Testimonies Testifier ID A Communist Party personnel, who was ordered to be
deported in 2015 for divorcing his wife, defected North Korea.
NKHR2017000033 2017-06-05 A testifier witnessed two members from Unhasu Orchestra
who were deported to Kwibong-ri, Pungso County, Yanggang Province, from Pyongyang, in 2015.
NKHR2017000097 2017-10-23 In October 2016, a senior official of Yanggang Province was
deported to Unhung County, Yanggang Province, for commenting that the performance by an artist group, whom Kim Jong Un complimented, was not good.
NKHR2017000126 2017-12-18
C. Restrictions on Entry to Border Areas and
passports: diplomatic passport, government official passport, and traveler passport. Diplomats are issued diplomatic passports, government officials working at party organizations or espionage are issued government official passports, and residents traveling abroad, for example, to visit relatives are issued traveler passports.
Traveler passports are limited to those who are visiting their relatives in China. Their personal documentation should provide basic information, such as the name and address of the relatives in China. North Koreans at the age of 70 and below can visit their relatives once every three years.111 There were testimonies that there is an internal regulation within the foreign affairs section of the MSS limiting the minimum age for passport issuance to 50.112 However, it appears that this regulation is ill-enforced because there are numerous cases where officials are bribed to bypass such rule.113 To get a passport issued, an invitation from China is required, and this invitation needs to be validated by a manager of a company/organization, MPS officer, MSS agent, etc. This is followed by final validation by an MSS foreign affairs officer and final approval by the vice leader of the MSS, which requires a statement from the applicant promising not to damage the reputation of the DPRK and to come back within the authorized period. In
111_NKHR2014000023 2014-04-01.
112_NKHR2014000044 2014-04-29; NKHR2014000080 2014-07-01; NKHR2015000043 2015-02-24.
113_The testifier was 35 years old by the time he/she obtained the passport and had to bribe the MSS officer to get the passport. NKHR2015000070 2015-04-07.
reality, however, passports are only issued to people of special ranks, including diplomats, public officials, people working overseas, and students studying overseas, while the general public would rarely get a chance to come across an actual passport. In fact, the interviewed North Korean defectors who had the experience of getting a passport issued were those who were assigned to government work, and it was very rare that they got their passport for traveling or private business.114
Other than a passport, there is a document called “border area immigration document.” The residents living in the border regions can receive this document when they are going abroad (China) for a short duration to visit their relatives or to carry out small-scale trading. According to Article 13 of the Immigration Law, North Korean residents can get the border area immigration document issued for public affairs or private matters. If the purpose of issuance is to visit relative in China, invitation is required as per traveler passport. For border trade, river-crossing pass (dogangjeung) are issued and this does not require invitation from China. These river-crossing pass are known as a short-term pass that allows crossing of borderline for 24 to 48 hours. One thing that makes the border area immigration document different from a passport is that it is issued at both city and province level MSS, and not the
114_NKHR2015000001 2015-01-13; NKHR2015000070 2015-04-07; NKHR2015000158
central MSS. In this respect, it appears that this document is easier to obtain than passports.
Those who cross the border illegally without legitimate documents will be imposed a fine and will be forbidden to leave the country (Article 55 of the Immigration Law), and punished according to the Criminal Law. Article 221 of the North Korean Criminal Law (Charges of Illegal Border-Crossing) states that those who commit the crime of illegal border-crossing are subject to “labor training punishment up to a year.” If the crime is serious, they will be subject to “correctional labor punishment of five years or less.”
Despite the prohibition and punishment, defection continues because there is no legal method to cross the border. Ultimately, North Koreans must resort to bribery to receive the necessary documents needed to cross borders. One North Korean defector testified to having bribed an official 3,000 Chinese yuan in 2012, to get a passport required to visit a relative who was an ethnic Korean living in China.115 As the price for border-crossing increases, North Koreans who went to China end up staying longer in order to earn more money to make up for the payment and, because of this, many of them are left in China as illegal aliens. A state has the responsibility to provide citizen necessary documents needed to enter and exit one’s country. North Korea has failed to carry out such responsibility. Furthermore, North Korean authorities’
115_NKHR2012000103 2012-06-05.
control of over one’s border-crossing is a serious violation of the freedom of movement.
D. Evaluation
The 2017 survey assesses that the right to freedom of movement and residence of the North Korean people is seriously infringed upon by the policies of the North Korean authorities. A case in point is the restrictions on the right to freedom of movement through maintenance of the travel permit system and crackdowns by zone. Forced deportation and restrictions of access by groups of people designated by the State as being disreputable continue to occur. Even though less defectors and their families are being forcibly deported as a punishment for their defection, this does not mean human rights situations are improving, rather it seems the capacity of North Korean authorities to accommodate deported residents is not sufficient. In fact, a decrease in forced deportation has led to an increase in border control. In this respect, the freedom to movement for North Korean people still appears to be seriously infringed upon. The international community should make efforts to improve freedom of movement and residence in North Korea not only because it is a basic human right, but also because it would provide opportunities for North Koreans to change their way of thinking through contact with the outside world.
7
Right to a Fair Trial
Article 10 of the UDHR stipulates that “everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of their rights and obligations and of any criminal charge against them.” Article 14 of the ICCPR also stipulates that State Parties shall guarantee the right to a fair trial through each state’s judicial system. The right to a fair trial is a key element in protecting human rights and plays a role as a procedural tool to advocate the rule of law.116 Article 14, paragraph 1 guarantees the right to equality in trials, the right to a fair trial in all kinds of lawsuits, and the right to public trials.
Articles 14, paragraphs 2 to 7 stipulates the minimum rights that should be granted to suspects and defendants in the procedure of criminal trials.
116_UN Human Rights Committee, General Comment, No. 32 (2007), para. 2.
TableⅡ-28 Article 14 of the ICCPR
Paragraph 1
All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. (The rest is omitted)
Paragraph 2 Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.
Paragraph 3
In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality:
1. To be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him;
2. To have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing;
3. To be tried without undue delay;
4. To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing (The rest is omitted);
5. To examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
6. To have the free assistance of an interpreter if he cannot understand or speak the language used in court;
7. Not to be compelled to testify against himself or to confess guilt Paragraph 4
In the case of juvenile persons, the procedure shall be such as will take account of their age and the desirability of promoting their rehabilitation.
Paragraph 5 Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law.
Paragraph 6
When a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to law. (The rest is omitted)
Paragraph 7
No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country.
This chapter will examine the major issues related to the right to a fair trial in North Korea.