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SOUTH KOREA: Appeal against a lawyer should be withdrawn

February 5, 2012

ASIAN HUMAN RIGHTS COMMISSION - URGENT APPEALS PROGRAMME

Urgent Appeal Update: AHRC-UAU-005-2012

5 February 2012

[RE: AHRC-UAC-083-2010: SOUTH KOREA: A criminal charge filed against a lawyer for providing legal advice]
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SOUTH KOREA: Appeal against a lawyer should be withdrawn

ISSUES: Human rights defender; arbitrary arrest and detention
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The State of Human Rights in South Korea in 2011 http://www.humanrights.asia/resources/hrreport/2011/AHRC-SPR-010-2011/view

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Dear friends,

The Asian Human Rights Commission (AHRC) has received updated information regarding the case of Mr. Kwon Young-gook, a lawyer who faced criminal charges for obstruction the performance of official duties after intervening to provide legal assistance to demonstrators who were illegally arrested by the police on June 26, 2009 and freed by the Suwon District court on October 24, 2011. While welcoming the decision by the court, we are concerned that the prosecutor brought this case to the court of appeal on November 17, 2011.

UPDATED INFORMATION:

AHRC-UAU-005-2012-01

Mr. Kwon Young-gook was charged with the obstruction of performance of official duties after he intervened in the illegal arrest of the demonstrators who planned to attend a press conference on June 26, 2009 (for details: AHRC-UAC-083-2010)

The Suwon District Court found Mr. Kwon not guilty on October 24, 2011. According to the judgment obtained, with regards to the obstruction of performance of official duties, it says, "there found no harm for demonstrators to attend the press conference with regards to the Ssang Yong Motor Company, no evidence found enough to acknowledge that there was imminent reason for detaining the demonstrators and police's surrounding them with the intention not to move is not acceptable that it was necessary to the extent."

In a nutshell, the charge against Mr. Kwon for obstruction of performance of official duties is not established since the arrest and detention of demonstrators is found unlawful.

Such interpretation by the Suwon District Court is based from the decision made by the Supreme Court regarding the case no. 99DO4341, 2000.

However, the prosecutor did not agree with the judgment and brought it to the court of appeal on November 17, 2011.
 

SUGGESTED ACTION:
Please send a letter to the authorities listed below expressing your concern about this case and requesting withdrawal of the appeal. Please note that the AHRC has also written separate letters to the Special Rapporteur on the situation of human rights defenders.

To support this appeal, please click here:

SAMPLE LETTER:

Dear ___________,

SOUTH KOREA: Appeal against a lawyer providing legal assistance should be withdrawn

Name of victim: Mr. Kwon Young-Gook, a chair of labour committee from MINBYUN-Lawyers for a Democratic Society, non-governmental organization; original case no.: 2009KODAN1660: Article 136 of Criminal Act (Obstruction of Performance of Official Duties); found not guilty by the Suwon District Court on October 24, 2011
Officers involved: Mr. Yu Dong-hyuk; the company commander of auxiliary police attached to the Pyeongtaek police station
Case No. at Court of Appeal: 2011NO5044 (Obstruction of Performance of Official Duties etc.)
Date of appeal: November 17, 2011

I am writing to voice my deep concern regarding the appeal by the prosecutor's office on the case of Mr. Kwon who was found not guilty by the Suwon District Court on October 24, 2011. Mr. Kwon was originally charged with the obstruction of performance of official duties on providing legal assistance to the workers of Ssang yong motor company to attend a press conference on June 26, 2009.

According to the judgment obtained, the court freed Mr. Kwon with regards to the obstruction of official duties, which can be read, "The obstruction of performance of official duties should not be established if the official duties are unlawful and the performance of official duties should fall into not only abstract authority but also legal requirement and its procedures."

In case of Mr. Kwon, his involvement in defending those who were illegally arrested and detained by force without being informed the gist of fact of crime and the reason of arrest, and the suspect of the right to counsel by the police is justifiable and should not be interpreted as obstruction of performance of official duties.

I regret to note, however, that the prosecutor brought this case to the court of appeal on November 17, 2011 despite the fact that with regards to the obstruction of performance of official duties are already set up not only by the Criminal Act but also by the numerous precedent cases by the Supreme Court.

Under this circumstance, it appears to have been interpreted that the prosecutor's appeal was made not with the intention to arguing the judgment of the district court on legal perspectives but punishing Mr. Kwon by taking in pursuit of his case as long as possible though legal proceedings or politically oriented. There is no reason left to the prosecutor's office to pursue this case.

I therefore, urge you to withdraw the appeal of the case of Mr. Kwon. If you keep pursuing this case with recognizing the fact that Mr. Kwon's act is not guilty, your refusal of withdrawal will only show that the prosecutor troubles him through your unnecessary or excessive appeal with malicious intent to it whereas no disciplinary action has been made against the law enforcement agent.

Thank you.

Yours sincerely,

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PLEASE SEND YOUR LETTERS TO:

1. 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

 

Thank you.

Urgent Appeals Programme
Asian Human Rights Commission (ua@ahrc.asia)
 

Document Type :
Urgent Appeal Update
Document ID :
AHRC-UAU-005-2012
Countries :
Issues :
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Extended Introduction: Urgent Appeals, theory and practice

A need for dialogue

Many people across Asia are frustrated by the widespread lack of respect for human rights in their countries.  Some may be unhappy about the limitations on the freedom of expression or restrictions on privacy, while some are affected by police brutality and military killings.  Many others are frustrated with the absence of rights on labour issues, the environment, gender and the like. 

Yet the expression of this frustration tends to stay firmly in the private sphere.  People complain among friends and family and within their social circles, but often on a low profile basis. This kind of public discourse is not usually an effective measure of the situation in a country because it is so hard to monitor. 

Though the media may cover the issues in a broad manner they rarely broadcast the private fears and anxieties of the average person.  And along with censorship – a common blight in Asia – there is also often a conscious attempt in the media to reflect a positive or at least sober mood at home, where expressions of domestic malcontent are discouraged as unfashionably unpatriotic. Talking about issues like torture is rarely encouraged in the public realm.

There may also be unwritten, possibly unconscious social taboos that stop the public reflection of private grievances.  Where authoritarian control is tight, sophisticated strategies are put into play by equally sophisticated media practices to keep complaints out of the public space, sometimes very subtly.  In other places an inner consensus is influenced by the privileged section of a society, which can control social expression of those less fortunate.  Moral and ethical qualms can also be an obstacle.

In this way, causes for complaint go unaddressed, un-discussed and unresolved and oppression in its many forms, self perpetuates.  For any action to arise out of private frustration, people need ways to get these issues into the public sphere.

Changing society

In the past bridging this gap was a formidable task; it relied on channels of public expression that required money and were therefore controlled by investors.  Printing presses were expensive, which blocked the gate to expression to anyone without money.  Except in times of revolution the media in Asia has tended to serve the well-off and sideline or misrepresent the poor.

Still, thanks to the IT revolution it is now possible to communicate with large audiences at little cost.  In this situation there is a real avenue for taking issues from private to public, regardless of the class or caste of the individual.

Practical action

The AHRC Urgent Appeals system was created to give a voice to those affected by human rights violations, and by doing so, to create a network of support and open avenues for action.  If X’s freedom of expression is denied, if Y is tortured by someone in power or if Z finds his or her labour rights abused, the incident can be swiftly and effectively broadcast and dealt with. The resulting solidarity can lead to action, resolution and change. And as more people understand their rights and follow suit, as the human rights consciousness grows, change happens faster. The Internet has become one of the human rights community’s most powerful tools.   

At the core of the Urgent Appeals Program is the recording of human rights violations at a grass roots level with objectivity, sympathy and competence. Our information is firstly gathered on the ground, close to the victim of the violation, and is then broadcast by a team of advocates, who can apply decades of experience in the field and a working knowledge of the international human rights arena. The flow of information – due to domestic restrictions – often goes from the source and out to the international community via our program, which then builds a pressure for action that steadily makes its way back to the source through his or her own government.   However these cases in bulk create a narrative – and this is most important aspect of our program. As noted by Sri Lankan human rights lawyer and director of the Asian Human Rights Commission, Basil Fernando:

"The urgent appeal introduces narrative as the driving force for social change. This idea was well expressed in the film Amistad, regarding the issue of slavery. The old man in the film, former president and lawyer, states that to resolve this historical problem it is very essential to know the narrative of the people. It was on this basis that a court case is conducted later. The AHRC establishes the narrative of human rights violations through the urgent appeals. If the narrative is right, the organisation will be doing all right."

Patterns start to emerge as violations are documented across the continent, allowing us to take a more authoritative, systemic response, and to pinpoint the systems within each country that are breaking down. This way we are able to discover and explain why and how violations take place, and how they can most effectively be addressed. On this path, larger audiences have opened up to us and become involved: international NGOs and think tanks, national human rights commissions and United Nations bodies.  The program and its coordinators have become a well-used tool for the international media and for human rights education programs. All this helps pave the way for radical reforms to improve, protect and to promote human rights in the region.