Case on the Rejection of Overlapping Reports to Hold Assemblies

[20-1(B) KCCR 305, 2007Hun-Ma712, May 29, 2008]

A. Background of the Case

This case held that the police’s rejection of all reports simultaneously received to hold an assembly at the same time and place violates the Constitution by infringing upon the freedom of assembly.

The complainants filed a report with the police authority to hold a rally near Samsung Main Building at Taepyeong-ro, Seoul. At nearly the same time, Samsung employees who were seeking to ban the above rally filed a report to rally at the same time and place as the complainants. The police rejected both reports, citing potential conflicts between protesters. The rejection was made nine times in total based on the same ground. The complainants claimed that such rejection of reports (hereinafter referred to as the “Instant Case”) infringed upon their right to assembly, etc. and filed a constitutional complaint.

B. Summary of the Decision

The Constitutional Court held that the Instant Case violates the complainants’ freedom of assembly, for the following reasons.

Restrictions on freedom of assembly can only be imposed by law. A government agency responsible for the enforcement of law must exercise its best efforts to establish the order of receipt in accordance with legitimate procedures, when dealing with the affairs concerning reports to hold an assembly. The agency thereafter must notify the prohibition or restriction of the assemblies that have been received later in accordance with the Assembly and Demonstration Act. If it is allowed, without legitimate grounds, to ban all outdoor assemblies that overlap with other rallies scheduled at the same time and place only on account of difficulties in confirming the order of receipt, Article 21 Sections 1 and 2 of the Constitution that guarantee freedom of assembly and prohibit a permit system for assembly would be endangered. Therefore, the Instant Case groundlessly infringes upon the complainants’ right to assembly.

Justice Lee Dong-Heub, on the other hand, filed a dissenting opinion for the following reasons. If a report to hold an assembly has been legitimately filed, it acquires full force and effect. Even if the report is rejected afterwards, such rejection cannot have any legal effect on the validity of the report that has already taken effect. In this regard, the Instant Case does not fall within the

“exercise of administrative action that is likely to infringe upon the basic rights of the people.”

Justice Cho Dae-Hyen also dissented on grounds that the Instant Case falls under notification of the prohibition of an assembly as defined in the Assembly and Demonstration Act, which is a system necessary and appropriate for maintaining order in an outdoor assembly. Therefore, the Instant Case neither violates the Constitution, nor infringes upon the basic rights of the complainants.

C. Aftermath of the Case

The Hankyoreh on May 30, 2008, opined that the Constitutional Court intervened to curb police practices of arbitrary restrictions to hold an assembly. This case involved the practice of so-called “ghost rallies” wherein only a report to hold a rally is filed, with no rally actually taking place, to block the assemblies of individuals or organizations that oppose its own claims, and the practice of “competing rallies” held between conservative and progressive activist groups.

After this decision, on January 27, 2016, the National Assembly amended the Assembly and Demonstration Act by Act No. 13834 to provide for the duty to submit a cancellation report, 24 hours before the scheduled time for an assembly, if the assembly was not to be held (Article 6 Section 3). A penal provision was also established to punish violators of the above provision by a fine for negligence not exceeding one million won (Article 26 Section 1). The Act also added a provision that, if two or more assemblies or demonstrations whose objectives are deemed contradictory are scheduled to be held at the same time and place, the head of the competent police authority must endeavor to ensure that the relevant assemblies take place in a peaceful way without hindering each other, by recommending each assembly or demonstration to use different time slots or spots (Article 8 Section 2).