Disruptive counter-protest
In an order published today, the First Senate of the Federal Constitutional Court rejected a constitutional complaint in which the complainant challenged his criminal conviction under § 21 of the Act on Assemblies and Processions (Gesetz über Versammlungen und Aufzüge, Versammlungsgesetz – Assemblies Act, VersG) for participation in a counter-protest. According to this provision, a person who commits or threatens to commit 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 punished.
The constitutional complaint proceedings primarily focus on the question whether a criminal conviction under § 21 of the Assemblies Act violates the freedom of assembly if the conviction is based on the participation in a counter-protest protected under Art. 8(1) of the Basic Law (Grundgesetz – GG).
The constitutional complaint was unsuccessful. While the scope of protection of the freedom of assembly under Art.8(1) of the Basic Law does extend to cases in which a gathering is not aimed solely at the disruption, prevention or breaking up of another assembly, but also exhibits a distinct element of participation in the formation of public opinion, the interference with the freedom of assembly caused by the criminal conviction is nevertheless justified. To the extent that it criminalises ‘serious disruptions’, the criminal offence under § 21 of the Assemblies Act – the legal basis for the interference with the complainant’s freedom of assembly – is both formally and substantively constitutional.
Facts of the case:
An assembly of a religious group, for which proper notification was given, and which included a procession through the city centre, took place in Freiburg. After the opening speeches had been made, the protesters intended to begin their planned procession towards the city centre. By that time, approximately 70 counter-protesters had sat down across the entire width of the street in multiple rows behind the Martinstor. As a result, passing through the two arches of the gate was no longer possible. 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 generally unobstructed footpaths running along the left and right side of the Martinstor.
The complainant, who sat among the counter-protesters, intended to stop the procession of the demonstrators 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 religious group and thwart the assembly as planned.
Although they were requested by the police to clear the path of the procession multiple times, the counter-protesters, among them the complainant, remained seated behind the gate’s arches. Following this, the police ordered the dissolution of the sit-in blockade of the counter-protesters. The counter-protesters sitting behind the west arch of the gate, among them the complainant, were ultimately encircled by police officers. They stood up and were forced towards the side of the road. The protesters, who, had the assembly continued as planned, would have passed the Martinstor only a few minutes after the opening speeches had concluded, were able to continue their way only after a prolonged period of waiting.
The Local Court (Amtsgericht) sentenced the complainant to a fine for disrupting an assembly or procession under § 21 of the Assemblies Act. The Higher Regional Court (Oberlandesgericht) rejected the complainant’s appeal on points of law (Revision) as unfounded.
With his constitutional complaint, the complainant challenges these decisions. In particular, the complainant asserts a violation of his fundamental right under Art. 8(1) of the Basic Law.
Key considerations of the Senate:
A. The constitutional complaint is admissible insofar as it challenges a possible violation of the freedom of assembly under Art. 8(1) of the Basic Law. To this extent, the requirement to exhaust all available legal remedies and of subsidiarity have been met. This is not precluded by the fact that the complainant directly submitted an appeal on points of law instead of an appeal on points of fact and law (Berufung), which would have been a possible alternative.
In submitting a leapfrog appeal (Sprungrevision), a complainant deliberately foregoes one appellate instance in which the asserted violation of fundamental rights could, at least potentially, have been remedied. Nevertheless, a leapfrog appeal does not automatically preclude the admissibility of a constitutional complaint. It would frustrate the aims pursued by granting the possibility of a leapfrog appeal, i.e. the expedition and economy of proceedings, if, by filing a leapfrog appeal, complainants automatically surrendered any possibility 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.
B. The constitutional complaint is unfounded. The matter at hand falls within the scope of protection of Art. 8(1) of the Basic Law. However, the interference with the freedom of assembly is justified under constitutional law.
I. 1. The freedom of assembly is one of the indispensable and foundational conditions of a democratic society and is constitutive for the free democratic state order. Democracy is inherently based on a continuous contest of opinions with recurring decisions to be made on the basis of the majority principle. This requires a free, open and pluralistic discourse that also gives minorities with different opinions a chance to speak and be heard. The fundamental importance of the freedom to physically assemble is not called into question by progressing digitalisation and the growing importance of social media. Even in an increasingly digitalised world, physical assemblies in public spaces constitute an indispensable instrument of the collective expression of opinions, by means of which a joint communicative aim can be both 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.
2. A gathering that aims to disrupt another assembly falls within the scope of protection of Art. 8(1) of the Basic Law at least in those cases in which such a gathering exhibits a distinct element of participation in the formation of public opinion, irrespective of the weight accorded to the element of participation on the one hand and the element of disruption on the other. Yet where such a gathering is directed solely at the disruption of the other assembly, it does not fall within the scope of protection of the freedom of assembly, because it does not itself qualify as an assembly under constitutional law. The same applies to gatherings which – in addition to causing a mere disruption – are aimed at preventing or breaking up another assembly.
3. The counter-protest in the case at hand exhibits a distinct communicative element in the form of specific substantive statements such as group chants and banners with various slogans; it thus qualifies as an assembly within the meaning of Art. 8(1) of the Basic Law. Consequently, the participation of the complainant in the counter-protest also falls within the scope of protection of the freedom of assembly.
II. The interference with the freedom of assembly resulting from the criminal conviction is nevertheless justified under constitutional law.
1. The criminal offence in § 21 of the Assemblies Act, to the extent that it criminalises ‘serious disruptions’, is formally constitutional. In particular, a violation of the requirement that affected fundamental rights be expressly specified (Zitiergebot) under Art. 19(1) second sentence of the Basic Law cannot be found.
a) The requirement that affected fundamental rights be specified only applies to such interferences with fundamental rights which have been anticipated by the legislator or which were sufficiently foreseeable. When examining whether an interference was sufficiently foreseeable, the decisive factor is what can realistically be expected of a diligent legislator based on a strict ex ante perspective.
From a factual point of view, the legislator needs to take into account only those scenarios which it had in mind when enacting the provisions in question and those which should in any case have been obvious. From a legal point of view, the legislator is required to base its assessment regarding possible interferences with fundamental rights on the previous case-law of the Federal Constitutional Court. 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.
b) With this in mind, no violation of the requirement that affected fundamental rights be expressly specified can be found in the case at hand.
There are no sufficiently concrete indications that the legislator anticipated the interference with the freedom of assembly guaranteed by Art. 8(1) of the Basic Law resulting from the criminal offence under § 21 of the Assemblies Act when it was enacted in 1953. The interference was also not sufficiently foreseeable for the legislator in 1953, either from a factual or a legal perspective. Among other aspects, it is decisive that until this time the Federal Constitutional Court had not yet developed any relevant case-law regarding the freedom of assembly, in particular not with regard to its limitation to peaceful assemblies.
2. The criminal offence under § 21 of the Assemblies Act, to the extent that it criminalises ‘serious disruptions’, which is the only element at issue here, also does not raise any compelling constitutional objections from a substantive point of view. The interference with Art. 8(1) of the Basic Law resulting from § 21 of the Assemblies Act is, in particular, compatible with the principle of proportionality.
a) The criminal offence under § 21 of the Assemblies Act, and the prohibition entailed by it, appropriately reconciles the conflicting interests. In an overall balancing with the interest of the participants of the original 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 disrupts the original assembly must yield. It is of central importance for the free formation of public 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.
b) A consideration of § 21 of the Assemblies Act and the criminal sanction it stipulates does not yield a different result. The legislator decided to design § 21 of the Assemblies Act – the prohibition of ‘serious disruptions’ with an intention 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. The sentencing range stipulated by the provision also does not raise compelling objections.
3. Based on the points raised by the complaint and the facts established by the Local Court, the applicable law was applied in a way that is not objectionable under constitutional law in the case at hand.