Federal Constitutional Court - Press office -

Press release no. 17/2009 of 27 February 2009

Order of 17 February 2009 – 1 BvR 2492/08 –

Application for a temporary injunction in the matter of the Bavarian
Assembly Act succeeds in part


With the Bavarian Assembly Act (Bayerisches Versammlungsgesetz –
BayVersG), which entered into force on 1 October 2008, and which
replaced the Assembly Act of the Federation (VersG) on the territory of
the Free State of Bavaria, a federal Land (state) for the first time
made use of its competence for the law on assemblies, which has been
due to the federal Länder since the reform of the federal structure of
Germany. It is true that in doing so, the Bavarian legislature takes
existing regulations of the VersG as points of reference in many
respects. It, however, further develops the provisions, invoking an
independent concept of legal and regulatory policy, and in doing so
increases the requirements placed on the organisation of assemblies.
Among other things, the new legislation considerably formalises and
expands the obligations of announcement, notification and information
for organisers of assemblies, it extends the duty to cooperate and the
responsibility of the person in charge of an assembly, and it
introduces a general ban on militancy for participants in assemblies
(Article 3.3, Article 4.3, Article 7.2 and Article 13.1 and 13.2
BayVersG). These commands and prohibitions are followed by constituent
elements of regulatory offences pursuant to which administrative fines
can be directly imposed on the persons affected, i.e. without previous
orders under administrative law (Article 21 nos. 1, 2, 7, 13 and 14
BayVersG). What is regulated as well is the competent administrative
authority’s power to refuse the persons in charge and the stewards
nominated by the organiser if they are unreliable or unsuitable. Apart
from this, the list of police measures of observation and documentation
has been expanded (Article 9.2 and 9.4 BayVersG). The provision
empowers the police to take overall images of assemblies to guide and
direct the police operation (Article 9.2 sentence 1 BayVersG) and to
make overall recordings of assemblies to evaluate police tactics
(Article 9.2 sentence 2 BayVersG); the recordings may be stored for
follow-up uses for a prolonged period of time and possibly even for an
unlimited period of time.

The application for the issuing of a temporary injunction was based on
a constitutional complaint lodged by several Land associations of trade
unions and parties and other non-governmental organisations against
almost the entire BayVersG. The complainants objected to the nature of
the Act in its entirety, as well as to the nature of its individual
regulations, as being opposed to assemblies. They argued that the
regulations resulted in bureaucratic spoon-feeding and control of the
citizens, which deterred from making use of the freedom of assembly.
The provisions that are intended to counteract the specific dangers of
right-wing extremist assemblies (Article 15.2 nos. 1a and 2 BayVersG)
were, however, explicitly excluded from the criticism. 

The complaints’ application to temporarily suspend the BayVersG by
means of a temporary injunction until the decision about the
constitutional complaint was successful in part. The First Senate of
the Federal Constitutional Court temporarily suspended the provisions
on administrative fines concerning the organisers’ obligations of
announcement, notification and information, the duty to cooperate of
the person in charge of the assembly and the general ban on militancy
for the participants. The powers for police observation and
documentation measures in the context of assemblies have been modified
and restricted for the time being. In particular, overall recordings
which store the course of events of an assembly are only permissible if
factual indications justify the assumption that considerable dangers to
public security or public order emanate from the assembly. An
evaluation of the overall recordings is only permissible immediately
after the end of the assembly. To the extent that the data are not
needed afterwards with regard to individual persons for the prosecution
of criminal offences in connection with the assembly, or for averting
future assembly-specific dangers, they must be deleted, or irreversibly
rendered anonymous, within two months. In contrast, overall images
taken to guide and direct the police operation in which the images of
the events of the assembly are transmitted to an operations room in
real time without being stored are only permissible if they are
necessary in the individual case due to the size of the assembly or the
difficulty of having a view of the assembly in its entirety. As for the
rest, the Senate rejected the application for the issuing of a
temporary injunction. 

In essence, the decision is based on the following considerations:

The Federal Constitutional court may exercise its authorisation to
delay the entry into force of a law or to suspend a law that has
entered into force only with the greatest restraint, since the issuing
of such a temporary injunction is always a significant encroachment on
the legislative discretion of parliament. If the outcome of the
constitutional complaint proceedings is still open, a law can therefore
only be temporary suspended if the disadvantages that would be
associated with its validity if its unconstitutionality were later
established are of major importance and if their extent and gravity
clearly prevail the disadvantages that would result from the temporary
suspension of a law that proves to be constitutional. 

According to these standards, the application for the issuing of a
temporary injunction was to be granted in part on the basis of the
weighing of consequences required in temporary injunction proceedings.

1. The provisions on administrative fines set out in Article 21 nos. 1,
2, 7, 13 and 14 BayVersG are to be temporarily suspended. They directly
make the infringement of far-reaching commands and prohibitions under
assembly law an administrative offence. As the formal disapproval of
unlawful reproachable misconduct, the effect of the threat of an
administrative fine is fundamentally different from the establishment
of obligations under administrative law which are enforced vis-à-vis
the citizen on the basis of an administrative act that lends concrete
shape to the obligation, and which are executed if need be through the
means provided by administrative enforcement law. What is binding on
the individual in the respective situation is first established in the
situation itself, related to the individual case, by means of an
administrative act (unlike in case of the punishment by an
administrative fine) and is made clear to the citizen without an
imputation of blame arising; this approach creates legal clarity and
can be reviewed by legal remedies. This function of an administrative
act in a state under the rule of law is particularly important with
regard to the duties in question here, some of which have been set out
by the legislature in a differentiated and detailed manner, some of
which have been drafted in so open a manner that they require
concretisation. The organiser is, for instance, under an obligation to
indicate the place, time, subject and organiser’s name on the
invitation to any public assembly of two or more participants
irrespective of whether it is large or small, whether it takes place
outdoors or in a closed space, whether it is held spontaneously or has
been planned. Even if the required information is straightforward when
regarded by itself, the question as to what qualifies as an invitation,
which degree of exactness is required or how the information can be
ensured with present-day forms of electronic communication such as for
instance text messages can be seriously doubtful. The answer to the
question as to when information given in compliance with the
differentiated obligations to inform that apply to open-air assemblies
are complete, or when notifications of modifications that have to be
communicated immediately have been made in due time, may also be
impossible without more precise knowledge. The duties of the person in
charge of an assembly as regards the prevention of acts of violence all
the more require concretisation. To establish what “suitable measures”
for “the prevention” of “acts of violence” arising “from within the
assembly” are, and when to dissolve an assembly because these measures
cannot be successfully enforced, depends on difficult evaluations in
situations that are frequently unclear. Nothing different applies to the
duty, addressed to the individual participant, not to take part in
assemblies in a manner which contributes to giving the assembly a
certain appearance that has an intimidating effect. Thus the provisions
regulating the imposition of administrative fines are associated with
the risk of a personal sanction, which is difficult to calculate and
which may have intimidating effects on the citizens and may impair
their availing themselves of the fundamental right of the freedom of
assembly.

2. On the other hand, a temporary suspension of the commands and
prohibitions under assembly law which are the basis of the provisions
regulating the imposition of the administrative fines is out of the
question. The consequence of such a suspension would be that until the
decision on the merits, the Bavarian law on assemblies would lack
central provisions, such as for instance even a duty of notification in
general terms. This would at least considerably endanger the safe
exercise of the right of assembly. The Federal Constitutional Court
would at least have to replace some of the challenged provisions by a
court order. This, however, can only be justified in special
combinations of circumstances, which do not exist here. Moreover, the
impact of the disadvantages of the challenged provisions is cushioned
by the temporary suspension of the provisions regulating the imposition
of administrative fines to such an extent that a further-reaching
temporary injunction does not appear necessary.

3. Moreover, restricting provisos have to be set out as regards the
application of Article 9.2 and 9.4 BayVersG, which regulates the powers
for police measures of observation and documentation. The provisions
allows in general terms to take overall images (camera-monitor
transmission) “to guide and direct the police operation” and to make
overall recordings “to evaluate police tactics”. With the present state
of technology, these recordings, as a general rule, show the
individuals in such a way that they are identifiable. Thus, Article 9.2
sentence 2 BayVersG grants the powers to perform a non-incident-related
recording of the entire course of events of an assembly, including
images of the individual participants of the assembly who have not
given occasion to do so in a manner that can be attributed to them.
Consequently, in every assembly, every participant must expect his or
her participation being recorded, irrespective of the size and the
danger potential of the assembly. The disadvantage inherent in this
attains further weight by the fact that the overall recordings may be
used and stored for averting future assembly-specific dangers for one
year from the recording, and for purposes of general law enforcement
even beyond this period of time. Such non-incident-related stockpiling
of data, whose only point of reference is the exercise of the freedom
of assembly, i.e. the making use of a fundamental right that is
essential for the democratic formation of opinion, leads to grave
disadvantages. Through restricting measures, the Senate has limited
these disadvantages until the decision on the merits. According to
these measures, overall recordings are only permissible if factual
indications justify the assumption that considerable dangers to public
security or public order emanate from the assembly and if also
subsequent use and storage is limited following an incident-related
approach. 


This press release is also available in the original german version.