조 교육감의 선거법 위반 사건과 관련하여, 조희연 교육감은 결코 허위사실을 말하거나 지어내지도 않았을뿐더러, 그가 제기한 의혹은 이미 잘 알려진 언론인에 의해 불거졌으며 인터넷을 통해 광범위하게 퍼져 나가고 있었다고 지적했다.

또 조 교육감이 상대편 후보와 관련한 의혹을 제기한 이유는 유권자들이 충분한 정보를 갖고 결정을 내리도록 돕기 위함이었다고 말하고, 이는 민주주의의 요체이자 핵심적인 정치적 표현의 자유에 속하는 것으로, 허위사실 공표로 단죄하는 것은 옳지 않다고 주장했다.

해외학자들은 프리덤하우스, 국경없는기자회, 국제앰네스티, 오픈넷이니셔티브, 유엔인권위원회, 표현의자유 유엔특별보고관 등 여러 국제기구가 한국에서 표현의 자유가 점점 더 악화하여 가고 있다고 평가하고 있으며, 재판부는 이러한 국제사회의 우려를 이해해야 한다고 말했다.

이들은 한국의 인권과 표현의 자유에 관심이 있는 전 세계의 많은 사람들이 이 사건을 지켜보고 있다고 말하고, 재판부의 현명한 판결을 부탁한다고 거듭 촉구했으며, 국적을 막론한 해외 지식인들에게 지지해달라고 호소했다.

조희연 서울시 교육감은 지난해 6월 교육감 선거 당시, 상대편 후보였던 고승덕 후보에게 그와 두 자녀의 미국영주권 소유 의혹을 해명할 것을 요구했으며, 한 보수 교육 단체의 고발로 기소돼 1심에서 당선무효형인 벌금 500만 원을 선고받았다.

조 교육감은 재판 결과로 인해 선거에서 이뤄져야 할 표현의 자유와 언론의 자유가 위축되지 않길 바란다고 말하며 항소했으며, 대법원에서 유죄 확정 판결을 받을 경우 교육감직을 상실하게 된다.

다음은 해외학자들의 공개 탄원서 전문이다.

영문 탄원서 바로가기 ☞ http://goo.gl/forms/ZtLKvcHfFB

Open Letter to the Appellate Court in Support of Seoul Education Superintendent Dr. Cho Hee-yeon
The Honorable Kim Sang-Hwan
Presiding judge, The 6th Criminal Division
Seoul High Court, Republic of Korea
Dear Presiding Judge Kim:

We are writing with respect to the case of Dr. Cho Hee-Yeon, Superintendent of Education for Seoul Special Metropolitan City (2015No1385), in which the lower court found Dr. Cho guilty of proclaiming false facts under Article 250-2 of Public Official Election Act. We understand this case is currently before your court, and with your permission we would like to comment on the merits of the case as we understand it.

We are scholars concerned about democracy and human rights in Korea. We believe that we can legitimately voice our concerns about this case regardless of our nationalities, because it is related to the universal human right to freedom of expression.

For some time, we have been concerned about the subtle erosion of freedom of expression in South Korea. This development has manifested itself in several ways, including the abuse of criminal defamation and campaign laws, the use of the National Security Law to stifle debate on North Korea, and government control of the internet. Now, it appears that the prosecution of an opinion made during the election campaign—unusual among the advanced industrial states—is yet another reason for democracy advocates to be concerned about the freedom of expression in South Korea. Sadly, it appears to outsiders that the case of Dr. Cho is a high-profile example of a legitimate right to freedom of speech being curtailed.

We believe that the current South Korean court’s approach to excessive criminalization of defamation and restriction of election campaign should be changed. The UN Human Rights Committee recommends that all member states should consider decriminalizing defamation, emphasizing that the application of the criminal law should only be countenanced in the most serious of cases. In particular, it is a widely accepted norm in the international community that free speech during election campaigns should be fully guaranteed. A state should not bar the candidates from freely presenting their views and qualifications, nor prevent the voters from learning and discussing them. The consensus is that not the state but the voters should decide the right and wrong of the political controversies between the candidates. We hope that South Korean courts will respect the standards of the international human rights community.

As we understand the case, Dr. Cho conducted a press conference during his campaign for the Superintendent of Education, requesting his opponent Mr. Ko Seung Duk to tell the truth and present evidence about the allegation that he and his two daughters have had permanent residency in the United States. We understand that Dr. Cho did not fabricate this allegation. The allegation had been already raised by a well-known journalist and had been widely disseminated on the internet. In the context of a campaign for the Superintendent of Education, it seems legitimate that voters have information on the permanent residency of the candidates and their children. The person with the ability (and indeed, the responsibility) to confirm or deny this allegation was Mr. Ko not Dr. Cho, as it was Mr. Ko who has direct and personal knowledge of the residency of himself and his children. Indeed, Mr. Ko quickly and convincingly showed that he had not had a green card while in the U. S. by presenting copies of his visas. Thus the controversy between the two candidates was resolved in a couple of days. Also, we understand the election was determined by other issues and this controversy about U.S. permanent residency did not make any significant difference to the election outcomes.

It is also worth noting that Dr. Cho did not say that “Ko Seung Duk had obtained permanent residency in the United States” but rightly stated there were allegations to this effect and asked him to tell the truth about it. While the lower court discounted the important difference between “Mr. Ko had had permanent residency” and “there are allegations that Mr. Ko had had permanent residency,” the two statements are significantly different in substance and connotation.

It is undisputed that there were allegations concerning Mr. Ko’s residency. The point of raising these allegations was to discover the truth with respect to an issue of potential interest to voters. It is ultimately up to voters to decide whether the issue of Mr. Ko’s permanent residency should influence their vote. Statements by candidates during election campaigns that seek information about opponents to assist voters in making informed decisions constitute core political speech that lies at the heart of a functioning democracy.

The interpretation of Korean law is a matter for Korean courts, not for outsiders. Nevertheless, the court should be aware of concerns that exist among Korea’s democratic allies and the international community, including the United Nations, about the state of freedom of expression in the country. Korea is the world’s 15th largest economy, widely recognized as a consolidated democracy, and an important beacon of hope on the Korean peninsula, where it faces a repressive dictatorship in the North. It is thus particularly saddening to see evidence provided by a range of international organizations– Freedom House, Reporters without Borders, Amnesty International, OpenNet Initiative, United Nations Human Rights Committee, and UN Special Rapporteur on Freedom of Opinion and Expression—that South Korea has experienced a subtle erosion of freedom of expression.

We would like to remind you of the fact that many people around the world, deeply concerned about the fate of human rights and the freedom of expression in Korea, are closely watching the court proceeding in this case. Dr. Cho’s request for a clarification of the allegations concerning Mr. Ko’s permanent residency should not be viewed as an act of proclaiming false facts. Furthermore, the debate had not influenced the result of the election. In this regard, we genuinely hope that Seoul High Court will correct the trial court’s wrongful decision and that Dr. Cho can continue to work as the Superintendant of Education for Seoul Special Metropolitan City as mandated by the electorate. Thank you!

Respectfully,