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1. The author of the
communication is Mr. Jeong-Eun Lee, a citizen of the Republic of Korea, born
on 22 February 1974. He claims to be a victim of violations by the Republic
of Korea [FN1] of articles 18, paragraph 1, 19, paragraphs 1 and 2, 22,
paragraph 1, and 26 of the International Covenant on Civil and Political
Rights ("the Covenant"). He is represented by counsel, Mr. Seung-Gyo Kim.
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[FN1] The Covenant and the Optional Protocol thereto entered into force for
the Republic of Korea on 10 July 1990. Upon ratification, the State Party
entered reservations/declarations: "The Government of the Republic of Korea
[declares] that the provisions of paragraph 5 [...] of article 14, article
22 [...] of the Covenant shall be so applied as to be in conformity with the
provisions of the local laws including the Constitution of the Republic of
Korea."
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FACTUAL BACKGROUND
2.1 In March 1993, the author began his studies at the faculty of
architecture of Konkuk University. In his fourth year, he was elected
Vice-President of the General Student Council of Konkuk University. As such,
he automatically became a member of the Convention of Representatives, the
highest decision-making body of the Korean Federation of Student Councils (Hanchongnyeon),
a nationwide association of university students established in 1993,
comprising 187 universities (as of August 2002), including Konkuk
University, and pursuing the objectives of democratization of Korean
society, national reunification and advocacy of campus autonomy.
2.2 In 1997, the Supreme Court of the Republic of Korea ruled that
Hanchongnyeon was an "enemy-benefiting group" and an anti-State organization
within the meaning of article 7, paragraphs 1 and 3, [FN2] of the National
Security Law, because the platform and activities of the fifth-year [FN3]
Hanchongnyeon were said to support the strategy of the Democratic People's
Republic of Korea (DPRK) to achieve national unification by "communizing"
the Republic of Korea.
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[FN2] Article 7 (1) of the National Security Law reads: "Any person who
praises, incites or propagates the activities of an anti-State organization,
a member thereof, or a person who has received an order from it, or who acts
in concert with it, or propagates or instigates a rebellion against the
State, with the knowledge of the fact that it may endanger the existence and
security of the State or democratic fundamental order, shall be punished by
imprisonment for a term not exceeding seven years." Article 7 (3) of the
National Security Law reads: "Any person who forms or joins an organization
aiming at the acts referred to in paragraph (1) shall be punished by
imprisonment for a term of one year or more."
[FN3] The Convention of Representatives of Hanchongnyeon establishes
committees on a yearly basis to carry out the organization's activities.
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2.3 In 2001, the author became a member of the Convention of Representatives
of the ninth year Hanchongnyeon. On 8 August 2001, he was arrested and
subsequently indicted under article 7 of the National Security Law. By
judgment dated 28 September 2001, the East Branch Division of the Seoul
District Court sentenced him to one year imprisonment and a one-year
"suspension of eligibility". His appeal was dismissed by the Seoul High
Court on 5 February 2002. On 31 May 2002, the Supreme Court dismissed his
further appeal.
2.4 The courts rejected the author's defence that the ninth year
Hanchongnyeon had revised its platform to endorse the "June 15 North-South
Joint Declaration" (2000) on national reunification agreed to by both
leaders of North and South Korea and that, even if the programme of
Hanchongnyeon was to some extent similar to North Korean ideology, this
alone did not justify its characterization as an "enemy-benefiting group".
2.5 At the time of the submission of the communication, the author was
serving his prison term at Gyeongju Correctional Institution.
THE COMPLAINT
3.1 The author claims that his conviction for membership in an
"enemy-benefiting group" violates his rights to freedom of thought and
conscience (article 18, paragraph 1), to freedom of opinion (article 19,
paragraph 1) and expression (article 19, paragraph 2), to freedom of
association (article 22, paragraph 1), and to equality before the law and
equal protection of the law (article 26).
3.2 He submits that his conviction simply because he was a representative of
Hanchongnyeon violated his right under article 18 to freedom of thought and
conscience, since his membership in the association was based on his free
will and conscience.
3.3 By reference to the Committee's jurisprudence, [FN4] the author argues
that the fact that he was convicted for membership in an "enemy-benefiting
group" also violated his rights under article 19 to hold opinions without
interference and to freedom of expression, as his conviction was based on
the organization's ideological inclination, rather than the actual
activities of the ninth year Hanchongnyeon. He emphasizes that the Committee
itself has criticized article 7 of the National Security Law as being
incompatible with the requirements of article 19, paragraph 3. [FN5]
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[FN4] The author refers to Communications No. 628/1995, Tae Hoon Park v.
Republic of Korea, Views adopted on 20 October 1998, and No. 574/1994, Keun-Tae
Kim v. Republic of Korea, Views adopted on 3 November 1998.
[FN5] See Concluding observations of the Human Rights Committee on the
second periodic report of the Republic of Korea, 1 November 1999, at paras.
8-9.
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3.4 For the author, his right to freedom of association was breached because
he was punished for joining Hanchongnyeon as an ex officio representative.
Moreover, his conviction amounted to discrimination on the ground of
political opinion, in violation of article 26, given that Hanchongnyeon had
never carried out any activities that would have directly benefited the DPRK.
3.5 The author requests the Committee to recommend to the State party to
rescind paragraphs 1 and 3 of article 7 of the National Security Law and
that, pending annulment, these provisions should no longer be applied and
that the author be acquitted through retrial and compensated for the damages
sustained.
3.6 On admissibility, the author submits that the same matter is not being
examined under another procedure of international investigation or
settlement and that he has exhausted all available domestic remedies.
STATE PARTY'S OBSERVATIONS ON ADMISSIBILITY AND MERITS
4.1 In its observations dated 8 May 2003, the State party only challenged
the merits of the communication, arguing that the author's conviction under
article 7, paragraphs 1 and 3, of the National Security Law was justified by
the necessity to protect its national security and democratic order. It
submits that, in accordance with the limitation clauses in articles 18,
paragraph 3, 19, paragraph 3, and 22, paragraph 2, of the Covenant, article
37, paragraph 2, of the Constitution of the Republic of Korea provides that
the freedoms and rights of citizens may be restricted by law for the
protection of national security, maintenance of law and order, or public
welfare. Article 7, paragraph 1 and 3, of the National Security Law, which
had been enacted to protect national security and the democratic order
against the threat posed by North Korea's revolutionary aim to "communize"
the Republic of Korea, had repeatedly been declared compatible with the
Constitution by the Supreme Court and the Constitutional Court. The State
party concludes that the author's conviction, in a fair trial before
independent tribunals, based on the proper application of article 7,
paragraphs 1 and 3, of the National Security Law, was consistent with both
the Covenant and the Constitution.
4.2 The State party dismisses the author's defence that the ninth year
Hanchongnyeon revised its agenda and that it could not be considered an
anti-State organization, merely because some of its objectives resembled
North Korean ideology. It argues that the organization's programme, rules
and documents reveal that Hanchongnyeon is "benefiting an anti-State
organization and endangering the national security and liberal democratic
principles of the Republic of Korea."
4.3 Lastly, the State party denies that the author was discriminated against
based on his political opinion. It submits that the laws of the Republic of
Korea, including the National Security Law, were applied equally to all
citizens. The author was not prosecuted because of his political opinion,
but rather because his actions constituted a threat to society.
COMMITTEE'S REQUEST FOR AUTHOR'S COMMENTS
5. On 13 May 2003, the State party's submission was sent to counsel for
comments. No comments were received, despite three reminders dated 8 October
2003, 26 January and 13 July 2004.
ISSUES AND PROCEEDINGS BEFORE THE COMMITTEE
CONSIDERATION OF ADMISSIBILITY
6.1 Before considering any claim contained in a communication, the Human
Rights Committee must, in accordance with article 93 of its rules of
procedure, decide whether or not it is admissible under the Optional
Protocol to the Covenant.
6.2 The Committee has ascertained that the same matter is not being examined
under another procedure of international investigation or settlement for
purposes of article 5, paragraph 2 (a), of the Optional Protocol, and that
the author has exhausted domestic remedies, as required by article 5,
paragraph 2 (b), of the Optional Protocol.
6.3 The Committee considers that the author has not substantiated, for
purposes of admissibility, his claim that his conviction amounted to
discrimination on the ground of his political opinion, in violation of
article 26 of the Covenant. It follows that this part of the communication
is inadmissible under article 2 of the Optional Protocol.
6.4 As regards the alleged violation of article 22 of the Covenant, the
Committee notes that the State party has referred to the fact that relevant
provisions of the National Security Law are in conformity with its
Constitution. However, it has not invoked its reservation ratione materiae
to Article 22 that this guarantee only applies subject "to the provisions of
the local laws including the Constitution of the Republic of Korea." Thus,
the Committee does not need to examine the compatibility of this reservation
with the object and purpose of the Covenant and can consider whether or not
article 22 has been violated in this case.
6.5 The Committee therefore declares the communication admissible insofar as
it appears to raise issues under articles 18, paragraph 1, 19 and 22, of the
Covenant.
CONSIDERATION OF THE MERITS
7.1 The Human Rights Committee has considered the present communication in
the light of all the information made available to it by the parties, as
provided in article 5, paragraph 1, of the Optional Protocol.
7.2 The issue before the Committee is whether the author's conviction for
his membership in Hanchongnyeon unreasonably restricted his freedom of
association, thereby violating article 22 of the Covenant. The Committee
observes that, in accordance with article 22, paragraph 2, any restriction
on the right to freedom of association to be valid must cumulatively meet
the following conditions: (a) it must be provided by law; (b) it may only be
imposed for one of the purposes set out in paragraph 2; and (c) it must be
"necessary in a democratic society" for achieving one of these purposes. The
reference to a "democratic society" indicates, in the Committee's view, that
the existence and functioning of a plurality of associations, including
those which peacefully promote ideas not favorably received by the
government or the majority of the population, is one of the foundations of a
democratic society. Therefore, the existence of any reasonable and objective
justification for limiting the freedom of association is not sufficient. The
State Party must further demonstrate that the prohibition of the association
and the criminal prosecution of individuals for membership in such
organizations are in fact necessary to avert a real, and not only
hypothetical danger to the national security or democratic order and that
less intrusive measures would be insufficient to achieve this purpose.
7.3 The author's conviction was based on article 7, paragraphs 1 and 3, of
the National Security Law. The decisive question which must therefore be
considered is whether this measure was necessary for achieving one of the
purposes set out in article 22, paragraph 2. The Committee notes that the
State party has invoked the need to protect national security and its
democratic order against the threat posed by the DPRK. However, it has not
specified the precise nature of the threat allegedly posed by the author's
becoming a member of Hanchongnyeon. The Committee notes that the decision of
the Supreme Court of the Republic of Korea, declaring this association an
"enemy-benefiting group" in 1997, was based on Article 7, paragraph 1, of
the National Security Law which prohibits support for associations which
"may" endanger the existence and security of the State or its democratic
order. It also notes that the State party and its courts have not shown that
punishing the author for his membership in Hanchongnyeon, in particular
after its endorsement of the "June 15 North-South Joint Declaration" (2000),
was necessary to avert a real danger to the national security and democratic
order of the Republic of Korea. The Committee therefore considers that the
State party has not shown that the author's conviction was necessary to
protect national security or any other purpose set out in article 22,
paragraph 2. It concludes that the restriction on the author's right to
freedom of association was incompatible with the requirements of article 22,
paragraph 2, and thus violated article 22, paragraph 1, of the Covenant.
7.4 In the light of this finding, the Committee need not address the
question whether the author's conviction also violated his rights under
articles 18, paragraph 1, and 19 of the Covenant.
8. The Human Rights Committee, acting under article 5, paragraph 4, of the
Optional Protocol to the International Covenant on Civil and Political
Rights, is of the view that the facts before it reveal a violation of
article 22, paragraph 1, of the Covenant.
9. In accordance with article 2, paragraph 3, of the Covenant, the author is
entitled to an effective remedy, including appropriate compensation. The
Committee recommends that the State party amend article 7 of the National
Security Law, with a view to making it compatible with the Covenant. The
State party is under an obligation to ensure that similar violations do not
occur in the future.
10. Bearing in mind that, by becoming a party to the Optional Protocol, the
State party has recognized the competence of the Committee to determine
whether there has been a violation of the Covenant or not and that, pursuant
to article 2 of the Covenant, that State party has undertaken an obligation
to ensure to all individuals within its territory or subject to its
jurisdiction the rights recognized in the Covenant and to provide an
effective and enforceable remedy in case a violation has been established,
the Committee wishes to receive from the State party, within 90 days,
information about the measures taken to give effect to the Committee's
Views. The State party is also requested to publish the Committee's Views.
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Adopted in English, French and Spanish, the English text being the original
version. Subsequently to be issued also in Arabic, Chinese and Russian as
part of the Committee's annual report to the General Assembly. |
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