Sovereignty-Centric Perception of Human Rights
A. Human Rights and the North Korean Penal Code
Since the North Korean Penal Code was first adopted on March 3, 1950, it has been repeatedly revised in reflection of the changing social realities and the criticism of the international com- munity over various Penal Code provisions that infringe on the principles of human rights. In fact, the code has been remodeled so that it is more of a mechanism for crime control than an instru- ment of regime protection. For example, while Article 1 of the 1999 revised Penal Code declared a “struggle against crimes,” the same article of the 2004 revision stipulates that “The purpose of this revision is to properly establish our penal system and penal responsibilities against crime,” a modest but significant improve- ment. Article 1 of the 2004 revised Penal Code is preserved intact in the 2009 revised Penal Code. However, the North Korean Penal Code still has not broken free of its original character and mission of class struggle.
North Korea’s penal (criminal) code is structured primarily 173
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The Right to Due Process of the Law
on the basis of political and class (personal status) considerations.
Basically, the law enforcement authorities, including the courts, are required by law to distinguish political crimes from ordinary crimes and hand down different levels of punishment. The main reason for this strange approach is the imperative of safeguarding the socialist system, and the rationale is that political and ordinary crimes stem from fundamentally different motives. North Korea argues that political crimes are perpetrated by anti-revolutionary elements that are committed to overthrowing the socialist system and restoring a “system of exploitation,” hence the increased need to prevent and suppress political crimes by all means and with the heaviest penalties.225In this regard, North Korea’s Penal Code stip- ulates the “safeguarding of national sovereignty and the socialist system” as one of its missions (Article 1 of the Penal Code).
Although there is a stipulation in Article 4 that lenient sentences will be granted for those who repent for crimes against the state and the people, political considerations have not been completely eliminated from the penal system. North Korea’s Penal Code defines anti-state and anti-people crimes in the early part of the Code, immediately after the general provisions (Chapter 3). This seems to indicate that the North Korean authorities take political crimes most seriously.
In dealing with criminal offenders, the Penal Code continues to uphold a “class struggle” posture. Article 162, Section 2 of the revised 2010 Penal Code specifies that its purpose is to “ensure that all institutions, enterprises, organizations and citizens abide strictly by state laws and staunchly combat all class enemies and law-breakers.” With respect to the principle of handling criminals,
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225_Kim Geun-sik, Criminology I(Pyongyang: Kim Il-sung University Press, 1986).
Article 2 of the Penal Code stipulates, “In dealing with criminals the state should firmly maintain working-class principles with emphasis on social education in conjunction with legal sanctions.”
So it is clear that the principles of “class struggle” continue to form the foundation of North Korea’s Penal Code. In line with this fun- damental principle, Article 2 of the Criminal Procedure Law stipu- lates, “In its struggle to combat crimes against the state and the people, the state should strictly distinguish friends from enemies, subduing the small minority of instigators and embracing the majority who are mere followers. In its struggle against ordinary social crimes, the courts should place emphasis on social educa- tion accompanied by legal sanctions as necessary.” In other words, the “class principle” under the Criminal Procedure Law means that the state will identify class enemies who have committed political crimes and strictly subdue the core leaders. Furthermore, the North Korean authorities argue that because the interpretation and application of the Penal Code is inseparable from politics, judges should understand the principles of class struggle and receive party guidance in determining proper sentencing.
Due to its emphasis on political and class orientations and in spite of its statute of limitation clauses, the North Korean Penal Code has been criticized for permitting human rights violations.
Therefore, it is particularly noteworthy that Article 9 of the new Penal Code stipulates that in the case of acts which the old code defines as crimes but the new code does not define as crimes, the new Penal Code shall apply. The code formerly stipulated that the legal provisions in effect at the time of the commission of a crime should be applied. Article 56 defines the statute of limitations for crimes punishable by “labor training,” “limited-term correctional labor,” “unlimited-term correctional labor,” or “capital punish-
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ment.” However, under Article 57 there is no statute of limitations for crimes against the state, crimes against the people, or premedi- tated murders. As a result, anyone charged with one of these crimes may be subject to punishment until the day of their death.
Under North Korea’s Penal Code, attempted crimes and unaccomplished crimes are to be treated as accomplished crimes, and accomplices are to be treated the same as the primary offender.
The law stipulates, “The same provisions shall be applied to accomplished and unaccomplished crimes, as well as the prepara- tions thereof” (Art. 19, Sec. 2). Also, punishment is to be imposed regardless of whether the crime was actually committed. The law stipulates, “In simple criminal cases involving accomplices, the same criminal provisions imposed on the primary offender shall be applied to all accomplices and supporters” (Art. 22, Sec. 1).
The level of criminal responsibility for unaccomplished crimes and preparations for crimes shall be determined based on the serious- ness of the crime, to what extent the crime was carried out, and the reasons why the crime was unaccomplished. In any case, lighter penalties shall be imposed for unaccomplished crimes than for accomplished crimes, and for preparations than for unaccom- plished crimes (Art. 19).
There are also Penal Code provisions relating to “concealing anti-state and anti-people crimes” (Art. 70), failure to report anti- state and anti-people crimes (Art 71), and allowing anti-state crimes to happen (Art. 72). Furthermore, a sort of “guilt-by-associ- ation” rule is applied in cases of anti-state and anti-people crimes.
In short, North Korea has regressed by raising the level of punish- ment for anti-state and anti-people crimes in the process of revis- ing its Penal Code in 2009. For example, it allowed capital pun- ishment for the crimes of “treacherous destruction” (Art. 64) and 176
failure to report anti-people crimes (Art. 71).
In the 2004 Penal Code revision, North Korea deleted provi- sions that allowed “analogical interpretations,” and it accommo- dated the principle of “nullum crimen sine lege” (no crime unless prescribed by law). It also streamlined and tightened loose expres- sions within various provisions, eliminating phrases like “etc” and
“like.” Instead, by describing the types of criminal behavior, the provisions became much clearer. The number of articles was also expanded from 161 to 303. The crime provisions increased from 118 to 245, with more specific definitions of the elements of crime. In short, North Korea’s 2004 revisions were regarded as a step in the right direction, and significantly reduced human rights infringing elements in response to international criticisms. How- ever, North Korea’s Penal Code still contains many provisions that are unsatisfactory for the protection of human rights. For example, its definition of “labor-training detention facilities” remains unclear, the category of “political crime” is maintained, the statute of limi- tations does not apply to political crimes, and elements of “crime- by-association” still persist in parts of the Penal Code. In addition, North Korea’s Penal Code revisions since 2007 have shown a nega- tive trend. There were two revisions in 2005 and 2006. In 2007 North Korea again revised its Penal Code, adding an Annex (on ordinary crimes). The Annex allowed capital punishment on a large number of crimes, and contained very abstract expressions like “in extremely serious cases” in connection with capital punish- ment. In 2009, North Korea for the first time inserted an article on human rights protection into its Constitution (Article 8). This was a new source of hope in terms of human rights protection. In the 2009 revision, however, North Korea revised the Penal Code in a way that tightened internal controls to block the inflow of outside
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information. Levels of crime were raised for anti-state and anti- people crimes, breaches of national management systems, and offenses against socialist culture. These measures were apparently incorporated into the Penal Code to support the “military-first”
ideology concept inserted in Article 3 of the 2009 revised Consti- tution. These steps were also taken to ensure a stable power transi- tion to Kim Jong-eun by strengthening internal control and block- ing the inflow of outside information.
Despite repeated revisions of the penal code, ordinary North Koreans are generally not aware of the existence of the Penal Code itself. Although they are aware of criminal provisions such as those related to crimes against the state, they believe that the application of the law is not impartial but depends on one’s power and wealth.
In North Korea the supreme leader’s “policies” will often take pri- ority over legal provisions in determining actual crimes and punish- ments. For example, if someone were to report, “Dear General, our youngsters are wearing blue jeans. This is a capitalist and revisionist fad imported from the United States. We must stop this,” and the reporter received an affirmative reply, then blue jeans would be banned and those caught wearing them would be punished.226
•Trial Procedures
People should be entitled to equal rights under the law, the independence of the court should be guaranteed, trials should be conducted openly, and verdicts should be based on specific evi- dence. Furthermore, suspects should have the right to an attorney and the right to appeal unfair trial procedures, and the application
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226_Testimony of defector XXX during an interview in Seoul on Jan. 19, 2005.
of laws should be institutionally guaranteed.
However considering the nature of socialism in North Korea, it would be difficult for them to have an independent judiciary based on the principle of separation of powers. In fact, the mission of North Korean attorneys is to protect the policies of the Korean Workers’ Party rather than the rights of the accused. Despite these provisions in the Penal Code and Criminal Procedure Law, they are not fully observed during the trials, especially in cases dealing with political crimes.
In response to these criticisms, North Korea decided to make major revisions and update the trial procedures in its Crimi- nal Procedure Law in May of 2004. Furthermore, it made partial revisions again in July 2005. Specifically, Article 8 of the 2005 Criminal Procedure Law specifies, “All criminal cases shall follow the principles, procedures and methods stipulated in the Criminal Procedure Law.” Also, Article 13 mandates, “All trials shall be con- ducted at appropriate levels of court, and the punishment levels shall be determined by court decisions.” North Korea enacted the
“Court Composition Law” in January 1976, and the law was revised twice, on July 1, 1998 and Nov. 19, 1998. The “Rulings and Judgements Implementation Law” was adopted on Jan. 23, 1997, revised on Sept. 5, 1997 and again revised on Nov. 19, 1998. After the Constitution was revised on April 9, 2009, the section on trials was partially revised again on April 9. 2010, to change the name of the Central Court to the Supreme Court.227Thus North Korea has a Supreme Court, provincial courts (the municipality directly
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227_The Constitution names the highest court as the Supreme Court, but other laws like the Court Composition Law and the Criminal Procedure Law still retain the name “Central Court.” These lower laws are likely to be revised in time. In this White Paper, “Supreme Court” will be used where appropriate.
under the central authority), district and county people’s courts, military courts, and railroad courts (Art. 159 of the Constitution and Art. 3 of the Court Composition Law). According to the Court Composition Law, the participants in court decisions are the judge and the people’s jurors (Art. 4). Article 9 stipulates that a district court consists of a judge and two people’s juries. The superior court consists of three judges (Art. 14). Court decisions shall be determined by a majority vote of the participating judge(s) and the people’s juries (Art. 17).
In fact, these regulations are reportedly well-observed during the process of court trials, at least outwardly. Defector XXX testi- fied that during his trial at the people’s court in the Haean District of Hamhung City, at least five officers of the court were present, including a prosecutor from the Hae-an District Prosecutors’ Office, a judge from the district court, one defense lawyer, and two peo- ple’s jurors.228
In terms of organizational hierarchy, North Korean courts operate under the direction of the Supreme People’s Assembly. For this reason, infringements on judicial independence are highly possible. Article 168 of the North Korean Constitution stipulates,
“The Supreme Court is accountable to the SPA Presidium when the SPA is in recess.” Most importantly, the independence of the court is difficult to maintain since the judges are politically respon- sible for the sentences they impose. Article 11 of the Prosecution Supervisory Law stipulates, “The prosecutor(s) shall supervise whether the trial or arbitration of a case is accurately deliberating and resolving the legal requirements and in a timely manner.” In other words, the prosecution has the right to supervise all trials
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228_NKHR2009000016 2009-03-19.
and arbitrations by participating in their procedures. This provi- sion stands in conflict with the principle of an independent judi- ciary. The North Korean prosecution plays a role that is similar to the function of the Constitutional Court in South Korea. In North Korea, then, the prosecutors are higher in the hierarchy than the judges.229
North Korean judges, prosecutors and attorneys seem to lack professional legal knowledge, as they are appointed by the government from among the graduates of the law colleges.230 Based on this assessment, the UN Human Rights Committee in its
“Final Observations” recommended that North Korea take all nec- essary steps to guarantee independence and fairness at all levels of the judiciary. North Korea’s Criminal Procedure Law stipulates that
“The courts shall be independent in all trials and trials shall be conducted in accordance with the law” (Art. 272). Article 255 mandates punishment of judges for unfair, unjust, and/or arbitrary judgments or decisions. However since the Criminal Procedure Law mandates upholding class principles, there is still room for breaches of judicial independence and human rights violations.
North Korea’s Criminal Procedure Law stipulates that “The state shall distinguish friends from enemies strictly in its struggles to combat crimes against the state and the people; it shall overpower reactionary instigators and embrace the majority who are mere fol- lowers; and, in its struggles against ordinary crimes, it shall hand down legal sanctions based on our social conventions” (Art. 2).
Furthermore, Article 3 of North Korea’s Criminal Procedure Law
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229_Kim Dong-han, “The Laws of North Korean Courts: Trends and Evaluations,” in The North Korean Laws: Past and Present(Seoul: A Seminar Report of the North Korean Law Study Association, 2005).
230_Testimony of defector XXX during an interview in Seoul on Oct. 20, 2003.
calls for maintaining the “mass” principle, saying, “In handling criminal cases, the state shall rely on the power and wisdom of the masses.”
With regard to the open courts principle, most North Kore- ans do not understand why the principle is essential for the fair- ness of trials. In fact, defectors testify that officials and staff are tried in closed courts or secret trials.231In other words, ordinary citizens are tried in open courts, but officials and party cadres are tried in secret. The reason for this practice, defectors say, is that trying officials openly may have a negative impact on society. In fact, an open trial is tantamount to punishment since they have already been censured by the Party during the pre-trial stage.
When North Korea revised its Criminal Procedure Law in 2004, it installed a new provision requiring court trials to be open to the public (Art. 271, Sec. 1). As the UN Human Rights Com- mittee pointed out, however, the new revised law contains an exception allowing certain trials to be conducted behind closed doors if necessary to protect state secrets or the privacy of individ- uals, or if opening the trial to the public could have an adverse impact on the society at large (Art. 271, Sec. 2).
However, most of those who either experienced or heard about trials testified that the trial process leaned heavily toward formality over substance.
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231_Testimonies of defectors XXX and XYZ during interviews in Seoul on Jan. 9, 2004 and Jan. 10, 2004; XXX is a graduate of Pyongyang Mechanical Engineering College and XYZ quit during his senior year at Kim Il-sung University. They understood the open court principle to refer to the difference between trials con- ducted inside or outside of buildings.
•The On-Site Open Trial System
One of the institutional setups prone to human rights viola- tions is North Korea’s system of holding “on-site open trials.”
North Korea’s old Criminal Procedure Law stipulated, “In an effort to prevent crimes in advance and to remind the public of the law, the courts may organize and conduct ‘on-site open trials.’ In this case, any representative(s) of workers and farmers may make accusations or expose criminal behavior. The persons who are responsible for the education of the accused and those responsible for allowing the crime to take place may also be required to partic- ipate in the procedure so that they too may learn a lesson” (Art.
179 of the 1999 Criminal Procedure Law).
An on-site open trial is a form of education about abiding by the law. It can educate hundreds or thousands by striking down only one. Properly conducted, on-site trials can teach lasting lessons to the many people who witness them.232
As Kim Jong-il’s instructions make clear, the “on-site public trial system” was retained in the 2005 revised Criminal Procedure Law. Article 286 of the law stipulates, “In order to prevent crimes and awaken the masses to the issue on trial, the courts can orga- nize trials and deliberations on-site (at any locality). In such instances, the representatives of an agency, enterprise or organiza- tion may be asked to reveal the acts of the criminal and accuse him/her.” The changes here include (1) “the representatives of an agency, enterprise, or organization” has replaced the “workers and peasants” and (2) a provision was eliminated which stipulated,
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232_Kim Jong-il, “On Improving and Strengthening the Work of Judicial Prosecutors,”
The Selections of Kim Jong-il 13(Pyongyang: KWP Press, 1996), p. 316.