ICCPR Case Digest

CCPR/C/130/D/2809/2016

Communication

2809/2016

Submission: 2015.12.15

View Adopted: 2020.10.30

Seok-ki Lee, Hong-yeol Kim, Sang-ho Lee, Soon-seog Hong, Dong-kun Han, Yang-won Cho and Keun-rae Kim v. Republic of Korea

Freedom of expression justifiably limited to curb the incitement of violence and armed conflict.

Substantive Issues
  • Freedom of expression
Relevant Articles
  • Article 19
Full Text

Facts

The authors were active in the Unified Progressive Party, they were detained and indicted between 30 August 2013 and 24 October 2014 – they were all indicted for conspiracy to insurrection and for violating article 7 of the National Security Act, which criminalises praising, inciting or propagating the activities of an anti-State organisation with the knowledge that this may endanger the existence and security of the State or the fundamental democratic order.

 

During May 2013, there were two meetings where the authors were involved. During such meetings, the progression of the organisation was discussed, the likelihood of a war was discussed – to which military and technical matters were discussed. In these discussions, the likelihood of a war breaking out was discussed, and how the organisation would then proceed in procuring weaponry and what would be their next tactical steps. The authors claim that no subsequent activities were followed once the meetings were concluded, and they were mere discussions.

 

In addition to these chargers, the authors were charged with incitement to insurrection in relation to their roles in the May meetings. The State claims that during these meetings, several plans were mane on how to prepare for the war physically and militarily by planning to destroy infrastructure and the method on how it would be done.

 

In February 2014, the Suwon District Court found the authors guilty of all charges, and sentenced some of them to 4-7 years, while Seok-ki-Lee (the leader of the organisation) received 12 years. Both the prosecution and the authors appealed. On the 11th of August 2014, the Seoul High Court acquitted the authors of the conspiracy charges for the insurrection, but upheld the conviction on the basis of article 7 of the National Security Act, as well as Seok-ki Lee and Hong-yeol Kim’s charges for incitement for to insurrection. The High court adjusted Seok-ki Lee’s charge to 9 years and the others to 2-5 years. The Supreme Court upheld this decision in February 2015.

 

To this, the authors have claimed that the State party have breached their right to freedom of expression as their criminal punishment interfered with this freedom, and the punishment received was unnecessary under article 19(3) of the Covenant – because the statements made during the meetings did not threaten national security. The authors believe in this, and can argue this point in 6 different ways.

 

  1. Firstly, the authors did not have the power to persuade the participants at this meeting, due to the democratic nature of the party as well as there being no close relationship to any of the participants.
  2. Secondly, the context of the May meetings did not necessitate any restriction on the authors freedom of expression – that even though the security concerns had increased, that armed conflict was not imminent.
  3. Thirdly, the authors intent behind the meetings did not justify the restriction, that there was no intent to start a war or any violence – but rather to seek different ideas or views on how to aid or change the situation at hand.
  4. Fourthly, that there was no call for violence to be initiated. That all the conclusions or suggestions that were made were rather creative outlooks on the situation and how to remedy them. So, when telling the participants to carry arms – was just to reenforce the notion to protect oneself. That the suggestion of destroying infrastructure, was seen as a creative alternative to hurting people.
  5. Fifthly, the restriction is not justified as the meetings were one-time events and were not followed by any subsequent events.
  6. Finally, there was no likelihood or imminence of violence. That all discussion had were made in rhetoric and were not conditional on it happening or not.

 

The authors fail to understand how simple meetings, that were not followed by any subsequent plans or meetings or any violence could be interpreted as a threat to the national security or to inciting a resurrection. That these meetings as well as the organisation were more anti-government in nature and not a call for violence as suggested by the District Court, High Court and the Supreme Court of the State Party. To this, the authors also complain that their prison sentences received were not proportionate - as there was no threat to national security.

 

As the constitutionality of the National Security Act has already been answered by the Courts of the State party, there is no longer a route of domestic remedies that the authors could follow. Thus, the authors ask the State party to provide them with a domestic remedy in accordance with article 2(3) of the Covenant, including a nullification of the Supreme Court Decision, a retrial in keeping with the standards of the Covenant and the issuance of a pardon and monetary reparations.

 

Admissibility

The authors have proven that there are no other domestic remedies available to them, they have also additionally correctly substantiated their claims and the Committee is aware that this communication is not under review by any other international procedure of investigation or settlement.

Merits

In deciphering whether the form of criminal punishment was necessary for the protection of national security for the purposes of article 19(3)(b) of the Covenant, in the restriction of freedom of expression, the Committee notes that the restrictions on the freedom of expression cannot be overbroad. That restrictions should be imposed proportionally, appropriately in order to achieve their function, they should have a protective function and they should be proportionate to the interest that is being protected. That when a State party decides on limiting this freedom, the restriction should be imposed with the direct link being made with the expression and the threat it could impose.

 

When assessing the transcripts of the meetings as well as the intentions of the authors, the Committee understands that there can be some unknowledgeable misunderstandings between the two and some confusion could eb stirred. But on assessment that during the meetings certain discussion were had on a war breaking out, which infrastructure to attack, on how to attack this, where to gain weaponry or how to make weaponry on your own. Even though some of the authors did not directly make these comments, other comments or discussions can be seen as an endorsement for the previous comments or for the violent activities to ensue.

 

As the authors were in positions of authority (the leaders, organisers and participants) of the Organisation, it would be hard to conclude that they did not have some form of influence. Therefore, when assessing the remarks made during the meetings, the ways in which procuring weaponry was discussed, which targets would be hit, the size of the meetings, the positions held by the authors in the organisation – this behaviour would justify the limitation imposed by the Supreme Court, in order to restrict freedom of expression to protect national security.

 

Additionally, the authors suggested that internal review and disciplinary mechanisms could be used in the Organisation to punish those involved – but the Committee is not convinced of this notion. As due to the statements said, the plans being made, the nature of the organisation and the incitement for war or violence – the Committee would need to agree that criminal sanctions would be most suitable for such behaviour.

 

Therefore, the Committee concurs that the State party has adequately demonstrated how the author’s convictions were necessary in the circumstances of the case, that the restrictions imposed were used to achieve their protective function and proportionate to the interest to be protected. Thus, there would be no breach of the authors rights under article 19(2) of the Covenant – thus, this communication does not disclose a violation.

Separate Opinions

The Committee members agree with the Committee’s findings that the restriction was proportionate to the interest being protected and that there was no violation of article 19 of the Covenant. What these members fail to agree with, is that the authors were convicted under article 7 of the National Security Act for singing a song called “Comrades in the Revolution”.

 

According to the facts submitted by the authors, they were convicted of having sung the abovementioned song in 2012 – and as pointed out before, there needs to be legitimate grounds for the restriction on freedom of expression and that it should be proportional to specific action taken. While the tensions between the organisation and the State party has existed for many years, the limitation on the freedom of expression of the organisation to sing this song does not seem necessary or proportionate to the interest being protected.

 

Thus, the Committee failed when not examining the compatibility of the criminal prosecution and punishment of the authors for this specific event, and would have realised that the restriction and punishment were not necessary for maintaining national security. Therefore, the state party have also failed to demonstrate sufficiently that the measures taken, with the song in specific, were necessary or proportionate for the restriction imposed.

Therefore, in terms of the song, the authors rights would have been violated under article 19(2).

 

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