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Recommendation to improve notices on prohibition of assembly and measures to prevent demonstrations [2008] KRNHRC 18 (1 January 2008)

Since its establishment, the Commission has received many complaints regarding
assemblies and demonstrations and has responded accordingly to each complaint. Freedom
of assembly is both an expression of individuality and an essential element of democracy.
It is among the fundamental rights enshrined in the Constitution and one of the
requirements for an open and diverse society in which various opinions are tolerated.
Therefore, at assemblies the police should act proportionately without violating the
fundamental right to assembly. It should also cooperate with the participants to make
assemblies as peaceful as possible.

In order to determine whether Notices on Assembly Prohibition and measures to
prevent demonstrators from gathering in Seoul were in violation of human rights, the
Commission held a forum with the theme of "Problems with Notices on Assembly
Prohibition and Measures to Improve the Current Notice System" on November 7, 2006,
and held a hearing on "Notices on Assembly Prohibition and Preventive Measures" to
listen to opinions of experts in each field. Furthermore, it collected statistical data on
demonstrations and 582 Notices on Assembly Prohibition from police stations and
analyzed the data and notices for about two years.

After the investigation, the Commission found that Notices on Assembly Prohibition
and measures to prevent demonstrations were too excessive and in violation of human
rights. Therefore, the Commission recommended that the Chairman of the National
Assembly and the Minister of Justice abolish or revise laws related to Notices on Assembly
Prohibition and the Commissioner-General of the Korea National Police Agency improve
police practices to ensure that the demonstrators' human rights are not violated, even before
relevant laws are revised. The recommendations are as follows:
The provision to prohibit assemblies to be held in the place where a party already
reported to hold an assembly that day (Article 8.2 of the Assembly and Demonstration Act)
is being misused to deliberately prevent assemblies reported later. Even if two or more
parties plan to assemble at the same place at conflicting times, the police is capable of
controlling disruptive activities using other measures such as Notices on Assembly
Limitation. Therefore, the Commission recommends that Article 8.2 of the Assembly and
Demonstration Act be abolished.

Considering the importance of the freedom of assembly and demonstration, the
provision on Notices on Assembly Prohibition for road traffic (not Notices on Assembly
Limitation) (Article 22 of the Assembly and Demonstration Act), which prohibits
assemblies or demonstrations from the beginning in the name of preventing traffic
congestion, is too excessive. The police can effectively control activities disrupting order
using other measures such as Notices on Assembly Limitation. Therefore, the Commission
recommends that Article 12 of the Assembly and Demonstration Act be abolished.
The police takes advantage of the provision to prohibit assemblies and
demonstrations in the name of maintaining public order (Article 8.1 and Article 5.1.2 of
the Assembly and Demonstration Act) by issuing Notices on Assembly Prohibition to
prevent people, who have a previous record of organizing illegal demonstrations, from
holding an assembly or demonstration again. The Commission recommends that the police
make a decision on whether a demonstration or assembly poses a threat to society based at
the time of the demonstration or assembly, not in the past.
However, a minority opinion was that issuing notices on assembly prohibition and
enforcing measures to prevent demonstrations were necessary, considering that a lot of
illegal or violent assemblies and demonstrations were held in Korea.