Republic of Korea
1. The Committee
considered the second periodic report of the Republic of Korea (CCPR/C/114/Add.1)
at its 1791st and 1792nd meetings (see CCPR/C/SR.1791 and SR. 1792),
held on 22 October 1999, and adopted the following concluding observations
at its 1802nd meeting (CCPR/C/SR.1802), held on 29 October 1999.
2. The Committee
welcomes the second periodic report submitted by the Republic of Korea
within the specified time limit. The Committee regrets, however, that
despite its comment that the initial report of the State party did not
include sufficient information about implementation of the Covenant
in practice, the second periodic report suffered from the same deficiency.
The Committee further regrets the lack of responses to a number of questions
posed by its members during the examination of the report. As a result,
the Committee was prevented from fully monitoring compliance by the
State party with all provisions of the Covenant.
B. Factors and difficulties affecting the implementation of the Covenant
3. The Committee
appreciates the security concerns of the State party that result from
the fact that no final agreement has been reached between the two Koreas.
The Committee stresses, however, that citing security concerns does
not of itself justify restrictions on Covenant rights, and that even
when a state party is faced with genuine security problems restrictions
on rights must meet the requirements of the Covenant.
C. Positive factors
4. The Committee
commends dissemination of the report among non-governmental organizations
that contributed significantly to the Committee's examination of the
report. The Committee takes note of an increasing openness of society,
as is evident from abolition of the Performance Monitoring Committee,
which had been responsible for censorship of the performing arts.
5. The Committee
notes the enactment of a number of laws aimed at strengthening protection
of Covenant rights, especially the rights to equality protected under
article 2, paragraph 1, and articles 3 and 26 of the Covenant. These
laws include the Basic Women's Development Act, amendments introduced
in the Employment Equality Act, the Handicapped Employment Act, the
Gender Discrimination Prevention and Relief Act and the Prevention of
Domestic Violence and Victim Protection Act.
6. The Committee
notes measures undertaken to enhance awareness of the Covenant and of
human rights in general that include obligatory human rights training
for judges, lawyers and prosecutors. It also welcomes the translation
into the Korean language and distribution of the major international
human rights instruments.
D. Principal Areas of Concern and Recommendations
7. The status
under domestic law of the rights provided for in the Covenant remains
unclear, particularly since the Korean Constitution does not enumerate
all of these rights and the extent and criteria under which they may
be limited. The Committee is concerned that article 6 of the Constitution,
according to which international treaties ratified by the State party
have the same effect as domestic laws, has been interpreted as implying
that legislation enacted after accession to the Covenant has status
superior to that of Covenant rights.
8. The Committee
reiterates its grave concern expressed after consideration of the initial
report regarding the continued existence and application of the National
Security Law. According to the State party, the National Security Law
is used to deal with legal problems that arise from the division of
Korea. However, the Committee is concerned that it is also used to establish
special rules of detention, interrogation and substantive liability
that are incompatible with various articles of the Covenant, including
articles 9, 18 and 19.
The Committee reiterates the recommendation made after consideration
of the State party's initial report that the State party phase out
the National Security Law.
9. The Committee
considers that the scope of activities that may be regarded as encouraging
"anti-state organizations" under article 7 of the National
Security Law is unreasonably wide. From the cases that have come before
the Committee in individual communications under the Optional Protocol,
and other information provided on prosecutions brought under article
7, it is clear that the restrictions placed on freedom of expression
do not meet the requirements of article 19, paragraph 3 of the Covenant,
as they cannot be regarded as necessary to protect national security.
The Covenant does not permit restrictions on the expression of ideas,
merely because they coincide with those held by an enemy entity or may
be considered to create sympathy for that entity. The Committee also
emphasizes that internal directives regarding prosecution policy do
not provide adequate guarantees against the use of article 7 in a manner
that is incompatible with the Covenant.
The State party must urgently amend article 7 so as to make it compatible
with the Covenant.
10. The Committee
is deeply concerned about the laws and practices that encourage and
reinforce discriminatory attitudes towards women. In particular, the
family headship system both reflects and reinforces a patriarchal society
in which women have a subordinate role. The practice of identifying
the sex of foetuses, the disproportionate percentage of boys among second
and third-born children and the high rate of maternal mortality that
apparently arises from the number of unsafe abortions are deeply disturbing.
The Committee stresses that prevailing social attitudes cannot justify
failure by the State party to comply with its obligations, under articles
3 and 26 of the Covenant, to ensure equal protection of the law and
the equal right of men and women to the enjoyment of all the rights
set forth in the Covenant.
11. While welcoming
the new legislation enacted by the State party for the prevention and
punishment of domestic violence, the Committee remains concerned at
the high level of such violence and the remaining inadequacies in law
the Committee is concerned that the offence of rape requires evidence
of resistance by the woman, that marriage to the victim of rape provides
a defence to the accused, and that it appears that marital rape is not
a criminal offence.
The new legislation
on prevention and punishment of domestic violence should be strengthened
by eliminating existing legal rules that weaken the protection of
women against such violence.
12. The Committee
is concerned over the extent of discrimination against women in employment,
over the lack of adequate protection for the high number of women employed
in small enterprises and over the disparity between the earnings of
men and women.
In order to ensure compliance with articles 3 and 26 of the Covenant,
the State party must promote effective implementation of the Gender
Discrimination Prevention and Relief Act enacted in January 1999,
and adopt positive measures to guarantee equality of opportunity and
conditions of employment for women.
13. The law
of criminal procedure, under which the detention of a suspect is subject
to judicial review only if the detainee lodges an appeal, is incompatible
with article 9, paragraph 3, of the Covenant, which provides that every
person detained on a criminal charge shall be brought promptly before
a judge or other officer authorized by law to exercise judicial power.
The excessive length of permissible pre-trial detention (30 days in
ordinary cases and 50 days in cases involving the National Security
Law), and the lack of defined grounds for such detention also raise
questions of compliance by the State party with article 9.
The State party must amend its law so as to ensure respect for all
the rights of detained persons provided for under article 9 of the
14. The Committee
takes note of the procedures for monthly monitoring of conditions in
detention centres by prosecutors, but it is concerned that these and
other mechanisms are not adequate to prevent instances of torture and
cruel, inhuman and degrading treatment of detainees. The small percentage
of cases in which complaints of torture or cruel, inhuman and degrading
treatment lead to action against officials calls into question the credibility
of the existing procedures of investigation. The Committee is also concerned
that non-compliance by the State party with the requirements of article
9 of the Covenant, and the seemingly widespread reliance of the prosecuting
authorities and the courts on confessions by accused persons and accomplices,
facilitate acts of torture and cruel, degrading and inhuman treatment
by interrogating officials.
Establishment of an independent body to investigate allegations of
torture and amendments of the criminal procedure mentioned in para.
15 above should not be delayed.
15. While the
Committee welcomes the abolition of the "ideology conversion oath",
it regrets that it has been replaced by a "law-abidance oath".
From the information provided to the Committee it remains unclear which
prisoners are required to sign the oath and what the consequences and
legal effects of the oath are. The Committee is concerned that the oath
requirement is applied, on a discriminatory basis, particularly to persons
convicted under the National Security Law, and that in effect it requires
persons to make an oath to abide by a law that is incompatible with
The "law-abidance oath" imposed on some prisoners, as a
condition for their release, should be abolished.
16. The Committee
regrets that, in view of the paucity of information provided in the
report and in the responses of the delegation during consideration of
the report it is unable adequately to assess the extent of judicial
independence. It is particularly concerned about the system of reappointment
of judges that raises serious questions about judicial independence.
The State party must provide full details on the system and actual
practice of judicial appointments.
17. The extensive
use of wiretapping raises serious questions of compliance by the State
party with article 17 of the Covenant. The Committee is also concerned
that there are no adequate remedies by way of correction of inaccurate
information in data-bases or for their misuse or abuse.
18. The prohibition
of all assemblies on major roads in the capital would appear to be overbroad.
While some restrictions on assemblies on main roads in the interests
of public order are permissible, article 21 of the Covenant requires
that all such restrictions be in conformity with the law and be necessary
in a democratic society. The absolute restrictions on the right to hold
assemblies on main roads imposed by the State party do not meet these
19. The Committee
notes the changes in law that allow teachers to form trade unions, and
public servants to form work-place associations. Nevertheless, the Committee
is concerned that the remaining restrictions on the right to freedom
of association of teachers and other public servants do not meet the
requirements of article 22, paragraph 2, of the Covenant.
The State party should continue with its programme of legislation
regarding the right of association of public servants with the object
of ensuring that all persons in Korea shall enjoy their rights under
article 22 of the Covenant.
20. The Committee
welcomes the withdrawal by the State party of its reservations on articles
23 (para. 4) and 14 (para. 7). It strongly recommends that the State
party review the remaining reservations on articles 14 (para. 5) and
22 with a view to their eventual withdrawal.
21. In relation
to the Committee's Views on Communications submitted under the Optional
Protocol, the Committee finds it inappropriate that the State party
should require the author of a communication on which the Committee
has expressed its views to seek a remedy through the domestic courts,
by way of further appeal or a claim for compensation.
Rather than referring such cases back to the domestic courts which
have already pronounced on the matter, the State party should immediately
proceed to give effect to the Views expressed by the Committee.
22. The Committee
calls on the State party to continue its efforts to provide human rights
education to its public officials. It recommends that the State party
consider making such education obligatory, not only for public officials
but for members of all human rights-related professions, including social
workers and medical personnel.
23. The Committee
requests that the State party submit its third periodic report by 31
October, 2003. That report should be prepared in accordance with the
revised Guidelines adopted by the Committee (CCPR/C/66/GUI) and should
give particular attention to the issues raised in these concluding observations.
The Committee requests that these concluding observations and the next
periodic report be widely disseminated in the Republic of Korea.