This solidarity action has taken place five times from June 11 to October 9, 2011 on the weekends and through these solidarity actions, according to the police report, around 15,700 people from different parts of the country took part in this assembly and went down to Busan where Ms. Kim was on strike.
With the great support from civil society and the solidarity action for ‘the Bus for Hope’ suggested by Mr. Song and Mr. Jeong, an agreement between the company and the trade union was made in early November, 2011 and Ms. Kim stopped her struggle and came down from the crane on November 10.
However, Mr. Song and Mr. Jeong have been prosecuted under the numerous offences such as Criminal Act (general obstruction of traffic, obstruction of the performance of special official duties causing injuries, illegal trespass), Act on Assembly and Demonstration (holding an demonstration before sunrise and after sunset, holding an assembly without a approval from the police and refusal to the police order of dispersal and Punishment of Violence, etc. Act. Both were prosecuted on December 14, 2011.
In fact, this is not the only case in which various charges have been imposed on human rights defenders. The case of Mr. Park Lae-Gun and Mr. Lee Jong-Hoi is indicative. (For details: AHRC-STM-016-2010 and annual report on 2011)
Those human rights defenders have faced the legal oppression in their work.
SAMPLE LETTER
Dear ___________,
SOUTH KOREA: Rights defenders must free from legal suppression
Name of accused:
1. Mr. Song Kyong-Dong, a poet and labour activist against irregular workers and dismissal of labours
2. Mr. Jeong Jin-Woo, in charge of irregular workers' committee at the new progressive party
No. of Case: Year 2011 HYUNGJE80999
I am writing to voice my deep concerns regarding the case that two activists, Mr. Song Kyung-Dong, poet, and Mr. Jeong Jin-Woo, a member of the progressive party, who suggested the peaceful assembly for solidarity in support of Ms. Kim Jin-sook, have now been charged with numerous criminal offenses. Ms. Kim has occupied the top of a crane in the workplace urging for the withdrawal of illegal layoffs by her company.
Due to this support from the civil society suggested by Mr. Song and Mr. Jeong, the company made an agreement with its trade union in November, 2011 and as a result, Ms. Kim Jin-Sook came down from the crane on November 10, 2011.
According to the information that I have obtained, both Mr. Song and Mr. Jeong are now charged with numerous criminal offences such as Criminal Act (general obstruction of traffic, obstruction of the performance of special official duties causing injuries, illegal trespass), Act on Assembly and Demonstration (holding a demonstration before sunrise and after sunset, holding an assembly without an approval from the police and refusal to the police order of dispersal) and Punishment of Violence, etc. Act.
They used the internet to inform this activity and people voluntarily joined. On the first occasion, from June 11 to 12, 2011, around 700 people gathered in Bongrae intersection in Busan around midnight to 1:25am from where they marched to the shipyard where Ms. Kim Jin-Sook was on strike, occupying the road. They were ordered to voluntarily disperse by the police but refused. They were accused of trespass and held an assembly till 2pm.
With regards to the illegal trespass, the prosecutor generally explained what happened but failed to demonstrate the specific offence of the two.
On the second occasion, from July 9 to 10, they together with around 7,000 citizens gathered at 7:03pm and held a concert, called, 'concert for solidarity' till 9:20pm. After the concert, all demonstrators marched toward to the shipyard occupying the street. The police blocked the road from the demonstrators passing and asked for dispersal. Around 11:25pm, some unidentified demonstrators allegedly attacked three policemen causing them to be injured. Mr. Song and Mr. Jeong were neither involved in this violence nor provoked the demonstrators to use violence against the police, nonetheless they were charged with the obstruction of the performance of special official duties. The police repeatedly called for dispersal but the demonstrators continued to hold an assembly till around 3:30pm on July 10.
On the third occasion, from July 30 to 31, they planned the peaceful assembly and demonstration and Mr. Song did not attend but Mr. Jeong did. Around 2,200 people gathered near a Subyun part in Busan around 9:30pm and occupied the street and hold an assembly till 8:50am on following day. The demonstrators were ordered to disperse by the police but refused. On July 31, around 1,500 demonstrators gathered and hold an assembly around Busan District Police Station around 11:55am.
On the forth occasion, from August 27 to 28, they did not attend but planned the peaceful assembly and demonstration. Around 3,500 people gathered in a square in Seoul and hold an assembly from 7pm to 9:25pm on August 27. After the assembly, the demonstrators marched toward a park occupying a street for about 4 kilometres. For this reason, they were charged with holding an assembly without approval and demonstration before sunrise and after sunset and general obstruction of traffic.
On the fifth occasion, from October 8 to 9, they did not attend but planned the peaceful assembly and demonstration. Around 2,000 people planned to gather in Busan railway station square and walk toward the shipyard but were blocked by the police and thereafter, the demonstrators moved to another place. From there, the demonstrators hold an assembly from 8:40pm to 9:40pm. They moved to a bridge in order to go to the shipyard but while blocked, they hold an assembly till midnight occupying the street. Unable to pass the bridge, the demonstrators moved to a square and held an assembly from 1:20am to 8:20am on October 9. Around 800 people moved to a Busan square at 10:15am and held assembly without police approval urging for the withdrawal of illegal dismissal.
Based on the information above, I would like to challenge the number of points how number of Acts is misapplying limiting the freedom of assembly and demonstration contrary to the Korean Constitution in real practice.
Firstly, there is a clear contradiction in the laws in the country. According to the article 21(1) of the Constitution, "All citizens shall enjoy…freedom of assembly and association." And article 21(2) says, "…licensing of assembly and association shall not be recognised". However, article 6 of the Act on Assembly and Demonstration requires an organiser to get an approval from the police station which has the jurisdiction. If the police station does not approve, then, any peaceful assembly or demonstration becomes automatically unlawful, being de facto operated as a licensing system contrary to the Constitution. A violation of the ban is punishable by imprisonment of up to two years or a fine of up to two million won according to the article 22(2) of the Act.
In addition, article 5(1)((2)) of the Act has a clause of ban on assembly and demonstration, which can be read, "An assembly or demonstration which clearly poses a direct threat public peace and order by inciting collective violence, threats, destruction, arson, etc". Due to this clause, the police chief has the broad discretionary power to ban on assembly or demonstration. The decision of ban is arbitrary or selective. A right of appeal exists in the Act but it is hardly expected for the senior police chief to reverse the decision made. It is because there is no independent system to evaluate or assess such decision.
Secondly, if there are unexpected numbers of people gathering in an assembly, it is inevitable for some of them to occupy a part of the street with no intention to obstruct traffic. In addition, if the procession is made, it is again inevitable to walk on the street which may obstruct the flow of traffic not totally but partially. The role of the police therefore should play in protecting the peaceful assemblers or demonstrators from possible interference by others and from possible car accident in guaranteeing with flow of traffic. Due to the complete disapproval on any assembly or demonstration, there is no choice but to enjoy the right to freedom in the Constitution by violating the existing Acts.
In a demonstration which is not approved, not only to this case but also previous cases relating to the application of the Acts, the prosecution service indicts organisers under the Criminal Act rather than the Act on Assembly and Demonstration. The punishment of criminal offence of the former has much longer period of imprisonment or more fines. The article 185 (general obstruction of traffic) of the Criminal Act can be read, "A person who damages, destroys or blocks a road, water-way, or bridge, or obstruct traffic by other means, shall be punished by imprisonment not more than ten years or by a fine not exceeding fifteen million won". In comparison, according to the article 23 of the Act on Assembly and Demonstration, an organiser who holds a demonstration which is disapproved based on the obstruction of traffic shall be punished by imprisonment not more than one year or by a fine not exceeding a million won.
Although the punishment of the Act on Assembly and Demonstration is already rigorous, the prosecution service indicted the two under the article 185 of the Criminal Act, which clearly results in deterrence not only to organisers to hold an assembly or demonstration with approval from the police which is not approved but also people from participating in the assembly or demonstration. The propriety test should be made before the court. The assessment of balance between the right to freedom of assembly or demonstration in the international human rights norms as well as Korean Constitution and existing domestic laws restricting the right should be followed as well. Apart from this, when the procession which is not approved is made, it is not because of the demonstrators but the police vehicles used as cordons to block the demonstrators to cross, which in fact causes the total obstruction of traffic. For this reason, the applied articles under the Criminal Act are believed to demonstrate that prosecution service indicted two organisers with the intent of punitive or malicious intent therein.
Thirdly, it is the fact that two organisers did not planned to organise violence assembly or demonstration and neither provoked nor agitated the demonstrators to use violence in each occasion but asked for peaceful assembly and demonstration. Unfortunately in the second occasion, a few individual demonstrators who were angry at total blockade or attack by the police had physical contact with the police. However, two organisers are charged with obstruction of the performance of special official duties. This indictment is made possible because of so-called, co-principals, under the article 30 of Criminal Act. It is originally adopted in order to punish organised criminal groups who are masterminds of serious criminal offences. However, the prosecution service applied such principle to two organisers who did nothing but to suggest peaceful assembly and demonstration. They are now accused of being responsible for the injuries imposed on the three policemen caused not by themselves but by a few angry demonstrators.
Fourthly, in the Act on Assembly and Demonstration, when unpermitted assembly or demonstration is held, the police may order assemblers or demonstrators to disperse. There is a punishment clause in the Act that those who attend the unpermitted assembly or demonstration. In addition to this, in a situation where the police may order of dispersal, if those who do not follow the order, they are punishable again. The two are now in double jeopardy for punishments.
Fifthly, the article 10 of the Act on Assembly and Demonstration is the prohibition of assembly or demonstration before sunrise and after sunset in the outside. In 2009, the ban on assembly before sunrise and after sunset is found unconstitutional by the Constitutional Court. The constitutionality of prohibition of demonstration before sunrise and after sunset is currently being before the Constitutional Court. It is general article which does not need an approval from the police since demonstration before sunrise and after sunset in the outside is completely prohibited.
I, therefore urge that legal suppression of Mr. Song and Mr. Jeong involved in promotion and protection of human rights should be thoroughly evaluated and assessed before the court so that various Acts should not be applicable in a way to restrict or limit rights and freedom enshrined in both Korean Constitution as well as international human rights instruments. Mere adoption of existing articles of Acts without consideration of rule of law may only invite miscarriage of justice and at the end, more restriction on rights and freedom will be rampant. The propriety as well as proportionality of various articles currently imposed to Mr. Song and Mr. Jeong should be well tested and thus, the legal suppression be lifted.
I also urge the government of the South Korea that the provisions of Acts which in fact limit or deprive citizens of freedom of peaceful assembly and demonstration should be amended in a way not to restrict but guarantee that everyone enjoys the freedom of peaceful assembly and demonstration. It is the duty of the government of the South Korea to amend those provisions so that people in the country are benefit from such amendments.
I am of the opinion that an assembly or demonstration in South Korea does not have characters of criminal offences such as riot, arson or threat to the life of the community but concerned that organisers or demonstrators become victimised by the Act on Assembly and Demonstration which is in fact operating as a permit system and restricting freedom of assembly and demonstration and freedom of expression. It appears that if a conflict unfortunately occurs, it is not between peaceful demonstrators and the people in the community but between peaceful demonstrators and the riot police who disapprove such assembly or demonstration and misuse of police power with impunity.
I further urge that the indiscriminate misapplication of law by the prosecution service should be properly evaluated and cross checked before the court. In fact, these sorts of misapplication of articles of various Acts not only apply to the two organisers but to whoever organises a peaceful assembly and demonstration. For this reason, many rights defenders in general in South Korea have faced lots of legal suppressions in order to enjoy such rights enshrined in the international human rights instruments and Korean Constitution.
The applications of various existing laws restricting rights and freedom further explains that the rule of law has not been developed rather rights and freedom are restricted by the existing laws. Despite the fact that it is one of important elements that various and different opinion and expression exist in democratic society, it is unfortunate that rights defenders in the South Korea are deemed to be punishable by the domestic laws which are incompatible with international human rights instruments to which the South Korea is a state party.
Thank you.
Yours sincerely,
----------------
PLEASE SEND YOUR LETTERS TO:
1. Mr. Lee Myung-Bak
President
1 Sejong-no, Jongno-gu
Seoul, 110-820
REPUBLIC OF KOREA
Fax: +82 2 770 4751
E-mail: foreign@president.go.kr or president@cwd.go.kr or president@president.go.kr
2. Mr. Kwon Jea-Jin
Minister of Justice
88 Gwanmon-ro, Gwachon-si
Gyonggi Province 427-760
REPUBLIC OF KOREA
Tel: +82 2 503 7023
Fax: +82 2 2110 3079 / 503 7046
E-mail: webmaster@moj.go.kr
3. Mr. Han Sang-Dea
Prosecutor General
Supreme Prosecutor's Office
1730-1, Seocho3-dong
Seocho-gu, Seoul
REPUBLIC OF KOREA
Fax: +82 2 3480 2555
Tel: +82 2 3480 2000
E-mail: koreapros@spo.go.kr
4. Mr. Maeng Hyeong-Gyu
Minister
Ministry of Public Administration and Security
77-6 Sejongno Jongno-gu, Seoul
REPUBLIC OF KOREA
Tel: +82 2 2100 3399
E-mail: crm@mopas.go.kr
5. Hon. Yang Seung-Tae
Chief Justice
Supreme Court
219 Seocho-daero Seocho-gu
Seoul 137-750
Republic of Korea
Tel: + 82-2-3480-1100, 1114
E-mail: webmaster@scourt.go.kr
Thank you.
Urgent Appeals Programme
Asian Human Rights Commission (ua@ahrc.asia)
