21. Case on the Constitutionality of Using Water Cannon

[26-1(B) KCCR 588, 2011Hun-Ma815, June 26, 2014]

In this case, the Constitutional Court held that the constitutional complaint regarding the use of water cannon by the police superintendent of Seoul Yeongdeungpo Police Station on November 10, 2011 is dismissed for the lack of justiciable interests.

Introduction of Case

(1) The Korean Alliance against Korea-U.S. FTA held a rally against Korea-U.S. FTA in front of the Korea Development Bank building at Yeoeuido around 14:00 on November 10, 2011. However, the participants of the aforementioned rally attempted to enter the National Assembly building and the headquarter of Grand National Party, after occupying the four traffic lanes in front of Yeoeuido Culture Plaza and four traffic lanes in front of the Korea Development Bank, beyond the notified assembly place, which was sidewalk in front of the back gate of the Korea Development Bank, after the aforementioned rally was terminated around 15:30. The respondent deterred the participants from occupying the roads under the decision that the rally did not observe the notified assembly place and obstructed general traffics. During between 15:46 and 16:16, the respondent turned water cannon on the rally participants, including the complainants.

(2) Because of the use of water cannon, the complainant Park ○-Jin was injured for traumatic tympanic membrane perforation, and the complainant Lee ○-Sil was injured for concussion. The complainants filed this constitutional complaint on December 15, 2011, alleging that the use of water cannon infringed the basic rights of the complainants.

Subject Matter of Review

The subject matter of review is whether the use of water cannon around between 15:46 and 16:16 on November 10, 2011 (hereinafter, the ‘use of water cannon’) infringed the basic rights of the complainants.

Summary of Decision

The use of cannon was terminated, suggesting that the infringement on the basic rights of the complainants was also terminated. This case lacks the justiciable interests since remedies would not be provided even if this constitutional complaint is sustained.

According to Article 10 of the former Act on the Performance of Duties by Police Officers, Article 2 Item 4 of the Usage Standard of Police Equipment, Article 97 Section 2 Item 3 of the former Management Standard of Police Equipment, related provisions of Manual for Water Cannon and judgments of the Supreme Court, water cannon can be turned against an assembly or demonstration which causes direct and clear danger to interests of others or public safety and order, with the notice of specific grounds for dissolution. Therefore, the alleged infringement of the basic rights, which is a short-distance direct use of water cannon at places of assembly in this case, would not be repeated. Even if the use of water cannon violated the limits under the laws, it would be a matter to be determined by the ordinary court to specific fact findings: It is not a constitutional subject that should be decided by the Constitutional Court. Therefore, there are no exceptional justiciable interests for constitutional review

Summary of Dissenting Opinion by Three Justices

A. Issue of Justiciable Interests

The justiciable interest can be exceptionally sustained because use of water cannon at places of assembly or demonstration may be repeated

and there has been no constitutional review.

B. Principle of Statutory Reservation

Statutes should stipulate the significant substances on grounds of usage and standard for water cannon, a police equipment that may cause substantial danger to life and body of the people. Because the former Act on the Performance of Duties by Police Officers does not provide any provision, the usage of water cannon in this case violates the principle of statutory reservation.

C. Due Process

The use of water cannon in this case violates the principle of due process in that it did not follow the proceedings for dissolution order.

D. Freedom of Assembly

There were no active offences or violence or dangerous objects, except that the rally participants attempted to march to the National Assembly building with slogans, using a microphone and speaker, and pickets. Nonetheless, the respondent promptly turned on the water cannon: The respondent used a warning watering in mere 10 minutes right after the marching began, a dispersion watering for around 15 seconds, a curved watering for around 10 seconds, and three direct watering for around 14 minutes in total. The respondent intensively used direct watering that may cause serious injuries to life and body for the longest time. Direct watering of water cannon should be the last resort only when there is a direct and clear danger to interests of others or public safety and order because direct watering may cause serious effects, regardless of whether it was intentional or accidental. Because we cannot find any grounds to justify direct watering of water cannon in this case, the freedom of assembly was violated.