집회 장소 규제 비판

Abstract

This thesis is aimed at critically evaluating place restrictions of the Assembly and Demonstration Act(ADA, hereinafter) on peaceful assemblies. For this purpose, I examined whether article 11 of the ADA regulating the place of assemblies is compatible with the obligations of the states to protect and promote freedom of peaceful assembly stipulated in various international human rights norms. While the main subject of this article is article 11 designating the perimeters of places such as courts, parliaments or other official buildings as areas where assemblies may not take place, Articles 8 and 12 are also studied insofar as they contribute to the suppression of the right to freedom of peaceful assemblies. The assessment of those provisions is carried out in accordance with international human rights standards, which are well summarized in such documents as General Comment No. 37 by Human Rights Committee (2020), Guidelines on Freedom of Peaceful Assembly by OSCE Office for Democratic Institutions and Human Rights (OSCE/ODIHR) (2010), and Guide on Article 11 of the Convention: Freedom of assembly and association by European Court of Human Rights (2021).
 In the course of the assessment, I could demonstrate, above all, that Article 11 of the ADA is contrary to the international human rights standards. First, it inverts the relationship between freedom and restrictions by imposing bans on the location of assemblies as the rule and then allowing exceptions. Second, Article 11, prohibiting assemblies near locations that should be considered as public places, runs counter to the international norm that any restrictions on assemblies in and around such places be specifically justified and narrowly circumscribed. Third, under Article 11, whether an assembly falls within the exceptions therein or not is left entirely to the discretion of the regulatory authorities, which would be against the principle of legality the core of which is predictability. Fourth and finally, Article 11, making the judgment on admissibility of assemblies near such places depend on who the organizer of the assembly is, constitutes a violation of the principle of non-discrimination.
 In short, the ADA, combining the prohibition of assemblies near major public institutions and other place restrictions, makes freedom of peaceful assembly nominal and meaningless. Therefore the ADA has no reason to exist. The ADA can contribute to freedom of peaceful assembly and democracy only by being abolished.