CCPR/C/80/D/926/2000

Communication No. 926/2000, Shin v. Republic of Korea

(Views adopted on 16 March 2004, eightieth session)*

Submitted by:

Hak-Chul Shin (represented by counsel,

Mr.Yong-Whan Cho)

Alleged victim:

The author

State party:

Republic of Korea

Date of communication:

25 April 2000 (initial submission)

The Human Rights Committee, established under article 28 of the International Covenant

on Civil and Political Rights,

Meeting on 16 March 2004,

Having concluded its consideration of communication No. 926/2000, submitted to the

Human Rights Committee on behalf of Mr. Hak-Chul Shin under the Optional Protocol to the

International Covenant on Civil and Political Rights,

Having taken into account all written information made available to it by the authors of

the communication, and the State party,

Adopts the following:

Views under article 5, paragraph 4, of the Optional Protocol

1.1

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.

1.2

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.

The facts as presented by the author

2.1

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 painting as a whole portrays the Korean peninsula in that its upper right part

sketches Baek-Doo-San, while its lower part portrays the southern sea with waves. It is

divided into lower and upper parts each of which portrays a different scene. The lower

part of the painting describes a rice-planting farmer ploughing a field using a bull which

tramps down on E. T. [the movie character ‘Extraterrestial’], symbolizing foreign power

such as the so-called American and Japanese imperialism, Rambo, imported tobacco,

Coca Cola, Mad Hunter, Japanese samurai, Japanese singing and dancing girls, the then

[United States’] President Ronald Reagan, the then [Japanese] Prime Minister Nakasone,

the then President [of the Republic of Korea] Doo Hwan Chun who symbolizes a

fascist military power, tanks and nuclear weapons which symbolize the U.S. armed

forces, as well as men symbolizing the landed class and comprador capitalist class. The

farmer, while ploughing a field, sweeps them out into the southern sea and brings up

wire-entanglements of the 38th parallel. The upper part of the painting portrays a peach

in a forest of leafy trees in the upper left part of which two pigeons roost affectionately.

In the lower right part of the forest is drawn Bak-Doo-San, reputed to be the Sacred

Mountain of Rebellion [located in the Democratic People’s Republic of Korea (DPRK)],

on the left lower part of which flowers are in full blossom and a straw-roofed house as

well as a lake is portrayed. Right below the house are shown farmers setting up a feast in

celebration of fully-ripened grains and a fruitful year and either sitting around a table or

dancing, and children with an insect net leaping about.”

The author states that as soon as the picture was completed, it was distributed in various

forms and was widely publicized.

2.2

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.

2.3

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.

2.4

On 13 August 1999, the author was convicted and sentenced to probation, with the court

ordering confiscation of the picture. On 26 November 1999, the Supreme Court dismissed the

author’s appeal against conviction, holding simply that “the lower court decision [convicting the

author] was reasonable because it followed the previous ruling of the Supreme Court overturning

the lower court’s original decision”. With the conclusion of proceedings against the author, the

painting was thus ready for destruction following its earlier seizure.

The complaint

3.1

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.

3.2

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

3.3

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.

3.4

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.

3.5

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.

3.6

The author argues that the Court failed to demonstrate that his conviction was necessary

for purposes of national security, as required under article 19, paragraph 2, to justify an

infringement of the right to freedom of expression. The Court applied a subjective and

emotional test, finding the picture “active and aggressive” in place of the objective standard

previously articulated by the Constitutional Court. Without showing any link of the author to the

DPRK or any other implication of national security, the Supreme Court justices simply

expressed personal feelings as to the effect of the picture upon viewing it. This demarche

effectively places the burden of proof on the defendant, to prove himself innocent of the charges.

3.7

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.

3.8

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

4.1

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.

4.2

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.

The author’s comments

5.1

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.

Issues and proceedings before the Committee

Consideration of admissibility

6.1

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.

6.2

The Committee has ascertained that the same matter is not being examined under

another procedure of international investigation or settlement for the purposes of article 5,

paragraph 2 (a) of the Optional Protocol. With respect to the exhaustion of domestic remedies,

the Committee notes that the State party has not claimed that there are any domestic remedies

that have not been exhausted or could be further pursued by the author. Since the State party is

claiming inadmissibility on the generic contention that the judicial proceedings were consistent

with the Covenant, issues which are to be considered at the merits stage of the communication,

the Committee considers it more appropriate to consider the State party’s arguments in this

respect at that stage.

Consideration of the merits

7.1

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.

7.2

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”).

7.3

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

nature of the threat to any of the enumerated purposes caused by the author’s conduct, as well as

why seizure of the painting and the author’s conviction were necessary. In the absence of such

justification, a violation of article 19, paragraph 2, will be made out.v In the absence of any

individualized justification therefore of why the measures taken were necessary in the present

case for an enumerated purpose, therefore, the Committee finds a violation of the author’s right

to freedom of expression through the painting’s confiscation and the author’s conviction.

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 disclose a violation of article 19, paragraph 2, of the Covenant.

9.

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.

10.

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.

Subsequently to be issued also in Arabic, Chinese and Russian as part of the present report.]

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).

iii Tae Hoon Park v. Republic of Korea case No. 628/1995, Views adopted 20 October 1998, and

Keun-Tae Kim v. Republic of Korea case No. 574/1994, Views adopted 3 November 1998.

iv E/CN.4/1996/39/Add.1.

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.