ICCPR Case Digest

CCPR/C/127/D/2725/2016

Communication

2725/2016

Submission: 2015.10.20

View Adopted: 2019.11.07

S. J. v. Republic of Korea

Claim that preventative detention was arbitrary and unlawful, inadmissible as failure to exhaust domestic remedies

Substantive Issues
  • Access to court
  • Arbitrary detention
  • Conditions of detention
  • Fair trial
  • Retroactivity of the law
Relevant Articles
  • Article 14.1
  • Article 14.7
  • Article 15.1
  • Article 9.1
Full Text

Facts

The author is a national of the Republic of Korea who claimed that the preventative detention which he has been subject to amounts to a violation of his rights under articles 9, 14 (1) and (7), and 15 (1) of the Covenant.

The author committed a number of crimes prior to preventative detention, including larceny, and two counts of assault. Following serving prison sentences, the author was placed on parole, however engaged again in a number of cirminal acts. In 2004 he recieved a 10 year prison sentence along with indefinite preventative detention. The author appealed the decision for ongoing preventative detention however such applications were denied.

Following his ten year sentence, the author commenced preventative detention in a correctional facility in northern Gyeongbuk. All claims to have this requirement lifted have been declined, and the author expressed that he felt further claims were futile.

Admissibility

The Committee found that the author’s comment that his pursuit of administrative litigation against the decision of the Deliberation Committee is deemed futile and ineffective. This was on the basis that domestic courts found that preventive detention under article 2 of the Abolishment Act, did not amount to double punishment or disproportionally excessive violation of personal liberty, which was confirmed in the following constitutional review, after failing to succeed in the administrative litigation while they were serving in preventive detention.

On this basis, and without further clarification from the author as to why he did not attempt further appeals in relation to the individualized risk determination, and why he did not present expert evidence on his own to support his claims, the Committee is unable to find that the author exhausted all the domestic remedies and the communication is therefore inadmissible. 

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