Case on Banning Assembly near Official Residence of the Prime Minister

[2015Hun-Ka28, 2016Hun-Ka5 (consolidated), June 28, 2018] * First Draft

In this case, the Constitutional Court held that both the provision of ‘the Assembly and Demonstration Act’ stating that any person holding any outdoor assembly or staging any demonstration anywhere within a 100-meter radius from the boundary of the official residence of the Prime Minister except for a parade shall be subject to criminal punishment, and the provision of the same Act requiring to punish any person who disobeys dispersion order against such outdoor assembly and demonstration violating the provision above, do not conform to the Constitution.

Background of the Case

(1) The petitioner of 2016Hun-Ka5, who is also the criminal defendant in the original case of 2015Hun-Ka28 (hereinafter referred to as the ‘petitioner’), was prosecuted for organizing a demonstration at a place 60 meters from the boundary of the official residence of the Prime Minister, where any outdoor assembly or demonstration is banned, and for disobeying a dispersion order.

(2) The petitioner, while his criminal trial was pending at a lower court, filed a motion to request a constitutional review of the part of the provision concerning ‘any person who disobeys dispersion order against any assembly or demonstration that violates Article 20 Section 1 Item 1 and Article 11 and Item 3’ of Article 20 Section 2 specified in Article 24 Item 5 under the Assembly and Demonstration Act, which provides the legal ground to impose punishment for disobeying the dispersion order against any outdoor assembly or demonstration waged near the official residence of the Prime Minister. The ordinary court accepted the petition on September 9, 2015, before requesting a constitutional review on the provision (2016Hun-Ka5) and also requested, sua sponte, a constitutional review on Article 11 Item 3 indicated in Article 23 Item 1 under the Act, according to which any person organizing an outdoor assembly or demonstration near the official residence of the Prime Minister shall be punished (2015Hun-Ka28).

Subject Matter of Review

The subject matter of review in this case is whether Article 11 Item 3 and the part of

Article 11 Item 3 indicated in Article 23 Item 1 (hereinafter collectively referred to as ‘Prohibited Places Provision’) of the ‘the Assembly and Demonstration Act’ (wholly amended by Act No. 8424 on May 11, 2007) and the part of ‘Article 20 Section 2’ from Article 24 Item 5 concerning ‘any assembly or demonstration that violates Article 11 Item 3’ (hereinafter referred to as ‘Disobeying Dispersion Order Provision,’ and collectively referred to as ‘Provisions at Issue’) violate the Constitution. The Provisions at issue read as follows.

Provisions at Issue

Assembly and Demonstration Act (wholly amended by Act No. 8424 on May 11, 2007)

Article 11 (Places Prohibited for Outdoor Assembly and Demonstration)

No person may hold any outdoor assembly or stage any demonstration anywhere within a 100-meter radius from the boundary of the following office buildings or residences:

3. The official residence of the Prime Minister: Provided, That the same shall not apply in cases of a parade or procession.

Article 23 (Penal Provisions)

Any person who violates the main sentence of Article 10 or Article 11, or who violates the ban as provided for in Article 12, shall be punished according to the following classification of offenders:

1. The organizer shall be punished by imprisonment for not more than one year, or by a fine not exceeding one million won;

Article 24 (Penal Provisions)

Any person who falls under any of the following subparagraphs shall be punished by imprisonment for not more than six months, a fine not exceeding 500,000 won, penal detention or minor fine:

5. A person who violates Article 16 (5), 17 (2), 18 (2) or 20 (2).

Summary of the Decision

1. Decision on the Prohibited Places Provision

The Prime Minister serves as an Acting President, aid to the President and the second highest ranking official in the Executive Branch. Given the position of the Prime Minister prescribed in the Constitution, the legislative purpose of the Prohibited Places Provision to protect the function and peace of the official residence as both living space and office is justifiable. Also, prohibiting any outdoor assembly or demonstration except for a parade near the official residence of the Prime Minister is an appropriate measure to serve the legislative purpose.

Since banning an assembly shall be the last resort that can be considered after all other options that less restrict the freedom of assembly are exhausted, an outdoor assembly and/or demonstration shall be permitted as an exception if the general presumption that such activities near the Prime Minister’s official residence pose direct threats to its function and peace can possibly be denied by specific circumstances. The Prohibited Places Provision prevents all outdoor assemblies and/or demonstrations without exception including ‘small ones’ and ‘those not organized against the Prime Minister,’ which would least likely to directly undermine the function and peace of the official residency. Therefore, it is an extreme restriction that goes beyond the scope necessary to serve the legislative purpose.

The Prohibited Places Provision allows a ‘parade’ near the official residence. However, the concept of the ‘parade’ under the Act is ambiguous, thus it is difficult to expect the relaxing effect on the restriction of basic rights. The Act also provides for various restrictions depending on the nature and condition of the assembly besides the Prohibited Places Provision. Accordingly, even when an outdoor assembly and/or demonstration near the official residence are exceptionally permitted, the function and peace of the official residence can be sufficiently maintained.

In light of the above, the Prohibited Places Provision imposes indiscriminate and total ban on assemblies including those which do not need restriction or can be given exceptional permission beyond the minimum extent necessary to fulfill its legislative purpose. Therefore, it violates the principle of minimum restriction.

When comparing the purpose of ensuring the function and peace of the official

residence with the Prohibited Places Provision with the level of restriction it imposes on the freedom of assembly, it cannot be claimed that the public interest to be achieved by the Provision outweighs the restricted freedom of assembly. Thus, the Prohibited Places Provision violates the balance of interests as well.

Consequently, the Provision infringes upon the freedom of assembly by violating the principle against excessive restriction.

2. Decision on the Disobeying Dispersion Order Provision

According to the Disobeying Dispersion Order Provision, violating the Prohibited Places Provision and disobeying a dispersion order against any outdoor assembly and/or demonstration near the official residence of the Prime Minister may lead to criminal punishment. As stated earlier, since the Prohibited Places Provision infringes upon the freedom of assembly by violating the principle against excessive restriction, the Disobeying Dispersion Order Provision, of which the Prohibited Places Provision is a component, also infringes upon the freedom of assembly. Thus, the Disobeying Dispersion Order Provision violates the Constitution.

3. Decision of Nonconformity to the Constitution

Unconstitutionality of the Provisions at Issue lies in the fact that it prohibits assemblies near the Prime Minister’s official residence indiscriminately and totally, which goes beyond the scope necessary to protect the function and peace of the official residence. In other words, banning outdoor assemblies and/or demonstrations near the official residence of the Prime Minister has both constitutional and unconstitutional parts at the same time.

In this regard, it should be within the discretion of the legislators to decide which one of such activities should be permitted as an exception.

Therefore, the Court delivers a decision of nonconformity to the Constitution and orders continued application of the Provisions at Issue until the legislature amends them by December 31, 2019. If amendment is not made until such date, the Provisions at Issue shall lose effect as of January 1, 2020.

*This translation is provisional and subject to revision.