Summary:

I.

In March 2004, the applicant staged a sit-in together with approximately 40 other persons on a road leading to an American military airbase. This was done to protest the impending US military intervention in Iraq. The Local Court (Amtsgericht) sentenced the applicant to payment of a fine for coercion pursuant to § 240 of the Criminal Code (Strafgesetzbuch, hereinafter: the Code).

The Regional Court (Landgericht) dismissed the applicant’s appeal against this decision. It found that the demonstrators had fulfilled the elements of the offence of coercion because their sit-in blockade was an exercise of force against those vehicle drivers who were prevented from continuing to drive forwards by the vehicles that had stopped in front of them. Furthermore, their actions were illegal. The force exercised by the demonstrators was a means of attracting attention for certain political goals. The Regional Court also held that coercive actions which are aimed solely at attracting increased public attention through a violent interference with third-party rights are not covered by the fundamental right of freedom of assembly. In addition, interference with the freedom of others is a totally unsuitable means for achieving the desired objective. The Regional Court was of the view finally that socio-political motives did not eliminate the illegality of the interference with third-party rights, but were instead to be taken into account when determining the sentence.

In his constitutional complaint directed against the decision of the Regional Court, the applicant alleges a violation of the prohibition of application by analogy that derives from Article 103.2 of the Basic Law and a violation of the freedom of assembly under Article 8.1 of the Basic Law.

II.
The Federal Constitutional Court reversed the challenged decisions because the applicant’s right to freedom of assembly had been violated and remitted the matter to the Regional Court for another hearing. On the other hand, the Chamber was unable to detect a violation of the prohibition of analogous application in the Federal Court of Justice’s “second line of case-law”.

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

The Regional Court’s reliance on what is known as the “second-row case-law” of the Federal Court of Justice to assist it in construing the meaning of the term “force” in connection with coercion does not raise any concerns in relation to Article 103.2 of the Basic Law.

According to this provision, an act may be punished only if punishability was provided for by law before the act was committed. This prohibits courts from widening the scope of a criminal provision so as to make conduct punishable which, according to the provision’s wording, does not satisfy the elements of the crime described therein.

In the present case, the existence of coercion pursuant to § 240.1 of the Code does not result from the demonstrators themselves using force to directly commit a crime. Instead the first vehicle driver served as a conduit for the demonstrator’s indirect effect on the vehicle drivers behind him.

The physical coercion which the Federal Constitutional Court required in its previous decisions for an assumption of force within the meaning of § 240.1 of the Code is present. It is true according to the Federal Constitutional Court’s case-law that the aforegoing does not apply to the relationship between the demonstrators and the first driver. The reason for this is that he stopped his vehicle so as not to interfere with the demonstrators’ legal interests and thus purely due to psychological compulsion. However, it can be assumed that there was physical compulsion as between the first vehicle driver and those behind him. That the demonstrators’ conduct fulfils the requirements of the crime follows from the fact that they deliberately used the first vehicle driver who stopped and his vehicle as instruments in setting up a physical obstruction for the subsequent vehicle drivers. It is true that there was no physical compulsion exerted by the demonstrators on the first vehicle driver, but instead only psychological compulsion. Nevertheless, this is irrelevant for the issue of indirect commission of an offence since the influence exerted by an indirect perpetrator of a crime on the conduit may indeed be solely of a psychological nature. In addition, the assumption that the demonstrators had sufficient control of the situation or intention of controlling the situation is not constitutionally objectionable. Through their sit-in blockade the demonstrators deliberately placed the first driver in a dilemma. Legally his only way out of such dilemma was to stop his vehicle and thus obstruct the vehicle drivers behind him. Even for a layperson it is understandable that the demonstrators’ behaviour, which resulted in the vehicle drivers being trapped in a traffic jam, represents physical compulsion and thus may satisfy the elements of the crime of coercion.

The decision of the Regional Court does, however, violate the applicant’s right of freedom of assembly. The reasons given by the Regional Court for finding that the sit-in blockade did not qualify as an assembly were not constitutionally sound. The fact that the purpose of the action was to attract attention for certain political goals does not eliminate the protection provided by the freedom of assembly. Instead the fact that a communal sit-in is held for the purpose of shaping public opinion is what makes it an assembly within the meaning of Article 8.1 of the Basic Law in the first place.

The comments of the Regional Court do not justify the conviction of the applicant in view of the freedom of assembly that is relevant here.

Pursuant to § 240.2 of the Code, an act of coercion is illegal if the application of force can be regarded as reprehensible in relation to the desired goal. The Regional Court’s decision does not satisfy the constitutional requirements that apply in this case. On the one hand, it did not take into account all aspects in the necessary weighing of interests, while, on the other hand, it incorrectly assessed the circumstances that spoke in the applicant’s favour. In particular, it incorrectly treated the purpose of the sit-in blockade, namely to attract attention and contribute in this way to the shaping of public opinion, as an aspect that indicated its reprehensibility and evaluated this to the detriment of the applicant. In addition, it failed to recognise that the communications purpose is a factor that should not first be taken into account in connection with sentencing, but rather in connection with reprehensibility pursuant to § 240.2 of the Code, i.e. at the time illegality is being considered. It is also constitutionally objectionable that the Regional Court did not consider during its weighing of interests the length of the protest action, the fact that notice of it had been given in advance, that there were alternate roads that could have been used to avoid the demonstrators, how urgently the blockaded vehicles needed to reach their destination and the number of the vehicle drivers affected by the blockade.