The right to freedom of peaceful assembly has long been recognized as fundamental right and an essential component of democracy. However, considering its nature, the right to freedom of peaceful assembly temporarily denies the established order of law with democratic legality. The right to assembly is to realize legitimate democracy while it is also to collectively express, promote, pursue and defend common interests. For the reason, the right to freedom should always be guaranteed in proportion to “public security and peace” in a democratic society. At the same time, the legal vehicles to defend the liberty and democratic order will be maintained its legality and wound win support from the general public as means of execution of state’s duties only when they are used to maximize the freedom of people. This study reviews the scope of the right to freedom of assembly and limits to execution of justice to govern it so that it could contribute to put an end to back and forth debate on protecting the right and justification of legal vehicles of the state.
Chapter Ⅱ presents theoretical definition of the right to freedom of assembly; the right to freedom of association is recognized as a human right, a political right and a civil liberty. Right to participation in political decision- making in the context of the right to freedom of assembly does not mean the right to ratification held by either the government or the National Assembly but the one to take part in forming opinions. In other words, the right to participation ensures that people’s voice should be reflected in policies and decisions made by authorities. To ensure the right of freedom of assembly, it is required to set up a window for sounding their voices about politics and institution. However, the window should not be framed in strict laws. The Assembly and Demonstration Act guarantees ‘peaceful assembly’ as well as ‘assembly without arms.’ Simply put, the Act allows people to deny temporarily order of law for the purpose of speaking what they want and at the same time serve as a catalyst for making citizens respect other’s free expression of their mind and freedom of action by complying the act.
Chapter Ⅲ provides outcomes of empirical research which was conducted to understand the current status of rallies and law enforcement and practices to govern them in Korea. As the starting point, we collected data related to rallies and protests among official statistics and then sorted out them based on analysis of time series. The research showed that the total number of participants in rallies and protests decreased and the average number of participants in an assembly also dropped to half from 352 persons in 1991 to 177 in 2014. With decrease in the number of people taking to the streets, the number of violent protests and that of police men who were gotten injuries while they were mobilized to manage rallies were down. Despite the fact that the number of violent or illegal protests dropped dramatically compared to the past, the police still mobilizes the force on a large scale to manage rallies of people. Meanwhile, the rate of people who were indicted had steadily declined since the 1980s, reaching 20-40% in the 1990s. However, downward trend was reversed. The rate of prosecution had risen since the 2000s, topping 76.7% in 2008. Following the official statistics according to the time series, we started DB prototyping (total 14.379 events) of reports on 'Today's protest demonstration' on the website of each local police office from January 1, 2015 to December 31, 2015. Then we analyzed how long protests did last by using data of starting and finishing time of protests.
The largest number of assemblies started between 8 to 9 am, the total number of rallies held was 1,996, amount to 13.88% while more than one out of ten (13.88%) of rallies finished between 6 to 7am, the total number was 1,461. Those numbers implied that large number of assemblies were either held or finished during rush hours when people are busy to commute, go to school, or to do other activities. In addition, absence of law to govern or manage assemblies continued after the Constitutional Court decided that prohibition of nighttime outdoor rallies was unconstitutional in 2009. The number of demonstrations held between the midnight to 6 am was 211 (1.47%) while 349 (2.43%) assemblies finished during the time period.
Chapter Ⅳ analyzes outcomes of a survey on the general public's perception of the right to freedom of assembly and illegal assemblies. The survey was conducted based on the method of proportionate quota sampling under which the total of 1,017 subjects were proportionately extracted by region they lived, sex and age. The online survey was conducted for a week from August 19 to 26, 2016 and it might have a margin of error of plus or minus 3.1 percent at a 95 percent level of confidence. Questions of the survey were categorized into 5 parts. The first part was about general questions on the freedom of assembly and respondent’s recognition and thoughts on the right. Then, for the second part of inquiries, we presented some provisions of the Assembly and Demonstration Act which had been at the center of controversies and asked questionaries opinion on necessity of retaining them on the act. The respondents were asked about their opinion on prerequisite for prior notice on an out-or-door assembly or rally and 8 provisions which defined about restrictions and ban on rally, for example, where or when an assembly should not be held. The next part of questions was about so-called ‘illegal or unlawful assembly.’ Under the current system on dealing with assembly, an unlawful assembly meant that it was not notified to the police with or without intention or participants of it did not keep requirements. The fourth category of the question dealt with respondent’s mind about responses to assemblies taken by the police. Respondent were asked to rate on a five-point scale(Extremely - Very - Moderately - Slightly - Not at all). Lastly, we asked the questionnaires to answer about whether they experience any injury, damage or inconvenience caused by taking part in an assembly.
The survey showed that experience of taking part in rallies or being gotten any damages heavily influence on opinions on to what extent the right to freedom of assembly should be allowed and necessity for necessity of implementing the provisions of the assembly law. However, regardless of the experience of participating in protests or of victimization, the majority responded that "the right to freedom of assembly is a citizen’s fundamental right and must be guaranteed." Their answer could be interpreted that they recognized and well understood the meaning and the significance of the right. On the other hand, respondents who participated in the survey found that, despite the controversy over the constitutionality of individual articles of the Act, they thought the act to manage assembly was necessary. Nevertheless, more than half of the respondents disagree with justification of prohibition of holding an assembly in specific places, for example, within 100 meters radius from the boundaries of the National Assembly building on reasons for possible traffic congestion or inconvenience of passer-byes and vehicles. Respondent showed attitude of supporting rallies about questions on ‘unlawful assembly.’ Under the current conditions, unlawful or illegal assembly was commonly called any assembly which was not notified to the police with or without intention or participants of it violated banns or requirements. Large number of respondents answered that so-called unlawful assembly occurred not because the law or institutions governing assemblies was not strong enough or lack of people’s law-abiding spirit. Rather what they pointed out as caused of unlawful rallies were the government excessive restrictions on ban and lack of opportunities or place for people to legitimately raise their voices. While they acknowledged that there were inconveniences or difficulties caused by illegal protests, but they took a flexible and inclusive position that they could tolerate them if they proceeded in a peaceful manner.
With results of the survey, it may be said that the level of people’s awareness of the right to freedom of assembly was high, but, it was concerned that the views of the state agencies dealing with rallies and the way of responding to them did not keep up with people’s expectation. Around half of the respondents said that it was not desirable or not desirable at all to take photographs or video recordings of people to identify participants who took to the streets. They also showed strong opposition to police’s tactics during assemblies, for example, setting up bus barricades near the space which was notified to the police as a place of assembly. In addition, it was not desirable to restrict the notification of an assembly based on the reason that the organizer of the assembly had the history of participating in unlawful rallies. Meanwhile, they answered that it might be right to indict those who used violence and the government should claim compensations for damages against organizers with responsibility of holding an assembly in a peaceful manner.
Chapter Ⅴ addresses legal frameworks and legislations of other nations related to managing rallies to compare to those of Korea. Since the late 19’s century, the U.S clarified the fact that the right to freedom of assembly is not an absolute fundamental right and publicized requirements that organizers should notice an assembly in advance to authorities. To balance between public interests and the right to be guaranteed, the U.S approves constitutionality of prior notification of rally and now large number of state governments also require it following the federal government. If authorities do not allow people to take to streets peacefully without any risk of being turned into violent or undermining public order, it is violation of freedom of expression that is ensured by the Constitution. Without justifiable grounds authorities are attempt to ban an assembly, the court shall issue an order to them to withdraw their ban. In the U.S, there are various types of restrictions on rallies besides the prior notification, but what we should take note is that the purpose of putting those restrictions in place is not to strictly prevent any risk of a rally being turned into violent but to expand the freedom of assembly further by getting rid of concerns on disruption of public order by rallies. Putting appropriate sanctions on violation of requirements is to prevent offences of criminal law from being used as evidence of unlawful acts during rallies.
In the U.K, it is very important to strike a balance between guaranteing the right to freedom of assembly and keeping public order in the modern age. In this context, the '1986 Public Order Act' prescribes a 'preliminary notification system' for assemblies in public spaces. However, in the case of public meetings, there is still no need for prior notification, and in the case of public rallies, the obligation to report in advance to authorities is exempted if it is customary or customary held. In addition, even if it is impossible to require prior notification, for example, any political decision by the government or authorities makes people gather without any prior plan in a place to raise their voice against it, they are allowed to march without prior notification under the act. The British Public Order Act specifies grounds for police intervention by listing the types of violations related to rallies or marches as well as sanctions the police could apply to participants or an assembly itself. Police may impose conditions limiting the freedom of assembly and rally based on law if there is reasonable grounds that the rally may pose a threat to public safety. However, it is understood that the imposition of these conditions is intended to expand further freedom of assembly like the United States.
In France, laws or legislations basically make distinctions in definition of assembly and protest. First, the right to freedom of assembly is enshrined in ‘Act on Freedom of Assembly.’ It should be noted that prior notification or prior approval of an assembly, in principle, is not required. The act provides at the least restrictions on rallies so as to prevent the right to freedom of assembly from being abused by people. On the other hand, France recognizes protests have higher risks of posing threats to public order compared to peaceful rallies. However, there is an exception that those traditionally repeated on an annual basis in accordance with local customs are not required to notify authorities in advance. The authorities that received the notification must immediately issue a receipt of prior notification. This is a provision to prevent the system of prior notification from being misused as an approval system as the de facto authorization method by delaying the receipt. In addition, the right to freedom of assembly and demonstration may be restricted for the needs of the democratic society listed in Article 11 (2) of the Public Order or the European Convention on Human Rights, but only after considering balance between the right and public interests. Therefore, prohibition or attachment of conditions might be justified only when there is no practical option of sanctions to be put in place.
In Japan, since 1948, local governments had started to establish the so-called 'Public Ordinance', which was aimed at managing gatherings, marches, protests, rallies in a collective manner in order to maintain public order. The contents of ordinance are slightly different depending on local governments, in general, they can be divided into two categories: one is permission system and the other is notification system. In particular, in locals where authorities adopt the permission system, the issue of constitutionality in relation to the freedom of expression raised (Article 21, Paragraph 1 of the Japanese Constitution) from the early stage. On the issues of violation of freedom of express, the Supreme Court of Japan decided that it is not unconstitutional if the local government restricts the right to freedom of assembly under the rational and clear criteria, for example, in a case where it is foreseen that an obvious imminent risk of public safety will arise. However, there is no obligation to notify a plan of an assembly, in the case of general customary events, election campaigns, school excursions, events for academic, sports, entertainment, commercial purposes, and public events. A police officer who receives a notification may impose the minimum necessary conditions to eliminate or prevent any risk of possibility of causing direct and immediate danger to public safety.
In Germany, rallies and demonstrations are, in principle, free, but the Act on Assembly and Demonstration restricts certain types of outdoor rallies to some extent. The German version of assembly and demonstration act is very similar to that of Korean. It specifies when and what types of rallies or protests should be allowed or banned. At the same time, it provides for the various obligations to be observed in order to harmonize the freedom of assembly and demonstration and the public order for the purpose of keep balance between maintaining public order and safety and guaranteeing the right to freedom of assembly. First of all, Article 14 of the act requires that those who intend to host open-air rallies or demonstration must notify competent authorities of the planned assembly at least 48 hours before it is held in the case of when people accidently take to the streets and gather without a plan or labor dispute, the duty of prior notification does not be applied. Germany does not use some factors as grounds for determining unlawfulness or illegality, for instance, failure of notifying an assembly or rally in advance, acts of going beyond the limits that the organizers reported to authorities, violation of what participants should observe and etc. Restrictions on the freedom of assembly and demonstration are justified only when there may directly or immediate dangers or risks to the safety and order of the public. For those reasons, it is necessary to judge the actual illegal on the basis of the proportionality principle.
Chapter Ⅵ provides analysis of practices of authorities and decisions by the Constitutional Court relating to assemblies and rallies, and then provides several policy recommendations based on outcomes of the survey and research. Article 21 (2) of the Constitution technically bans on prior approval of an assembly, stating “All citizens shall enjoy the freedom of speech and of the press and the freedom of assembly and of association.” On the provision of the Constitution, the institution of prior notification should not be misused as prior permission one.
The main purpose of imposing conditions on an assembly or demonstration is to guarantee and expand the right to the freedom of assembly further while minimizing concerns about public order disruption. Authorities should ban any assembly or rally only when there is no other means or option to maintain public order or protect people and the necessity of protecting the public order clearly outweighs ensuring the right to freedom of assembly. Restricting free assemblies or rallies for reasons of traffic congestions should be concretely and carefully carried out only when it is reasonably believed that the assembly may cause a 'serious traffic inconvenience' to the extent that city functions are paralyzed. The right to freedom of assembly must be ensured if those probable causes are not objectively confirmed. Therefor, participants should not be punished for offenses of prohibition and breach of conditions based on perfunctory provisions or law.
Article 37 (2) of the Constitution provides “the freedoms and rights of citizens may be restricted by Act only when necessary for national security, the maintenance of law and order, or for public welfare. Even when such restriction is imposed, no essential aspect of the freedom or right shall be violated”. Under the article, it is required to legislate a law to govern police activities of taking pictures or recoding video of participants in an assembly so that those activities really serve to the purpose of ensuring peaceful assembly and demonstration. In addition, the legislation should clearly specify means and authorities to oversee taking picture or video of participants and using electronic devices for the purpose. It is true that the request for communications data and data confirming whether the user really communicated at a specific time and place has the potential to infringe the confidentiality of the communication and the privacy. At the same time, those requests by law enforcement agencies for investigation are highly likely to be misused as a means of control. For these reasons, usage of pictures or video clips should be limited to investigation for a specific crime. Also, even if an peaceful assembly becomes violent and unlawful one due to unexpected situation that participants of the assembly are not able to control, participants should not be sentenced a higher punishment for specific reasons, for example, wearing a mask.
It could also excessively constrict the right to freedom of assembly to apply the offence of traffic disruption to violation of the Act on Assembly and Demonstration. Even when there would be certain conditions of circumstances which would not preclude the unlawfulness of act which is presumed as violating the act on assembly and demonstration, elements of offence of traffic violation and legal responsibility should be confirmed. In particular, it would be difficult for a participant of an assembly to recognize that the rally in which he or she participates goes beyond the scope which is stated in the prior notification. If participants are not able to recognize how far the rally goes beyond the scope, they should be exempted or excluded from legal responsibility of the intent to interfere with the general traffic.
As the disperse order on an assembly is a last resort for dealing with one without prior notification or going beyond the scope it reported in advance, it is not possible for authorities to issue the order unless there is a direct or immediate threat to public order and safety even some types of perfunctory offences. The offence of violation of disperse order is only justified on the basis of the legality of the order of disperse. In addition, violation of legal procedures or provisions should not be used as evidence of determining whether the subject commits a practical offences. Lastly, the use of authorized force to disperse a rally can be justified if there is a direct or immediate threat to the public order and safety. Even in this case, use of authorized force should be used limited to the very least level and it should not be misused as a cause of excessive restrictions to right to life and personal liberty.