1. The government of the Republic of Korea submitted the Written Answer on Oct. 10, 2008 for the Urgent Appeal on July 10, 2008 by the Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression and the Special Rapporteur on the Situation of Human Rights Defenders and for the Letter on July 28, 2008 by the Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression, the Special Rapporteur on the Question of Torture and the Special Rapporteur on the Situation of Human Rights Defenders. The object of this Statement is to set forth NGO’s opinions on human rights violations related to the candlelight rallies to the Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression, the Special Rapporteur on the Question of Torture and the Special Rapporteur on the Situation of Human Rights Defenders comprising Korea NGO’s refutation on the Government’s Written Answer on Oct. 10, 2008.
Outline of the Statement
Regarding the government’s assertion that the candlelight rallies are illegal
2. The government insists in its Written Answer that the candlelight rallies be illegal and violent; the law enforcement actions of the police thereafter were legitimate. The grounds for the government’s alleged candlelight rallies illegality are occupying main roads in Seoul, marching toward Cheong Wa Dae, and damaging police buses and the bus barricades.
3. According to the Assembly and Demonstration Act, legal ground for candlelight rallies illegality, it is impossible to legally assemble in a massive scale in a city. The Act prohibits using main roads in a city, assembling within 100 meters of the border of main public offices and assembling after sunset, which are the causes for police authority to disapprove assemblies when they are reported in advance. The Act has possibilities of violating human rights with too wide scope of limitation and police discretion that disenable legal assemblies. There is no place in Seoul to gather over 20,000 persons, estimated by police, not occupying main roads. What is more, Seoul authorities blocked the protesters to use Seoul square and requested for indemnity for using it simultaneously, thereby conducing them to use main roads ultimately.
4. The government states in the Written Answer that the law enforcement actions were inevitable and were in accordance with the International Covenant (Article 24 of the Government’s Written Answer for the Letter on July 28, 2008, hereafter referred as “the Government’s Written Answer”). However, Human Rights Council adopted its Concluding Observation in 1802 Session in 1999 that prohibiting assemblies in main roads infringes the International Covenant on Civil and Political Rights.[1] Moreover, the article 9 of Conclusion in the Report of the Working Group on the Universal Periodic Review (A/HRC/8/40) in the 8th Session of the Human Rights Council recommended legalization of the freedom of assembly and demonstration. The Korean government makes little efforts to revise the law, rather limits the freedom of assembly and demonstration using the Assembly and Demonstration Act, it has been a long time since the Assembly and Demonstration Act was pointed out for discordance with the International Covenant, though.
5. The provision ‘prohibiting nighttime assembly’ in the Assembly and Demonstration Act is on pending in the Constitutional Court by Judge Mr. Jae-Young Park(Single Judge of Criminal Division #7 of Seoul Central District Court)’s recommendation for adjudication on the constitutionality on Oct. 9, 2008. (See Article 14 of this Statement for details) Therefore, the government’s assertion that the candlelight rallies are illicit is inappropriate for the Assembly and Demonstration Act, the premise of candlelight rallies illegality failed in agreeing with the International Covenant and the Constitution of Korea.
Regarding the government’s allegation on violent protest
6. The government set forth breaking the windows of police buses, attempting to dismantle the bus barricades, and using iron pipes, etc. as examples of violent protest. That just a few protestors out of tens of thousands of peaceful protestors turned into violence is the government’s excuse for claiming the illegality of whole candlelight rallies which started since May 2, 2008 and lasted over 100 days. The violence of the few cannot be a reasonable ground for the law enforcement actions like banning, regulating, suppressing, and punishing the whole protesters. If the government places a ban or punishes protestors for this reason, large-scale assemblies are ultimately interdicted for a few violent protestors characterize the protests.
7. The point is that whether the law enforcement actions were inevitable and adequate responses or abuse of public power. Over 1,500 persons were arrested, under summary indictments, or indictments with or without detention for participating in candlelight rallies. In the case of passive involvement, more than 1.5 million won of penalty is imposed. Compared to admonition and release in the military dictatorship in 1980s, those who passively involved in the candlelight rallies faced excessive punishment.
Regarding the government’s allegation that the NGOs appeal was inappropriate to render an impartial and fair decision
8. The NGOs appeal in collaboration of NGOs on human rights violation during candlelight rallies (Urgent Appeal on July 14, 2008, Additional Information on July 25, 2008, 3rd Additional Information on Aug. 8, 2008, and 4th Urgent Appeal & Midterm Report on Sep. 12, 2008) is based on an inquiry into human rights violation by law enforcement actions, originally intending to publicize the protestors’ damage incurred by law enforcement actions. It is regrettable that the government was unable to understand the intention of NGOs written statement or seems to undermine the authenticity of the NGOs written statement by replying that “it is impossible to render an impartial and fair decision…for emphasizing unilateral information… (Article 2 of the Government’s Written Answer).”
9. Although a number of organizations including Amnesty International, Forum Asia, and National Human Rights Commission of Korea recognized that the Korean government had violated human rights of protestors by excessive law enforcement actions, the Korean government did not accept the investigation result. Instead, it persistently announced its official opinion that the law enforcement actions were done legally and NGOs Written Statement was biased. This illustrates that Korean government fails to accept the minimum standard for securing human rights home and abroad.
Regarding the government’s allegation that law enforcement actions were legitimate
10. The government insists in its Written Answer that “PD Suchop” exaggerated the dangers of the disease without scientific evidence, and it played a direct role in igniting candlelight rallies later on. (Article 7 of the Government’s Written Answer) Ministry for Food, Agriculture, Forestry and Fisheries has called on MBC, Abbreviation for Munwha Broadcasting Company, one of the major broadcasters in Korea, to correct and report on the contents of PD Suchop. The court has not decided whether PD Suchop made a false report on the danger of mad cow disease, and the controversy is still going on. The press has the authority and mission of its own to raising criticism against the government. PD Suchop made its utmost effort to criticize and monitor the government’s wrong policies by publicizing the problematic quarantine and slaughter system of U.S. beef and the government’s clumsiness in the U.S. beef negotiation process. The government assumes that if it had not been for PD Suchop, the candlelight rallies would have not been triggered. The government only tries to put forth simple logic to shift responsibility on the investigative news show, neglecting to think about what caused the citizens to hold candles.
11. In addition, Ministry for Food, Agriculture, Forestry and Fisheries requested prosecutors to investigate the PD Suchop for defamation. When the staff of PD Suchop refused to be summoned by prosecutors, they are conducting an investigation with political intention intensifying pressure on PD Suchop by issuing a mid-term report casting a doubt on the authenticity of PD Suchop. Aside from the legal principle of defamation that state organs mandated by the people shall not be the victim of defamation by any act of expression, the government’s accusation against an issue-making program can be interpreted into its intention to control the contents of programs critical of the government and gag the press, relinquishing its responsibility to pay attention to the public and answer for any fault it makes.
12. The government insists in its Written Answer that the initial candlelight rallies were held peacefully and quietly but transformed into unlawful and violent demonstrations. (Article 8 of the Government’s Written Answer) During the initial stage ranging from May 2, 2008 to May 23, 2008, the assembly is peacefully progressed with out any street demonstration for more than 20 days. However, during this period, the government only stuck to “mad cow disease myths” and did not respond to the citizen’s demand. It was the government’s attitude that made the citizens pouring out to the street.
13. In addition, by the use of excessive law enforcement actions, the police induced some active citizens into turning into violent. The government extensively violated the freedom of assembly by shooting water cannon towards the unprotected citizens and building container box barricades on the very central part of Seoul. Candlelight rally was a large-scale assembly of tens of thousands to hundreds of thousands of participants. Despite some violent citizens, peaceful atmosphere remained unchanged. When some participants used violence, citizens made an effort to keep peaceful assembly chanting “nonviolence.”
Regarding the government’s allegation that law enforcement actions were legitimate
14. The current Assembly and Demonstration Act that imposes a ban on nighttime outdoor assembly in principle and punishing for violating it has been under continual criticism for its constitutionality violating the freedom of assembly. In the course of the trial of Mr. Jin-Geol Ahn who had been arrested during candlelight rallies, Judge Mr. Jae-Young Park, who was in charge, made a request for adjudication on the constitutionality of the provision of the Assembly and Demonstration Act, which is now on pending in the Constitutional Court. Seoul Central District Court decided in its requesting decision for adjudication on the constitutionality that the provision ‘prohibiting nighttime assembly’ in the Assembly and Demonstration Act is “…against to the legislation purpose of lawmakers in the amendment of the Constitution on Oct. 29, 1987 who made efforts to retreive the freedom of assembly which was considered as a delict under a long autocratic and authoritative government in the past and which was empowering the most fundamental right to the minorities in politics. Considering that the freedom of assembly is the fundamental right with public characteristic for citizen attempting to participate in the formation of national and social opinions when representative organs disregard the opinions of political and social minorities justifying with an excuse ‘for the people,’ that conditional permission can be accepted restrictively with respect to time and place infringe the spirit of the Constitution can cause a tragedic result impeding realistic embodiment of liberal democracy and the ultimate social integration…… recognizing that after sunset and before sunrise which is almost a half day (with an instance of the winter solstice, sunrise at 7:43’:19”, sunset at 17:17’:16” thereby only 9 hours and 33 minutes 56 seconds is allowed for outdoor assembly) and therefore the amount of time restricted to stage outdoor assembly covers too wide range to be an exceptional condition, and considering that practically not a small number of people engage themselves in making their livelihood during the daytime, if the freedom of nighttime ourdoor assembly is restricted as above, the freedom of assembly – one of the fundamental political rights of citizens – would detertiorate into nominalism, the provision above cannot escape unconstitutionality.
15. The government is penalizing passive participants in candlelight rallies of hundreds of thousands of persons for “the obstruction of general transportation.”[2] In conclusion, although the government insists that it guaranteed peaceful candlelight rally “within the boundary of law” to the maximum extent possible, candlelight rally is definitely deemed as illegal because of the provisions of Assembly and Demonstration Act placing ban on nighttime outdoor assembly and the government’s application of “the obstruction of general transportation” just on the ground that the participants occupied the road during the assemblies of tens of thousands of persons. The Ministry of Justice foreshadowed excessive oppression by ordering prosecutors to “round up and deal with the ringleaders as well as instigators and masterminds of the illegal assemblies according to law” because “it is worried that the candlelight rallies are aggravated into illegal and violent assemblies with rampant political slogans and occupation of the road.”
16. From the initial stage of the candlelight rallies triggered amid the fear of “food” by middle and high school students, the government’s policy on suppression and legal action against the candlelight rallies have been discussed. For example, on May 6, 2008, in line with a high school third grader who filed a report on scheduled candlelight rallies against U.S. beef import, a detective from Intelligence Division at Deokjin Police Office of Jeonju called a student out of class and made inquiries into the story behind the candlelight rallies by asking him what organization he was working for, from whom he received order, how long he had been doing activities on the Internet, who the site owner was, etc. provoking nationwide wrath. (See the Money Today article dated on May 15, 2008)
http://www.viewsnnews.com/article/view.jsp?seq=34628
http://www.moneytoday.co.kr/view/mtview.php?type=1&no=2008051511543274543&outlink=1
17. In addition, on May 7, 2008, the police undertook a secret investigation on so-called “mad cow disease myths”(a student transferred a text massage “Student strike on May 17. Please pass this around”) and carried out an investigation on students by making a visit to a high school in Seong-nam City, Kyoung-ki Province and making a list of incoming numbers of text messages. They also asked the teaching staff to prohibit students from participating in the candlelight rallies. This action faced harsh criticism for severe infringement on the freedom of communication and expression. The student who transferred the text message was arrested and tried in criminal court. He proved innocent but prosecutors appealed to the higher court, so this case has appeals pending. (See the Seoul Shinmun article dated on May 8, 2008)
http://www.mediaus.co.kr/news/articleView.html?idxno=2661
http://www.seoul.co.kr/news/newsView.php?id=20080508009012
18. The government insists in its Written Answer that law enforcement actions were inevitable due to demonstrators’ violence (Article 11, 12, 13, 14 of the Government’s Written Answer) but participants wore no protective gear during the candlelight rallies. Majority of some citizens who wielded steel sticks or used hammers on police buses at the front were arrested and are now under trial in criminal court. Apart from this, the police made a claim for civil compensation against People’s Conference against Mad Cow Disease for the damage incurred during the assemblies.
19. Although the government emphasized the demonstrators’ violence in its Written Answer in an allegation that approximately 460 police officers suffered injury by the attack of demonstrators (Article 13 of the Government’s Written Answer), what caused that injury remains unclear. A former private first class of the riot police Mr. Gil-jun Lee who refused to suppress the protest and did not return to the police base insisted in the interview with Pressian on July 25, 2008 “What caused the most injuries is water cannon. I was hit hundreds of times. Many injuries happen when they are pushed rather than when they are hit by demonstrators. I’ve seen very few people injured around me. No one was injured among 60 persons in my unit.” (See the Pressian article dated on July 25, 2008)
http://www.pressian.com/scripts/section/article.asp?article_num=60080725133732
20. The police used police equipment aggressively on unarmed assembly participants, injuring large numbers one after another. The police used direct shots by water cannons, sprayed fire extinguishers towards the faces of the crowd, and even threw fire extinguishers, “steel pipes”, “bottles filled with sand”, and “paving stones” towards assembly participants without any protective gear. They committed violence on a member of the National Assembly who monitored infringement of human rights at the site, sprayed fire extinguishers towards newborn babies in baby carriages and suppressed demonstrations with the use of truncheons and the sharpened edge of the shield injuring a large number of citizens. For example, a combat police officer’s mother (Ms. Kyoung-Suk Kim, 46 years old) was standing on the sidewalk away from the site worrying about his son’s safety. Then, riot police officers rushed at her, kicked on the chest with combat shoes, stroke her on the head with shields, and trampled on her body.
21. According to a testimony, police violence was done with the command post’s connivance, aiding and abetting, or instigation. The former private first class of the riot police Mr. Gil-jun Lee mentioned above testified that he heard the commanding officer saying while giving orders to his men that “do not beat them because we’ll be in trouble” instead of “Neutralize demonstrators thinking about their safety” and “Watch out cameras”, and even “Just beat them, but be sure not to be seen.” (See the references below)
http://migame.tv/section/ucc/view.asp?msg=180836&bd=25
http://kr.youtube.com/watch?v=wB-MTPqQ95o
http://kr.youtube.com/watch?v=LwcCxRSQ_jk
http://news.khan.co.kr/kh_news/khan_art_view.html?artid=200806290719112&code=940707
22. The government insists that there is no official confirmation for the assertion that the use of water hoses caused many protestors to suffer “serious injuries such as blindness, broken bones and concussions.” (Article 18 of the Government’s Written Answer) However, there appeared an article on June 1 publicizing a victim of water cannon testifying that he could not see anything because of burst blood vessels in the eyes. (from the interview with Kim A, a victim of water cannon said: “I could not see anything yesterday. Now I can see just outlines. I was to be operated on if my condition is not good, but fortunately the doctor said I will be fully recovered if I take a good rest. See the OhmyNews article dated on June 2, 2008 for details) Despite this situation, the Chief of Security Division of Seoul Metropolitan Police Agency Mr. Young-Soo Myoung announced on a daily briefing that “A water cannon is the safest police equipment. It has limited pressure, so inflicts ‘no’ harm to body. Despite repeated press releases on damage cases of citizens, the government only reiterated its futile message that the water cannon is a safe strategy.
http://www.ohmynews.com/NWS_Web/view/at_pg.aspx?CNTN_CD=A0000916131
23. The National Human Rights Commission of Korea also recognized that the government’s suppression was done in an excessively violent way. NHRCK conducted an ex officio investigation into candlelight rallies and recommended on Oct. 27, 2008 as following: National Police Agency Commissioner General be warned for his liability to some excessively violent actions of the police, National Police Agency Commissioner General prepare legal provisions higher than ordinance of the ministry including specific criteria for maximum pressure or minimum range of water pump cars, etc., which are critical components of inflicting severe harms on human body, National Police Agency Commissioner General avoid direct shot on people and stick to its original use in the case of using fire extinguisher because of the possible harm of its powder gas and its masking effect when used in suppression, thus aggravating violence of the police.
3. The National Human Rights Commission of Korea also recognized that the government’s suppression was done in an excessively violent way. NHRCK conducted an ex officio investigation into candlelight rallies and recommended on Oct. 27, 2008 as following: ① National Police Agency Commissioner General be warned for his liability to some excessively violent actions of the police. ② National Police Agency Commissioner General prepare legal provisions higher than ordinance of the ministry including specific criteria for maximum pressure or minimum range of water pump cars, etc., which are critical parameters of possible harms on human body. ③ National Police Agency Commissioner General avoid direct shot on people and stick to its original use in the case of using fire extinguisher because of the possible harm of its powder gas and its masking effect when used in suppression, thus aggravating violence of the police. ④ National Police Agency Commissioner General devise countermeasures to prevent the riot police from throwing objects towards demonstrators due to its probability of causing harm to them.
24. The government insists in its Written Answer that Ms. Na Rae Lee sustained accidental injuries while police sought to prevent protestors from marching toward Cheong Wa Dae. (Article 16 of the Government’s Written Answer) However, National Police Agency Commissioner General Mr. Cheong-soo Eo ordered the police to take strong measures against the demonstrators through wireless communication. Accordingly, violence against Ms. Na-rae Lee was already expected.
25. Arrests and investigations show rapid and prompt progress in the cases of assembly participants who were charged with using violence. On the contrary, where victims of police violence filed charge, the procedure was slowly progressed. (see relevant materials 1 and 2 below) The reason can be explained by the fact that prosecutors ordered the police to conduct investigation into the case despite the request of prosecutors’ direct investigation because the accused included the police command posts such as National Police Agency Commissioner General. Although the police insists that the perpetrators are unspecified, this is nothing but an excuse for “lack of will to find out the perpetrators.” That anyone would be able to find the perpetrator in Ms. Na-rae Lee’s case contradicts this claim.
– Report by PSPD (People’s Solidarity for Participatory Democracy) and MINBYUN (Lawyers for a Democratic Society) –
| DATA 1.
Accusation and Charge on the Law Enforcement Acts of the Police Conducted by Seoul Prosecutors’ Office (Division 4 of Bureau of Criminal Case) (Dec. 7, 2008) |
|
1) Seoul Prosecutors’ Office took over these cases to Intelligence Division 1 in Bureau of Investigation, Jongno Police Office
2) Some cases are missing in this table, which are not prosecuted in any case |
| Accuser |
Date |
Contents |
The accused |
Investigation on the accuser |
Investigation on the accused |
Prosecuting or not |
| Kim A and 2 others |
June 19 |
May 31, Injured by police truncheons and shields |
An unidentified riot police officer, his commanding officer, and the Commissioner of Seoul Metropolitan Police Agency |
Once |
Undone |
Unconfirmed |
| Park A |
June 19 |
June 2, Injured in candlelight rallies by police violence(diagnosis of 4 weeks treatment) |
Unidentified police rangers and their commanding officers |
Once on July 18 |
– |
Unconfirmed |
| Koo A |
June 19 |
Injured by riot police violence in candlelight rallies on June 8
(by throwing of metal balls) |
Unidentified police rangers and their commanding officers |
Once on July 18 |
– |
Unconfirmed |
| Kim A and 7 others |
June 19 |
Misfeasance in arresting procedure on June 1 dawn |
Mr. Nam Hyun-woo(the Chief of Seocho Police Office), Mr. Han Jin-hee(the Commissioner of Seoul Metropolitan Police Agency), etc. |
Once on July 7 |
– |
Unconfirmed |
| Kim A and 3 others |
June 19 |
Illegal arrest after assembly dispersion and 45 hours of illegal detention on May 27 |
Unidentified riot police officers, the Chief of Dongdaemun Police Office and its commanding officers |
Once on July 10 |
Undone |
Unconfirmed |
| Hong A |
June 19 |
Combat boots violence of police and 46 hours of illegal detention on May 27 |
An unidentified riot police officers, the Chief of Dongdaemun Police Office |
Once on July 10 |
Undone |
Unconfirmed |
| Lee A |
June 19 |
Combat boots violence of police on May 31 |
An unidentified platoon commander of Seoul Metropolitan Police Agency and its commanding offers |
Once in writing |
Undone |
Unconfirmed |
| Kim A |
June 19 |
Cheekbone fraction by combat boots of police on June 1 |
An unidentified riot police officer, the company commander of police rangers, commanding officers in charge, etc. |
Once on July 23 |
Deferred |
Unconfirmed |
| Lah A |
June 19 |
Nose fraction by police violence on June 1 |
An unidentified riot police officer, the company commander of police rangers, commanding officers in charge, etc. |
Once on July 15 |
Deferred |
Unconfirmed |
| Jin A |
June 19 |
Bone fraction and concussion by police truncheons on June 1 |
An unidentified riot police officer, the company commander of police rangers, commanding officers in charge, etc. |
Once on July 25 |
Deferred |
Unconfirmed |
| Oh A and 3 others |
June 30 |
Confiscation of a vehicle loaded with sound equipment and illegal arrest of a lawyer protesting against the police |
Unidentified police rangers and commanding officers |
Once on Sep. 8 |
Refused to confirm |
Unconfirmed |
| Jae-jung, Lee and 2 others |
July 2 |
June 1, illegal arrest and detention of lawyers monitoring human rights violation during the assemblies |
An unidentified riot police officer, the company commander of police rangers, commanding officers in charge, etc. |
Once by letter |
Deferred |
Unconfirmed |
| Jun-hyung, Lee |
July 2 |
Injured by police truncheons and shields on June 26 |
An unidentified riot police officer, the Chief of Security Division of Seoul Metropolitan Police Agency and its commanding officers |
Undone |
Undone |
Unconfirmed |
| Jung A |
July 2 |
Injured by police truncheons and shields on June 26 |
An unidentified riot police officer, his commanding officer , and the Commissioner of Seoul Metropolitan Police Agency |
Once |
Undone |
Unconfirmed |
| Kim A and 2 others |
July 14 |
Illegal detention at entrance of a road, Uljiro on July 10 |
Mr. Kim Won-jun (the Chief of Namdaemun Police Office) |
Once on July 30 |
Undone |
Unconfirmed |
| Kwan A and another |
July 14 |
Fire extinguishers were used in the law enforcement actions |
National Police Agency Commissioner General Mr. Cheong- Soo Eo |
Once on July 30 |
Undone |
Unconfirmed |
| Jang A |
Aug. 7 |
Struck by mass riot police in law enforcement actions on June 29 (diagnosis of 7 weeks treatment) |
An unidentified riot police officer, platoon commander of police rangers and their commanding officers |
Once on Sep. 7 |
Undone |
Unconfirmed |
| Joe A |
Aug. 7 |
June 26, Partial severance of one of left fingers bitten by a riot police on June 26 (diagnosis of 7 weeks treatment) |
Same as above |
Once on Sep. 3 |
Refused to confirm |
Unconfirmed |
| Lee A |
Aug. 7 |
June 22, face injury hi by police shield on June 22 (diagnosis of 4 weeks treatment) |
Same as above |
Once on Sep. 2 |
Refused to confirm |
Unconfirmed |
DATA 2. Cases on the Candlelit Protestors by Prosecutors
Indictments of the Candlelit Protestors by Prosecutors
□ 34 candlelit protestors under indictments with detention as of Oct. 2, 2008
□ 14 candlelit protestors under indictments without detention as of Oct. 2, 2008
□ About 90 candlelit protestors under summery indictments without detention (fined)
Representative Cases Closed till 1st or 2nd Trials
□ Appellate trial verdict on Oct. 2, 2008 upon a violent protestor using iron pipes in the candlelit rallies (Prosecuted and detained in Seoul District Prosecutors’ Office, 1st trial verdict on July 18, 2008)
□ In progress of the final trial after the 1st trial for Mr. Jin Geol Ahn, team manager with the People’s Association for Measures against Mad Cow Disease relating with the candlelit rallies as of Sep. 30, 2008 (Prosecuted and detained in Seoul District Prosecutors’ Office, the 1st trial verdict scheduled on Oct. 9, 2008)
□ 1st trial verdict; innocence on Sep. 19, 2008 upon Jang A (aged 18), for sending collective text messages to students persuading students’ strike against US beef import, charged with violating Framework Act on Telecommunications (Prosecuted without detention in Seoul District Prosecutors’ Office)
□ Verdict on Sep. 18, 2008 upon Ms. Hee Sook Yoon, a chairperson of the candlelit rallies (Prosecuted and detained in Seoul District Prosecutors’ Office)
□ 1st trial verdict on Sep. 10, 2008 upon a violent protestor attacking riot police using elbows in the candlelit rallies (Prosecuted in Seoul District Prosecutors’ Office)
□ 1st trial verdict on Sep. 9, 2008 upon a teacher for objecting arresting flagrante delicto during the candlelit rallies (Prosecuted without detention in Seoul District Prosecutors’ Office)
□ 1st trial verdict on Sep. 2, 2008 upon a protestor for throwing out garbage in front of and damaging the Chosun Ilbo office, one of South Korea’s major newspaper companies (Prosecuted in Seoul District Prosecutors’ Office)
□ 1st trial verdict on Aug. 21, 2008 upon a protestor attacking riot police with a mop causing diagnosis of 1 week treatment for abrasion during the candlelit rallies (Prosecuted without detention in Seoul District Prosecutors’ Office)
Regarding the government’s answer on arresting and detaining Mr. Jin Geol Ahn and Ms. Hee Sook Yoon
26. The government insists the arrestment and detention of Mr. Jin Geol Ahn, member of People’s Solidarity for Participatory Democratic Society and Ms. Hee Sook Yoon, Vice-Chairperson of the Korea Youth Movement Council were legitimate according to conditions and procedures in the Criminal Procedure Act. (Article 20 of the Government’s Written Answer)
27. The provision of ‘prohibiting nighttime assembly’ in the Assembly and Demonstration Act is on pending in the Constitutional Court for adjudication on the constitutionality for questioning its constitutionality and the absurd charge for ‘violating the law penalizing the obstruction of general transportation’ is mentioned above. Thus, People’s Association for Measures against Mad Cow Disease where Mr. Jin Geol Ahn belongs made constant efforts to retrieve ropes and surrender arsonists to police to avoid conflicts with riot police and sustain non-violent and peaceful candlelight rallies despite harsh blames of citizens and netizens.
28. Police took an 11-year-old elementary school student to the police station including Ms. Jung Hee Lee, a congressman who was protesting against this, and Mr. Jea Jung Lee and Mr. Yeong Koo Kang, lawyers of MINBYUN who were protesting against arrests without notifying the Miranda rule, a minimum measure for observing human rights. Among the facts charged for Mr. Jin Geol Ahn, ‘obstructing police in the course of duty’ was charged for an act protesting against illegal law enforcement actions of police which were prevalent in the candlelight rallies. A number of police officers seized Mr. Ahn from behind and arrested him holding his each limb, causing him damages with diagnosis of 2 weeks treatment.
Regarding the government’s argument on the freedom of opinion and expression on the Internet
29. The government insists in its Written Answer that “The letter indicates that “On May, 2008… the Seoul Metropolitan Police Agency reportedly announced that those involved in posting articles on websites related to the protests would be summoned for questioning…” According to the National Police Agency, the Seoul Police did not make such an official statement.” (Article 22 of the Government’s Written Answer) and “… the introduction of a Cyber Insult Offense Law…the purpose of the law is not to suppress the freedom of expression, but to reduce the serious side effects such as suicide or mental diseases of victims caused by defamatory and insulting comments posted by anonymous users on the Internet.”(Article 23 of the Government’s Written Answer)
30. The prosecution held Superintendent Public Prosecutors’ Council for Offenders Infringing the Livelihood of the People with the Public Prosecutor General’s direction dealing with ‘mad cow disease myths’ and decided its will to take active actions against cyber violation that promoting discredit against the government policies. Thus, the prosecution has operated incessant surveillance system like recruiting Internet monitors and started thorough investigation into the relative laws since May, 2008.
http://www.seoul.co.kr/news/newsView.php?id=20080508009012
31. The suppression against netizens began in earnest since September, 2008. In the press release on Sep. 2, 2008, the police announced an arrest of a netizen nicknamed ‘Kwan-tea-loe-wun Chang’ proclaiming “those accomplices who led the illicit candlelit rallies and other relevant persons would be prosecuted under the law with extended investigation and hunting down” and the operators of Internet sites and their members were put under investigation. On Sep. 4, 2008, 25 members of a website ‘Candlelit-car Association’ were arrested without detention for violating the Assembly and Demonstration Act; one of them, with disability, got revocation of driver’s license while his car was the only transportation. Other Internet sites such as ‘Moms with Baby Carriers’, ‘Shilcheonnuri’, ‘August15 PeaceAct Party’, and ‘Agora Korea’ were also put under investigation. One of those who went through the investigation witnessed “Disregarding Internet sites’ voluntary characteristics in operation without any compulsoriness, the police seemed to fabricate the Internet sites as criminal syndicates designating the one as an official to liaise when he contacts with majorities.”
32. President Lee Myung Bak held press conference on June 19, 2008 stating “I lost sight of the need to consider the public demand about food safety more meticulously. I was not able to accurately read the mind of mothers who worry about their children’s health even more than their own.” However, after the government’s decision to take active actions against the candlelit rallies, the police became hostile toward the group ‘Moms with baby carriers’ who were participating in the candlelit rallies for food safety of their children and put them under investigation. Mr. Cheong Soo Eo, National Police Agency Commissioner General agreed with an opinion of a government party’s congressman that those ‘Moms with baby carriers’ should be brought to court for child abuse by stating “I totally agree with your opinion. The police would scrutinize the relative law for charging ‘Moms with baby carriers’ with child abuse who are already under charge of violating the Assembly and Demonstration Act.” The President stimulated the opinion by announcing that “How can those babies appear in the candlelit rallies? That could never happen. The act bringing their children to the rallies is violating the Child Welfare Act, and it has to be prevented not aiming to be punished, though.” As seen above, the police seem to secure the freedom of opinion and expression on the Internet, but recruiting Internet monitors of the prosecution and arresting the operators of the Internet sites show growing suppression of the freedom of opinion and expression.
33. There already exists punishment provision for contempt in Criminal Act in Korea. While the contempt under Criminal Act is a crime subject to victim’s complaint, Cyber Insult Offense Law that the government is intending to introduce is a crime that the police or prosecution can launch into investigation if they want but cannot be prosecuted only when the victim express objection of the punishment. The investigation on the police or prosecution’s own authority regardless of the victim’s opinion would lead to censorship of every Internet postings related with politicians resulting in contraction in the freedom of opinion and expression. The police and prosecution, who are recruiting Internet monitors and extending investigation into netizens seem to have high probability of censoring the Internet by and large under the provision ‘punishment against the act making the others feel sense of humiliation.’
Regarding the government’s argument that its activities are in compliance with international standards
34. The government asserts in its Written Answer that “…Articles 19, 20, and 29(2) of the Universal Declaration of Human Rights, Articles 19 and 21 of the International Covenant on Civil and Political Rights, and Articles 5(a), 12(1) and 17 of the Declaration on the Right and Responsibility of Individuals, Groups, and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms…The government faithfully complies with these international standards.” (Article 24 and 25 of the Government’s Written Answer) It also persists that “Soon-Won Hwang, Mr. Jin Geol Ahn and Ms Hee Sook Yun organized assemblies…These assemblies resulted in obstruction of traffic by unlawful occupation of the main roads in the center of Seoul…the actions of the law enforcement were proper and lawful, and fully complied with the purpose of the Universal Declaration of Human Rights.” (Article 26 of the Government’ Written Answer) However, as mentioned above, Mr. Jin Geol Ahn and the others made constant efforts to sustain non-violent and peaceful candlelit rallies and legal assemblies are impossible under the Assembly and Demonstration Act that stipulates that the candlelight vigils are illicit.
35. The police took lawyers who were monitoring for human rights violation in the candlelight rallies to the police station and detained, causing a lawyer Mr. Jun Hyung Lee skull fraction stricken forehead with the police shield. Though the police sent MINBYUN a letter on June 1, 2008, saying “We appreciate for the monitoring activity of MINBYUN for human rights violation,” arrest and violation against lawyers recurred.
36. Amnesty International, Forum Asia, and Asian Human Rights Commission conducted fact finding mission and announced human rights violation of the protestors and excessive law enforcement actions during the candlelit rallies. On Oct. 28, 2008, the National Human Rights Commission of Korea also recognized immoderate law enforcement actions in the candlelit rallies and announced recommendations for it. Human Rights Committee and Universal Periodic Review of the Human Right Council pointed out the problem with the Assembly and Demonstration Act and recommended legalization for securing the freedom of assembly and demonstration. (See Article 9 of this Statement)
Conclusion
37. The National Human Rights Commission of Korea, a quasi-judicial independent state organ established for the purpose of prevention of human rights violation by state organs, recognized on Oct. 8, 2008 the fact that the police committed human rights violation including wounding some protestors with partly violent suppression and recommended that National Police Agency warn Commissioner General of Korean National Police Agency for his liability for commanding the suppression. However, the police persistently reiterate its message that it took law enforcement actions as defined by related law against unlawful assemblies. Before that, the police issued a statement refuting Amnesty International’s investigation result that there was extensive human rights violation during the assemblies.
38. In the meantime, prosecutors requested an arrest warrant for Socialist Workers League of Korea for alleged violation of National Security Law. They enforced confiscation and search order on the office of People’s Solidarity for Implementation of North-South Joint Declaration and detained members of it under investigation. Moreover, they are putting more restriction on the freedom of opinion and expression by dismissing YTN reporters struggling against appointment through personal connection and preparing a bill to strengthen punitive provisions of Assembly and Demonstration Act. Military authorities severely violate the fundamental rights of soldiers by labeling best-selling and widely read books as “seditious.”
39. The government does not punish or reflect on excessive law enforcement actions during the assemblies. Instead, it focuses on increasing pressure on the press, assemblies, etc. violating the freedom of opinion and expression. No effectual investigation or viable countermeasure is considered against unlawful activities of the police during the candlelight rallies. It is anticipated that this trend will become more prevailing as we go further. We hereby request the Special Rappoteur to give serious consideration to the crisis of the freedom of opinion and expression happening in Korea and take strong measures against it.
[1] The prohibition of all assemblies on major roads in the capital would appear to be overbroad. While some restrictions on assemblies on main roads in the interests of public order are permissible, Article 21 of the Covenant requires that all such restrictions be in conformity with the law and be necessary in a democratic society. The absolute restrictions on the right to hold assemblies on main roads imposed by the State party do not meet these standards. (CCPR/C/79/Add.114 Article 18)
[2] According to the Criminal Code of the Republic of Korea, anyone who commits the obstruction of general transportation shall be punished by up to 10 years of imprisonment. This is a big crime considering that anyone who commits larceny shall be punished by up to 6 years of imprisonment.