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Please note that only the German version of this decision is authoritative. Further information can be found here.
This is an abstract from the CODICES database maintained by the Venice Commission. Please cite as follows: Abstract of the German Federal Constitutional Court’s Order of 2 November 2016, 1 BvR 289/15.
Abstract
Third Chamber of the First Senate
Order of 2 November 2016
1 BvR 289/15

Headnotes (not official):

1. The right to “assemble peacefully and unarmed” does not rule out that the police take measures directed against a group of demonstrators for the purpose of criminal prosecution.

2. With regard to peaceful demonstrators, their right to “assemble peacefully and unarmed” has to be protected even if individual participants in the assembly are involved in a riot. Mere participation in an assembly within which individual participants or minority groups instigate riots does not provide a sufficient basis for identity checks.



Summary:

I.

In June 2013, the applicant attended a demonstration with the motto “European Solidarity against the crisis regime of the ECB and the Troika” in Frankfurt (Main). Some participants of the assembly had covered their face even before the demonstration started. After the march had started, some protesters lined up in a “U-formation” which was shielded from the outside by means of ropes and wooden poles, shields, tied banners as well as umbrellas, all of which the protesters had brought along. During the further course of the demonstration pyrotechnic articles as well as paint bombs and bottles filled with paint were thrown at police officers from this part of the assembly. At 12:49 p.m. the police stopped this part of the assembly and separated it from the rest of the rally by containing 943 individuals, including the complainant, using “kettling” tactics. In consultation with the administrative authority the police banned these persons from the assembly. After the police had checked his identity, searched the things he had brought along, and collected information by means of videography the applicant was able to leave the containment at about 5:30 p.m. at one of 15 exit points that were equipped with video cameras. Preliminary proceedings were subsequently discontinued. His application for a declaratory judgment establishing the unlawfulness of the deprivation of liberty, the establishment of his identity and the search remained without success.

The complainant challenged the police measures and the court decisions that did not grant the relief sought.

II.

The Federal Constitutional Court did not admit the constitutional complaint for decision. In the court’s opinion the challenged decisions did not violate the complainant’s fundamental rights.

The decision is based on the following considerations:

If a demonstration is not expected to take a violent or riotous turn, the right of assembly of peaceful demonstrators has to be protected even if individual protesters start rioting. Freedom of assembly does not rule out that repressive measures of criminal prosecution are taken against parts of an assembly. When interfering with these fundamental rights state organs have to interpret those provisions of the Code of Criminal Procedure that restrict the scope of fundamental rights in light of the relevance of the freedom of assembly in a free and democratic state. They also have to limit their measures to what is necessary to protect equivalent legally protected interests. With regard to identity checks in cases in which somebody is suspected of having committed a criminal offence, this limitation means that the suspicion has to be based on a sufficiently objective foundation of facts and be directed against one specific protester. Mere participation in an assembly within which individual participants or minority groups start riots is not sufficient for arousing such suspicion.

The decisions of the regular court meet these standards. It does not violate constitutional requirements if the police come to the conclusion that it is reasonable to assume that all members of a group arouse initial suspicion if this group stands out from the rest of the assembly because of their formation, shields and face covers and if a multitude of offences is being committed from among the group. The persons belonging to this part of the demonstration gave an impression of unity so that the police was allowed to assume that rioters would be encouraged in their decisions and actions.

The regular courts’ conclusion that the applicant was only detained until he was able to leave the containment at one of the exit points and, hence, not longer than necessary to establish his identity does not raise any constitutional concerns either. In particular, the police set up 15 exit points and was thus able to check the identity of about three persons per minute and on the spot. Parts of the group which was subject to the police measures contributed to extending the duration by significant physical resistance against police forces.

It was also not necessary to bring the applicant before a judge to decide on the deprivation of liberty because it took less time to establish his identity at the place of the assembly than it would have taken had he been brought before a judge. This constitutes an exception from the rule that a judge has to decide on measures of deprivation of liberty.

The regular courts did not violate the right to individual liberty under the second sentence of Article 2.2 of the Basic Law in conjunction with Article 104 of the Basic Law by not using the video material of the police as evidence. The legal assessment of the regular courts that a suspicion against the applicant was not ruled out simply because he did not, in fact, commit any offences does not raise any constitutional concerns either. In that regard, it was sufficient that he was part of a group that was easily distinguished from the rest of the demonstration and that numerous offences were committed from among that group.

Further information can be found in the CODICES database, as soon as it has been processed.

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Additional Information

ECLI:DE:BVerfG:2016:rk20161102.1bvr028915

Please note that only the German versions are authoritative.