Legal framework regarding torture:
On the Convention against torture:
The Republic of Korea has ratified the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment on January 9, 1995 and the Convention came into effect since February 8. However, it has not yet ratified the Optional Protocol to the Convention. However, several articles in domestic law criminalise the act of torture.
On the existing domestic law:
Several articles can be found in the domestic law that criminalise the practice of torture. Article 12 (2) of the Constitution has clearly mentioned, ‘ No citizen shall be tortured or be compelled to testify against himself in criminal cases’. In addition, same article (7) of the Constitution says, ‘In a case where a confession is deemed to have been made against a defendant’s will due to torture, violence, intimidation, unduly prolonged arrest, deceit or etc., or in a case where a confession is the only evidence against a defendant in a formal trial, such a confession shall not be admitted as evidence of guilt, nor shall a defendant be punished by reason of such a confession’. Likewise, a person is free from torture as rights under the Constitution.
It also clearly mentions that confession itself under certain circumstances shall not be admitted as evidence in the Criminal Procedure Act. Its article 309 stipulates, ‘Confession of a defendant extracted by torture, violence, threat or after prolonged arrest or detention, or which is suspected to have been made involuntarily by means of fraud or other methods, shall not be admitted as evidence of guilt’.
In relation to perpetrators, punishment article is stipulated in the Penal Code. The article 125 under the chapter 7 of the Penal Code says, ‘A person who, in performing or assisting in activities concerning judgement, prosecution, police or other functions involving the restraint of the human body, commits an act of violence or cruelty against a criminal suspect or against another person while in the performance of his duties, shall be punished by imprisonment for not more than five years and suspension of qualifications for not more than ten years’.
Even though there are several articles in the Constitution, Penal Code and Criminal Procedure Act to criminalise the practice of torture, there has been, so far, no clear definition of ‘torture’. Therefore, those provisions of laws do not cover the complete concept of torture in the CAT.
On compensation:
The Republic of Korea has adopted the State Compensation System as a right in the Constitution. Its article 29 (1) says, ‘In case a person has sustained damages by an unlawful act committed by a public official in the course of official duties, he may claim just compensation from the State or public organization under the conditions as prescribed by Act. In this case, the public official concerned shall not be immune from liabilities.’ As for this, there is a State Compensation Act. The amount is not fixed but considered with other factors such as the salary at that time of damage that was caused, the level of physical damages and the loss of future labour. The person can also claim for compensation on the psychological damages in consideration with the victim’s social status, level of damage, status of living and compensation of the damages (Article 3 (5) of the Act).
There is no clear article regarding the extinctive prescription of acts of torture but the acts of torture belong to ‘unlawful act’ in the State Compensation Act. Therefore it applies to the Civil Act. Application for compensation is stipulated in Civil Act. Its article 766(1) of says that the extinctive prescription will be expired in three years if the victim or its legal representative does not enjoy the right to claim after they come to know its damages or offender.
On witness protection:
There are laws in the Criminal Procedure Act concerning about the witness but this is only for the court procedure. There is no specific law concerning witness protection. There is Crime Victim Protection Act but the definition of crime victim in the Act is those who sustain damages committed by another person. Therefore, it is not yet obliged to the State as a subject to provide rehabilitation of a victim of torture or psychological counseling.
Due to the lack of government failure, a group of NGOs organizing to provide trauma counseling to the victims of torture has started in 2008.
The magnitude of the problem:
The Republic of Korea has recognised the competence of the Committee Against Torture pursuant to Article 21 and 22 of the Convention in November 2007.
However, two significant problems in the country exist. First, redress for the victims who were tortured and convicted through the confession by torture and fabricated evidence by the Agency for National Security Planning, the predecessor of the National Intelligence Service. After the establishment of Truth and Reconciliation Commission at the end of 2005, such cases were examined so that the victims can bring the result of the findings to the court for a review. However, such cases were reviewed mainly not based on the confession through the act of torture but prolonged detention. In particular, those victims of spy cases where the government agencies had fabricated simply wanted themselves to be found innocent rather than punishing the then police officers. Those police officers still keep in mind that the act they had done at that time was for the state. Some victims were found innocent through the review but the government has still failed to investigate fact finding to the act of torture in the past, nor provide comprehensive programmes for the treatment and rehabilitation (both physical and mental) of victims of torture and ill-treatment, including the right of fair and adequate compensation. The UN Committee Against Torture has also expressed its concerns about this failure. (CAT/C/KOR/CO/2)
Second, even though there are several provisions to criminalise the act of torture or ill-treatment but there is no definition of torture in accordance with the article 1 of the Convention. During a review of South Korea’s implementation of the Convention Against Torture conducted by the Committee Against Torture in May 2006, in response to questions about the lack of a definition of torture in the country’s criminal act, a member of the Korean delegation admitted that: “.we did not fulfil the sufficient condition of this issue. So upon returning home, we will make positive review on revision of Criminal Act in cooperating provisions on the definition of torture based on the article 1 of the Convention.” For this reason, police officers are punished not by the act of torture or ill-treatment but by the violence in abusing their official capacity.
In addition, the cases of ill-treatment take place in more sophisticated way. For example, wherever there is a conflict in between a company and labourers or a place where redevelopment is designed for, police officers are usually in the presence of violence. However, the mandate of the police in place in such cases is waiting till labourers or residents are beaten by security guards hired by those companies and then arrest labourers and residents when the situation is over. The police seldom investigate such violence but take legal action against the arrestees for either obstruction of business or obstruction of official duties.
