JUSTICE SYSTEM IN NORTH KOREA
Patterned after the Soviet model, the three-tiered court system is composed of the Central Court (Supreme Court) at the top, provincial courts in the middle, and people's courts at the bottom. The Central Court is the highest court and has judges appointed by the Supreme People’s Assembly (SPA). According to the constitution, the Central Court is accountable to the SPA, and the penal code subjects judges to criminal liability for handing down “unjust judgments.” The legal system does not acknowledge individual rights. The Ministry of People’s Security routinely dispenses with trials in political cases and refers prisoners to the Ministry of State Security for punishment. In addition to the Central Court, there are provincial courts at the intermediate level, and “people’s courts” at the lowest level.Prosecutors are grouped under separate, parallel chains of command subordinate to the Central Procurator’s Office, which supervises local procurators’ offices at provincial and county levels. [Source: Library of Congress, July 2007]
Prisoners are often sent to prison without trial. North Koreans are often sent to prison for such trivial crimes as listening to a foreign radio, throwing away a paper with a picture of Kim Jong Il on it, or making an offhand remark deemed to have insulted the regime. One woman was arrested for disturbing the socialist order for singing a South Korean pop song. It didn’t matter that she learned the song from watching a North Korean propaganda film. Sometimes people are arrested and imprisoned and they have no idea what they have done. Informers are everywhere. In some case parents are turned in by their children.
The legal system has been influenced by Confucianism, Japanese traditions and Communist legal theory. The civil law system is based on the Prussian model. On paper "Justice is administered by the Central Court, the Court of the province (or municipality directly under the central authority), municipal and county courts and the Special Court” and the Central Court is "accountable to the SPA, and to the SPA Presidium when the SPA is in recess."
Although the constitution states that courts are independent and that judicial proceedings are carried out in strict accordance with the law — and includes elaborate procedural guarantees to carry out the law — there are strong indications that safeguards are seldom followed in practice. The legal system reflects strong authoritarian impulses and the subordination of the interests of the individual to the state, or to the cause of revolution. Not all details of the law are available to the citizens, and, as of mid-1993, there were indications that liberally defined political crimes were prosecuted with little regard for legal constraints. [Source: Andrea Matles Savada, Library of Congress, 1993; CIA World Factbook, 2020]
Judicial Branch and Central Court of North Korea
The judicial branch consists of the Central Court. or Supreme Court — the highest court in the land. It consists of one judge and two "People's Assessors" or, for some cases, three judges. Judges are elected by the Supreme People's Assembly for 5-year terms. The subordinate courts are the lower provincial courts as determined by the Supreme People's Assembly [Source: CIA World Factbook, 2020]
Under the guidance of the Justice and Security Commission of the Central People's Committee, the two main components of the post- 1945 judicial system are the Central Court and Central Procurator systems. These organizations perform their functions as "powerful weapons of the proletariat dictatorship, which execute the judicial policies of the Korean Workers' Party." [Source: Andrea Matles Savada, Library of Congress, 1993 *]
The Central Court is the final court of appeal for criminal and civil cases and has initial jurisdiction for grievous crimes against the state. According to the constitution, the Central Court is accountable to the SPA (the North Korean legislature) and the SPA has the power to elect and recall the president of the Central Court and to appoint or remove the president of the Central Procurator's Office (Article 91, items 12-13). The Standing Committee of the Supreme People's Assembly interprets the laws and ordinances in force and elects and recalls judges and people's assessors of the Central Court (Article 101, items 3, 9).
The Central Court supervises all lower courts and the training of judges. It does not exercise the power of judicial review over the constitutionality of executive or legislative actions nor does it have an activist role in protecting the constitutionally guaranteed rights of individuals against state actions. The Central Court is staffed by a chief judge or president, two associate chief judges or vice presidents, and an unknown number of regular judges. The Central Court also arbitrates matters involving the nonfulfillment of contracts between state enterprises and cases involving injuries and compensation demands. These administrative decisions always reflect party policies.*
Historical Influences on the North Korean Judicial System
Foreign laws have repeatedly influenced Korea. Korea assimilated the codes of various Chinese dynasties through the close of the Chosun Dynasty and Western law (Continental Law) during the Japanese occupation (1910-45). Although Confucian legal culture exerts strong influence on North Korea's legal attitudes, the modern legal system initially was patterned after the Soviet model imposed during the period of Soviet occupation (1945-48). [Source: Andrea Matles Savada, Library of Congress, 1993 *]
Neo-Confucian thought does not distinguish among politics, morality, and law. Law in traditional Korea was concerned with the control and punishment of deviance by the centralized bureaucratic political system rather than by private relationships or contracts. The elite viewed law as a last resort against a morally intractable person. The rule of law was little understood by the general population, which often saw it manifested only as an autocratic decree or as a tool of rigid political regimentation. These notions persist as part of the legal culture of North Korea.*
No concepts in the Chosun Dynasty corresponded to the Western concept of right. Although in principle all classes were guaranteed property rights and the rights to act and initiate legal proceedings, the class nature of society meant that those rights were virtually meaningless for all but the elite. Social stratification was paralleled by de facto legal stratification. Noblemen, or yangban, had full exercise of their "rights." The theoretical rights of the middle class and lesser bureaucrats had practical limits, and the commoners and the lowest classes basically had no legal rights.*
Morality and politics were reflected in the administration of justice; and structural differentiation among adjudicative, legislative, and administrative functions was contrary to Confucian substantive justice. The magistrate, a generalist scholar-official, was charged with both governing and adjudicating. Legal specialists, who were not from the yangban class, never developed into a professional group.*
Korea's traditional legal system outwardly disappeared with the incorporation of modern Western law beginning with the Kabo Reforms of 1894 and ending with the imposition of Japanese legal concepts during the Japanese colonial period (see The Legacy of Japanese Colonialism). Traditional legal thought, however, continued to influence North Korean attitudes toward the purpose and function of legal institutions.*
With the end of the Chosun Dynasty in 1910, decisive changes occurred in Korean law. Traditional Korean institutions suddenly were replaced. The imposition of institutions by the Japanese and their post-1910 use for repressive colonial control constituted a sharp break with the past. Because of the nature of Japanese colonial rule, there was no constitutional law, guarantee of rights, or judicial review of the exercise of political power. The legal system of Korea under Japanese rule was composed essentially of rules, duties, and obligations. However, there was no institutional or procedural separation of powers. The Japanese governor-general had unrestrained executive and legislative power, the latter exercised by decree.*
With the end of World War II came Soviet occupation. During this period, Soviet legal concepts and codes, as well as the court and procurator structure, were embraced. Soviet legal concepts were the basis for the Court Organization Law of March 1, 1950, and the Criminal Code and Code of Criminal Procedure, both issued on March 3, 1950. In December 1974, a new Criminal Code (five parts, 215 articles) was issued, but few details were revealed to the general public, and its promulgation was not known to outside sources until the late 1980s. The Penal Code (eight chapters, 161 articles) was adopted by the Supreme People's Assembly on February 5, 1987.*
Courts in North Korea
North Korea has a three-tiered court system with a Central Court, Provincial Courts (or Court of the Province), and People's Courts at the county level. The appeal process is based on the principle of a single appeal to the next highest court. [Source: Andrea Matles Savada, Library of Congress, 1993 *]
Below the Central Court are the courts of the provinces and cities under central authority — courts that serve as the courts of first and only appeal for decisions made by the People's Courts. They are staffed in the same manner as the Central Court. Like the Central Court, provincial courts have initial jurisdiction for certain serious crimes. In addition, provincial courts supervise the People's Courts.*
The People's Courts are at the lowest level of the judicial system. They are organized at the county (gun, or kun) level even though they may have jurisdiction over more than one county or smaller city. They have initial jurisdiction for most criminal and civil cases. Unlike the high courts, they are staffed with a single judge, who is assisted by two "people's assessors," laymen who are temporarily selected for the judiciary. An initial trial typically is presided over by one judge and two people's assessors. If the case is appealed, three judges preside, and a decision is made by consultation.*
In the case of special cities directly under central authority, provincial or municipal courts serve as the courts of first instance for civil and criminal cases at the intermediate level. At the lowest level are the people's courts, established in ordinary cities, counties, and urban districts. Special courts exist for the armed forces and for railroad workers. The military courts have jurisdiction over all crimes committed by members of the armed forces or security organs of the Ministry of Public Security. The railroad courts have jurisdiction over criminal cases involving rail and water transport workers. In addition, the Korean Maritime Arbitration Committee adjudicates maritime legal affairs.*
According to Cities of the World: “The courts of first instance are those established at city, county, and district levels. Presided over by judges elected for two-year terms, they can try civil as well as criminal cases. Assessors, who are vested with authority equal to that of judges, participate in the proceedings. Decisions are by majority vote of the one judge and two assessors. Provincial courts also hear appeals or complaints resulting from the decisions of the lower courts. In practice, however, appeals reaching the provincial courts are said to be infrequent. The Supreme Court is empowered to supervise the operation of the lower courts in the enforcement of civil and criminal law. Its judges are elected by the Supreme People's Assembly for a term of three years. The court is expected to render judgments in accordance with the basic policies of the Government and the Party.” [Source: Cities of the World , The Gale Group Inc., 2002]
Prosecution, Judges and Defense in North Korea
The chief prosecutor, known as the procurator general, is appointed by and accountable in theory, though not in fact, to the SPA. There are three deputy procurators general. In the North Korean judicial process, both adjudicative and prosecuting bodies function as powerful weapons for the proletarian dictatorship. [Source: Andrea Matles Savada, Library of Congress, 1993 *]
Prosecutors are grouped under separate, parallel chains of command subordinate to the Central Procurator’s Office, which supervises local procurators’ offices at provincial and county levels. The Central Procurator's Office parallels the court system. In accordance with Article 162 of the 1992 constitution, "Investigation and prosecution are conducted by the Central Procurator's Office, the procurator's offices of the province (or municipality directly under central authority), city (or district) and county and special procurator's office." The office supervises or conducts investigations, arrests, preparation of indictments, criminal prosecutions, and criminal trial proceedings. It has the right to initiate court appeals. This supervisory function over the judiciary includes ensuring that the court system interprets the law in accordance with the KWP's wishes. As of July 1992, the procurator general of the Central Procurator's Office was Han Sang-kyu; there are three deputy procurators general.
Judges are usually members of the Korean Workers' Party or are controlled by the Party. They are trained in judicial procedures for three months before assuming office. Judges and people's assessors, or lay judges, are elected by the organs of state power at their corresponding levels, those of the Central Court by the SPA's Standing Committee, and those of the lower courts by the provincial- and county-level people's assemblies. No practical legal experience is required for judgeship. In addition to administering justice based on criminal and civil codes, the courts are in charge of political indoctrination through "reeducation." The issue of punishment is not expressly stated in the constitution or the criminal code. The constitution does not require legal education as a qualification for being elected as a judge or people's assessor. Over time, however, legal training has received more emphasis, although political reliability remains the prime criterion for holding office.
Little reliable information is available on specific criminal justice procedures and practices as of mid-1993. Although North Korea refuses outside observation of its legal system, it is clear that the limited guarantees legally in place often are not followed in practice. There is reliable information of summary executions in the case of political crimes.*
The 1992 constitution guarantees judicial independence and requires that court proceedings be carried out in accordance with laws containing elaborate procedural guarantees. Article 157 of the constitution states that "cases are heard in public, and the accused is guaranteed the right to a defense; hearings may be closed to the public as stipulated by law." According to the United States Department of State's Country Report on Human Rights Practices for 1990 and a 1988 report by Asia Watch and the Minnesota Lawyers International Human Rights Committee, however, practice is another matter. Additionally, according to the Criminal Code, defense attorneys are not proxies for the defendant but are charged with ensuring that the accused take full responsibility for his or her actions.*
Theoretically, the accused is guaranteed the right to defend himself and to have counsel, but there are only Government defenders. Party influence is pervasive in both criminal and political cases. In criminal cases, the government assigns lawyers for the defense. Defense lawyers are not considered advocates for the defendant so much as independent parties to help persuade the accused to admit his guilt, although they apparently present facts to mitigate punishment. In political cases, trials often are dispensed with and the Ministry of Public Security refers the cases directly to the Ministry of State Security for the imposition of punishment.*
Trials in North Korea
Trials are supposed to be open to the public. According to the U.S. State Department: Little information was available on formal criminal justice procedures and practices, and outside access to the legal system was limited to trials for traffic violations and other minor offenses.The constitution contains elaborate procedural protections, providing that cases should be public, except under circumstances stipulated by law. The constitution also states the accused has the right to a defense, and when the government held trials, they reportedly assigned lawyers. Some reports noted a distinction between those accused of political, as opposed to nonpolitical, crimes and claimed the government offered trials and lawyers only to the latter. [Source: “2020 Country Reports on Human Rights Practices: Democratic People's Republic of Korea”, U.S. Department of State]
“The constitution states courts are independent and must carry out judicial proceedings in strict accordance with the law; however, an independent judiciary did not exist. According to KINU’s white paper for 2019, there were many reports of bribery and corruption in the investigations or preliminary examination process and in detention facilities, as well as by judges and prosecutors in the trial stage. In October, HRW reported treatment of individuals in pretrial detention often depended on access to connections and money.
The Ministry of State Security conducted “pretrials” or preliminary examinations in all political cases, but the court system conducted the trial. Some defectors testified that the ministry also conducted trials. KINU’s white paper for 2019 cited defector testimony that imprisonment in political prison camps is decided exclusively by the ministry, regardless of trial. There was no indication that independent, nongovernmental defense lawyers existed. There were no indications authorities respected the presumption of innocence. According to the 2014 UNCOI report, “the vast majority of inmates are victims of arbitrary detention, since they are imprisoned without trial or on the basis of a trial that fails to respect the due process and fair trial guarantees set out in international law.”
Public Trial Before an Execution in North Korea
Describing the public trial before an execution, Kang Jae Hyok, a defector from Hamheung, North Korea, wrote in the Daily NK: “ It was sometime in Spring, 1979. I held my father’s hand as we headed for a public stadium in Sinpo where a public trial had been set up. At the stadium there were already 300 workers from companies and their families. My friends and I in kindergarten sat in the front row as we were short. [Source: Kang Jae Hyok, Reporter, Defector from Hamheung, Daily NK, September 21, 2006]
“Soon, the public trial began. Where the court had been temporarily set, seated were the prosecutors and judges from the Central Procurator’s Office and Central Court, as well as the jury. I could only see the back of the condemned criminal Choi who sat opposite the judges. Then the investigations and trials began. Choi was a mariner of a small steam boat. In winter 1978, he and the chief engineer made a promise to defect to South Korea utilizing the boat, so as the boat departed they soon headed for open waters. At the time, there were 6 other crew members aboard the ship.
“One of the crew members became suspicious as the ship that was out to fish Alaskan pollacks was not hitting waters but floating towards the southeast. Choi, who had observed this, began to persuade with the aid of the chief engineer the crew members one by one, to defect to South Korea. But a bosun, wireless transmitter and kitchenette obstinately opposed the idea, tied the two men up and locked them in a cabin.
“Soon after, the mariner and chief engineer were untied but then were attacked. Both sides were putting on acts as if they were ready to die and consequently a bloody fight began. In amongst the fight, the bosun and kitchenette were killed and the mariner Choi and wireless transmitter encountered injuries. At that moment, the wireless transmitter sent warning signals to Sinpo Marine Company. The marine company who received the warning signals then contacted the navy for assistance. The navy further contacted the coastal patrol boats who then found the boat. By that time, the boat had reached the open waters in front of Wonsan.
“On seeing the coastal defense, Choi killed the wireless transmitter and attempted suicide. However, he was unable to kill himself. Choi was arrested by the navy, received medical treatment then sent to Sinpo police office for preliminary examinations. ‘You killed a person…’ I began to shake as I heard the prosecutor spoke. After the prosecutor finished his inquiries, the judge asked him whether or not he would admit guilty. He answered guilty to everything The judge sentenced Choi to the death penalty on the grounds of being a national traitor who practiced murder and attempted to escape to South Korea. After the trail was complete, the guard of People’s Safety Agency dragged him inside a tent behind the court. About 10 minutes later, he was brought back and “executed.
Political Crimes and Watch Committees in North Korea
The definition of the most serious political crimes — reforms notwithstanding — is ambiguous and includes both counterrevolutionary crimes and more general political offenses. Punishment for counterrevolutionary crimes is severe, it involves capital punishment, loss of property, and even summary execution for almost any dissident activity. Furthermore, these cases are often decided without recourse to the appropriate legal procedures. Most political offenses do not go through the criminal justice system, but are handled by the State Security Department. Trials are closed, and there is no provision for appeal. Punishment is often broadened to include the offender's immediate and extended family. [Source: Library of Congress, June 1993 *]
The collective interests of the workers, peasants, soldiers, and working intellectuals are protected by a parallel hierarchy of organs controlled at the top by the Central Procurator's Office. This office acts as the state's prosecutor and checks on the activities of all public organs and citizens to ensure their compliance with the laws and their "active struggle against all lawbreakers." Its authority extends to the courts, the decisions of which (including those of the Central Court) are subject to routine scrutiny. A judgment of the Central Court may be appealed to the plenary session of the Central Court, of which the state's chief prosecutor is a statutory member.*
Socialist law-abiding life guidance committees were established in 1977 in the Central People's Committee and in the people's committees at the provincial-, city-, and county-levels. These ad hoc committees meet once a month and are chaired by the president of the people's committee. The committees are a control measure for ensuring respect for public authority and conformity to the dictates of socialist society. The committees are empowered to implement state power, monitor the observance of law by state and economic institutions, and prevent the abuse of power by the leading cadre of these institutions. To this end, they have oversight of state inspection agencies, the procuracy, and the police; they also have supervision and control of all organizations, workplaces, social groups, and citizens in their jurisdiction. The committees can apply strict legal sanctions to all violations short of crimes.*
Penal Code of North Korea
The North Korean penal code is draconian and stipulates harsh punishments, particularly for political crimes. Its legal and criminal systems are patterned after Soviet models in force during the occupation after World War II. Little information is available on specific criminal justice procedures and practices. [Source: Library of Congress, June 1993 *]
The penal code apparently does not accept the principles of modern criminal law that state that there is no crime unless so specified by law, that law may not be applied retroactively, and that the law cannot be extended by analogy. Article 10 of the North Korean Criminal Code states that "in the case of an offense that does not fall under any expressed clause of the criminal law, the basis, scope, and punishment for it shall be determined according to the clause on acts that resemble it most in terms of its type and danger to society."
The Penal Code adopted in 1987 simplifies the 1974 code without making substantial changes in the definitions of crimes or penalties. The entire section entitled Military Crimes, contained in Part 5 of the previous code, has been deleted. It is likely that military crimes still are treated as a criminal category, and are covered by another, separate code.*
The 1987 code generally covers fewer types of crimes. Crimes eliminated from the general heading of treason include armed incursions, hostile crimes against the socialist state, and antirevolutionary sabotage. Penalties also have been relaxed. The number of crimes for which the death penalty can be applied has been reduced from twenty civil crimes to five offenses in addition to those offenses covered under the Military Crimes section. Retained as capital offenses are plots against national sovereignty (Article 44), terrorism (Article 45), treason against the Motherland by citizens (Article 47), treason against the people (Article 52), and murder (Article 141). The death penalty no longer applies to propaganda and sedition against the government; espionage; armed intervention and instigating the severance of foreign relations; antirevolutionary disturbances; theft of government or public property; violation of railway, water, or air transportation regulations; mob violence; unauthorized disclosure of or loss of official secrets; rape; and robbery of personal property. The maximum sentence has been reduced from twenty to fifteen years.*
In May 1992, the chairman of the criminal law department at Kim Il Sung University published an address on misinterpretations of the North Korean Criminal Code. He pointed out that the code banned death sentences for minors under seventeen years of age when the crime was committed and for pregnant women. The code has no penalty of confinement; all noncapital punishment is in the form of forced labor. The code also stipulates that revisions to it cannot be applied retroactively to define an act as criminal that was not so at the time of commission or to raise the maximum penalty. Reductions of penalties, however, apply retroactively. The code also redefines several of the provisions related to contact with South Korea in a manner apparently aimed at drawing attention to the strict limits of South Korea's National Security Law on unauthorized North/South contacts.*
Revision of North Korean Penal Code in the Mid-2000s
In 2004, North Korea has revised its criminal code, South Korea's National Intelligence Service said in what appeared to be an effort to deter antistate activities. Andrew Salmon wrote in the New York Times: “ The revised penal code upgrades punishment for those who lead uprisings to life imprisonment or death; previously, it was at least 10 years' imprisonment or death. For those who engage in violent demonstrations, a minimum five-year term will be imposed, compared with the previous 5-to-10-year prison term. [Source: Andrew Salmon, New York Times December, 9, 2004]
One expert cited signs of internal instability for the harsher punishment. "We have heard from defectors of antiregime activities, particularly since last year," said Kim Hyun Uk of the Peace Forum for Foreign Policy and National Security. "And 'Kim's Kingdom' seems be suffering from a power struggle among the family of Kim Jong Il." Many North Korean defectors in Seoul say that Kim Jong Il lacks the respect that was accorded his father, Kim Il Sung, the nation's founder. Those who flee the North with the intention of betraying their country face harsher sentences; however, the changes reduced punishment for those who flee the country for economic reasons; the sentence has been cut from three years' imprisonment to two years. "Those who flee to China usually make some money, so they may be trying to improve their balance of payments by bringing them back," said Reverend Douglas Shin, a Los Angeles-based human rights advocate with good contacts among defectors. A record number of North Koreans — more than 1,600 — have fled to South Korea this year.
“Changes were also seen in commercial law. New clauses invoke punishment for those who violate private property, trademarks and other intellectual property with two years in prison. "I think the idea behind these changes is twofold," said Jean Jacques Grauhar, who heads the European Union Chamber of Commerce offices here, with branches in both Seoul and Pyongyang. "I think there has been a decision to clean up the markets, which are full of cheap, Chinese, poor-quality and often fake goods, and they are also looking at attracting foreign direct investment, and so have been studying labor and intellectual property laws."
Image Sources: Wikimedia Commons.
Text Sources: UNESCO, Wikipedia, Library of Congress, CIA World Factbook, World Bank, New York Times, Washington Post, Los Angeles Times, National Geographic, Smithsonian magazine, The New Yorker, “Culture and Customs of Korea” by Donald N. Clark, Chunghee Sarah Soh in “Countries and Their Cultures”, “Columbia Encyclopedia”, Korea Times, Korea Herald, The Hankyoreh, JoongAng Daily, Radio Free Asia, Bloomberg, Reuters, Associated Press, Daily NK, NK News, BBC, AFP, The Atlantic, Yomiuri Shimbun, The Guardian and various books and other publications.
Updated in July 2021