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A. INTRODUCTION
During the 28th Session of the Universal Periodic Review Working Group, the Working Group is scheduled to review the human rights record of the Republic of Korea (“South Korea”). The review is fixed for 9 November 2017.1
This report is submitted to the UN Human Rights Council for consideration during South Korea’s upcoming Universal Periodic Review (UPR). The report highlights the various serious human rights violations committed during the detention of, and the trial proceedings against, former President Park Geun-hye (“President Park”) that have arisen since March 2017. It is submitted by the MH Group, an international human rights organisation, and prepared by an international legal team, instructed by MH Group and its President, Dr Mishana Hosseinioun. MH Group and the international legal team have recently filed an urgent Communication to the UN
1 See, Revised Timetable for the 28th Session of the UPR Working Group (6-17 November 2017) (http://www.ohchr.org/EN/HRBodies/UPR/Pages/UPRSessions.aspx).
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Working Group on Arbitrary Detention and the Special Rapporteur on Torture andOther Cruel, Inhuman or Degrading Treatment or Punishment that documents the human rights violations committed against President Park since her arrest in South Korea.
President Park has been detained in Seoul since 31 March 2017 following her impeachment and is currently being tried on counts of bribery and other charges. She has been denied provisional release throughout her trial despite her chronic medical conditions that have been deteriorating since her detention. She is 65 years old and in poor health. Significantly, on Friday last week, 13 October 2017, her detention was extended by order of the court for a further six months and she was again refused release, even with conditions.2 She was due to be released under the laws governing detention in South Korea after 6 months on Monday 16 October 2017, but the court instead ruled that her detention should continue. As a result on 16 October, President Park’s entire legal team resigned in protest at her treatment in detention and the unfair nature of the trial proceedings. She addressed the court saying that, “My lawyers and I felt helpless ... I have lost faith that the court will do a fair job in accordance with the constitution and conscience”.3
This report is submitted outside of the deadline for ‘other stakeholders’ to file written contributions to the Universal Period Review process, which was 30 March 2017. MH Group requests that it is nevertheless accepted and considered given that it was not possible to have filed it by the deadline when the subject only arose thereafter – President Park was only arrested on 31 March 2017 and the violations that are highlighted herein have arisen and been exacerbated since then. This report has indeed been filed now given that President Park was not released on 16 October 2017 and her period of detention was extended without any proper legal basis.
It is imperative that President Park’s situation is taken in consideration when the human rights situation in South Korea is reviewed at the upcoming UPR. This report
2 “South Korean Court Extends Detention of Ex-President Park”, NY Times, 13 October 2017 (https://www.nytimes.com/aponline/2017/10/13/world/asia/ap-as-skorea-ex-president-detained.html). 3 See, for example, “South Korea: Park Geun-hye denounces trial as 'political revenge'”, The Guardian, 16 October 2017 (https://www.theguardian.com/world/2017/oct/16/ex-south-korea-president-park-guen-hye- decries-corruption-trial-as-political-revenge).
seeks to provide the necessary information on her position for examination before and at the UPR. In light of these circumstances having only arisen recently, it would be unfair and disproportionate to exclude this report that addresses them. Given the severity of the violations committed against President Park, her precarious health condition when her period of detention has now been prolonged, and the fact that her lawyers have resigned, it is most important for the UPR to consider her situation. South Korea’s human rights record must accurately reflect the violations committed at all levels, and wherever perpetrated, particularly given the ‘politicised’ character of President’s Park case and the precedent it sets for the treatment of all opponents of the Government in South Korea. It imperils the presumption of innocence, and the rule of law being subverted for potential political gains.
6. The UN High Commissioner for Human Rights, the UN Human Rights Council, and all member States are urged to examine this report and the conditions under which President Park is being held, as well as the submissions made to the UN Working Group on Arbitrary Detention (see below), and to direct that the South Korean authorities immediately investigate the situation and release President Park so that she can receive dedicated medical care. The violations being committed must be highlighted with recommendations for urgent remedies. At the very least, an independent doctor must be permitted to have unfettered access to President Park for a full medical examination.
B. RECENT DEVELOPMENTS OF GRAVE CONCERN
As noted above, this report is submitted now for consideration during the upcoming UPR of South Korea as a result of recent developments affecting the detention and health of President Park.
In order to extend President Park’s detention beyond the first six months under South Korean law, prosecutors were required to seek a fresh arrest warrant with additional charges to those being pursued in the current trial.4 The prosecutors have managed to
4 See, “Prosecutor Seek to Extend Park’s Detention”, The Chosunilbo, 27 September 2017; “South Korean Prosecutors Seek Extended Detention of Impeached President”, PM News, 26 September 2017; “Prosecution seeks additional arrest warrant for ex-president”, Korean Herald, 26 September 2017.
convince the court of the need to renew her detention, despite there being no new evidence, and no legitimate basis to keep her in custody.
The court held on 13 October, as stated above, that President Park’s detention would be extended for a further 6 months, finding that there was the possibility that she would not attend her trial and could destroy evidence.5 These assertions are unsubstantiated and without merit. In any event, under accepted international standards, detention is the exception.6 It should only be ordered when absolutely necessary as persons are presumed innocent until proven guilty.7 It is always open to the court to impose conditions for provisional release or house arrest if there were any genuine and proven concerns, and to strike a fair balance between the rights of the accused and the continuing trial proceedings.
Moreover, the court’s decision to extend the period of custody is excessive and unduly harsh in the circumstances. As has been confirmed by medical reports and observations, President Park is ailing and vulnerable, and her situation is being aggravated by her continued detention. Medical experts advise that she is not receiving proper medical care in prison and that given her diagnosis she needs medical treatment to be administered out of custody.
She has been diagnosed as suffering from chronic lower back pain, osteoarthritis in her knee and shoulder joints, Addison’s disease (a rare disorder of the adrenal glands), and malnutrition, as well as being under psychological stress that exacerbates these conditions. Even though it has been reported that she has received some medical treatment while in prison, no medical records have been made available by the prison authorities, and no independent doctors have had the opportunity to have access to President Park. Her condition is only getting worse and there is no evidence that she is receiving adequate care.
Medical experts advise that she needs to have an immediate medical examination and treatment out of prison. Her poor food ingestions in prison that may cause
5 “South Korean Court Extends Detention of Ex-President Park”, NY Times, 13 October 2017 (https://www.nytimes.com/aponline/2017/10/13/world/asia/ap-as-skorea-ex-president-detained.html). 6 See, para. 30 below. 7 See, para. 30 below.
malnutrition are also a serious medical problem that must be addressed without delay. It has also been highlighted that she cannot continue to have to sit through lengthy trial hearings each day given her musculoskeletal diseases. It is also essential that a psychiatric evaluation is undertaken urgently.8
All of these circumstances show that President Park’s right to medical treatment while detained is being violated.9 Such violations have been found to contribute to the arbitrary nature of detention,10 and to jeopardise the right to a fair trial if the accused is not well enough to properly contribute to and participate in the preparation of her defence, as is the situation in President Park’s case.
In addition, it must be taken into account that President Park is at risk of being detained beyond the new extension given that the trial could go on for more than six months. The prosecutor has many witnesses still to call and then the defence would have to be heard. In the event that she was convicted, the appellate proceedings under the national laws allow for de novo review of the evidence and any fresh evidence submitted, which would permit an even further period of custody.
It is also a matter of great concern that information has come to light about the very poor condition of President’s Park prison cell from a fellow inmate.11 The cell is reported to be dirty, cold and with no bed for President Park to sleep on. It is reported that she has been sleeping on the floor, which plainly aggravates her chronic conditions.12
Furthermore, a report on 28 September 2017 indicates that prosecutors have named President Park as a witness to be called in the appellate procedures against Jay Y. Lee,
8 In relation to the above matters, a medical report is being filed with the UN Working Group on Arbitrary Detention.
9 “Supporters of South Korea ex-leader Park ask U.N. body to probe her detention conditions”, Reuters, 26 September 2017 (http://www.reuters.com/article/us-southkorea-politics-park/supporters-of-south-korea-ex- leader-park-ask-u-n-body-to-probe-her-detention-conditions-idUSKCN1C10G0?il=0). 10 See, Report of the Working Group on Arbitrary Detention, Question of the Human Rights of all Persons Subjected to any Form of Detention or Imprisonment, E/CN.4/1992/20, 21 January 1992, para. 23(f), states that violations of the right to a fair trial “confer[] an arbitrary character on the decision to deprive an individual of his freedom.” 11 See, http://www.ilbe.com/10052433040. See also, Canada Amnesty Petition to the G20 Leaders with regard to human rights violations in South Korean, 4 July 2017. 12 “Ousted South Korean president suffering in jail, lawyers say”, CNN, 17 October 2017 (http://edition.cnn.com/2017/10/17/asia/park-geun-hye-south-korea/index.html).
the heir to the Samsung Group, who was recently convicted of corruption and bribery charges and sentenced to five years imprisonment. The news that President Park will be called as a witness raises significant and immediate concerns that she will be subjected to further abusive and coercive interrogations for the purpose of obtaining evidence and statements to use in the proceeding against Jay Y. Lee. These concerns stem from the treatment of President Park’s co-accused who were abused with sleep deprivation, interviews lasting from 10-18 hours per session and physical threats against themselves and their family if they did not provide evidence or confessions incriminating President Park.13 The fact that President Park has already been subjected to similar abusive interrogation techniques in the time period leading up to the beginning of her own trial (including sleep deprivation and interrogations occurring in the middle of the night and lasting over 10 hours)14 increases the risk that such techniques would be used again impermissibly to extract evidence sought in relation to Mr. Lee’s appellate trial.
17. It is also notable that reports have criticised Mr. Lee’s trial as “appear[ing] to largely be a piece of political stagecraft.”15 Even more disturbing are reports criticising “Lee’s conviction [as] a prerequisite to Park’s conviction.”16 Such observations highlight that these trials are not motivated by compelling, cogent and credible evidence of crimes committed but are driven by other considerations.
C. COMMUNICATION TO THE UN WORKING GROUP ON ARBITRARY DETENTION
18. As stated above, a Communication was submitted by the international legal team working on behalf of President Park and instructed by MH Group detailing the violations to President Park’s rights in detention. The Communication was submitted, on an urgent basis, on 15 August 2017. It is essential that it is taken into account by
13 See, paras. 20 and 33 below. 14 See, paras. 20 and 33 below. 15 “A System on Trial: South Korean Political Reform Requires Evidence, Not Stagecraft”, Forbes, 27 September 2017. 16 “A System on Trial: South Korean Political Reform Requires Evidence, Not Stagecraft”, Forbes, 27 September 2017.
all of the parties as part of the UPR. The key features of the Communication are set out below for consideration.
The Communication highlighted the conditions of President Park’s detention, her serious medical conditions, unreasonable and prolonged detention, and the procedural abnormalities of the domestic proceedings against her. The Communication explained that President Park’s fundamental rights have been violated under the Universal Declaration of Human Rights; the International Covenant on Civil and Political Rights; the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; and the Convention on the Elimination of All Forms of Discrimination against Women, including her right against arbitrary detention, right against cruel and degrading treatment and right to a fair trial.
The Communication included information on the following abuses and violations committed against President Park in detention:
President Park’s right to adequate medical care has been denied while in detention for chronic and painful medical conditions;
President Park was denied requests for essential medical care including after she collapsed in the courtroom on 30 June 2017;
President Park’s right to a fair trial and right against cruel, inhuman and degrading treatment was violated when subjected to coercive and abusive interrogation techniques, including sleep deprivation and interrogations late at night and exceeding 10 hours per session;
Her right to a fair trial and due process has been violated when co-accused in President Park’s trial – who may be called to testify against her – have been subjected to coercive and abusive interrogation techniques, particularly by way of sleep deprivation, interviews lasting 10-18 per session, and physical threats to themselves and family members in order to induce confessions and incriminating evidence;
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Her right to a fair trial and against cruel, inhuman and degrading treatment has been violated by a trial schedule which has been arbitrarily prolonged with proceedings regularly exceeding 10 hours a day; denying the defence adequate time to prepare and meaningfully contribute, and aggravating President Park’s medical conditions;
President Park has been treated inhumanly and in a degrading manner when repeatedly handcuffed in a rough manner during court transfers which have resulted in significant bruising and required her to wrap her wrists;
Her cell has been constantly lit, depriving her of sleep, and she has been denied a bed in her cell.
21. These violations are elaborated below so that they can be taken into account during the UPR and that South Korea can be directed to implement remedial steps.
a. Violations of the right to medical care and against cruel, inhuman and degrading treatment
22. The Communication highlights violations to President Park’s right to adequate and essential medical care17, which have resulted in her being subjected to cruel, inhuman and degrading treatment.18 The Communication submits that:
• Although President Park suffers from several chronic and painful medical conditions including renal failure, gastric ulcers, knee osteoarthritis, severe
17 See, for example, Article 25 of the Universal Declaration of Human Rights, and Article 12 of the ConventionArticle 25 of the Universal Declaration of
Human Rights states that, “
18 See, for example, Article 5 of the Universal Declaration of Human Rights, and Article 7 of the International Covenant on Civil and Political Rights. Article 5 of the Universal Declaration of Human Rights states that “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment” and Article 7 of the International Covenant on Civil and Political Rights states that “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.”
on the Elimination of All Forms of Discrimination against Women.
Everyone has the right to a standard of living adequate for the health and well-being
of himself ... including ... medical care and necessary social services, and the right to security in the event ...
[of] sickness ...” and
Article 12 of the
Convention on the Elimination of All Forms of Discrimination against
Women states that “States Parties shall take all appropriate measures to eliminate discrimination against women in the field of health care in order to ensure, on a basis of equality of men and women, access to health
care services.”
lumbago and lower back pain requiring specific medical treatment to manage the conditions and pain, she has not received appropriate treatment for more than six months while she has been in detention. The deprivation of essential medical treatment has included the rejection of requested medical care after President Park collapsed in the courtroom on 30 June 2017.19
• President Park’s medical conditions have been aggravated by conditions and treatment in detention including detention in a cell which is constantly lit and is without a bed, being handcuffed in a rough manner that has resulted in significant bruising, and a strenuous and exhausting trial schedule which frequently exceeds 10 hours of proceedings in a day.
Medical treatment, particularly essential medical services, are a fundamental element of the right to humane treatment while in detention.20 The right to medical care is also an essential safeguard against ill-treatment and cruel or degrading treatment, and the link between adequate medical care and cruel, inhuman and degrading treatment has been underscored by several UN groups.
The Working Group on Arbitrary Detention and the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment have found that “essential medical services” must be provided in order to guard against the cruel or degrading treatment of detained persons.21 The Special Rapporteur on Torture has emphasised that a “State must provide adequate medical care, which is a minimum
19 Canada Amnesty Petition to the G20 Leaders with regard to human rights violations in South Korean, 4 July 2017. See also, “Supporters of South Korea ex-leader Park ask U.N. body to probe her detention conditions”, Reuters, 26 September 2017 (http://www.reuters.com/article/us-southkorea-politics-park/supporters-of-south- korea-ex-leader-park-ask-u-n-body-to-probe-her-detention-conditions-idUSKCN1C10G0?il=0).
20 See, for example, Universal Declaration of Human Rights, Art. 25; Convention on the Elimination of All Forms of Discrimination against Women, Art. 12. Article 25 of the Universal Declaration of Human Rights states that “Everyone has the right to a standard of living adequate for the health and well-being of himself ... including ... medical care and necessary social services, and the right to security in the event ... [of] sickness ...” and Article 12 of the Convention on the Elimination of All Forms of Discrimination against Women states that “States Parties shall take all appropriate measures to eliminate discrimination against women in the field of health care in order to ensure, on a basis of equality of men and women, access to health care services.”
21 See,
Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment of Punishment, Interim Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment (a/68/295), UNODC/CCPCJ/EG.6/2013/INF/2, 7 October 2013, para. 50.
📷
Joint Open Letter by the UN Working Group on Arbitrary Detention; the Special Rapporteurs on
extrajudicial, summary or arbitrary executions; torture and other cruel, inhuman or degrading treatment or punishment; the right of everyone to the highest attainable standard of mental and physical health; and the Committee on the Rights of the Child, on the occasion of the United Nation General Assembly Special Session
on Drugs New York, 15 April 2016; and
and indispensable material requirement for ensuring the humane treatment of persons in its custody” and that medical examination, including after transfers from court and into custody and on a routine basis, “constitutes one of the basic safeguards against ill-treatment.”22
Similarly, International Courts and Tribunals have recognised “the right of all detainees to be treated in a humane manner in accordance with the fundamental principles of respect for their inherent dignity and of the presumption of innocence” and specifically highlighted that to be treated humanely requires adequate consideration of the accused’s medical conditions.23 The European Court of Human Rights has confirmed that denying “requisite medical assistance” can rise to the level of inhumane, degrading and cruel treatment in light of the “right of all prisoners to conditions of detention which are compatible with human dignity, so as to ensure that the manner and method of execution of the measures imposed do not subject them to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention; in addition, besides the health of prisoners, their well-being also has to be adequately secured, given the practical demands of imprisonment.”24
The denial not only of regular medical treatment and care, but also of essential medical services including when President Park collapsed in court, show that her right to be treated humanely is being disregarded and that her treatment can be characterised as cruel and degrading. This failure constitutes a violation of the Republic of Korea’s international obligation to provide medical care and to protect detainees against cruel and degrading treatment.
b. Violations of the right against arbitrary detention
22 Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment of Punishment, Interim Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (a/68/295), UNODC/CCPCJ/EG.6/2013/INF/2, 7 October 2013, para. 50. See also, Un Human Rights Council, Resolution 10/24, Torture and other cruel, inhuman or degrading treatment or punishment: the role and responsibility of medical and other health personnel, 27 March 2009, paras. 4, 9.
23 See, International Criminal Tribunal for the Former Yugoslavia, Prosecutor v.
24 European Court of Human Rights, Case of Mouisel v. France, Application no. 67263/01, Judgment, 14 November 2002, para. 40.
on the Motion for Provisional Release of the Accused Momir Talic, 20 September 2002, paras. 31, 32.
27. The Communication further details violations to President Park’s right against arbitrary detention.25 The Communication submits that:
President Park’s detention is ‘unreasonable, unnecessary and disproportionate’26 in all of the circumstances as she has been consistently denied the opportunity to seek provisional release or house arrest despite the fact that she clearly has a fixed address, presents no flight risk, nor any threat to any person or witness.
Provisional release has been refused even though President Park suffers from chronic health conditions, as noted above, which have gone untreated and have been exacerbated by her conditions of detention. These conditions could be adequately addressed and significantly improved were she released and hospitalised. In addition, the fact that her offences are of a non-violent nature removes the risk that President Park constitutes any threat to the public that could justify continued detention. No rational and proportionate grounds have been presented or relied upon to justify President Park’s detention, leading to the conclusion that her detention is arbitrary.27
28. In this regard, it is notable that the UN Human Rights Committee has relied on Article 9 of the ICCPR to find that the term arbitrary’ “must be interpreted more broadly to include elements of inappropriateness, injustice and lack of predictability. This means that remand in custody pursuant to lawful arrest must not only be lawful but
25 See, for example, Article 9 of the Universal Declaration of Human Rights and Article 9 of the International Covenant on Civil and Political Rights. Article 9 of the Universal Declaration of Human Rights states that “No one shall be subjected to arbitrary arrest, detention or exile” and Article 9 of the International Covenant on Civil and Political Rights states that “1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.” And “2. Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him.”
26 See, Report of the Working Group on Arbitrary Detention, A/HRC/22/44, 23 December 2012, p. 2, 62 which states that the definition and scope of arbitrariness under customary international law requires a “thorough examination of lawfulness; reasonableness; proportionality and necessity of any measure depriving a human being of his or her liberty” and “the legal basis justifying the detention must be accessible, understandable, non-retroactive and applied in a consistent and predictable way to everyone equally.” See also, Report of the Working Group on Arbitrary Detention, Civil and Political Rights, Including the Questions of Torture and Detention, E/CN.4/2004/3, 15 December 2003, para. 84, which states that “in all circumstances deprivation of liberty must remain consistent with the norms of international law.”
27 See, UN Human Rights Committee, van Alphen v. the Netherlands (Communication No. 305/1988),CCPR/C/39/D/305/1988, 23 July 1990, para. 5.8, and UN Human Rights Committee, Womah Mukong v. Cameroon, Communication No. 458/1991, CCPR/C/51/D/458/1991, 10 August 1994, para. 9.8.
reasonable in all the circumstances. Further, remand in custody must be necessary in all the circumstances, for example, to prevent flight, interference with evidence or the recurrence of crime.”28
29.As noted above, the arbitrary nature of President Park’s detention is further highlighted by the fact that extraordinary steps have been taken to continue her detention.
Under international law, it is well established that bail or provisional release as a rule “should be granted, except in situations where the likelihood exists that the accused would abscond or destroy evidence, influence witnesses or flee.”29 Human rights bodies such as the European Court on Human Rights, African Commission on Human and Peoples’ Rights and the Inter-American Commission on Human Rights have concluded that bail or provisional release is the ‘default position’ over continued detention.30 For example, the Inter-American Commission on Human Rights stated that “preventative detention ... shall only be applied within the strictly necessary limits to ensure that the person will not impede the efficient development of the investigations nor will evade justice.”31
None of these factors are applicable in the present case, and instead, good cause exists for immediate provisional release that would allow for President Park to receive the necessary medical treatment while still guaranteeing the integrity of the proceedings.
c. Violations of the right to a fair trial
28 UN Human Rights Committee, van Alphen v. the Netherlands (Communication No. 305/1988),CCPR/C/39/D/305/1988, 23 July 1990, para. 5.8, and UN Human Rights Committee, Womah Mukong v. Cameroon, Communication No. 458/1991, CCPR/C/51/D/458/1991, 10 August 1994, para. 9.8. 29 See, Michael and Brian Hill v. Spain, Communication No. 526/1993, U.N. Doc. CCPR/C/59/D/526/1993, 2 April 1997, para. 12.3.
30 See for example, African Commission on Human and People’s Rights, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, para. M(1)(e); Council of Europe, Recommendation (2006)13 on the Use of Remand in Custody, the Conditions in which it takes place and the Provision of Safeguards against Abuse, para. 6.
31 Inter-American Commission on Human Rights, Principles and Best Practices on the Protection of Persons Deprived of Liberty in the Americas, Principle III(2). See also, UN Human Rights Council, Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, adopted by General Assembly resolution 43/173 of 9 December 1988, Principle 39.
The Communication highlights violations to President Park’s right to a fair trial during both the impeachment proceedings against her and the on-going criminal trial. This includes her right to be tried by an independent and impartial tribunal, her right to be presumed innocent until proven guilty and to adequate time and facilities to prepare a defence, and further demonstrates that her detention is arbitrary.32
The Communication sets out that:
Impeachment proceedings: The impeachment proceedings conducted from 9 December 2016 to 10 March 2017 before the Constitutional Court were not based on proper legal considerations, but were instead politically motivated and in violation of President Park’s rights. The political nature of the proceedings is demonstrated by actions such as the National Assembly’s rejection of President Park’s offer to resign as President in November 2016 because her resignation would, in the view of the Government, save her from public embarrassment during impeachment proceedings. She was publicly stripped of her presidential powers and duties before the impeachment proceedings began and before any evidence was presented. The proceedings before the Constitutional Court were criticised for being divisive, politically biased, and without a proper evidential and forensic foundation,33 with the hallmarks of a ‘show trial’.
On-going criminal trial proceedings: Irregularities in the criminal proceedings include the fact that President Park was arrested and detained for three weeks before any formal charges were made, and the fact that President Park and her co-accused – who may be called to provide testimony against President Park – have been subjected to coercive and abusive interrogation techniques aimed at extracting adverse statements and confessions. The coercive and abusive
32 Report of the Working Group on Arbitrary Detention, Question of the Human Rights of all Persons Subjected to any Form of Detention or Imprisonment, E/CN.4/1992/20, 21 January 1992, para. 23(f), states that violations of the right to a fair trial “confer[] an arbitrary character on the decision to deprive an individual of his freedom.”
33 “Lawyers for South Korea's Park accuse court reviewing impeachment of bias”, Reuters, 22 February 2017(http://www.reuters.com/article/us-southkorea-politics-idUSKBN161143). See also, http://www.koreaherald.com/view.php?ud=20161218000220 and http://www.koreaherald.com/view.php?ud=20170222000955.
interrogation techniques have included interrogations lasting from 10 to 18 hours and at late hours. In addition, interrogations of individual co-accused have included threats of physical harm or arrest against their families unless a confession or the desired evidence is provided. In addition, artificially expedited and unduly protracted trial schedules in which the court sits four days a week for 10 hours a day34 has negatively impacted President Park’s health and existing medical condition, and has made it particularly difficult for President Park physically and mentally to endure the drawn-out daily proceedings and meaningfully to contribute to the preparation of her defence.35
34. International human rights law clearly protects the right to a fair trial, the right to “equality” during a trial by “an independent and impartial tribunal”, the right to be “presumed innocent until proved guilty”, and the right to “adequate time and facilities for the preparation of [a] defence.”36
34 “Former South Korean president Park Geun Hye refuses order to testify in Samsung heir's trial”, The Straits Times, 19 July 2017(http://www.straitstimes.com/asia/east-asia/former-south-korean-president-park-geun-hye-refuses-order-to-testify-in-samsung-heirs).
35 “Former South Korean president Park Geun Hye refuses order to testify in Samsung heir's trial”, The Straits Times, 19 July 2017(http://www.straitstimes.com/asia/east-asia/former-south-korean-president-park-geun-hye-refuses-order-to-testify-in-samsung-heirs); “Ex-South Korean president skips graft hearings over ill health”, Agencia EFE, 20 July 2017
(https://www.efe.com/efe/english/portada/ex-south-korean-president-skips-graft-hearings-over-ill- health/50000260-3331008); “Former South Korea president faints during 8-hour court appearance”, UPI, 30 June 2017 (https://www.upi.com/Top_News/World-News/2017/06/30/Former-South-Korea-president-faints- during-8-hour-court-appearance/7071498842958/). 36 See, Article 10 and 11 of the Universal Declaration of Human Rights, Article 14 of the International Covenant on Civil and Political Rights, Article 15 of the
Article 10 of the Universal Declaration of Human Rights provides that “ Article 14 of the International Covenant on Civil and
Political Rights states that
“everyone shall be entitled to the following minimum guarantees ... To have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing”; Article 15 of the states that
Article 14 of the ICCPR “apply to all courts and tribunals within the scope of that article whether ordinary or specialised.”
Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, and Article 14 of the International Covenant for Civil and Political Rights.
Everyone is entitled in full equality to a
fair and public hearing by an independent and impartial tribunal, in the determination of his rights and
obligations and of any criminal charge against him”;
“All persons shall be equal before the courts and tribunals ... everyone shall be
entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law” ... “Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty
according to law”...
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
“... any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings”, and
35. Irregularities in the criminal proceedings against President Park demonstrate a denial of the right to a fair trial before an independent and impartial court, and rise to a level for which the current detention of President Park should be considered arbitrary.
D. CONCLUSION
36. The MH Group requests that this report, and the submissions made to the UN Working Group on Arbitrary Detention and Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, are taken into consideration and addressed by the UN Human Rights Council during the Universal Periodic Review of the Republic of Korea on 9 November 2017.
37. In addressing South Korea’s human rights record and its treatment of former President Park, the UN Human Rights Council is urged to find that South Korea has committed human rights violations against President Park, including violations of her right against arbitrary detention, right against cruel, inhuman and degrading treatment and right to a fair trial. It is further requested that the UN Human Rights Council direct the Government of South Korea to remedy the violations against President Park, including by (i) granting her immediate provisional release from detention to ensure that her medical conditions are treated and addressed, and (ii) guaranteeing her right to a fair trial by an independent and impartial judiciary.