“Repetitive Human Rights Violations
in Immigration Detention Centers Need to be Prevented”
- NHRCK recommends Ministry of Justice to issue warnings to the officers for the excessive use of protective gears and find ways to improve existing regulations -
○ The National Human Rights Commission of Korea(Chairperson Doohwan Song, hereinafter NHRCK) recommended the following to the Ministry of Justice regarding the incident where protective gears were inadequately used on a foreign detainee and the defense rights of a foreigner under special surveillance were poorly protected at an Immigration Detention Center: restrain from using physical force and find measures to minimize physical pain and human rights violation when using protective gears in exceptional circumstances, improve systems and customs, including the provision of opportunity to state one’s opinions and reasons before special surveillance, to follow the principle of legal process, issue warnings to the head of the immigration detention center in question and the officers involved and provide job training to its officers to prevent the recurrence of similar cases.
○ The petitioner, an unregistered foreigner, has filed complaint to the NHRCK, claiming his rights were violated with the excessive use of protective gears and the repetitive special surveillance(solitary cell treatment).
○ The respondent claimed the use of protective gears was inevitable in order to respond to the problematic behavior of the petitioner and no human rights were violated in the process of the special surveillance.
○ The incident has received a considerable amount of attention from the public with the release of the security camera footage in September. The inquiry launched by the NHRCK has found the protective gears were improperly used on the petitioner and the defense rights were violated during the special surveillance process.
NHRCK Investigation and Findings:
1. Use of Protective Gears
- Personal freedom is a ‘right of all human being’, which does not change according to one’s residence status. Though the agitation and problematic behaviors shown by the petitioner gave enough grounds for the respondent to use protective gears, the method so-called ‘shrimp twist’, tieing the legs with ropes and linking the ropes with handcuffs at the back (3 times in total, for 15 minutes, 3 hours and 2 hours 25 minutes, respectively), was an inhumane use of gears that does not coincide with the concept of human dignity.
- The ‘Immigration Act’, the ‘Regulation on Protection of Foreigners’ and the ‘bylaws for Regulation on Protection of Foreigners’ need modification as these regulations provide no specific guidelines on how to use protective gears, including ropes, except for handcuffs.
- The NHRCK has consistently made decision that the improper use of protective gears is a violation on human rights and recommended detention centers, correction centers and immigration detention centers to redress the issue on several occasions. The most recent incident occurred at the immigration detention center in question is even more serious as it has only been a year since the NHRCK provided recommendation to the center on a similar case.
2. Special Surveillance
- Out of 110 days of the petitioner being confined at the immigration processing center, he was kept in a special surveillance cell 12 times, for 34 days in total(10 consecutive days at maximum).
- The petitioner’s behavior met the conditions of confining foreign detainees in the special surveillance cell and the article 72 of the ‘bylaws for Regulation on Protection of Foreigners’ cannot be interpreted as setting maximum consecutive days for special surveillance. Considering the maximum consecutive days a person can remain in an isolated cell stated in the article 43 of ‘the UN Standard Minimum Rules of the Treatment of Prisoners’, which is 15 consecutive days, the number of days the petitioner had to stay in a special surveillance cell was not excessive.
- The NHRCK also recognizes the need to prevent self-harm and harm on others and to take disciplinary actions for interfering with the officers performing duties and not complying with the instructions so as to protect the petitioner himself and the others.
- However, as the application of special surveillance treatment to a person for interfering with the officers’ duty and not complying with the instructions given is giving a person disadvantage for one’s past actions, it is necessary to provide sufficient explanations for special surveillance and time for the foreign detainees to defend themselves.
- Though the reasons for special surveillance were provided on a document for the petitioner(‘special surveillance notification’), the reason outlined on the document was too brief and failed to explain some of the logics for the treatment. The petitioner was also not given the opportunity to explain himself. This does not meet the standard of the written announcement notifying disadvantageous measures.
○ The NHRCK saw that the problem not only lies in the inadequate system and the inexperienced officers, but also lies in the structure where foreigners ends up remaining at the immigration detention centers, which are designed for a short-term confinement, for a long period of time.
○ Following the decision released by the NHRCK, the Ministry of Justice conducted an investigation on the incident and announced follow-on measures to prevent the recurrence of similar cases. The measures include the following: making physical confinement process that matches the level of criminal justice process, setting the maximum length of time for the foreigner confinement at the detention centers, making centers that partially ensure movement rights
○ The following are the recommendations and opinions released by the NHRCK regarding the process of cracking down on unregistered foreigners and the protection of their rights.
Recommendations and Opinions presented by the NHRCK:
1. Recommendation regarding human rights violation in the process of cracking down on illegal immigrants (23 May 2005)
- Recommended the Ministry of Justice that the concept of ‘protection’ stated in the ‘Immigration Act’ be further specified, and improve the ‘Immigration Act’ so that it provides the supervision system that matches the level of criminal justice process for the measures such as crackdown, protection and emergency protection, which threaten personal freedom, as these measures are de facto arrest and confinement.
2. Ex-officio investigation on the death of a migrant worker in the process of crackdown(16 Jan 2019)
- In order to fundamentally resolve the human rights violation issues similar to the aforementioned incidents that have taken place, the NHRCK recommended the Ministry of Justice that the supervision system that matches the level of criminal justice process be made for the de facto arrestment and confinement situations, which significantly limits one’s personal freedom.
3. Recommendation to the Ministry of Justice following the visiting investigation on immigration detention centers
- Make and operate the facilities human rights-friendly way by making improvements on the barred cells at the facility and creating guarded living room so as to enhance the freedom of the foreigners in custody at the center(2011)
- Find measures that are reasonable in order to shorten the protection period for the asylum-seekers at the immigration processing centers (2013)
- More and detailed review on people who are in relatively vulnerable such as children, pregnant women, patients and others, and consider providing new types of protection facilities(2014)
- Need to provide improved protection facilities for the foreigners in custody who are in relatively more vulnerable situation (2015)
- Improve the harsh condition of the special surveillance cell(punishment cell) and the guarded living room at the immigration processing center in question a human rights-friendly environment(2016)
4. Presented an opinion on ‘Partial Amendment Draft of the Immigration Act’(26 Jul 2018)
Presented an opinion to the Chairman of the National Assembly to promptly review the ‘Partial Amendment Draft of the Immigration Act’, which contains the clauses of specifying the maximum confinement period for the foreign detainees, making objective controlling procedures which can be used during the confinement and the confinement extension process, and stipulating the care process for those who are vulnerable, such as children.
5. The second version of the ‘Guidelines for Migrant Workers’ Rights’(1 Nov 2020)
- Prepare system that matches the level of criminal justice process for the case of exercising legal force during the crackdown on illegal immigrants
- Increase cases of discharge and temporary discharge, set maximum length of time for protection period
○ The NHRCK will continue to review the improvement plans prepared by the Ministry of Justice in order to make refinements in the way the immigration processing centers are operated. The Commission will also continue to make efforts to provide recommendations to make improvements on relevant legislations for the betterment of human rights in Korea.