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Protest meeting held at cemetery may be protected by freedom of assembly

Press Release No. 69/2014 of 05 August 2014

Order of 20 June 2014
1 BvR 980/13

By an order published today, the Third Chamber of the First Senate of the Federal Constitutional Court granted a constitutional complaint against the conviction of the complainant to pay an administrative fine of EUR 150 for violation of a cemetery ordinance and public nuisance. The complainant had revealed a banner during a commemorative event held at a cemetery to protest the event’s purpose of commemorating the victims of World War II and the victims of the allied bombing raid on Dresden on 13 February 1945. The decision of the Local Court (Amtsgericht) fails to appreciate the freedom of assembly’s scope of protection. In particular, the decision fails to take into account that freedom of assembly is not dependent on the assembly having been registered or authorised and that, due to the commemorative event, at the relevant time there was communicative interaction of the public at the cemetery that went beyond private commemoration. Furthermore, the decision does not contain the constitutionally required balancing of whether a conviction of the complainant is justified with respect to the freedom of assembly.

Facts of the Case and Procedural History:

On 13 February 2012, the city of Dresden organised a commemorative event on the premises of the Heidefriedhof cemetery in memory of the victims of World War II and the victims of the allied bombing raid on Dresden on 13 February 1945. Participation in the commemorative procession was open to the public. The complainant was positioned about fifty metres in front of the memorial wall and lifted, together with three other persons, along the main path of the commemorative procession a banner with the following words: “There is nothing to grieve about, only to prevent. Never again Volksgemeinschaft (People’s Community) – destroy the spirit of Dresden. End the German commemorative circus. Anti-fascist action”. Via the banner, the complainant wanted to express his disagreement with the purpose of the commemorative procession and take a stance against it. For a few minutes, the banner was visible to the passing procession of mourners, before police officers persuaded the complainant to fold the banner. The commemorative event at the Heidefriedhof cemetery then continued as planned.

The complainant challenges his conviction to pay an administrative fine of EUR 150 for intentional violation of a cemetery ordinance and intentional public nuisance, pursuant to § 118 sec. 1 of the Act on Regulatory Offences (Gesetz über Ordnungswidrigkeiten – OWiG). The Local Court, by judgment of 9 November 2012, confirmed an administrative order imposing the fine, issued by the city of Dresden; the complainant’s appeal on points of law before the Higher Regional Court (Oberlandesgericht) was unsuccessful.

Key Considerations of the Chamber:

1. The gathering at the Heidefriedhof cemetery and the unrolling of the banner fall within the freedom of assembly’s scope of protection under Art. 8 sec. 1 of the Basic Law (Grundgesetz – GG).

a) An assembly is a gathering of several individuals for the purpose of common discussion or demonstration aimed at participating in the formation of public opinion. It includes provocative expressions. However, the freedom of assembly does not grant a right to access any given location. Rather, it guarantees the gathering in spaces where there is communicative interaction of the public. Art. 8 GG protects assemblies irrespective of them being subject to registration and having been registered accordingly..

b) Pursuant to the aforementioned criteria, the complainant participated in an assembly within the meaning of Art. 8 sec. 1 GG. The gathering served the purpose of opposing the commemoration and of communally expressing opposition to the commemorative event by way of a banner, and thus constituted a contribution to the formation of public opinion. In the situation at hand, there was communicative interaction of the public at the cemetery. Beyond the private commemoration, the commemorative procession served “to send a message for the eradication of war, racism and violence”, and thus used the cemetery to address socially relevant issues on 13 February 2012. Therefore, the complainant could, at least on that day, rely on the protection of the freedom of assembly with respect to this gathering, particularly since his protest related specifically to the subject matter of the commemorative procession.

2. The challenged judgment of the Local Court misinterprets the scope of protection afforded to the freedom of assembly. It also fails to include a balancing of interests, as required by the Constitution.

a) The Local Court has denied that the gathering shows the characteristics of an assembly for reasons which are not supported under constitutional law. The Local Court assumes that the gathering was not an assembly because it had not been registered in accordance with the cemetery ordinance. However, an assembly within the meaning of Art. 8 sec. 1 GG depends neither on registration nor authorisation.

b) Furthermore, the decision lacks sufficient balancing as to whether convicting the complainant was justified in view of the freedom of assembly. The concept of public order used in § 118 sec. 1 OWiG refers to unwritten rules, adherence to which is a prerequisite to peaceful human coexistence pursuant to the social and ethical principles at the respective time, which are consistent with the values of the Constitution. When interpreting this undefined legal concept, the Local Court was obliged to take into consideration the complainant’s freedom of assembly. It should have discussed why it considered exercising the fundamental right of freedom of assembly a violation of public order while, at the same time, there was a large commemorative event at the Heidefriedhof cemetery which had been publicly announced and which was meant to send a message that went beyond mere remembrance, and against which the complainant silently protested. Therefore, is not relevant whether § 118 OWiG may ever sanction a behaviour that is within the scope of protection of the freedom of assembly, or whether this provision is subject to constitutional concerns.