Abstract of the order of 14 May 1985

First Senate
Order of 14 May 1985
1 BvR 233/81 

Headnotes:

1. The right of the individual to actively participate in the formation of political opinion and the political will by exercising the freedom of assembly is one of the indispensable elements that ensure the functioning of a democratic society. The fundamental significance of this freedom must be taken into account by the legislator when enacting provisions that restrict fundamental rights, and by the authorities and courts when interpreting and applying such provisions.

2. The provisions of the Assembly Act regarding the registration of events held outdoors as well as the conditions subject to which such events may be dispersed or banned (§§ 14 and 15 of the Assembly Act) satisfy the constitutional requirements if, when interpreting and applying this provision, it is taken into consideration that 

a) the statutory obligation to register an assembly does not apply in the case of spontaneous protests, and non-compliance with this obligation does not automatically make it permissible to disperse or ban such an assembly, and that

b) a dispersal or ban may only be ordered to protect equivalent legal interests if the principle of proportionality is strictly adhered to and if there are ascertainable grounds for presuming that there is a danger to these legal interests.

3. State authorities are obliged to be open to assemblies, following the model of peaceful mass protests, and to take into account past experience, unless there are sufficient grounds for doing otherwise. The more the organisers themselves are prepared to take steps to build trust or to cooperate with the authorities, the higher the threshold for authorities to intervene on the grounds that an assembly poses a threat to public security.

4. Unless there is reason to fear that protests in their entirety will turn violent, or that the organisers and their supporters will seek or at least tolerate such a turn of events, the protection of freedom of assembly that is constitutionally guaranteed to every citizen continues to apply to peaceful participants even if it must be expected that individuals or a minority of participants will resort to violence . In such cases,  a preventive ban of the entire event must be subject to strict requirements regarding risk assessments, and all reasonable means must be used to enable peaceful protesters to exercise their fundamental rights.

5. Even in preliminary injunction proceedings, the administrative courts must have regard to the fact that the immediate enforcement of a ban on a protest will usually render the exercise of fundamental rights impossible; the courts must therefore conduct a more thorough review .

6. Clear statutory provisions limit the judicial development of the law.

Summary:

I.

The constitutional complaints concern the ban on protests which were to take place on 28 February 1981 and were directed against the construction of a nuclear power plant in Brokdorf. Before the authorities were notified of the protests, the responsible head of the district authority had ordered a general and immediately enforceable ban on protests on the construction site and the surrounding area of about 210 square kilometres for the period between 27 February and 1 March 1981. 

Four protesters challenged the ban and its immediate enforceability before the Schleswig Administrative Court. The court restricted the immediate enforceability of the ban to a smaller area around the construction site because there was no indication that the protests would turn violent. Following complaints of the representatives of the municipalities and authorities that were affected by the proceedings, the Lüneburg Higher Administrative Court re-instated the ban in its original form. Despite the ban, a demonstration with more than 50,000 participants took place on 28 February 1981. About 10,000 federal and Land police officers were deployed. 

With their constitutional complaint, the applicants challenged the ban and its immediate enforcement as well as the decision of the Higher Administrative Court upholding that ban. 

II. 

The Federal Constitutional Court held that the Administrative Court’s decision complied with constitutional requirements. However, under statutory law, the Higher Administrative Court was not entitled to hear the complaint given that, as procedural law stood at that time, public authorities were not permitted to challenge decisions of the first-instance administrative court. In spite of this unequivocal statutory framework, the Higher Administrative Court considered the complaint to be admissible and thereby exceeded the limits of judicial development of the law arising from the principle of the rule of law.

The Federal Constitutional Court emphasised that the freedom of assembly is very important in a democratic state. However, according to constitutional law, the protection and guarantee of that freedom is limited to its peaceful exercise; the legal system must prevent violence.

The protests in Brokdorf were considered to be not entirely peaceful. While most protesters wanted to gather in a peaceful manner, it could not be ruled out from the outset that some participants would resort to violence. The Federal Constitutional Court held that a ban on protests cannot be justified based on that fact alone. The freedom of assembly must be guaranteed for the majority of peaceful protesters. In addition, state authorities are obliged to cooperate with the organisers of assemblies; the more the organisers are willing to ensure that the protests are peaceful, the higher the threshold at which intervention on part of the authorities becomes permissible.