The Reality of Civil and Political Rights
A. North Korea’s Criminal Law and Human Rights
•North Korea’s Criminal Law
The Universal Declaration of Human Rights (Article 11 (1)) and the International Covenant on Civil and Political Rights (Article 14 (2)) proclaim the principle of legality, stipulating that no one shall be held criminally accountable for any act or omission which did not constitute a crime at the time when it was committed.
The revised 2004 version of the North Korean Penal Code was evaluated positively: It systemized provisions, adopted the principle of nulla poena sine lege(no criminality without prescribed laws), deleted articles allowing for analogous interpretation, reor- ganized criminal punishments and specified mens rea and actus reus(elements of a crime to determine whether an act constitutes a crime).
Despite these improvements, however, North Korea’s Code still has many problems. First, it adheres to class lines, stipulating
3
The Right to Due Process of the Law
that “In the fight against crime, the state adhere to working-class principles and applies legal sanctions with the main focus on social education” (Article 2).
Second, North Korea’s Penal Code allows an exception to the statute limitations for anti-state or anti-nation crimes and deliberate violent crimes such as murder, thus there is no statute of limitations for these crimes (Article 57).
Third, while some specified components of North Korea’s revised 2004 Penal Code have been positively evaluated, there are also some vaguely defined which inevitable will lead to arbitrary interpretation.
Fourth, the Penal Code systemizes a guilt-by-association system for anti-state and anti-nation crimes. It includes articles designed to punish those who help conceal others who commit anti-state and anti-nation crimes, either actively or passively neglecting to inform the authorities about them.210
The 2011 survey of 80 North Korean defectors’ testimonies shows that Kim Jong-il’s words and directives are the law in North Korea. In response to the question, “What did you think constituted laws while you were living in North Korea?” 90.5% of respondents indicated Kim Jong-il’s words and directives; 86.5% of respondents indicated decrees by the Ministry of People’s Security; 79.7% indi- cated national laws, including the Socialist Constitution and the Penal Code; 77% indicated orders issued by the National Defense Commission (NDC); 74.3% indicated Party directives; 71.6%
indicated the Ten Principles; and 56.8% indicated the directions and instructions of the Cabinet. In regards to which laws have the greatest influence on daily life, respondents first prioritized the
210_Lee Gyu-chang and Chung Gwang-jin, op. cit., pp. 16~19.
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169 words and directives of Kim Jong-il, followed by the orders of the Party, followed by the decisions of the Cabinet, followed by the Socialist Constitution (general law).211
•North Korea’s Criminal Procedure Law
North Korea’s Criminal Procedure Act was completely revised on May 6, 2004, and partly revised again on July 26 and October 18 of the same year. The Criminal Procedure Act of 2005 made far more progress than the earlier version in guaranteeing human rights. In particular, the detainment period for suspect undergoing interrogation and awaiting trial was shortened, and the period of confinement for indictments and trials was specified.
Some articles contribute to guaranteeing human rights: for instance, it forbids making arrest without a warrant or using statements made under duress.
Despite the improvements, North Korea’s Criminal Procedure Act of 2005 still has the following limitations in terms of protecting human rights in the course of due criminal procedure.212First, the Criminal Procedure Act allows for people to be arrested and confined during the course of investigation and without judicial deliberation by a court of justice. This raises the serious problem in that the right to legal representation is not at all guaranteed during the investigative phrase or early pre-trial procedures, when an attorney’s assistance is most needed.
211_Choi Bong-dae, Case study on North Korean Defector’s Legal Perception(Seoul:
Ministry of Unification of South Korea, 2011), pp. 10-12.
212_Han Myeong-seop, Comprehensive Issues on Exchange between North and South Korea (Paju: Han-ur-a-ka-de-mi, 2008), pp. 30-32; Ministry of Court Administration, North Korea’s Criminal Law(Seoul: Ministry of Court Administration of South Korea, 2006), pp. 25-26.
Second, opening trial proceedings to the public is essential to the transparency and fairness of trials. Accordingly, Article 271 makes public exposure the norm but permits broad exceptions, including the protection of state or personal secrets and the preven- tion of socially harmful effects.
Third, North Korea’s criminal procedure still falls short in terms of maintaining the principle of due legal procedures because it omits any provision in terms of legal confinement and fails to address rules for the the presumption of innocence and hearsay.
In addition, the law has still many problems in terms of original jurisdiction, the independence of the judiciary and the appeal process, which will be discussed in the following sections.
• North Korea’s Judicial System
<Composition of the Court and Jurisdiction>
In North Korea, a criminal cases may be reviewed by three levels of courts: the Supreme Court; the provincial or direct- governed city court; and the city, district, or county people’s court.213There are also two kinds of special courts - military and railroad courts. The Supreme Court (previously the Central Court)214 rules on appeals and objections raised over the cases tried by provincial or direct-governed city courts and by railroad courts.
However, if necessary, the Supreme Court may try any case under
213_With regard to special trial, North Korea established Maritime Procedure Relations Act on January 19, 2011. The law establishes the Court of Admiralty as a special civil court.
214_The current Socialist Constitution refers to this body as the Supreme Court, but other laws and regulations including the Court Organization Act and the Criminal Procedure Act still refer to it as the Central Court. The related laws and regulations will be soon revised pursuant to the Socialist Constitution. Hereinafter we shall refer to the Central Court as the Supreme Court in quoting related laws and regulations.
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171 the trial jurisdiction of any court or transfer a case to another court of the same level or type (Article 129).
Provincial and direct-governed city courts are the first to try cases of crimes against the state or the people as well as general criminal cases for which the death penalty or a life term of discipli- nary prison labor is sought. The provincial and direct-governed city courts serve as appeals courts for cases tried in the people’s courts within the province or direct-governed city. However, if necessary, these courts may directly try a case within the people’s court’s jurisdiction or transfer a case to another people’s court (Article 127). The people’s courts are the first courts to try general criminal cases that do not fall under the jurisdiction of the special courts or the Supreme Court (Article 126).
Since a criminal case may be reviewed twice in North Korea, any case can be reviewed after the first trial by a higher court, except for those the Supreme Court tries itself. This distinguishing feature of North Korea’s judicial system gives higher courts broad and influential authority. That is to say, a higher court may be the first to try any case under its own trial jurisdiction or move the case to another court of the same level or type.
In North Korea, in principle, each criminal case is reviewed twice in a system of three levels of courts. However, since the case may not be reviewed again, this system can be considered insufficient in terms of protecting human rights and remedying violations of private rights. In addition, a special article of North Korea’s Criminal Procedure Act allows courts to try criminal case that fall under the trial jurisdiction of other courts, if necessary. This renders principles of subject matter jurisdiction and instance jurisdiction meaningless in practice. The expedient and arbitrary selection of jurisdiction may enable more prompt and fair trial procedures, but it can also
be an obstacle to improving the human rights of North Korean residents.215
<Organization and Independence of Court>
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 principle, prosecutors and lawyers are to attend court hearings (Article 267 of the Criminal Procedure Act). North Korea denies the independence of the courts, viewing them as vehicles through which the Party may exert influence or guidance over trials. Legally, judges are to be elected by North Korean citizens. In reality, however, Kim Jong-il or the Korean Workers’ Party controls the legislative power of the Supreme People’s Assembly (SPA), the representative organ of supreme sovereignty, based on the principle of centralism and the Party’s predominance. The Party also supervises the selection and duties of deputies of the SPA. The Cabinet and the Supreme Court members are also selected by the SPA and held accountable to it. “The Supreme Court shall be accountable for its work to the SPA and to the Presidium of the SPA when the SPA is in recess” (Article 168 of the Socialist Constitution).
North Korean laws stipulate that the courts are to conduct independent judicial proceedings and carry out judicial activities according to the law (Article 166 of the Socialist Constitution, Article 272 of the Criminal Procedure Act). However, it does not
215_Lee Gyu-chang and Chung Gwang-jin, op. cit., pp. 56-57.
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173 guarantee an individual judge’s independence, but rather proclaims the independence of the judiciary as an organizational structure.
Thus, it cannot be seen as truly guaranteeing the independence of the judiciary.216 Article 11 of the Prosecutory Supervision Law stipulates that a prosecutor shall consider each case to determine whether a hearing has been conducted at the right time and in the correct way as required by law. As such, the prosecution has authorities to consider trials and cases under arbitration and thus participate in the proceedings of a case. Judges seem to be subor- dinated to prosecutors in North Korea’s judicial system.217
<The People’s Jury System>
As part of its trial system, North Korea has adopted a “people’s jury” system. The people’s jurors enjoy the same status as the judge.
At every level of trial, these jurors may exercise a judicial right to interrogate the accused. Each trial and sentencing hearing should be attended by one judge and two people’s jurors.
This system would appear, at least in form, to follow some- what the jury system of Anglo-American courts. However, in reality it is a system employed to exercise the Party’s control over the judicial system. There are no specific standards for the qualification of people’s jurors except that they must be North Korean citizens who are qualified to participate in elections (Art. 6, Court Composition Law).
In fact, their primary role is not to provide a fair and objective trial but to rubber-stamp the conviction of the accused wrongdoer.
216_Ibid., pp. 49-53.
217_Kim Dong-han, “Trend and Evaluation of North Korea’s Judicial Laws,” Division of South and North Korea for 60 years: Past and Present of North Korean Law, Year 2005 Academic Conference Proceeding of the Korea Society of North Korean Laws Studies, 2005.
•Trial Procedures
<Investigation, Pretrial Examination and Indictment>
In North Korea, a criminal case starts with an investigation.
There is a system called “Yesim” or “pretrial examination,” which occurs between investigation and indictment phases in North Korea’s judicial system. The pretrial examination is the process of confirming the suspect and compiling the details of the criminal case fully and accurately. Once a suspect has been taken into custody in one of the above situations, an investigator must draw up a custodial decision document within 48 hours, receive the prosecutor’s authorization, and pass the case onward to pretrial examination within ten days of the arrest. If the above authorization is not given or if there is no confirmation of the suspect’s complicity in the crime within ten days, the pretrial agent must release him/
her immediately (Article 144). The pretrial agent must finish the examination within two months of the start of the pretrial examina- tion. Cases which warrant disciplinary prison labor terms must proceed within 10 days (Article 151).
Once the case record of the pretrial examination is confirmed, the case is brought to court. The prosecutor must process the case within 10 days of receiving the record from the pretrial agent. If the case warrants disciplinary prison labor, it must be processed within three days (Article 262). The suspect may be detained for three days for the purpose of indictment if the case warrants disciplinary prison labor (Article 263). The prosecutor then produces a bill of indictment, and brings the case to court (Article 265).
<The First Instance of Trial>
The first trial begins with a trial preparation phase. Before
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175 the trial examination, the presiding judge may review the scene of the crime and evidence, checking whether there was adequate inquiry into the crime during the pretrial phase, whether there are grounds for indictment, whether the Penal Code was applied correctly, and whether the interrogatee should be detained (Article 291). If the judge ascertains that the pretrial examination was adequate, the interrogatee is then tried by the court. If not, the case is returned to the prosecutor (Article 292, Article 293)
This trial preparation process can be considered an interme- diate phase in the process of transferring a case to the trial following the review of the investigation record, the pretrial examination, and the indictment, not as a new examination of the case. This seems to be a way for the prosecutor and the court to reach a common opinion about the punishment and a prison term of the accused before the trial starts.218
The first trial proceeds through the following five steps:
initiation of examination, examination on the facts, argument and defense, the accused’s final statement, and finally the ruling (Article 301). Article 271 establishes public examination as the norm while permitting broad exceptions, including the protection of state and personal secrets and the prevention of spreading information that may have socially harmful effects.
The first trial must conclude the examination phase within 25 days of filing of case records. The exception is when the crime warrants a sentence of disciplinary prison labor, in which case the trial hearing must be concluded within 10 days. In particularly complicated criminal case, the trial hearing can be extended for up
218_Kim Sang-gyun, “North Korea’s Judicial System,” Issues related to Exchange between South and North Korea No. 6(Seoul: Ministry of Court Administration of South Korea, 2007), p. 61.
to five days (Article 287).
<The Second Trial>
The defendant, his lawyer, or those claiming damages can appeal a sentence to a higher court after the first trial. This is called an “appeal,” while an abppeal by the prosecutor is called an
“objection” (Article 357). The appeals court reviews case records and the appeal materials to determine whether the original ruling followed the requirements of the law and were based on scientific evidence, and corrects errors, if any (Article 364). The court of the second trial does not hold a new hearing. It reviews the case records and the appeal materials to determine whether the trial court’s ruling followed the requirements of law and were based on scientific evidence, and corrects errors, if any (Article 370). The second trial court must proceed with the trial within 25 days of receiving the appeal document (Article 366).
•The Reality of the Criminal Trials
It is difficult to closely examine the trial process in North Korea. Thus far none of the North Korean defectors have experiences working as a prosecutor, a judge, a people’s juror, or an attorney in North Korea. Most defectors do not have special legal knowledge and thus there are many contradictory testimonies about the trial process.
<Court Participants>
North Korean defectors have testified that the level of punish- ment is decided during the pretrial examination or an investigation stage, without the presence of judges or people’s jurors. This indicates
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177 that the court and the prosecutor reach on about sentencing and prison terms during the trial preparation phase.
– Defector XXX, who left North Korea in January 2010, testified about her trial experience. A prosecutor and two pretrial agent determined her sentence of correctional prison labor during the pretrial stage.219
However, others have testified that due criminal trial proce- dures are formally observed, and in these testimonies the trial participants seem to be different.
– Defector XXX testified that he/she was arrested while attempting to escape from Pohangguyeok Corrective Labor Camp, underwent a pretrial examination, and was sentenced in court to three years imprisonment. He/she testified to standing trial alone before a prosecutor and a judge at the Pohangguyeok Court of Justice.220
In North Korea, some cases can be found from defector’s testimonies where criminal trial procedures are formally observed as stipulated in the Penal Code, the Criminal Procedure Act, the Court Composition Law, and other laws.
– Defector XXX testified to undergoing a pretrial examination for two months at the Musan-gun Court of Justice in May 2007. Five people, including a vice chief of justice, two people’s jurors, an attorney and a prosecutor, participated in the trial. The trial process consisted of the prosecutor’s argument, the attorney’s defense, and judgement of the vice chief justice and people’s jurors.221
219_NKHR2010000089 2010-06-08.
220_Interview with defector XXX in Seoul on March 10, 2007.
221_NKHR2008000022 2008-11-05.
However. some testimonies show that trial processes only occur on paper.
– Defector XXX testified that he/she was arrested for entering a South Korea embassy in China and deported to North Korea on May 1, 2004. He/she no with no due trial process before being sentenced to one year imprisoned at the Bukchang- gun People’s Safety Agency. He/she testified that the trial was done only on paper, without a lawyer’s presence.222
– Defector XXX testified that he/she had been detained in Jeungsan Correctional Center from July 12, 2000 to December 24, 2004 for crossing the border illegally and attempting to enter South Korea. He/she was sentenced to a year of correctional prison labor, but this was done only on paper, with no trial. The Ministry of People’s Security agents of the camp told him/her, “You can stay here only for one year, but those people whose crimes have rebellious elements must stay here longer.” In the end, he/she was released after one year, five months and twelve days.223 – Defector XXX testified that he/she was caught while illegally
crossing the border and detained in Hweryeong State Security Agency for a month before being transferred to the City People’s Agency. He/she testified that he had no trial because defection cases are processed without any formal trial, only some paperwork.224
<Trial Procedure>
It is still very common in many cases for due process to be
222_Interview with defector XXX in Seoul on March 7, 2007.
223_Interview with defector XXX in Seoul on February 28, 2007.
224_Interview with defector XXX in Seoul on January 16, 2008.
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