South Korean Government Must Release Minerva and Yongsan Evicted Protesters Immediately

We, the undersigned, are writing to urge the reaction of international society to the current human rights violation in South Korea.


We believe that you are aware of our nationwide protests during 2008 that concerned the Korean government's decision to import low quality beef from the U.S. without sufficient negotiation and its violent suppression on civilians protesting against the decision. This was after submitting the voluntary pledge to promote and protect human rights before the UN General Assembly. Such shameless conduct did not disappear until it caught the attention of international society and organizations and medias such as Amnesty International, BBC, NHK, New York Times and Washington Post expressed their concerns about Korean governmentЇs human rights violation.


Even after the embarrassment at international level last year, the attitude of the government has not changed. Two recent incidents call for urgent reaction. The first is the arbitrary arrest and detention of a person who simply criticized the economic policy of current government. He was charged under domestic law that does not apply on the facts of his case. This incident goes together with current Korean governmentЇs other attempts to infringe the freedom of expression. The second is the police suppression of protesters that caused six deaths, including one police officer, in this past January. This raised issue of abuse of police power against civilians. Although there are evidences that need further investigation, the government is only trying to bury the issue. Looking at its irresponsible conducts of Korean government, we believe that it is necessary to ask the help from international society in protecting democracy in our nation.


South Korea is a signatory to many human rights treaties, including the International Covenants on Civil and Political Rights (ICCPR) and Optional Protocol to ICCPR as well as International Covenants on Economic, Social, and Cultural Rights (ICESCR) among many others. In March 27, 2008, South Korea proudly pledged that it will duly implement its National Action Plan for the Promotion and Protection of Human Rights 2007-2011 (NAP) to "further advance human rights at the national level." What recently happened in South Korea, however, shows that the country is not acting in conformity with its treaty obligations and international principles of human rights but rather taking retrogressive actions and retreating to the dictatorial era of 1970-80Їs of the country.


Contents
I. THE ARREST AND DETENTION OF MINERVA
1. The Korean government infringed the freedom of expression and is in violation of its ICCPR obligations.
2. The Telecommunications Basic Act under which the prosecution arrested Minerva is not the applicable law on the issue.

II. THE FORCED EVICTION AND UNEQUAL PROTECTION OF THE LAW ON PROTESTERS IN YONGSAN REDEVELOPMENT SITE
1. Backgrounds and facts of the incident
(1) Forced eviction in Nam-il-dang Building in Yongsan
(2) The excessive police suppression in January 19-20, 2009
2. The Conduct of the police violates the UN Code of Conduct for Law Enforcement Officials.
3. The following attempts to cover up the incident and biased investigation shows the indifference of the government to human rights.



I. THE ARREST AND DETENTION OF MINERVA

In January 2009, the police arrested a person as in violation of the Korean Telecommunications Basic Act (the Act), claiming that he spread false rumors about the government with an intent to harm public order. The person, whose pseudonym is Minerva, had been posting sharp analysis of the worldwide economic crisis on a popular website "Daum" (http://www.daum.net) since last summer. He predicted the currency rate changes and the Lehman Brothers' bankruptcy and became popular among web users because of the accuracy and concreteness of his analysis. He also criticized the government for ordering financial institutions not to purchase U.S. dollars to calm down the currency fluctuation.

As much as the government has every reason to resent his predictions, the arrest was arbitrary and is a breach of the ICCPR obligation under its Article 9(1). To arrest a person for merely expressing his view is also a gross infringement of freedom of expression protected under its Article 19.


1. The Korean government infringed the freedom of expression and is in violation of its ICCPR obligations.

ICCPR Article 19 protects the freedom of expression (Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice).

MinervaЇs writings did not interfere with national security or public order and therefore his freedom of expression is not restricted by ICCPR Article 19(3) ( [the restrictions] shall only be such as are provided by law and are necessary: (a) for respect of the rights or reputations of others; (b) for the protection of national security or of public order, or of public health or morals).

Nothing suggests that this obligation may be derogated under the Article 4 either (in times of public emergency which threatens the life of nation and the existence of which is officially proclaimed, the State may take measures derogating from their obligations). Although ICCPR does not list protection of freedom of expression as one of non-derogable duties, economic recess does not amount to public emergency that threatens the life of the nation, not to mention no official proclamation thereof or report to other state parties has been made.

It is worth noting that the arrest of Minerva is not the only move by the government that infringes freedom of speech but rather is one of repeated attempts. For example, the government is also trying to broaden the scope of punishment on contempt. Unlike defamation, contempt has been a crime only punishable when the victim brings it to the prosecution in South Korea. The Grand National Party of South Korea has been trying to create a new crime of cyber contempt, which will be punishable by anyoneЇs accusation whether the insulting statement was directed toward the accusing person or not.

This will grant the prosecution almost complete freedom to indict any person who makes possibly contemptuous statement on the web. Whether that indictment results in actual punishment or not, it will gravely threaten the freedom of public to express their opinions. The arrest of Minerva goes along with this movement to strengthen government regulation on expression.


2. The Telecommunications Basic Act under which the prosecution arrested Minerva is not the applicable law on the issue.

Minerva is arrested and charged under the Telecommunications Basic Act (TBA). This law is arbitrarily used to arrest people since last year. The Telecommunications Basic Act was originally enacted in 1960 when people did not have online communities as we do now. The Act regulates false identification of communicator, such as identifying oneself as a police officer when one is not. To be punishable under the Act, it requires an intent to harm public order.

Nothing in the TBA deals with the falsity of the content. In December 16, 2008, a person who knowingly spread false rumor that the police killed a protester during excessive suppression was found guilty under the TBA. This decision was recently reversed on the ground that the personЇs conduct was insufficient to infer an intent to harm public order under the TBA.

An intent to harm public order should not be presumed by its falsehood but there must be some evidence or likelihood that the person intended to cause harm to public order. It is unclear what is meant by this element, but it presumably requires some level of subject knowledge or recklessness about the impact of communications. If mere communication of an opinion that criticizes the government is construed as an intent to harm public order, freedom of expression will exist only as a dead text. Minerva did not violate the TBA and his arrest was arbitrary.

Needless to say, freedom of speech is one of the most fundamental rights in a democratic society. If a government can regulate peopleЇs speech with an arbitrary law that does not fit, that country can no longer be identified as a democratic nation. The steps the Korean government is taking endangers the very core principle of the modern society and must be immediately taken back.

Korean government must provide effective remedy as required under the ICCPR Article 2(3)(a). Minerva must be immediately released and the charge against him must be dismissed. The attempts of the government to infringe the freedom of expression must be stopped altogether.



II. THE FORCED EVICTION AND UNEQUAL PROTECTION OF THE LAW ON PROTESTERS IN YONGSAN REDEVELOPMENT SITE

The second issue concerns forced eviction in Yongsan district in Seoul and an outrageously violent suppression that caused six deaths. UN Commission on Human Rights urged states to stop the practice of forced eviction in 1993 in its Resolution 1993/77. South Korea, however, had not conformingly responded to this resolution yet up to this date and is acting even more retrogressively these days. The suppression on protests regarding forced evictions has always been more cruel than any other police power enforcements. This incident was no exception. The suppression scheme held in this incident showed the policeЇs gross disregard to lives of protesters.


1. Backgrounds and Facts of the Incident

In the current incident, several storeowners (or evictees) in a building called Nam-il-dang in Yongsan district in Seoul were forced to give up their stores and leave the place. When they refused to leave the building, the police went in to evict them out of the building. In the process, a big fire occurred and five protesters and one police officer died. Amnesty International Korea recently released their public statement condemning the double standard of the prosecution and the attempts to cover-up for the police in their investigation.

(1) Forced eviction in Nam-il-dang Building in Yongsan

The situation the protesters were put was no different from any other ordinary course of forced eviction in South Korea. The company suggested compensation that would only amount to the storeownersЇ rent and revenue for several months which left them with no possibility to relocate. When the storeowners refused to accept the compensation and asked for help to the Yongsan town hall, they did not listen. The company not only denied the storeownersЇ request for a temporary place to relocate their business, but also hired a private service company to threaten the storeowners who interfered the storeownersЇ business so that no one would come.

The service companyЇs role in this entire incident was more than substantial. While the police was not directly involved until the date of January 19, 2009, the service company was pressuring the storeowners to leave for a long time. They interfered with the storeownersЇ business by causing odors and noises in and around the building. They distressed the storeowners by putting threatening words on the walls in the neighborhood and blocking them on their way home. Whenever the evictees called the police for help, the police did not come or did nothing but observing even if when they did come. Such conducts by the service company employees and the police put the evictees into the corner.

The town hall employees ignored the petitions from the storeowners and gave permission to the redevelopment plan although the requirement of settlement was not met. On the surface, this made the storeowners illegal occupants of the building. The government, who refused to get involved in the negotiation process, now went in to use the police power to kick out the storeowners from their property.

(2) The excessive police suppression in January 19-20, 2009

When the service company employees made it impossible for them to stay in the building, the storeowners built a small watchtower with containers on the rooftop. The service company employees had been burning tires and woods in the lower floor to distress the protesters with the smoke. The police did not stop the service company employees from what they were doing. When the service company employees provoked the storeowners and the storeowners reacted, however, the police quickly came to evict the storeowners.

About four hours after the storeowners finished building the watchtower, about 1,400 police officers surrounded the building to suppress less than 30 people in the tower. Even though the police knew the protesters had explosives such as thinner, the police did not prepare fire trucks or ambulances. There was no indication of efforts to negotiate with the protesters.

The police went into the building through the stairs and also from the sky by using a container carried by a crane. They shoot water and struck the tower. Somehow a fire started in the building shortly after the container reached the rooftop. The testimonies of surviving protesters and police officers on what caused the fire largely conflict.

The police later stated that they had to went in immediately because the situation was so urgent. The safe way to react in this situation as the police manual provides, however, is to first negotiate, disable tools of resistance the protesters have and exhaust the protesters before the officers are actually put into the site. The police shall prepare fire trucks and ambulances when a fierce struggle is expected. When the protest takes place on top of a building like here and the danger of falling down is present, the manual instructs to prepare safety equipments such as air mats around the site. None of these guidelines were kept in this incident.


2. The Conduct of the police violates the UN Code of Conduct for Law Enforcement Officials.

This conduct is against the Code of Conduct for Law Enforcement Officials adopted by UN General Assembly Resolution 34/169 in 1979. Its Article 3 provides that Law enforcement officials may use force only when strictly necessary and to the extent required for the performance of their duty. This allows the police to use force against the protesters when it is reasonably necessary, but such use of force must not exceed the necessary extent.

It is understandable that the police found use of force necessary as the protesters had Molotov cocktails. This does not, however, exempt the police from limiting their power to the extent required for the performance of their duty. Their duty is not to end the suppression as soon as possible no matter what the cost is, whether that be life or limb.

There may be extreme circumstances that the police must choose someoneЇs life over another. When such decision is not necessary, however, the police must take all steps to ensure no oneЇs life is lost.
Here it was the police who aggravated the situation. This was no unfortunate accident. They could easily prevent the six deaths by taking reasonable steps to prepare safety equipments and by putting priority on rescuing the protesters from the fire than suppressing them. Had the police at least given the option of jumping down from the tower to the protesters, they would not have had to burnt to death. The entire suppression scheme is full of reckless disregard to lives of the protesters. The police is responsible for the six deaths.


3. The following attempts to cover up the incident and biased investigation shows the indifference of the government to human rights.

The police officers put to the suppression scheme was from the Korean National Police Agency Unit 868, which is a special agency. Any armed suppression by them is subject to the approval by the Chief of Seoul Police Department before it is put to action. The person with the authority was Mr. Kim Seok-gi, who was soon to be appointed as Commissioner General of Korean National Police Agency.

He approved and signed the suppression scheme but first denied that he signed on the suppression scheme. This bears irony. If he did not authorize what he was obliged to control, he was at least negligent on his duties and whether he is vicariously liable for the excessive suppression should be put to further investigation. If he did authorize it, he could be held liable for the abuse of police power and is making a false statement. Either way, he must hold some responsibility as the chief in the department and further investigation is necessary.

The prosecution, however, only conducted a written inquiry against him. When Kim answered that his wireless transmitter was off when the suppression scheme was ongoing, the prosecution quickly concluded that Kim was not liable without discussing negligence. The government canceled its unofficial appointment of Kim as the Commissioner General in an effort to quiet the strong criticism by the people, but went no further to ask any civil or criminal liability.

Also, the prosecution is silent on the policeЇs use of private service company employees. It is illegal to directly use private human resources on duties of the police. The service company employees in this incident, however, were attacking the protesters together with the police. Evidence of police wireless transmitter shows that they were receiving orders from the police. Seven employees of the private service company were indicted but the prosecution did not inquire on the responsibility of the police who commanded the employees to shoot water and suppress the protest with them. It is unknown if any investigation has been conducted on the service company employees.

In contrast, the prosecution already arrested and detained the surviving protesters for causing the deaths of six people by using explosives, at the same time when they were yet to find out what exactly caused the deaths. In addition, the prosecution conducted autopsy without even sending notice to or receiving consents from the families of the deceased people in violation of the law.

Whereas the prosecution refused to charge any police officer because the prosecution cannot charge them unless a concrete evidence is present that shows the police was clearly at fault, they arrested the protesters because the circumstantial evidence points to them. Later the prosecution concluded the Molotov cocktail caused the fire without disclosing what led them to make the conclusion. The government is trying to distort the protest of people who were only seeking just compensation and fighting against the governmentЇs indifference as if they were some sort of violent rioters with anti-government objectives.



We, the undersigned, believe that pressure from international society will help the flickering democracy of South Korea survive. Currently Minerva and the Yongsan evictees are waiting for their trial in the prison.

Observing the unjust and biased reaction of the current government, our trust on the government is at the lowest. Looking at what the prosecution, the administration and the police have done, we cannot trust that Minerva and the evictees have received fair investigation and will receive a fair trial.

Recently, it was discovered that a senior judge has pressured other judges to increase the sentence on the convicted defendants for violation of law on demonstration and protest from last year and to change the reason for dismissing the charge for the people whose charges were dismissed in a way that the prosecution can later restart investigation against them, putting us into despair.

The Lee Myung-bak administration were leading domestic human rights violation until they felt pressure from international society in 2008. Yet they are repeating their sins again in 2009. Perhaps the more correct way to put it is that they never stopped committing their sins.

We believe your reaction can stop this horrific drive of the Korean government back to the dictatorial era.

Please urge Korean government (1) to release Minerva and the Yongsan evicted protesters immediately; (2) to conduct a fair investigation on the police with respect to the Yongsan incident; (3) to nullify the Telecommunications Basic Act as unconstitutional; and (4) to uphold its treaty obligations, conform to UN Resolutions and respect human rights.


Thank you very much.