaborates in the commission of a crime of which a person's
status or position is an element, although he lacks such status, he
shall be punished as a co-principal, an instigator, or an accessory,
according to the concreteness of his act. However, if the severity
of punishment varies with the accused person's status, the more severe
punishment shall not be imposed on the person who lacks such status
(art. 33 of the Criminal Code);
(d) A person
who commits a crime by instigating or aiding and abetting another
person who is under his control and supervision shall be punished
with an increase by one half of the maximum terms of punishment provided
for the principal in a case of instigating a crime, and the full penalties
shall be imposed on the principal in a case of aiding and abetting
(art. 34 of the Criminal Code).
112. On the
other hand, if an exercise of force by a person causes a degree of
mental and physical suffering to another person, and if such an act
is conducted in accordance with the law, or in pursuit of accepted
business practices, or other actions which do not violate social mores,
the act is not punishable (art. 20 of the Criminal Code).
(a) Disciplinary
actions taken within reason by a principal toward students and those
by the head of a juvenile reformatory, etc. are acts in accordance
with the law and are not punishable. The latter part of article 1,
paragraph 1, of the Convention provides that torture does not include
pain or suffering arising only from, inherent in, or incidental to
lawful sanctions. Therefore, the Criminal Code of the Republic of
Korea does not contradict the Convention in this regard;
(b) However,
such exercise of disciplinary force shall be made within necessary
and acceptable limits. And if social mores are violated, the act of
exerting force shall be punished. For example, if an officer hits
a subordinate (e.g. private) on the shoulder three times with a rod
in order to penalize the subordinate for misconduct and the use of
profanity toward his battalion commander, the officer is beyond the
limits of disciplinary punishment (Supreme Court judgement 71 DO 179,
rendered on 6 April 1971). Furthermore, if a teacher, under the impression
that a student used profane language directed at him, assaults the
student without confirmed reason and causes injury, the act is considered
an act of violence (Supreme Court judgement 80 DO 762, rendered on
9 September 1980).
113. Statistics
gathered since 1990 on those who have been punished for violent or
cruel acts committed by abusing their authority while engaged in investigations
reveal that there were three such cases in 1990, two in 1991, one
in 1992, three in 1993, and four in 1994. These are considered to
be very low numbers (statistics for crimes other than violent or cruel
acts committed through the abuse of authority were not available because
they were not classified into separate groups). Factors influencing
these statistics may be that the principle of presumption of innocence
applies to these crimes (cruel or violent acts committed through the
abuse of authority) as they do to other crimes, and that such acts
are often committed in covert or undetectable locations, making them
difficult to prove. Most importantly, however, these statistics reveal
changes in the perception of human rights held by those in the Republic
of Korea who engage in investigative processes.
114. Furthermore,
in a case in which a public official is involved in committing torture,
the punishments stipulated above are accompanied by the following
additional consequences:
(a) When
a public official is involved in committing torture, an act which
violates the relevant laws, the person entitled to appoint the official
shall impose disciplinary actions distinct from the above punishments
(art. 78, para. 1, of the National Civil Service Act; art. 69 of the
Local Civil Service Act). Specifically, when an act of cruelty is
committed in military camps, the supervisor of the offender shall
also be subjected to disciplinary action, taking into account the
strict hierarchical nature of the military;
(b) If a
public official has been disqualified, or his qualifications suspended
pursuant to a judgement of the court, or if he has been sentenced
to penal servitude or a punishment heavier than imprisonment without
hard labour, including sentences with a stay period or deferred sentences,
he shall be deprived of his status as a public official (art. 33 of
the National Civil Service Act; art. 31 of the Local Civil Service
Act);
(c) If the
State or local government has compensated individuals who suffered
damage or injury inflicted by the unlawful action of a public official,
such as torture, the State or local government may demand reimbursement
or compensation from the public official. In other words, the public
official shall be liable for reimbursement to the State or local government
(art. 2 of the National Compensation Act);
(d) In case
the State is not held liable for damages or injuries caused by unlawful
acts such as torture committed by a public official, the official
must bear direct civil liability toward the victim(s).
115. If a
public prosecutor decides not to indict a person suspected of committing
torture, processes of appeal and reappeal, constitutional petition
and request for ruling are available to the victims of torture. These
measures are understood as guarantees of punishment against torture.
Article 5
116. The
Criminal Code of the Republic of Korea is in accordance with article
5, paragraph 1, of the Convention which delineates the necessary measures
for establishing jurisdiction on torture prevention.
117. The
Criminal Code of the Republic of Korea adopts the territorial principles
(arts. 2 and 4 of the Criminal Code), complemented by the nationality
principle (art. 3 of the Criminal Code) and the protective principle
(arts. 5 and 6 of the Criminal Code).
(a) Articles
2 and 4 of the Criminal Code are consistent with article 5, paragraph
1 (a), of the Convention. The Criminal Code shall apply both to Korean
nationals and to foreigners who commit crimes within the territory
of the Republic of Korea (art. 2), which encompasses land, sea and
air. Some are of the opinion that the words "who commit crimes"
only specifies criminal conduct; however, the words are understood
to include both the criminal action and the results of the crime.
The word "crimes" is suggested to include only the commission
of crime but is acknowledged to include the commission and/or the
results of the crime. The Criminal Code of the Republic of Korea also
applies to foreigners who commit crimes on board a Korean vessel or
Korean aircraft outside the territory of the Republic of Korea (art.
4 of the Criminal Code). This stipulation is the result of the application
of the flag-State principle. The words "outside the territory
of the Republic of Korea" include the high seas, territorial
seas and air of foreign countries;
(b) Article
3 of the Criminal Code of the Republic of Korea corresponds to article
5, paragraph 1 (b), of the Convention. The Criminal Code of the Republic
of Korea also applies to all Korean nationals who commit crimes outside
the territory of the Republic of Korea (art. 3 of the Criminal Code).
It is the result of the application of the territorial principle complemented
by the nationality principle. The words "Korean nationals"
mean those who have the nationality of the Republic of Korea. The
relevancy of the Criminal Code depends on whether or not they are
nationals of the Republic of Korea at the time the crimes are committed;
(c) Articles
5 and 6 of the Criminal Code are consistent with article 5, paragraph
1 (c), of the Convention. The Criminal Code applies to foreigners
who commit crimes of insurrection or foreign aggression outside the
territory of the Republic of Korea, and who commit crimes against
the Republic of Korea or her nationals outside the territory of the
Republic of Korea (arts. 5 and 6 of the Criminal Code).
118. The
Criminal Code does not recognize any jurisdiction over crimes, including
torture, other than those jurisdictions mentioned above. Therefore,
the Republic of Korea does not have any jurisdiction over crimes such
as torture committed abroad by foreigners against non-Korean nationals.
It is understood that the Republic of Korea shall extradite criminals
who commit torture, according to article 8 of the Convention.
119. Therefore,
it is construed that article 5, paragraph 3, of the Convention, which
provides for the functioning of the Convention in the legal system
of the Republic of Korea, does not have any special significance concerning
the domestic laws of the Republic of Korea.
Article 6
Paragraph
1
120. The
Penal Procedure Code and the Extradition Act of the Republic of Korea
satisfy the requirements of article 6, paragraph 1, of the Convention
which stipulates that a person alleged to have committed torture shall
be taken into custody by the authorities of the country in which he
is found, or have other legal measures taken to ensure his detainment.
121. As mentioned
in relation to article 5 of the Convention, the Criminal Code of the
Republic of Korea shall apply both to Korean nationals and foreigners
who commit crimes within the territory of the Republic of Korea. Furthermore,
even in cases in which Korean nationals commit crimes outside the
territory of the Republic of Korea or in which foreigners commit crimes
against Korean nationals outside the territory of the Republic of
Korea, provided that they are within the territory of the Republic
of Korea, the Criminal Code of the Republic of Korea is also applicable
to them, and it is possible to exercise jurisdiction. However, if
a foreigner who has committed crimes outside the territory of the
Republic of Korea is found within the territory of the Republic of
Korea, it is impossible to apply the Criminal Code of the Republic
of Korea to him. In that case, he must be extradited according to
the proper laws on the basis of the demand for his extradition by
the State concerned. Moreover, although the Republic of Korea has
jurisdiction over criminals, if the Government chooses not to exercise
its jurisdictional authority, in principle, the criminals must be
extradited to other States which have jurisdiction, in accordance
with relevant laws (refer to art. 7, para. 1, of the Convention).
122. In a
case in which a person commits an act of torture, or participates
in an act of committing torture, the subsequent punishment provided
for by law is heavy. Therefore, in a case in which there is sufficient
reason to suspect that a person has committed crimes, he shall be
arrested if he refuses to comply with the request of the investigative
agencies to appear before them or if there is reasonable grounds to
suspect that he may resist compliance. He shall be detained if there
are reasonable grounds to suspect that he may attempt to escape or
destroy evidence (arts. 200-1 and 201 of the Penal Procedure Code).
(a) A warrant
for arrest or detention shall be issued by the competent district
court judge upon the request of the public prosecutor. Judicial police
officers must request a warrant from the public prosecutor who, in
turn, requests the warrant from the competent district court judge.
The judge may then issue the warrant (art. 200-2, para. 1, and art.
201, para. 1, of the above Code);
(b) A warrant
for arrest or detention shall be executed by a judicial police officer
under the direction and authority of a public prosecutor. However,
a warrant for arrest or detention issued against a suspect who is
in a prison or detention house shall be executed by a corrections
officer under the direction and authority of a public prosecutor (arts.
200-5 and 209, and art. 81, paras. 1 and 3, of the above Code);
(c) In executing
a warrant for arrest or detention, the warrant must be shown to the
suspect, who shall promptly be taken to the designated place of custody
(arts. 200-5 and 209, and art. 85, para. 1, of the above Code);
(d) However,
in special circumstances, as mentioned in paragraphs 80 and 81, exemptions
from obtaining the mandatory warrant are admitted, such as a case
of urgent arrest.
123. In a
case in which a person has committed torture or participated in an
act of torture and is to be extradited to a foreign country, he may
be arrested, if it is necessary (art. 19 of the Extradition Act).
(a) The
Minister of Justice shall, upon receiving documents related to an
extradition request from the Minister of Foreign Affairs, send the
documents to the director of the Seoul High Prosecutor's Office and
order the director to have a public prosecutor under his jurisdiction
request the Seoul High Court for a review of the permissibility of
the extradition or of the impossibility of extraditing the criminal
under the extradition treaty or the Extradition Act, or whether it
is deemed reasonable not to extradite the criminal (art. 12, para.
1, of the Act);
(b) When
the Minister of Justice issues an order to request an extradition
review under article 12, paragraph 1, of the Extradition Act, the
public prosecutor shall arrest the criminal on an extradition arrest
warrant, except in a case in which the criminal has a fixed residence,
and there is no suspicion that the criminal might attempt to escape
(art. 19 of the Act);
(c) The
extradition arrest shall be carried out by a judicial police officer
under the direction and authority of the public prosecutor, and the
extradition arrest warrant shall be presented without fail to the
criminal. The judicial police officer shall inform the criminal of
the reason for his arrest and his entitled right to appoint a lawyer,
and transfer the custody of the criminal to the public prosecutor
without delay (art. 20, paras. 1-3 of the Act);
(d) As for
an arrest based on an extradition arrest warrant, the provisions of
the Penal Procedure Code regarding procedural matters such as the
right to interview are applicable (art. 20, para. 4, of the Act).
124. In the
Republic of Korea, necessary legal measures may be taken to ensure
the presence or detention of a person suspected of committing acts
of torture, such as arrangements for a search or ban against departure.
125. The
Penal Procedure Code and the Extradition Act provide that a warrant
of arrest, detention, or extradition shall include a term of validity
and a footnote indicating that if the term of validity elapses, the
warrant shall not be executed and shall be returned, restricting days
of detention to the necessary minimum (arts. 200, 209 and 75 of the
Penal Procedure Code and art. 19, para. 3, of the Extradition Act).
Also, in order to prevent unreasonable arrest, detention or extradition
arrest, examinations of the legality of confinement or extradition
arrest are provided for (art. 214-2 of the Penal Procedure Code; art.
22 of the Extradition Act).
126. If judicial
police officers detain a suspect, the suspect shall be transferred
to the public prosecutor within 10 days. If a public prosecutor arrests
a suspect or receives a suspect from a judicial police officer, he
shall decide within 10 days whether or not to institute a public prosecution.
However, it is possible to extend the detention period once, for no
longer than 10 days (arts. 202, 203, 203-2 and 205 of the Penal Procedure
Code). To prevent a lengthy extradition arrest period, the Extradition
Act also provides that if a criminal is arrested under the extradition
warrant, the extradition review shall be requested within three days
of the arrest (art. 13, para. 2 of the Extradition Act). In this case,
the court shall make a decision on the review within two months from
the date of detention (art. 14, para. 2, of the above Act).
Paragraph
2
127. Provisions
of the Penal Procedure Code and the Extradition Act of the Republic
of Korea satisfy the conditions of article 6, paragraph 2, of the
Convention which provides that any involved State party or country
shall make a preliminary inquiry into the facts to secure public prosecution
or extradition of a suspect.
128. The
public prosecutor and judicial police officers shall, when they ascertain
that an offence has been committed, investigate the offender, the
facts of the offence and the evidence, and necessary examinations
may be made in order to carry out such investigations (arts. 195,
196 and 199 of the Penal Procedure Code). In addition, they may request
for persons other than the suspect to give factual statements and
to ask for expert evidence, interpretation or translation. Furthermore,
the public prosecutor and judicial police officers may seize, search
for or inspect evidence, in accordance with the warrant issued by
a judge of the competent district court (arts. 215 and 221 of the
Penal Procedure Code).
129. A court
which receives a request for an extradition review shall give the
criminal and his lawyer an opportunity to state their opinions. The
court may also examine witnesses and order an appraisal, interpretation
or translation (art. 14, paras. 5 and 6, of the Extradition Act).
The public prosecutor may conduct search and seizure in accordance
with the warrant issued by a judge of the Seoul High Court (art. 17,
para. 1, of the Act). In a case in which the arrested suspect is a
foreigner, the Minister of Home Affairs may, with the aid of international
criminal police organizations, conduct inquiries into any previous
conviction(s) of the suspect, seek facts and certification of information
needed to investigate the suspect, and request any relevant materials
(art. 38 of the International Judicial Cooperation Criminal Cases
Act).
Paragraph
3
130. In accordance
with the Constitution, the Vienna Convention on Consular Relations,
which the Republic of Korea acceded to, ratified and promulgated,
has the same effect as the domestic laws of the Republic of Korea.
131. Therefore,
consular officers shall be free to communicate with nationals of the
sending State and shall have access to them. In a case in which a
national of the sending State is arrested, imprisoned, in custody
pending trial, or is detained in any other manner, the competent authorities
of the receiving State shall immediately inform the consular post
of the sending State, if the detainee so requests. Any communication
addressed to the consular post by the detainee shall also be forwarded
by the said authorities without delay. In addition, consular officers
shall have the right to visit a national of the sending State who
is imprisoned, in custody or in detention for the purpose of communicating
and conversing with him, and arranging for his legal representation.
132. Guidelines
for the Ministry of Justice of the Republic of Korea (BOP KOMI No.
01129-299), entitled "Directives for the Investigation of Crimes
Committed by Foreigners", dated 30 April 1993, stipulate the
following:
(a) When
investigative agencies arrest or detain a foreigner, they shall immediately
inform him that he is entitled to freely interview and communicate
with consular or honorary consular officers of his home State stationed
in the Republic of Korea, and that at his request, the consular officers
or the honorary consular officers shall be immediately notified of
his arrest or detention;
(b) In addition,
if the person arrested or detained so requests, the investigative
agencies shall send a communiqué containing the detainee's personal
data and the particulars of his case, including his commission of
a crime, the date and location of his arrest or detention, his current
location, etc. to the head of honorary head of the consular post.
133. If the
person in custody is stateless, in accordance with article 6, paragraph
3, of the Convention, which has the same effect as the Republic of
Korea's domestic laws, the Republic of Korea shall assist him in communicating
immediately with the representative of the State in which he principally
resides.
134. Regarding
matters which require caution in the investigation of foreigners,
the Supreme Public Prosecutor's Office distributed a Manual for the
Investigation of Foreigners (published on 31 August 1995) to each
public prosecutor's office, thus promoting human rights during investigation
or detention.
Paragraph
4
135. In accordance
with article 36 of the Vienna Convention on Consular Relations and
article 29 of the Extradition Act, when the Minister of Foreign Affairs
receives from the Minister of Justice a take-over warrant, or is notified
of the fact that the criminal is detained where he has been extradited
and of the time period within which he is to be extradited, he shall
notify the requesting State of the relevant details.
136. Furthermore,
the Republic of Korea, pursuant to article 6, paragraph 4, of the
Convention, shall immediately notify the States referred to in article
5, paragraph 1, of the Convention of the fact that a person is in
custody and of the circumstances which warrant his detention; of the
findings of the preliminary inquiry in compliance with article 6,
paragraph 2, of the Convention; and of whether or not it intends to
exercise jurisdiction.
Article 7
Paragraph
1
137. In the
Republic of Korea, all cases filed and investigated are ultimately
dealt with by a decision of a public prosecutor who presides over
the investigation. Therefore, in a case in which a suspect in crimes
such as torture is not to be extradited to the State which has jurisdiction,
pursuant to article 5 of the Convention, the case shall be transferred
to a public prosecutor (art. 246 of the Penal Procedure Code).
Paragraph
2
138. The
Penal Procedure Code of the Republic of Korea adopts the principle
of discretionary indictment on the grounds that (a) it helps to realize
concrete justice through the flexible implementation of criminal justice;
(b) it offers criminals the opportunity for early rehabilitation,
since instituting public prosecution may be reconsidered from the
criminological point of view; (c) it accomplishes the objectives of
general and special prevention; and (d) limiting the number of unnecessary
public trials is economically advantageous.
139. The
Penal Procedure Code provides that a public prosecutor may decide
whether or not to institute a public prosecution, considering the
age, character and conduct, intellect, environment of the offender,
the offender's relation to the injured party, the motive for the commission
of the crime, the means and the result, and the circumstances following
the commission of the crime (art. 247, para. 1 of the Penal Procedure
Code). However, the gravity of the crime must be taken into account
above all else.
140. In the
case of a court exercising criminal jurisdiction, it shall not distinguish
between nationals of the Republic of Korea and foreigners, judging
the offender in accordance with the same legal process.
141. In all
criminal cases including torture, confirmation of facts must correlate
with the evidence (art. 307 of the above Code); the probative value
of evidence shall be left to the discretion of judges (art. 308 of
the Code); and judges shall decide according to the rules of evidence
as prescribed by law (arts. 309 to 318-3 of the Code).
Paragraph
3
142. The
Constitution of the Republic of Korea guarantees fair treatment to
all who undergo legal procedures involving crimes of torture. In other
words, the provisions in article 11, paragraph 1, of the Constitution,
which stipulate that "All citizens shall be equal before the
law, and there shall be no discrimination against one's political,
economic, social or cultural lifestyles and beliefs on account of
sex, religion or social status", guarantee that even those who
commit acts of torture are not discriminated against during investigation
or in the trial procedure. Therefore, even if a person is suspected
of committing acts of torture, he will not receive ill-treatment,
such as torture, while he is being investigated or tried.
143. As article
12, paragraph 1, of the Constitution of the Republic of Korea and
article 27, paragraph 1, provide, respectively, that no citizens shall
be arrested, detained, searched, seized, interrogated, punished, placed
under preventive restrictions or subject to involuntary labour except
as provided by law, and that all citizens shall have the right to
be tried in conformity with the law by judges qualified under the
Constitution and the law, even a person suspected of committing an
act of torture is guaranteed fair treatment under the law in all penal
procedures.
144. The
illegal arrest or detention of a person suspected of crimes of torture,
violating the principle of the presumption of innocence as provided
in article 27, paragraph 4, of the Constitution and article 275-2
of the Penal Procedure Code and the warrant system as prescribed by
articles 200-2 and 201 of the Penal Procedure Code, shall become grounds
for rescission of arrest and detention (arts. 200-5, 209 and 93 of
the Penal Procedure Code); compel an examination of the legality of
arrest or confinement (art. 214-2 of the Code); and provide sufficient
reason for quasi-appeal (art. 417 of the Code). In addition, a person
suspected of committing torture shall also be granted the right to
make a statement (art. 286 of the Code), the right to refuse to answer
questions (art. 200, para. 2, and art. 289 of the Code), the right
to apply for evidence (art. 294 of the Code), and the right to request
for preservation of evidence (art. 184 of the Code).
145. The
Penal Procedure Code provides that when a suspect of torture is arrested
or detained, his defence counsel, or the person designated by the
suspect if he does not have defence counsel, shall be informed of
the basic facts and nature of the offence, the time and place of detention,
the cause for detention, and the right to appoint defence counsel.
The suspect may, in so far as laws permit, talk with any other persons,
or deliver to or receive from them documents and other relevant materials
and also receive medical treatment from a physician (arts. 200-5,
209, 87 and 89 of the Penal Procedure Code).
146. In addition,
article 3, paragraph 5, of the Act concerning the Performance of Police
Officials provides that a police official who has taken a person to
the police station shall notify the person's family or relatives of
his status, the location to which he has taken the person, and the
objectives and reasons for taking the person, or grant the person
the opportunity to have contact with his family without delay and
inform the person of his right to prompt assistance of counsel. Paragraph
7 of the same article provides that a person questioned on the street
shall not be physically restrained, unless prescribed by laws regarding
penal procedure, and shall not be coerced to answer questions against
his will. It is evident that these provisions apply to persons suspected
of acts of torture. Moreover, the Rules Concerning the Performance
of Judicial Police Officials provide that a judicial police official
shall inquire into the health of a suspect prior to detaining him,
and that he shall report the case to a public prosecutor if there
are grounds to believe that the detention may be a significant detriment
to the health of the suspect. In addition, it is provided that in
case counsel or a person to be appointed as counsel requests judicial
police officials to receive documents or other relevant materials
to be used for interviewing the detainee, or to arrange for medical
treatment for the detainee from a physician, the officials shall deal
with the request favourably, and they shall grant the appropriate
treatment. Such appropriate treatment includes allowances or hygiene
and medical care to the detained suspect (arts. 24, 27-29 of the Rules
Concerning the Performance of Judicial Police Officials). These provisions
also apply to suspects of crimes of torture.
Article 8
Paragraph
1
147. The
relevant laws of the Republic of Korea are consistent with article
8 of the Convention in prescribing that offences related to acts of
torture be included as extraditable in any extradition treaty existing
between States.
148. As mentioned
in relation to article 4 of the Convention, a person who, in performing
or assisting in activities concerning judgement, prosecution, police
or other functions involving physical restraint, commits an act of
violence or cruelty against a criminal suspect or against another
person while in the performance of his duties, shall be punished by
penal servitude not exceeding 5 years and suspension of qualifications
not exceeding 10 years. Moreover, a person who arrests or imprisons
another by abusing his official authority shall be under aggravated
punishment of penal servitude not exceeding 7 years and suspension
of qualifications not exceeding 10 years. Furthermore, a person who
commits such crimes, thereby causing injury, shall be punished by
penal servitude for a minimum of one year, and if his actions cause
the death of a person, he shall be punished by penal servitude for
three years to life. In sum, the laws of the Republic of Korea provide
for penal servitude for a definite term, a minimum of one year for
acts of torture and attempted acts of torture, as well as for all
types of cruel and inhuman or degrading treatment or punishment.
149. The
Extradition Act of the Republic of Korea provides that extradition
may be requested only in cases in which extraditable crimes correspond
to capital punishment, imprisonment with or without hard labour for
life, or more than one year under the laws of the Republic of Korea
and the requesting State (art. 6 of the Extradition Act). Thus, acts
of torture or attempted acts of torture are included in the scope
of extraditable crimes.
150. The
Republic of Korea has concluded extradition treaties with Australia,
Canada and Spain, signed such treaties with the Philippines, Chile,
Brazil and Argentina, and initialled extradition treaties with Paraguay,
Mexico and Thailand. The said treaties on extradition entered into
with the above States consider acts of torture or attempted acts of
torture as extraditable offences.
Paragraphs
2 and 4
151. Since
the Extradition Act of the Republic of Korea allows extradition to
any States under the reciprocity principle (art. 4 of the Extradition
Act), with the objective of responding to and aiding international
cooperation against crimes, inasmuch as article 8, paragraph 2, of
the Convention does not pertain to the Republic of Korea, article
8, paragraph 3, of the Convention is applicable to the Republic of
Korea.
152. In cases
in which an extradition treaty is not concluded between the Republic
of Korea and another State, if it is guaranteed that the said State
requesting extradition of a criminal will comply with a request by
the Republic of Korea for extradition with respect to the same type
of crime such as torture, the criminal shall be extradited for public
prosecution, trial, or execution of sentence.
153. The
Republic of Korea observes article 8, paragraph 4, of the Convention.
Article 9
154. Based
on the treaties of mutual judicial assistance, the domestic laws of
the Republic of Korea comply with article 9 of the Convention by providing
the best available support, such as offering evidence concerning penal
procedures for crimes of torture.
155. The
International Judicial Cooperation on Criminal Cases Act, which provides
the scope and procedures for mutual assistance concerning criminal
investigations or trials following a request to or from any foreign
State, allows mutual assistance on any identical or similar kind of
criminal case under the reciprocity principle, even though these cases
are not specified in the treaties concluded (art. 4 of the International
Judicial Cooperation on Criminal Cases Act).
156. The
International Judicial Cooperation on Criminal Cases Act guarantees
the best available support of the Republic of Korea on criminal matters
of torture by enumerating the following procedures:
(a) The
Minister of Foreign Affairs shall, upon receiving a request for mutual
cooperation pertaining to an investigation of a criminal case from
a requesting State, send the written request for mutual cooperation
to the Minister of Justice together with related materials and his
opinions (art. 14 of the above Act);
(b) If the
Minister of Justice deems, after receiving the written request for
mutual cooperation, that it is reasonable to comply with the request,
he shall (i) send related materials to the chief of the district public
prosecutor's office as sufficient for mutual cooperation and order
him to take any measures necessary for mutual cooperation; and (ii)
order the head of the correctional facility to take any measures necessary
for transferring the person, if the person named in the request is
serving a sentence in a correctional facility (art. 15 of the above
Act);
(c) The
chief public prosecutor, who has received the order as mentioned above,
shall instruct any public prosecutor under his control to collect
materials necessary for mutual cooperation or to take other necessary
measures (art. 16 of the above Act);
(d) In order
to collect materials necessary for mutual cooperation, the public
prosecutor may demand to personally consult any person connected with
the proceedings in order to ascertain his opinions; to entrust any
person with an appraisal, interpretation or translation; to demand
the owner, holder or keeper of documents or other relevant materials
to submit them; to inquire of any public office, public or private
organization about the facts thereof; or to demand such office or
organization to make a report on necessary and relevant matters. If
it is required for mutual cooperation, the public prosecutor may conduct
any search and seizure or verification through a warrant issued by
a judge at his request. Furthermore, if the evidence, etc. to be delivered
to the requesting State is presented to the court, the public prosecutor
shall obtain the decision of the court to the effect that it permits
the delivery of any evidence thereof. The public prosecutor may direct
judicial police officials to make the necessary investigation;
(e) In a
case in which the arrested suspect is a foreigner, the Minister of
Home Affairs may, with the aid of international criminal police organizations,
conduct inquiries into any previous conviction(s) of the suspect,
seek facts and the certification of any information necessary for
investigating the suspect, and request the relevant materials (art.
38 of the International Judicial Cooperation on Criminal Cases Act).
157. For
reference, the Republic of Korea has concluded mutual judicial assistance
treaties on criminal matters with Australia and Canada, and signed
such treaties with the United States of America and France.
Article 10
Paragraph
1
158. The
objectives of education in the Republic of Korea are stipulated in
article 1 of the Education Act, the fundamental legal statute on education
in the Republic of Korea. The Education Act provides that "Education
aims, under a humanitarian ideal, to enable all nationals to bring
their characters to perfection and to possess the capacity to lead
independent lives and the temperament of good citizens, and thereby
to devote themselves to the development of democracy and to contribute
to the realization of an ideal of human prosperity" (art. 1 of
the Education Act). In accordance with the Act, the Republic of Korea
has instituted an education system for all nationals. Pursuant to
this ideal, all nationals are educated at the level of elementary
education in human worth and value, and in the institutions that are
relevant to them. Through this education process, it is recognized
that every citizen of the Republic of Korea has the right to be protected
from acts of torture or other cruel and inhuman or degrading treatment
or punishment.
159. The
Government of the Republic of Korea has made every effort to inform
and educate all nationals on the contents of the Convention, while
it urged accession to the Convention. The Ministry of Justice published
and distributed a collection of materials regarding the Convention
before the accession of the Republic of Korea to the Convention. In
addition, the Convention was ratified with a collection of opinions
from relevant ministries, an affirmative decision in the State Council,
and with the consent of the National Assembly, the representative
organ of the nation. Following its ratification, the Convention was
immediately promulgated. The Government of the Republic of Korea deposited
an instrument of accession with the United Nations on 9 January 1995.
The national press reported the significance of the Convention to
the nation on 8 February 1995, the date the Convention became effective
for the Republic of Korea.
160. The
Government capitalized once more on an opportunity to encourage the
observance of law, explaining to the citizens the contents of the
International Covenants on Human Rights and of the Convention. Residents
in some small cities and farming and fishing towns were introduced
to and educated about the contents of the Convention through summer
legal service activities undertaken by college students. In November
1995, the Republic of Korea's accession to the Convention and its
relevant Convention were included in a volume titled Law and Living
(90,000 copies published), an introductory book on the subject of
law for citizens. Copies were distributed throughout the nation. Those
who had contributed to endorsing and promoting human rights were honoured
on 10 December 1995, in conjunction with Human Rights Day, which is
celebrated annually in the Republic of Korea. Also on that day, the
significance of the accession to the Convention was publicized in
the national press. Moreover, a "Human Rights Week" was
established in early December 1995, with many activities including
answering questions regarding human rights and declaring to the nation
that the Convention against Torture had become effective in the Republic
of Korea.
161. The
various investigative agencies of the Republic of Korea, such as the
Public Prosecutor's Office and the National Police Agency, educate
their officers and investigators on issues which concern arrest, detention
and treatment of a subject and the observance of due process for human
rights protection and the treatment of the suspect in accordance with
the principle of the presumption of innocence as prescribed in article
27, paragraph 4, of the Constitution. More specifically, one of the
objectives of educating investigators is the "enhancement of
the ethics of investigators to be staunch protectors of human rights".
This requires them to complete such courses as "investigative
agents and the reform of their mentality", "investigations
and human rights", and "ethics for investigators".
These measures are intended to eliminate any potential human rights
violations which might occur during the legal process, such as acts
of torture or violence. Education in ethics and principles is carried
out in order to enhance consciousness of human rights. Education of
laws and regulations such as the Penal Procedure Code and the Rules
for Investigating Crimes encourages investigators to strictly observe
due process as prescribed in law. In sum, education in human rights
is carried out in many aspects.
162. On the
other hand, the confrontational circumstances between the two Koreas
have given rise to some negative reports concerning the human rights
record of the National Security Planning Agency, which are contrary
to the established facts. The National Security Planning Agency is
often engaged in educating those who conduct and take part in investigations,
especially concerning matters such as prohibiting torture and observing
due process, in order to protect human rights without exception and
to eliminate any doubts regarding possible human rights violations.
(a) The
National Security Planning Agency has established an "Intelligence
Training Institute", an educational institution for investigative
practices, teaching the importance of human rights to intelligence
agents as well as to police officials and military agents who are
in charge of matters associated with human rights. It has also made
substantial progress in solving human rights problems;
(b) Courses
at the Institute are divided into elementary, intermediate and specialized
levels. Lectures on torture prevention are given in each course. Provisions
related to human rights, such as those concerning torture as found
in the Constitution, the Criminal Code and the Penal Procedure Code,
are also taught. Moreover, emphasis is placed on the fact that agents
of the National Security Planning Agency are subject to punishment
with aggravated penalties if they commit such crimes as false arrest,
illegal confinement, obstruction of another person from exercising
his rights, and abuse of official authority. Furthermore, in order
to prevent violations of human rights, all rules and directives which
stress that the human rights of a suspect must be respected are taught
at the Institute.
163. Every
soldier of the Republic of Korea, through regular and special instructions
in military laws, is continuously educated in both the meaning and
significance of his obligation to defend the country and the necessity
to respect the human rights of the people. Moreover, those who are
involved in military investigative agencies, including military prosecutors,
are continuously being educated in human rights, either through independent
efforts or under the supervision of higher or outside authorities.
Furthermore, in military exercises, military legal officers, who have
the same qualifications as lawyers, provide special education programmes
focusing on international laws, such as the Geneva Convention relative
to the Treatment of Prisoners of War. Every soldier is made aware
that acts of cruelty such as torture are significant violations of
the international laws of war.
164. As for
the public officials who supervise inmates in prisons or in juvenile
reformatories, and for other public officials as well, educational
programmes are provided at the time of their appointment, and periodically
thereafter. These programmes are devised in such a way as to ensure
that officials respect the human rights of inmates, including the
prohibition of torture. The goal of such programmes is the complete
abolition of human rights violations.
165. Public
officials who control immigration are educated to comply with all
the relevant provisions and rules in the Immigration Control Act,
in dealing with and regulating illegal alien residents or controlling
foreigners under protection. This helps to guarantee that no human
rights violations or unfair treatment will occur. Thus, guidelines
and principles which regulate immigration control are fair and ethical.
166. The
Republic of Korea supports the activities of human rights organizations,
including the Korean Bar Association and the Korean League for International
Endorsement of Human Rights, towards educating people on human rights.
The Republic of Korea protects and guarantees education in torture
prevention by those organizations.
Paragraph
2
167. Article
198 of the Penal Procedure Code provides that in investigations by
a public prosecutor, judicial police official or others concerned
with investigation secrecy shall be maintained in order not to violate
the personal rights of a suspect or other persons(s). They shall not
interfere with the rights of others in the course of an investigation.
168. Based
on the Constitution and the Penal Procedure Code, the Ministry of
Justice has issued Rules Concerning the Performance of Judicial Police
Officials (by order of the Ministry of Justice), and article 3 of
the Rules provides that a judicial police official shall bear in mind
that "he shall make efforts to be trusted by the people, as his
mission is to protect the freedom and rights of the people".
In addition, article 7 of the Rules states that "a judicial police
official shall take care to maintain secrecy in investigating a crime,
in order to avert the existence of any obstacles to the investigation.
He shall also take care not to defame the honour of a suspect, an
accused or other concerned parties", ensuring that a judicial
police official will not commit acts of torture or other cruel and
inhuman or degrading treatment or punishment against a suspect, etc.
in the process of investigation.
169. The
National Police Agency has issued various instructions, making every
effort to ensure human rights protection.
(a) Rules
for Investigating Crimes (Instructions of the National Police
Agency No. 57): In a case in which a police officer investigates a
person, he shall respect the human rights of the person and perform
his duty in a fair and faithful manner (art. 2, para. 2). In doing
so, he shall observe relevant laws and regulations, including the
Penal Procedure Code, ensuring that he will not unreasonably infringe
upon the rights and freedoms of the person he is investigating (art.
3). As for those who are investigated as criminal suspects and held
temporarily while arrest warrants are requested, their names shall
be recorded on a register of criminal suspects, and police officers
shall be conscientious and diligent in protecting their human rights.
This helps to prevent possible incidents of flight, self-imposed injury
or suicide (art. 138). During investigations, officers shall not incorporate
measures such as torture, acts of violence, intimidation, unduly prolonged
arrest, deceit or others which would cast doubt on the voluntary nature
of the confession obtained (art. 167);
(b) Rules
for Holding and Convoying Suspects (Instructions of the National
Police Agency No. 62): Regarding suspects who are detained (or detainees),
police officers shall try their best to guarantee the human rights
of detainees by treating them fairly (art. 2). The chief of a police
station and the person in charge of the detention place shall ensure
that warders refrain from using profane language and from acting cruelly
towards the detainees. They shall also be vigilant in protecting the
human rights of the detainees. Furthermore, tools such as truncheons
and clubs are prohibited in detention centres (art. 40);
(c) Rules
for Convoy Police Officers Working in Branch Offices (Instructions
of the National Police Agency No. 61): Chiefs of police stations who
have competence over branch offices shall efficiently manage agents
in the branch offices in order to diligently guarantee the human rights
of suspects by treating them with due fairness (art. 4);
(d) Manual
for Police Affairs:
(i) In detention
centres, tools such as truncheons, handcuffs and ropes that physically
bind detainees are prohibited. The persons in charge of the detention
centres shall supervise and educate police officers not to use profanity
or act cruelly toward the detainees, guarding the human rights of
the detainees;
(ii) In
detaining a suspect, the chief of the relevant department shall review
the written records of the investigation and take the appropriate
measures;
(iii) A
period of emphasis on human rights is established and celebrated every
December, in addition to the opening and closing ceremonies of Human
Rights Day.
170. In January
1994, the National Security Planning Agency Act was amended, stipulating
that staff members of the National Security Planning Agency are obligated
to refrain from arresting or detaining a person, compelling him to
perform a duty which is not required of him, or obstructing him from
exercising his rights, stressing the observance of due process in
the performance of their duties. The amended Act also provides that
Agency members shall receive heavier punishment if they violate these
obligations. Furthermore, the National Security Planning Agency has
issued various statutes and directives in order to ensure the prohibition
of torture.
(a) The
Statute for Investigative Officers Related to Their Duties (wholly
amended in January 1994) urges the staff of the National Security
Planning Agency to perform their duties under the following creed:
"We shall try
our best to protect the fundamental rights of the people and to
perform our duties with integrity and fairness in order that people
will trust us. We shall always observe all the relevant laws and
regulations in investigating crimes in order that people will
voluntarily assist us."
In addition,
the statute provides that the staff shall aid suspects in receiving
a medical examination during investigation, and that they shall guarantee
the suspects interviews with counsel, a person who desires to serve
as counsel, relatives and others, as far as possible, institutionally
eliminating any possibilities for the staff to commit acts of torture
against the suspects;
(b) Through
the Rules for Examining Suspects and other guidelines, taking persons
who are suspected of crimes to police stations through coercive measures
is prohibited, except for flagrant offenders. In principle, examination
of detained suspects shall be made during working hours. Also, such
measures as refining language used during the examination have been
adopted to eliminate high-handed examination practices. In sum, the
National Security Planning Agency is making every effort to establish
fair and judicious investigative practices which do not infringe upon
the human rights of suspects.
171. In accordance
with the Regulation for Military Personnel Related to Their Duties,
which is the fundamental guideline for military personnel who live
in barracks, the Republic of Korea prohibits the abuse of official
authority. It also prohibits private sanctions in articles 14 and
15, respectively, ordering that military personnel must refrain from
any form of private sanction at any time, including assault, violent
language and acts of cruelty. It also obliges commanders to supervise
and direct their subordinates to refrain from assault, violent language
and other acts of cruelty in the context of instructing in military
discipline and living in military barracks.
172. The
Ministry of Justice has established and put into practice several
regulations, with the objective of preventing torture against inmates
and enhancing their human rights.
(a) Standing
Rules for Guard Duty (Instruction of the Ministry of Justice No.
293, 26 November 1993): If a staff member is responsible for guarding
inmates he shall closely observe the following instructions:
(i) He shall
respect the character of the inmates and strive to preserve their
honour. He shall not abuse his official authority under the pretext
of performing his guard duty and maintaining discipline;
(ii) He
shall try to be fair and impartial in treating the inmates, and he
shall not harbour prejudices, become overcome with resentment, or
give special treatment, such as the granting of favours.
It is prohibited
to impose additional duties or labour on inmates, other than those
which are in accordance with laws and regulations. Private sanctions
are also unlawful (art. 16). Disciplinary tools shall be used only
by an order of the head of the prison or his representative. However,
if the need to utilize such tools is urgent, making it impossible
to obtain the necessary orders beforehand, the tools may be utilized
immediately, on condition that the actions will be subsequently authorized
by the prison director (art. 17). Investigation of persons who have
committed illegal acts, and examination of persons who breach order
and discipline shall be conducted according to the instructions of
the head of the security department, particularly heeding the following
(art. 97): during investigation, the mens rea of the criminal
shall be made clear, the circumstances of the crime, his attitudes/disposition
following the crime, etc. However, investigators must never compel
confessions. If the person under investigation denies his guilt regarding
the commission of the crime, the investigators shall prove the facts
by collecting evidence if possible;
(b) Rules
Regarding Discipline and Punishment of Inmates (Order of the Ministry
of Justice No. 411, 11 August 1995): If an inmate is to be investigated
due to disciplinary violations, a prison officer shall observe the
following procedures, ensuring that there will be no infringement
upon the human rights of the inmate under investigation (art. 7):
(i) If the
officer discovers that an inmate has committed an act violating disciplinary
regulations, he shall immediately report the violation to the prison
director or to his representative and take measures in accordance
with the orders of the director or representative;
(ii) The
inmate under investigation shall be allowed sufficient opportunity
to make a statement, and the investigation shall proceed with impartial
procedures and objectivity of evidence. In addition, actions against
the inmate based on prejudice or assumption are prohibited;
(iii) The
investigation shall be conducted in the investigation room, apart
from the others;
(c) Directive
for Holding Juvenile Inmates in the Juvenile Reformatory (Instruction
of the Ministry of Justice No. 262, 1 June 1992): In supervising juvenile
inmates, the head of a juvenile reformatory shall not treat them with
prejudice, discriminate against them, commit acts of cruelty and other
uncivil treatment which might cause the juvenile inmates to experience
restlessness, fatigue, discord or frustration. The head of the reformatory
shall also devise and implement comprehensive measures for preventing
incidents of assault, disturbance or escape (art. 19).
Article 11
173. The
Republic of Korea has various institutional devices for the systematic
review of institutions, regulations, directives, means and practices
regarding investigative, adjudicative and executive procedures. The
petition rights of the people and the inspection system of detention
places are very useful devices for conducting systematic reviews of
procedures regarding crimes of torture.
174. All
citizens shall have the right to petition in writing to any government
agency under the conditions prescribed by law (art. 26 of the Constitution).
(a) All
citizens, including victims of some governmental measures, have the
right to submit petitions to government authorities regarding the
following: (i) redress of damages; (ii) demand for correction of irregularities
committed by a public official, or for disciplinary action against
or punishment of a public official; (iii) enactment, amendment or
repeal of laws, orders or regulations; (iv) operation of public institutions
or facilities; and (v) any other matters which fall under the authority
of public organizations (art. 4 of the Petition Act). Therefore, all
citizens may submit petitions requesting authorities to address institutions
and to examine regulations, directives, means and practices regarding
acts of torture;
(b) The
State shall be obligated to examine all petitions (art. 26 of the
Constitution). In addition, article 89, subparagraph 15, of the Constitution
provides that examination of petitions pertaining to executive policies
which are submitted or referred to the Executive shall be referred
to the State Council for deliberation. Furthermore, the Petition Act
obligates all government offices to accept and examine petitions faithfully,
fairly and promptly, and to notify the petitioner of the results thereof
(art. 9 of the Petition Act). Such notification enhances the efficiency
of the petition system;
(c) In addition,
persons may submit petitions to the National Assembly, with the introduction
of an Assemblyman. Petitions to the National Assembly shall be examined
by a competent committee, and a petition which is accepted by the
National Assembly but deemed necessary to be settled by the Government
shall be transferred to the Government with the opinion of the National
Assembly. In such cases, the Government shall settle the petition
and report without delay the results of the settlement to the National
Assembly (arts. 123 and 126 of the National Assembly Act);
(d) No person
shall be treated with discrimination or forced to suffer any consequences
because he has filed a petition (art. 11 of the Petition Act).
175. On 7
January 1994, the Republic of Korea enacted the Fundamental Act Relating
to Administrative Regulations and Civil Appeals Affairs, allowing
persons to file civil appeals against administrative agencies, so
that illegal or unjust acts may be eliminated through institutional
improvements.
(a) A person
may file a civil appeal against administrative agencies in relation
to illegal, unfair or negative actions and unreasonable regulations
of administrative agencies which infringe upon the rights of the people
or are inconvenient or burdensome to the people. Therefore, questions
regarding torture may also be the subject of civil appeals;
(b) Administrative
agencies shall address civil appeals before all else (art. 9, para.
1, of the Fundamental Act Relating to Administrative Regulations and
Civil Appeals Affairs). If they reject the appeal, or deem it impossible
to accept the appeal, the administrative agencies shall notify appellants
of the fact, with legal and factual reasons for the decision indicated
in the notification (art. 12, para. 1, of the Act), as administrative
agencies cannot reject petitions for institutional improvements on
unreasonable grounds;
(c) Furthermore,
questions related to torture may, according to the circumstances,
be the subject of applications for consultation, investigation and
addressing of civil appeals submitted to the Committee for Treatment
of National Difficulties, under the authority of the Prime Minister
(art. 15 of the Act).
176. Specifically,
the Criminal Execution Act provides that in a case in which an inmate
or detainee pending trial protests against his treatment, he may file
a petition with the Minister of Justice and with public officials
who conduct patrol examinations (art. 6, para. 1 of the Criminal Execution
Act). It is also provided that public officials shall handle an application
of a detainee according to the orders of the person responsible for
the matter, after addressing it promptly and reporting it to him.
Officials are also obligated not to reject applications by inmates
on unreasonable grounds in relation to their treatment (art. 27 of
the Standing Rules for Guard Duty).
177. Juveniles
under protection who are held in a juvenile reformatory who have objections
regarding their treatment may submit petitions to the Minister of
Justice (art. 11 of the Juvenile Reformatory Act). Even persons who
are held in detention places such as military prisons may make petitions
to the General Chiefs of Staff or patrol inspectors if they wish to
protest against their treatment (art. 4 of the Military Criminal Execution
Act).
178. In all
immigration control offices, consultation rooms are established for
complaints by foreigners. Therefore, if aliens who have illegally
entered the Republic of Korea request consultations for their grievances,
immigration officers shall comply with their requests in a faithful
manner, and they shall cooperate with competent governmental agencies
in settling the matter within a short time, making efforts to protect
the human rights of foreigners.
179. As mentioned
in paragraphs 85 and 86, inspection of detention places in investigative
agencies by a public and military prosecutor (art. 198-2 of the Penal
Procedure Code; art. 280 of the Martial Court Act) and inspection
of prisons by prosecutors and judges, both public and military (art.
5 of the Criminal Execution Act; art. 3 of the Military Criminal Execution
Act; art. 10 of the Juvenile Reformatory Act) contribute much to improving
institutions, regulations, directives, and practices in relation to
the issue of torture.
180. In addition,
the Ministry of Justice, the Public Prosecutor's Office, the National
Police Agency and prisons have established their own inspectors' rooms
and employed persons in charge of planning, resulting in continuous
improvements and the elimination of inappropriate practices and institutions.
Article 12
181. All
relevant laws of the Republic of Korea guarantee the immediate and
unbiased investigation by public prosecutors or judicial police officers
of cases where there are reasonable grounds to believe that acts of
torture have been committed.
182. Circumstances
which prompt investigations of crimes of torture include arrest of
flagrant offenders, autopsies, questioning, investigation reports,
rumours, and people's complaints, accusations, self-denunciation,
petitions, reports of crimes, etc. In any case, if there are reasonable
grounds to suspect that a crime has been committed, investigative
agencies shall conduct an investigation into the crime, the facts
of the crime and the evidence.
183. To assure
fairness in investigations, a public prosecutor, who has the same
qualifications as a judge and whose status is guaranteed, presides
over the investigations. Investigators, police administrative officials,
police superintendents, police captains or police lieutenants shall
investigate crimes as judicial police officers under the authority
of the public prosecutor. In addition, police sergeants or patrolmen
shall assist in the investigation of crimes as judicial police assistants
under the authority of a public prosecutor or judicial police officers.
184. Furthermore,
to assure fairness in investigations, the Penal Procedure Code provides
for the right to refuse to answer questions (art. 200, para 2, of
the Penal Procedure Code), the right to interview with a defence counsel
(art. 34 of the Code), the right to be notified of arrest and detention
(art. 200-5, 209 and 87 of the Code), and the right to interview the
accused detainee and to apply for defence counsel (arts. 200-5, 209,
89 and 90 of the Code).
185. In particular,
the National Security Planning Agency Act strictly provides that staff
members of the National Security Planning Agency who take charge of
investigations shall respect the above-mentioned rights of the accused
(art. 11, para. 2, of the National Security Planning Agency Act).
186. In order
to facilitate prompt investigation, the Penal Procedure Code empowers
a public prosecutor to command and direct the investigation, thus
allowing him to preside over the investigation (art. 195 of the Penal
Procedure Code) and limits the detention period either by a prosecutor
or by a judicial police officer (arts. 202 and 203 of the Code). Civil
complaints of the detainee, as mentioned in relation to article 11
of the Convention, also guarantee prompt investigations.
Article 13
187. The
laws of the Republic of Korea ensure the safeguarding of petitions
or accusations by victims of torture and observe article 13 of the
Convention by protecting the victims from unreasonable treatment or
intimidation as a consequence of their petitions, accusations or any
evidence given.
188. A person
who has been injured as consequence of an offence may file a complaint
with investigative agencies (art. 223 of the Penal Procedure Code).
The legal counsel of a person who has been injured may file a complaint
independently; on the death of the injured party, his spouse or any
of his lineal relatives or brother or sister may file a complaint
(art. 225 of the Code); and a complaint may be lodged or withdrawn
by proxy (art. 236 of the Code). Any person who believes that an offence
has been committed may lodge an accusation. If a public official,
in the course of his duty, believes that an offence has been committed,
he shall lodge an accusation (art. 234 of the Code).
189. A complaint
and accusation shall be filed with a public prosecutor or judicial
police officer, in writing or orally. On receipt of an oral complaint
or accusation, a public prosecutor or a judicial police officer shall
draw up a protocol (art. 237 of the above Code). In a case in which
a complaint or accusation has been lodged, the public prosecutor must
decide whether or not to institute a public prosecution, withdraw
public prosecution, or send the case to a public prosecutor of another
public prosecutor's office, and the public prosecutor shall inform
the complainant or accuser in writing of the reasons thereof within
seven days after the said decision has been made (art. 258, para.
1, of the Code). If it has been decided not to institute a public
prosecution, the public prosecutor shall, upon the request of the
complainant or accuser, promptly inform him of the reasons thereof
in writing within seven days (art. 259 of the Code).
190. Once
a complaint or accusation against an offender is lodged, the public
prosecutor and the judicial police officer must promptly initiate
an investigation.
(a) In a
case in which a public prosecutor investigates a crime based on a
complaint or accusation, he shall determine whether or not public
prosecution shall be instituted within three months after the complaint
or accusation has been made (art. 257 of the Code);
(b) According
to the Penal Procedure Code, when a judicial police officer receives
a complaint or accusation, he shall promptly investigate the matter
pertaining thereto and transfer the relevant documents and evidence
to a public prosecutor (art. 288 of the Code). In addition, according
to the Rules Concerning the Performance of Judicial Police Officials,
in case of an investigation by a judicial police official based on
a complaint or accusation, the investigation shall be completed within
two months. If it is not completed within two months, it shall come
under the direction of the public prosecutor of the competent district
public prosecutor's office or the branch office (art. 39 of the Rules
Concerning the Performance of Judicial Police Officials).
191. In particular,
when a complaint is filed at a police station, an investigation is
immediately initiated under special regulations as delineated below:
(a) When
a person files a complaint, the police station shall receive it for
investigation, without regard to jurisdiction. Necessary civil complaint
documents brought in directly by the complainant shall be registered
at the civil complaints room, then shall be handed over to the competent
department of the police station. The key officers shall appoint an
investigator to write up a supportive protocol without delay, and
they shall sign the protocol, in order to avoid the inconvenience
of a repeated process in writing up the protocol (Manual for Police
Affairs, 8-2);
(b) Despite
limitations on time periods as prescribed in relevant laws, a case
based on an accusation is expeditiously settled within a month of
the date on which the accusation was lodged, unless a time extension
is necessary (art. 66 of the Rules for Investigating Crimes);
(c) Once
the investigation is completed, the civil complainant must be immediately
informed of the results thereof. If handling of the case is delayed,
the civil complainant is to be updated promptly on the current situation
(Manual for Police Affairs, 8-2).
192. For
the protection of the complainant, etc. crimes such as murder, bodily
injury, acts of violence, intimidation, false arrest and illegal confinement
are punished with aggravated penalties. Moreover, compensation is
paid to the complainant according to legal provisions.
(a) A person
who commits murder (art. 250, para. 1, of the Criminal Code) as revenge
against another person for providing testimony, evidence, or serving
as a witness in a trial or investigation, is punished by death or
penal servitude for 10 years to life. In addition, a person who commits
murder with the objective of suppressing a complaint or accusation,
or who prevents the provision of truthful evidence or testimony, or
creates false evidence or testimony in the course of a trial, shall
receive the same punishment as delineated above (art. 5, para. 1,
of the Act Concerning Aggravated Punishment Against Specified Crimes);
(b) A person
who commits crimes of bodily injury (art. 257, para. 1, of the Criminal
Code); violence (art. 260, para. 1, of the above Code); false arrest
or illegal confinement (art. 276, para. 1, of the above Code); or
intimidation (art. 283, para. 1, of the above Code) in order to accomplish
the above-mentioned purposes, is punished by penal servitude for a
minimum of one year (art. 2 of the above Act). The death of a person
resulting from the above crimes shall be punished by penal servitude
for three years to life (art. 3 of the above Act);
(c) Any
person who forces an interview with or threatens to use force upon
someone who holds crucial evidence, or upon a relative or family member,
without just cause, is punished by penal servitude not exceeding three
years or fines not exceeding 3 million won (art. 4 of the above Act);
(d) Compensation
shall be given to victims of crimes committed in connection with the
provision of essential evidence of testimony in the course of his
or another person's trial and/or investigation, or compensation may
be given to the victim's family (art. 3, para. 1, of the Act Concerning
Aid to Criminal Victims).
193. In particular,
in cases of acts of torture committed in crimes of rape, indecent
acts by compulsion or murder, special measures are taken by the public
prosecutor to protect the witness(es) (art. 7 of the Special Case
Act Concerning Punishment Against Specified Serious Crimes).
(a) If it
is recognized that a witness to a rape, indecent act, or murder committed
by two or more people or through the use of deadly weapons is in danger
of being physically harmed or his life threatened by the accused or
other persons, the public prosecutor may request the chief of the
competent police office to take the necessary measures to protect
the witness (para. 1 of the above article);
(b) The
witness and the chief judge may request of the public prosecutor such
measures as mentioned above (paras. 2 and 3 of the article);
(c) The
competent chief of the police station which receives such requests
from the public prosecutor shall immediately take the essential measures
to protect the witness. In addition, the public prosecutor shall be
informed of what measures are taken (para. 4 of the article).
194. As mentioned
above in paragraphs 88 and 91, should the public prosecutor decide
not to institute a public prosecution, the victim may fully exercise
his rights of objection through appeal and reappeal, constitutional
petition and request of ruling, heightening the significance of the
victim's right to lodge an accusation.
195. A person
who objects to certain conditions of confinement which were effected
by a public prosecutor or a judicial police officer may demand a court
to address the matter in order to prevent confinement as a means of
torture (art. 417 of the Penal Procedure Act).
196. On the
other hand, current laws enable torture victims to file petitions
in accordance with the relevant legal procedures. Furthermore, no
person shall suffer any consequences because he has filed a petition
(arts. 4 and 11 of the Petition Act). He is also able to institute
civil complaints (art. 3 of the Fundamental Act Concerning Administrative
Regulation and Civil Complaint Affairs). Inmates and unconvicted prisoners
may also file petitions, and authorities shall not treat them unjustly
merely because they have submitted petitions (art. 6 of the Criminal
Execution Act; art. 8 of the Enforcement Ordinance concerning the
Act). Juveniles under protection in a juvenile reformatory may file
petitions in matters of unfair treatment (art. 11 of the Juvenile
Reformatory Act).
197. Owing
to the unique characteristics of the military, in which every order
requires perfect obedience among the hierarchy of ranking officers,
the concealment of acts of torture or cruelty is a possibility in
the military. In order to prevent these illegal acts of violence,
the system of accusation and petition is reinforced in the following
manner:
(a) According
to article 300 of the Court Martial Act, if a military prosecutor
decides not to indict a criminal, he shall explain to the complainant
the reasons for non-indictment. As mentioned above in paragraph 89,
if the military prosecutor decides not to prosecute, the complainant
may apply to the High Court Martial for a ruling;
(b) Complaints
by a soldier to his military barracks or to a higher military institution
are accepted without revealing the soldier's identity. A person who
witnessed or suffered injuries from acts of cruelty or torture is
able to file an accusation anonymously. These measures contribute
to the prevention of crimes such as torture in the military;
(c) If a
complainant is dissatisfied with the circumstances of a case handled
by the military prosecutor or the military judicial officer in relation
to confinement, etc. he may request for the matter to be addressed
to the competent court martial (art. 466 of the Court Martial Act);
(d) Even
persons who are held in detention centres such as military prisons
may, in protest of their treatment, file a petition with the General
Chiefs of Staff or patrol inspectors (art. 4 of the Military Criminal
Execution Act).
198. Since
the Republic of Korea has acceded to the International Covenant on
Civil and Political Rights and its Optional Protocol, victims of torture
may send communications to organizations of the United Nations.
Article 14
199. The
Republic of Korea observes article 14 of the Convention which ensures
that a victim of torture or his heir has the right to claim justified
penal compensation according to the law.
200. In a
case in which a criminal suspect or an accused person who has been
placed under detention is not indicted as provided by law or is acquitted
by a court, he shall be entitled to claim just compensation from the
State under the conditions prescribed by law (art. 28 of the Constitution).
(a) The
Penal Compensation Act provides the procedural details. A suspect
who has been tortured while under some form of detention and subject
to the decision by a public prosecutor not to institute a public prosecution,
or a victim who has been injured as a consequence of torture and acquitted
by a verdict of not guilty in his trial, shall have the right to claim
compensation from the State (arts. 1 and 26 of the Penal Compensation
Act), and his heir may also have the same right to claim said compensation
(arts. 2 and 28 of the Act);
(b) To guarantee
just compensation, when the court has to calculate the amount of compensation,
loss of possible benefits, mental pain, physical injury, intent or
fault of the police, the prosecution, the court and other agencies,
all circumstances shall be considered (art. 4, para. 2, of the Act).
201. In a
case in which a person has sustained damages due to an unlawful act
committed by a public official in the course of performing official
duties, he may claim just compensation from the State or public organization
under the conditions prescribed by law. In this case, the public official
concerned shall not be immune from liability (art. 29, para. 1, of
the Constitution).
(a) The
National Compensation Act provides details concerning the compensation
procedure. A victim who has suffered detention as a form of torture
may claim compensation in accordance with the National Compensation
Act (art. 2 of the National Compensation Act);
(b) The
National Compensation Act provides that in the case of the deprivation
of another person's life, compensation shall be given to the victim's
heir (art. 3, para. 1, of the Act);
(c) The
current National Compensation Act also provides details concerning
medical care, medical treatment, survivor compensation, compensation
for suspension of work, and consolation payments which guarantee just
compensation (art. 3 through 3-2 of the Act). In particular, the courts
of the Republic of Korea calculate losses of potential profits according
to the Hoffman method, guaranteeing just compensation;
(d) In a
case in which the victim is a foreigner, he may claim compensation
from the Government of the Republic of Korea only if a mutual guarantee
exists;
(e) In case
liability is not recognized, even if torture has been committed, the
victims of torture may claim compensation from the public officials
according to the provisions of the Civil Code.
202. Article
30 of the Constitution provides that citizens who have suffered bodily
injury or death due to the criminal acts of others may receive aid
from the State under the conditions prescribed by law. The Act Concerning
Aid to Criminal Victims provides more details of this provision. A
criminal victim may also receive adequate remedies from the State,
and claim just compensation. In case of the death of the victim, his
family may claim the compensation.
203. On the
other hand, if a court convicts a person of bodily injury, aggravated
injury, or death or injury from violence, the court may order ex officio
or through application by the victim or his heir, compensation for
physical damages and medical fees as a consequence of the crimes (art.
25 of the Special Case Act Concerning the Precipitation of Lawsuit
Procedure). Accordingly, victims of torture and other similar acts
may be granted compensation without depending on general civil procedures.
204. The
Government of the Republic of Korea is cognizant of article 14, paragraph
2, of the Convention, which states that there shall be no barriers
to the rights of victims or other persons to claim compensation which
is permitted under national law.
Article 15
205. The
Constitution and the laws of the Republic of Korea provide that if
a confession is deemed to have been made against the defendant's will
due to torture, the confession shall be inadmissible as evidence of
guilt. Confirmation of this provision is also found in the case-laws
of the courts.
206. The
Constitution and the Penal Procedure Code provide that in a case in
which a confession is deemed to have been made against a defendant's
will due to torture, violence, intimidation, unduly prolonged arrest,
deceit or etc., or in a case in which a confession is the only evidence
of a defendant's culpability, such a confession shall not be admitted
as evidence of guilt, nor shall a defendant be punished by reason
of such a confession (art. 12, para. 7, of the Constitution and art.
309 of the Penal Procedure Code). Furthermore, article 317 of the
Penal Procedure Code provides that oral statements given by an accused
person or a person other than the accused shall not be admitted as
evidence unless the statements are made voluntarily, and a document
which contains the said oral statements shall not be admitted as evidence
unless it is proved that they were made voluntarily (art. 317 of the
Penal Procedure Code).
207. A protocol
prepared by a public prosecutor which contains the statement of a
suspect or of any other person, or a protocol containing the results
of inspection of evidence, prepared by a public prosecutor or a judicial
police officer, may be introduced into evidence, if the genuineness
thereof is established by the person who made the original statement
at a preparatory hearing or during the public trial (art. 312, para.
1, the body of the above Code); a protocol containing the statement
of the defendant, who was a suspect, may be introduced into evidence
only in a case in which the statement was made under such circumstances
as to guarantee its truth, regardless of statements made at a preparatory
hearing or during public trial by the defendant (art. 312, para. 1,
the proviso to the Code). A protocol containing the interrogation
of a suspect and prepared by investigation authorities other than
the public prosecutor may be used as evidence only if the defendant
who has been a suspect, or the defence counsel, verifies the contents
of the protocol at a preparatory hearing or during public trial (art.
312, para. 2, of the Code). In sum, current laws provide institutional
mechanisms which prevent confessions deemed to have been made against
the defendant's will from being admitted as evidence. Furthermore,
a protocol containing the interrogation of a suspect by judicial police
officers may not be used as evidence without the defendant's consent,
and a protocol containing the interrogation of a suspect by a public
prosecutor may be used only if the statement was made under such circumstances
as to guarantee its truth.
208. The
principal case-law of the Supreme Court concerning the nullification
of the probative value of evidence is as follows:
(a) Assertion
by the accused that his confession to the investigation authorities
was made against his will owing to the use of torture may not seem
believable. However, under special circumstances in which neither
specific motivation for the crime nor clues to the investigation can
be found, in which his statement of confession lacks objective rationality,
and in which the material evidence of the crime does not correspond
in general with the confession, there may be grounds to suspect that
the confession of the accused was compelled through acts of violence
and other measures, even though the original cause of his confession
to the investigation authorities was not related to acts of torture
as the accused asserts (Supreme Court judgement 77 DO 210, rendered
on 26 April 1977);
(b) Although
the confession is not coerced during investigation in the presence
of a public prosecutor, it shall not be admitted if the confession
was obtained through torture by other investigation authorities; thus
the suspect's involuntary disposition is maintained through to the
stage of the public prosecutor's investigation (Supreme Court judgement
81 DO 2160, rendered on 13 October 1981; judgement 83 DO 497, rendered
on 24 June 1983; judgement 92 DO 2409, rendered on 24 November 1992);
(c) The
accused stated that he had been tortured by a judicial police officer
during his statement in the courtroom and denied the voluntary nature
of the confession and the statements, even submitting a medical certification
of his claims. He also asserted the falsity of his confession and
statement at the stage of the public prosecutor's investigation, but
the assertion was rejected. Under these circumstances, the statement
in a protocol containing the interrogation of the accused can hardly
be regarded as credible (Supreme Court judgement 88 DO 680, rendered
on 31 January 1989);
(d) Article
309 of the Penal Procedure Code provides that any confession of an
accused extracted by torture, violence, intimidation or after unduly
prolonged arrest or detention, or which is suspected to have been
made involuntarily by means of fraud or other methods, shall not be
admitted as evidence of guilt. Furthermore, cases of illegal acts
which infringe upon the suspect's freedom to make a statement, as
enumerated in the above article, shall, in principle, be deemed exceptional.
Credibility of a confession shall be judged in consideration of the
objective rationality of the contents of the statement, the motivation
or the reason that led to the confession, circumstantial evidence
other than the confession, and whether or not there exist any discrepancies
or conflicts between other facts and the confession (Supreme Court
judgement 82 DO 2413, rendered on 26 May 1985);
(e) The
accused was detained at the police station during the investigation
by a public prosecutor, and when interrogated by the public prosecutor
at the outset he denied his crime. However, after the second interrogation
session, he confessed to the crime without specific reasons. Afterwards,
in his first court appearance, the accused again denied having committed
the crime. Furthermore, witnesses testified that, while interviewing
the accused, they learned that he had been tortured, saw his wounds,
received a note in which he asked them to file a complaint of his
sufferings, and that he had been ill during the entire night following
the investigation. Under these circumstances, the confession of the
accused is deemed to have been made involuntarily as a consequence
of torture. Therefore, the admissibility of the confession as evidence
is denied (Supreme Court judgement 84 DO 36, rendered on 13 March
1984).
209. In addition,
the Constitution and the Penal Procedure Code provide that in a case
where a confession is the only evidence against a defendant in a formal
trial, such a confession shall not be admitted as evidence of guilt
(art. 12, para. 7, of the Constitution; art. 310 of the Penal Procedure
Code). These provisions prohibit coercive methods such as torture
to be used in investigations.
210. The
Penal Procedure Code provides that when it is established by a final
judgement that an offence has been committed, in connection with official
functions, by a public prosecutor or judicial police officer who participated
in the institution of a public prosecution or in the investigation
which formed the basis of the public prosecution, a request for reopening
procedures may be made (art. 407, subpara. 7, of the Penal Procedure
Code). This indicates that when a final judgement proves that persons
who participated in investigations have committed crimes of torture,
victims of torture may request the reopening of procedures.
Article 16
211. The
Republic of Korea recognizes that the concept of cruel and inhuman
or degrading treatment or punishment is not as significant as that
of torture; however, all the above acts are regarded as violations
of human worth and dignity and human rights.
212. The
obligation in the first sentence of article 16, paragraph 1, of the
Convention is realized in article 10 of the Constitution which provides
that "all citizens shall be assured of human worth and dignity
and have the right to pursue happiness. It shall be the duty of the
State to confirm and guarantee the fundamental and inviolable human
rights of individuals."
213. The
Government of the Republic of Korea has taken various measures to
prevent the occurrence of cruel and inhuman or degrading treatment
or punishment.
(a) In principle,
it is the duty of the authorities to take all relevant measures to
prevent cruel and inhuman or degrading treatment or punishment by
public officials, etc. and to ensure that officials under their direction
and supervision abide by those measures;
(b) As mentioned
in relation to article 4 of the Convention, various provisions concerning
the punishment of acts of violence or cruelty or bodily injury committed
by a public officer and concerning disciplinary action against them
may apply to cruel and inhuman or degrading treatment or punishment
as well as to acts of torture, under article 1 of the Convention;
(c) As mentioned
in relation to article 14 of the Convention, a victim injured as a
consequence of torture or other cruel and inhuman or degrading acts
by a public official, etc. may claim civil compensation from the State,
etc.;
(d) Public
officials, especially those who are engaged in investigative agencies
such as police officers or prison officers, have an obligation to
observe the law in the performance of their duties, being instructed
to use minimum force and respect the human rights of those under protection,
so that cruel and inhuman or degrading treatment or punishment is
prevented.
214. The
above sections alluding to articles 10, 11, 12 and 13 of the Convention
may also refer to cruel and inhuman or degrading treatment or
punishment
under article 16 of the Convention. The laws of the Republic of Korea
contain a series of provisions corresponding to the second sentence
of article 16, paragraph 1, of the Convention.
215. The
Government of the Republic of Korea recognizes that the role of the
Convention is to prevent cruel and inhuman or degrading treatment
or punishment, and to prevent any breach of the provisions of international
conventions or domestic laws in relation to issues of extradition
or deportation.
CONCLUSION
216. The
Republic of Korea, since its foundation in 1948, has continuously
strived to guarantee and protect the lives of the people. These efforts
have been undertaken while confronting the problems of economic poverty
and threats to national security resulting from the division of the
North and South.
217. Human
rights conditions in the Republic of Korea have been greatly improved,
compared to those in the past authoritarian era. Since the launch
of the civilian Government in February 1993, great strides have been
made towards achieving international standards. With regard to the
prevention of torture and other cruel, inhuman or degrading punishment,
relevant laws, regulations and institutions have been amended and
improved. In this regard, the cases in which four investigative police
officers have been arrested and sentenced to terms of penal servitude
ranging from one and a half years to three years, as well as the award
by the State of compensation to Mr. Geun Tae Kim of 45 million won,
reflect the will and desire of the Republic of Korea to eliminate
torture.
218. However,
the Republic of Korea has yet to solve some problems with regard to
human rights. The Government of the Republic of Korea recognizes that
guarantees of human rights cannot be achieved within a short time,
and that there remains much to be accomplished. Human rights progress
should accompany all developments in society. Therefore, the continuous
efforts of the entire community are necessary to achieve human rights
guarantees.
219. Given
this recognition, the Government of the Republic of Korea is doing
its best to improve upon inadequate and unacceptable practices and
institutions. Such efforts are believed to be an absolute necessity
if the Republic of Korea is to realize a just society which guarantees
human worth and dignity and human life to everyone.
220. In addition,
the Republic of Korea has made efforts to enhance the welfare and
human rights of the people in an affirmative and progressive manner,
signifying improvements in the quality of life in all areas, including
the environment, education, culture, medical care and labour. Improvements
must not be merely limited to human rights in political areas, such
as liberation from the intervention of State power.
221. Furthermore,
the Republic of Korea will continue to participate in international
efforts to promote and enhance human rights as a universal value.
