“The basic rights of inmates and detainees must be respected while under disciplinary punishment; procedures for inmates and detainees to appeal disciplinary rulings and defend their conduct must be set into place”
The NHRC recommendation included the following concrete points: provisions relating to disciplining inmates should be reformed so that only such conduct that truly endangers safety and the maintenance of order can be grounds for undertaking disciplinary measures and criteria to determine punishment should be relaxed in cases where conduct breaches prison rules; types of disciplinary measures, including punishing by closed confinement, should not excessively limit the exercise of inmates’ basic rights and prisons must respect inmates’ basic rights, which include allowing inmates to correspond, to write, and to exercise; when disciplinary committees are formed, committee servers must be chosen in an objective and fair manner; the person suspected of breaking the rules or committing other offenses must be given sufficient opportunity to defend his or her actions; and the Ministry of Justice must set into place a procedure for inmates and detainees to appeal disciplinary punishment decisions.
In investigating the case, the NHRC found that: on 28 January 2002, Cheong-song Social Protection Center 1 issued Mr. Jeong a 1-month closed confinement punishment for having missed the morning roll call because he was using the bathroom; in June 2002, Daejon Correctional Institution issued Mr. Kwon, 33, a 2-month closed confinement punishment for having drafted a letter to send to human rights NGOs for legal counsel under the charge that his letter contained fabricated claims about the prison; and in August 2002, Incheon Detention Center issued detainee Mr. Yang, 25, a 2-month closed confinement punishment for having told his wife, when she came to visit him, that he felt intimidation because the roaming surveillance forces carried pistols. In the last case, the detention center substantiated the punishment under the charge that Mr. Yang was spreading fabricated information about detention center life because he mentioned the “pistols” when the surveillance police did in fact carry guns, only those guns were properly termed “gas guns.”
While placed under closed confinement, Jeong, Kwon and Yang were all denied visitation, correspondence, phone calls, writing, working, exercising, newspapers, books, radios, television and access to their personal effects. Given that these men were being punished for natural bodily functions or for holding an opinion, the NHRC found that the punishment of closed confinement, with its attendant restriction of basic rights, far exceeded their “offenses.”
Thus, the NHRC recommended that only conduct truly endangering safety and order should be grounds for disciplinary measures. In keeping with this, the NHRC examined the “Regulations on the discipline and punishment of inmates.” Certain rules—such as Rule 26 (Within the facilities, you may not sleep or lay down without permission) and Rule 28 (You may not let your cell become messy and you may not graffiti the walls)—had nothing to do with the maintenance of safety and internal order. Many rules—including Rule 15 (You may not disobey a guard’s order or refuse to enter your cell without valid reason)—had high potential for abuse, subjecting inmates’ and detainees’ daily life to interventions and restrictions decided arbitrarily by an individual (guard) instead of guided by defined and limited restrictions that are necessary to the rehabilitation of inmates. In particular, the NHRC noted that although there are 5 types of disciplinary punishment allowed under the law, the criteria for punishment usually allowed punishment by closed confinement, and the proportion of 2-month closed confinement punishments was unusually high. Thus, the NHRC included in its recommendation that measures should be undertaken to relax the criteria for determining punishment in cases where inmates and detainees breach internal rules.
The NHRC recommendation also pointed out that implementation of closed confinement not only excessively restricts the exercise of basic rights, but also could cause physical and mental suffering. Although the related laws stipulate that closed confinement may not exceed 2 months, they do not specify how this should be implemented. Despite the lack of grounding in the actual law, the enforcement order for the law stipulates that those punished under closed confinement “shall stay in the lockup cell and be denied visitation, correspondence, phone calls, writing, working, exercising, newspapers, books, radios, television and access to their personal effects during the period of punishment.” Thus, the NHRC found that the enforcement order interpreted and expanded upon the actual law in ways that violate inmates’ and detainees’ right to correspondence and right to health, and recommended that, “even when an inmate or detainee is under punishment, their basic rights should not be infringed or restricted.”
In light of the fact that subjection to disciplinary measures creates
enormous and adverse changes in an inmate or detainee’s treatment, the NHRC recommended that the disciplinary committee, before coming to a ruling, give the person to be punished the opportunity to adequately explain and defend their actions and that the disciplinary committee incorporate measures to conform to the “rule of minimal standards on the treatment of detainees” (adopted by the UN ECOSOC Council in 1957). Additionally, the NHRC recommended that the disciplinary committee itself be appointed in an objective and fair manner.
In particular, the NHRC drew attention to the fact that there were no specified appeal procedures for inmates or detainees to contest the disciplinary committee rulings; thus the NHRC recommended that mechanisms be put into place to allow inmates or detainees to appeal disciplinary decisions.
