The trial of US journalists and North Korean criminal law

Institute for Far Eastern Studies (IFES)
IFES Forum No. 09-8-18-1
Choi Eun-suk, Research Professor, IFES, Kyungnam University
8/18/2009

Detention of U.S. Journalists

Korean-American Euna Lee (Lee Seung-eun) and Chinese-American Laura Ling, reporters for the U.S.-based Current TV, were detained by North Korean soldiers on March 17, 2009 while near the Tuman River border between North Korea and China. On June 8, the Central Court, the highest court in North Korea, sentenced each of the two to an unprecedented 12 years of ‘Reform through Labour.’ However, after less than two months, a visit by former U.S. President Bill Clinton on August 4 led to the ‘special pardon’ of the two women, bringing a relatively swift conclusion to their plight.

What laws were enforced against the two American reporters? North Korean criminal code article 69 (Jo-seon-min-jok-Jeok-dae-joi, or literally, Korean Nation Antagonism Crime) states, “If a foreign person resides abroad with the intention of antagonizing Korea or injuring the body or assets of a sojourning Korean, or if national discord arises, they shall be faced with a sentence of more than 5 and less than 10 years of Reform through Labour (Ro-dong-Ky-ohwa-hyeong). In serious circumstances, [the person] faces a sentence of more than 10 years Reform through Labour.” Criminal Law article 233 (Illegal Border Crossing) dictates that “A person illegally crossing the national border faces less than 2 years of labor discipline (Ro-dong-dan-ryeon-hyeong). In serious circumstances, [the person] faces less than 3 years of reform through labour (Rodong Kyohwa-hyeong).

North Korea’s Criminal Procedures and the Accused’s Right to Council

The North Korean legal system maintains a 3-tier, 2-trial system. That is, the courts are divided into three levels, but actually, trials may only be heard twice. However, in the case of the two reporters, the trial was directly handled by the Central Court, meaning that only one trial would be held, and there was, of course, no chance to appeal.

Examining the North’s judicial system and criminal law, one can see that the DPRK constitution divides power among the Central Court, Provincial Courts, People’s Courts, and Special Courts (Constitutional Law, article 153). In addition, according to North Korea’s Criminal Procedure Law, the Central Court was established in order to handle appeals when verdicts handed out by lower courts were challenged (Criminal Procedure Law, article 129, clause 1), and it was designated the supreme court in the North Korea (Constitutional Law, article 161). The law also allows for the direct intervention of the Central Court, or for a case to be sent to a court on the same level or of the same kind as the court giving the initial verdict (Criminal Procedure Law, article 129, clause 2). Furthermore, according to the system established by these codes, after a case is opened in one of these courts, it must be completed within 25 days (Criminal Procedure Law, article 287). In the case of the two American reporters, the prosecution received notice of their charges on May 14, meaning that if they were to be prosecuted, the trial would have to have been completed by June 7.

When the Central Court holds the initial hearing in a prosecution, there are two possibilities for retrial. Only “in the event that it becomes known that the evidence upon which a decision is based was false,” or, “facts become known that could influence a decision and that were not known at the time of the trial,” can a Central Court case be reheard (Criminal Procedure Law, article 409). The decision to retry is in the hands of the North’s judicial authorities, meaning that it would have been difficult to find a route to appeal or retrial for the two reporters.

The verdict in an initial trial is decided by a judge and two civilian jurors, although in special cases a panel of three judges is allowed (court organization law, article 9). Any North Korean citizen with the right to vote can be a judge or civilian juror (Court Organization Law, article 6), and judges and jurors are chosen through democratic elections (Court Organization Law, article 4). A criminal case in North Korea follows a process of investigation, pretrial hearing, indictment, and trial (in that order). A detention order must be signed by a public prosecutor within 48 hours of a suspect’s arrest, and charges must be filed within 10 days (Criminal Procedure Law, article 144, clause 1).

The two reporters were apprehended March 17, and were not transferred to the court until May 14, almost two months later. According to North Korean law, a preliminary hearing must be held within two months of opening a pre-trial investigation (Criminal Procedure Law, article 151, clause 1). If investigators want to extend the investigation period, they must receive permission from a public prosecutor, and then can only extend the investigation for an additional two months (Criminal Procedure Law, article 152). Charges of crimes against the state or against the nation are investigated by the State Security Department (Criminal Procedure Law, article 124). In the case of Lee and Ling, investigators did not apply for an extension, and handed the case over to the courts within the allowed two-month period.

The North Korean constitution guarantees a public trial and the guaranteed the right of defense, although in some cases courtrooms are allowed to be closed (Constitutional Law, article 158). The constitution also guarantees that a foreigner will be able to speak in their native tongue during a hearing (Constitutional Law, article 159). A defendant has the right to choose their legal counsel, and that choice can include family members or a representative from work (Criminal Procedure Law, article 108), as well as the freedom to waive their right to council (Criminal Procedure Law, article 109). The right to choose one’s lawyer is directly related to one’s basic freedoms. In the case of the two American reporters, Laura Ling retained council, while Euna Lee chose not to be represented or give any statement.

The North Korean Central Court sentenced Lee and Ling to ten years of reform through labour for ‘Korean Nation Antagonism Crime’ (Criminal Law, article 69) and an additional four years for illegally crossing into the country (Criminal Law, article 233). However, in the North, in the case of multiple charges, the sentence for the more minor charge is halved, then added to the sentence of the more serious offence, meaning a 12-year sentence for the two reporters. This sentence was to begin within 10 days of the verdict. North Korean law dictates that reform through labour be carried out in reform institution (Judicial Conduct Law, article 25). When a defendant is sentenced, they are to be sent to a reform institution within 10 days, along with a copy of the court’s decision, detention orders, and all other relevant paperwork (judicial conduct law, article 33). This, in a nutshell, is the North Korean legal system, from arrest to starting to serve a sentence.

Kim Jong Il’s Power of Pardon and the Release of U.S. Journalists

When North Korea released the two U.S. reporters, the government claimed to do so based on its “humanitarian and peace-loving policy,” and stated that former President Clinton’s visit deepened understanding and helped to build trust between Washington and Pyongyang. This was an interesting use of Kim Jong Il’s power of pardon. It appears that last April, at the first session of the 12th Supreme People’s Assembly, there was a constitutional revision that transferred the ability to grant pardons from the SPA Presidium to the Chairman of the National Defense Commission (NDC). According to a ‘report’ of Clinton’s visit released by North Korean authorities on August 5, “In accordance with the Socialist Constitution Article 103, pardon is granted to two U.S. reporters sentenced to reform through labour; the Chairman of the National Defense Commission of the Democratic People’s Republic of Korea passed down the order for [their] release.”

After the previous constitutional revision, coinciding with the launch of the Kim Jong Il regime in September 1998, article 103 clause 5 specified the duties and powers of the chairman of the NDC, but there was no mention of the ability to pardon. However, article 110, clause 17, which defines the duties and powers of the SPA Presidium, states that it “exercises the right to grant general amnesties or special pardon.” In the past, when pardons were granted on national holidays or in conjunction with other important events, they were done so in the name of the SPA Presidium. North Korea has yet to publicize what constitutional changes were made in April, but with the release of the two Americans in the name of Kim Jong Il, it can be seen that the ability to grant general amnesty has been transferred to the NDC chairman. Earlier, on May 22, the Japanese newspaper Nikkei (日本經濟新聞) quoted members of a delegation from the Economic Research Institute for North East Asia (ERINA) as saying that their North Korean counterparts had explained that the power to ratify and nullify treaties, to grant amnesty, and to issue announcements in times of emergency had been transferred to the chairman of the NDC.

After 142 days, Euna Lee and Laura Ling have finally returned to their families.

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