The authors of the communication are Kyung Mook Kim, Yu Ho Park, Du Won Kim and Sung Hyun Hong, all nationals of the Republic of Korea, born on 18 March 1985, 3 August 1987, 15 December 1994 and 16 December 1991, respectively. The authors claim to be victims of a violation by the State Party of their rights under article 25 of the Covenant. The Optional Protocol entered into force for the State Party on 10 July 1990. The authors are represented by counsel.
Facts as submitted by the authors
The authors are conscientious objectors and refused to enlist for military service upon receiving their enlistment orders in 2014 and 2015.4 As a result, they were all charged with violating article 88 of the Military Service Act,5 which, at the time, criminalized the refusal to perform military service without justifiable grounds.6 In 2015, they were all sentenced to 18 months’ imprisonment for having violated the Military Service Act.7
- The authors, except for Sung Hyun Hong, received their notice of enlistment in 2014. Mr. Hong received his in March 2015. ↩
- Article 88 of the Military Service Act stipulates that: “Any person who has received a notice of enlistment for active duty service or a notice of call (including a notice of enlistment through recruitment) and fails to enlist in the military or to comply with the call, even after the expiration of the following report period from the date of enlistment or call without justifiable grounds, shall be punished by imprisonment for not more than three years.” ↩
- On 28 June 2018, the Constitutional Court ruled that the Military Service Act was in violation of the Constitution, as it failed to provide alternatives to military service for conscientious objectors. ↩
- Kyung Mook Kim was sentenced on 14 January 2015, Yu Ho Park on 13 August 2015, Du Won Kim on 22 June 2015 and Sung Won Hong on 10 December 2015. ↩
While serving their sentences, the authors wished to exercise their right to vote in the general election held on 13 April 2016. However, they could not exercise their right to vote, as paragraph 2 of article 18 (1) of the Public Official Election Act8 removes the right to vote from a person who has been sentenced to at least one year of imprisonment, with or without prison labour, until the sentence has been completed.
- Article 18 of the Public Official Election Act provides that: “any of the following persons, as of the election day, shall be disfranchised: 1. A person who is declared incompetent; 2. A person who is sentenced to imprisonment with or without prison labour for at least one year, but whose sentence execution has not been terminated or whose sentence execution has not been decided to be exempted.” ↩
On 11 July 2016, the authors submitted a petition to the Constitutional Court for a constitutional review of paragraph 2 of article 18 (1) of the Public Official Election Act. The authors argued that the article infringed upon their right to vote by allowing only a person who was serving a prison sentence of less than one year to vote. On 25 May 2017, the Constitutional Court found paragraph 2 of article 18 (1) to be constitutional.9 The Court noted that the purpose of the provision was to impose social and criminal restrictions on sentenced persons and to “enhance their law-abiding spirit as well as that of the general public”. It argued that persons who had been sentenced to at least one year of imprisonment had been acknowledged, during the criminal proceedings, to be persons who had inflicted considerable harm on the community, and that it was therefore necessary to subject such persons to social and criminal restrictions and to reinforce their observance of the law. The Court further ruled that the restrictions on voting rights were reasonable because the gravity of criminal punishment was proportionate to the period for which voting rights had been suspended. It concluded that paragraph 2 of article 18 (1) of the Public Official Election Act therefore did not impose an unnecessary restriction on the right to vote. In this connection, the Court stated that the public interest of imposing restrictions on the right to vote under the Act could not be deemed to be less significant than the personal disadvantages faced by a person whose right to vote under the Act had been suspended. The authors argue that a review by the Constitutional Court is the only domestic remedy available in their case.
- Constitutional Court Case No. 2016 Hun-Ma 292·568 (combined). ↩
Complaint
The authors claim a violation of their rights under article 25 of the Covenant, as their voting rights were suspended while they were serving 18-month prison sentences for refusing to enlist in military service owing to their conscientious objection. Referring to the Committee’s general comment No. 25 (1996), the authors note that depriving citizens of their voting rights should be based on objective and reasonable grounds. They argue that when a conviction for an offence is the basis for suspending the right to vote, the period of such suspension should be proportionate to the offence and the sentence. The authors contend that the essential aim of the penitentiary system must be reformation and social rehabilitation. They submit that, if a State Party imposes a blanket restriction on the right to vote on anyone sentenced to a specific term of imprisonment, arguments must still be provided in any particular case as to how the restriction meets the criterion of reasonableness required by the Covenant.10
- The authors refer to Yevdokimov and Rezanov v. Russian Federation (CCPR/C/101/D/1410/2005), para. 7.5. ↩
The authors submit that, in the present case, the restriction on their right to vote was not based on objective and reasonable grounds, in violation of their rights under article 25 of the Covenant. They note that the legislative purpose of the Public Official Election Act is to develop democratic politics through fair and free elections11 and they argue that the Constitutional Court, in its decision, failed to explain how suspending the right to vote under the Act would contribute to that goal. The authors further argue that it is not reasonable to consider that the suspension of the right to vote contributes to the rehabilitation of prisoners; instead, it appears only to serve an additional punitive purpose. The authors contend that the legislative purpose of paragraph 2 of article 18 (1) of the Act would be better served if prisoners could exercise their voting rights freely in a democratic process by taking part in civic engagement, which would help with their rehabilitation. The authors further note that the suspension of the right to vote applies uniformly to all persons sentenced to imprisonment for one year or more, regardless of the criminal offence for which the person has been found guilty. They argue that the purpose of the Act could have been achieved by less restrictive means, by applying disenfranchisement only to those convicted of certain offences, such as attempts to overturn democratic order or election interference, and that the current uniform restriction under paragraph 2 of article 18 (1) of the Act is a product of mere legal and administrative convenience.12 In this connection, the authors note that, in the Penal Code, crimes against democratic institutions and public order, such as insurrection, foreign aggression and the duties of public officials, are listed separately from criminal offences in general, and thus it would have been practically possible to limit the restrictions under paragraph 2 of article 18 (1) to that category of crimes.
- The authors note that article 1 of the Public Official Election Act reads as follows: “The purpose of this Act is to contribute to the development of democratic politics by ensuring that elections prescribed by the Constitution of the Republic of Korea and the Local Autonomy Act are held fairly in accordance with the free will of the people and democratic procedures and by preventing any malpractice related to such elections.” ↩
- The authors refer to European Court of Human Rights, Frodl v. Austria, Application No. 20201/04, Judgment, 4 October 2010. ↩
The authors request that the Committee declare that the State Party has breached its obligations under article 25 of the Covenant and recommend that the State Party implement all measures necessary to provide the authors with appropriate remedies in accordance with article 2 (3) of the Covenant.
State Party’s observations on the merits
On 14 April 2020, the State Party submitted its observations on the merits of the communication. It notes that article 24 of the Constitution stipulates that all citizens shall have the right to vote under requirements established by law. Paragraph 2 of article 18 (1) of the Public Official Election Act restricts the right to vote of an individual who has been sentenced to at least one year of imprisonment, with or without prison labour, until the sentence has been completed. The State Party notes that the purpose of the Act is to impose social and criminal restrictions on persons who have failed in their basic duties as members of a community by committing a criminal offence, to restore the sentenced person’s respect for the rule of law and to ensure respect for the rule of law among the general public.13 It notes that, prior to an amendment of the Act on 13 August 2015, all persons sentenced to imprisonment had their voting rights suspended while serving their sentence, regardless of the duration of the incarceration, a restriction that also extended to persons serving suspended sentences. The Constitutional Court, however, found, in its ruling of 28 January 2014, that this provision of the Act did not conform to the principle of least intrusive means.14 The Court therefore requested the National Assembly to amend the Act. In its decision, the Constitutional Court stated that it would be desirable to limit the suspension of voting rights only to prisoners sentenced to imprisonment for more than a certain prison term and only for the duration of the sentence.
The State Party notes the authors’ argument that a fundamental purpose of the treatment of prisoners must be their reintegration into society and their social rehabilitation. It notes that the Committee’s general comment No. 25 (1996) requires that restrictions on the right to vote should be based on objective and reasonable grounds. It submits that, while the right to vote is essential for a democracy, it is for the legal system of each State Party to establish proportionate limitations on said right, provided that the limitations are not discriminatory or unreasonable.15
- The State Party refers to Yevdokimov and Rezanov v. Russian Federation, para 7.4. ↩
The State Party notes the authors’ argument that the restriction on the right to vote should be limited to persons convicted of a certain category of criminal offences, such as the attempted overturn of democratic order or election interference. It notes that general comment No. 25 (1996) stipulates that, if a restriction on the right to vote is based on a criminal conviction, the period that the restriction is in place must be proportionate to the severity of the criminal offence and the prison term. In this connection, the State Party notes that States Parties to the Covenant apply different standards concerning the restriction on the right to vote of prisoners, with some restricting the right to vote for persons convicted of crimes falling in the category of felonies or restricting the right to vote of prisoners sentenced to imprisonment for longer than a particular period, while, in other countries, a judge may decide to impose a restriction on the voting rights of a convicted person for a certain period of time as an additional restrictive measure.
The State Party argues that deciding which crimes more severely disrupt democratic order is not always possible because a violent criminal offence may be deemed to impede the fundamental values of democracy based on the pattern or the motive of the crime. For instance, it is difficult to determine which incurs greater harm to democratic values, violence towards a minority group driven by hatred, or the actions of a public official to influence the outcome of an election using their official position. The State Party submits that it is for the legislative body of a State Party to set the standards for the proportionate restriction of voting rights, taking into account guarantees that such standards should not be discriminatory or unreasonable under article 25 of the Covenant. It notes that, when amending the Public Official Election Act on 13 August 2015, the National Assembly debated whether to place restrictions on the right to vote only on persons convicted of certain categories of crimes. However, the Special Committee on Political Reform of the National Assembly concluded that it was difficult to establish a standard to determine which specific crimes would be deemed more harmful to the community, when assessing, for instance, the characteristics of violent criminal offences such as murder and rape, as compared to political crimes.16 Taking this into account, the National Assembly found that the length of the sentence should be the deciding factor in determining the seriousness of the criminal offence – and thus the restriction on voting rights – not the specific criminal offence in question.
- The State Party refers to the minutes of the 334th session of the Special Committee on Political Reform (Sub-Committee on Review of the Public Official Election Act), 19th National Assembly, 11 June 2015. ↩
The State Party emphasizes that the restriction on the right to vote following a criminal conviction and sentencing to at least one year of imprisonment only temporarily restricts the right to vote, and that it fully ensures the right to vote for prisoners sentenced to a shorter period of imprisonment or to a suspended sentence. It notes that, in the discussion on amendments to the Public Official Election Act, the National Assembly set the threshold for the restriction to persons sentenced to imprisonment of one year or more, a sentence that was deemed to classify a crime as a felony.17 The State Party argues that this restriction was based on reasonable grounds. According to the minutes of the National Assembly, the purpose of the provision was to help prisoners integrate into society and to guarantee their voting right to the fullest extent by having them exercise their right as a community member, by granting probationers the right to vote and by restricting the right to vote only to prisoners sentenced to at least one year’s imprisonment.18 In addition, it notes that the Constitutional Court stated, in its decision of 28 January 2014, that the provisions in question were premised on the basic perception that it was undesirable to allow those individuals who had deserted the basic obligations that must be observed by the members of the community and had harmed the maintenance of the community to directly and indirectly participate in constituting the governing structure that led the operation of the community. The Court stated that the restriction in question also functioned as a social sanction against antisocial behaviour and retribution against crimes, which would contribute to heightening the responsibility of citizens, including prisoners, and reinforce their respect for the rule of law.
The State Party notes that the right to vote is a core democratic principle. However, it argues that the restriction on the right to vote, as stipulated in paragraph 2 of article 18 (1) of the Public Official Election Act, protects society by reinforcing respect for the rule of law, with proportionate restrictions imposed on those who have violated the norms of the community. It emphasizes that the restriction on voting rights is limited, as it is temporary in nature and only applicable for the duration of the sentence, with the voting rights fully restored upon release.
In the present case, the State Party notes that the authors were all sentenced to imprisonment for 18 months, pursuant to article 88 (1) of the Military Service Act, for failing to enlist in military service and to comply with their notice of enlistment without justifiable grounds. It informs the Committee that, at the time of their sentence, this was the mandatory minimum sentence for failing to enlist in military service, the reason being that, under the Military Service Act, those sentenced to a sentence shorter than 18 months’ imprisonment were subject to enlistment for supplementary or active-duty service, while those sentenced to at least 18 months’ imprisonment were exempted from enlistment. The State Party notes the Committee’s jurisprudence concerning previous cases of conscientious objection to military service, in which the Committee found that punishment of conscientious objectors for failing to enlist in military service constitutes a violation of article 18 of the Covenant. In this connection, the State Party informs the Committee that it has put alternatives to military service in place, for the purposes of securing the rights of conscientious objectors. It notes that, on 28 June 2018, the Constitutional Court overturned its previous jurisprudence and found that article 5 of the Military Service Act, which did not specify alternatives to armed service for conscientious objectors, failed to comply with the provisions of the Constitution. Subsequently, the Supreme Court also overturned its previous jurisprudence regarding criminal convictions for failure to enlist in military service on grounds of conscientious objection. In response, a bill was passed by the National Assembly in December 2019, containing provisions on alternatives to military service. The bill entered into force on 1 January 2020. In addition, the President of the Republic of Korea granted special pardons, on 31 December 2019, to 1,879 prisoners incarcerated for conscientious objection, including 1,878 individuals whose sentences had been completed.
Lastly, the State Party argues that the restriction on voting rights in the present case must be assessed separately from the issue of the right to conscientious objection under article 18 of the Covenant. It argues that the restriction on the right to vote must be assessed based on whether the grounds for the restriction are reasonable and objective. It notes that, while the authors in the present case were convicted and sentenced to terms of imprisonment for failing to enlist in military service under article 88 of the Military Service Act, the restriction on their voting rights was not in and of itself a violation of the Covenant.
Authors’ comments on the State Party’s observations on the merits
On 23 December 2020, the authors submitted their comments on the State Party’s observations on the merits. They reiterate their claim that imposing restrictions on voting rights based solely on the length of a prison sentence is unreasonable and argue that a restriction on the right to vote following a criminal conviction is only reasonable when the crime threatens the foundations of democracy.
The authors argue that it is important to note that, in the sentencing process, judges automatically attach restrictions on the right to vote to the final conviction when the imprisonment term exceeds one year, regardless of the criminal offence. They contend that the restriction therefore only serves as an additional punishment and does not aid the aim of rehabilitation and integration into society.
The authors further argue that, in its observations, the State Party has failed to explain how the automatic restriction on the right to vote for persons sentenced to a term of imprisonment of one year or more serves the aim of protecting society and democracy. They reiterate their argument that the legislative purpose of the Public Official Election Act would be better served if prisoners were able to exercise their voting rights freely in a democratic process by taking part in civic engagement.
The authors note that they were sentenced to 18 months’ imprisonment, not based on any aggravating or mitigating factors, but solely because that was the mandatory minimum period of imprisonment required by law in order to exempt conscientious objectors from enlistment. Conscientious objectors, including the authors, could not receive a lighter sentence, such as a fine or the suspension of their sentence, even if they demonstrated sincere reflection or regret, nor could they be granted early release on parole for good behaviour while incarcerated. Referring to the State Party’s observation that a prison sentence of one year classifies a criminal offence as a felony, the authors argue that this classification should not apply to conscientious objectors who have been sentenced to imprisonment for failure to enlist in military service. They argue that, as such, their sentence was not based on reasonable and objective criteria and that the restriction on their right to vote cannot be found to be based on reasonable and objective grounds.
The authors further note the State Party’s argument that it is not always possible to determine which crimes are to be considered as disrupting democratic order. However, they point out that the Penal Code distinguishes crimes based on various categories of interest, such as: (a) crimes concerning individual interest, for example, larceny, fraud or blackmail; (b) crimes concerning societal interest, such as forgery or disturbance of public peace; (c) crimes concerning national security, such as insurrection or foreign aggression; and (d) crimes concerning disruption of the constitutional order, which are dealt with separately under the Act on Special Cases Concerning the Prescription for Public Prosecution. The authors submit that the penal system therefore already makes a distinction as to which crimes are considered to harm democratic institutions and public security. The State Party could therefore have adopted a policy under which judges had the discretion to restrict voting rights as an additional penalty in each sentence, depending on the category of the criminal offence in question. However, it instead chose to apply a uniform restriction on the right to vote to those incarcerated for at least one year, which, they argue, does not adhere to the principle of proportionality.
Consideration of admissibility
Before considering any claim contained in a communication, the Committee must decide, in accordance with rule 97 of its rules of procedure, whether the communication is admissible under the Optional Protocol.
The Committee has ascertained, as required under article 5 (2) (a) of the Optional Protocol, that the same matter is not being examined under another procedure of international investigation or settlement.
The Committee notes the authors’ assertion that they have exhausted all available domestic remedies. It further notes that the State Party has not challenged the admissibility of the communication. The Committee therefore considers that it is not precluded by article 5 (2) (b) of the Optional Protocol from considering the communication.
The Committee considers that the authors have sufficiently substantiated their claims under article 25 of the Covenant for the purposes of admissibility. Accordingly, the Committee declares the communication admissible and proceeds with its consideration of the merits.
Consideration of the merits
The Committee has considered the communication in the light of all the information submitted to it by the parties, in accordance with article 5 (1) of the Optional Protocol.
The Committee notes the author’s claim that their rights under article 25 of the Covenant were violated, as their right to vote was suspended while serving an 18-month prison sentence for refusal to enlist in military service on the basis of conscientious objection. It notes their argument that the suspension of their right to vote was not based on objective and reasonable grounds, in contravention of article 25 of the Covenant, because the restriction prescribed in paragraph 2 of article 18 (1) of the Public Official Election Act applies uniformly to all persons sentenced to imprisonment for one year or more, without making any distinction as to the category of the criminal offence in question. The Committee also notes the State Party’s submission that the suspension of the authors’ voting rights under paragraph 2 of article 18 (1) of the Public Official Election Act was based on objective and reasonable grounds, and its argument that it is for the legislative body of a State Party to set the standards for the proportionate restriction of voting rights.
The Committee recalls its general comment No. 25 (1996), in which it stated that the right to vote may not be suspended or excluded except on grounds that are established by law and that are objective and reasonable (paras. 4 and 14).19 If conviction for an offence is a basis for suspending the right to vote, the period of such suspension should be proportionate to the offence and the sentence.20
In the present case, the Committee notes that the suspension of the authors’ right to vote was established by law, namely under paragraph 2 of article 18 (1) of the Public Official Election Act. The question before the Committee is thus whether the suspension of the authors’ voting rights was based on reasonable and objective grounds. The Committee notes the State Party’s argument that the purpose of the restrictions on voting rights in paragraph 2 of article 18 (1) of the Public Official Election Act was to further the public interest by imposing social and criminal sanctions on persons who have failed their basic duties as members of society by committing a criminal offence, and to restore respect for the rule of law. The Committee, however, recalls its jurisprudence that automatic disenfranchisement of prisoners is not effective in deterring further offending at either a specific or general level, thus raising questions as to whether it is proportionate to that objective.21
- Taylor et al. v. New Zealand, para. 7.4. ↩
The Committee further notes the State Party’s argument that it is difficult to determine which category of crime may be deemed more harmful to democratic order and public interest, when assessing, for instance, the characteristics of violent criminal offences compared to crimes that may target democratic institutions. It notes the State Party’s argument that, for this reason, the length of the prison sentence should be the deciding factor in determining the seriousness of the criminal offence and thus the restriction on voting rights. In this connection, the Committee, however, recalls its position that imprisonment and the corollary deprivations that inevitably accompany it (for example, restrictions on visitation, movement and contact with the outside world; and an obligation to abide by other prison rules and regulations) constitute a constellation of serious punishments for criminal offending, and that disenfranchisement represents an additional and separate punishment.22 As such, clear legal standards and assessments should be applied in order to specifically determine the reasonableness of disenfranchisement in the same manner as for other forms of penal sanctions.23
The Committee observes that, absent certain circumstances – such as, for example, sentencing for voter or ballot fraud, voter suppression, election tampering and related civil rights violations, crimes related to campaign finance, bribery, corruption, treason, sedition, mail fraud, identity theft, or other offences that may target elections, democratic order, processes or institutions, or the State itself – deprivation of the right to vote is unrelated to the specific nature of the offence.24 The Committee further recalls that prisoners who are resident citizens of a State Party remain subject to the laws of that State and should thus – absent compelling reasons – have an opportunity, on an equal footing with others, to participate in democratic electoral processes.25
In the present case, the Committee notes that the authors’ disenfranchisement automatically resulted from their sentences and was not connected to the nature of the offence of failing to enlist in military service owing to their conscientious objection under the then-applicable article 88 of the Military Service Act. In addition, the Committee notes that the authors’ sentences of 18 months’ imprisonment were, at the time of their sentencing, the mandatory minimum term of imprisonment for failing to enlist in military service (see para. 4.7 above). As such, the length of the authors’ sentences – and thus the length of their automatic disenfranchisement – was directly connected to their punishment for refusal to perform mandatory military service owing to their conscientious objection. While noting that the authors have not invoked a separate violation of article 18 of the Covenant, the Committee nonetheless recalls its jurisprudence that the right to conscientious objection to military service inheres in the right to freedom of thought, conscience and religion and entitles any individual to an exemption from compulsory military service if such service cannot be reconciled with that individual’s religion or beliefs.26 The Committee thus observes that the authors’ disenfranchisement was not only unrelated to the specific nature of the offence, but that the disenfranchisement was a result of exercising their inherent right to freedom of thought, conscience and religion.
- See, for example, Jong-bum Bae et al. v. Republic of Korea (CCPR/C/128/D/2846/2016), para. 7.3. The Committee further recalls in this connection that it has in numerous previous Views found a violation by the State Party of article 18 (1) of the Covenant for prosecuting and convicting authors for refusal to perform compulsory military service owing to their conscientious objection. See, for example, Yeo-Bum Yoon and Myung-Jin Cho v. Republic of Korea (CCPR/C/88/D/1321-1322/2004); Eu-min Jung et al. v. Republic of Korea (CCPR/C/98/D/1593-1603/2007); Jong-nam Kim et al. v. Republic of Korea (CCPR/C/106/D/1786/2008); Min-kyu Jeong et al. v. Republic of Korea (CCPR/C/101/D/1642-1741/2007); and Young-kwan Kim et al. v. Republic of Korea (CCPR/C/112/D/2179/2012). ↩
The Committee considers that the automatic disenfranchisement resulting from the authors’ criminal conviction and sentencing to 18 months’ imprisonment under the Military Service Act were not based on the required standards of reasonableness, objectivity and proportionality and were thus in violation of the authors’ rights under article 25 (b) of the Covenant.
The Committee, acting under article 5 (4) of the Optional Protocol, is of the view that the facts before it disclose a violation by the State Party of the authors’ rights under article 25 (b) of the Covenant.
Pursuant to article 2 (3) (a) of the Covenant, the State Party is under an obligation to provide the authors with an effective remedy. This requires it to make full reparation to individuals whose Covenant rights have been violated. In view of the fact that the authors have not requested compensation, the Committee considers that its Views on the merits of the claim constitute sufficient remedy for the violation found. However, the State Party is also under an obligation to take all steps necessary to prevent similar violations from occurring in the future, including by reviewing its legislation on voting restrictions for prisoners and its implementation thereof, in order to align its legislation with the State Party’s obligations under article 25 (b) of the Covenant and the Committee’s Views in the present case.
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 and that, pursuant to article 2 of the Covenant, the State Party has undertaken 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 when it has been determined that a violation has occurred, the Committee wishes to receive from the State Party, within 180 days, information about the measures taken to give effect to the Committee’s Views. The State Party is also requested to publish the present Views and to have them widely disseminated in the official language of the State Party.