party contends that all rights of Mr. Kim under the
Covenant, in particular his rights under article 14,
were observed between the date of his arrest
(13 May 1990) and that of his release
(12 August 1992).
Here, the Committee observed that:
"[Its] main concern relates to the continued
operation of the National Security Law. Although
the particular situation in which the Republic of
Korea finds itself has implications on public order
in the country, its influence ought not to be
overestimated. The Committee believes that
ordinary laws and specifically applicable criminal
laws should be sufficient to deal with offences
against national security. Furthermore, some issues
addressed by the National Security Law are
defined in somewhat vague terms, allowing for
broad interpretation that may result in sanctioning
acts that may not truly be dangerous for State
security [...] [T]he Committee recommends that the
State party intensify its efforts to bring its
legislation more into line with the provisions of the
Covenant. To that end, a serious attempt ought to
be made to phase out the National Security Law,
which the Committee perceives as a major obstacle
to the full realization of the rights enshrined in the
Covenant and, in the meantime, not to derogate
from certain basic rights [...]."
4.4 Concerning the alleged violation of article 19,
paragraph 2, of the Covenant, the State party argues
that the author has failed to identify clearly the basis
of his claim and that he has merely based it on the
assumption that certain provisions of the National
Security Law are incompatible with the Covenant,
and that criminal charges based on these provisions
of the National Security Law violate article 19,
paragraph 2. The State party submits that such a
claim is outside the Committee's scope of
jurisdiction; it argues that under the Covenant and
the Optional Protocol, the Committee cannot
consider the (abstract) compatibility of a particular
law, or the provisions of a State party's law, with the
Covenant. Reference is made to the Views of the
Human Rights Committee on communication
No. 55/19791, which are said to support the State
party's conclusions.
3.4 Finally, it is contended that although the
events for which the author was convicted and
sentenced occurred before the entry into force of the
Covenant for the Republic of Korea on 10 July 1990,
the courts delivered their decisions in the case after
that date and therefore should have applied article
19, paragraph 2, of the Covenant in the case.
4.5 On the basis of the above, the State party
requests
the
Committee
to
declare the
communication inadmissible both ratione temporis,
inasmuch as events prior to 10 July 1990 are
concerned, and because of the author's failure to
substantiate a violation of his rights under the
Covenant for events which occurred after that date.
State party's information and observations on
admissibility and author's comments thereon
5.1 In his comments, the author notes that what is
at issue in his case are not the events (i.e. before
10 July 1990) which initiated the violations of his
rights, but the subsequent judicial procedures which
led to his conviction by the courts. Thus, he was
punished, after the entry into force of the Covenant
for the Republic of Korea for having contravened the
National Security Law. He notes that as his activities
were only the peaceful expression of his opinions
and thoughts within the meaning of article 19,
paragraph 2, of the Covenant, the State party had a
duty to protect the peaceful exercise of this right. In
this context, the State authorities and in particular
the courts were duty-bound to apply the relevant
provisions of the Covenant according to their
ordinary meaning. In the instant case, the courts did
not consider article 19, paragraph 2, of the Covenant
when trying and convicting the author. In short, to
punish the author for exercising his right to freedom
of expression after the Covenant became effective
for the Republic of Korea entailed a violation of his
right under article 19, paragraph 2.
4.1 In its submission under rule 91 of the rules of
procedure, the State party argues that as the
communication is based on events which occurred
prior to the entry into force of the Covenant for the
Republic of Korea, the complaint is inadmissible
ratione temporis inasmuch as it is based on these
events.
4.2 The State party acknowledges that the author
was found guilty on charges of violating the National
Security Law from January 1989 to May 1990. It
adds, however, that the complaint fails to mention that
Mr. Kim was also convicted for organizing illegal
demonstrations and instigating acts of violence on
several occasions during the period from January
1989 to May 1990. During these demonstrations,
according to the State party, participants "threw
thousands of Molotov cocktails and rocks at police
stations, and other government offices. They also set
13 vehicles on fire and injured 134 policemen". These
events all took place before 10 July 1990, date of
entry into force of the Covenant for the State party:
they are thus said to be outside the Committee's
competence ratione temporis.
5.2 Counsel observes that the so-called illegal
demonstrations and acts of violence referred to by
4.3 For events occurring after 10 July 1990, the
question is whether the rights protected under the
Covenant were guaranteed to Mr. Kim. The State
1
Case No. 55/1979 (Alexander MacIsaac v. Canada),
Views adopted on 14 October 1982, paragraphs 10 to 12.
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