The National Human Rights Commission of Korea (NHRCK) recommended that the Minister of Justice abrogate the “pre-sentence report system,” provided in Article 27 of the Regulations on Inmates Discipline and Punishment ("Punishment Regulations").
Under the pre-sentence report system, the head of the detention center must prepare a report on the act of violation, cause of punishment, etc. and submit the report to a prosecutor at the public prosecutor’s office, or the court of competent jurisdiction, for reference when a penalty is imposed on a prisoner awaiting judgment owing to violation of the Punishment Regulations.
This recommendation has been made, as the system has been abused as a means to intimidate inmates into maintaining order within a detention center, rather than to promote effective judgments based on preparation of appropriate presentence materials.
The system also causes many inmates to breach the Punishment Regulations within detention facilities, which will then be used against the inmates in the future, even though the acts would be outside the scope of, and irrelevant to, their crimes. This may conflict with the principle of the rule of law as well as the principle of no penalty without fault—a guiding principle of criminal law—founded on Article 10 of the Constitution and Article 10.1 of the International Covenant on Civil and Political Rights, which asserts the inherent dignity and value of all human beings.
It is a grand principle that a judge, in finding facts, should not take into account factors that may have a negative impact on a verdict. In addition, a court should engage in a pre-sentence investigation only after finding beyond reasonable doubt that the defendant is indeed guilty.
Unilateral notification by a detention center to the prosecution and court leaves much room for infringement on a prisoner or detainee’s right to a fair trial. The abolishment of the pre-sentence report system stipulated in Article 27 of the Punishment Regulations is clearly desirable to protect the human rights of prisoners awaiting judgment.
The National Human Rights Commission of Korea was established in 2001, offering investigation and remedy services for Korean citizens and foreigners residing in Korea against human rights violations and discrimination. The Commission provides policy recommendations and remedial action against human rights infringements, collaborates with international human rights organizations and implements educational programs to improve the human rights culture.
