17. Conscientious Objector Case(Establishment of Homeland Reserve Forces Act)

[23-2(A) KCCR 132, 2007Hun-Ka12, 2009Hun-Ba103(consolidated), August 30, 2011]

The Constitutional Court held that the part of 'a person who fails to receive training without any justifiable ground' of Article 15 Section 8 of the Establishment of Homeland Reserve Forces Act, which imposes criminal punishment on a person subject to reserve forces trainingupon failure to take part in the training, is not against the Constitution.The Court found that such part does not infringe on the freedom of conscience of conscientious objector.

Background of the Case

All of the defendants at the requesting court are Jehovah's Witnesses.The defendants, subject to reserve forces training, were accused of violating the Establishment of Homeland Reserve Forces Act when they were called up for a reserve forces training but failed to attend such training. While the case was pending, the court filed a request with this Court for a constitutional review of the Statute, arguing that the part of 'a person who fails to receive training under 6(1) without any justifiable ground' of Article 15 Section 8 of the former Establishment of Homeland Reserve Forces Act (hereinafter, the "Instant Provision") infringes on the defendants' freedom of conscience.

Provision at Issue

Establishment of Homeland Reserve Forces Act (before revised by Act No. 9945 on January 25, 2010)

Article 15 (Penal Provisions)

(8)A person who fails to receive training under 6(1) without any justifiable ground shall be punished with imprisonment with prison labor for not more than one year, by a fine not exceeding two million won, by detention, or by a non-penal fine.

Summary of Decision

The Constitutional Court held that the Instant Provision is constitutional.

1. Court Opinion

The criminal conduct punished by the provision at issue is not 'the refusal to take part in the reserve force training during the entire term of reserve forces service' but 'the failure to attend a specific reserve force training of which the person has been notified, without any justifiable ground.' Thus, even though a court's conviction against a conscientious objector refusing service training is finalized, that decision is for his refusal to attend the particular reserve force training of which he has received notice, such that he may be punished in cases where he refuses newly imposed training. Therefore, we do not find that the Instant Provision violates the prohibition against double jeopardy.

By compelling reserve force training, which is part of the duty of national defense, the Instant Provision intends to maintain military strength of the reserve forces and equitability or fairness in fulfilling military duties, which is to ultimately ensure national security, a constitutional interest. These purposes are legitimate and the means adopted by the Instant Provision is proper to achieve those purposes since it compels the fulfillment of reserve force drills by imposing criminal punishment on persons disobeying the order to attend those drills.

The issue of whether we should adopt the system of alternative service in terms of reserve service duty is a question of whether the introduction of that system would hinder the accomplishment of a significant public interest–national security or not. A careful consideration, thus, should be given to the adoption of the system of alternative service and thus, the entire national defense including active service and reserve service must be examined in terms of national security.

It is hard for us to find that the adoption of alternative service will

not hamper the accomplishment of significant public interests of national security and fairness in imposition of military duties, considering the following: the unique security situation of our nation; loss of military forces which could be caused by adopting an alternative service system; difficulties in determining whether a refusal of reserve service training is based on genuine conscience; a concern that an introduction of alternative service system against public opinion would likely hinder social integration and thus, seriously undermine overall national capacity; and the fact that certain prerequisites required by the case laws on this subject matter of this Court still have not been met.

We, thus, cannot conclude that the Instant Provision, notwithstanding the fact that it prescribes criminal punishment against those who refuse training for reserve troops without adopting an alternative service system, either violates the rule of the least restrictive means orfails to balance the interests concerned. Therefore, the Instant Provisiondoes not infringe on the defendants' freedom of conscience.

On the other hand, the Instant Provision uniformly regulates any refusal to reserve force training, whether or not that refusal is based on conscience or whether or not that conscience is religious, and therefore, it does not discriminate people based on conscience or religion, not violating the principle of equality.

We cannot find that the Instant Provision imposing criminal penalties on those refusing to have reserve service training violates Article 6 Section 1 of the Constitution, which declares the principle of respect for generally recognized international law, because of thefollowing: we find it difficult to consider that the right to conscientiousobjection is automatically recognized under the International Covenanton Civil and Political Rights, which our country signed on April10, 1990, or the Covenant created legally binding obligation as to conscientious objection; there have been no international treaties for human rights which expressly recognize the right to conscientious objection; and in our country, the right to conscientious objection cannot be recognized as a generally recognized rule of international

law because we cannot deem that a customary international law guaranteeing that right has been established, although certain countries including some European countries protect that right.

2. Concurring Opinion of One Justice

All citizens shall have the duty of national defense under the conditions as prescribed by statute and, in such case, a different treatment based on sex, physical conditions, or educational background may occur. If that different treatment is to be deemed not violating the right to equality guaranteed by the Constitution, the burden of the national defense duty should be fairly distributed to all citizens by providing an institutional framework where the restraints on basic rights caused by the enforcement of military service duties are relieved or the compensations for the loss caused by the restraints are offered.

In my view, however, it is hard to regard that national defense duties are impartially distributed among people as a whole considering many statutory provisions stipulating the details of national defense duty. Besides, we do not have any such framework mentioned above.

In light of the current situation where no compensation for the loss caused in fulfilling military service duty is provided, adoption of the alternative service for the reason of freedom of conscience could not only tear apart the system of universal conscription adopted by our nation but also hamper social integrity and thus, cause serious damage to the national capacity as a whole.

For the reasons stated, I would hold that the Instant Provision punishing conscientious objectors is not against the Constitution unless a system such as appropriate compensation for carrying out military duties is offered in order to alleviate the discriminatory treatment caused by the fulfillment of those duties.

3. Concurring Opinion of One Justice

The Instant Provision is a provision imposing the duty of national defense and thus, the Court must apply the standard of constitutional review for cases where the Constitution imposes basic duties on citizens. The purposes of the imposition of the duty in the instant case are legitimate and the details of such imposition are also reasonable and appropriate as they sufficiently respect other constitutional values which the legislature in its imposition of basic duties should consider. We can also recognize the fairness of the imposition of such duties. Accordingly, I would like to conclude that, without any further review on the issue of restriction on the defendants' basic rights, which are inevitably caused by the Instant Provision, the Instant Provision does not violate the Constitution.

4. Dissenting Opinion of Two Justices

When the constitutional norms such as basic rights and citizen's duties guaranteed or imposed by the Constitution confront and conflict with each other, the Court has to construe the statutory provisions in a way to pursue harmony among those norms rather than to select one and discard the others. In the instant case where the freedom of conscience and the duty of national defense conflict with each other, the Instant Provision shall be interpreted in a way to balance those norms as we stated above. The Court, thus, must construe the part of 'justifiable ground' of the Instant Provision such that it realizes and harmonizes those norms to the best in proportion to their constitutional values–between freedom of conscience sought by the defendants based on their sincere and dire conscience and the duty of national defense under the Constitution. In their case laws, however, the Court and the Supreme Court have construed the Instant Provision as meaning that the refusal of reserve service training cannot be a 'justifiable ground' under the Instant Provision. As a result, criminal penalties, the most severe form of governmental sanction, are imposed on the defendants who did not take the trainings of reserve service duty based on their conscience and, moreover, those penalties are imposed repeatedly, more than 10 times according to the times of

those training duties imposed. For the foregoing reasons, we find that the Instant Provision seriously infringes on the human dignity and value of the defendants and is such an excessive measure that it violates the basic ground for imposing criminal penalties, the rule of proportionality between criminal conduct and responsibility.

The examples of many other countries which have adopted and operated alternative service system for conscience objectors suggest that our concern about the increase of the number of pseudo- conscience objectors who would refuse to take the reserve service training is not accurate. If, by providing prior screening and follow-up control, we set out and operate the system of alternative service in a way that we can detect genuine conscience objectors from those who are not, it would be a great help in establishing and developing national defense and liberal democracy as well as freedom of conscience of the conscientious objectors. In our view, consequently, the Instant Provision is unconstitutional as far as the Court interprets the part of 'justifiable ground' of that provision as to not include a person's refusal of reserve service training based on his conscience.