FOR IMMEDIATE RELEASE
AHRC-STM-271-2008
October 22, 2008
A Statement by the Asian Human Rights Commission
SOUTH KOREA: Time to define ‘torture’ in Penal Code
Whenever being asked by the Committee Against Torture (CAT) and the Human Rights Committee (HRC) about the lack of definition of torture in the domestic law, the representatives of South Korea have given the following reply: South Korea does not have a definition of torture, as such, required by the CAT, but it has various laws in the penal code that have a much broader definition than that of the CAT and it prohibits torture and other cruel, inhuman or degrading treatment or punishment. For these reasons, the government has refused to define torture in the domestic law.
Cases of torture directly committed by public officials have been reported, only rarely. There is one major reason contributing to this lack of reporting. It is that the government has, in fact, handed over its unclean jobs to private actors. The actual torturer often does not wear a uniform. These actors are, in particular, companies which hires thugs for such purposes. They want to eliminate troublesome workers, especially temporary workers holding protests and they do so with the consent or acquiescence of the police. The ruffians are hired as ‘security guards’ in places where there are disputes such as in areas of housing renovation and worker’s protests. Hawkers in the street are also targeted by officials with the excuse that the beautification of the streets is a priority.
A company, Kiryung Electronics, illegally dismissed all irregular workers and was forced to pay a fine of 5 million Korean won (USD 5,000) in 2005. The workers dismissed have asked for the company to reemploy them. As this protest has lasted for three years, some members of parliament have intervened on their behalf. However, all attempts at negotiation failed and the company has refused to reemploy them. Two leaders of the labour union held a hunger strike for about three months till mid September and continued holding a protest near the main gate of the company, legally a public place. As the public became aware of this case from various news reports, people began to feel empathy and supported their struggle. People have joined and stood with them.
According to the information received, at 8am on 20 October 2008, the supporters with other workers held a peaceful protest. Thugs hired by the company and its staff intentionally impeded the protest. They used filthy language and verbal sexual abuse against the protestors. While protesting this behaviour, workers and people were both assaulted by thugs and the company staff. Due to the beatings, some suffered broken noses and teeth. The same kind of violence occurred on October 15. Police were present in the place both days but they allowed the violence to continue. Later the police arrested only workers and their supporters but none of the ruffians hired by the Kiryung Electronics Company. Some lawyers attempted to interview those arrested but the police did not allow it.
This is not the only case where the police, in the presence of violence, have shown bias in favour of the company and its hired hoodlums. According to the Security Industry Act, the police have the responsibility to provide periodic education to those who are engaged in the work of a ‘security guard’ in order such abuse is prevented. However, whenever violence happened even during the execution of administrative orders, the police keep themselves away from the scene and arrest the injured, mostly civilians, once it is finished. They not only take them to the police station for investigation but in fact file charges against them.
In these protest situations, there are two glaring failures: the failure of the police to promptly intervene in the violence and the failure of the police in not punishing those who used violence. In fact, they are providing impunity for the criminal gangs. The police responsible for this negligence should be investigated, prosecuted and punished according to law.
While the South Korean government claims that there is no need to define torture, in fact, the absence of a proper definition is utilised in order to fraudulently defeat the purposes of law. By separation of the function of assault and the function of arrest, persons who are not officially state officers, such as company security guards, thugs and goons are used with the knowledge of the law enforcement agencies to assault protestors and others. The law enforcement agencies like the police thereafter attend to the ‘clean up’ part of the job by arresting and prosecuting the protestors.
In the definition of torture as found in the Convention against Torture the actions done by these other persons, not in uniform which amount to acts done with the acquiescence of the law enforcement officers and therefore would fall within the definition of torture. The various definitions of crimes which appear as definitions of torture cannot, in fact, deal with this situation of the separation of functions between persons not in uniform engaging in assaults and the police doing the arrest.
For a state to allow this mockery of the law is itself a scandalous situation. The rule of law cannot survive when such practices are allowed whereby the state can do acts which would constitute torture without facing the legal consequences of this act. This highlights the fact that torture needs to be clearly defined in terms of the Convention against Torture and international law so that these fraudulent means of defeating the purposes of the law can be stopped. The trade unions and civil society organisations have good reason to take a very active part in ensuring the UN Convention against Torture finds proper expression in South Korea.
