집회의 자유의 제한에 대한 유럽인권재판소의 일반원칙

Abstract

Restrictions on freedom of assembly should be proportional and the least intrusive means to achieve a legitimate purpose should be given priority. Freedom of assembly should be enjoyed as freely as possible. Freedom of political assembly in particular should be strongly protected. Freedom of assembly also has the meaning of communicating information with each other and forming mutual intentions by allowing others to enter the public sphere. It also has the function of protecting minorities and opposition parties that cannot be represented by the general public's will. However, freedom of assembly presupposes a duty of acceptance, such as having a problem with the right to move and colliding with the interests of others.
 The state has an active obligation to actively protect peaceful assembly and this active obligation requires the state to protect against individuals or groups who attempt to interfere or block participants in peaceful assembly. The state is also obligated to guarantee the basic rights of those who did not participate in the assembly.
 The right to the freedom of peaceful assembly under the European Convention on Human Rights is also a fundamental right of democratic society. Among the justification requirements for the European Court of Human Rights' restrictions on freedom of assembly, ‘necessary in a democratic society’ is a matter of profit sentence as a review based on the principle of proportion. Therefore, it can be seen that the European Court of Human Rights examined whether the basis for the judgment was appropriate and sufficient for the claimant's claim for arrest and conviction for administrative crimes. The The requirement of ‘necessary in a democratic society’ is a ‘contextual approach’, which requires careful argument in that it is possible to make an appropriate judgment only after considering the overall contents such as content, context, and proportionality of sentence along with the submitted evidence.
 Freedom of assembly is a basic right that is important for realizing democracy and should be guaranteed as much as possible because various intentions of the people are expressed. In the proportionality examination of whether restrictions on freedom of assembly are necessary for a democratic society, as shown in the case of Navalnyy and Gunko v. Russia, European Court of Human Rights should examine whether these restrictions are in response to strong social needs, and whether they are appropriate and sufficient.