The Reality of Civil and Political Rights
A. Liberty Rights and Detention Facilities under the North Korean Penal System
Liberty Rights under the Penal 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, provides that no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. Article 7 of the International Covenant on Civil and Political Rights also stipulates that no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. Furthermore, it is stipulated in Article 9 that no one shall be subjected to arbitrary arrest or detention. Furthermore, in Article 20 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
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Article 5 of the Universal Declaration of Human Rights, the UN adopted the Convention against Torture and Cruel, Inhuman or Degrading Treatment or Punishment at the General Assembly held on December 10, 1984. In 1993 the Vienna Declaration and Programme of Action 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.
Theoretically, the freedom of habeas corpus in North Korea is guaranteed in the revised Socialist Constitution of September 1998.
Article 79 declares that, unless based on the law, citizens shall not be arrested or imprisoned, nor their homes searched. In 1992, North Korea revised its criminal procedure law and added a provision guaranteeing human rights during criminal procedures. This provision survives as Article 5 in the 2004 criminal procedure law.
In the 1999 version, “investigation” and “preliminary examination”
had been combined into one chapter (Ch. 4), but the 2004 revision has 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 examination (Sec. 1), 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 investigations and preliminary examinations.
In the 2004 criminal procedure law, arrest and detention procedures are laid down in separate articles of the law. As the Constitution stipulates, the criminal procedure law also specifies,
“No one shall be arrested or detained in a manner not provided for
II. The Reality of Civil and Political Rights
in the law or without following the procedures prescribed in the law (Art. 177).” Moreover, the law clearly stipulates that no arrest shall be made without a warrant, and only investigators and “pretrial agents” can make the arrest (Art. 180). Specifically, Article 181 stipulates 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 informing a detainee’s family subsequent to an arrest. Perhaps for this reason a new provision (Art. 183) was installed, stipulating that “A suspect’s family or organization shall be notified within 48 hours of arrest of the reasons for and the place of detention.” It would be necessary to confirm if this provision will also apply in the case of “family notification” of a missing person charged with political crimes.
North Korea’s Penal Code classifies detention in three categories (Art.
184): “physical detention (Art. 185-188)”, “house arrest (Art. 189)”, and “confined-area detention (Art. 190).”
In its 1999 revision of criminal procedure law, North Korea also had 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 witnesses (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 inhuman treatments. In connection with the interrogation of suspects, Article 167 specifically stipulates that “the pretrial agent should not obtain the suspect’s admission of guilt using leading questions or through forcible means.” Article 229 also stipulates that “In the process
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of interrogation, the witnesses or suspects should be protected from the use of force or intimidation.” The revised Penal Code of 2004 contains many provisions designed to punish those who employ illegal methods of interrogation, stipulating that “If a law enforcement official exercised unlawful methods 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, detained, or searched the person or his home, or seized or confiscated his property,” he would be charged with up to two years of correctional labor. If he repeated the unlawful acts, or his actions caused a public controversy, up to three years of correctional labor would be imposed (Art. 252). As a result, all unlawful acts in the process of arrest, detention, search and seizure are now subject to punishment. Under the revised Penal Code and criminal procedure law, the rights of suspects have been clearly set forth in the process of arrest, detention, search, and seizure. Torture and other illegal techniques of interrogation have been banned.
Despite these revisions in the criminal procedure law there still remains the possibility of human rights violations. As pointed out earlier, it is mandatory under the law to present appropriate prosecutor-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 enforcement measures such as arrests, investigations, searches and seizures. It is
II. The Reality of Civil and Political Rights
also widely known that laws are not faithfully followed throughout the enforcement process, even though the law clearly prohibits any violation of human rights or the liberty and security of a person.