[Follow-up Information/Individual Complaint} Disciplinary Action on Minbyun Lawyers

2015년 10월 30일 이동화 186

Follow- up Information:

Individual Complaint submitted on 22 October 2015 to

o   The Special Rapporteur on the Situation of Human Rights Defenders

o   The Special Rapporteur on the Independence of Judges and Lawyers

29 October 2015 

Submitted by

MINBYUN—Lawyers for a Democratic Society

Seoul, Republic of KOREA

Contact Information:

Mr. Donghwa Lee

dhlee@minbyun.or.kr + 82 10 9947 9920

 

Disciplinary Action against Minbyun-Lawyers

Summary of Case previously submitted 

Ms. In-sook KIM, defense attorney, advised her protestor-client who participated in a rally relating to the Sewol ferry incident to exercise the right to remain silent in the interrogation process. The Prosecutor’s office accused Mr. Kyung-wook JANG, defense attorney, of making his suspected-spy client falsely confess, which is not true. However, the Prosecutor’s Office claimed that acts of both attorneys hindered on-going criminal investigation and violated professional ethics under Attorney-at-Law Act, Article 24.

(KBA) for disciplinary action against the two lawyers. On 27 January 2015, KBA dismissed the request. 13 February 2015, the Prosecutors’ Office requested again, but on 30 March 2015, KBA maintained its previous decision and rejected the request. On 11 May 2015, the Prosecutors’ Office appealed to the Attorney Disciplinary Committee at Ministry of Justice (hereinafter the “Committee”) for disciplinary action.

New Development

Despite KBA’s decision, the Committee initiated disciplinary procedures against the two lawyers on 21 July 2015.

On 27 October 2015, Ms. KIM and Mr. JANG submitted a lawsuit to the Seoul Administrative Court against the Committee’s decision of initiation the disciplinary procedure. Both requested in their submission that the Court nullify and cancel the Committee decision and initiation of disciplinary procedures.

Problems and Concerns

Appeal submitted by the Prosecutors’ Office lacks legal grounds, and the Committee under the Ministry of Justice should not exercise its jurisdiction over the appealed case that is dismissed by the KBA. On 12 January 2015, the KBA announced the Prosecutor’s Office shall not submit its request to the Committee under the Ministry of Justice when KBA has already rejected its first request. Attorney-at-Law Act, Article 100, Clause 1, which defines the procedures and limits of the Prosecutor’s Office’s appeal to the Ministry of Justice, only applies when disciplinary procedures have started. In this case, since disciplinary procedures have never started, KBA’s rejection means that the case closed. Therefore, the decision of the Committee is illegal and clearly invalid.

In addition, the Committee is composed of nine members. The Minister of Justice shall become a chairperson. The Minister of Justice appoints two judges from among judges recommended by the Minister of Court Administration, two public prosecutors, and one lawyer from among lawyers recommended by the President of the Association, three persons from among law professors or persons with good reputation, who are not a lawyer. There is grave concern that the disciplinary consideration against both lawyers shall not be fair and independent. It is because we believe that both lawyers has been targeting from the Government because of nature of their work that went against its action by offering their clients legal assistance.

In the latest UN Human Right Committee’s fourth Country Review on the Republic of Korea, Sir Nigel Rodley, a member of the Committee expressed his concerns upon the violation of the lawyer’s right, demonstrated in the current case.

Suggested Recommendations

  Therefore, MINBYUN respectfully requests that the Special Rapporteur on the Situation of Human Rights Defender and the Special Rapporteur on the Independence of Judges and Lawyers:

–          Draw the special attention on this issue and send official letters to the Government of Republic of Korea asking for more detailed information and clarification.

–          Take into account the press release to urge the Government of Republic of Korea to comply with international standards regarding the independence of judges and lawyers.

–          Carry out the Country visit to analyze and investigate the situation on the Minbyun lawyers, as well as the relevant cases including the National Intelligence Service of Korea interviewing career judges on recruitment.