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1.1 The author of the
communication is Hak-Chul Shin, a national of the Republic of Korea born on
12 December 1943. He claims to be a victim of a violation by the Republic of
Korea of article 19, paragraph 2, of the Covenant. He is represented by
counsel.
1.2 On 8 May 2000, the Committee, acting through its Special Rapporteur on
New Communications, pursuant to Rule 86 of the Committee's Rules of
Procedure, requested the State party not to destroy the painting for the
production of which the author was convicted, whilst the case was under
consideration by the Committee.
THE FACTS AS PRESENTED BY THE AUTHOR
2.1 Between July 1986 and 10 August 1987, the author, a professional artist,
painted a canvas-mounted picture sized 130cm by 160cm. The painting,
entitled "Rice Planting (Monaeki)" was subsequently described by the Supreme
Court in the following terms:
"The painting as a whole portrays the Korean peninsula in that its upper
right part sketches Baek-Doo-San, while its lower part portrays the southern
sea with waves. It is divided into lower and upper parts each of which
portrays a different scene. The lower part of the painting describes a
rice-planting farmer ploughing a field using a bull which tramps down on E.T.
[the movie character "Extraterrestial"], symbolizing foreign power such as
the so-called American and Japanese imperialism, Rambo, imported tobacco,
Coca Cola, Mad Hunter, Japanese samurai, Japanese singing and dancing girls,
the then [United States'] President Ronald Reagan, the then [Japanese] Prime
Minister Nakasone, the then President [of the Republic of Korea] Doo Hwan
Chun who symbolizes a fascist military power, tanks and nuclear weapons
which symbolize the U.S. armed forces, as well as men symbolizing the landed
class and comprador capitalist class. The farmer, while ploughing a field,
sweeps them out into the southern sea and brings up wire-entanglements of
the 38th parallel. The upper part of the painting portrays a peach in a
forest of leafy trees in the upper left part of which two pigeons roost
affectionately. In the lower right part of the forest is drawn Bak-Doo-San,
reputed to be the Sacred Mountain of Rebellion [located in the Democratic
People's Republic of Korea (DPRK)], on the left lower part of which flowers
are in full blossom and a straw-roofed house as well as lake is are
portrayed. Right below the house are shown farmers setting up a feast in
celebration of fully-ripened grains and a fruitful year and either sitting
around a table or dancing, and children with an insect net leaping about."
The author states that as soon as the picture was completed, it was
distributed in various forms and was widely publicized.
2.2 On 17 August 1989, the author was arrested on a warrant by the Security
Command of the National Police Agency. The painting was seized and allegedly
damaged by careless handling of the prosecutor's office. On 29 September
1989, he was indicted for alleged breach of article 7 of the National
Security Law, in that the picture constituted an "enemy-benefiting
expression". [FN1] On 12 November 1992, a single judge of the Seoul Criminal
District Court, at first instance, acquitted the author. On 16 November
1994, three justices of the 5th panel of the Seoul District Criminal Court
dismissed the prosecutor's appeal against acquittal, considering article 7
of the National Security Law applicable only to acts which were "clearly
dangerous enough to engender national existence/security or imperil the free
democratic basic order". On 13 March 1998, however, the Supreme Court upheld
the prosecutor's further appeal, holding that the lower court had erred in
its finding that the picture was not an "enemy-benefiting expression",
contrary to article 7 of the National Security Law. In the Court's view,
that provision is breached "when the expression in question is actively and
aggressively threatening the security and country or the free and democratic
order". The case was then remitted for re-trial before three justices of the
Seoul District Criminal Court.
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[FN1] Article 7 of the National Security Law provides, inter alia,
"Any person who has benefited the anti-State organization by way of
praising, encouraging or siding with or through other means the activities
of an anti-State organization, its member or a person who had been under
instruction from such organization, shall be punished by imprisonment for
not more than seven years. ... Any person who has, for the purpose of
committing the actions stipulated in paragraphs 1 through 4 of this article,
produced, imported, duplicated, processed, transported, disseminated, sold
or acquired documents, drawings or any other similar means of expression
shall be punished by the same penalty as set forth in each paragraph."
[author's translation]
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2.3 During the re-trial, the author moved that the Court refer to the
Constitutional Court the question of the constitutionality of the Supreme
Court's allegedly broad construction of article 7 of the National Security
Law in the light of the Constitutional Court's previous confirmation of the
constitutionality of an allegedly narrower construction of this article. On
29 April 1999, the Constitutional Court dismissed a third party's
constitutional application raising the identical issue on the basis that,
having previously found the provision in question to be constitutional, it
was within the remit of the Supreme Court to define the scope of the
provision. As a result, the Seoul District Criminal Court dismissed the
motion for a constitutional reference.
2.4 On 13 August 1999, the author was convicted and sentenced to probation,
with the court ordering confiscation of the picture. On 26 November 1999,
the Supreme Court dismissed the author's appeal against conviction, holding
simply that "the lower court decision [convicting the author] was reasonable
because it followed the previous ruling of the Supreme Court overturning the
lower court's original decision". With the conclusion of proceedings against
the author, the painting was thus ready for destruction following its
earlier seizure.
THE COMPLAINT
3.1 The author contends that his conviction and the damage caused to the
picture by mishandling are in violation of his right to freedom of
expression protected under article 19, paragraph 2, of the Covenant. At the
outset, he contends that the painting depicts his dream of peaceful
unification and democratisation of his country based on his experience of
rural life during childhood. He argues that the prosecution's argument, in
depicting the painting as the author's opposition to a corrupt militaristic
south and the desirability of a structural change towards peaceful,
traditionally-based farming north, and thus an incitement to "communisation"
of the Republic of Korea, is beyond any logical understanding.
3.2 The author further argues that the National Security Law, under which he
was convicted, is directly aimed at restricting "people's voices". He
recalls in this vein the Committee's Concluding Observations on the State
party's initial and second periodic reports under article 40 of the
Covenant, [FN2] its Views in individual communications under the Optional
Protocol [FN3] as well as recommendations of the Special Rapporteur of the
Commission on Human Rights on the right to freedom of opinion and
expression. [FN4]
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[FN2] A/47/40,paras.470-528 (initial report), and CCPR/C/79/Add.114, 1
November 1999 (second periodic report).
[FN3] Tae Hoon Park v Republic of Korea Case No 628/1995, Views adopted on
20 October 1998, and Keun-Tae Kim v Reoublic of Korea Case No 574/1994,
Views adopted on 3 November 1998.
[FN4] E/CN.4/1996/39/Add.1
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3.3 The author notes that, at trial, the prosecution produced an "expert
witness", whose opinion was regarded as authoritative by the Supreme Court,
in support of the charges. This expert contended that the picture followed
the theory of "socialist realism". In his view, it depicted a "class
struggle", led by farmers seeking to overthrow the Republic of Korea due to
its relationship with the United States and Japan. The expert considered
that the mountains shown in the picture represented the "revolution" led by
the DPRK, and that the shape of houses depicted reflected those of the
birthplace of former DPRK leader Kim Il Sung. Thus, in the expert's opinion,
the author sought to incite overthrow of the regime of the Republic of Korea
and its substitution with "happy lives" lived according to DPRK doctrine.
3.4 While the lower courts regarded the picture as, in the author's words,
"nothing more than a description of the imagery situation in [his]
aspirations for unification in line with his personal idea of Utopia", the
Supreme Court adopted the expert's view, without explaining its rejection of
the lower court's view and of their assessment of the expert evidence. On
re-trial, the same expert again gave evidence, contending that even though
the picture was not drawn in accordance with "socialist realism", it
depicted happiness in the DPRK, which would please persons in the DPRK
whenever they saw it, and that thus the picture fell within the purview of
the National Security Law. Under cross-examination, it emerged that the
expert was a former DPRK spy and former painting teacher without any further
professional expertise in art, who was employed by the Institute for
Strategic Research against Communism of the National Police Agency, whose
task was to assist police investigation of national security cases.
3.5 According to the author, during the re-trial, his counsel pointed out
that in 1994, during the author's original trial, a copy of the picture was
displayed in the National Gallery of Modern Art in an exhibition entitled
"15 Years of People's Art", an artistic style positively commented upon by
the Gallery. Counsel also led in expert evidence an internationally known
art critic, who rejected the prosecution expert's contentions. In addition,
counsel, in arguing for a narrow interpretation of article 7 of the National
Security Law, provided the court with the Committee's previous Views and
Concluding Observations, as well as the Special Rapporteur's
recommendations, all of which are critical of the National Security Law.
Notwithstanding, the Court concluded that his conviction was "necessary" and
justified under the National Security Law.
3.6 The author argues that the Court failed to demonstrate that his
conviction was necessary for purposes of national security, as required
under article 19, paragraph 2, to justify an infringement of the right to
freedom of expression. The Court applied a subjective and emotional test,
finding the picture "active and aggressive" in place of the objective
standard previously articulated by the Constitutional Court. Without showing
any link of the author to the DPRK or any other implication of national
security, the Supreme Court justices simply expressed personal feelings as
to the effect of the picture upon viewing it. This demarche effectively
places the burden of proof on the defendant, to prove himself innocent of
the charges.
3.7 By way of remedy, the author seeks (i) a declaration that his conviction
and the damage caused to the painting by careless handling violated his
right to freedom of expression, (ii) unconditional and immediate return of
the painting in its present condition, (iii) a guarantee by the State party
of non-violation in the future by repeal or suspension of article 7 of the
National Security Law, (iv) re-opening his conviction by a competent court,
(v) payment of adequate compensation, (vi) publication of the Committee's
Views in the Official Gazette and their transmission to the Supreme Court
for distribution to the judiciary.
3.8 The author states that the same matter has not been submitted for
examination under any other procedure of international investigation or
settlement.
THE STATE PARTY'S SUBMISSIONS ON ADMISSIBILITY AND MERITS
4.1 By Note verbale of 21 December 2001, the State party argued that the
communication is inadmissible and lacking in merit. As to admissibility, the
State party argues that as the judicial proceedings in the author's case
were consistent with the Covenant, the case is inadmissible.
4.2 Concerning the merits of the case, the State party contends that the
right to freedom of expression is fully guaranteed as long as any expression
does not infringe the law, and that the article 19 of the Covenant itself
provides for certain restrictions on its exercise. As the painting was
lawfully confiscated, there is no ground for either re-trial or
compensation. In addition, re-trial is not provided for in national law and
any amendment to law to so provide is not feasible. Any claims of a
violation of the right to freedom of expression will be considered on the
merits in individual cases. As a result, the State party cannot commit
itself to a suspension or repeal of article 7 of the National Security Law,
although a revision is under discussion.
THE AUTHOR'S COMMENTS
5.1 Following reminders of 10 October 2002 and 23 May 2003, the author
indicated, by communication of 3 August 2003, that as the State party had
not provided any substantive reasoning in terms of article 19 of the
Covenant to justify his conviction, he did not wish to comment further on
the State party's arguments.
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 rule 87 of its Rules of Procedure,
decide whether or not the complaint 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 the
purposes of article 5, paragraph 2 (a) of the Optional Protocol. With
respect to the exhaustion of domestic remedies, the Committee notes that the
State party has not claimed that there are any domestic remedies that have
not been exhausted or could be further pursued by the author. Since the
State party is claiming inadmissibility on the generic contention that the
judicial proceedings were consistent with the Covenant, issues which are to
be considered at the merits stage of the communication, the Committee
considers it more appropriate to consider the State party's arguments in
this respect at that stage.
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 Committee observes that the picture painted by the author plainly
falls within the scope of the right of freedom of expression protected by
article 19, paragraph 2; it recalls that this provision specifically refers
to ideas imparted "in the form of art". Even if the infringement of the
author's right to freedom of expression, through confiscation of his
painting and his conviction for a criminal offence, was in the application
of the law, the Committee observes that the State party must demonstrate the
necessity of these measures for one of the purposes enumerated in article 19
(3). As a consequence, any restriction on that right must be justified in
terms of article 19 (3), i.e. besides being provided by law it also must be
necessary for respect of the right or reputations of others, or for the
protection of national security or public order (ordre public) or of public
health and morals ("the enumerated purposes").
7.3 The Committee notes that the State party's submissions do not seek to
identify which of these purposes are applicable, much less the necessity
thereof in the particular case; it may however be noted that the State
party's superior courts identified a national security basis as
justification for confiscation of the painting and the conviction of the
author. As the Committee has consistently found, however, the State party
must demonstrate in specific fashion the precise nature of the threat to any
of the enumerated purposes caused by the author's conduct, as well as why
seizure of the painting and the author's conviction were necessary. In the
absence of such justification, a violation of article 19, paragraph 2, will
be made out. [FN5] In the absence of any individualized justification
therefore of why the measures taken were necessary in the present case for
an enumerated purpose, therefore, the Committee finds a violation of the
author's right to freedom of expression through the painting's confiscation
and the author's conviction.
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[FN5] See, for example, Tae Hoon Park v Republic of Korea Case No 628/1995,
Views adopted on 20 October 1998, at paragraph 10.3, and Keun-Tae Kim v
Reoublic of Korea Case No 574/1994, Views adopted on 3 November 1998, at
paragraphs 12.4-12.5.
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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 disclose a violation of
article 19, paragraph 2, of the Covenant.
9. In accordance with article 2, paragraph 3 (a), of the Covenant, the State
party is under an obligation to provide the author with an effective remedy,
including compensation for his conviction, annulment of his conviction, and
legal costs. In addition, as the State party has not shown that any
infringement on the author's freedom of expression, as expressed through the
painting, is justified, it should return the painting to him in its original
condition, bearing any necessary expenses incurred thereby. The State party
is under an obligation to avoid similar violations in the future.
10. Bearing in mind that, by becoming a State 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, the State party has undertaken
to ensure to all individuals within its territory and subject to its
jurisdiction the rights recognized in the Covenant, the Committee wishes to
receive from the State party, within 90 days, information about the measures
taken to give effect to its 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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