Sovereignty-Centric Perception of Human Rights
A. Liberty Rights and North Korea’s Criminal Law System
The right to individual liberty consists of those freedoms of personal security and autonomy that cannot be limited or abridged without due process of the law.
Article 5 of the Universal Declaration of Human Rights (UDHR) provides that no one shall be subjected to torture or to cruel, inhumane or degrading treatment or punishment. Article 7 of the ICCPR also stipulates that no one shall be subjected to tor- ture or to cruel, inhumane or degrading treatment or punishment.
Furthermore, it is stipulated in Article 9 that no one shall be sub- jected to arbitrary arrest or detention. Furthermore, in Article 10 it is provided that all persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person. Based on Article 5 of the UDHR, the UN adopted the Convention against Torture and Cruel, Inhumane or Degrading Treatment or Punishment at the General Assembly held on Dec. 10,
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The Rights to Liberty and
Personal Safety
1984. Also, the Vienna Declaration and Programme of Action adopted in 1993 stipulated that the prohibition against torture must be respected in all circumstances, with particular attention being paid during times of war, and further demanded that all UN member countries must endorse this declaration.
North Korea’s Constitution prohibits the arrest and detention of citizens unless prescribed by law. This principle is preserved in the current Constitution, which was amended on April 9, 2010 during the second session of the 12th Supreme People’s Assembly.
Article 79 declares that, unless based on the law, citizens shall not be arrested or imprisoned, nor shall their homes be searched.
With the April 2009 revision of its Constitution, North Korea for the first time stipulated in Article 8, “The state shall safe- guard the interests of, and respect and protect the human rights of the working people …” Previously, human rights protections were codified only in lower-level laws, such as the Criminal Procedure Law and the Attorney Law.
In the 1999 version of North Korea’s Criminal Procedure Law, “investigation” and “preliminary examination” were combined into one chapter (Ch. 4), but the 2004 revision again separated them into two separate chapters, “investigation” (Ch. 6) and
“preliminary examination” (Ch. 7), indicating an attempt to provide stricter and more independent procedures. Also, the revision covers the mission and duration of preliminary examinations (Sec. 1), the interrogation of suspects (Sec. 3), and arrest and detention (Sec.
4). In short, more legally precise procedures have been provided for suspects during their arrest and their period of detention in the process of investigation and preliminary examination.
In the 2004 Criminal Procedure Law, arrest and detention procedures are laid down in separate articles of the law. As in the 112
Constitution, the Criminal Procedure Law also specifies, “One shall not be arrested or detained in a manner not provided for in the law or without following the procedures prescribed by the law (Art. 177).” Moreover, the law clearly stipulates that no arrest shall be made without a warrant, and only investigators and “retrial agents” can make arrests (Art. 180). Specifically, Article 181 stipu- lates that if a pretrial agent needs to detain a suspect, the agent must apply for and receive pre-approval from a prosecutor. In the past, there was also much criticism of the practice of not inform- ing a detainee’s family subsequent to an arrest. Perhaps for this rea- son, a new provision (Art. 183) was installed, stipulating that “The suspect’s family or organization shall be notified within 48 hours of arrest of the reasons for and the place of detention.” It will be necessary to confirm if this “family notification” provision also applies in the cases of missing persons charged with political crimes. North Korea’s Penal Code classifies detention in three cate- gories (Art. 184): “physical detention (Art. 185~188),” “house arrest (Art. 189),” and “confined-area detention (Art. 190).”
In its 2004 revision of the Criminal Procedure Law, North Korea also classified search and seizure regulations in more detail:
Prior to search and seizure the agent must submit a form and obtain a prosecutor’s approval authorizing the seizure (Art. 271).
Before the actual search and seizure, the agent must present the authorizing document in the presence of two independent wit- nesses (Art. 218 and 221).
The revised law requires enforcement officials to observe legally prescribed procedures in investigations and arrests. There are also many provisions prohibiting torture and other inhumane treatments. In connection with the interrogation of suspects, Article 167 specifically stipulates that “the pretrial agent should not
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obtain the suspect’s admission of guilt using leading questions or through forcible means.” Article 229 also stipulates that “In the process of interrogation, the witnesses or suspects should be pro- tected from the use of force or intimidation.” Meanwhile, the 2004 revision of the Penal Code contains many provisions designed to punish those who employ illegal methods of interrogation, stipu- lating that “If a law enforcement official exercised unlawful meth- ods of interrogation or willfully exaggerated or fabricated facts, he would be charged with up to five years of correctional labor. If the suspect’s health were harmed or he was criminally charged by the foregoing methods, the law enforcement official would be charged with five to ten years of correctional labor. In serious cases, he would be punished with correctional labor in excess of ten years (Art. 253).” If a law enforcement official has “illegally arrested or detained a person or searched the person’s home, or seized or con- fiscated his property,” he may be charged with up to two years of correctional labor. If he repeated the offense, or if his actions caused a public controversy, up to three years of correctional labor might be imposed (Art. 252). North Korea’s Penal Code and Crim- inal Procedure Law have been revised several times since 2004, but these provisions still remain in the current laws, including the Criminal Procedure Law as revised in 2006 and the Penal Code as revised in 2009.
Despite these revisions in the Criminal Procedure Law the possibility of human rights violations still remains. As pointed out earlier, it is mandatory under the law to present appropriate prose- cutor-authorized documents prior to making arrests, detaining suspects, and searching or seizing property. However, under the same provisions the investigators or pretrial agents are not required to obtain arrest or search warrants from a court for 114
enforcement measures such as arrests, investigations, searches and seizures. It is also widely known that laws are not faithfully fol- lowed throughout the enforcement process, even though the law clearly prohibits any violation of human rights or the liberty and security of a person.