NHRC issues recommendation to Minister of Justice to rectify and reform the laws and institutions governing use of restraining devices
The National Human Rights Commission (NHRC) issued a recommendation to the Minister of Justice to reform the laws and institutions relating to restraining devices such that the use of chains and leather manacles are discontinued and the circumstances under which restraining devices can be used are clearly defined. The recommendation follows a series of complaints filed between January and July 2002 by 5 persons, including a Mr. Kwon, 33, who charged: “While being held in custody, I was bound with chains and handcuffed for a long period of time, thereby violating my rights to be free of bodily harm.” The NHRC recommendation specifies that the conditions under which restraining devices may be used must be clarified so as to remove the possibility of arbitrary usage and the possibility of unlimited discretion in degree and term of usage; thus, the NHRC recommended that principles guiding usage and degree must be explicitly stated in the legal restrictions on restraining device use.
The NHRC investigation on the specific cases found that Mr. Kwon, while an inmate at Cheong-song Correctional Institution Facility 2, had been sent to the investigation department after prison officials discovered that he had in his possession a petition, for which no permission had been granted, and in the course of questioning, he had cried out, “I know I haven’t done anything wrong, so whether you heap disciplinary measures on me or not, do as you please!” Basing their decision on this one outburst, the prison officials claimed that Mr. Kwon was highly prone to suicide, violence, and/or infliction of self-injury and should thus be chained up and locked in metal handcuffs. For 7 days, they kept Mr. Kwon in the chains and cuffs until he submitted a statement of “self-reflection,” at which point they removed the bindings.
In another case, because Mr. Lee, 43, a detainee at Suwon Detention Center had requested transfer from the solitary confinement cell for the mentally ill, where he had been held, to an ordinary cell, the detention center officials concluded that Lee was prone to violence, infliction of self-injury, and correctional problems, and on these grounds they shackled him with metal handcuffs (26 days) and chains (20 days.)
In each of the cases, the NHRC investigation found that the conditions restricting restraining device use were ambiguous and that even after situations—that were claimed to have rendered an inmate susceptible to violence or suicide—were over, the shackles were not removed thereby leading to the conclusion that excessive shackling beyond “required” use had been taking place.
Article 33 of the Regulations on the Minimum Standards of Treatment for the incarcerated strictly restricts the use of restraining devices to the following cases: as a preventative measure when escorting, under guard, a person who may try to escape; if a doctor orders such restraint for medical reasons; and as a preventative measure when an incarcerated person may violate himself/herself or others, or cause damage to property.
Because there are strong possibilities that such shackling violates the freedoms and rights of the incarcerated, the NHRC recommends that usage be minimized to only absolutely necessary situations where there are no other means to achieve the same purpose and that after the conditions that required the use of such devices have elapsed, the restraining devices be immediately removed. Since current laws do not explicitly specify a principle restricting the use of shackles to a last resort measure nor the principle of proportionality to the nature of the danger, leading to the excessive use and abuse of shackling measures, the NHRC recommended inclusion of such principles in the law.
Taking a look at specific devices recommended for disuse, chaining is
forbidden by international human rights norms. Chains are not used to
restrain the incarcerated in countries like Germany and Japan because
not only are there other methods to achieve the same goal, restraint, but
also because use of chains is recognized as violating human dignity.
With regard to strips of leather roping, the NHRC could find nothing in the
current laws that could be reasonably interpreted as permitting the
practice of strapping a person’s forearm—from the wrist to the elbow—in
leather roping and then using further leather roping to affix the arms to
the waist.
