“Preventing one-person demonstrations in front of embassies violates freedom of expression”
NHRC recommends human rights training to Jongro Police Station and other officials related to demonstrations (04-01-2003)
The National Human Rights Commission (NHRC) recommended human rights training be given to those accused of "violating physical freedom and freedom of expression as protected by the Constitution" by Yu (male, 43) who filed a petition with the NHRC in September 2002. Yu claimed he was restrained by police guards from conducting a one-person demonstration in front of the US embassy with a picket that read, "Stop building the new US embassy and apartments at the site of Duksu Palace" in August 2002. The petition was filed against the chief of the Jongro Police Station, Kim, who was in charge of guarding the embassy; director of the security department of the same police station, Whang; and Inspector Na of the 1st riot police unit of the Seoul District Police Department.
The results of the NHRC investigation show that Petitioner Yu was conducting a peaceful demonstration at 12:15 pm on 30 August 2002, while wearing casual clothes and standing on the sidewalk about 4-5 meters south of the front gate of the US Embassy with a picket (90cm×60cm). Then, 4 or 5 riot policemen patrolling the area demanded that Yu move "to a south corner 15 meters away since there is concern that your demonstration may obstruct US embassy operations and pedestrians," but Yu refused.
Inspector Na, who was in charge of the riot patrolling unit, repeatedly asked Yu to move his demonstration saying, "we cannot allow a one-person demonstration in front of the US Embassy," in accordance to Article 22 of the Vienna Conventions on Consular Relations and Optional Protocols (hereafter, Vienna Conventions). When Yu did not comply, Na ordered many riot police to shove Yu toward the south corner by using their shields, and as Yu tried to return to the US Embassy, about 10 riot police restrained him.
Relating to prevention of one-person demonstrations, the chief of Jongro Police Station, who is in charge of guarding the US Embassy claimed a demonstrator with a picket would obstruct the road because the sidewalk in front of the embassy"s main gate is only 2.5 meters wide with heavy pedestrian traffic. He also maintained there is a constant danger of anti-American demonstrators trespassing or throwing objects such as Molotov cocktails, therefore his decision to move Yu to a south corner was justified.
Moreover, the Jongro Police Chief stated that their decision was legal according to Article 29 and Article 22, Clause 2 of the Vienna Conventions and the Assembly and Demonstration Act(domestic law).
While investigating this case, the NHRC took diverse views and angles into consideration, such as an opinion from the Ministry of Foreign Affairs and Trade, a court decision on one-person demonstrations and similar cases in other countries. The results of the investigation are as follows:
First, opposite to the respondent’s claim, the sidewalk in front of the US Embassy where the petitioner conducted one-person demonstration usually has low pedestrian traffic and a high density of police cars and riot police patrolling unit members. Therefore, the petitioners" demonstration was not obstructing pedestrians and no further step was necessary for smooth traffic.
Second, it is necessary to strengthen patrols around the embassy because there is a constant danger of anti-American demonstrators throwing Molotov cocktails. However, the petitioner was standing quietly by himself holding a picket with an obvious demonstration demand written on it, and did not cause harm or damage to the embassy.
Third, one-person demonstrations do not comply with the legal definition of "demonstration," which requires multiple people gathered at a location with a similar demand, as stated in the Assembly and Demonstration Act. Moreover, the petitioner Yu is not subject to the Punishment of Minor Offences Act because his conduct was not repugnant to pedestrians.
Fourth, the Vienna Conventions does not have stipulations about one-person demonstrations. Also, the accused failed to show how Yu"s demonstration caused a tangible threat to the embassy.
Fifth, the demonstration site is not territory of the US embassy, nor did Yu trespass. Hence, the NHRC concluded that the petitioner"s one-person demonstration did not violate Korean law or the Vienna Conventions and should not be subject to police restraint.
Sixth, the NHRC examined the fact that Yu was moved away to a south corner 15 meters away from the front gate of the embassy by the police. One can claim that since Yu was still able to demonstrate in public at a different site, his freedom of expression was not violated. However, the freedom of expression is a prerequisite of democracy, and is recognized as superior to other freedoms. Hence, it should be fully guaranteed. Accordingly, if the time, location and method of Yu"s demonstration was forcefully modified or changed by authorities when it did not violate Korean law or Vienna Conventions, then his right to freedom of expression, guaranteed by Article 21 of the Constitution, was violated.
