Controversy over the unconstitutionality of the ‘police car wall’ … is it the “last resort” Heonjae said?

On the 3rd, when a conservative group announced the opening of the festival, the area around Gwanghwamun Square in Jongno-gu, Seoul is surrounded by fences and a wall of cars. The police notified most of the ban on drive-throughs using vehicles reported by conservative groups, and only allowed demonstrations of 9 or fewer vehicles in Gangdong-gu approved by the administrative court. [뉴스1]

Controversy over unconstitutionality has not abated as police announced they will respond to the Hangul Day rally on the 9th after the Gaecheon Day rally on the 3rd. Police say the installation of the vehicular wall itself is not unconstitutional, but points out that it is a measure that violates the constitutional right to freedom of assembly and demonstration in the legal community.

Seoul Plaza, which had been blocked by a barricade, saying it was concerned about a violent demonstration at the ceremony of the late President Roh Moo-hyun’s ceremony, returned to the arms of citizens. [중앙포토]

The Constitutional Court had already determined that in 2011 the wall of the police car was unconstitutional. In May 2009, the police surrounded Seoul Plaza with police buses to prevent the late President Roh Moo-hyun’s condolences from holding illegal and violent demonstrations. The organizers of the protest alleged that the general right to freedom of action was violated due to the barricade and requested a trial on a constitutional complaint. At the time, the attorney in charge was Park Ju-min and a member of the Democratic Party.

The key was whether the act of restricting the passage of Seoul Plaza through a barrier violated the ‘prohibition of excess’. This means that the installation of the vehicular wall was fundamental in the situation at that time, but it was necessary to consider whether basic rights were minimally violated. The judgment of the Constitution is that detention is almost a ‘last resort’ that can only be taken in cases where there is an urgent, obvious and grave danger that cannot be avoided by prohibiting individual assembly or dissolution. He noted that even if there is a need to take all measures to avoid assembly, other means or methods should be considered, such as opening a passage at various locations in Seoul Square or releasing control at times when it is unlikely to produces an illegal or violent montage. Therefore, the constitution concluded that “the barrier violated the excess funding rule and violated the general right to freedom of action.”

The police say it is an inescapable measure to prevent infection by corona 19. To block contact, the whole had to be dissolved and there was no other effective means other than the barrier.

In the legal community, blocking the rally with various conditions to prevent the spread of Corona 19 is interpreted as an excessive measure determined by the constitution in the past. “I want to ask the police to read Article 21, paragraph 2 of the Constitution, which says: ‘Permits for meetings and associations are not allowed,” said Heo Young, a professor at Kyung Hee University Law School. I asked. Professor Heo emphasized that “constitutional precedents also go towards strengthening freedom of assembly” and emphasized that “the installation of this barrier clearly violates the principle of prohibition of excess.”

Some opinions question why measures to combat Corona 19 should only be the responsibility of the assembly. Seung Jae-hyun, a researcher at the Korea Criminal Policy Research Institute, said: “If the right to pursue the happiness of people with their families in an amusement park is important, freedom of assembly for political purposes is also a important right “.

Protesters trying to tear down the wall of the police car at the site of the protests against the general uprising of the people on November 14, 2015. [연합뉴스]

Some argue that since the Supreme Court legally ruled the car wall in 2017, the car wall in 2020 should be viewed differently as well. Former Justice Minister Cho Kook said on the 6th: “The decision of the Constitutional Constitution of 2011 and the decision of the Supreme Court that it was legal in 2017 were made on the basis of different circumstances. On the premise of another situation, it should be judged considering the quarantine wavelength of the Gwanghwamun assembly just before. “The Supreme Court ruling referred to by former Minister Cho refers to former KCTU chairman Han Sang -gyun, who was handed over to trial during the 2015 General Assembly of People’s Elections. In 2017, the Supreme Court said: “The moment protesters wielded tangible power before the police, the installation of police barriers and the operation of the civilian crossings were notably lost and cannot be assessed as illegal. ”

However, there are also refutations that a distinction must be made between the Supreme Court ruling and the Constitution ruling. A lawyer for the prosecution said: “It is not equally possible to see that the Supreme Court ruled that the action at that time was not illegal in light of the Assemblies and Demonstrations Law and that the Constitution was considered to violate freedom of assembly and manifestation of the Constitution “. Said.

Reporter Lee Ga-young [email protected]