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

Press Release No. 17/2009 of 27 February 2009

Order of 17 February 2009
1 BvR 2492/08

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

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

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

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

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

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

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

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

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