2014 Now in Korea: The Appellate Court

Südkorea, UPP-Case, 2013f

Appellate Court Strikes Conspiracy from the "Insurrection Conspiracy Case"

October, 2014
Task Force against ‘Conspiracy of an Insurrection’ fabricated by NIS and Political Repression

On August 11, 2014, the Seoul High Court acquitted Representative Lee Seok-ki and his co-defendants of conspiracy charges in the Lee Seok-ki insurrection conspiracy case. In other words, the 'conspiracy' disappeared from the so-called insurrection conspiracy case. However, the court up-held the guilty verdicts on charges of inciting an insurrection and the violation of the National Security Act and handed down an unusually heavy sentence of nine years of imprisonment to Rep. Lee. Both the prosecution and defense balked at the appellate court's decisions and filed an appeal. Accordingly, the case is now in the hands of the Supreme Court, slated to reach its final decision by the end of the year or early next year.

This is the first insurrection conspiracy case since South Korea's democratization kicked off in 1987. It was extremely controversial from the start when the National Intelligence Service (NIS) did not hesitate to carry out massive raids and arrests immediately after announcing the case about a year ago. Those arrested were not a few underground extremists as in past national security cases, but members and officials of an in-parliament opposition party (six seats) which had been the most vocal critic of the governement, including an incumbent lawmaker, Representative Lee Seok-Ki. This party, the Unified Progressive Party (UPP), released a statement titled "The Truth behind Lee Seok-ki Scandal” (October 2013, see http://goupp.org/?s=u2G9NirG) questioning whether Rep. Lee had indeed conspired an insurrection and arguing that the case was an extension of the Park Geun-hye's careful power-consolidating strategy.

Although criticized by both the prosecution and defense, the appellate court applied the law quite rigorously and its rulings, especially that the evidence produced by the NIS and prosecution was insufficient to prove the serious charge of an insurrection conspiracy, are of great significance.

First, contrary to the prosecution's argument and the lower court's ruling, the appellate court acknowledged that there was not enough evidence to show that an Revolutionary Organization (RO) existed. As in the lower court trial, the NIS' only informant appeared as a prosecution witness. He had been cooperating with the NIS for years, arguing that a secret entity, an RO, existed; its leader is Rep. Lee; and it secretly plotted an insurrection around May 2013 if North Korea invaded the South. Based on his arguments, the NIS surveiled Rep. Lee and his colleagues for years and finally indicted them for insurrection conspiracy. The NIS informant repeated his argument in court. However, although the appellate court accepted his testimony as evidence of his experiences, it ruled that his argument was mere speculation not supported by any objective evidence. Accordingly, the appellate court ruled that the existence of an RO could not be proved, which was not that different from what the defense and independent critics had concluded all along.

Moreover, the appellate court ruled that there were no evidence supporting the prosecution's claim that Rep. Lee's 12 May, 2013 lecture was a meeting was to plot an insurrection with the attendees.

Under Korean criminal law, there are two elements to an insurrection conspiracy: one is the "purpose of subverting the Constitution" and the other is a establishing a plan to "create a violence" that creates a clear and present danger and agreeing upon it with many people. The appellate court concluded that although Rep. Lee and his colleagues intended to subvert the Constitution, an agreement was not reached by the lecture attendees because there was not enough evidence to show that the attendees agreed to carry out the plan and there were no acts of preparation to create a violence before or after the lecture. Accordingly, the appellate court acquitted the accused of the conspiracy charge.

However, the appellate court upheld the guilty verdict on the inciting an insurrection charge and, while reduced slightly, sentenced Rep. Lee to an unusually heavy 9 years of imprisonment. As shown in the case being called the "insurrection conspiracy case", the "inciting an insurrection" charge had not drawn attention before the appellate court's rulings.

Freedom of Expression

All that was left for the appellate court was Rep. Lee's May 2013 lecture held before about 100 party members. The appellate court ruled that Rep. Lee incited an insurrection to the attending UPP members who are avid supporters of Rep. Lee. The appellate court ruled that, unlike the conspiracy charge, the inciting charge does not require a insurrection with specific dates, means and targets, and that it only requires showing the plausibility of the audience to execute criminal acts according to the incitement. .

However, the appellate court gave no explanation whatsoever on its ruling that the plausibility had been proven and its conclusion is not supported by other material evidence. According to the testimony of the key witness, the only informant, all of the attendees went back to their usual daily routines after the May 2013 meeting and no one had materially prepared for the criminal act of an insurrection or showed any emotional or mental strains that would naturally follow the preparation of an insurrection. The NIS, despite carrying out surveillance of the attendees after the lecture, could not present any evidence to the contrary.

Ruling that plausibility can be met without any material support raises serious problems in incitement charges. If it is possible to indict someone with the mere allegation of having plausibility, the inciting charge will function as a silencing gag on critical voices against the government, even for those from right-wing conservatives.

In modern states, only limited types of speeches may be punishable under the criminal law. In the Korean criminal law, incitement is a codified crime only in relation to insurrections, foreign aggression and the use of explosives. It was codified in 1953, near the end of the Korean War, and even at the time, most legal scholars opposed the incitement clause because of the possibility of it limiting the freedom of expression, assembly and association. The incitement clause in the Korean criminal law has been rarely invoked even under the military dictatorship because the judiciary had been cooperative enough with the administration in indicting targeted people with more serious charges of insurrection or insurrection conspiracies.

Thus, this was the first time in Korean history for the "inciting an insurrection" charge to go to court.

In March 2004, Professor Kim Yong-seo declared “a battle with [then-President] Roh Moo-hyun, [former Presdient] Kim Dae-jung and [then-North Korean Leader] Kim Jung-il” in a lecture for officers in the reserve at the Korea Institute for Maritime Strategy, arguing that a military coup is the only way to overturn the legitimately elected leftist government and restore liberal democracy".

When the content of the lecture became public, civil organizations reported him to the prosecution. The prosecution stated that "while his expressions were extreme considering the political situation at the time, it is difficult to consider opinions expressed in lecture or online to be inciting an insurrection as defined in criminal law that requires inciting violence or equivalent acts" and decided not to press charges.

During the appellate court trial, pushed aside by the insurrection conspiracy charge, neither the prosecution nor defense argued much about whether Rep. Lee's lecture could be considered an incitement. Thus, this legal question will be examined solely by the Supreme Court, and the decision of the Supreme Court will create an important milestone for democracy and the freedom of expression in Korea.

The Sewol Ferry Disaster and the Insurrection Conspiracy Trial

Political trials tend to be influenced by the external pressure from the administration or the public, especially in societies where the judiciary lacks full independence. Korean courts have continuously increased its independence since democratization kicked off in 1987. Now, judges are no longer penalized for decisions against the administration as was the case under the military dictatorships. Nonetheless, we can still often see the government pressuring the court directly for favorable decisions through the personal connections of bigwigs in the Blue House or the ruling party or indirectly by manipulating public opinion through pro-government media.

Critics were extremely harsh towards Rep. Lee and his colleagues in August 2013 when they were arrested. Not only conservatives who supported President Park Geun-hye, but also most of the opposition party supporters condemned the defendants and demanded heavy punishments As in many similar cases, Rep. Lee and his colleagues were stripped of their right to defend themselves as the NIS, which investigated the case, and the prosecution spoke freely to the media of the allegations and opinions. To say that South Korean media is overwhelmingly conservative would be an understatement. The arguments of the defense was virtually ignored while unfiltered leaks and unofficial allegations of the NIS and prosecution dominated the news under sensational headlines for over a month. Stories that Rep. Lee had connections with the North, a point that was not even mentioned in the trials, are a good example. The National Assembly's decision to lift Rep. Lee's immunity from arrest, agreed upon by the opposition, can also be understood in this context.

The public opinion on Rep. Lee was largely unchanged when the lower court rendered its decision this February. President Park’s approval rates were still very high and many predicted the victory of the ruling party in the June 2014 local elections. All of this changed in mid-April when the Park administration's approval rates plummeted after the Sewol Ferry disaster. More than 300 people died or went missing, the vast majority of which were high school students following the instructions of the ferry crew. Not a single person was rescued except those who escaped on their own and most of the releases by the government turned out to be lies and excuses.

The appellate court's decision acquitting the defendants of the insurrection conspiracy charges, but upholding the guilty verdict on the inciting an insurrection charges, was a reflection of the shift in public opinion. The lack of evidence was too obvious to uphold all charges. However, if the appellate court acquitted the defendants of both charges on insurrection, the Park administration may have faced a serious political crisis, which would have been too heavy a burden for the Court.

In fact, public polls in September 2013 showed 61% of the respondents believed the alleged insurrection conspiracy might be true, with only 21% replying in the negative. However, after the accused were found not guilty on the conspiracy charges, 53.7% replied that they should have been acquitted on the inciting charge as well.

This may be a too harsh judgment of the judicial branch. But, it is true that most Koreans agree that court decisions depend more on the interventions of the administration or public opinion, than its independent legal interpretation.