Order of 1 October 2025

Table of contents

1. 1

   A. Facts of the case

2. 41

   B. Admissibility

   1. 42

      I. Challenged acts

   2. 46

      II. Standing

   3. 56

      III. Exhaustion of all available legal remedies and subsidiarity

3. 67

   C. Merits

   1. 68

      I. Scope of protection

   2. 102

      II. Interference

   3. 103

      III. Justification

      1. 104

         1. § 21 of the Assemblies Act as a restriction within the meaning of Art. 8(2) of the
         Basic Law

      2. 108

         2. Constitutionality of § 21 of the Assemblies Act

         1. 109

            a) Formal constitutionality

            1. 110

               aa) Legislative competence

            2. 111

               bb) Requirement to specify affected fundamental rights

         2. 160

            b) Substantive constitutionality: Proportionality

      3. 184

         3. Constitutionality of the challenged decisions

         1. 185

            a) Requirement to specify affected fundamental rights

         2. 195

            b) Other constitutional requirements

R e a s o n s :

A. 

1

The constitutional complaint relates to a criminal sentence for a violation of § 21 of the Act on Assemblies and Processions (Gesetz über Versammlungen und Aufzüge, Versammlungsgesetz – Assemblies Act, VersG). The primary question presented is whether a criminal sentence under § 21 of the Assemblies Act violates the freedom of assembly if the sentence is based on participation in a counter-protest that is protected under Art. 8(1) of the Basic Law (Grundgesetz – GG).

2

§ 21 of the Assemblies Act reads as follows:

§ 21 Assemblies Act

Whosoever commits or threatens acts of violence or causes serious disruptions with the intention of preventing or breaking up or in any other way thwarting non-prohibited assemblies or processions may be subject to a penalty of imprisonment for up to three years or payment of a fine.

I. 

3

1. According to the findings of the Local Court (Amtsgericht), a duly registered assembly of the organisation (...) (hereinafter: the organisation) with the theme ‘Protection of unborn life’ took place on 10 April 2015 in the city centre of Freiburg. The assembly was to begin at approximately 5:00 p.m. with an opening rally in front of the former offices of (...) located on Humboltstraße. From there, a procession was planned to proceed through the Martinstor, which is located less than 100 metres from Humboltstraße, and continue on Kaiser-Josef-Straße through the Freiburg city centre to the Kartoffelmarkt, where a closing rally was planned to take place at 6:30 p.m.

4

Online appeals for (unregistered) counter-protests were made by various groups in advance of the assembly. An appeal by (...) titled ‘engage, blockade, abolish [the organisation]!’ included the statement: ‘Despite heavy-handed repression and a large police presence, we will disrupt the march of the ultra-reactionaries and will not be deterred from our legitimate protest!’.

5

After the opening rally by the organisation, with approximately 100 persons in attendance, the protesters sought to begin their planned procession towards Kaiser-Joseph-Straße at approximately 5:52 p.m. By that time, approximately 70 counter-protesters had sat down across the entire width of the street in multiple rows behind the Martinstor, some of whom with arms interlocked. As a result, passing through the two arches of the gate was no longer possible. Some counter-protesters held signs and banners with statements, such as ‘Against reactionary sheep’, ‘My body belongs to me’ or ‘Oppose (...)’. The counter-protesters also disrupted the songs, prayers and statements of the protesters with chants (such as ‘no God, no state, no patriarchy’, ‘medieval, medieval, hey, hey’, ‘your priests are just as gay as we are’ and ‘we are homo, what are you?’) and with the use of whistles and a loud siren. For reasons of public safety and in consideration of the situation at the site, the police did not consider it a viable alternative to lead the procession past the counter-protesters on the two relatively unobstructed footpaths running along the left and right side of the Martinstor.

6

The complainant, who by no later than 6:05 p.m. was seated on the west side of the Martinstor in the front row of the seated counter-protesters, held a large banner with others that stated ‘Against reactionary hate speech – (...)’. He intended to stop the procession of the protesters at the Martinstor and blockade the procession’s path into the city centre. By doing so, the complainant wanted to protest the views held by the organisation and thwart the planned assembly.

7

Although they were requested by the police to clear the path of the procession multiple times, including requests made over loudspeaker and from an ‘anti-conflict team’ onsite, at least 44 counter-protesters, among them the complainant, remained seated behind the gate’s arches. Subsequently, the police ordered the dissolution of the counter-protesters’ sit-in blockade at 6:20 p.m. The counter-protesters, who continued to sit in the street in disregard of the police order to disperse, were physically moved by police officers. By 6:27 p.m., the eastern arch of the gate was once again passable. The counter-protesters sitting behind the western arch, including the complainant, remained in place until at least 6:31 p.m. and were ultimately encircled by police officers. They stood up and at 6:34 p.m. were forced towards the side of the road.

8

The protesters, who, had the assembly continued as planned, would have reached the Martinstor only a few minutes after the opening rally concluded at 5:52 p.m., and who had been standing and waiting at the Martinstor since at the latest 6:17 p.m. despite slowing their procession due to the blockade, were able to continue their way through the eastern arch of the gate at approximately 6:34 p.m.

9

2. The public prosecution office subsequently initiated investigations against the complainant for a violation of § 21 of the Assemblies Act. The complainant did not accept the offer of non-prosecution subject to the payment of a sum of money pursuant to § 153a of the Code of Criminal Procedure (Strafprozessordnung – StPO).

10

After the complainant submitted an objection to the penalty order issued by the Local Court, by judgment of 5 September 2019, the Local Court sentenced the complainant to a fine at ten daily rates of EUR 20 each for disrupting an assembly or procession under § 21 of the Assemblies Act. The complainant appealed the judgment on points of law, which he supported with a substantive complaint (Sachrüge).

11

By order dated 1 September 2020, the appeal on points of law (Revision) was rejected by the Higher Regional Court (Oberlandesgericht) as unfounded. [...]

12

The complaint seeking remedy for a violation of the right to be heard (Anhörungsrüge) submitted by the complainant challenging this ruling was likewise rejected as unfounded by the Higher Regional Court by order dated 1 October 2020.

II. 

13

With his constitutional complaint, the complainant challenges the judgment of the Local Court of 5 September 2019 and the order of the Higher Regional Court of 1 September 2020. In his submissions in support of the constitutional complaint, the complainant asserts a violation of Art. 8(1) and Art. 103(2) of the Basic Law.

14-30

[…]

III. 

31

1. Among those granted the opportunity to submit a statement in these proceedings, only the Federal Government submitted a statement.

32-39

[…]

40

2. […]

B. 

41

The constitutional complaint is only admissible in part. With its direct challenge of the decisions of the ordinary courts and indirect challenge of § 21 of the Assemblies Act, the constitutional complaint presents admissible subjects for constitutional complaint proceedings within the meaning of § 90(1) of the Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz – BVerfGG) (see I below). However, the complainant has only substantiated a possible violation of fundamental rights or rights that are equivalent to fundamental rights with regard to the freedom of assembly under Art. 8(1) of the Basic Law (see II below). In this regard, the constitutional complaint also complies with the further admissibility requirements of exhaustion of all available legal remedies and subsidiarity (see III below).

I. 

42

1. The constitutional complaint directly challenges the judgment of the Local Court of 5 September 2019, which sentenced the complainant to a fine at ten daily rates of EUR 20 each for violation of § 21 of the Assemblies Act, and the order of the Higher Regional Court of 1 September 2020, which rejected the complainant’s appeal of the Local Court judgment on points of law as unfounded.

43

2. The constitutional complaint also indirectly challenges the criminal offence under § 21 of the Assemblies Act. The fact that the complainant’s submission of 15 October 2020 did not explicitly identify the criminal offence under § 21 of the Assemblies Act as an indirect subject matter for the constitutional complaint proceedings does not negate this. Not only did the complainant indicate a possible indirect challenge to the criminal offence under § 21 of the Assemblies Act in his supplemental submission of 27 June 2025, such a challenge can in any event be derived from the submissions.

44-45

[…]

II. 

46

The complainant has sufficiently substantiated a potential violation of fundamental rights or rights that are equivalent to fundamental rights only in part. To the extent the complainant asserts a violation of Art. 103(2) of the Basic Law [...], the constitutional complaint fails to satisfy the related substantiation requirements pursuant to § 23(1) second sentence and § 92 of the Federal Constitutional Court Act [...]. However, the complainant has asserted an admissible claim of a possible violation of his fundamental right to freedom of assembly under Art. 8(1) of the Basic Law [...].

47-55

[…]

III. 

56

The requirement of exhaustion of all available legal remedies pursuant to § 90(2) first sentence of the Federal Constitutional Court Act and the principle of subsidiarity have been met. The constitutional complaint is not rendered inadmissible by the fact that the complainant directly submitted a leapfrog appeal on points of law (Sprungrevision) against the judgment of 5 September 2019 instead of the other possible remedy of an appeal on points of fact and law (Berufung). In the present case, the prior submission of an appeal on points of fact and law was not required by either the requirement of exhaustion of all available legal remedies (see 1 below) or the principle of subsidiarity (see 2 below).

57

1. The requirement of exhaustion of all available legal remedies pursuant to § 90(2) first sentence of the Federal Constitutional Court Act does not preclude the complainant from choosing to pursue a leapfrog appeal pursuant to § 335 of the Code of Criminal Procedure.

58

a) Pursuant to § 90(2) first sentence of the Federal Constitutional Court Act, a constitutional complaint is generally only admissible when all legal remedies have been exhausted. Legal remedies within the meaning of § 90(2) first sentence of the Federal Constitutional Court Act include every statutorily available possibility for having recourse to a court (cf. Decisions of the Federal Constitutional Court, Entscheidungen des Bundesverfassungsgerichts – BVerfGE 67,157 <170>; 112, 190 <203>). Before submitting a constitutional complaint, a complainant must exhaust all instances available to them under the respective rules of procedure (cf. BVerfGE 68, 376 <380> with further references).

59

The required exhaustion of all instances available under the respective rules of procedure does not preclude a leapfrog appeal in lieu of an appeal on points of fact and law. Insofar as the rules of procedure explicitly provide – for reasons such as the simplification or expedition of proceedings – for the possibility of bypassing parts of the appeals process, then this shortened appeals process must be viewed as statutorily permissible and in compliance with the requirement of exhaustion of all available legal remedies (cf. on this Decisions of the Bavarian Constitutional Court, Entscheidungen des Bayerischen Verfassungsgerichtshofes – BayVerfGHE 36, 197; [...]).

60

b) Based on these standards, the fact that the complainant consciously chose to forego a review on points of fact at a higher instance by submitting a leapfrog appeal pursuant to § 335 of the Code of Criminal Procedure does not raise any concerns in regard to the exhaustion of all available legal remedies. The complainant has duly completed the appeals process provided for by the Code of Criminal Procedure.

61

2. The principle of subsidiarity applicable to constitutional complaints does not lead to a different result.

62

a) According to the principle of subsidiarity – including as reflected in § 90(2) first sentence of the Federal Constitutional Court Act – complainants must first exhaust not only all legal remedies in the strict sense but all available procedural possibilities for achieving a correction of the alleged violation of the Constitution or preventing an infringement of fundamental rights before lodging a constitutional complaint (cf. BVerfGE 140, 229 <232 para. 10>; 170, 79 <113 para. 92> – Federal Intelligence Service – Cyberthreats; Federal Constitutional Court, Order of the First Senate of 24 June 2025 - 1 BvR 2466/19 -, para. 78 – Trojan I and Order of the First Senate of 25 June 2025 - 1 BvR 368/22 -, para. 17 – Berlin Higher Education Act; established case-law). Above all, the principle of subsidiarity is intended to ensure that, through a comprehensive prior examination of the allegations by the ordinary courts, the Federal Constitutional Court is presented with underlying facts that have been reviewed at several instances and is informed as to their assessment of the case and legal views; at the same time, it upholds the constitutional division of jurisdiction and tasks, according to which the ordinary courts provide the first defence to violations of the Constitution (cf. BVerfGE 68, 376 <380>; 72, 39 <43>; 77, 381 <401>; 86, 15 <27>; 140, 229 <233 para. 10>).

63

This notwithstanding, the intentional bypass of an available additional appellate instance (on points of fact) by means of a leapfrog appeal should not be viewed as a general bar to admissibility with regard to subsidiarity. By submitting a leapfrog appeal, a complainant deliberately foregoes one appellate instance in which the asserted violation of fundamental rights could, at least potentially, have been remedied. Furthermore, shortening the appeals process by means of a leapfrog appeal could result in a less extensively developed case for constitutional review from both a factual and legal perspective.

64

However, the assumption of a general bar to admissibility in the case of a leapfrog appeal is countermanded by the fact that this would significantly undermine the goals of expedition and economy of proceedings ultimately pursued by the legislator with the inclusion of the leapfrog appeal in various rules of procedure (cf. for example with regard to the Code of Civil Procedure, Bundestag document, Bundestagsdrucksache – BTDrucks 14/4722, p. 108 f.). It would frustrate the aims pursued by granting the possibility of a leapfrog appeal if, by doing so, complainants automatically surrendered any possibility of subsequently lodging a constitutional complaint, because this would create a disincentive to make use of such an appeal.

65

In light of the legislator’s intent with regard to the leapfrog appeal, from the perspective of the principle of subsidiarity, the complainant’s decision for a shortened appeals process does not in principle stand in the way of subsequently lodging a constitutional complaint. In such cases, however, the constitutional complaint may not be based on objections that could have been made only before the appellate instance skipped (explicitly leaving the question open Federal Constitutional Court, Order of the Second Chamber of the Second Senate of 20 December 2023 - 2 BvR 2103/20 -, para. 40; similarly BayVerfGHE 36, 197; […]).

66

b) Against this backdrop, the present constitutional complaint should not be viewed as inadmissible for reasons of subsidiarity simply because the complainant challenged the judgment of the Local Court through a leapfrog appeal. In particular, the complainant does not assert any arguments that could only have been raised in an ordinary court on an appeal on points of fact and law.

C. 

67

To the extent that the constitutional complaint is admissible, it is unfounded. The challenged decisions do not violate the complainant’s fundamental right to freedom of assembly under Art. 8(1) of the Basic Law. The matter at hand does fall within the scope of protection of Art. 8(1) of the Basic Law (see I below). The criminal sentencing of the complainant also constitutes an interference within the scope of protection of the freedom of assembly (see II below). However, contrary to the complainant’s assertions, this interference is constitutionally justified on the basis of the criminal offence under § 21 of the Assemblies Act (see III below).

I. 

68

The present case falls within the scope of protection of Art. 8(1) of the Basic Law, which guarantees all Germans the right to assemble peacefully and unarmed, and without prior registration or permission. The complainant, who is a German citizen within the meaning of Art. 116(1) of the Basic Law, is not limited to asserting the scope of protection of Art. 8(1) of the Basic Law in a personal capacity. His participation in the counter-protest which took place on 10 April 2015 in the Freiburg city centre also falls within the scope of protection of Art. 8(1) of the Basic Law in a functional sense.

69

1. The functional scope of protection of the freedom of assembly, for which the fundamental significance of the freedom of assembly for a democratic society must be taken into account (see a) below), is primarily defined through the term assembly and the extent of conduct that is specific to assemblies (see b) below). However, for those gatherings – especially in the form of a blockade – which are aimed at the disruption, prevention or breaking up of another assembly, there is a need for a more extensive specification and clarification of the existing constitutional standards (see c) below). In any case, the functional scope of protection of the freedom of assembly does not include assemblies that cross the constitutional boundaries of ‘peaceful and unarmed’ (see d) below) or are legally dissolved (see e) below).

70

a) Freedom of assembly is one of the indispensable and foundational conditions of a democratic society and is constitutive for the free democratic state order (cf. BVerfGE 69, 315 <344 f., 347>; 128, 226 <250>). In a democratic society that is fundamentally built on the formation of the political will from bottom to top – in other words, from the people to the organs of the state – free, open, unregulated and, in principle ‘state-free’ influence on the constant process of the formation of political opinion is of essential importance. The continual battle of opinions inherent in a democracy, with its recurring decisions that are made on the basis of the principle of majority rule, requires a continuous free, open and pluralistic discourse in which minorities with different opinions also have a voice and are heard. Against this background, assemblies, as a special form of collective expression of opinion, are an essential element for exercising sufficient influence on the formation of political opinion (cf. on this already BVerfGE 69, 315 <343 ff.>, with particular reference to BVerfGE 20, 56 <98 f.>).

71

This fundamental importance of the freedom to physically assemble for the free democratic state order is not called into question by advancing digitalisation and the growing importance of social media. In an increasingly digitalised world, new platforms and means of communication are constantly emerging that allow individuals to actively contribute to the process of the formation of political opinion. It can therefore no longer be said today that individuals have only limited opportunities to express their opinions and thereby influence this process (as was still the case in BVerfGE 69, 315 <346>). However, in spite or even precisely because of its openness to nearly every expression of opinion, the process of the formation of public opinion that takes place over social media is subject to selective control mechanisms, particularly in the form of algorithms, that exert considerable influence on the audience and the resonance of an expression of opinion (cf. BVerfGE 149, 222 <261 f. para. 79>; 158, 389 <419 para. 80> – State Treaty on the Financing of Public Broadcasting). For this reason, even in an increasingly digitalised world, physical assemblies in public spaces constitute an indispensable instrument of the collective expression of opinion, where a joint communicative aim can both be experienced first-hand and addressed directly to a specific group of recipients or the general public without being dependent on the control mechanisms of online platforms.

72

Against this backdrop, public streets – like their historical archetype, the public forum – continue to serve a function, even in an increasingly digitalised world, as a central social platform through which citizens can publicly express their views in a particularly effective manner and initiate opinion-forming discourse. This space is open to all in the same manner and offers a physical location where opinions and demands as well as protest and discontent can be emblematically ‘brought to the streets’ (cf. on this already BVerfGE 128, 226 <251 ff.>). Public streets and squares thereby provide a pluralistic space characterised by the existence, collision and competition of diverse opinions and ideas, for which the digital world, where the content presented can be tailored by algorithms and targeted to the interests and dispositions of users (cf. on this already BVerfGE 149, 222 <261 f. para. 79>; 158, 389 <419 para. 80>), does not have a complete functional equivalent.

73

And yet, the function of public streets and squares is not limited to merely serving as a physical location for assemblies. Public streets and squares can themselves be an essential part of a collective expression of opinion. In certain cases, the full communicative power of an assembly may only be achieved through the particular location in which it takes place – such as a street, a square or in the vicinity of a particular building – possibly in conjunction with a particular point in time (cf. BVerfGE 69, 315 <323, 345, 365>; 128, 226 <251>). People gather in specific locations to lend greater weight to their respective communicative aim – for instance, to draw on the significance of a location in the collective memory. As a result, the communicative aim of an assembly and the significance of the location of the assembly can have a reciprocal strengthening effect.

74

b) Consequently, Art. 8(1) of the Basic Law protects the freedom to meet with others in a physical location for the purpose of a communal expression or discussion intended to contribute to the formation of public opinion (cf. BVerfGE 104, 92 <104>; 111, 147 <154 f.>; 128, 226 <250>; 143, 161 <210 para. 110>). The protection of the freedom of assembly is not limited to gatherings involving debates and arguments, but also comprises diverse forms of collective activities and even nonverbal forms of expression (cf. BVerfGE 69, 315 <343>; 87, 399 <406>; 104, 92 <103 f.>; 143, 161 <210 para. 110>). It also includes protests in which the freedom of assembly is exercised for the purpose of expressing opinions in a provocative or sensational manner (BVerfGE 69, 315 <343>); this can in principle also take the form of a counter-protest. In their characteristic form, protests are collective physical displays of a message, in which the participants experience the affirmation of their message in fellowship with others and also – merely by being present as well as through the manner of the gathering and the selection of the location – outwardly express a position in the true sense of the word and bear witness to their point of view (cf. BVerfGE 69, 315 <345>; 128, 226 <250>). Assemblies within the meaning of Art. 8(1) of the Basic Law can also include sit-in blockades (cf. BVerfGE 73, 206 <248>; 87, 399 <406>; 104, 92 <103 f.>).

75

The freedom of assembly under Art. 8(1) of the Basic Law guarantees holders of this fundamental right not only the freedom to participate or not participate in a public assembly, but also the right to determine the location, time, form and content of the event themselves. Citizens should be able to decide for themselves the location in which their message – including in regard to references to specific locations or buildings – can be expressed most effectively (cf. BVerfGE 69, 315 <343>; 128, 226 <250 f.>).

76

c) For those gatherings – especially in the form of a blockade– that are aimed at the disruption, prevention or breaking up of another assembly, there is a need for a more detailed differentiation. The general standards developed by the Federal Constitutional Court with regard to blockades, according to which there is a distinction between those actions with the aim of contributing to the formation of public opinion and those aimed at coercion or taking the law into one’s own hand to implement demands (cf. BVerfGE 104, 92 <104 f.>) are not directly transferable to the constellation at issue here. This is because in a blockade that is specifically directed against another assembly and its specific communicative aims, there is close relationship between taking the law into one’s own hands to implement one’s own demands – the forced cancellation of the other assembly – and contributing to the formation of public opinion.

77

aa) A gathering that is directed solely at disrupting another assembly and not also aimed at contributing to the formation of public opinion does not fall within the scope of protection of the freedom of assembly, because it does not itself qualify as an assembly under Art. 8(1) of the Basic Law.

78

Because a gathering must be directed at contributing to the formation of public opinion in order to fall within the fundamental right’s scope of protection (cf. on this para. 74), it is not sufficient for purposes of Art. 8(1) of the Basic Law for the participants to be united by any arbitrary purpose as part of their collective expression (cf. BVerfGE 104, 92 <104>; 143, 161 <210 para. 110>; established case-law). Thus, the singular intent to disrupt as ‘aliud to shaping public opinion’ ([...]) precludes a classification as an assembly within the meaning of Art. 8(1) of the Basic Law.

79

It is not necessary to decide here how to weigh the communicative aim and what constitutional assessment to make if a blockade does indeed involve an element of contributing to the formation of public opinion, but one which is limited to what is generally part of any disruption – negating the message that is thereby disrupted or suppressed.

80

bb) In complex situations in which elements of disrupting another assembly and of contributing to the formation of public opinion come together – which is typically the case –, a gathering falls within the scope of protection of Art. 8(1) of the Basic Law if it includes – beyond the mere negation of the message of the assembly that is the target of the disruption (cf. on this para. 79) – a distinct element of contributing to the formation of public opinion, regardless of its relative weight compared to the element of disrupting.

81

At its core, the freedom of assembly enshrined in the Basic Law is protected as a means for intellectual debate (cf. BVerfGE 69, 315 <359 f.>). This does not mean, however, that a blockade no longer merits protection simply because in addition to the distinct element of contributing to the formation of public opinion that is the aim of the action, there is another element that is outside the realm of intellectual debate ([...]). Such an extensive preclusive effect – beyond the intrinsic boundaries of ‘peaceful and unarmed’ laid down in Art. 8(1) of the Basic Law – has no basis in the understanding of the term assembly in constitutional law ([...]).

82

Assessing the focus of the respective blockade based on its overall character – much like the assessment of so-called ‘mixed’ events (cf. BVerfGE 143, 161 <210 ff. para. 110 ff.>) – is also unpersuasive. Unlike a ‘mixed’ event, in a blockade, it is practically impossible to clearly separate and classify the factual circumstances regarding the dimension of the formation of public opinion on the one hand and that of disrupting another assembly on the other. In addition, the weighing process necessary for assessing the focus of the blockade is hindered by the fact that the elements of contributing to the formation of public opinion and the elements of disrupting that converge in a blockade differ too greatly in terms of their form, mechanism and purpose to allow for a comparison based on weight.

83

The present case does not call for any further delimitation of the constitutional boundaries. This is particularly true for the question of whether another assessment can be made in exceptional cases when the relevant communicative element is of particularly little significance.

84

cc) The same applies to gatherings which – beyond causing a mere disruption – are aimed at preventing or breaking up another assembly ([…]). In particular, an exception from the scope of protection of Art. 8(1) of the Basic Law for such gatherings is not supported on the basis of the decision of the Federal Constitutional Court of 11 June 1991 (BVerfGE 84, 203; explicitly leaving the question open Chamber Decisions of the Federal Constitutional Court, Kammerentscheidungen des Bundesverfassungsgerichts – BVerfGK 11, 102 <108>).

85

The subject of the aforementioned Senate decision was the question whether an act of the state that denied a person access to an assembly because they sought to break up the assembly rather than participate in it constitutes an interference within the scope of protection of Art. 8(1) of the Basic Law. In this particular instance, the Federal Constitutional Court held that the protection of Art. 8 of the Basic Law ends when it is no longer a matter of participating – albeit as a critic – in an assembly but impeding the assembly. The Court stated that the fundamental right to freedom of assembly requires the readiness to accept the existence of the assembly as it is and to pursue contrary aims solely by communicative means. Conversely, the Court noted, one who attends an assembly with the intention of preventing it from taking place through their actions cannot invoke the fundamental right under Art. 8 of the Basic Law. The same is true when this is undertaken with others as a group. The Court concluded that the fact that multiple persons are acting together does not bring the action within the scope of the freedom of assembly, when the aim of the cooperation is solely to stop an assembly (cf. BVerfGE 84, 203 <209 f.>).

86

The standards set out in that decision thus only pertain to the spectrum of conduct protected under Art. 8(1) of the Basic Law within a specific assembly. As described above (para. 75), Art. 8(1) of the Basic Law guarantees the freedom to participate or not to participate in a specific assembly. By contrast, conduct that is aimed at preventing or breaking up this same assembly is not covered by the scope of protection of Art. 8(1) of the Basic Law, regardless of whether it is carried out alone or in cooperation with others. This is because the intention of participating in an assembly in the interest of collectively forming and expressing an opinion is incompatible with the intention of impeding this assembly.

87

These considerations are not directly transferable to an independent counter-protest that is directed at impeding another assembly. The purpose of such a counter-protest is generally not limited to preventing or breaking up another assembly, and thereby suppressing another’s opinion, but instead typically also includes the pursuit of an independent communicative aim ([...]). Furthermore, in the case of an independent counter-protest, the counter-protesters may intend both to participate in their own counter-protest and to impede the other initial assembly – these two intentions are not mutually exclusive.

88

d) Furthermore, the scope of protection under Art. 8(1) of the Basic Law is limited to assemblies in which the people assemble ‘peacefully and unarmed’.

89

An assembly is not peaceful when dangerous behaviour such as aggressive rioting against persons or property or other violence occurs, but the impairment of third parties is not itself sufficient, even when it is intentional and not merely accepted as a possible risk (cf. BVerfGE 73, 206 <248>; 87, 399 <406>; 104, 92 <106>). In this regard, it is only the constitutional term of not peaceful that is decisive, and not ordinary law terms such as the more comprehensive concept of violence used in the criminal law (cf. BVerfGE 73, 206 <248>; 104, 92 <106>).

90

The present case does not require a comprehensive definition of the term ‘armed’ as used in Art. 8(1) of the Basic Law. As a negative definition, the term ‘armed’ within the meaning of Art. 8(1) of the Basic Law must in any case exclude objects which – without being weapons in the technical sense – are carried solely for the purpose of implementing or supporting the permissible purpose of the assembly ([...]).

91

e) An assembly only loses its protection from Art. 8(1) of the Basic Law once it is lawfully dissolved (cf. BVerfGE 73, 206 <250, 253>; 104, 92 <106 f.>).

92

2. In the case at hand, the participation of the complainant in the counter-protest on 10 April 2015 was in any event protected by the freedom of assembly under Art. 8(1) of the Basic Law for the time period of 6:05 to 6:20 p.m.

93

a) Measured against the aforementioned standards (para. 74 ff.) and on the basis of the findings of the ordinary courts, the relevant counter-protest here in the form of a sit-in blockade must be classified as an assembly within the meaning of Art. 8(1) of the Basic Law.

94

According to the findings of the Local Court, on the afternoon of 10 April 2015, approximately 70 persons, including the complainant, met at a physical location, namely, under both arches of the Martinstor in Freiburg, to engage in a sit-in blockade. With regard to the aim of the gathering, it can be inferred from the findings of the ordinary courts with sufficient clarity that the counter-protest was not solely directed at disrupting, preventing or breaking up the initial assembly, but also involved a contribution to the formation of public opinion.

95

It need not be determined whether indications of a distinct communicative element of the counter-protest can be inferred simply from the earlier appeal of the group ‘(...)’, which included the following sentence: ‘Despite heavy-handed repression and a large police presence, we will disrupt the march of the ultra-reactionaries and will not be deterred from our legitimate protest!’. In addition to the clearly articulated intent to disrupt, the appeal also contains the deliberate statement ‘legitimate protest’; however, it is questionable whether the statement ‘legitimate protest’ has on its own a sufficiently distinct communicative element or whether the communicative aim begins and ends with the negation of the message expressed by the organisation. There was in any case a distinct communicative element during the counter-protest in the form of specific substantive statements such as group chants and banners with various slogans (cf. on this para. 5).

96

In this respect, it is not necessary to assess whether one sees the focus of the event as the disruption of the assembly of protesters or as the distinct communication made by the counter-protesters. The communicative element of the counter-protest in any case is not one of particularly little significance, so that the counter-protest meets the criteria of an assembly under the aforementioned standard.

97

Consequently, the participation of the complainant in the counter-protest protected by Art. 8(1) of the Basic Law falls within the scope of protection of the freedom of assembly.

98

b) The sit-in blockade carried out in this case also remained within the boundaries of Art. 8(1) of the Basic Law with regard to the criteria ‘peaceful’ and ‘unarmed’.

99

The counter-protest can be classified as ‘peaceful’ within the meaning of Art. 8(1) of the Basic Law (cf. on this para. 89). The findings of the ordinary courts do not present sufficient indication that the counter-protesters blocking the way at the Martinstor, including the complainant, engaged in conduct of such danger that would have led to the counter-protest becoming not peaceful, such as aggressive rioting against persons or property or other violence. The conduct of the counter-protesters was essentially limited to sitting in multiple rows, with some individuals interlinking arms, on the street under both arches of the Martinstor in order to make the planned procession route of the protesters unpassable. It also cannot be inferred from the findings of the ordinary courts that the noise generated by the counter-protesters could have reached a level of danger comparable to aggressive rioting or other violence. The impediment to the procession of the protesters caused by the sit-in blockade cannot by itself justify a finding that the counter-protest was not peaceful – even if this impediment was the intentional aim of the counter-protest.

100

The counter-protest was also ‘unarmed’ within the meaning of Art. 8(1) of the Basic Law. According to the findings of the ordinary courts, the counter-protesters brought with them and deployed only signs, banners, whistles and a siren. Regardless of the exact scope of the term ‘arms’ within the meaning of Art. 8(1) of the Basic Law (para. 90), such objects are not sufficient to deprive the counter-protest of its nature as an ‘unarmed’ assembly.

101

c) That the counter-protest was ultimately dissolved by the police does not mean that the counter-protest did not fall within the scope of protection (on this see para. 91). According to the findings of the ordinary courts, the police did not call for the dissolution of the counter-protest until 6:20 p.m. Regardless of the legality of the dissolution of the counter-protest, the complainant’s criminal sentence was in any event based on a period of 15 minutes – 6:05 to 6:20 p.m. – in which his conduct was covered by the scope of protection of the freedom of assembly under Art. 8(1) of the Basic Law (cf. on this also BVerfGE 104, 92 <106>).

II. 

102

The criminal sentence against the complainant for conduct falling within the scope of protection of Art. 8(1) of the Basic Law therefore constitutes an interference with the freedom of assembly.

III. 

103

This interference, however, is justified under constitutional law.

104

1. The classification of conduct as falling within the scope of protection of a fundamental right does not on its own render it lawful and rule out any form of criminal punishment. According to general fundamental rights doctrine, unlawfulness or, in some cases, even criminal liability for conduct which is protected by fundamental rights can be derived from respective limitations on fundamental rights (cf. on this BVerfGE 104, 92 <107>).

105

Even the freedom of assembly is not guaranteed without limitation. In the case of outdoor assemblies, interferences with this fundamental right by or pursuant to a law are permissible in accordance with Art. 8(2) of the Basic Law, particularly to guarantee the conflicting interests of third parties (cf. BVerfGE 87, 399 <406>). These laws also include the (general) criminal laws. The classification of a (general) criminal law as a limitation on the freedom of assembly pursuant to Art. 8(2) of the Basic Law is not precluded by the fact that Art. 8(2) of the Basic Law requires rules from the legislator that are consciously and explicitly directed at citizens’ freedom of assembly (cf. BVerfGE 128, 226 <257>). The right accorded to the fundamental rights holder under Art. 8 of the Basic Law to determine the location, time as well as the form and content of the event is subject to limits for the protection of the legal interests of third parties and the general public. This right also does not include the power to decide which impairments the holders of conflicting legal interests must accept (cf. BVerfGE 104, 92 <108>). These boundaries are maintained not only through the Assemblies Act, but also through the general legal order. Against this backdrop, the Federal Constitutional Court has made clear that conduct which is generally prohibited is not rendered lawful solely because it is engaged in with others in the form of an assembly (cf. BVerfGE 104, 92 <107 f.>). Criminal liability for conduct that falls within the scope of protection of the freedom of assembly on the basis of a (general) criminal offence does not necessarily require a prior (lawful) dissolution of the assembly in question, which would remove the protection of the freedom of assembly pursuant to Art. 8(1) of the Basic Law (cf. BVerfGE 104, 92 <106 f>); whether and under what circumstances exceptions might be constitutionally required in the individual case – especially in consideration of peculiarities in the respective criminal or administrative offence – need not be decided in this case (cf. in this regard on the administrative offence of § 29(1) no. 2 of the Assemblies Act BVerfGE 87, 399 <408 ff.>).

106

The relevant restriction pursuant to Art. 8(2) of the Basic Law on the freedom of assembly in the present case is set forth in the criminal offence under § 21 of the Assemblies Act. This criminal offence is – despite being part of the Assemblies Act – a general criminal offence and not one specifically directed at restricting the freedom of assembly. Certainly, the subject matter it is intended to protect – non-prohibited assemblies and processions – is related to the freedom of assembly. However, the conduct subject to criminal punishment is not conduct specific to an assembly, but any conduct that amounts to committing or threatening acts of violence or causing ‘serious disruptions’. That § 21 of the Assemblies Act may in the individual case also set limits on the freedom of assembly under Art. 8(1) of the Basic Law within the general legal order to guarantee the conflicting interests of third parties does not mean that it constitutes a criminal offence directed at assembly-specific conduct.

107

As the legal basis for the interference with the complainant’s freedom of assembly, however, the criminal offence under § 21 of the Assemblies Act must be in its own right constitutional (see 2 below) and also be applied in a manner that is not constitutionally objectionable (see 3 below).

108

2. The criminal offence under § 21 of the Assemblies Act in the variation criminalising ‘serious disruptions’ challenged in this case satisfies the constitutional requirements; it is both formally (see a) below) and substantively (see b) below) constitutional.

109

a) § 21 of the Assemblies Act is formally constitutional. Not only did the legislator have the requisite legislative competence (see aa) below), contrary to the submissions of the complainant, there is also no violation of the requirement to specify affected fundamental rights pursuant to Art. 19(1) second sentence of the Basic Law (see bb) below).

110

aa) The criminal offence under § 21 of the Assemblies Act is within the legislative competence of the Federation. [...]

111

bb) The requirement to specify affected fundamental rights pursuant to Art. 19(1) second sentence of the Basic Law is not violated by the lack of a specification of the restriction of the freedom of assembly under Art. 8(1) of the Basic Law entailed by the criminal offence under § 21 of the Assemblies Act.

112

(1) Art. 19(1) second sentence of the Basic Law requires that a law state the fundamental right that is restricted or can be restricted by this law, specifying the relevant article.

113

(a) The requirement to specify affected fundamental rights serves as a warning and encourages reflection (cf. BVerfGE 64, 72 <79 f.>; 113, 348 <366>; 120, 274 <343>; 129, 208 <236>; 130, 1 <39>; 156, 63 <130 para. 230> – Electronic monitoring; 170, 293 <335 para. 97> – Statutory requirement of hospitalisation for coercive medical treatment). The requirement that an interference with a fundamental right be specified in the wording of the law is intended to ensure that the legislator is aware of any interferences with fundamental rights resulting from its legislation and that the decision is made in awareness of the effects on the affected fundamental rights (cf. BVerfGE 113, 348 <366>; 129, 208 <236 f.>; 130, 1 <39>; 170, 293 <335 para. 97>; Federal Constitutional Court, Order of the First Senate of 24 June 2025 - 1 BvR 180/23-, para. 246 – Trojan II; each with further references). An explicit reference also makes it easier to discuss the necessity and degree of the contemplated interference with fundamental rights in the public debate (BVerfGE 113, 348 <366>; 120, 274 <343>; 129, 208 <237>).

114

(b) The requirement to specify affected fundamental rights pursuant to Art. 19(1) second sentence of the Basic Law must be interpreted narrowly so that it does not become a mere empty formality that unnecessarily hinders legislation (cf. BVerfGE 28, 36 <46>; 35, 185 <188>; 64, 72 <80>).

115

The wording of Art. 19(1) second sentence of the Basic Law in conjunction with its first sentence – 'a fundamental right...restricted by or pursuant to a law’ – demonstrates that the requirement to specify affected fundamental rights serves to protect those fundamental rights which are subject to a limitation clause provided for in the Basic Law, and which can therefore be restricted beyond the limits inherent in the respective fundamental right itself (cf. BVerfGE 24, 367 <396>; 64, 72 <79>; 156, 63 <130 para. 230>; 162, 378 <417 para. 92> – Proof of vaccination <measles>; 170, 293 <335 para. 97>). This requirement distinguishes between these types of restrictions of fundamental rights and other legislation that affects fundamental rights and is enacted by the legislator in the execution of its legislative duties, the determination of contents or the setting of limits provided for under the respective fundamental right (cf. BVerfGE 64, 72 <80>; 156, 63 <130 para. 231>; 162, 378 <417 para. 92>; 170, 293 <335 para. 97>). In this case, the function of the requirement to warn and encourage reflection appears to have less weight, as the legislator generally is already aware that it is acting in an area of the law that affects fundamental rights (cf. BVerfGE 64, 72 <80>).

116

The fact that constitutional limitations inherent in the Basic Law may also be specified and conflicting constitutional positions reconciled with one another does not lead to a different conclusion. The scope of the requirement to specify affected fundamental rights is determined solely by whether the law restricts the content of a fundamental right laid down in the Constitution itself on the basis of an express limitation clause or concerns other measures that affect fundamental rights, such as the determination of contents and other legislation that the Constitution requires the legislator to enact in order to give effect to fundamental rights protection (cf. BVerfGE 64, 72 <81>). Insofar as a rule that restricts fundamental rights is based on an express limitation clause specific to a fundamental right or can be based on such clause, it is irrelevant for the scope of application of the requirement to specify affected fundamental rights, whether and to what extent the rule in question also serves to protect conflicting constitutional interests ([...]). In this respect, this constellation also differs from those fundamental rights that are guaranteed without limitation and for which Art. 19(1) second sentence of the Basic Law does not apply (cf. for example BVerfGE 83, 130 <154>; 162, 378 <416 f. para. 92>). Particularly in the case of interferences with fundamental rights that are guaranteed without limitation, it can be assumed that the legislator is more acutely aware that it is acting in an area that affects fundamental rights, because it must rely on a conflicting constitutional position, and particularly on conflicting fundamental rights, in order to justify such an interference. A comparable necessity to account for reconciling conflicting constitutional rights does not exist with regard to fundamental rights subject to limitation clauses.

117

In addition, the case-law of the Federal Constitutional Court recognises various exceptions from the requirement to specify affected fundamental rights pursuant to Art. 19(1) second sentence of the Basic Law: In particular, the requirement does not apply to laws which predate the Basic Law (cf. BVerfGE 2, 121 <122 f.>; 5, 13 <16>; 28, 36 <46>; 28, 282 <289>; 124, 43 <66>) or laws enacted after the Basic Law which merely restate pre-existing restrictions of fundamental rights or do so with minimal changes (cf. BVerfGE 5, 13 <16>; 15, 288 <293>; 35, 185 <188 f.>; 61, 82 <113>; 129, 208 <237>; 154, 152 <236 f. para. 134> – Federal Intelligence Service – Surveillance of foreign telecommunications; 155, 119 <176 para. 121> – Subscriber data II). Furthermore, the requirement does not apply when the rules in question do not create any specific sovereign decision-making powers (cf. BVerfGE 128, 226 <258>). Moreover, an indication that a law restricts fundamental rights may not be necessary when the interference is manifestly apparent (cf. BVerfGE 35, 185 <189>; 156, 63 <130 para. 230>).

118

(c) The scope of application of the requirement to specify affected fundamental rights pursuant to Art. 19(1) second sentence of the Basic Law is further restricted to those requirements that can be fulfilled by the legislator.

119

(aa) The requirement to specify affected fundamental rights is meant to ensure that the legislator is aware of any interferences with fundamental rights resulting from its legislation and that the decision is made in awareness of the effects on the affected fundamental rights (warning and reflection function cf. para. 113). However, the resulting requirements must be limited to what is realistically recognisable and feasible for the legislator, in order to account for the function of the requirement to specify affected fundamental rights. If the requirements are too high, then the legislator is left with no choice but to cite fundamental rights that are in its view not affected in an abundance of caution, which would substantially undermine the requirement to specify affected fundamental rights (cf. on this also BVerfGE 170, 293 <335 para. 97>; Federal Constitutional Court, Order of the First Senate of 24 June 2025 - 1 BvR 180/23 -, para. 246; […]).

120

(bb) In view of the foregoing, the requirement to specify affected fundamental rights pursuant to Art. 19(1) second sentence of the Basic Law can only apply to restrictions of fundamental rights which have been foreseen by the legislator or which were sufficiently foreseeable ([...]).

121

In order to assume that the legislator actually foresaw and recognised a restriction of fundamental rights entailed by a law, there must be sufficiently clear indications present. Such indications can be drawn from the explanatory memorandum to the draft law, but may also be derived from related clarifying or explanatory statements made during the subsequent legislative process.

122

When examining whether a restriction was sufficiently foreseeable for the legislator, the decisive factor is what can realistically be expected of a diligent legislator. In light of this, a review of whether a restriction was sufficiently foreseeable must proceed from a strictly ex ante perspective ([…]). The legislator is in principle only able to base its review of the fundamental rights relevance on the particular circumstances which were recognisable at the time the legislative decision was made. Based on this ex ante perspective, there must be both a reasonable limitation on the actual cases in which the law will apply that the legislator must take into account (see α below) as well as an appropriate restriction on the breadth of legal views it must consider (see β below). The legislator is not obligated to update the list of fundamental rights it considers to be affected at a later point in time if its ex ante assessment turns out to be incorrect in factual or legal respects (see γ below).

123

(α) From a factual point of view, the legislator needs to take into account only those cases which it had in mind when enacting the provision in question and those which should have been obvious in any case. In enacting a law, it need not identify to the last detail all possible cases in which the law will apply or anticipate as-yet unknown and new types of cases to which the law might apply. This is particularly true for laws in the form of general clauses and for general criminal offences.

124

(β) From a legal point of view, the legislator is required to base its assessment regarding possible restrictions of fundamental rights on the previous case-law of the Federal Constitutional Court. However, for those questions regarding fundamental rights that have not been definitively clarified, the standard for foreseeability must be more lenient.

125

(γ) The requirement to specify affected fundamental rights pursuant to Art. 19(1) second sentence of the Basic Law only establishes a requirement for the specific legislative process, which the legislator must take into account at the time of its respective legislative decision on a law that restricts fundamental rights. As can be seen from the case-law of the Federal Constitutional Court regarding the applicability of the requirement to specify affected fundamental rights on laws which predate the Basic Law or were enacted after the Basic Law and basically restate pre-existing restrictions of fundamental rights (cf. on this para. 117), the legislator’s obligation pursuant to Art. 19(1) second sentence of the Basic Law to specify affected fundamental rights does not extend to updates to a list of affected fundamental rights. The same is true if a restriction of fundamental rights which was not sufficiently foreseeable by the legislator from either a factual or legal point of view at the time later becomes apparent ([...]).

126

(cc) The requirement detailed above, according to which the applicability of the requirement to specify affected fundamental rights primarily depends upon whether the legislator foresaw or could have sufficiently foreseen such a restriction, is a mandatory criterion for the applicability of Art. 19(1) second sentence of the Basic Law, but is not necessarily sufficient on its own. Due to the variety of ways in which interferences with fundamental rights may occur – particularly since the expansion of the classical understanding of the term interference to include both indirect and de facto interferences with fundamental rights (cf. only BVerfGE 116, 202 <222>) – additional limits on the scope of application of Art. 19(1) second sentence of the Basic Law may be warranted, either generally or at least for specific areas of the law or specific types of interferences with fundamental rights. The present case, however, does not require a comprehensive clarification or further differentiation in this regard. It need not be decided whether and under what circumstances the scope of application of the requirement to specify affected fundamental rights pursuant to Art. 19(1) second sentence of the Basic Law – in connection with the existing case-law of the Federal Constitutional Court – requires further constraints, for example, that the interference be the intended result (Finalitätskriterium).

127

(2) With this in mind, no violation of the requirement to specify affected fundamental rights pursuant to Art. 19(1) second sentence of the Basic Law can be found in the case at hand. It is true that there is no provision regarding the criminal offence set forth in § 21 of the Assemblies Act that refers to a restriction of Art. 8(1) of the Basic Law (see (a) below). In addition, the criminal offence under § 21 of the Assemblies Act entails an interference with the freedom of assembly under Art. 8(1) of the Basic Law (see (b) below), which can be classified as a restriction ‘by or pursuant to a law’ (see (c) below). Moreover, none of the generally recognised exceptions to the requirement to specify affected fundamental rights apply here (see (d) below). Nevertheless, this does not result in a violation of the requirement to specify affected fundamental rights pursuant to Art. 19(1) second sentence of the Basic Law, because the legislator did not foresee the restriction of the freedom of assembly under Art. 8(1) of the Basic Law that is entailed by § 21 of the Assemblies Act and such restriction was not, from an ex ante perspective, sufficiently foreseeable (see (e) below).

128

(a) There is no provision specifying a fundamental right – particularly the one relevant here, Art. 8(1) of the Basic Law – that is restricted by the criminal offence under § 21 of the Assemblies Act.

129

Contrary to the statement of the Federal Government, it cannot be assumed that the specification of affected fundamental rights contained in § 20 of the Assemblies Act also satisfies the requirement to specify affected fundamental rights for the criminal offence under § 21 of the Assemblies Act. The specification in § 20 of the Assemblies Act, which has remained unchanged since the entry into force of the Act on Assemblies and Processions (Assemblies Act) of 24 July 1953 (Federal Law Gazette, Bundesgesetzblatt – BGBl I p. 684) only refers to a restriction of the freedom of assembly under Art. 8 of the Basic Law by the provisions of Section III of the Assemblies Act; § 21 of the Assemblies Act, which forms part of Section IV of the law, is not included.

130

[…]

131

(b) The criminal offence under § 21 of the Assemblies Act in the variation relevant here –namely, causing ‘serious disruptions’– also entails a direct restriction of the freedom of assembly protected by Art. 8(1) of the Basic Law. The direct restriction of the freedom of assembly results from the fact that the criminal offence under § 21 of the Assemblies Act prohibits inter alia conduct in the context of an independent counter-protest protected by Art. 8(1) of the Basic Law that falls within the scope of the freedom of assembly.

132

The criminal conduct prohibited by § 21 of the Assemblies Act includes committing or threatening acts of violence or causing serious disruptions with the intention of preventing or breaking up or in any other way thwarting non-prohibited assemblies or processions.

133

To the extent the criminal offence prohibits the commission or threat of violence to prevent, break up or thwart an assembly, it is unlikely to entail a restriction of the scope of protection of the freedom of assembly pursuant to Art. 8(1) of the Basic Law. An independent counter-protest in which such conduct prohibited by § 21 of the Assemblies Act occurs is, as a general rule, unlikely to be covered by the scope of protection of the freedom of assembly pursuant to Art. 8(1) of the Basic Law because it is not peaceful (cf. for detail para. 88 f.).

134

The circumstances are different, however, in the case of the variation of causing ‘serious disruptions’ to prevent, break up or thwart an assembly that is challenged in these proceedings. As can be seen from the standards mentioned above (para. 76 ff.), an intent to prevent, break up or thwart an assembly within the meaning of § 21 of the Assemblies Act does not necessarily preclude the qualification of a blockade as an assembly within the meaning of Art. 8(1) of the Basic Law, even in case of targeted blockades; this applies at a minimum in cases when the relevant blockade displays a distinct element of contributing to the formation of public opinion (in detail para. 80). Moreover, the act of causing ‘serious disruptions’ also covers conduct which, in the absence of violence or aggressive rioting remains within the constitutional threshold of a peaceful assembly and thus still falls within the scope of conduct protected by Art. 8(1) of the Basic Law.

135

(c) This restriction of the freedom of assembly protected by Art. 8(1) of the Basic Law is also ‘by a law or pursuant to a law’ within the meaning of Art. 19(1) second sentence of the Basic Law in conjunction with its first sentence. Insofar as the criminal offence under § 21 of the Assemblies Act relates to outdoor assemblies and prohibits specific conduct that is covered by Art. 8(1) of the Basic Law, this restriction of the freedom of assembly is based on the general limitation clause in Art. 8(2) of the Basic Law.

136

The criminal offence under § 21 of the Assemblies Act is not a provision that the legislator has enacted solely in execution of its legislative duties, the determination of contents or the setting of limits provided for under the respective fundamental right (cf. on this para. 115). A specific legislative duty to determine the content and limits of the freedom of assembly cannot be inferred from Art. 8(1) of the Basic Law. Nor does the criminal offence under § 21 of the Assemblies Act serve to further specify the boundaries of ‘peaceful and unarmed’ because it extends – certainly with regard to the variation of causing ‘serious disruptions’ – far beyond the boundaries set out in the fundamental right itself.

137

In accordance with the constitutional standards set out above, no other conclusion can be drawn from the fact that the criminal offence under § 21 of the Assemblies Act may also serve to specify constitutional limitations inherent in the Basic Law and to reconcile conflicting constitutional positions (cf. Rn. 116).

138

(d) The exceptions to the requirement to specify affected fundamental rights pursuant to Art. 19(1) second sentence of the Basic Law (para. 117) that have been recognised in the case-law of the Federal Constitutional Court are not relevant to the criminal offence under § 21 of the Assemblies Act.

139

(aa) The criminal offence under § 21 of the Assemblies Act does not predate the Basic Law. The provision was first introduced in a reform of the law on assemblies after the entry into force of the Basic Law as part of the Act on Assemblies and Processions (Assemblies Act) of 24 June 1953 (BGBl. I p. 684).

140

(bb) Nor can the criminal offence under § 21 of the Assemblies Act be classified as a provision enacted after the Basic Law that merely restates pre-existing restrictions of fundamental rights either fully or with minimal changes.

141-144

[…]

145

(cc) None of the other exceptions recognised in the case-law of the Federal Constitutional Court (para. 117) apply either. First, the criminal offence under § 21 of the Assemblies Act is a provision that confers a specific sovereign power. Second, the interference with the freedom of assembly entailed by § 21 of the Assemblies Act in any case cannot be viewed as manifestly apparent, because the criminal offence therein does not impose criminal punishment solely against conduct that is specific to assemblies.

146

(e) Nevertheless, the requirement to specify affected fundamental rights pursuant to Art. 19(1) second sentence of the Basic Law has not been triggered. With regard to the relevant point in time (see (aa) below), it cannot be ascertained that the legislator, in enacting the criminal offence under § 21 of the Assemblies Act, actually foresaw the restriction of the freedom of assembly (see (bb) below) or could have sufficiently foreseen such a restriction (see (cc) below).

147

(aa) The relevant point in time for assessing the foreseeability is the enactment of the Act on Assemblies and Processions (Assemblies Act) of 24 June 1953 (BGBl. I p. 684), through which § 21 of the Assemblies Act was first introduced. The constituent elements of the criminal offence have remained unchanged to the present day. The later promulgation of the revised Assemblies Act of 15 November 1978 (BGBl. I p. 1789) by the Federal Minister of the Interior is – contrary to the complainant’s contentions – not relevant to the legal question at issue here. Such promulgation by a Federal Minister, made on the basis of an express statutory authority, is not a constitutive legislative act at all, but merely serves as a declaratory clarification of a statutory text (cf. BVerfGE 64, 217 <221> with further references).

148

(bb) Based on the standards described above (para. 121), it cannot be presumed that the legislator in 1953 specifically recognised and foresaw the restriction of the freedom of assembly protected by Art. 8(1) of the Basic Law entailed by the criminal offence under § 21 of the Assemblies Act. Sufficiently clear indications of such recognition by the legislator cannot be inferred from either the explanatory memorandum to the draft law or the other legislative materials on the Act on Assemblies and Processions (Assemblies Act) of 24 June 1953 (BGBl. I p. 684). To the extent that the Bundesrat submitted an application to supplement the provision specifying the affected fundamental rights and move it to the beginning of Section V of the act, the reasons for this application were exclusively related to the fundamental right to freedom of expression under Art. 5 of the Basic Law and not the freedom of assembly under Art. 8 of the Basic Law (cf. BTDrucks 1/1102, p. 19 f.). The general criticism expressed during the debates on the draft act in the Bundestag that § 21 of the Assemblies Act would lead in particular to ‘overly strong constraints on political freedom’ (member of the Bundestag Dr. Menzel <SPD>, Bundestag Minutes of Plenary Proceedings 1/264, p. 12865) is, in and of itself, insufficient.

149

(cc) The restriction of the freedom of assembly entailed by the criminal offence under § 21 of the Assemblies Act was also not sufficiently foreseeable for the legislator in 1953, either from a factual (see (α) below) or a legal (see (β) below) perspective.

150

(α) In the present case, sufficient foreseeability from a factual point of view can be ruled out (cf. on this para. 123). The types of cases in which § 21 of the Assemblies Act would apply which the legislator in 1953 had in mind would – even from today’s perspective – not fall within the scope of protection of Art. 8(1) of the Basic Law. Additional cases in which § 21 of the Assemblies Act might apply would not have been obvious to the legislator at the time.

151

The types of cases that the legislator at the time of the enactment of § 21 of the Assemblies Act considered that the criminal offence would apply to can be ascertained above all from the minutes of the plenary proceedings on the second and third reading of 6 May 1953. In the context of intense debate over § 21 of the Assemblies Act and, in particular, the variation of causing ‘serious disruptions’, specific references were made, for example, to ‘organised gangs, [who are] only there to break up an assembly’ (member of the Bundestag Euler <FDP> Bundestag Minutes of Plenary Proceedings 1/264, p. 12864), as well as dedicated ‘demolition squads’ (member of the Bundestag Ewers <DP> Bundestag Minutes of Plenary Proceedings 1/264, p. 12889). Further examples given included ‘the planned singing of songs or imitations of lion roars with the intention to break up [an assembly]’ (member of the Bundestag Ewers <DP>, Bundestag Minutes of Plenary Proceedings 1/264, p. 12869; and similarly, member of the Bundestag Euler <FDP>, Bundestag Minutes of Plenary Proceedings 1/264, p. 12865). There were also references made to serious disruptions as including ‘massed [...] heckling [...]’ or ‘the singing of specific political opposition songs’ (member of the Bundestag Dr. Menzel <SPD>, Bundestag Minutes of Plenary Proceedings 1/264, p. 12865). The case of a drunkard causing serious disruption at an assembly was also critically considered (member of the Bundestag Meitmann <SPD>, Bundestag Minutes of Plenary Proceedings 1/264, p. 12864). The examples make clear that at the time of the enactment of the legislation at issue, the debate was primarily characterised by disruptive actions by individuals who were not, at least not intentionally, united in expressing a collective opinion. Even under today’s standards, it is unlikely that this type of case would fall within the scope of protection of Art. 8(1) of the Basic Law.

152

It also cannot be assumed that careful examination would have made additional cases in which § 21 of the Assemblies Act would apply obvious to the legislator. In this context, it must particularly be taken into account that while the legislator of 1953 did not ignore the experiences of the Weimar era, it was guided to a much lesser extent by them than by the experiences of the early Federal Republic of Germany (cf. for example statements of member of the Bundestag Euler <FDP>, Bundestag Minutes of Plenary Proceedings 1/83, p. 3127). As the Federal Government also correctly points out in its statement of 15 May 2025, the phenomenon of (peaceful) sit-in blockades in particular did not come into existence in Germany until the end of the 1950s.

153

Above all, the regulatory model chosen by the legislator – in this case, understandably so – supports the finding that additional cases in which § 21 of the Assemblies Act could apply were not obvious at the time. In order to achieve the goal of the most effective protection for the viability of assemblies, the legislator decided against enumerating specific and more detailed types of conduct in § 21 of the Assemblies Act. Rather, it sought to avoid potential loopholes by choosing the general, broadly formulated variation of causing ‘serious disruptions’. This resulted in the provision covering numerous different cases, each with very diverse effects on fundamental rights. Against this backdrop, it is true that it was not impossible for the legislator at the time to also anticipate cases which could – at least from the present perspective – fall within the scope of protection of the freedom of assembly. However, it is precisely on account of the many unpredictable constellations that an extensive and exhaustive determination of potential cases affecting fundamental rights in which § 21 of the Assemblies Act could apply was not required.

154

(β) These considerations notwithstanding, the restriction of Art. 8(1) of the Basic Law entailed by § 21 of the Assemblies Act was also not sufficiently foreseeable from a legal perspective by the legislator of the time (cf. on this para. 124). In 1953, the legislator could tenably assume that the conduct punishable pursuant to § 21 of the Assemblies Act did not fall within the scope of protection of Art. 8(1) of the Basic Law.

155

In this respect, it is decisive that in 1953, the Federal Constitutional Court had not yet developed any relevant case-law regarding the freedom of assembly ([…]). Accordingly, the case-law of the Federal Constitutional Court at the time still lacked any definition with regard to the term assembly as well as any clarification regarding the boundaries of the scope of protection established through the terms peaceful and unarmed.

156

For the legislator of the time, it could not be readily recognised that a gathering of multiple persons with the intent to prevent, break up or thwart an assembly could itself also be classified an assembly falling within the scope of protection of Art. 8(1) of the Basic Law. Above all, in introducing the criminal offence under § 21 of the Assemblies Act, the legislator could still assume that a counter-protest aimed at committing this criminal offence would in any case no longer fall within the scope of protection because it was not peaceful.

157

In the early 1950s, the term not peaceful was still understood very broadly in both case-law and the literature. For example, in a decision from 1951, the Federal Court of Justice (Bundesgerichtshof) assumed that an assembly qualified as not peaceful simply because it was directed at disturbing ‘the civil peace among the population’ (cf. Federal Court of Justice, Judgment of 21 June 1951 - 3 StR 234/51 [...]). Based on this decision, the Federal Administrative Court (Bundesverwaltungsgericht) held in 1954 that an assembly is above all not peaceful when its goal is in contravention of criminal law. However, its definition of ‘not peaceful’ went even further. According to this decision, an assembly could not be peaceful if its aim was in conflict with the peaceful legal order, if it was convened with the intention of disrupting the peace, not just among the participants themselves, but the peace among the population as a whole (cf. Federal Administrative Court, Judgment of 8 April 1954 - I C 52.53 [...]). Similar views which equated not peaceful with a disruption of the peaceful legal order were frequently expressed in the scholarly literature ([...]).

158

The wording in § 5 no. 3 and § 13(1) no. 2 of the Assemblies Act could be read to indicate that the legislator, in enacting the Act on Assemblies and Processions (Assemblies Act) of 24 July 1953 (BGBl. I p. 684), relied on a narrower understanding of the term not peaceful and that in its view an assembly that was not peaceful involved at a minimum ‘violent or riotous action’. However, these terms themselves were also at the time not yet fully defined and were to some extent broadly interpreted ([...]).

159

(dd) In sum, applying the requirement to specify affected fundamental rights pursuant to Art. 19(1) second sentence of the Basic Law in regard to the restriction of the freedom of assembly under Art. 8(1) of the Basic Law entailed by § 21 of the Assemblies Act is precluded by the fact that such restriction was neither foreseen by the legislator in 1953, nor was it sufficiently foreseeable.

160

b) The criminal offence under § 21 of the Assemblies Act in the variation challenged here which criminalises causing ‘serious disruptions’ also does not raise any compelling constitutional objections from a substantive point of view. The interference with the freedom of assembly under Art. 8(1) of the Basic Law resulting from § 21 of the Assemblies Act is, in particular, compatible with the principle of proportionality.

161

aa) The principle of proportionality requires – and, in the case of the threat of imprisonment, also in regard to the guarantee of liberty of the person under Art. 2(2) second sentence of the Basic Law – that a criminal law provision must serve the protection of others or the general public (cf. BVerfGE90, 145 <172>; 120, 224 <239>; 160, 284 <333 para. 125>). Criminal law is used only as the ‘ultima ratio’ to protect legal interests when certain conduct is not only subject to prohibition but is also particularly harmful to society and intolerable for orderly coexistence, which makes its prevention particularly urgent (cf. BVerfGE 88, 203 <258>; 96, 10 <25>; 120, 224 <239 f.>). Because of the social condemnation expressed through the threat, imposition and enforcement of punishment, the prohibition of excessive measures (Übermaßverbot) is particularly important in reviewing a criminal law provision (cf. BVerfGE 90, 145 <172>; 96, 10 <25>; 120, 224 <240>; 160, 284 <333 para. 125>). However, it is in principle the task of the legislator to determine the scope of criminally punishable conduct. The legislator is in principle free to decide whether to defend a specific legal interest that it considers to be in need of protection through criminal law and if so, how it wants to do so (cf. BVerfGE 120, 224 <240>; 160, 284 <333 f. para. 125> with further references); the constitutional limits which the legislator must take into account in this regard need not be determined in this case.

162

The principle of proportionality requires that a criminal law provision be suitable and necessary to achieve its intended purpose. A measure is suitable if the desired outcome can be furthered with its help; success is not required in every individual case, nor must it even be possible in every such case. The possibility of achieving the intended purpose is sufficient (cf. BVerfGE 90, 145 <172>; 120, 224 <240>; 160, 284 <334 para. 126>). A criminal law is necessary if the legislator could not have chosen another equally effective measure with no or less restrictive impact on fundamental rights. The legislator is accorded broad leeway in determining the suitability and necessity of the chosen measure to achieve the intended goals, as well as in the assessment and prognosis to be undertaken with regard to the danger affecting individuals or the public generally. Depending on the specific nature of the matter in question, the legal interests affected and the possibilities of making a sufficiently certain assessment, this determination can only be reviewed by the Federal Constitutional Court to a limited extent (cf. BVerfGE 90, 145 <172 f.>; 120, 224 <240>; 160, 284 <334 para. 126>).

163

Finally, the limits of what is reasonable for the addressees of the prohibition must be observed in an overall balancing of the severity of the interference on the one hand, and the weight and urgency of the reasons invoked as justification on the other hand (proportionality in the strict sense). The measure must not be excessive (BVerfGE 120, 224 <241>; 160, 284 <334 para. 126>).

164

In the area of criminal law, the principle of culpability gives rise to a requirement that the punishment must be proportionate to the severity of the criminal offence and the culpability of the offender. The type and extent of a threat of criminal punishment must not be out of proportion to the criminal conduct. The criminal offence and its legal consequences must be properly aligned (cf. BVerfGE 90, 145 <173>; 120, 224 <241>). The more severely individual freedom is restricted, the weightier the interests of the common good must be. Conversely, the need to protect the common good becomes all the more pressing, the greater the detriment and dangers that could potentially arise if the exercise of fundamental rights were free from any limitation (cf. BVerfGE 160, 284 <334 para. 126> with further references). Within the limits set by constitutional law, however, the legislator can freely decide which threat of criminal punishment a culpable person will face (cf. BVerfGE 123, 267 <409>).

165

As the legislator is in principle entrusted with determining the scope of criminally punishable conduct, in consideration of the respective circumstances, the Federal Constitutional Court may not review whether the legislator has chosen the most expedient, reasonable or equitable solution. The Federal Constitutional Court merely ensures that the criminal law provision substantively conforms with the provisions of the Constitution and corresponds with unwritten constitutional principles and fundamental decisions enshrined in the Constitution (cf. BVerfGE 27, 18 <30>; 80, 244 <255>; 90, 145 <173>; 120, 224 <241> with further references).

166

bb) Based on these standards, the criminal offence under § 21 of the Assemblies Act is in line with the constitutional requirements, at least with regard to the interference with Art. 8(1) of the Basic Law concerning outdoor assemblies, which is the relevant scope of review in the present case. In this regard, the criminal offence under § 21 of the Assemblies Act not only serves a legitimate purpose (see (1) below), it is also in constitutional terms suitable (see (2) below), necessary (see (3) below) and appropriate (see (4) below) for achieving such legitimate purpose.

167

(1) The criminal offence under § 21 of the Assemblies Act serves two legitimate purposes that are closely related and, ultimately, provide support for one another (para. 161):

168

First, the criminal offence is aimed at protecting non-prohibited assemblies and processions – both public and private – particularly with regard to their fundamental integrity and viability ([...]). This protective purpose is evident from the wording of § 21 of the Assemblies Act, which explicitly defines the object of the criminal offence, and thereby also the object of protection, as ‘non-prohibited assemblies or processions’. This protective purpose is confirmed by the legislative materials. From the explanatory memorandum to the draft law, it can be inferred that the function of the various assembly-specific criminal offences was essentially viewed as ‘guaranteeing a democratic order with regard to public assemblies’ (BTDrucks 1/1102, p. 11). In addition, in the context of the debate in the Bundestag on the relevant criminal offence, explicit emphasis was placed on the effort to ensure that assemblies and processions proceed in an orderly manner (cf. statements of members of the Bundestag Euler <FDP> and Dr. Menzel <SPD>, Bundestag Minutes of Plenary Proceedings 1/264, p. 12864 f.).

169

Second, the criminal offence under § 21 of the Assemblies Act also protects the freedom of assembly guaranteed by Art. 8(1) of the Basic Law of the individual participants of non-prohibited assemblies and processions, both public and private ([...]). This consideration is inseparable from the aforementioned protection of non-prohibited assemblies and processions. That assemblies and processions merit particular protection also results from the fact that they are an expression and a consequence of the freedom of assembly guaranteed by Art. 8(1) of the Basic Law ([...]). The protection of assemblies and processions is therefore a necessary goal in order to allow the subjective right to freedom of assembly pursuant to Art. 8(1) of the Basic Law to take shape to its greatest possible extent.

170

These mutually supportive goals of the criminal offence under § 21 of the Assemblies Act are not objectionable under constitutional law. The protection of the fundamental integrity and viability of non-prohibited assemblies and processions can well be considered a very significant interest of the common good. In any case, § 21 of the Assemblies Act also protects the freedom of assembly and therefore particularly important interests of third parties protected by fundamental rights (para. 70).

171

(2) As a criminal provision, § 21 of the Assemblies Act is in principle suitable (para. 162) to further the protection of assemblies and processions and the protection of the freedom of assembly by imposing a criminal prohibition on serious disruptions (cf. BVerfGE 160, 284 <335 para. 127>).

172

(3) The criminal offence under § 21 of the Assemblies Act is also necessary for achieving the legitimate protective purposes (para. 162). A less intrusive and equally effective measure is not evident, also in light of the leeway afforded to the legislator.

173

(4) The provision is also proportionate in the strict sense in regard to its variation of causing ‘serious disruptions’ (para. 163 f.).

174

(a) The criminal offence under § 21 of the Assemblies Act, specifically the prohibition entailed by it, appropriately reconciles the conflicting interests. The reconciliation involves the freedom of assembly of those participants of the initial assembly that is disrupted on the one hand, and the freedom of assembly of the participants of a disruptive counter-protest on the other.

175

As a starting point, the severity of the interference with the freedom of assembly protected by Art. 8(1) of the Basic Law that § 21 of the Assemblies Act entails for the participants of the disruptive counter-protest must be viewed as great. The great severity of interference results from the fact that the freedom of assembly guaranteed by Art. 8(1) of the Basic Law and exercised by the participants of the disruptive counter-protest is one of the indispensable and foundational conditions of the functioning of a democratic society and therefore assumes central importance for the process of the formation of public opinion in free democratic orders (para. 70). The prohibition of certain conduct that is protected by Art. 8(1) of the Basic Law entailed by § 21 of the Assemblies Act also constitutes in principle a serious impairment of the freedom of assembly. Specifically, it restricts the central right of the participants of a disruptive counter-protest under Art. 8(1) of the Basic Law to determine the manner and circumstances of the exercise of their fundamental right, that is, the right to decide where and how to make their statement most effectively (cf. on this para. 75).

176

However, the severity of the interference is mitigated in that the freedom of assembly of the participants of the disruptive counter-protest is not excessively restricted. The relevant variation of § 21 of the Assemblies Act merely prohibits causing ‘serious disruptions’ with the specific intention of preventing or breaking up or in any other way thwarting the initial assembly. In this way, the freedom of assembly of the participants of the disruptive counter-protest is merely limited in regard to the manner in which the counter-protest is carried out. Numerous different forms of verbal and non-verbal expression remain open to the participants in order to make a statement (if necessary, also with publicity) against the initial assembly they seek to criticise. In this respect, it must also be considered that the right accorded to the fundamental rights holder under Art. 8 of the Basic Law to determine the location, time as well as the form and content of the event is subject to limits for the protection of the legal interests of third parties and the general public and, in particular, does not extend to the decision on which impairments the holders of conflicting legal interests must accept (cf. BVerfGE 104, 92 <108, 111>).

177

This is offset by the considerable weight of the purposes pursued by the legislator with the criminal offence under § 21 of the Assemblies Act. This provision not only generally protects the integrity and viability of assemblies and processions (para. 168), but also the freedom of assembly of the participants of the initial assembly affected by the disruption (para. 169). The considerable weight attached to the legislative purposes results, in turn, from the special position that the fundamental right to freedom of assembly holds for the free democratic order and individuals (para. 70).

178

In the constellations covered by the criminal offence, the freedom of assembly of the participants of the disrupted initial assembly weighs particularly heavily. Even if the objective constituent elements of § 21 of the Assemblies Act do not depend on the success of preventing, breaking up or thwarting an assembly, the term ‘serious disruptions’ only includes those ‘fundamental disruptions’ ([...]), which place the viability of the initial assembly in question. In this way, the criminal offence under § 21 of the Assemblies Act protects the participants of the initial assembly from conduct that would fundamentally threaten the viability of their planned assembly.

179

In an overall balancing with the interest of the participants of the initial assembly to hold their assembly at all, the interest of the participants of the counter-protest to conduct their assembly precisely in a way that seriously disrupts the initial assembly must therefore yield. It is of central importance for the free formation of opinion in a democratic society that the right to publicly and collectively express one’s opinion is not used as a means to hinder individuals with different opinions from exercising this right themselves.

180

(b) A consideration of the criminal punishment stipulated in § 21 of the Assemblies Act does not yield a different result.

181

In conformity with the standards described above, the legislator chose to design § 21 of the Assemblies Act – the prohibition of ‘serious disruptions’ intended to prevent, break up or thwart non-prohibited assemblies and processions – as a criminal offence; this decision is not objectionable under constitutional law. Such disruptions not only endanger the orderly, functioning system of assemblies. They also impair the exercise of the fundamental right guaranteed by Art. 8(1) of the Basic Law by others. Consequently, the legislator could permissibly deem it necessary to criminalise and punish conduct covered by § 21 of the Assemblies Act.

182

The sentencing range established by the provision also does not raise compelling objections in considering the standards described above. The sentencing range provided for in the current version of § 21 of the Assemblies Act - up to three years imprisonment or a fine - can be classified overall as moderate, all the more so considering the wide range of conduct encompassed by the provision. It no longer contains a minimum sentence. Particularly considering the special significance of the interests of the common good protected by § 21 of the Assemblies Act and the particular culpability of the offender due to the requirement of intent, the type and extent of the punishment can in no way be considered unreasonable. Moreover, in special cases in which, due to the low level of culpability of the person charged with the criminal offence, punishment might appear to be unreasonable, the sentencing range provided for in the provision permits alternative actions, such as discretionary non-prosecution or special sentencing considerations (cf. BVerfGE 120, 224 <252> with further references).

183

cc) Art. 2(2) second sentence of the Basic Law, which is not alleged to have been violated in this case, does not give rise to any requirements for the constitutionality of the punishment provided for in § 21 of the Assemblies Act that go beyond those arising from Art. 8(1) of the Basic Law.

184

3. In the case at hand, the criminal offence under § 21 of the Assemblies Act was applied in a way that is not objectionable under constitutional law. In particular, the interpretation and application of the criminal offence under § 21 of the Assemblies Act by the ordinary courts – at least as to the ultimate outcome – does not give rise to a violation of specific constitutional law due to insufficient consideration of the requirement to specify affected fundamental rights pursuant to Art. 19(1) second sentence of the Basic Law (see a) below). Nor is there any ascertainable violation of other constitutional requirements (see b) below).

185

a) To the extent the complainant alleges a violation of his freedom of assembly due to an insufficient consideration of the requirement to specify affected fundamental rights pursuant to Art. 19(1) second sentence of the Basic Law in the interpretation and application of the criminal offence under § 21 of the Assemblies Act by the ordinary courts, the objections asserted are without merit.

186

aa) As described above, the requirement to specify affected fundamental rights pursuant to Art. 19(1) second sentence of the Basic Law is first and foremost directed at the (formal) legislator. The requirement is meant to ensure that the legislator is aware of any interferences with fundamental rights resulting from its legislation and that the decision is made in awareness of the effects on the affected fundamental rights (warning and reflection function, cf. para. 113). Conversely, the requirement has at most only indirect effects on the application of the law once the legislative process has been concluded.

187

(1) A specification of affected fundamental rights can heighten the awareness of the respective person applying the law to the fact that they are acting in an area that is relevant to fundamental rights. An explicit reference to affected fundamental rights raises awareness of the specific fundamental rights positions that may be affected by the application of the law. It need not be decided here whether a distinct function to indicate, emphasise or clarify an affected fundamental right can be inferred from the requirement pursuant to Art. 19(1) second sentence of the Basic Law ([...]).

188

(2) In the case of a required, but missing specification of affected fundamental rights, the person applying the law must take into account the principle of interpreting the law in conformity with the Constitution.

189

The principle of interpreting laws in conformity with the Constitution requires that among various different meanings of a particular provision, some of which may lead to a result that is unconstitutional, and some which lead to a constitutional result, an interpretation in conformity with the Constitution is preferred (cf. BVerfGE 32, 373 <383 f.>; 119, 247<274>; 134, 33 <63 para. 77>; 160, 1 <25 para. 70>; 168, 1 <68 para. 193>; 169, 67 <86 para. 36> – Political appointees). The respect to be accorded to the legislator requires upholding the full extent of what the legislator wanted, within the limits of the Constitution (cf. BVerfGE 86, 288 <320>; 119, 247 <274>; 134, 33 <63 para. 77>; 160, 1 <25 para. 70>). However, an interpretation in conformity with the Constitution finds its limits where it contradicts the wording of the provision and the clearly recognisable intent of the legislator (cf. BVerfGE 101, 312 <329>; 110, 226 <267>; 134, 33 <63 para. 77>; 138, 64 <94 para. 86>; 160, 1 <25 para. 70>). The aim pursued by the legislator must not be bypassed or distorted in any essential aspect (cf. BVerfGE 119, 247 <274>; 138, 64 <94 para. 86>; 168, 1 <68 para. 194> with further references).

190

If, in applying a provision, a violation of the requirement to specify affected fundamental rights pursuant to Art. 19(1) second sentence of the Basic Law is found, then as a starting point, it must be reviewed whether an interpretation of the relevant provision in conformity with the Constitution is possible so that the fundamental right at issue is not impaired ([...]). In this regard, the absence of a specification of an affected fundamental right can serve as an indication, but not as proof, of a lack of legislative intent to restrict the fundamental right that was not specified ([...]).

191

If, in considering the aforementioned limits, an interpretation in conformity with the Constitution is ruled out, then the provision is void or incompatible with the Constitution, with the respective consequences for the application of the law (cf. also Federal Constitutional Court, Order of the First Senate of 24 June 2025 - 1 BvR 180/23 -, para. 251).

192

(3) Beyond these consequences, there is no substantive binding effect of the requirement to specify affected fundamental rights in regard to the application of the provision. There are some arguments in the scholarly literature – cited by both the Federal Government and the complainant in their statements – that assume the existence of a specific ‘binding effect’ of the requirement to specify affected fundamental rights ([...]). However, insofar as this approach dissociates the scope of application of the requirement imposed on the legislator to specify affected fundamental rights from the resulting legal consequences for the application of the provision, it is not persuasive, given its incongruity. If the legislator – on the basis of an appropriately limited scope of application of the requirement to specify affected fundamental rights pursuant to Art. 19(1) second sentence of the Basic Law – has not specified a fundamental right that is restricted by or pursuant to a law, and was not required to do so, then no substantive binding effect on the application of the provision can be inferred from a missing specification of the affected fundamental right.

193

bb) When measured against the standards described above, the challenged decisions of the ordinary courts do not violate Art. 8(1) in conjunction with Art. 19(1) second sentence of the Basic Law. The absence of a specification of Art. 8(1) of the Basic Law as a restricted fundamental right was not significant for the application of the provision in the present case, because such a specification was not required in light of the criminal offence under § 21 of the Assemblies Act (para. 111 ff.).

194

In this regard, it is not relevant to what extent the arguments with which the Local Court and the Higher Regional Court found that the criminal offence under § 21 of the Assemblies Act did not violate the requirement to specify affected fundamental rights pursuant to Art. 19(1) second sentence of the Basic Law hold up to constitutional review. In any case, the ordinary courts came to the correct result that the requirement to specify affected fundamental rights pursuant to Art. 19(1) second sentence of the Basic Law does not mandate a restrictive interpretation of the criminal offence under § 21 of the Assemblies Act.

195

b) The specific sentence of the complainant on the basis of the criminal offence under § 21 of the Assemblies Act to a fine of ten daily rates of EUR 20 each was not otherwise challenged on constitutional grounds by the complainant; nor does the sentence raise any manifestly serious concerns in this regard.