The Republic of Korea must immediately release Yang Kyeung-soo, president of the Korean Confederation of Trade Unions (KCTU), who has been held in pre-trial detention since 2 September, the International Commission of Jurists (ICJ) said today.
On 2 September Yang Kyeung-soo was arrested in Seoul at a KCTU office in a raid conducted by approximately 2,000 law enforcement officers including 100 investigation officers and 41 police units from the Seoul Metropolitan Police Agency. The arrest was made pursuant to charges for organizing public rallies in violation of Article 49 of the Infectious Disease Control and Prevention Act, Article 16 of the Assembly and Demonstration Act (ADA), and Article 185 (General Obstruction of Traffic) of the Criminal Code.
“The circumstances of his arrest and detention–the show of force during the arrest, the extended pre-trial detention, the criminalization of violations of public health regulations– suggest that Yang Kyeung-soo may have been selectively targeted for prosecution because of his leadership role in labor activities and for organizing a general labor strike,” said Ian Seiderman, ICJ Legal and Policy Director.
The arrest came ahead of a general strike the KCTU had been organizing for October and the arrest was made 20 days after the Seoul Central District Court issued an arrest warrant for Yang, who organized a rally of 4,000 people on 3 July and three other such rallies in June while Seoul was under “Level 4” COVID-19 social distancing rules.
The ICJ acknowledges the importance of taking robust public health measures to protect the right to life and health of COVID-19 pandemic, which is also a legal obligation. Such measures may also constitute a lawful limitation on the right of peaceful assembly, where they are prescribed by law, necessary and proportionate to protection of health and are implemented in a non-discriminatory manner.
The ICJ is concerned, however, that the Level 4 COVID-19 restrictions imposed by the Seoul Metropolitan Government in accordance with the Infectious Disease Control and Prevention Act do not meet this test of necessity and proportionality. They in effect prohibit any assembly, limit such “assemblies” to a single person, and provide for disproportionate criminal sanctions for the exercise of the right to peaceful assembly. These restrictions also do not appear to be properly prescribed by law, as they were decreed by the Seoul Metropolitan Government in a form of public notice.
On 15 September, the Seoul Central District Court dismissed Yang’s application to review the lawfulness of his arrest. The Republic of Korea is required under its international legal obligations and Korean law to release Yang, pending trial, unless there are exceptional circumstances such as real risk of flight or commission of a serious crime.
“The ADA and certain other criminal offenses, such as the general obstruction of traffic, are applied in selective manner specifically to harass and prosecute trade union members. The Government should instead be designing its COVID-19 restrictions to maintain and facilitate a safe and enabling environment that will allow its members of the public to exercise their rights to peaceful assembly and freedom of expression in the context of the COVID-19 pandemic,” said Ian Seiderman.
The Republic of Korea should amend the current Infectious Disease Control and Prevention Act, Assembly and Demonstration Act, and Article 185 (General Obstruction of Traffic) of the Criminal Code to prevent blanket bans on times when and locations where assemblies can be held and to ensure that restrictions on numbers and conditions are necessary and proportionate to a legitimate purpose.
The International Covenant on Civil and Political Rights (ICCPR), to which the Republic of Korea is a party, protects the right to Freedom of Peaceful assembly in article 21. Article 21 provides that the right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others.
Article 9(3) of the ICCPR, which protects the right to liberty, provides that pre-trial detention of individuals on criminal charges should not be the general rule.
In Bangkok, Boram Jang (English, Korean), International Legal Advisor, Asia & the Pacific Programme, t: +66 63 665 5315, e: boram.jang(a)icj.orgPress releases