3
0
The main issues in the present case are whether the removal of K.J., C.C., and S.K. to North Korea was or would be in breach of Articles 2 and 3 of the Convention, whether effective domestic remedies were available to them in respect of their complaints under Articles 2 and 3 (as required by Article 13 of the Convention) and whether the detention of K.J. and S.K. pending expulsion was in violation of Article 5 of the Convention.
The case of S.K.
12. On 18 September 2019 S.K. moved to Vladivostok to study at the Far Eastern Federal University. The IHR submitted on behalf of S.K. that when North Korean students arrived in Russia, North Korean officials from the Consulate General of the DPRK in Vladivostok supervised all their activities. These officials also collected the students’ identity documents and kept them for the duration of their studies.
13. After completing the first year of his studies S.K. decided not to return to North Korea and to seek asylum in Russia. In late August 2020, he moved out from the university campus to the home of a local pastor, a Russian citizen of Korean origin, in the city of Artyom in the Primorskiy Region.
14. On 27 August 2020 S.K. contacted the office of the United Nations High Commissioner for Refugees (UNHCR), where he was referred for legal assistance to Ms T., a lawyer providing legal help to asylum-seekers as part of joint projects between UNHCR and the IHR. S.K. immediately contacted Ms T. and told her that he was “ready to do anything” in order not to return to North Korea. He also mentioned that he was probably being followed by DPRK officials since he was attending a Christian church. According to the IHR’s submissions, on the same day, someone, presumably North Korean officials, filed a missing person report in respect of S.K. with the police department at Russkiy Island (police department no. 9 of the Vladivostok department of the Ministry of the Interior), which was then forwarded to the Artyom city police department.
15. On 8 September 2020 S.K. and Ms T. attended the Primorskiy Region migration authority to register for the identification procedure. While they were there, five North Korean officials came and demanded that Ms T. let S.K. go with them. S.K. was able to leave unnoticed.
The events of 10 September 2020
16. On 10 September 2020 S.K. was provided with a hard copy of a certificate stating that his application to register for the identification procedure had been accepted. The IHR submitted that on the same day, when S.K. had returned to the home of a pastor who was hosting him in Artyom, he had been detained by police officers who had come there and had taken him to an undisclosed location. They informed Ms T. that he would be taken to police station no. 4 in Vladivostok; she was given no reasons for S.K.’s detention.
17. Ms T. went to police station no. 4 but she did not find S.K. there. The police officer on duty informed her that S.K. had not been brought to that station.
18. At 11.30 a.m. (Moscow time) on the same day S.K. telephoned Ms T. He informed her that he was at the police station in Artyom.
19. At 12.15 p.m. (Moscow time), the police officer on duty at police station no. 4 in Vladivostok informed Ms T. that S.K. had been handed over to officials of the Consulate General of North Korea with the assistance of officers of the Russian Federal Security Service (“the FSB”).
Application of an interim measure under Rule 39 by the Court
20. On the same day, at the request of Ms Davidyan, Ms Trenina and Mr Zharinov, the Court applied an interim measure in respect of S.K, indicating to the Government of Russia that S.K. should not be removed from Russia for the duration of the proceedings before the Court.
Criminal proceedings initiated by Ms T. on S.K.’s behalf
21. On the same day Ms T. filed a criminal complaint at police station no. 4 in Vladivostok alleging that S.K. had been apprehended by unknown persons and asking the police to locate him.
The progress of the criminal proceedings concerning S.K.’s disappearance
22. On 11 September 2020 Mr Zharinov and Ms Trenina lodged requests with the FSB, asking it to provide information on whether S.K. had crossed the Russian border, what the factual reasons and legal basis for his detention had been and where he had been taken. On 8 October 2020 the FSB replied that S.K. had not been suspected of any activities falling within its jurisdiction.
23. On 12 September 2020 Mr Zharinov and Ms Trenina also lodged requests with the Prosecutor General’s office, asking it to review the actions of the Primorskiy Unit of the FSB, to establish the legal basis for S.K.’s transfer to the North Korean officials and to ensure compliance with the interim measure applied by the Court on 10 September 2020. On 19 October 2020 the Prosecutor General’s Office replied that in September 2020 the FSB for the Primorskiy Region had not carried out any activities in respect of S.K. and had not arrested him.
24. On 14 September 2020 Mr Zharinov sent a request for information about S.K. to the police department in Artyom. On 18 September 2020 he was informed that S.K. had not been brought to the police station in Artyom, and that there were no records of his having been arrested, fingerprinted or photographed. A further reply with identical content was sent to Mr Zharinov on 5 October 2020.
25. On 18 September 2020 a police officer from police station no. 4 in Vladivostok reported to his supervising officer that on 27 August 2020 S.K. had been located at the address where he was residing and subsequently handed over to the North Korean officials.
26. On 21 September 2020 a decision refusing to open a criminal case in connection with S.K.’s disappearance was issued by the deputy head of police station no. 4 in Vladivostok. In that decision it was stated that S.K. had been located by police officers at his place of residence in Artyom and had been handed over to the representatives of the Embassy of North Korea. It was further stated in the decision that there had been no records of S.K. having been arrested or brought to police station no. 4. On 30 September 2021 Ms T. received a copy of the decision.
27. On 28 October 2020 the Ministry of Interior for the Primorskiy Region sent Ms Trenina a letter stating that S.K. had not been brought to the police station in the city of Artyom, and that there was no information in the border‑crossing database indicating that S.K. had left Russia; it added that that his whereabouts were unknown and that the relevant authorities had been informed about the application of the interim measure by the Court.
28. On 1 December 2020 Ms Trenina filed a complaint with the Frunzenskiy District Court of Vladivostok against the refusal of 21 September 2020 to open a criminal case.
29. On 20 January 2021 the deputy prosecutor of the Frunzenskiy District of Vladivostok set aside the refusal of 21 September 2020 as unlawful and ordered measures “to prevent further violations of the law and to initiate disciplinary proceedings against officials breaking the law”. On 21 January 2021 the Frunzenskiy District Court terminated the proceedings concerning the refusal to open a criminal case.
30. On 26 February 2021 the head of police station no. 4 in Vladivostok issued a second refusal to open a criminal case in connection with Ms T.’s criminal complaint. He stated, in particular:
“… On 27 August 2020 information was received … that [S.K.] had been absent from his place of residence. On [the same date] police officers went to the place where [S.K.] was believed to reside, where a certain person of Korean nationality was found who resembled S.K. His identity was subsequently confirmed as that of S.K. Since S.K. is a national of the DPRK he was handed over to officials of the DPRK’s embassy. There is no record that S.K. was arrested by police officers or that he was taken to [police station no. 4] since he was not brought to [police station no. 4].”
31. Ms T. was notified of the refusal in July 2021. On 29 July 2021 Ms Trenina filed a complaint against it with the Frunzenskiy District Court of Vladivostok, stating that (i) S.K. had been illegally handed over against his will to the North Korean officials without any formal decision as to his expulsion or readmission, contrary to the requirements of Russian law and international agreements, and (ii) a criminal complaint had been filed on S.K.’s behalf but no pre-investigative inquiry had been carried out as to the grounds on which S.K. had been detained and handed over to the North Korean officials. Ms Trenina asked for the refusal to open a criminal case to be set aside as unlawful and unjustified.
32. On 19 August 2021 the Frunzenskiy District Court, referring to Ms Trenina as “the representative of S.K.”, refused to examine her complaint on the merits, stating:
“… the court established that no documents had been submitted confirming that Ms Trenina could bring a complaint against the refusal to open a criminal case. The letter of authority to act empowers [Ms Trenina] to bring a complaint against the refusal to open a criminal case in connection with abduction.
Also, the complaint does not contain any reference as to exactly which of [S.K.]’s constitutional rights were breached as a result of that refusal and how exactly that refusal could impede his access to justice.”
33. Ms Trenina was not duly notified of the decision of 19 August 2021 or sent a copy of it. She found out about it on 30 December 2021. On 12 January 2022 she lodged a second complaint against the refusal to open a criminal case, which was rejected on 29 January 2022 by the Frunzenskiy District Court for “lack of information as to how Ms Trenina was empowered to bring a complaint and take part in proceedings concerning the refusal to open a criminal case in relation to the disappearance of S.K.”.
34. On 18 February 2022 the head of police station no. 4 in Vladivostok issued a third refusal to open a criminal case in connection with Ms T.’s criminal complaint, giving the same reasons as before.
35. On 29 March 2022 the Primorskiy Regional Court set aside the ruling of the Frunzenskiy District Court of Vladivostok of 29 January 2022 and confirmed that Ms Trenina had been duly authorised by the managing partner of the law firm Musayev and Associates to represent S.K., on the basis of a legal services agreement.
36. On 22 April 2022 the Deputy Prosecutor of the Frunzenskiy District of Vladivostok set aside the refusal to open a criminal case as unlawful and ordered the head of the Frunzenskiy police station (i) to locate S.K. and question him; (ii) to request a reply from the DPRK’s Consul General; and (iii) to establish whether S.K. had been taken to police station no. 4 and whether any documents had been drawn up in that respect.
37. On 28 April 2022 the Frunzenskiy District Court, referring to the decision of the Deputy Prosecutor of the Frunzenskiy District of 22 April 2022, terminated the proceedings brought by Ms Trenina concerning the second refusal to open a criminal case.
38. On 14 June 2023 Ms Trenina lodged a third complaint with the Frunzenskiy District Court against the refusal to open a criminal case.
Additional relevant information
39. The application to the Court on behalf of S.K. was lodged by the IHR. The authority form authorising the IHR (and, in particular, Ms Davidyan, Mr Zharinov and Ms Trenina) to represent S.K. was signed by Mr G., the IHR’s chief executive officer. In the application form, in respect of its standing to represent S.K. before the Court, the IHR stated:
“By the moment of his abduction, [S.K.] was admitted to the identification procedure, there [had been] no removal decision in his respect, migration officers were providing services to [S.K.] in due course and he felt safe in the pastor’s apartment, since the police [were] aware of his whereabouts and took no action on his removal. There was no predictable immediate prospect of his removal and therefore no apparent need to sign a power of attorney for the [ECHR].
At the same time, if such prospect manifested itself, there is no doubt that [S.K.] would have signed the power of attorney. First, [S.K.] clearly expressed his desire to seek asylum in Russia and not to return to the DPRK, by contacting the UNHCR office and following actions advised by the attorney. Further, [S.K.] specifically told his lawyer that he was ‘ready to do anything’ in order not to return to North Korea. Finally, escaping from the university campus and even more so contacting the UNHCR are actions per se enough for a North Korean citizen to be accused of treason in the DPRK and therefore face torture and death in case of return. …
[S.K.], being the direct victim of the claimed violations[,] was abducted while in the hands of the State agents, [and] his whereabouts are unknown. He had no next of kin in Russia or anywhere outside North Korea. …
Based on the above, … in the exceptional circumstances of the case [the] IHR is acting as a de facto representative of [S.K.], with the purpose of bringing the claim of serious violations of the Convention (Articles 2 and 3) for examination at an international level.”
The IHR further stated that (i) Ms T. had been instructed by S.K. to represent him in the domestic proceedings; (ii) she had been providing him with legal assistance under her contract as part of the joint project between the UNHCR and the IHR; and (iii) she had been advised and instructed by the IHR on the strategy for the protection of S.K.’s rights.
40. On 30 October 2020, in reply to a query from the Court, the Government stated that they had no information to the effect that S.K. had been handed over to the North Korean authorities. They further stated affirmatively that he had not left Russian territory and that he was still living in Russia.
41. On 25 November 2021 the Government submitted that no reports of the abduction of S.K. had been filed with the relevant authorities and there had been no judicial decision ordering his placement in immigration detention.
42. On 4 March 2022 the Government submitted that S.K.’s location had not been established.
43. On 14 June 2023 Ms Trenina, in reply to a request for further information, informed the Court that on 11 July and 28 September 2022 respectively, K.J. and C.C. had left Russia for the Republic of Korea (South Korea), which had issued travel documents for them. They had since been residing in Seoul, South Korea.
RELEVANT INFORMATION ABOUT THE SITUATION IN NORTH KOREA
45. Human Rights Watch, in its special report “Worth Less Than an Animal: Abuses and Due Process Violations in Pretrial Detention in North Korea”, dated 19 October 2020, stated:
“All former detainees told Human Rights Watch that they were forced to sit still on the floor, kneeling or with their legs crossed, fists or hands on top of their laps, heads down, with their eyesight directed to the floor for 7-8 hours or, in some cases, 13-16 hours a day. If a detainee moves, guards punish the detainee or order collective punishment for all detainees. Abuse, torture, and punishment, including for failing to remain immobilized when ordered, appear to be more acute when interrogators are attempting to obtain confessions. Because detainees are treated as though they are inferior human beings, unworthy of direct eye contact with law enforcement officers, they are referred to by a number instead of their names. Some female detainees reported sexual harassment and assault, including rape …
The country has an official, law-based judicial system, but it also has a party-based quasi-judicial system that works in parallel and can supersede the official system in an opaque manner. Arbitrariness in the application of the law adds another layer of confusion for North Korean detainees and even law enforcement personnel …
There is no prohibition against using evidence gathered illegally. The law fails to include the presumption of innocence, the right against self-incrimination, or the right to remain silent. To the contrary, article 283 of the DPRK Criminal Procedure Code requires an accused to ‘answer questions when asked.’ …
The treatment of ordinary crimes and political crimes is strictly divided. Political crimes are considered anti-state and anti-nation crimes committed by enemies or ‘counter-revolutionaries’ against the party and government. These cases are under the jurisdiction of the secret police, and the Military Security Command when connected to the army …
North Korean citizens who have allegedly committed severe anti-state or anti-nation offenses disappear and are sent to political prison camps (kwanliso) without notice, trial or judicial order. There, they are held incommunicado, subjected to torture, forced labor and other severe mistreatment, and their families are not informed of their fate even if they die …
Mistreatment in custody is a standard feature of the criminal justice system in North Korea … The former officials explained that the authorities consider harsh treatment to be necessary to obtain confessions, which are crucial in the interrogation process during the investigation and preliminary examination stages. They added that humiliation and mistreatment are considered important to preempt future crimes by detainees …”
46. The Office of the United Nations (UN) High Commissioner for Human Rights, in the report “Promoting accountability in the Democratic People’s Republic of Korea”, of 11 January 2021 (A/HRC/46/52), stated:
“46. The interviews that OHCHR conducts with people who have escaped from the Democratic People’s Republic of Korea continue to provide reasonable grounds to believe that the crime against humanity of imprisonment is ongoing within the ordinary prison system.
…
51. OHCHR continued to receive consistent and credible accounts of the systematic infliction of severe physical and mental pain or suffering upon detainees, through the infliction of beatings, stress positions and starvation in places of detention. Such information reconfirms the findings of the commission of inquiry and indicates that the crime against humanity of torture continues to take place in the ordinary prison system
…
54. Several interviewees confirmed the continued use of the ‘sitting tight’ tactic of torture in pretrial detention. They said that if they moved, spoke or even made unacceptable eye contact with guards while sitting tight, guards would beat them or force other detainees to beat them. Guards would also punish all the detainees in an entire cell by making them all perform difficult physical activity, such as a large number of squats. One particularly egregious punishment was to require a detainee to bang his or her own head against the cell bars. An interviewee who experienced that was told by the guard that the sound of her banging her head should fill the cell, and she was forced to bang her head until she fainted. The frequency of breaks to stand up and stretch, or to use the toilet, depended entirely on the goodwill and mood of the guards. Some interviewees mentioned that detainees sometimes soiled themselves while sitting tight because they were not allowed to use the toilet. Those conditions add a psychological element to the physical pain of stress positions, demonstrating absolute control over the detainee’s physical and mental being. More recent escapees said that they were monitored by closed-circuit television while sitting tight so that they could be even more efficiently terrorized.
55. Also consistent with the findings of the commission of inquiry, almost all recent interviewees confirmed to OHCHR that detainees are provided with an inadequate quantity of poor-quality food. The quantity may be further reduced as punishment for any perceived infraction or for failing to work well or hard enough. Former detainees described receiving, for example, 200 kernels of corn or a handful of boiled cornmeal three times a day, with little else. Interviewees described their own malnutrition and severe weight loss, and women said that they stopped menstruating. Some detainees had reportedly died of malnutrition …
60. Beatings, stress positions, psychological abuse, forced labour, denial of medical care and sanitation and hygiene products, and starvation all combine to create an atmosphere of severe mental and physical suffering in detention, exacerbated by extremely poor living conditions. Multiple credible accounts of such abuse provide reasonable grounds to believe that officials of the Democratic People’s Republic of Korea have inflicted and continue to intentionally inflict severe physical and/or mental pain upon detainees in their custody. Those acts may amount to the crime against humanity of torture, if found by a competent court to have taken place in the context of a widespread and/or systematic attack against a civilian population, as indicated by the commission of inquiry.
61. OHCHR is gravely concerned by credible accounts of forced labour under exceptionally harsh conditions within the ordinary prison system, which may amount to the crime against humanity of enslavement …”
47. The US Department of State, in its 2020 “Country Report on Human Rights Practices: Democratic People’s Republic of Korea” of 30 March 2021, found:
“… The penal code prohibits torture or inhuman treatment, but many sources reported these practices continued. Numerous defector accounts and NGO reports described the use of torture by authorities in several detention facilities. Methods of torture and other abuse reportedly included severe beatings; electric shock; prolonged periods of exposure to the elements; humiliations such as public nakedness; confinement for up to several weeks in small ‘punishment cells’ in which prisoners were unable to stand upright or lie down; being forced to kneel or sit immobilized for long periods; being hung by the wrists; water torture; and being forced to stand up and sit down to the point of collapse, including ‘pumps,’ or being forced to repeatedly squat and stand up with their hands behind their back. Defectors continued to report many prisoners died from torture, disease, starvation, exposure to the elements, or a combination of these causes. Detainees in re-education through labor camps reported the state forced them to perform difficult physical labor under harsh conditions … Defectors noted they did not expect many prisoners in political prison camps and the detention system to survive. Detainees and prisoners consistently reported violence and torture. Defectors described witnessing public executions in political prison camps. According to defectors, prisoners received little to no food or medical care in some places of detention. Sanitation was poor, and former labor camp inmates reported they had no changes of clothing during their incarceration and were rarely able to bathe or wash their clothing. The South Korean and international press reported that the kyohwaso re-education through labor camps held populations of up to thousands of political prisoners, economic criminals, and ordinary criminals …”
48. Amnesty International, in its “Report 2020/21: The State of the World’s Human Rights: North Korea”, released on 7 April 2021, pointed out:
“… Arbitrary Arrests and Detentions
The government continued to deny the existence of four known political prison camps, where up to 120,000 people remained detained and subjected to torture, forced labour and other ill-treatment, and harsh conditions including inadequate food. Many of them had not been convicted of any internationally recognizable criminal offence and were arbitrarily detained solely because they were related to people who were deemed a threat to the state or for ‘guilt-by-association’. Others were detained for exercising their rights, such as the freedom to leave their own country …”
49. The UN Special Rapporteur on the situation of human rights in the Democratic People’s Republic of Korea, in his report of 1 May 2020 (A/HRC/43/58), emphasised the following:
18. The Special Rapporteur has received information on an increasing number of escapees from the Democratic People’s Republic of Korea, including children, who have been detained in China … the Special Rapporteur highlights the obligation of China under international human rights and refugee law not to repatriate persons to the Democratic People’s Republic of Korea … He further reiterates that, regardless of the status of those persons, international human rights law also provides the principle of non-refoulement, which is explicitly included in the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which has been ratified by China. There are substantial grounds to believe that escapees would be subjected to torture or other serious human rights violations if repatriated to the Democratic People’s Republic of Korea, and they should therefore be protected as refugees sur place …
19. The Special Rapporteur is deeply concerned about the decision made by the Government of the Republic of Korea on 7 November 2019 to deport two fishermen of the Democratic People’s Republic of Korea who were reportedly seized in the waters of the Republic of Korea on 2 November 2019 … The Special Rapporteur is concerned that the decision was taken without due process and that the two men are at risk of serious human rights violations against them upon their return, including enforced disappearance, arbitrary execution, torture and ill-treatment, and trials that do not conform to international fair trial standards. Their whereabouts following their return are unknown. The Special Rapporteur joined 67 civil society organizations and 10 individuals in signing an open letter to the President of the Republic of Korea, Moon Jae-in, expressing concern about the failure to uphold international human rights obligations. In the letter, the Special Rapporteur urged the Government to take corrective action and uphold the right of individuals not to be returned if they are at risk of torture and other ill-treatment.”
50. The US Committee for Human Rights in North Korea (an NGO), in its written statement to the UN Human Rights Council, released on 17 June 2021 (A/HRC/47/NGO/67), noted:
“Under Article 63 (Treason to State), a North Korean who ‘defects to a foreign country in betrayal of the country … shall be committed to more than five years of reform through labor.’ Reform through labor for an indefinite period or the death penalty and confiscation of property can also be imposed ‘in case of an extremely grave crime.’ In fact, these laws amount to political discrimination at the highest levels and have led to death through forced labor due to the harsh punishment meted out by the DPRK’s internal security forces operating its prison facilities. North Koreans who are caught attempting to flee their country, or worse, arrested in China by PRC security officials and forcibly repatriated are deemed traitors to their country …
In these [political prison] camps, prisoners are almost never released and serve life sentences until they succumb to crimes against humanity perpetrated inside the prisons. Family members of these prisoners may be sent to these prisons too, regardless of the DPRK’s legislation known to the international community. Even if the Criminal Law is adhered to, serving a year or less in a mobile labor brigade, for example, is known to result in prisoner deaths due to the previously mentioned lack of food and medicine, harsh forced labor, grossly inadequate prison conditions, and prisoner abuse, including torture, sexual violence, and inhumane treatment …”.
51. Human Rights Watch, in its most recent World Report 2022 – North Korea, of 13 January 2022, highlighted the following:
“The Democratic People’s Republic of Korea (DPRK) remains one of the most repressive countries in the world. Ruled by the authoritarian leader Kim Jong Un, the government responded to international challenges and the Covid-19 pandemic in 2021 with deepened isolation and repression, and maintained fearful obedience in the population through threats of execution, imprisonment, enforced disappearances, and forced hard labor in detention and prison camps… The government does not tolerate pluralism, bans independent media, civil society organizations, and trade unions, and systematically denies all basic liberties, including freedom of expression, public assembly, association, and religion. Fear of collective punishment is used to silence dissent. Authorities in North Korea routinely send perceived opponents of the government to secretive political prison camps (kwanliso) in remote regions where they face torture by guards, starvation rations, and forced labor. …
Moving from one province to another, or traveling abroad, without prior approval remains illegal in North Korea. The government continues to strictly enforce a ban on ‘illegal’ travel to China. Border buffer zones set up in August 2020, which extend one to two kilometers from the northern border, operated continuously in 2021 with guards ordered to ‘unconditionally shoot’ on sight anyone entering without permission. There were reports of border guards shooting dead North Koreans trying to cross the border …
North Korean law states that leaving the country without permission is a crime of ‘treachery against the nation’, punishable by death. The 2014 UN Commission of Inquiry (COI) on human rights in the DPRK found Pyongyang committed crimes against humanity against those forcibly returned by China to North Korea …
The North Korean government routinely and systematically requires forced labor from much of its population to sustain its economy. The government’s forced labor demands target women and children through the Women’s Union or schools; workers at state-owned enterprises or deployed abroad; detainees in short-term hard labor detention centers (rodong dallyeondae); and prisoners at long-term ordinary prison camps (kyohwaso) and political prison camps (kwanliso).
At some point in their lives, a significant majority of North Koreans must perform unpaid hard labor, often justified by the state as ‘portrayals of loyalty’ to the government. Since punishment for crimes in North Korea is arbitrary, and depends on a person’s record of loyalty, personal connections, and capacity to pay bribes, any refusal of a government order to work as a ‘volunteer’ can result in severe punishment, including torture and imprisonment …”
52. The UN Special Rapporteur on the situation of human rights in North Korea stated in reports of 17 March 2022 (A/HRC/49/74) and of 12 October 2023 (A/78/526), respectively:
“11. The Special Rapporteur has received reports that three individuals of the Democratic People’s Republic of Korea seeking asylum are being held at the Consulate of the Democratic People’s Republic of Korea in Vladivostok, Russia. About 1,500 people of the Democratic People’s Republic of Korea are estimated to be detained in China as ‘illegal migrants’ and are at risk of being repatriated to their country once the border reopens. Throughout his term, the Special Rapporteur has made continued efforts to prevent the forced repatriation of people from the Democratic People’s Republic of Korea, including through regular engagement with China, the Republic of Korea and the United Nations High Commissioner for Refugees. While this engagement has had a positive impact in some instances, the Special Rapporteur remains concerned that the relevant parties have not agreed on a comprehensive solution to ensure protection and to provide safe passage to escapees. The OHCHR continues to document serious human rights violations on repatriation, including torture and other forms of cruel, inhuman or degrading treatment. According to the Korea Institute for National Unification, ‘[s]ince President Kim Jong Un came to power, punishment for repatriated defectors has been greatly strengthened’.”
“4. … the Special Rapporteur is extremely concerned about the imminent risk of repatriation of individuals from the Democratic People’s Republic of Korea by other countries since there are long-standing and credible reports to believe that escapees from the Democratic People’s Republic of Korea that are forcefully returned to the country would be subjected to torture, cruel, inhuman or degrading treatment and punishment as well as other grave human rights violations.”
53. According to Freedom House’s 2023 report on North Korea,
“Religious groups are harshly suppressed and unable to organize politically … Although freedom of religion is constitutionally guaranteed, it does not exist in practice. State-sanctioned churches maintain a token presence in Pyongyang, and some North Koreans are known to practice their faith furtively. However, intense state indoctrination and repression preclude free and open exercise of religion. Crackdowns are common, and those caught – including foreigners – are arrested and subjected to harsh punishments, including imprisonment in labor camps. In 2021, nongovernmental organization Open Doors US reported that 50,000 to 70,000 Christians were held in prison camps. …
Citizens have no freedom of movement, and forced internal resettlement is routine. Emigration is illegal. In recent years, authorities have employed stricter domestic controls to arrest the flow of defectors, who have also been impeded by regional coronavirus-related travel restrictions. The South Korean Unification Ministry reported that over 1,000 defectors entered the country in 2019 but only 67 did so in 2022.”
THE COURT’S ASSESSMENT
75. At the outset the Court observes that in the context of expulsion, where there are substantial grounds to believe that the person in question, if expelled, would face a real risk of capital punishment, torture, or inhuman or degrading treatment or punishment in the destination country, both Articles 2 and 3 imply that the Contracting State must not expel that person. The Court will therefore also examine the two Articles together (F.G. v. Sweden [GC], no. 43611/11, § 110, 23 March 2016).
76. The Court further reiterates that Contracting States have the right, as a matter of international law and subject to their treaty obligations, including the Convention, to control the entry, residence and expulsion of aliens, and that the right to asylum is not explicitly protected by either the Convention or its Protocols. However, it is the Court’s settled case-law that expulsion or extradition by a Contracting State may give rise to an issue under Articles 2 and 3 of the Convention (and hence engage the responsibility of that State under the Convention) where substantial grounds have been shown for believing that the individual concerned, if deported, faces a real risk of being killed or subjected to treatment contrary to Article 3 of the Convention (Headley v. the United Kingdom (dec.), no. 39642/03, 1 March 2005; Mamazhonov v. Russia, no. 17239/13, §§ 127-28, 23 October 2014).
77. As in other similar cases where allegations were made of abduction and illegal transfer of the applicants, the Court should examine whether the authorities (i) complied with their obligation to protect the applicant against the risk of the treatment contrary to Articles 2 and 3 of the Convention; (ii) conducted an effective investigation into the applicant’s disappearance, and (iii) should be held accountable for the applicant’s disappearance (Mukhitdinov, § 59, no. 20999/14, 21 May 2015).
78. The Court notes that the IHR argued that S.K. had run an extremely high risk of being subjected to the death penalty, which was commonly applied to returnees, and to torture in reprisal for applying for asylum.
They relied on the latest reports from reputable international organisations which confirmed that torture and the death penalty were widely used by the North Korean authorities against people who left the country illegally or did not return after a permitted visit abroad.
The Court notes that the Government neither disputed the accuracy of those reports nor submitted any other evidence of the treatment that people who were forcefully returned to North Korea would be subjected to.
The Court notes that the IHR’s submissions are based on up-to-date data and corroborated by reliable and detailed reports by international bodies that unambiguously attest to grave human rights violations in that country, including in the context of detention, and indicate, in particular, that (i) persons are routinely detained and subjected to torture, forced labour and other ill-treatment for exercising their rights, such as the freedom to leave their own country; (ii) North Koreans who defect and are forcibly repatriated are deemed traitors of the country and can be subjected to more than five years of “reform through labour”; (iii) leaving that country without permission constitutes the crime of treason against the nation and is punishable by death; and (iv) religious groups are severely suppressed and persons caught exercising their religious rights are subjected to harsh punishments.
The Court also observes that S.K.’s personal situation had exposed him to a real risk of death or ill-treatment in that country. Having first been allowed to leave North Korea on a student visa to Russia, he had later indicated his intention not to return to North Korea and moved off the university campus to the house of a local pastor.
S.K. obtained legal advice in order to seek asylum and applied to the Russian migration authority to be admitted to the identification procedure, as he had no identity document on him.
S.K. can therefore be considered to have been at risk of death and ill‑treatment for violating the terms of his departure from North Korea and his stay in a host country, being on close terms with a religious leader and, most importantly, attempting to defect.
79. Having regard to its findings in paragraph 58 above about the applicant’s illegal transfer, the IHR’s submissions and to the fact that the Government submitted no convincing material in support of their position, the Court is satisfied that the Russian authorities were, or at least should have been reasonably aware that S.K. could face a forcible transfer to the country where he could be subjected to death or ill-treatment and that relevant preventive measures should have been taken by them (Mukhitdinov, § 62; N.K. v. Russia). However, no competent authority has ever examined the merits of the applicant’s arguable claim under Articles 2 and 3 before illegally transferring him to the North Korean officials; in fact, the applicant has not been even given a realistic opportunity to make such a claim.
80. Furthermore, where, as in the present case, the authorities of a State party are informed of illegal transfer of a person from Russia, they have an obligation under the Convention to conduct an effective investigation (Savriddin Dzhurayev, § 190). The Court however notes from the material of the case file that despite the District Prosecutor’s order, no meaningful steps were taken to establish S.K.’s whereabout during the investigation into his disappearance.
81. In the view of the above and having regard to the facts as alleged by the IHR and confirmed by materials that they submitted, and taking into account the Government’s failure to substantiate their version of facts, the Court finds that substantial grounds have been shown for believing that at the time of S.K.’s rendition to the North Korean authorities, there existed a real risk that he would face death or ill-treatment in North Korea and the Russian authorities should therefore be held accountable for handing S.K. over to the North Korean officials. They also failed to carry out an effective investigation into his illegal transfer.
82. There has accordingly been a violation of Articles 2 and 3 of the Convention.
FOR THESE REASONS, THE COURT, UNANIMOUSLY
Decides to join the applications;
Holds that it has jurisdiction to deal with the applicants’ complaints in so far as they relate to facts that took place before 16 September 2022;
Declares that the Institute for Human Rights has standing to represent S.K. in the proceedings before the Court;
Decides to strike the application of K.J. and C.C. (no. 27584/20) out of its list of cases in so far as it concerns complaints under Articles 2 and 3 of the Convention concerning the risk of death and/or ill-treatment in the event of K.J.’s and C.C.’s being expelled to North Korea from Russia;
Declares admissible the complaint by S.K. under Article 2 and Article 3 of the Convention concerning the risk of death and/or ill-treatment as result of his transfer to North Korean officials;
Holds that there has been a violation of Articles 2 and 3 of the Convention in respect of S.K.;
…
K.J. and Others v. Russia, applications №№ 27584/20 and 39768/20, judgment 19.03.2024
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