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DECISION ON ADMISSIBILITY
1. The author of the communication is Mr. Tae-Hoon Park, a Korean citizen,
born on 3 November 63. He claims to be a victim of a violation by the
Republic of Korea of article 18, paragraph 1, 19, paragraphs 1 and 2, and 26
of the Covenant. He is represented by counsel. The Covenant and the Optional
Protocol thereto entered into force for the Republic of Korea on 10 July
1990.
THE FACTS AS SUBMITTED BY THE AUTHOR
2.1 On 22 December 1989, the Seoul Criminal District Court found the author
guilty of breaching paragraphs 1 and 3 of article 7 of the 1980 National
Security Law1 and sentenced him to one year's suspended imprisonment and one
year's suspension of exercising his profession. The author appealed to the
Seoul High Court, but in the meantime was conscripted into the Korean Army
under the Military Service Act, following which the Seoul High Court
transferred the case to the High Military Court of Army, in accordance with
Korean law. The High Military Court, on 11 May 1993, dismissed the author's
appeal. The author then appealed to the Supreme Court, which, on 24 December
1993, confirmed the author's conviction. With this, it is argued, all
available domestic remedies have been exhausted. In this context, it is
stated that the Constitutional Court, on 2 April 1990, has declared that
paragraphs 1 and 5 of article 7 of the National Security Law are
constitutional. The author argues that, although the Court did not mention
paragraph 3 of article 7, it follows from its decision that paragraph 3 is
likewise constitutional, since this paragraph is intrinsically woven with
paragraphs 1 and 5 of the article.
2.2 The author's conviction was based on his membership and participation in
the activities of the Young Koreans United (YKU), during his study at the
University of Illinois in Chicago, USA, in the period 1983 to 1989. The YKU
is an American organization, composed of young Koreans, and has as its aim
to discuss issues of peace and unification between North and South Korea.
The organization was highly critical of the government of the Republic of
Korea and of the US support for that government. The author emphasizes that
all YKU's activities were peaceful and in accordance with the US laws.
2.3 The Court found that the YKU was an organization with as purpose the
committing of the crimes of siding with a furthering the activities of the
North Korean Government and thus an "enemy-benefitting organization". The
author's membership in this organization constituted therefore a crime under
article 7, paragraph 3, of the National Security Law. Moreover, the author's
participation in demonstrations in the USA calling for the end of US'
intervention constituted siding with North Korea, in violation of article 7,
paragraph 1, of the National Security Law. The author points out that on the
basis of the judgement against him, any member of the YKU can be brought to
trial for belonging to an "enemy-benefitting organization".
2.4 It is stated that the author's conviction was based on his forced
confession. The author was arrested at the end of August 1989 without a
warrant and was interrogated during 20 days by the Agency for National
Security Planning and then kept in detention for another 30 days before the
indictment. No opportunity was given to the YKU to defend itself at the
trial against the author. The author states that, although he does not wish
to raise the issue of fair trial in his communication, it should be noted
that the Korean courts showed bad faith in considering his case.
2.5 Counsel submits that, although the activities for which the author was
convicted took place before the entry into force of the Covenant for the
Republic of Korea, the High Military Court and the Supreme Court considered
the case after the entry into force. It is therefore argued that the
Covenant did apply and that the Courts should have taken the relevant
articles of the Covenant into account. In this situation, the author states
that, in his appeal to the Supreme Court, he referred to the Human Rights
Committee's Comments after consideration of the initial report submitted by
the Republic of Korea under article 40 of the Covenant (CCPR/C/79/Add.6), in
which the Committee voiced concern about the continued operation of the
National Security Law; he argued that the Supreme Court should apply and
interpret the National Security Law in accordance with the recommendations
made by the Committee. However, the Supreme Court, in its judgement of 24
December 1993, stated:
"Even though the Human Rights Committee established by the International
Covenant on Civil and Political Rights has pointed out problems of National
Security Law as mentioned, it should be said that NSL does not lose its
validity simply due to that. . . . Therefore, it can not be said that
punishment against the defendant for violating of NSL violates international
human rights regulation or is contradictory application of law without
equity." (Translation by author)
THE COMPLAINT
3.1 The author states that he has been convicted for having opinions
critical of the situation in and the policy of South Korea, which are deemed
by the South Korean authorities to have been for the purpose of siding with
North Korea only on the basis of the fact that North Korea is also critical
of South Korean policies. The author argues that these presumptions are
absurd and that they prevent any freedom of expression critical of
government policy.
3.2 The author claims that his conviction and sentence constitute a
violation of articles 18, paragraph 1, 19, paragraphs 1 and 2, and 26, of
the Covenant. He argues that although he was convicted for joining an
organization, the real reason for his conviction was that the opinions
expressed by himself and other YKU members were critical to the official
policy of the South Korean Government. He further contends that, although
freedom of association is guaranteed under the Constitution, the National
Security Law restricts the freedom of association of those whose opinions
differ from the official government policy. This is said to amount to
discrimination in violation of article 26 of the Covenant. Because of the
reservation made by the Republic of Korea, the author does not invoke
article 22 of the Covenant.
3.3 The author requests the Committee to declare that his freedom of
thought, his freedom of opinion and expression and his right to equal
treatment before the law in exercising freedom of association have been
violated by the Republic of Korea. He further requests the Committee to
instruct the Republic of Korea to repeal paragraphs 1, 3 and 5, of article 7
of the National Security Law, and to suspend the application of the said
articles while their repeal is before the National Assembly. He further asks
to be granted a retrial and to be pronounced innocent, and to be granted
compensation for the violations suffered.
STATE PARTY'S OBSERVATIONS AND COUNSEL'S COMMENTS
4.1 By submission of 8 August 1995, the State party argues that the
communication is inadmissible for failure to exhaust domestic remedies. In
this context, the State party notes that the author has claimed that he was
arrested without a warrant and arbitrarily detained, matters for which he
could have sought remedy through an emergency relief procedure or through an
appeal to the Constitutional Court. Further, the State party argues that the
author could demand a retrial if he has clear evidence proving him innocent
or if those involved in his prosecution committed crimes while handling the
case.
4.2 The State party further argues that the communication is inadmissible
since it deals with events that took place before the entry into force of
the Covenant and the Optional Protocol.
4.3 Finally, the State party notes that on 11 January 1992 an application
was made by a third party to the Constitutional Court concerning the
constitutionality of article 7, paragraphs 1 and 3, of the National Security
Law. The Constitutional Court is at present reviewing the matter.
5.1 In his comments on the State party's submission, counsel for the author
notes that the State party has misunderstood the author's claims. He
emphasizes that the possible violations of the author's rights during the
investigation and the trial are not at issue in the present case. In this
context, counsel notes that the matter of a retrial has no relevance to the
author's claims. He does not challenge the evidence against him, rather he
contends that he should not have been convicted and punished for these
established facts, since his activities were well within the boundaries of
peaceful exercise of his freedom of thought, opinion and expression.
5.2 As regards the State party's argument that the communication is
inadmissible ratione temporis, counsel notes that, although the case against
the author was initiated before the entry into force of the Covenant and the
Optional Protocol, the High Military Court and the Supreme Court confirmed
the sentences against him after the date of entry into force. The Covenant
is therefore said to apply and the communication to be admissible.
5.3 As regards the State party's statement that the constitutionality of
article 7, paragraphs 1 and 3, of the National Security Law, is at present
being reviewed by the Constitutional Court, counsel notes that the Court on
2 April 1990 already decided that the articles of the National Security Law
were constitutional. Later applications concerning the same question were
equally dismissed by the Court. He therefore argues that a further review by
the Constitutional Court is devoid of chance, since the Court is naturally
expected to confirm its prior jurisprudence.
ISSUES AND PROCEEDINGS BEFORE THE COMMITTEE
6.1 Before considering any claim contained in a communication, the Human
Rights Committee must, in accordance with rule 87 of its rules of procedure,
decide whether or not it is admissible under the Optional Protocol to the
Covenant.
6.2 The Committee has noted the State party's argument that the
communication is inadmissible since the events complained of occurred before
the entry into force of the Covenant and its Optional Protocol. The
Committee notes, however, that, although the author was convicted in first
instance on 22 December 1989, that is before the entry into force of the
Covenant and the Optional Protocol thereto for Korea, both his appeals were
heard after the date of entry into force. In the circumstances, the
Committee considers that the alleged violations continued after the entry
into force of the Covenant and the Optional Protocol thereto and that the
Committee is thus not precluded ratione temporis from examining the
communication.
6.3 The Committee has also noted the State party's arguments that the author
has not exhausted all domestic remedies available to him. The Committee
notes that some of the remedies suggested by the State party relate to
aspects of the author's trial which do not form part of his communication to
the Committee. The Committee further notes that the State party has argued
that the issue of the constitutionality of article 7 of the National
Security Law is still pending before the Constitutional Court. The Committee
also notes that the author has argued that the application to the
Constitutional court is futile, since the Court has already decided, for the
first time on 2 April 1990, and several times since, that the article is
compatible with the Korean constitution. On the basis of the information
before it, the Committee does not consider that any effective remedies are
still available to the author within the meaning of article 5, paragraph
2(b), of the Optional Protocol.
6.4 The Committee has ascertained, as required under article 5, paragraph
2(a), of the Optional Protocol, that the same matter is not being examined
under another procedure of international investigation or settlement.
6.5 The Committee considers that the facts as submitted by the author may
raise issues under articles 18, 19 and 26 of the Covenant that need to be
examined on the merits.
7. The Human Rights Committee therefore decides:
(a) that the communication is admissible;
(b) that, in accordance with article 4, paragraph 2, of the Optional
Protocol, the State party shall be requested to submit to the Committee,
within six months of the date of transmittal to it of this decision, written
explanations or statements clarifying the matter and the measures, if any,
that may have been taken by it;
(c) that any explanations or statements received from the State party shall
be communicated by the Secretary-General under rule 93, paragraph 3, of the
rules of procedure to the author, with the request that any comments which
he may wish to make should reach the Human Rights Committee, in care of the
Centre for Human Rights, United Nations Office at Geneva, within six weeks
of the date of the transmittal;
(d) that this decision shall be communicated to the State party, to the
author and to his counsel.
(Done in English, French, and Spanish, the English text being the original
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