Since North Korea revealed that it would send the case of the two U.S. journalists to trial, interest in the North Korean trial process is growing.
North Korea stated on the 24th through the Chosun Central News Agency (KCNA), “Competent authorities of the DPRK have examined the American journalists. It has been decided to put them on trial based on the results of the investigation.”
North Korea’s announcement immediately followed U.S. Secretary of State Clinton’s statement on the 22nd at a hearing of the U.S. House Committee on Foreign Affairs, “We have to be strong, patient and consistent and not give in to the kind of back and forth and the unpredictable behavior of the North Korean regime.” Therefore, the message the North is trying to send with this move is also interesting.
At any rate, a tough trial for the detained journalists has been settled on in North Korea. In contrast to the case of Evan Hunziker, who was detained in North Korea on espionage charges in 1996, the case at hand seems to be mostly a strategy to threaten the U.S. in stages by invoking North Korean domestic law.
Until now, no official trials for foreigners have ever been held in North Korea, so it is difficult to reach an immediate conclusion about the trial process or its anticipated results. North Korea, without any specific investigation results or charges, has one-sidedly revealed that it would forward the case to trial, so whether or not the investigation results were fair or the rights of the accused delineated in the North Korean criminal code were upheld cannot be confirmed.
North Korea’s “civil law for foreigners” stipulates that “The state will adhere to the basic principles of the DPRK legal system with regards to foreign civil affairs relations.” Consequently, it is difficult to imagine any exception for the U.S. journalists.
Moreover, the possibility is that disagreement between North Korea and the U.S. will ensue regarding the fairness of the trial due to the fact that the contents of the North Korean Penal Code regarding the designation of counsels by North Korea have not been adequately upheld.
Article 4 of North Korea’s Penal Code provides, “The state, when handling criminal cases, strictly preserves human rights.” Also, Article 4, Clause 106 of the Code stipulates, “In the handling of criminal cases, the right to counsel of plaintiffs and defendants is guaranteed.”
Further, Article 4, Clause 108 of the Penal Code stipulates, “The selection of counsel can be made by the family members, relatives, and organizational representatives of the plaintiff or the defendant.” According to this law, then, the media with which the journalists are affiliated or their family members have the right to designate a counsel.
However, after detaining the two North Korea did not allow them to communicate with any counsel during the 40-day investigation process. Under such conditions, serious doubts have been raised regarding whether the guarantee of human rights or the right to counsel for the accused has been observed.
The issue of designation of counsel will most likely be considered an utmost point of contention in determining the legality of the upcoming trial.
It seems possible that North Korea may directly appoint a counsel for them. Article 4, Clause 111 of North Korea’s Penal Code contains, “If a counsel is not designated, the trial court has to select counsel from domestic counsels.”
In North Korea, attorneys are affiliated with an organization called the “Chosun Lawyers Society,” under which the Chosun Lawyers’ Society’s Central Committee and lawyers’ committees under the jurisdiction of each city exist.
However, lawyers in North Korea do not accept cases by rank, but the state dispatches cases to each lawyer’s committee. In other words, since even legal cases are rationed, the concept of having a representative for a defendant does not exist, but in actuality, a majority of North Korean attorneys are essentially “administrators” acting under the guidance of judicial authorities. As a result, attorneys do not even appear in most criminals trials.
In addition, the political cases tend to be handled in “unofficial trials,” so whether or not the trial of the two journalists will be made public remains to be seen.
Based on the disclosure of the forwarding of the journalists’ case to trial, but not the specific details of the indictment, it is likely that an accurate trial schedule and process will be kept secret.
On the one hand, the North Korean Penal Code allows a trial-by-jury system for first hearings, but this is a nominal rule in reality. If the trial is of an important nature, then three judges tend to participate. Trials in North Korea mostly consist of two hearings, so if an appeal is made regarding the first trial, then a second trial can be held. However, if the Central Court conducts the first hearing, then an appeal cannot be made.