(for the shortened version, please see post below)
G20 Summit Manuals for Foreign Activists
The Constitution and the Criminal Procedure Law guarantee the freedom of assembly and human rights of civilians from undue compulsion by police and investigation. However, the Assembly and Demonstration Act and the Special Law for a Secure G20 Summit limit the freedom of assembly and demonstration by allowing police to disperse crowds and arrest people who participate in demonstrations. This document will explain the Assembly codes of Korea and situations that may arise during demonstrations.
1. Contents of Assembly Codes and the Special Law for a Secure G20 Summit
A. Assemblies and Demonstrations Act
a. The definition of assembly and demonstration under the Assemblies and Demonstrations Act is as follows:
-The term “outdoor assembly” means an assembly in a place that has no ceilings or is in the open air with none of its four sides enclosed.
-The term “demonstration” means an act by a group of persons associated under common objectives parading along, or displaying their presence and/or vigorous determination in, public places available for the free passage of the general public, such as roads, plazas, parks, etc., with the aim of exerting influence on the opinions of many unspecified persons or with the aim of attracting attention.
-There are no criteria for judgment deciding whether something is an assembly or not. If there is someone shouting a specific slogan and picketing with signs at a press conference, then it will be considered an assembly and consequently, the individual will be penalized.
b. Extensive prohibition and limitations of assembly
-Disregarding constitutional codes, the Assemblies and Demonstrations Act institutes a mandatory permit system for assembly and further limits the freedom of assembly and demonstration by enacting various punishment regulations.
- No one shall hold any assembly, or stage any demonstration, which falls under the following definition:
“An assembly or demonstration which clearly poses a direct threat to public peace and order by inciting collective violence, threats, destruction, arson, etc.”
-Clause 1, Article 5 Ban of Assemblies and Demonstrations
Based on this article, the organizer of the assembly will take responsibility for any damaged articles or violence caused by even accidental physical encounters. Additional limitations include the following:
Ban on outdoor assemblies during nighttime:
During nighttime (before sunrise or after sunset), all kinds of outdoor assemblies are banned. Currently, “outdoor assemblies during nighttime” are theoretically permissible, thanks to a Constitutional Court decision on September 24th which ruled that Article 10 of the ‘Assembly and Demonstration Law’ forbidding outdoor assembly during nighttime was ‘not consistent’ with the Constitution. However, the needed amendment to this law has not been passed so far.
It is important to note that ‘outdoor demonstrations during nighttime’ are currently banned (see 1.A.a for distinction between assembly and demonstration).
Places where assemblies and demonstrations are banned:
-Outdoor assemblies and demonstrations are banned within 100 meters from a boundary that extends from the National Assembly Building, all levels of courts, the Constitutional Court, Diplomatic offices, the Presidential residence, and the official residences of the Speaker of the National Assembly, the Chief Justice of the Supreme Court, the Chief of the Constitutional Court, the Prime Minister, and the residences of heads of diplomatic missions in Korea.
-Article 12–Restriction on Assembly or Demonstration for Smooth Flow of Traffic–statest the following:
(1) The head of the competent police authority may ban an assembly or demonstration on a main road of a major city as determined by presidential decree, or may restrict it, specifying reasons for the maintenance of traffic order if it is deemed to be necessary for the smooth flow of traffic.
Limitations on the occurrence of noise:
The method of which assemblies are conducted is limited. There is a ban on using machines or utensils to excessively make noise. Exceeding the noise standard (which is different from place to place) is also banned and if this standard is exceeded, then police can order people to stop using machines or utensils or confiscate those machines temporarily.
c. Report of Assemblies and Notification of Prohibition
-The first clause of Article 6 Report, etc. on Outdoor Assembly or Demonstration states:
(1) Any person who desires to hold an outdoor assembly or to stage a demonstration shall, from 72 to 48 hours before such assembly or demonstration is held, submit a report on the details in all the following subparagraphs to the chief of the competent police station. Provided, that if two or more police stations have jurisdiction over such assembly or demonstration, such report shall be submitted to the commissioner of the competent regional police agency, and if two or more regional police agencies have jurisdiction over it, such report shall be submitted to the commissioner of the competent regional police agency exercising jurisdiction over the place where the assembly or demonstration will take place.
The following information must be submitted in this report:
2. Date and time (including hours involved);
4. The following matters concerning the organizer (in the case of an organization, including its representative), liaison and moderators:
Address, Name, Occupation, and Contact information;
5. Organizations expected to participate and the estimated number of participants; and
6. Methods of demonstration (including a route map).
-Article 8: Notice of Ban of, or Restriction on, Assembly or Demonstration states that
(1) The head of the competent police authority who has received the report as provided in Article 6, clause 1 may, if such outdoor assembly or demonstration as reported to him/her fall under any of the following cases, notify its organizer of the ban of the assembly or demonstration within 48 hours after the receipt of the report: Provided, that in cases where an assembly or demonstration poses a direct threat to public peace and order by inciting collective violence, threats, destruction, arson, etc., he/she may, in respect of the remaining period of such assembly or demonstration, notify its organizer of the ban on the continuation thereof even after a lapse of 48 hours from the receipt of the report:
1. When it is deemed that such outdoor assembly or demonstration violates Article 5 (1), the main sentence of Article 10, or Article 11;
2. When the required details under Article 7 (1) have not been completed; and
3. When it is presumed that such assembly or demonstration must be banned under Article 12.
The chief of the competent police station can decide whether the notification of prohibition will be applied or not.
B. Special Law for a Secure G20 Summit
-The National Assembly of Korea passed the “Special Law for a Secure G20 Summit,” ignoring objections by the opposition party and other organizations. Consequently, this special law takes priority over the existing Assemblies and Demonstrations Act. This Special Law takes priority over other laws if there is an issue that is related with security of the G20 Summit.
Establishment of the security guard team:
According to the Special Law, a security guard team will be established and is affiliated to the President. The commissioner of the presidency is the leader of the security guard team.
Designation of the guard safety zone:
The Special Law states that any place where the G20 Summit takes place and wherever accommodations of the leaders and heads of states or international organizations are is deemed directly related to the G20 Summit and the vicinity around those areas can be designated as a ‘guard safety zone’ by the leader of the security guard team.
Limitation of assemblies in the guard safety zone:
The leader of the security guard team can request limitations of assemblies or demonstrations in the guard safety zone from the chief of the competent police station and the chief of the competent police station should limit assemblies or demonstrations according to the request (the period of limitation cannot exceed 5 days, including the duration of the G20 Summit). Therefore, regardless of the Assemblies and Demonstrations Act, all assemblies and demonstrations can be limited in the guard safety zone.
Obligation of cooperation in the guard safety zone:
Government officials and polices can do any related activities to keep order, including but not limited to managing traffic, questioning or inspecting persons, controlling access to certain areas, detecting hazardous materials, and taking other relevant safety measures. Anyone who accesses this area is obligated to cooperate with police activities. This obligation allows for random questioning and it is against the Act on the Performance of Duties by Police Officers.
-Moreover, the leader of the security guard team has the right to place a police force and equipment intended to promote safety supervision of facilities and important national facilities that are used by many people.
2. Responding to Random Questioning and Requests to Go Voluntarily to the Police Station
-People have a legal right to refuse to answer random questioning and refuse requests to go voluntarily to the police station with the police. The police cannot take somebody to the police station or search a person without a warrant when people refuse to answer. If the police use their force compulsorily, then people can use physical resistance.
-The police should explain the purpose and reason for random questioning, give their name and unit, and show their identification. If ever in a situation where you are being randomly questioned, you should remember these requirements and ask the police for the above information.
B. The Special Law for a Secure G20 Summit
-The Special Law requires cooperation from any and all persons who access the guard safety zone. This rule may be against the second clause of Article 12 of the Constitution which guarantees deniability.
3. Action at the place of assemblies- what to do in the event the police takes somebody to the police station
A. The police can take somebody to the police station when somebody is caught in the act
-The police may arrest a flagrant offender (Article 212, Criminal Procedure Act). Arrest of flagrancy should occur when there is no doubt that the person is guilty. . If somebody is merely watching the assemblies, taking pictures, or unintentionally entering the place where assemblies are being held and the police try to arrest that person as a flagrant offender, then the person should complain and make sure this fact is written in the investigation report when the police investigate him/her.
B. Clash in the place of assemblies with the police
-The police officer who wears a uniform can enter a place where an assembly is being held (Article 19). However, there are some police officers who do not wear uniforms who enter the place of assemblies and take pictures or record the demonstrations because there is a possibility that a confrontation between protesters and police will arise and as a result, some physical assaults or property damages are sustained.
-The police are sensitive to any injuries or wounds inflicted on police officers during assemblies or demonstrations. When there is a situation where a police officer is injured, the police will take the person who fought with the police and investigate him/her for violation of Assemblies and Demonstration Act and obstruction of justice for a police officer. Also, there is an additional punishment regulation if the physical confrontation involved the use of a club, iron pipe, etc. on the part of the demonstrator.
C. Order to Dissolve and Consequence of Failing to Disperse
- Whenever there is a demonstration or an assembly, police set up a ‘boundary for the maintenance of order.’ However, police mostly let the conscripted policemen who are often equipped with shields and clubs lead and confront the participants of an assembly. Sometimes as the parade moves ahead, the chief officer at the field may command police force to stop the assembly by blocking them with shields or beating people with clubs. They may confront the parade with the aim to agitate them.
- If the chief of the competent police station (Field Director) decides that the assembly or the demonstration is an illegal meeting as listed above, the police force will initially try to persuade the parade to dissolve voluntarily by using microphones. Mostly, they give the same order to dissolve three times every five minutes. According to the current law, every participant of an assembly which is ordered to disperse should disperse as soon as possible and if they fail to dissolve, police can break up the assembly in a coercive way. Usually, riot police ordered from the field director to dissolve the group will suddenly push the parade and go forward with shields and clubs in hand. They arrest any individual participants who are separated from the group during this process. Participants are frequently injured in this process of forceful dissolution and repression. However, even though the wounded civilians accuse the police for this action, the police are never punished.
D. Arresting without Giving Miranda Rights is Illegal
- Whenever the police catch a suspect in the act, they must inform him/her of ① the facts of the suspected crime, ② his/her right to consult with an attorney, and ③ the right to defend themselves. These are called the ‘Miranda Rights.’
- The police should state the Miranda warnings at the time of the arrest. If they are informed inside the police car or at the police station, it is illegal. Therefore, that person who is arrested should complain immediately and emphasize this fact during any suspect interrogation. The Court insists that arresting without giving the Miranda warnings is illegal and admissibility of evidence gained from any subsequent suspect interrogation is denied. These rights are guaranteed in the Constitution:
No person shall be arrested or detained without being informed of the reason therefore and of his right to assistance of counsel. The family, etc., as designated by Act, of a person arrested or detained shall be notified without delay of the reason for and the time and place of the arrest or detention.
Constitution of Republic of Korea Article 12 (5)
E. The Right to Consult with an Attorney of an Arrested Suspect and Other Rights
- The police should inform the suspect of the right to be informed of the name of the crime, time, place and reason of the arrestment, the right to summarize the facts of the crime to the suspect’s family, and the right to consult with a lawyer. If a police arrests a foreigner, the police should inform the relevant embassies of the arrest and the suspect may meet with embassy officials there.
- Arrested suspects have the right to consult with an attorney, to receive medical treatment if they are injured, and to meet with others who are not lawyers. These are all rights that are regulated in the Criminal Procedure Act so the suspect should claim his/her lawful rights.
- The most important right is the right to consult with a lawyer. NGOs and Minbyun are prepared to consult and deal with an arrest as quickly as possible. If the suspect is arrested, he/she should demand an interpreter for accurate communication and inform NGOs and Minbyun of his/her arrest.
F. The Period of Detention after the Arrest
- If a person is arrested, the police have to release the person within 48 hours unless granted an ‘Arrest Warrant’ from the court (note: If suspect is asked to go to the station voluntarily and complies, 6 hours).
- After arresting the person, protocol states that police must make an examination report of the suspect with the arrested suspect’s fingerprints on it. Sometimes police may write down the time of arrest as later than it really was, due to the time limitation of the detention period. Therefore, when a person is arrested, he/she must remember the time of the arrest and check the time on the report before fingerprinting it.
G. Investigation While in Detention and Confinement in Police Station Cell
- After the arrest, the suspect will be investigated by the police. Police will ask the name and identification of the suspect and conduct an interrogation. When the investigation is over, police will let the suspect read all the documents and if there is nothing wrong with it, the suspect will sign the document with his/her thumbprint. Instructions on how to handle the investigation are listed below (Section 4).
-As a rule, investigations after 12 AM are prohibited. Depending on the time, the suspect will be confined to the police station cell until 48 hours after his/her arrest, either immediately following the interrogation (if it is before midnight) or immediately confined without interrogation (if it is after midnight). Any personal belongings such as wallets, notebooks, bags, cell phones, etc. are held temporarily.
- Meanwhile, at the scene of the arrest, scene of the crime, or within 48 hours after urgent arrest, police can confiscate personal belongings without a search and seizure warrant. So it is necessary to get help from colleagues, families, and attorneys who came to the office before the confinement.
- Police can seize things that are voluntarily presented without a warrant. So if the police require the suspect to submit something voluntarily, he/she should respond very carefully.
- Police must follow guidelines to confine foreigners in a separate cell and respect their culture, especially their food culture.
4. Responses When Investigated in Police Office
A. Right to Remain Silent
- Police should inform the suspect of the right to remain silent before interrogating him/her. This can be exercised by not answering any questions or answering partly to individual questions.
- Being silent cannot be an excuse for unfair treatment. However, certain tactics of silence (e.g. silently destroying evidence, intending to flee) can result in a warrant of confinement or become an obstacle to early release. If one cannot decide, it is better to meet with a lawyer and then make a statement.
B. Foreigners can be companied with a reliable person when there is an investigation
- According to Criminal Procedure Act Article 244-5 for disabled persons who need special protection, suspects are allowed to sit in the company of a person who has a reliable relationship with the suspect when the suspect cannot maintain psychological stability and smooth communication due to age, gender, nationality, or any other factors.
- There is no limitation in the definition of a ‘reliable relationship’ so that the suspect can appoint his/her family, relative, Korean NGO activist, etc. Also, the suspect can ask for assistance from his/her lawyer while he/she is examined.
C. Suspect Can Demand for Attorney’s Assistance while Making Suspect Interrogation
- Suspect can ask to meet with the lawyer separately or can request the lawyer’s assistance during interrogation when they are examined by police or public prosecutor.
- According to the current Criminal Procedure Act, lawyers who participate in the interrogation of the suspect can raise objections for unlawful questioning strategies (e.g. insults, leading questions, etc.). However, Article 243-2 of the Criminal Procedure Act says that lawyers cannot answer the question directly on the behalf of the suspect. However, lawyers can make statements with the investigation officer’s approval or they can make statements after the interrogation.
D. Suspects Do Not Have to Talk About Unknown Things
- Most police will want to know the reason for participation and the name of the organizer of the assembly so they will continuously ask about this. However, the suspect should be careful to talk about his/her assumptions of another person’s role because it can unnecessarily harm someone. The suspect should say “I don’t know” when he/she is not sure of the answer to a question. If the suspect does not want to answer, he/she can say “I will not answer that question.”
E. The Suspect Should Take Fingerprints After Reading and Checking Errors of a Report of Examination of a Suspect
- After the investigation, the investigation officer will ask the suspect to sign the report and he/she must thoroughly check the report to see if there is anything wrong or different from the truth. If there is an error, he/she should ask for an amendment or make further testimony. If it is not admitted, the suspect may refuse to sign the report. An unsigned report due to this reason cannot and will not be unfavorable to the suspect.
- Generally, when a correction is granted, people draw two lines on the original script with a ballpoint pen and write the new information. The report is an important source during a trial if the suspect is prosecuted so the suspect must strictly insist on the parts that need correction.
F. No need to be impatient – Without a Warrant of Confinement, Suspects will be released within 48 hours.
 ‘Boundary for the maintenance of order’ is drawing boundaries around a place in which an assembly or demonstration takes place in order to protect a lawful assembly and demonstration and to maintain public order or ensure smooth traffic circulation.