The Constitutional Court on the 26th delivered a decision of constitutional nonconformity on the provision of the Assembly and Demonstration Act that mandates criminal punishment without exception for organizing an outdoor assembly without filing a prior report, with the justices split 4 (constitutional nonconformity) to 4 (unconstitutional) to 1 (constitutional).
The Constitutional Court on the 26th ruled that Article 22, Paragraph 2 of the Assembly and Demonstration Act, which uniformly requires criminal punishment for violating the obligation to file a prior report for outdoor assemblies, is not in conformity with the Constitution because it infringes on the freedom of assembly, in a constitutional complaint case filed by Ahn (35), former president of the student council at Dongguk University.
The provision must be amended by the National Assembly by Aug. 31, 2027. If it is not amended, the provision will lose effect starting on Sept. 1 next year. A constitutional nonconformity decision means the law violates the Constitution but its effect is temporarily maintained to avoid social confusion that would result from immediate invalidation.
Earlier, Ahn held a news conference on Dec. 16, 2016, in front of the then Saenuri Party (People Power Party) headquarters in Yeouido, Yeongdeungpo-gu, Seoul, calling for the resignation of then leader Lee Jung-hyun. A news conference is not subject to the Assembly and Demonstration Act and does not require prior reporting. Police determined that they held an assembly rather than a news conference, citing the use of broadcasting equipment to chant slogans. Ahn was indicted on charges of leading an unreported assembly.
During the trial, Ahn argued that it was a news conference, not an assembly, but the claim was not accepted. In May 2020, the Supreme Court found that Ahn held an outdoor assembly subject to prior reporting.
In the remand trial, Ahn moved for a constitutional review, arguing that the provisions imposing the obligation to file a prior report for outdoor assemblies and the punishment provisions under the Assembly and Demonstration Act violate the principles of clarity and prohibition of excessive regulation, infringing on the freedom of assembly, but the Seoul Southern District Court rejected the motion. Ahn then filed a constitutional complaint.
Four justices (Kim Sang-hwan, Kim Hyung-du, Jeong Jeong-mi, Oh Young-joon) said of the provision punishing the organization of unreported assemblies, "It is inevitable as a matter of legislative technique to impose an administrative regulation by comprehensively imposing a prior reporting obligation on various kinds of outdoor assemblies," and added, "The unconstitutionality of the punishment provision lies in having no exception clause that excludes from punishment cases where the risk is objectively recognized as very low."
Two justices who issued a simple unconstitutional opinion (Jeong Hyeong-sik, Jeong Gye-seon) said, "Compliance with the reporting obligation for assemblies can be sufficiently secured through administrative sanctions." Two justices who also issued a simple unconstitutional opinion (Kim Bok-hyung, Ma Eun-hyeok) said, "Sanctioning noncompliance with the reporting obligation uniformly with criminal penalties infringes on the freedom of assembly."
Justice Cho Han-chang, who dissented, said, "Organizing an unreported outdoor assembly is highly likely to pose a risk to public peace and order," adding, "The punishment provision does not violate the principle of equality."
The Constitutional Court, by a 7-2 vote, upheld Article 6, Paragraph 1 of the Assembly and Demonstration Act, which imposes the obligation to file a prior report for outdoor assemblies. The court has repeatedly found the reporting provision constitutional, including in 2009, and maintained that stance this time.
The court said, "It cannot be considered excessive to require a prior report 48 hours before an outdoor assembly is held." Two justices who dissented (Kim Bok-hyung, Ma Eun-hyeok) said, "Even if an assembly later turns into a violent assembly, it can be sufficiently sanctioned under the Assembly and Demonstration Act and criminal law."