Situation of Civil and Political Rights in Republic of Korea
HUMAN RIGHTS COMMITTEE
1. We, MINBYUN-Lawyers for a Democratic Society, in consultation with the Korean Human Rights Organizations Network composed of 38 human rights organizations in Republic of Korea, make this oral statement to the Human Rights Committee which will review the third periodic report of the Republic of Korea.
2. After examining the State report, we conclude that it falls short of explaining the human rights situation of Korea in reality, thus failing to provide the Committee with accurate information.
II. GENERAL REMARKS
3. The State report reiterates what the Government had insisted during the reviewing process of its initial and second periodic reports with regards to the concerns and recommendations made by the Committee which it has not implemented. For example, the government has not taken any measures on the National Security Law.
4. Furthermore, in quoting statistical data the Government report provides too general figures and often fails to show comprehensive statistics that make it possible to understand concretely how much the rights of the Covenant are guaranteed. For instance, given the figures related to legal aid programs by the Government, it is impossible to figure out the proportion of legal aid cases compared to total court cases, and to understand whether or not the present legal aid system guarantees the poor substantial access to justice.
5. There are even some occasions for newly enacted or revised laws to violate the Covenant and go against the concerns of the Committee. For example, after the Committee stated that the prohibition of all assemblies on major roads in the capital would appear to be too broad and not meeting the standards of article 21 of the Covenant, the newly revised act introduced a new provision even further broadening the conditions of the prohibition of assemblies, and as a result, more seriously violating article 21 of the Covenant than the old one.
7. There are hardly any court rulings invoking the Covenant along with domestic laws, and as the State report admits, there have very few cases where the Covenant was invoked by the Constitutional Court or any other courts.
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III. SUMMARY OF QUESTIONS AND RECOMMENDATION
1. Issues Concerning the National Human Rights Commission
8. It is difficult to say that the NHRC reflects diverse representatives. Except for the provision stating that nomination is restricted to those with expertise in the field of human rights, there is no procedural provision to guarantee diverse representation, nor enable effective cooperation with NGOs.
9. The NHRC is not stipulated as an independent organization according to the Budget and Accounting Act, and officeholders above a certain rank are appointed by the President through negotiation procedures by the Ministry of Government Affairs and Home Affairs, the same as an average administration officeholder. For the NHRC to promote its independence from the Government, its structural and budgetary independence needs to be guaranteed with the revision of relevant law.
10. One of the problems in investigation and giving of remedies is that cases are frequently rejected without a substantial judgment to decide whether the petition amounts to a human rights violation or discrimination. Even based on the State report, the rate of rejection is above 75%. Cases that are acknowledged as human rights violations or discrimination where it is recommended to prosecute, investigate, or take a disciplinary action are not more than 1% of all petitions. The reason for this problem is that the NHRC Act has set the range of reasons for dismissal too broadly, and the NHRC acknowledges the reasons for dismissal set by the law very easily, thus showing a passive attitude in solving substantial problems.
11. One of the problems in its investigation and redress is that too much time is taken; emergency cases are not effectively handled. In 2003, cases required 180 days to be closed, and in 2004, 124 days. Although in August 2005 the time required decreased to 104 days, considering the fact that these numbers only reflect the average time of all accepted cases, including formally closed cases (i.e., 80% of all cases), the actual time required to investigate cases of human rights violation is longer.
12. Insufficient investigative authority of the NHRC is also criticized as a problem. The NHRC has the authority to visit and investigate detention and protection facilities, and such facilities where enumerated under the law and Presidential decree. Due to the method of enumeration by category, the NHRC does not have the right to visit nor investigate facilities that are not stipulated by the law such as barracks and unauthorized welfare facilities.
13. Even though the NHRC concludes that a case is a human rights violation or discrimination, the relevant authorities do not have legal force to take any action. Further, there is no way to react if a Government policy which is against the recommendation or expression of opinion of the NHRC is decided and carried out. For example, The NHRC has also prepared a National Action Plan (NAP) and recommended it to the Government on January 2006, but the Government has not taken it seriously, even for discussion.
2. Negligence in Implementing Recommendations of the Committee
14. The Government has not implemented the Committee’s recommendations on any of the communications decided as violations of the Covenant. The reasons for failure to implement are understood to be because the recommendations of the Committee only have recommendatory force. Thus, the Government has no responsibility to implement them. Moreover, the Committee’s recommendations run counter to the previous judgments of the judicature in the Republic of Korea. We believe that the views of the Committee are not a mere diplomatic communique, and it is the minimum obligation of the concerned country to consider and respect the views of the Committee according to the Covenant and its Optional Protocols which is a state party.
16. The Republic of Korea once declared that paragraph 5 of article 14 shall be applied to be in conformity with the provisions of domestic law, including the Constitution because this provision is in conflict with some provisions of the Constitution and the martial law which deny rights to people found to have committed certain crimes, except for those who are sentenced to capital punishment under a state of emergency declared by martial law.
17. However, A state of emergency declared by martial law can be subject to paragraph 1 of article 4 of the Covenant, where the Government can be excluded from carrying out its obligation. Thus, since the contents of article 4 of the Covenant are similar to that of the relevant provisions of the Constitution and the martial law, paragraph 5 of article 14 is not in conflict with any domestic legal provisions in the Republic of Korea and the Government has no reason to maintain its reservation of article 14, paragraph 5 of the Covenant.
18. The Government asserts that article 22 of the Covenant shall be applied to be in conformity with the provisions of the local laws, including the Constitution. The Government further states that since article 33, paragraph 2, of the Constitution provides that “only those public officials who are designated by a law shall have the right to association, collective bargaining and collective action and the provisions of the Labor Union law and the Government Officials Act disallow their right to association, collective bargaining and collective action. The Government hence argues that it reserved article 22 of the Covenant in its initial report.
19. Given that article 22, paragraph 2 of the Covenant generally regulates reasons to restrict the right to association, collective bargaining and action of public officials and that it elaborates reasons to restrict such rights of military personnel and policemen, the reservation of the article 22 of the Government to restrict such rights of public officials in general is improper. It is an inadmissible reservation against the object and the purpose of the Covenant. Since then, the Act on Public Officials’ Organizations and Management of Labor Unions was officially announced on 27 January 2005 and put into effect on 27 January 2006. Consequently, the Government’s reservation of article 22 does not have reasonable grounds.
4. Promotion of Gender Equality
20. The proposed amendment to the Korean Civil Code under the gist of abolishing the “Hojuje,” or the so-called Family Head System, was passed on March 2, 2005. However, the amended Korean Civil Code stipulates that the father’s last name shall be taken when deciding a child’s last name; provided, however, that if it has been discussed otherwise at the time of registering ones marriage, or if the court has granted an approval for the benefit of the child, the child may take the mother’s last name. Maintaining the principle of paternity that ‘places the father and the male in the center of the family and treats the position of women within the family as unimportant and inferior compared to that of men’ is against the principle of gender equality.
21. It is true that women’s participation in public offices and politics has been expanded. However, it is hard to deem that women’s actual status in public offices has improved in proportion to the number of women holding public offices. Number of high level women managers above Grade 5 in over 48 central administrative institutions as of March 2005 amounted only 7.4% out of the entire officials in the applicable position. The majority of women public officials still remain in low level positions despite the continuous increase in the number of women public officials.
22. According to the statistics by the Ministry of Labor, 3,763 people (female:3,685 male:78), 6,816 people (female:6,712 male:104), 9,303 people(female:9,122 male:181), and 10,700 people (female:10,492 male:208) were paid with childcare leave benefits in 2002, 2003, 2004, and 2005, respectively. It is almost close to 0% for men, and the number of women has not increased to a great deal since 2002. In other words, let alone men workers, it is not a general practice in the Korean society for women workers to apply for childcare leave. The childcare portion, which must be solved with the social cost, is still left to individuals to take care of. Therefore, it is necessary to set up a specific plan to expand the portion to be borne by the society in terms of the childcare leave benefit and to raise the financial resource thereof.
23. 10% of women workers who took maternity leaves fail to receive sufficient childcare support, and 68% of women workers who resigned from their offices after childbirth present childcare difficulty as their reasons for resignation. The Korean government made it mandatory to establish employers supported childcare facility for certain business establishments. However, there is no sanction against the employer even if employers violate the obligation to establish childcare facility.
24. As of February 2006, the number of non-regular women workers reaches 25.48% of the entire wageworkers and reaches 60.4% of the entire women wageworkers. 51.7% of women workers between the age of 25 and 34 who most likely give birth during such period are non-regular workers. If the maternity protection system continues to be in force in the current form without taking special measures for non-regular workers who reach 60.4% of the total women workers, it is definite that the people will become very doubtful about the Korean government’s will on the maternity protection system.
25. As of June 2004, arithmetical monthly average total wage of women workers amounts to 1,296,490 Won, which is 59.73% of men workers. Monthly average wage of regular workers is 61.45% of men, and monthly average wage of non-regular workers is 77.97% of men. Monthly average wage that non-regular women workers receive is only 45.39% of monthly average wage of regular men workers. In light of the fact that non-regular women workers reach 60.4% of the total women wageworkers as of February 2006, the issue of wage differential between sexes is very serious.
26. The Korean government describes in the 3rd report that the amendment was made to the Equal Employment Act in August 2001, and accordingly, the said Act applies to any and all business establishments with 1 employee or more. However, the proviso clauses of the Enforcement Decree of the said Act stipulate that business establishments having 4 employees or less are not subject to the core provisions of the said Act such as prohibition of discrimination on grounds of sex in welfare of its employees, prohibition of discrimination on grounds of sex in the education, assignment, and promotion of its employees, prohibition of discrimination on grounds of sex in the age limit, retirement, and dismissal of its employees as well as equal pay for equal-value work. As of 2002, women workers working at business establishments of 4 employees or less reach 56% of the entire women employed.
5. Prohibition of Torture and Cruel, Inhuman or Degrading Treatment or Punishment
27. On 26 October 2002 a prosecutor, prosecution officials and some policemen were charged with torturing 8 suspects for 4 days in the investigation room of the Seoul District Prosecutors Office during the interrogation process. The incident finally led to the death of one of the 8 tortured suspects . An investigation discovered that those interrogators, after urgent arrest of the suspects on charges of murder, kicked a suspect’s fifth rib, trampled them and had them do push-ups while in manacles and having their eyes covered with duct tape. Worse still, they were put through so-called ‘water torture’, inflicted by covering the nose and eyes of a suspect with a towel and pouring water on him for 10 minutes. The interrogation lasted all night. Aside from these symbolic torture cases, keeping a victim awake all through the night, beating, and intimidating suspects, are still widely practiced by interrogators according to Korea Bar Association’s annual human right report.
6. Right to a Defense Counsel and Counsel’s Right to Participate in Interrogation
28. In the Republic of Korea, there are basically three ways that the right to a defense counsel is infringed on: 1. denial of the detainee’s access to a lawyer by the investigative agency; 2. obstruction or delay of the contact between the defense counsel and the defendant by various methods; 3. infringement of the confidential communication between the detainee and the counsel or putting pressures or undue influence on both the detainee and the counsel during their meetings. Especially those interrogated in detention by the National Intelligence Service, the Defense Security Command or the Security Division of the National Police Headquarters for their alleged violation of the National Security Law have suffered the most serious infringements, which have not been disclosed in statistical data.
29. In practice, investigators have so far refused participation of counsel during the interrogation process on the basis that there is no legal provision granting counselors the right to participation during the interrogation. After the Supreme Court recognized the right of counsel to participate during interrogation in 2003, the interrogating agency has adopted the principle of counsel’s participation in interrogation. To guarantee the right of counsel in practice, the right of counsel’s participation in interrogation should extend to the right of aggressive advice or the right of refutation.
7. Right to Liberty and Security of Person
30. The urgent arrest, which is prevalent in Korea, is a system under which investigators are enabled to arrest a suspect without an arrest warrant and detain him or her for up to 48 hours after the arrest in certain cases. The suspect against whom there is no suspicion after 48 hours of investigation will be released. The suspect can have a chance to have his case reviewed only if the investigator asks the court to issue a warrant after the 48-hour investigation, while the urgent arrest system under the current law deprives the suspect of the chance of investigating the legality or legitimacy of arrest if released within 48 hours.
31. Because the urgent arrest system authorizes the government agency to arrest and detain anyone for 48 hours, it is easily abused. Actually, the percentage of cases using urgent arrest is greater than that using arrest with a warrant in Korea. Given that most cases of torture and cruel acts by investigators are carried out at the time of arrest or immediately after the arrest, an urgent arrest without any outside monitoring, such as a court intervention, is tantamount to opening the way to torture or cruel treatment. Actually, most of the alleged torture cases are related with urgent arrest.
32. It has been reported that the number of detainees has steadily decreased since the introduction of the Judicial Review of Warrant in 1998. But the number of detainees in the Republic of Korea is still considerably high as compared with those of other countries. Moreover, the law has kept 30 days (in general) or 50 days (in special cases) as a detention period before indictment, which was pointed out as excessive by the Committee. It is more than probable that the high rate of investigation while in detention and long detention periods lead to a high occurrence of torture.
8. Right to Privacy, Family, Home and Correspondence
33. The Military Penal Code stipulates that individuals found guilty of sodomy and other such misconduct shall be punished by imprisonment of up to 1 year, which means that homosexuality is a criminal act. Using the word “sodomy” shows that legislators have a discriminating view about homosexuality. The law needs to be revised from prohibiting homosexuality in general to punishing offenders or protecting victims and preventing crime.
34. The Military Penal Code standardizes mandatory discharge from the army for homosexuals or others of such sexual preference on the basis that this sexual preference is a disorder. The regulation for physical examination upon conscription also uses sexual preference disorder in defining evaluating standards of disease or physical disorder of physical examinees.
35. The Act on Promotion of Information and Communications Network Utilization and Data Protection is not a general law covering privacy and protection of personal information. The law does not cover medical services, insurance companies, banks or supermarkets. Even though measures to protect personal information are urgently needed, the Government has been slow in introducing new regulations on account of conflict as to who will be the authority in charge among government departments.
36. The Act on Protection and Use of Location Information proposed and enacted by the Government was promulgated on 27 January 2005. It has been criticized for lack of adequate tools to protect location information when collected by other means, such as future-payment type traffic cards or RFID (Radio Frequency Identification).
37. Not only has the existing preventive law on AIDS (Acquired Immune Deficiency Syndrome) kept a reporting system with real names of AIDS positive persons, but also it has maintained the lists of AIDS positive people according to the Directive of the Ministry of Health and Welfare. It is against the Constitution and the Covenant that reporting or listing medical history information is delegated to the lower legislation body without regulating specific definition, because it goes beyond the boundary of delegated legislation. Moreover, there are no necessary and adequate reasons for personal information of real name and residence registration number to be stored or administrated for final decision of positive reaction, instruction of investigating medical history, and allocation of medical expense that are administrated by the administration headquarter of controlling disease. The present system raises the risk of information exposure through many steps of informing or reporting process. Also, accumulation of unnecessary information results in serious infringement of the rights of the infected person. The real-name reporting system under the HIV/AIDS prevention Acts has been expanded from doctor–> a public health center –> mayor, magistrate of the county, district leader –> governor of the province to administration headquarter. It allows information, which is collected by the administration headquarter without legal ground, to be distributed to the private institution such as the blood institution.
38. The Government revised The Residence Registration Act in 2005, introducing the new provision of article 19 (authentication of residence registration). This provision allows the private companies to use national computer network, which seriously poses a risk of infringement of right to privacy. The Korean residence registration number has adopted the bar-code system which cannot be changed practically after granted. Not only is the code itself against the privacy rights, but also it is subject to inadvertent leaks.
39. In 2003, there were a total of 1178 security cameras run by 7 city police stations. Out of them, 466 were CCTVs to research the transportation flow, and 712 were unmanned security cameras to watch out for transportation violations. Moreover, 3 ward offices (Jongro, Kwanak, Gangnam) operated 107 watching camera. Out of them, 67 were unmanned security cameras to watch out transportation violation, 35 were to watch out unnoticed waste disposal, and 5 were to prevent crime. CCTVs can possibly violate and restrict individual right to personal control of personal information, privacy and freedom of the individual, and right of publicity, and therefore laws that cover its running procedures, methods, and requirements should be passed.
40. The Ministry of Justice amended the Protection of Communications Act and newly created the duty of telecommunication businessmen to cooperate. According to this act, all telecommunications businessmen should provide necessary equipment, technology, and skill which are necessary for restricting measure of telecommunication and conforming fact of telecommunication. Also, they should keep all communications reality data (except city telephone and internet log-in record is for 6 months) for 12 months. The amended law is treating the public as potential criminals and is implying that they will watch out for public’s daily communication. Without any safety measures, a law, which requires to keep all national public’s daily communication content, communication time and place, and the one they communicated with for more than 12 months, will increase the chance of misappropriation or leak of communication reality confirmation date by investigating agency, telecommunication businessmen, or their employees. So far, courts have not rejected any single request for warrant of interception requested by investigating agencies.
9. Freedom of Expression
41. The National Security Law has infringed the freedom of expression and still hindered the development of civil society. Article 7(Praising or sympathizing with enemies) of National Security Law has been criticized for its vague and broad elements to constitute a crime. It provides a wide range of discretion for prosecutors or judges to apply the National Security Laws which triggers its abuse in exercising the law. A majority of people who were arrested under the National Security Law were in prison for the violation of article 7.
42. The Committee announced its opinion to the guilty verdicts of Korean court based on a delegate membership of Hanchongnyeon violated the freedom of association under the paragraph 1 of article 22 of the Covenant. However, more than 30 members of Hanchongnyeon are still wanted by the police for the violation of the National Security Law. LEE Byoung Young was arrested and indicted for carrying the report of the 12th Hanchongnyeon Assembly for delegation in May 2006. Article 4 of the National Security Law employs a vague and indefinite interpretation of the law when it defines the meaning of ‘national security secret’. The Supreme Court of South Korea decided that ‘national security secrets’ include all secrets in the areas of politics, economics, society and culture. The Supreme Court also interpreted that a national security secret includes that facts were acknowledged as common senses among the public as long as those facts could aid the enemy. Despite the decreased number of the arrestee, the National Security Law applies all areas of Korean society with a power and control the mindset of Koreans.
43. The new standard for ‘limit screening grade classification for adults’ applies to all movies which need a certain degree of restrictions in the presentation and advertisement under the Law for Promotion of Film 21(3)(v). The Korea Media Rating Board has a wide discretion to choose and decide specific standard for the necessary substance for movies under the Law for Promotion of Film 3(7). The law for the foreign film import and standard for grade classification for movie-like/video 3(5) defines ‘limit screening grade classification for adults’ as matters that contain excessive violent or indecent description that is harmful to public morals, and that may derange the social order.
44. The new definition leaves more margin of the personal judgment of the members of the Korea Media Rating Board than the previous one which provided classification of abduction, a moral lapse, nudity, violence, exploitation, cruelty, and outrageousness. For this reason, movie importers as well as movie producers are not able to expect what grade their movie products will receive from the Korea Media Rating Board. After the Korea Media Rating Board decides, the movie must be showed only at limit screening grade movie theaters and be banned for advertisement or any kind of publicity activities.
10. Freedom of Association.
45. The revised Act on Assembly and Demonstration can make a notice of prohibition on an assembly or a demonstration in case that a severe obstruction to the flow of traffic on and around the roads may occur. However, it is a change for the worse because the former Act cannot give a notice of prohibition when the sponsors of an assembly or demonstration duly designate persons in charge of maintaining order and discipline and march on the roads. It further can be seen as limitation of freedom of association regardless of the concerns by the Committee.
46. The amended Act can prohibit a assembly and demonstration at: residences or places where a building can be used de facto residence or its neighboring unoccupied ground and roads; places near 2229 school facilities including kindergartens around the Seoul City; military facilities including chief command facilities, communication facilities, anti-air protection facilities, storing facilities for war equipment and research production of war commodities, military airfield, emergency airstrip, naval port, a quay of military use, military field for shooting and military training camp. The possibility of arbitrary prohibition notice is broader as much as the scope is comprehended. Therefore, even though there is concern by the Committee, the Act on Assembly and Demonstration is revised in a way of limitation on the right to association.
47. The courts apply the theory of joint principal offenders to people who participated in associations or demonstrations. Regardless of whether they actually performed, prepared, or acknowledged violent actions in demonstrations the people arrested in associations or demonstrations have been held reliable for violent actions. Some farmers arrested during an association of farmers held in 2006, were held guilty for assaults on policemen and arsons of police vehicles.
12. Family protection, Marriage, and Divorce
48. Welfare policy for protection of underprivileged family focuses heavily on indirect and temporary measures. In other words, the current welfare policy regarding underprivileged family can be said to be insufficient or unstable on the basis of the following considerations: (i) in case of welfare funds, the economically distressed single mom family is eventually the final obligor of the loan related to such welfare funds, (ii) most of the single parent family can barely benefit from the government housing policy running on a permanent rent basis because the right of entering the permanently rented apartment is extremely limited to a few chosen, and (iii) there are very few state-run institutions for the protection of single moms and their kids, and in addition, related private facilities run by religious organizations are not sufficiently supported by the government.
49. In accordance with Article 333 of the Amended Guidelines on the Resident Status of Foreign National Spouse Married with Korean National (October 1, 1999), foreign males married with Korean woman shall obtain approval regarding the resident status in the same manner as their counter parts married with Korean man, if the Korean woman or the foreign male spouse can earn a living on his or her own. However, the question whether the foreign national spouse can stand on his own for a living is legally groundless as the criteria and is beyond reasonable judgment, and it is also difficult to establish specific standards which can serve as a basis to determine the question.
50. Under the current Nationality Act, which is based on a blood relationship, the children of foreign national parents residing as workers in Korea are prohibited from obtaining the Korean nationality even if the children were born in Korea. As a result, the reality is that the status of their children is unstable and not being provided sufficiently with education opportunity. In conclusion, it is urgently needed to come up with more fundamental protective measures for the children of immigrant workers in terms of nationality and education opportunity.
51. The international marriage takes the form of marriage in appearance. However, in substance, it is in many cases becoming ‘marriage involving human trade’, in which women are traded as exchangeable ‘goods’ in the global match making market. With the increasing number of international marriage arranged by match making agency, problems are raised such as (1) the screening procedures like those of the beauty contest, (2) provision of false information regarding spouse, and (3) excessive agency fees. In addition, under the current system, mostly Korean men are required to pay economic resources of 10 million won on average to their prospective spouse or the spouse’s family. Therefore, the current practice also led Korea men and their family to treat female immigrant spouse as ‘purchased bride’. Currently, in Korea, the match making agency can be operated by any one filing with the relevant tax office for business registration.
52. Voices of concern have also been raised as to violence against immigrant female spouse, together with the problems presented in the process of international marriage. One of the most crucial factors to problems like these is that the legal resident status of female immigrant spouses depends entirely on their Korean husband. According to The Korean Nationality Act 2001 (before amendment in the year of 2004), in principle, a foreigner married to a Korean has to sustain domicile in the Republic of Korea for not less than two years consecutively under the state of marriage with the Korean spouse or has to meet other certain conditions to get the permission of naturalization from the Minister of Justice. However, The Korean Nationality Act 2004, in the light of humanitarian standpoint, newly provided Paragraph 2 and 3 in the Article 6 that if a person married to a Korean national and domiciled in Korea encounters Korean spouse’s death or disappearance or other events disabling the continuance of normal married life without cause attributable to him/her, and he/she is bringing up or under duty to bring up a minor born by the marriage with the said spouse, the person can acquire a Korean nationality. However it is hardly expected that a female immigrated through marriage without social or material basis and not familiar with Korean Language and culture should successfully prove the faults of his/her Korean Spouse to apply for the naturalization.
13. Protection of Children
53. Paragraph 7 of Article 31 of the Elementary and Secondary Education Act basically prohibits physical punishment but exceptionally admits for education in an unavoidable case. Ministry of Education established a guideline to set forth kinds, procedures, measures, places and materials for physical punishment, an occasion when physical punishment is unavoidable in the light of education, guidance after punishment, opinions of parents, and measures to be taken when physical punishment is refused. However ‘an unavoidable case for education’ leaves room for interpretation and furthermore, physical punishment was systemized and legislated as if it is needed for education, finally drawing in and shifting the matter from the prohibition to lawful procedure regarding physical punishment. Therefore the government should eliminate deep rooted traditions that justify practices of violence which invades students’ basic human rights in the name of education, by changing Paragraph 7 of Article 31 of the Presidential Decree of the Elementary and Secondary Education Act to prohibit any form of physical punishment in school.
14. Rights of Migrant Workers
54. The Korean Immigration Control Law prescribes that an alien sojourning in the Republic of Korea shall not engage in political activities. In case an alien sojourning in the ROK is engaged in political activities, the Minister of Justice may restrict the scope of the residence or can give him the deportation order. In October 2004, most Korean media and newspapers reported that a religious organization from Bangladesh was caught on account of sending money to anti-Korean Islamic group from Bangladesh and was ordered to depart from Korea. The Korea Immigration Control Law which restricts political activities of foreigners and the Government’s attitude are not compatible not only with article 9 (freedom of expression), article 2 (equal rights) and article 26 (equal before the law) of the Covenant, but also the article 21 (freedom of speech, press, assembly, and association) and article 11 (equal right) of the Constitution.
55. The State Compensation Act provides that the provisions of this law shall apply to any alien victims upon the conditions that would be reciprocally guaranteed. The Crime Victims Aid Act indicates that this law shall not apply to any alien victims or survivors unless there is reciprocal guarantee. These laws choose the reciprocity system in case of compensation claims against the government on the ground of unlawful acts committed by public officials during those official duties or on the ground of physical damage harmed by other wrongdoers. However, the provisions of these law are in conflict with those of the article 29 and article 30 of the Constitution which do not indicate reciprocity as well as those of the article 16, paragraph 1, (right to recognition everywhere as a person before the law), article (equal right), article 26 (equal before the law), and article 2, paragraph 3, (investigation of individual petition by the State) of the Covenant.
56. The Government asserts that the Employment License System has been adopted since 2003 in order to reduce the corruption scandals of sending manpower and infringement of employees’ right which are mainly caused by the alien employment system based on the Industrial Trainee Program. On the other hand, however, the Government takes an inconsistent position to keep the Industrial Trainee Program to promote cooperating industrial technology with other developing countries. Meanwhile, the Ministry says that the Industrial Trainee Program will be abolished on 1 January 2007 for the purpose of protecting alien employees’s rights and satisfying employers’ needs. But the Ministry has not yet presented any proper plan or alternatives. The Ministry of Labor regulates some provisions guaranteeing the Labor Standard Act, the Minimum Wage Act, Industrial Security Act, Industrial Accident Compensation Insurance, and Medical Insurance to the trainees. But the regulation does not guarantee hours of labor, various kinds of bonus, restrictions of discharge, retirement benefit as well as it denies the three labor’s rights (right to association, collective bargaining and collective action). Therefore, the Industrial Trainee Program is against the article 2(equal right), article 22 (freedom of association) and article 26 (equal before the law) of the Covenant.
57. The immigration officers have restrained the target aliens’ personal liberty without verifying legal status, asking them to submit the foreigner license. It is an illegitimate exercise of power for the public officers to detain alien workers in official vehicles and to check the status of workers. But the Government kept controlling illegal immigrant workers without considering their rights. The compulsory inspection and arrest executed on the no legal basis are against the Regulation article 2 (equal right), article 9 (right to liberty and security of person), and article 26 (equal before the law).
58. The immigration Control Act stipulates that if it is impossible to immediately repatriate a person, who is subject to a deportation order, out of the ROK, the head of the office or branch office or the head of the foreigner internment camp may intern him/her in a foreigner internment room, foreigner internment camp or other place designated by the Minister of Justice until the repatriation is possible. More than 80% of protecting foreigners have not notified about the right to counseling, right to demur detention, or right to petition about their human rights. More than 50% are allowed only a 10 minute interview time. 10% have experienced that their letters are censored by the inspector. 50% say that they are not allowed to exercise in the internment camp. 5% have been segregated to the solitary room. 20% of protected foreigners are verbally harassed by the public officers. 5% have experienced physical torture or battery. This harsh treatment is not subject to most provisions dealing with human rights and personal rights such as article 2 (equal right), article 26 (equal before the law), article 7 (prohibition of torture and other inhumane treatment), article 9 (right to liberty and security of person), article 10 (treatment of detainees), article 13 (expulsion of foreigners), article 16 (the right to recognition everywhere as a person before the law), and article 17 (protection of privacy and freedom of correspondence) of the Covenant.
59. The immigration officers have often entered into the working place of alien labor workers without identifying themselves. Sometimes they have taken action against illegal residents contrary to supervisor’s will. During the process of inspection, many illegal alien workers are injured and few are died from escape. Illegitimate immigration officer’s trespassing is opposite to the right which is guaranteed in article 2 (equal right), article 9 (right to liberty and security of person), article 17 (protection of privacy and freedom of correspondence), article 26 (equal before the law) of the Covenant.
60. The Seoul District Labor Bureau rejected the union application on 3 June 2005 submitted by Seoul, Kyunggi, and Inchon Alien labor union on 3 May 2005 on the ground that such organization consists of illegal migrant workers who are not eligible for the labor union and that such organization is not a union within the labor law. The court, furthermore, dismissed their request to withdraw the decision saying that the Immigration Control Law strictly limits illegal migrant workers from working in Korea, that the law does not provide the illegal migrant workers the legitimate ground of employment which guarantees or improve the proper labor condition, and that the illegal migrant workers are not eligible for the labor union. The Constitution and the laws do not indicate any provisions to deny the basic labor’s three primary rights of undocumented alien labors. Therefore, it is reasonable to make a conclusion that article 2 (equal right), article22 (freedom of association), and article 26 (equal before the law) of the Covenant guarantee all alien workers should be protected by the basic labor’s three primary rights. Because there is no ground to deprive an alien worker of his labor’s three primary rights, the positions of the government and the courts denying the basic collective labor rights of alien workers are not compatible with the Covenant.