A/HRC/WGAD/2018/54
seekers.1 That implies that the detention of any individual should be justified and provided
with legal basis.
44.
This case involves two States and the Working Group will discuss the issues related
to each of them separately.
Allegations against China
45.
In the present case, the Working Group is convinced by the information of the
source, which was not rebutted by the authorities of China, that no legal basis was invoked
by the Government to justify the deprivation of liberty of Ms. Kang, Mr. Kim, Ms. Keum
Nam Lee and Ms. Myung-Ju Lee. The Working Group therefore concludes that their
detentions are arbitrary in violation of articles 9 and 10 of the Universal Declaration of
Human Rights and fall within category I.
46.
With regard to the detentions carried out by the authorities of China, the Working
Group is convinced that Ms. Kang, Mr. Kim, Ms. Keum Nam Lee and Ms. Myung-Ju Lee
were detained by them and then transferred under the custody of the security forces of the
Democratic People’s Republic of Korea.
47.
In all four cases, the authorities of China have neither shown an arrest warrant, nor
granted the detained individuals access to a lawyer. Furthermore, the four detainees were
not subject to any legal repatriation process.
48.
The Working Group did not receive any information that could serve as evidence
that the authorities of China informed, at the moment of the arrest, Ms. Kang, Mr. Kim, Ms.
Keum Nam Lee and Ms. Myung-Ju Lee of the reasons for their deprivation of liberty.
Furthermore, the authorities have neither shown a judicial order, nor guaranteed the rights
of the above-mentioned individuals to have access to a lawyer. From the information
received by the Working Group, it appears that the four detainees could not bring
procedures before a court in order that it may decide without delay on the lawfulness of
their detention. For the Working Group, these are violations by China of articles 9, 10 and
11 of the Universal Declaration of Human Rights and are of such gravity that they give the
deprivation of liberty an arbitrary character in conformity with category III.
49.
The Special Rapporteur on the situation of human rights in the Democratic People’s
Republic of Korea has stated that the pattern of forced repatriation of citizens of the
Democratic People’s Republic of Korea, including children, from China is continuing. The
authorities of China regard these nationals as economic migrants, which makes them
ineligible for any protection and exposes them to the risk of torture once repatriated. The
Special Rapporteur has urged the Government of China to abide by the principle of nonrefoulement and to seek avenues for dialogue on this issue with the Special Rapporteur and
the United Nations system as a whole, with a view to granting access to the field and to
providing escapees with the protection to which they are entitled under international as well
as Chinese law.2
50.
The Working Group notes with concern the consistent pattern of systematic return
by China of nationals of the Democratic People’s Republic of Korea arrested at the border
(CAT/C/CHN/CO/5, para. 46). In this regard, the Working Group considers that the
detention of Ms. Kang, Mr. Kim, Ms. Keum Nam Lee and Ms. Myung-Ju Lee due to their
nationality is discriminatory in nature and therefore their arrest and detention fall within
category V.
Allegations against the Democratic People’s Republic of Korea
51.
The Working Group was made aware that, after the repatriation of Ms. Kang, Mr.
Kim, Ms. Keum Nam Lee and Ms. Myung-Ju Lee by China, the authorities of the
Democratic People’s Republic of Korea imprisoned the above-mentioned individuals in
different camps: Ms. Kang (Gaecheon re-education camp); Mr. Kim and Ms. Keum Nam
1
2
6
Revised deliberation No. 5, para. 8.
A/HRC/37/69, para. 23.