PUCL Bulletin, Nov., 2000

Presidential Truth Commission on Suspicious Deaths,
South Korea


First of all, let me introduce myself. My name is Haekyong Sarah Kim and I will be working for the Presidential Truth Commission on Suspicious Deaths, a extra judicial commission in South Korea, when it is established next month to bring the violations of human rights committed by past authoritarian Government regimes into justice. I attach an invitation letter from my superior seeking your support for the realization of human rights in South Korea.

I look forward to hearing from each one of you soon.

--- Haekyong Sarah Kim, September 22, 2000

Bong-In Yoo
National Solidarity
South Korea

My name is Bong-In Yoo and I am currently involved with the National Solidarity, a non-profit organization established this year to prepare for the establishment of an extrajudicial commission in South Korea, the Presidential Truth Commission on Suspicious Deaths, next month. Once the Commission is established, I will be in charge of the Office of Domestic and International Relations.

I am writing this letter to seek for preliminary relations with your organization, which are to be solidified with the establishment of the Commission. I believe that our relationship with you will be mutually beneficial and encouraging for both of us in our walk for the cause of human rights. And as much as I expect your support and help for the work of the Commission, I intend to give you ours to the fullest extent.

Attached is the document that defines the term Suspicious Death as prescribed by the Special Act To Find the Truth on Suspicious Deaths with some additional information on the historical and social backgrounds in Korea that necessitated the creation of such a term. Since human rights concerns related to Suspicious Death are fairly novel in the area of international human rights, we feel the need to let the world get more familiar with the term in order to understand the serious violations of human rights committed in South Korea in the past. Also we attached the English version of the Special Act to Find the Truth on Suspicious Deaths, which was passed in the National Assembly in December 28 last year. The Commission brochure and newsletters are on their way to be published and I will send them to you as soon as they come out.

If you have any questions on the matters related to the establishment of the Presidential Truth Commission on Suspicious Deaths or whatnot, please do not hesitate to contact me or Haekyong Sarah Kim, who will be handling most of the work related to international cooperation. You can reach us at 82-2-323-7504 (office) or 82-16-850-5049, or write us email at: YBI@chollian.net or kimsarah99@hotmail.com
I sincerely look forward to hearing from you soon and establishing a brotherly relationship with you.

Truly yours, Bong In Yoo


Attachment 1


What Are Suspicious Deaths?


Suspicious Death in Korea is, in general, understood as the death whose actual cause is still left in doubt even after the cause of death has been announced by the governmental investigation authorities. However, with regard to the Special Act To Find the Truth on Suspicious Deaths, which was passed in December, 1999, Suspicious Death is narrowly defined as follows (refer to the Attachment).

Suspicious Death refers to the death occurred in relation to the Democratization Movement, whose actual cause has yet been revealed, and there is a reasonable ground to believe that it might have been resulted from the direct or indirect use of power by the government authorities in violation of the law.

In the context of the Special Act, in other words, there must be three criteria established in order to call a death Suspicious Death by definition: First, its relation to the Democratization Movement; Second, the actual cause of death remains in question; Lastly, the direct or indirect involvement of the government authorities in resulting the death.

1. Relation to the Democratization Movement

There have been many human rights violations in Korea in its transition to democracy. Under the authoritarian military regimes, which lasted for 26 years (1961-1987), a countless number of people, including laborers and students who disagreed with or objected to the undemocratic exercise of power by the government, were indiscreetly subjected to kidnapping, torture, disappearance, illegal execution, enforced conscription, arbitrary trial, etc., that are now categorized under the crime against humanity in international law (e.g. 1949 Vienna Declaration/ U.N. "A" Covenant). Many of them, indeed, were the victims of Suspicious Death. What is important to notice as for the establishment of such a criterion, however, is that Suspicious Death is recognized as a gross violation of human rights, especially of the civil and political rights, by the Korean government.

2. The Unknown Cause of Death

As the term itself suggests, Suspicious Death is the death, something about which is suspicious; that is, the authenticity of the announcement of the governmental investigation authorities on the cause of death is incredible and/or questionable. All victims of Suspicious Death were found dead as if they had committed a suicide or died by accident, according to which the government investigation reports have almost always been written, despite there were some apparent discrepancies among the evidences to draw out a conclusion likewise.

3. Involvement of the Government

Since the Suspicious Deaths had been resulted in the government's efforts to conceal its involvement therein, most of the criminal investigations by the government investigation authorities were carried out in a hasty manner with regard to every procedure there needed to be taken to be accurate and precise, i.e. in situ investigation, post-mortem examination, autopsy, etc. Not only that, the government even tried to destroy, concoct, or fabricate evidence as the questions regarding to the authenticity of its investigation reports being arisen.

Attachment 2

Special Act To Find the Truth on Suspicious Deaths

The Act was discussed and approved by the Justice & Jurisdiction Committee in the National Assembly with the mutual consent of the ruling and opposition parties on 17 December, 1999. The Act was unanimously passed in the National Assembly on 28 December, 1999. The President approved and signed the Act on 13 January, 2000.

Article 1. Purpose

The purpose of this Act is to promote national unity and democracy through finding the truth on Suspicious Deaths that occurred in relation to the Democratization Movement against past authoritarian regimes.


Article 2. Definition of Terms

The terms used in this Act shall be defined as follows:

1. The term "Suspicious Death" refers to the death occurred in relation to the Democratization Movement, whose actual cause has yet been revealed, and there is a reasonable ground to believe that the death might have been resulted from the direct or indirect use of power by government authorities in violation of the law.

2. The term "Democratization Movement" means the movement carried out for the cause of democracy as prescribed in Article 2, paragraph 1, of the Law Concerning Rehabilitation and Restitution for People Involved in the Democratization Movement.


Article 3. Establishment of the Presidential Truth Commission on Suspicious Deaths

The Presidential Truth Commission on Suspicious Deaths (hereafter referred to as "the Commission") shall be hereby established under the direct control of the President to assume the responsibility of investigating of Suspicious Deaths.


Article 4. Scope of Activities

1. The Commission shall take up responsibilities described in the following sub-paragraphs.

(1) Selection of death cases in need of truth-finding
(2) Investigation of the victims of Suspicious Death
(3) Other tasks prescribed by Presidential Decree

2. In order to carry out the responsibilities prescribed in paragraph 1 above, the Commission may request the government authorities, local self-governing bodies, and relevant institutions and organizations to provide assistance including disclosure of necessary data and answers to the investigative inquiries.

3. In accordance with paragraph 2, the parties requested of assistance, shall respond immediately unless there are particular reasons not to do so.


Article 5. Commission Organization

1. The Commission shall be composed of nine commissioners including one Head Commissioner and two Standing Commissioners.

2. The President shall appoint commissioners who meet one of the following criteria with the approval of the National Assembly, and shall designate one of the commissioners as Head Commissioner:

(1) a person with more than ten years of work experience as judge, prosecutor, military judiciary, or attorney;
(2) a scholar who is in the position of associate professor or higher at an authorized university or college for more than eight years;
(3) a specialist in forensic medicine with more than ten years of work experience in the related fields;
(4) a person who was or has been a civil servant Grade III or higher for more than 5 years.

3. Among the commissioners, three commissioners shall meet one of the qualifications prescribed in Article 5, paragraph 2(1) and one commissioner shall meet the qualification prescribed in Article 5, paragraph 2(3).

4. The status of Head Commissioner shall be considered equivalent to the status of civil servant Grade I at the administrative level and entitled to the privileges thereof. The status of Standing Commissioners shall be considered equivalent to the status of civil servant Grade I at the working level and entitled to the privileges thereof.

5. The tenure of commissioners shall be limited to two years.

6. In case a commissioner is incapable of fulfilling his/her duties due to an occurrence of accident, a new replacement commissioner must be appointed without delay.


Article 6. Commission Decision-Making

The Commission shall make decisions by the majority vote of the commissioners.

Article 7. Duties of the Head Commissioner

1. The Head Commissioner shall represent the Commission and administer the general affairs of the Commission.

2. In case the Head Commissioner cannot fulfill his/her duties for unavoidable reasons, one of the Standing Commissioners who has been previously designated by the Head Commissioner shall assume the duties in concern.


Article 8. Disqualification of Commissioners

1. A person who falls within any of the following sub-paragraphs shall not be appointed as a commissioner:

(1) A non- Korean national;
(2) A person who is subject to the provision of any sub-paragraph of Article 33 in the Government Officials Act;
(3) A member of a political party;
(4) A candidate who runs for an election as prescribed in the Act on the Election of Government Officials and Prevention of Rigged Elections.

2. A commissioner who belongs to any of the sub-paragraphs in paragraph 1 shall be removed from his/her office.


Article 9 Autonomy and Guaranteed Rights of Commissioners

1. Commissioners shall carry out their duties independently from

2. Commissioners shall not be discharged from their office against their any outside influence or intervention on the part of anyone outside of the Commission.will unless they become physically or mentally incapable of carrying out their duties or they are convicted of a crime.


Article 10. Exclusion of Commissioners

1. A commissioner shall be excluded from all procedures related to reviewing a petition if he/she falls in any of the following sub-paragraphs:

(1) When the commissioner or his/her spouse(present or former) is either the petitioner or the petitioned;
(2) When the commissioner is or was a blood relative of the petitioner or the petitioned;
(3) When the commissioner was a witness or an expert witness to the petition;
(4) When the commissioner is or was involved in the petition as a legal representative of either party;
(5) When the commissioner is or was involved in the investigation or adjudication related to the petition.

2. The petitioners or the petitioned may make a motion to the Commission for exclusion of a commissioner whose impartiality cannot be expected in reviewing their case.

3. A commissioner can voluntarily remove oneself from reviewing a petition if he/she is subject to the provision of any of the sub-paragraphs of paragraph 1 or the provision of paragraph 2.


Article 11. Establishment of Secretariat

1. The Commission shall set up a Secretariat in order to manage its administrative affairs.

2. The Secretariat shall consist of one Secretary-General and other necessary staff members. The number of staff members, however, shall be as small as possible.

3. The appointment and dismissal of the Secretary-General shall be carried out by the Head Commissioner according to the resolutions of the Commission. The appointment and dismissal of the staff of the Secretariat shall be carried out by the Head Commissioner with the motion of the Secretary-General.

4. The Secretary-General shall be in charge of the administrative affairs of the Commission under the order of the Head Commissioner and shall direct and supervise the Secretariat staff accordingly.


Article 12. Management of the Commission

Matters related to the structure and management of the Commission, not included in this Act, shall be determined by Presidential Decree.


Article 13. Rights of the Commission Staff

A staff member of the Commission shall not be retired, suspended, demoted or dismissed from his/her position against his/her will, unless he/she is convicted of a crime or imprisoned, or otherwise ascribed by the rules of the Commission.


Article 14. Advisory Committee

1. The Commission may have an Advisory Committee when it is in need of advice in fulfilling its duties.

2. Members of the Advisory Committee shall be nominated by the Head Commissioner according to the resolution of the Commission from the following categories: Bereaved families, members of organizations related to Suspicious Deaths, representatives of non-governmental organizations, public officials whose work is related to the tasks of the Commission, or those who have knowledge and experience in investigating or handling Suspicious Deaths.

3. The details needed to organize and operate the Advisory Committee shall be determined by the regulation of the Commission.


Article 15. Prohibition of Divulgence

Anyone who is or was a commissioner or staff member in the Commission or the Advisory Committee shall not divulge any secrets learned in connection with his or her duties.


Article 16. Prohibition of Title-Falsification

No one shall exercise the rights entitled to a commissioner or staff member in the Commission or the Advisory Committee by means of title-falsification.


Article 17. Prohibition of Misrepresentation

No party other than the Commission shall represent itself as the Truth Commission on Suspicious Deaths or with other similar titles.


Article 18. Eligibility of Petitioner

1. A person who is a blood relative of the victim of Suspicious Death or aware of certain facts regarding the death may file a petition to the Commission. In such a case, the scope of defining a blood relative of the victim of Suspicious Death or someone who is aware of certain facts regarding the death shall be determined by Presidential Decree.

2. A petition in accordance with the provision of the paragraph 1 shall be made to the Commission before December 31, 2000.


Article 19. Petitioning Procedure

A person shall make a petition to the Commission in a written form containing information as follows:

1. Name and address of the petitioner
2. Purposes and motives of making a petition

In case a petition cannot be made in a written form for some particular reasons, it may be filed orally.

Article 20. Rejection of Petition

1. Any petition that falls within one of the following sub-paragraphs shall be rejected by the Commission without the commencement of investigation:

(1) A petition which is not subject to investigation by the Commission;
(2) A petition based on false or groundless evidence.

2. If it is found that a petition is subject to the provisions prescribed in paragraph 1 even after the commencement of investigation, it shall be dismissed.


Article 21. Commencement of Investigation

1. The Commission shall commence necessary investigation on the contents of a petition without delay, so long as the petition does not come under the provisions of paragraphs 1 of Article 20.

2. The Commission may commence necessary investigation ex officio when it acknowledges that a petition is based on reasonable grounds and that the contents of the petition are important and serious.

Article 22. Investigation Methods

1. The Commission may resort to the methods described in the following sub-paragraphs for investigation:

(1) Requesting the submission of a written statement from petitioner, witnesses, or the petitioned;
(2) Calling petitioner, witnesses, or the petitioned to a hearing;
(3) Designating expert witnesses or seeking expert's opinions;
(4) Requesting the submission of documents or materials concerned from the petitioned or the institution, body, or organization he/she belongs to.

2. The Commission, when deemed it necessary, may investigate on the matters related to paragraph 1 with its own commissioners or staff members.

3. The Commission, where deemed it necessary, may conduct in situ investigations with its own commissioners or staff members at the alleged site of crime indicated in a petition, or any other relevant places to look for necessary documents, materials, or further information on the site in concern. In such a case, the commissioners or staff members may call the petitioner, witnesses, or the petitioned to a hearing at the place concerned.

4. When commissioners or staff members belonging to the Commission calls a hearing pursuant to the provisions of paragraph 1(2) or paragraph 3, they shall observe the provisions of Article 147, Article 149, or Article 200, paragraph 2, of the Criminal Procedure Act.

5. In accordance to paragraph 3, commissioners or staff members sent out for an in situ investigation may request the institution, body, or organization in concern and the people therein to present necessary documents or materials for the investigation. In such a case, the request shall be limited to the minimum level of the need.

6. When requesting the submission of necessary documents or materials, pursuant to the provisions of paragraphs 1 or 5, the Commission shall observe the provisions of Article 110, Article 112, Article 129, Article 131 or Article 133 of the Criminal Procedure Act.

7. Commissioners or staff members in charge of an investigation pursuant to paragraphs 3 or 5 shall present an identification card to prove their authority to a person subject to the investigation.

8. When a person does not comply with a summon from the Commission pursuant to paragraph 1(2) on no reasonable grounds, the Commission according to the resolutions may issue a writ of order for accompaniment to the person to a designated place of investigation.

9. The Head Commissioner shall issue a writ of order for accompaniment pursuant to paragraph 8.

10. A writ of order for accompaniment issued pursuant to paragraph 9 shall indicate the name and address of a person it is issued to, the reason(s) for issuing the writ, a place to where an accompaniment is requested, the issuing date, and the term of validity, stating that the writ will not be enforceable if the term of validity expires and that it should be returned to the Commission in such a case. In addition, it should be mentioned that if the person does not comply with the order, he/she shall be charged with a fine for default. To make the writ legally effective, it shall be signed by the Head Commissioner. When the name of a person to whom the writ is issued is unknown, the Head Commissioner may indicate his or her physical characteristics, or other distinctive points about the person in the writ. The address of the person may be omitted when it is not clear.

11. The order for accompaniment shall be carried into effect when a writ is presented to a person in concern.

12. The order for accompaniment shall be carried into effect by a staff member of the Secretariat belonging to the Commission.

13. In case the person to whom a writ of order for accompaniment is issued is in a prison or detention facility (including military prison or military detention center), a prison officer shall carry the order for accompaniment into effect with the permission of a staff member of the Secretariat belonging to the Commission.

14. In case the person to whom the writ of order for accompaniment is issued is a soldier in the military service at the moment, the Chief-Commander of the unit he/she belongs to shall cooperate with a staff member of the Secretariat belonging to the Commission in carrying out the order for accompaniment.


Article 23. Period of Investigation

1. The Commission shall complete the investigation of each case of Suspicious Death within six months after its start.

2. In case it is impossible to complete the investigation within the limited time as prescribed in paragraph 1, the Commission shall make a report to the President with explanation and may extend the period once for no more than three months.


Article 24. Dismissal of Petition

The Commission shall dismiss a petition if it falls within one of the following sub-paragraphs based on the results of investigation:

1. When the petition is not true;
2. When the petition is not categorized under Suspicious Death;
3. When it is confirmed that there are no further steps to take as to the finding facts and taking remedial measures.
Article 25. Accusation and Request for Investigation

1. In case it approves the authenticity of the contents of a petition and acknowledges the occurrence of crime as alleged based on the results of investigation, the Commission shall accuse the petitioned to the Prosecutor-General of a violation of human rights. But when the accused is a soldier or a civilian in the military service, the Commission shall accuse the person to the Chief of General Staff in charge of the unit he/she belongs to.

2. The Commission, when it recognizes that the occurrence of crime alleged in a petition is very probable based on the results of investigation, may request the government investigation authorities to reinvestigate the case.

3. When the Prosecutor-General, the Chief of General Staff or the chief of investigation authorities, to whom accusation and request for investigation pursuant to the provisions of paragraph 1 and 2, are made, they shall take necessary measures without delay and inform the Commission of the result.


Article 26. Remedial Measures

The Commission, when it recognizes that a person has been victimized as a result of the illegal use of power by government authorities based on the results of investigation of Suspicious Death, shall request a review of the case by the Evaluation Committee for Reparation created under the Law Concerning Rehabilitation and Restitution of People Involved in the Democratization Movement.


Article 27. Notification of Decision

When the Commission reaches to a decision to dismiss a petition pursuant to the provisions of paragraph 1 and/or 2 of Article 20, to reject a petition pursuant to the provisions of Article 24, or to request a reinvestigation pursuant to the provisions of the Article 25, it shall notify the decision to the parties concerned.


Article 28. Dispatch of Civil Servants to the Commission

1. The Head Commissioner, when deemed it necessary in carrying out the work of the Commission, may request the state or local authorities to dispatch civil servants and to provide necessary assistance to do so. In such a case, the state or local authorities shall comply with the request, unless doing so seriously interfere with operations of respective authorities.

2. Civil servants dispatched to the Commission pursuant to the provisions of paragraph 1 shall carry out their duties given by the Commission, independent of the state or local authorities they are dispatched from.

3. The head of the state or local Authorities, who dispatched civil servants to the Commission pursuant to the provisions of paragraph 1, shall not take any measures to the disadvantage of the civil servant(s) dispatched in terms of promotion, work benefits, etc.


Article 29. Protection of Commissioners and Witnesses

1. No one shall assault or threaten the members, staff, or expert witnesses of the Commission; coerce them into or impede them from taking certain action related to their work; assault or threaten them with the intention to make them resign from their position; or hinder them in carrying out their duties.

2. No one shall be subjected to any disadvantages such as dismissal or suspension from office, a wage cut, transfer to another position, on the ground that he/she has given or is about to give information related to the investigation of Suspicious Deaths.

3. The Commission shall come up with necessary measures to protect a witness or an informant, to obtain or prevent destruction of the relevant evidence or materials related to Suspicious Deaths.

4. The Commission may compensate or assist a person who discloses the truth on a Suspicious Death or provides evidence or materials relevant to the case. The contents and procedures of assistance or compensation, and other necessary measures shall be determined by Presidential Decree.


Article 30. Report

1. When the Commission completes the investigation of a Suspicious Death, the Commission, without delay, must report it to the President and make the results of investigation known to the public.

2. Following shall be included when making a report pursuant to paragraph 1:

(1) Measures to be taken by the government to provide reparation to the victims of Suspicious Death;
(2) Measures to be taken by the government for the victims of Suspicious Death, whose truth has yet been found even after the investigation;
(3) Measures to be taken by the government to prevent the reoccurrence of Suspicious Deaths.

3. The Commission shall disclose a report pursuant to paragraph 1. However, it may not disclose certain part of the report in order to protect national security, or the rights or privacy of the person(s) implicated. It also may not disclose part of the report whose information cannot be disclosed according to provisions of other laws.

Article 31. Suspension of Statues of Limitations

1. During the period between the commencement of investigation by the Commission pursuant to Article 21 and the end of investigation by making a decision pursuant to Article 27, the statues of limitations related to a case subject to the investigation shall not be enforced.

2. In case the public attorneys or public prosecutors decide not to bring a charge against or arrest the people implicated in any of the cases referred to by the Commission, they must provide in their resolutions the specific reasons that led to such a conclusion.

Article 32. Exception to Requesting Arbitration

1. When it receives a notice from a public attorney or a public prosecutor for not bringing public prosecution against the people implicated in the cases referred to by the Commission, the Commission should have the right to request arbitration or the right to appeal to the supreme court or supreme military court, corresponding to the High department of prosecutor or the agency of the inspector to which the prosecutor or inspector belongs.

2. The provisions of paragraph 1 should correspond to the relevant provisions for appeal in the Criminal Procedure Act or the Military Court Law.


Article 33. Reduction and Exemption of Punishment

When a person, who had committed a crime related to Suspicious Death, witnesses against himself/herself, he/she shall be subject to reduction or exemption of publishment.

Article 34. Penal Regulations

Any one who commits a violation described in the following sub-paragraphs shall be sentenced to maximum five year imprisonment or be subject to a fine not exceeding twenty million Won ) 1100 Won = 1 U.S. dollar
:

1. A person who violates the provisions of Article 29, paragraph 1, by assaulting or threatening the members, staff, or expert witnesses of the Commission;
2. A person who violates the provisions of Article 29, paragraph 1, by coercing the members, staff, or expert witnesses of the Commission into or impeding them from taking certain actions related to their work, or by assaulting or threatening them to resign from their work in the Commission;
3. A person who violates the provisions of Article 29, paragraph 1, by hindering the members, staff, or expert witnesses of the Commission in carrying out their duties with an unlawful means.


Article 35. Penal Regulations

A person who violates the provisions of Article 15 by divulging confidential information shall be sentenced to maximum 5 year imprisonment or be subject to a fine not exceeding 7 million Won.


Article 36. Penal Regulations

A person who violates the provisions of Article 16 by acting as a member or staff member of the Commission through title-falsification shall be sentenced to maximum 3 year imprisonment or be subject to a fine not exceeding 15 million Won.


Article 37. Fine for Default

A person who commits any one of the violations described in the following sub-paragraphs shall be subject to a fine not exceeding 10 million won:

1. A person who violates the provisions of Article 17 by misusing the name of the Commission or using any similar title;
2. A person who dose not comply to the request of the Commission to submit necessary documents or materials pursuant to Article 22, paragraph 1(4) or paragraph 5, on no reasonable grounds, or a person who intentionally summits false documents or materials;
3. A person who refuse, hinder, or avoid in situ investigation of the Commission pursuant to the provision of Article 22, paragraph 3;
4. A person who fails to comply to an order for accompaniment pursuant to the provisions of Article 22, paragraph 7, or a person who makes a third party prevent or hinder the execution of the order for accompaniment.


Article 38. Application of the Penal Clauses

The members or staff of the Commission shall be regarded as civil servants when applying the penal clauses in the Criminal Act or other legal laws.


Addendum


This Act shall be enforced four months after the day of promulgation.
-Received via the Web site, Chief Editor

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