legal violations during the Deportation of MTU President Torna Limbu and Vice President Abdus Sabur

I. Sequence of Events

-2008.5.2. At around 20:20 Torna Limbu, President of the Seoul-Gyeonggi-Incheon Migrants Trade Union is arrested by Seoul Immigration Authority officers who had been waiting in hiding in front of the MTU office. At roughly 21:00 Vice President Abdus Sabur is arrest by immigration officers who entered his house after waiting hidden nearby.

-At roughly 21:30 the two are transported to and detained at Cheonggju Foreigners' Detention Center. Lawyer Gwon Young-guk, who had heard of their detention applied to be able to see them but was denied.

- 2008.5.4. The Seoul Immigration Authority issues order for the deportation of President Limbu and Vice President Sabur.

-2008.5.5. Limbu and Sabur's lawyer's Gwon Young-guk, Hwang Pil-gyu and Jang Seoyeon submit objections to the orders for detention and deportation for Limbu and Sabur.

-2008.5.8. MTU Education and Outreach Director Lee Jung-won submits a complaint about the targeted crackdown and an urgent appeal for stay of detention to the National Human Rights Commission.

-2008.5.9. Lawyers file a lawsuit for cancellation of the orders for detention and deportation of Limbu and Sabur and an application for stay of detention to the Seoul District Court.

-2008.5.15. The Standing Committee of the National Human Rights Commission decides in favor of the urgent appeal calling for a stay of detention until its investigation of the complaint related to the targeted crackdown is completed.

-2008.5.15. The Seoul Immigration Authority carries out the forced deportation of President Limbu and Vice President Sabur.

II. Violation of the Right to bring a Complaint before the National Human Rights Commission (violation of National Human Rights Commission Law, Article 60)

-Those who's constitutionally protected human rights have been violated in relation to the activities of a government agency can make a complaint to the National Human Rights Commission (National Human Rights Law Article 30, clause 1). In investigating complaints, the National Human Rights Commission may request interviews with the parties involved including hearing statements from the alleged victims (National Human Rights Law Article 36, clause 1).

-The National Human Rights Commission may take necessary measures or recommend necessary measures to related parties or agencies in order to protect the life, bodily safety and honor of the alleged victims or secure evidence or prevent its destruction (National Human Rights Commission Law Article 48, clause 2). Those parties that block the urgent appeals procedures of the Commission may be fined up to 5 million won or sentenced to up to one year in prison (National Human Rights Commission Law Article 60).

-On 2008.5.8 MTU submitted a complaint and application for urgent appeal procedures to the National Human Rights Commission and on 2005.5.15 the Standing Committee of the National Human Rights Commission made a decision to issue an urgent appeal recommending that until the investigation of the complaint was complete, “the order for forced deportation of the two victims should not be carried out.”

-Nonetheless the Seoul Immigration Authority, ignoring the urgent appeal decision of the Commission, carried out the deportation of the two MTU leaders. The premature deportation of the two victims, the people in the best position to know the facts and course of events of the incident being investigated, completely closed off the possibility for investigators to interview and hear statements from them, thus obstructing basic investigation procedures necessary for deciding if there had been legal violations in the course of the arrest and fundamentally violated the two MTU leaders' right to bring a complaint before the Human Rights Commission and received a fair and proper investigation.

-In addition, the Seoul Immigration Authority had also prematurely deported the previous MTU president, vice president and general secretary without notifying the National Human Rights Commission despite being aware of a Commission investigation concerning their arrests underway, thus violating their right to bring a complaint before the Commission.

III. Violation of the Right to Trial (violation of Constitution, Article 27, clause 1)

-Article 27, clause 1 of the Constitution stipulates, “All citizens shall have the right to trial according to law by judged qualified and appointed under the Constitution and Act.” Lawsuits for cancellation of orders for detention and deportation can be filed according to procedures stipulated in the Code of Administrative Legal Procedures (Code of Administrative Legal Procedures, Article 19, Article 20.)

-On 2008.5.9 MTU filed a lawsuit calling for cancellation of the orders for detention and deportation and an application for a stay of detention until the end of the trial.

-Even though the Seoul Immigration Authority was aware of this lawsuit and application for stay of detention, it ignored this fact and carried out the forced deportation.

-Even if, under the principle of non-obstruction of official procedures, the filing of a lawsuit cannot have influence on the force or execution of penalties (Code of Administrative Legal Procedures, Article 23, clause 1), clause 2 of this article also allows that in the case of a lawsuit for cancellation of penalties, the force and execution of a penalty may be stayed in order to prevent damages that are difficult to repair.

-Nonetheless the South Korean Immigration Authority did not give the Seoul Administrative Court even the minimal amount of time to make a decision concerning the appeal for stay of force of the deportation order and, by carrying out the forced deportation, fundamentally violated the two MTU leaders right to trial.

IV. Violation of the Right to Assistance from a Lawyer and Due Process (failure to notify lawyers of detention, failure to transmit notification of rejection of lawyers' objection to the detention and deportation.)

- Article 12, clause 4 of the Constitution stipulates, “Any person who is arrested or detained shall have the right to prompt assistance of counsel.” The right to assistance by a lawyer, as a basic right with an intimate relationship to the right to bodily freedom and as a constitutional right stemming from the principle of due process (Article 10 and Article 12, clause 1 of the Constitution), the right to fair trial (Article 14, clause 4, Article 27 of the Constitution) and an element of due process in a constitutional state should be protected as far as possible with regards to state authority.

-The Immigration Control Law stipulates lawyers as among those people who should be notified in the case of detention (Immigration Control Law, Article 54), and states that lawyers may make objections to detention (Immigration Control Law, Article 55) and that decisions passed on objections should be communicated to lawyers (Immigration Law Enforcement Regulation Article 70, clause 1) so as to ensure that those who have been deprived of their bodily freedom have sufficient access to legal assistance.

-However, even though the Seoul Immigration Authority was obligated to notify lawyers in writing within 3 days after detention of the MTU leaders, it did not do so (Immigration Control Law, Article 54). It also began the process of deportation before notifying the lawyers of the rejection of their objections to detention and deportation (Immigration Control Aw Article 55 and Enforcement Regulation Article 70, clause 1). These are violations of the right of MTU leaders to legal assistance and of lawful process.

V. Violations of Right to Equality and Right to Freedom of Association.

-Article 11, clause 1 of the Constitution states, “All citizens shall be equal before the law, and there shall be no discrimination in political, economic, social or cultural life on account of sex, religion or social status.” Article 56, clause 3 of the Immigration Control Law stipulates, “the human rights of detainees shall of respected to the full extent possible and there shall be no discrimination towards detainees on account of nationality, sex, religion or social status.”

-Article 33, clause 1 of the Constitution states, “to enhance working conditions, workers shall have the right to independent association, collective bargaining and collective action.

-The Seoul Immigration Authority has targeted and arrested MTU's first president, President Anwar (2005.5.14), MTU's second leadership, President Kajiman, Vice President Raju and General Secretary Masum (2007.11.27) and its third leadership, President Limbu and Vice President Sabur (2008.5.2), deporting the second and third leaderships. In addition, the Seoul Immigration Authority has treated MTU leaders differently from other detained foreigners, transferring them the same day they were arrested to the Cheongju Foreigners' Detention Center far away from where they lived and causing difficulty in gaining visiting rights while they were detained and in their receipt of legal assistance. The fact that the MTU leaders were deported without any prior notice that the deportations would be carried out is also a point of unequal treatment as compared to other detained foreigners.

-The series of targeted arrests and forced deportations of MTU leaders by the Seoul Immigration Authority are discriminatory actions based on their status as MTU officers and members. As measures aimed at weakening MTU, these acts are violations of the right to equality and the right to freedom of association.

VI. Violations of Bodily Freedom (lack of warrant, violation of right to request review of legality) and freedom of residence.

-Article 12, clause 3 of the Constitution states, “For arrest, detention, seizure or search a warrant issued by a judge in due process of law upon request of a prosecutor shall be presented” and Article 12, clause 6 states, “Any person who is arrested or detained shall have the right to request the court to review the legality of the arrest or detention.”

Article 16 of the Constitution states, “All citizens shall be free from intrusion into their place of residence. For search or seizure in a residence shall be presented a warrant issued by a judge upon request of a prosecutor.”

-The relevant provisions of the Immigration Control Law, which completely excludes the authority of the courts and allows for the detention of foreigners with the goal of deportation carried out solely by the agencies related to the Immigration Authority, and the execution of 'urgent detention' and 'forced deportation' of the MTU leaders based on these provisions are fundamental violations of the due process stipulated in Article 12 of the Constitution and of Article 12, clause 3, which elucidates the principle of presenting warrants before arrest.

-In particular, Seoul Immigration officials' intrusion into Vice President Sabur's residence and forcible arrest of him is a violation of the principle of warranted entry elucidated in Article 16 of the Constitution.

-In addition it must be pointed out that the Immigration Control Law only allows for the formalistic objection procedures as a manner of redress for unjust detentions and does not call for the possibility of review of the legality of a detention by an appointed judge, a legal omission which is a violation of Article 12, clause 6 of the Constitution. In the case of the MTU leaders, this led to a complete disregard for their rights in the process of forced deportation.