NHRC Issues Recommendation to National Assembly Chairman and Minister of Justice to Annul the Social Protection Act
In light of the serious human rights violations perpetuated under the current protective custody system of the Social Protection Act, and the limited scope for reforming implementation of the current protective custody system given the dearth of resources and other conditions constricting reform, the National Human Rights Commission (NHRC) has decided to issue a recommendation to the chairman of the National Assembly and the Minister of Justice (1) to eliminate the protective custody system by annulling the Social Protection Act, and (2) to create an alternative bill for rehabilitative custody.
The protective custody system of the Social Protection Act is rife with problems, including double jeopardy and practical implementation issues. From the time of its enactment, the system has been the object of censure and criticism for continuously violating human rights.
Thus, the NHRC had included Social Protection Act-related issues with National Security Act-related issues and the issue of irregular work in the three major human rights issues for 2003, and created three task forces—with members including outside specialists—around these issues. Between February and December of 2003, the task force: (1) reviewed the necessity of the protective custody system under the Social Protection Act; (2) analyzed problems in the protective custody system; (3) conducted comparative research of protective custody systems in other laws; and (4) carried out site visits to protective custody facilities in Korea. Between August and December of 2003, the taskforce carried out a targeted, on-site survey of: (1) persons under protective custody and rehabilitation officers; and (2) treatment of persons under protective custody, protective custody facilities, and the present conditions for administering the system. On the basis of this series of research activities, the taskforce assessed the problems embedded in the Korean protective custody system as well as made efforts toward identifying policy reforms to resolve the problems with unbiased objectivity.
The protective custody system was designed at the outset to supplement deficiencies of the existing system of “punitive punishment” for recidivists and dangerous felons. However, after comprehensive consideration of Korean criminal policy and conditions unique to the Korean system, the Commission believes that we have come to a point in time where the protective custody system must be reviewed.
In particular, the taskforce identified four structural conditions that could contravene Constitution rights and freedoms. 1) The method for determining whether a person under protective custody should fall under the “risk of recidivism” category lacked a guarantee that objective analysis or expert opinion would be used in determining the assignment of such status, thereby, leaving open the possibility of violating article 12 of the Constitution (right to personal liberty, due process). 2) The simultaneous administration of the “regulations for aggravated punishment” along with the protective custody system for repeat offenders and recidivists could lead to violation of article 13 of the Constitution (prohibition of double jeopardy). 3) The actual activities of the “Community Protection Committee” that relate to deciding whether persons could be exempt from parole or protective custody could violate article 27 of the Constitution (right to trial). 4) The actual treatment and conditions of those under protective custody could be found contrary to article 10 of the Constitution (right to personal dignity, pursuit of happiness).
Analysis of the NHRC survey of actual conditions and related materials clearly show the problems embedded in the protective custody system administered under the Social Protection Act. For example, 70% - 80% of the persons subject to protective custody are in prison because of simple crimes against property, and the recidivism rate of released convicts within 3 years of release has continuously hovered at about 40%. One can come to the assessment that the protective custody system as it stands today fails to meet its original purpose, that is, the “re-socialization of criminals and protection of society.”
Thus, the Commission came to the conclusion that the protective custody “system” under the Social Protection Act has already forfeited the right to be called a system, and there are severe limitations constraining the possibility for salvaging the existing system through reform. As such, the Commission found that it is only through annulment of the existing Social Protection Act that the state can fulfill its obligation to protect society and protect human rights. In addition to the recommendation to annul the Social Protection Act and toward resolving these problems, the NHRC recommended that a separate, substitute bill be laid out for rehabilitative custody of physically and mentally disabled persons.
