Ex officio and special retrials for those wrongfully convicted related to Jeju 4·3
Ex officio and special retrials for those wrongfully convicted related to Jeju 4·3
Deputy Editor of Administrative and City Desk, The Hall Ilbo
[Those who served jail terms under false accusations due to unlawful trials during Jeju 4·3 cheer with joy after the court dismissed the indictments of seven decades ago during their collective retrial, which is deemed a de facto judgment of their innocence. (Jan. 17, 2019)]
At the time of Jeju 4·3, residents of Jeju province were brought to obviously-unlawful trial but were forced to remain silent for more than 70 years. (An estimated 2,530 people were convicted by court-martial ruling and 1,800 people by general court ruling.) Barely escaping death, they decided to shut their mouths tightly after witnessing many residents killed by the constabulary forces and out of fear that they themselves or their family members should be disadvantaged under the ferocious military regimes. It was 18 courageous convicts of courts-martial who broke years of silence. These victims of unlawful court rulings applied for a retrial with the Jeju District Court on April 19, 2017, with the oldest and the youngest of the plaintiffs aged 97 and 85, respectively, at the time.
Over their petition for retrial, not only the legal community but also local society expressed skepticism. This is because the reasons for retrial were not fully met as the facts based on which the indictments were made were not specified, while the retrial case was unprecedented in both in Korea and internationally. However, the situation was reversed during the hearing and trial process when the unlawfulness of the courts-martial were confirmed when the surviving victims vividly testified, one after another, that they had been “taken to prison without knowing the reasons”. To recall my memory of it, the 18 plaintiffs appeared in court in wheelchairs or were led by the hand by their family members. Some of them raised their hands during the trial as a signal to request to speak. The panel of judges also exchanged questions with the audience, reminding one of a place for a free debate, not a courtroom.
Finally, the judicial panel (Presiding Judge Jegal Chang) from the 2nd Criminal Court Chamber of the Jeju District Court, on Jan. 17, 2019, announced the judgement, which reads, “As innumerable people were collectively referred to trial by courts-martial in a short period of time, it is difficult to assume that the trial procedures were properly carried out, such as the preliminary examination of the cases and the delivery of certified copies of written indictments.” Based on this judgment, the court dismissed the indictments, which is deemed to have the de facto effect of an acquittal.
Door to request retrials now wide open
Following the court ruling to dismiss the indictments, other victims or victims’ family members also applied for retrial, which influenced the revision of the Special Act on Discovering the Truth of Jeju 4·3 and Restoring Honor to the Victims (hereinafter called “the Jeju 4·3 Special Act”). Eventually, the bill on the revision of the act was passed at the Cabinet meeting on March 16 of last year, containing a new clause that stipulates, “An ex officio retrial and a general retrial shall be conducted for the victims of Jeju 4·3-related unlawful courts-martial and general trials, respectively.” In brief, the clause specifies that for the victims of courts-martial, prosecutors may make an ex officio request for retrial at the court, while the victims of general trials are entitled to request retrial even if such a request fails to fulfil the requirements under Article 420 of the Criminal Procedures Act.
Subsequently, the Supreme Prosecutors’ Office launched the Joint Delegation of Recommendations for Ex Officio Retrial for the victims of courts-martial on Nov. 24 of last year. The Jeju District Court also newly established the Jeju 4·3 Tribunal for Retrial Cases on Feb. 21 of this year in preparation for the expected flood of requests for retrial by an estimated 3,000 or more victims of unlawful courts-martial or general court rulings.
As of May 9, the Joint Delegation of Recommendations for Ex Officio Retrial applied for a retrial of 160 victims, and the Jeju 4·3 Tribunal for Retrial Cases acquitted 113 convicts (80 victims of courts-martial and 33 victims of general trials).
Jang Chan-su, the first Presiding Judge of the Jeju 4·3 Tribunal for Retrial Cases, stated: “The special retrials in line with the revision of the Jeju 4·3 Special Act are the result of the determination of legislators who allowed an opportunity to request a retrial in consideration of the fact that as many years have passed since Jeju 4·3, it is difficult to collect materials required for requesting a retrial and the majority of the defendants have died or are still missing.”
“The Jeju 4·3 Tribunal for Retrial Cases will continue to conduct retrials in an objective and fair manner, taking into account the purpose of revising the Jeju 4·3 Special Act and the substantive truth and historical significance of Jeju 4·3,” he added.
Desperate need for relief measures for victims of unlawful general trials
Unlike courts-martial for which prosecutors search for victims and request a retrial, the victims of general trials or victims’ family members need to handle the procedures by themselves. For this reason, only a small number of victims of unlawful general trials requested a retrial. Aside from the hassle of having to individually appoint an attorney and request a retrial to the court, many of the victims are completely unaware that they are able to be subject to retrial.
Application for the special retrial concerning unlawful general trials can be made if the applicant was indicted and convicted concerning the “turbulence that took place in Jeju from March 1, 1947, to April 3, 1948, and the subsequent armed collision and the counterinsurgency operation that continued until Sept. 21, 1954”. The threshold was lowered, as the Jeju 4·3 Tribunal for Retrial Cases judged that retrials can be requested after considering the eligibility of the retrial court to judge the decisions that were made by the United States Army Military Government, the eligibility of unrecognized Jeju 4·3 victims to apply for a retrial, the eligibility of a victims’ nephews or nieces to request a retrial for the victim, and the absence of the written judgments.
Process of requesting retrial concerning unlawful general trials
I personally looked into the process of requesting a retrial for a younger brother of my grandmother (my lineal ascendant within the third degree, or my father’s uncle) who was determined to be a Jeju 4·3 victim. According to the written decision on his recognition as a Jeju 4·3 victim, my father’s uncle was arrested by the constabulary forces in the summer of 1948 when he was 18 years old, and then was taken to a prison on the Korean mainland where he went missing afterwards. First, I searched his name on the Internet and found a newspaper article about him which has been stored in the Jeju 4·3 Archive. The article reported that he was put to trial in Gwangju at 3 p.m. on Nov. 30, 1948, and was sentenced to three to five years of imprisonment, just as the prosecution requested. Based on the article, I asked the National Archives of Korea for related data by filing a petition for information disclosure. Three days later, I received the Criminal Case Register stating the dates of his arrest and indictment. However, the National Archives of Korea responded that no record was found regarding where he had been imprisoned. I asked the legal community if I am eligible to request a retrial for my father’s uncle, given the written decision on his recognition as a Jeju 4·3 victim, the newspaper article, and the Criminal Case Register. The answer was that I am fully eligible to make an application for his retrial. Currently, I am about to request a retrial, along with some 10 victims of unlawful general trials.
Our lawyer preparing for the retrial said: “A retrial can be requested under the Jeju 4·3 Special Act if there exist actual facts that a victim was tried, be it by a court-martial or in a general court. Although it would be good if the victim’s family finds material proof, the request for a retrial can be made through the legal community or a 4·3-related organization just due to the fact that the victim was tried. This is because the panel of judges or the prosecution requests data from the National Archives of Korea during the trial process.”
The Joint Delegation of Recommendations for Ex Officio Retrial handles the retrials of 2,530 people who are recorded as those that were convicted by court-martial rulings. The prosecutors organize the data related to the convicts, including their names in Chinese characters, age, occupation, place of family register, ruling, date of judgment, and sentencing. Then, they check with the Ministry of Public Administration and Security and the Jeju provincial government to determine whether the convicts are alive or are survived by family members, before making an ex officio request for their retrial to the court.