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Membership

Jeong-Eun Lee v Republic of Korea, 20 July 2005 [HRC]

 

Case no 1119/2002

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 of the National Security Law [Article 7 (1) 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.” and Article 7 (3) 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.”] , because the platform and activities of the fifth-year 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.

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”. (...)

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.

 

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