United Nations
General Assembly
A/HRC/WGAD/2017/81
Distr.: General
26 December 2017
Original: English
Human Rights Council
Working Group on Arbitrary Detention
Opinions adopted by the Working Group on Arbitrary
Detention at its eightieth session, 20–24 November 2017
Opinion No. 81/2017 concerning Mi Sook Kang and Ho Seok Kim
(Democratic People’s Republic of Korea and China)*
1.
The Working Group on Arbitrary Detention was established in resolution 1991/42 of
the Commission on Human Rights, which extended and clarified the Working Group’s
mandate in its resolution 1997/50. Pursuant to General Assembly resolution 60/251 and
Human Rights Council decision 1/102, the Council assumed the mandate of the
Commission. The mandate of the Working Group was most recently extended for a threeyear period in Council resolution 33/30 of 30 September 2016.
2.
In accordance with its methods of work (A/HRC/36/38), on 14 September 2017 the
Working Group transmitted to the Government of the Democratic People’s Republic of
Korea and to the Government of China a communication concerning Mi Sook Kang and Ho
Seok Kim. The Government of the Democratic People’s Republic of Korea has not replied
to the communication, while the Government of China replied to it on 6 November 2017.
The Democratic People’s Republic of Korea is a party to the International Covenant on
Civil and Political Rights, while China is not.
3.
The Working Group regards deprivation of liberty as arbitrary in the following
cases:
(a)
When it is clearly impossible to invoke any legal basis justifying the
deprivation of liberty (as when a person is kept in detention after the completion of his or
her sentence or despite an amnesty law applicable to him or her) (category I);
(b)
When the deprivation of liberty results from the exercise of the rights or
freedoms guaranteed by articles 7, 13, 14, 18, 19, 20 and 21 of the Universal Declaration of
Human Rights and, insofar as States parties are concerned, by articles 12, 18, 19, 21, 22,
25, 26 and 27 of the Covenant (category II);
(c)
When the total or partial non-observance of the international norms relating
to the right to a fair trial, established in the Universal Declaration of Human Rights and in
the relevant international instruments accepted by the States concerned, is of such gravity
as to give the deprivation of liberty an arbitrary character (category III);
* In accordance with rule 5 of the Working Group’s methods of work, Seong-Phil Hong did not
participate in the discussion of the present case.
GE.17-23249(E)