수형자의 처우에 관한 국제인권규정의 국내적 적용과 보장

Abstract

While the issue of whether the prisoners' human rights should be protected has been discussed for a long time, it wasn't until 30 years ago that we began to discuss the rights and status of prisoners nationally or internationally. Taken account into the complexity related to achievement of the goal of correction, it's certain that the issue of safeguarding prisoners' human rights or other rights and their status is very complex and delicate one. Moreover, given that executions of sentences are necessarily connected to the issues of human rights, the situation surrounding the issue may become more complex and delicate. But, Considering that the concept of "prisoner's human rights" implicates human rights of the individuals who shall be eligible to enjoy universal human rights which are basic, inherent and inalienable, we would conclude that there is no reason for any prisoner's human right to be deprived by reason of his or her crimes. And yet, it is difficult to allow the prisoners to enjoy unlimited human rights without setting the limits under certain criteria. That is to say, the human rights of the prisoners should be ensured within the limit provided by international human rights instruments or within the ambit of national laws and regulations. There are a large number of legal instruments addressing human rights of the prisoners. For example, there are international conventions on human rights, including 「International Covenant on Civil and Political Rights」 and 「Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment」, regional conventions on human rights, including 「Convention for the Protection of Human Rights and Fundamental Freedoms」 and American Convention on Human Rights」, and international instruments, including 「Standard Minimum Rules for the Treatment of Prisoners」 and 「Basic Principles for the Treatment of Prisoners」. All these instruments commonly provide with prohibition of inhumane torture, waiver of degrading punishment, rights to humanitarian treatment, rights to fair trial and freedom of exterior communication. In the Republic of Korea, the Constitution sets the framework for prisoners' human rights, and Criminal Administration Act and National Human Rights Commission of Korea Act provide it in detail. In particular, it is said that the 1999 Criminal Administration Act improved the prisoners' rights. Also, the Constitutional Court has recognized the basic human rights of the prisoners. Nevertheless, Korean laws still bears possibilities of impinging on human rights in several aspects, from the perspective of international instruments on human rights. The first problem is related to the limitation of interviews and the censoring of letters, which are connected with exterior communication rights of the prisoners. Korea's Criminal Administration Act doesn't provide the advocate's right to hold an interview with a prisoner. Because the interview between an advocate and a prisoner is very crucial for a prisoner to receive a fair trial, and the right to a fair trial is a fundamental right that should be given to all the people including a prisoner, it is required that the advocate's right to interview a prisoner should be expressly stipulated in the laws or regulations. Also, the provisons of Criminal Administration Act, providing restriction of the number of exchanging letters and censorship of the letters, seem to be inconsistent with international instruments on human rights and the Constitution of Korea The second problem is related to using physical force on the prisoners. The current Criminal Administration Act allows detention facility officers to use physical force and punishment on the prisoners. Although it is intended to maintain safety and order within the detention facilities, its abuse of using physical force has a great potential to impinge on the human rights of prisoners. The related provisons of Korean Criminal Administration Act is so vague and ambiguous as to give rise to wrong interpretations and abuses. Therefore, the provisions should be amended to be more specific and precise. It is very difficult to reach both a goal of ensuring prisoners' human rights and a goal of maintaining security and order. The trade-off is between the two goals. Therefore, it is not allowed to pursue only one goal. It is necessary to harmonize human rights and discipline, for these two goal are equally important factors.