Hak—Chul Shin v. Republic of Korea

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.

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.

Between July 1986 and 10 August 1987, the author, a professional artist, painted a canvas-mounted picture sized 130 cm by 160 cm. The painting, entitled “Rice Planting (Monaeki)” was subsequently described by the Supreme Court in the following terms: * The following members of the Committee participated in the examination of the present communication: Mr. Abdelfattah Amor, Mr. Nisuke Ando, Mr. Prafullachandra Natwarlal Bhagwati, Ms. Christine Chanet, Mr. Maurice Glèlè Ahanhanzo, Mr. Walter Kälin, Mr. Ahmed Tawfik Khalil, Mr. Rafael Rivas Posada, Sir Nigel Rodley, Mr. Martin Scheinin, Mr. Ivan Shearer, Mr. Hipólito Solari Yrigoyen, Ms. Ruth Wedgwood, Mr. Roman Wieruszewski and Mr. Maxwell Yalden. The author states that as soon as the picture was completed, it was distributed in various forms and was widely publicized.

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”.i 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 retrial before three justices of the Seoul District Criminal Court.

During the retrial, 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. The complaint

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 democratization 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.

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,ii its Views in individual communications under the Optional Protocoliii as well as recommendations of the Special Rapporteur of the Commission on Human Rights on the right to freedom of opinion and expression.iv

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.

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 retrial, 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.

According to the author, during the retrial, 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.

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) reopening 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.

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

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.

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 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 retrial or compensation. In addition, retrial 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.

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.

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.

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.

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”).

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

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.

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.

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. [Adopted in English, French and Spanish, the English text being the original version. Notes i 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] ii A/47/40, paras. 470-528 (initial report), and CCPR/C/79/Add.114, 1 November 1999 (second periodic report). v See, for example, Tae Hoon Park v. Republic of Korea case No. 628/1995, Views adopted 20 October 1998, at para. 10.3, and Keun-Tae Kim v. Republic of Korea case No. 574/1994, Views adopted 3 November 1998, at paras. 12.4-12.5.