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Only such conditions may be imposed under the law of assemblies that are necessary restrictions on the freedom of assembly
Press Release No. 70/2014 of 06 August 2014
Order of 26 June 2014
1 BvR 2135/09
By an order published today, the Third Chamber of the First Senate of the Federal Constitutional Court granted a constitutional complaint against the complainant’s conviction to pay EUR 250 for violating a condition imposed under the law of assemblies. For a procession held on 1 May, the administrative authority responsible for assemblies had authorised the use of loudspeakers only for speeches concerning the subject matter of the assembly and for organisational announcements. The complainant used a loudspeaker for the following announcements: “All cops get out of this assembly!” and “Civilian cops get out of this assembly – now!”. The judgment of the Local Court (Amtsgericht) imposing a fine for violating the condition under the law of assemblies fails to appreciate the freedom of assembly’s scope of protection. This freedom also protects the expressing the assembly-related concern that only persons supporting the assembly should participate in it and police officers should remain outside the procession.
Facts of the Case and Procedural History:
On 1 May 2008, the complainant participated in an assembly of the German Trade Union Federation in Munich, with the topic “1st of May. Labour Day”. With respect to the assembly, the relevant administrative authority had, inter alia, imposed the condition that loudspeakers and megaphones be used only for speeches and performances related to the subject matter of the assembly and for organisational announcements. In the course of the procession, the complainant used a loudspeaker, which was carried along on a hand cart, in two places to make the following announcements: “All cops get out of this assembly!” and “Civilian cops get out of this assembly – now!”.
The Local Court imposed a fine of EUR 250 for violating the German Act on Assemblies and Processions (Gesetz über Versammlungen und Aufzüge) by failing to observe restrictive conditions. An application by the complainant to grant an appeal on points of law was dismissed as unfounded by the Local Court.
Key Considerations of the Chamber:
The challenged judgment of the Local Court infringes the complainant’s right of freedom of assembly under Art. 8 sec. 1 of the Basic Law (Grundgesetz – GG).
1. The loudspeaker announcements considered to be finable are not deprived of the protection afforded by the freedom of assembly, as the Local Court assumes. Their content was sufficiently connected to the assembly protected under Art. 8 sec. 1 GG. The announcements may not have referred specifically to the subject matter of the assembly as such, and may not have been directed towards maintaining order. However, they did express the assembly-related concern that only persons participating in the procession should stay within the procession, and not police officers who were not involved in the opinion-forming process. In their ideal state, demonstrations are the physical manifestation of shared convictions. Whoever participates in such an assembly is, in principle, also entitled to advocate during the assembly that only persons supporting the concern of the assembly participate in it and that police officers remain outside the procession.
2. By sanctioning the loudspeaker announcements with a fine, the judgment of the Local Court encroaches upon this area of protection. This encroachment is not justified by the findings of the Local Court.
a) The freedom of assembly is subject to certain limitations (cf. Art. 8 sec. 2 GG). The provision on fines applied here, namely § 29 of the German Act on Assemblies and Processions, constitutes such a restrictive provision. Its interpretation and application is, in principle, a matter for the criminal courts. However, state organs, including the criminal courts, must interpret laws that restrict fundamental rights in light of the fundamental significance of Art. 8 sec. 1 GG and must confine themselves to what is necessary in order to protect other equivalent legal interests when taking any measures.
b) The complainant’s conviction by the Local Court to pay a fine does not meet this standard. By virtue of the scope of protection of Art. 8 sec. 1 GG, the Court could not simply rely on the condition imposed by the administrative authority. Instead, the only way it could have considered the condition to be constitutional was if it interpreted the condition as not excluding other assembly-related statements that did not strictly refer to the subject matter of the assembly. However, the freedom of assembly’s scope of protection has not been considered in such a way. On the contrary, the contested decision subjects the assembly-related statements in question to a fine, irrespective of the existence of a disturbance. No indication has been given that the use of the loudspeaker system in the case at hand constituted a disturbance, and nothing has been established to this end. The loudspeaker announcements of the complainant were clearly not such that they created any more than rather insignificant unrest, if any, within the assembly. Also, a potential impairment of the health of third persons caused by excessive noise seems impossible due to the only transitory use of the loudspeaker in two instances. Therefore, no threats can be established that would justify fining the complainant.
3. It is possible that the Local Court could reach a different decision after reconsidering the case, taking into account the requirements of the fundamental right of Art. 8 sec. 1 GG. The contested judgment is therefore reversed and remitted to the Local Court for reconsideration.