with the Covenant, but to an argument that the
author had been the victim of a violation by the State
party of his right to freedom of expression under
article 19 of the Covenant. This argument had been
sufficiently substantiated to require an answer by the
State party on the merits.
the State party are irrelevant to the instant case; what
he raises before the Committee does not concern the
occasions on which he was punished for having
organized demonstrations. This does not mean,
counsel adds, that his client's conviction under the
Law on Demonstrations and Assembly were
reasonable and proper: it is said to be common that
leaders of opposition groups in the Republic of
Korea are convicted for each and every
demonstration staged anywhere in the country, under
an "implied conspiracy theory".
6.4 The Committee was satisfied, on the basis of
the material before it, that the author had exhausted
all available domestic remedies within the meaning
of article 5, paragraph 2, of the Optional Protocol; it
noted in this context that the State party had not
objected to the admissibility of the case on this
ground.
5.3 The author reiterates that he has not raised the
issue of the National Security Law's compatibility
with the Covenant. He does indeed express his view
that, as the Committee acknowledged in its
Concluding Observations on the State party's initial
report, the said law remains a serious obstacle to the
full realization of Covenant rights. However, he
stresses that his communication concerns "solely the
fact that he was punished for his peaceful exercise of
the right to freedom of expression, in violation of
article 19, paragraph 2, of the Covenant".
7.
On 14 March 1996, the Human Rights
Committee
therefore
decided
that
the
communication was admissible inasmuch as it
appeared to raise issues under article 19 of the
Covenant.
State party's merits submission and counsel's
comments
8.1 In its submission, dated 21 February 1997, the
State party explains that its Constitution guarantees
its citizens fundamental rights and freedoms,
including the right to freedom of conscience,
freedom of speech and the press and freedom of
assembly and association. These freedoms and rights
may be restricted by law only when necessary for
national security, the maintenance of law and order
or for public welfare. The Constitution stipulates
further that even when such restriction is imposed,
no essential aspect of the freedom or right shall be
violated.
The Committee's admissibility decision
6.1 At its 56th session, the Committee considered
the admissibility of the communication.
6.2 The Committee took note of the State party's
argument that as the present case was based on
events which occurred prior to the entry into force of
the Covenant and the Optional Protocol for the
Republic of Korea, it should be deemed inadmissible
ratione temporis. In the instant case the Committee
did not have to refer to its jurisprudence under which
the effects of a violation that continued after the
Covenant entered into force for the State party might
themselves constitute a violation of the Covenant,
since the violation alleged by the author was his
conviction under the National Security Law. As this
conviction took place after the entry into force of the
Covenant on 10 July 1990 (24 August 1990 for
conviction; 11 January 1991 for the appeal, and
26 April 1991 for the Supreme Court's judgement),
the Committee was not precluded ratione temporis
from considering the author's communication.
8.2 The State party submits that it maintains the
National Security Law as a minimal legal means of
safeguarding its democratic system which is under a
constant security threat from North Korea. The law
contains some provisions which partially restrict
freedoms or rights for the protection of national
security, in accordance with the Constitution Article
1 of the National Security Law reads: "The purpose
of this law is to control anti-State activities which
endanger the national security, so that the safety of
the State as well as the existence and freedom of the
citizens may be secured." Article 7, paragraph 1,
reads "Any person who has praised or has
encouraged or sided with the activities of an antiState organization or its members or a person who
has been under instruction form such an
organization, or who has benefited an anti-State
organization by other means shall be punished by
penal servitude for a term not exceeding seven
years." Paragraph 5 of article 7 reads: "Any person
who has, for the purpose of committing the actions
as stipulated in the above paragraphs, produced,
imported, duplicated, kept in custody, transported,
disseminated, sold or acquired documents, drawings
6.3 The State party had argued that the author's
rights were fully protected during the judicial
procedures against him, and that he was challenging
in general terms the compatibility of the National
Security Law with the Covenant. The Committee did
not share this assessment. The author claimed that he
had been convicted under article 7, paragraphs 1 and
5, of the National Security Law, for mere acts of
expression. He further claimed that no proof was
presented either of specific intention to endanger
state security, or of any actual harm caused thereto.
These claims did not amount to an abstract challenge
of the compatibility of the National Security Law
113
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