Germany: graduality of cooperation, conditions and ban

121 of danger of violence.³⁴³ The demonstration to be held was part of a series of demonstrations, the two preceding ones having had turned violent. In the second considerant, the Conseil d’État points out that there were street fights organised by separatists of Spanish citizenship, and that the expected fusion of this group with a French movement made the occurrence of violence again probable. The Conseil accepted that the reintroduced crossborder check might put a burden on the assembly rights of the applicants, because the procedure resulted in long queues and traffic jam, thus, some people who intended could not get to the demonstration. Nonetheless, the Conseil apparently deemed such an indirect prior restraint being proportionate to the danger of violence.

122 apparently invites, if not obliges, participants to take into account ‘well-proven experiences’ of former demonstrations.³⁴⁵

It remains unclear whether cooperation is an obligation, a Pflicht or just an Obliegenheit, this latter normally meaning non-enforceable duties or burdens. Still, as the Court puts a very clear obligation to learn and adapt to former well-tried experiences on the police, and expects cooperation from the organisers, the conclusion that the Court engages in a very dangerous ‘Vestaatlichung’, state-ization of a freedom, is well grounded.³⁴⁶ A constitutionally imposed duty of cooperation transforms freedom of assembly into a curious right to co-form matters of state competence,³⁴⁷ a rather serious distortion of the function of fundamental rights. The problem is, of course, that true as it might be, this critique certainly remains without response in reality: de facto there will be a bargaining, and the level of ‘friendliness’ or at least ‘correctness’ induced by cooperation certainly will have an effect on the legal evaluation of both the conduct of the police, and that of the demonstrators.

One of the reasons for the acceptability of advance notice is to enable the authorities to impose conditions in case of foreseeable likely direct endangering of public security. Demonstrators have a right to self-determination with regard to date and time of their planned assembly, but practical concordance requires the protection of the rights of others and other substantive constitutional values, like public security as much as possible. Such protection might result in imposing conditions on the timing or the route

345 Cf. ‘Auch ohne eine gesetzgeberische Präzisierung tun freilich Veranstalter und Teilnehmer gut daran, die aus bewährten Erfahrungen herleitbaren Empfehlungen für Großdemonstrationen möglichst von sich aus zu berücksichtigen.’ BVerfGE 69, 315, 357 (1985)

346 Kunig above n Error! Bookmark not defined., Rn. 20 zu Art. 8, at 589.

347 Ibid

123 of the assembly.³⁴⁸ On one occasion, the Federal Administrative Court found lawful an obligation of would-be demonstrators to report at the police so those likely violent can be prevented in travelling abroad to the G8 summit.³⁴⁹

Even mass detention of demonstrators before the G8 summit in Heiligendamm was permissible under German law (complaint rejected without examination by the GFCC), while the ECtHR found it violated the Convention.³⁵⁰ Thus though in theory the threshold is the concrete danger of violent conduct on an upcoming assembly, and previous violence also weighs in the assessment of danger, the concreteness and likeliness can be rather attenuated.

Risk of violation of other substantive values – to be discussed under Part II. B – also might serve as ground justifying conditions, and – if conditions are not suitable – ban. These include commonsensical ones like damage to life, limb or property, then coercion in a reasonably narrow sense, and finally human dignity mediated by ‘public peace’.

A characteristic of German law is the graduality of duties: the more willing the organiser is to cooperate, the higher the threshold for police intervention for first imposing conditions, and if they are not sufficient or suitable, a ban (or dispersal). This is very much in harmony with doctrines of proportionality, balancing, and practical concordance. Graduality is not required, but prohibited in one case: when the condition would change the message of the assembly. In that case, a ban might be constitutional if other criteria are fulfilled, while a condition is unconstitutional, at least in theory.

348 BVerfG, 1 BvR 961/05 vom 6.5.2005, Absatz-Nr. (1 - 30), http://www.bverfg.de/entscheidungen/rk20050506_1bvr096105.html

349 Meldeaufl age zum Schutz des G8-Gipfels. BVerwG (25.7.2007 – 6 C 39/06) Juris, Leitsatz des Gerichts: http://rsw.beck.de/rsw/upload/beck-akademie/NRUE_1_2008_1.pdf#page=47

350 Schwabe and M. G. v. Germany, Application nos. 8080/08, 8577/08, Judgment of 1 December 2011.

124 3.5. ECtHR: strong substantive and procedural protection

As mentioned above, a demonstration which was held even though it had been banned or not authorised, is not deprived of Article 11 protection. Since only unpeaceful assemblies fall out of the scope, unlawfully convened assemblies are still protected.

As a default rule, in case of denial of authorisation, or, any kind of measure having the effect of prior ban on assembly, the Convention requires that the authorities give proper grounds. The Court exerts substantive review, and it appears now settled that a prior ban cannot be justified unless incitement to violence or rejection of democratic principles would otherwise occur with some (unclear) level of probability. In Stankov it is stated:³⁵¹

Sweeping measures of a preventive nature to suppress freedom of assembly and expression other than in cases of incitement to violence or rejection of democratic principles – however shocking and unacceptable certain views or words used may appear to the authorities, and however illegitimate the demands made may be – do a disservice to democracy and often even endanger it. (Emphasis added.)

351 Stankov and the United Macedonian Organisation Ilinden v. Bulgaria, Application nos. 29221/95, 29225/95, Judgment of 2 October 2001, § 97.

125 These two concerns were reaffirmed in Güneri³⁵², thus it appears settled that a prior ban on substantive grounds can only be justified if either incitement to violence³⁵³ or a rejection of democratic principles would occur on the banned assembly. The required probability is not exactly clear, just as what amounts to ‘rejection of democratic principles’ – secessionist speech according to Stankov³⁵⁴ does not, while eg ‘seeking the expulsion of others from a given territory on the basis of ethnic origin is a complete negation of democracy.’³⁵⁵

Among newer cases on prior restraint, Baczkowski v. Poland³⁵⁶ ruling is of foremost significance. The judgment is quite unique because the Court managed to overcome rather serious preliminary objections and declare violation of freedom of assembly, the right to effective remedy with respect to assembly, and discrimination in the same regard basically by discussing at length the role of freedom of assembly and demonstration in a democracy as a tool of protecting vulnerable minorities and furthering pluralism.

The decision is full of statements of principle, which serve as an answer to the Government’s technical objections. In a maximalist fashion, the Court reversed the Government’s preliminary objections into substantive violations of the Convention.

352 Güneri et autres c. Turquie, Application nos. 42853/98, 43609/98 et 44291/98, Judgment of 12 July 2005,§ 79.

353 In Stankov at § 102 the Court reminds of its statement in Incal according to which ‘the mere fact that a message read out at a commemorative ceremony to a group of people – which already considerably restricted its potential impact on national security, public order or territorial integrity – contained words such as ‘resistance’, ‘struggle’ and ‘liberation’ did not necessarily mean that it constituted an incitement to violence, armed resistance or an uprising (loc. cit., pp. 1566-67, § 50)’.

354 Reaffirming: United Macedonian Organisation Ilinden and Others v. Bulgaria (No. 2), request to referral to the Grand Chamber pending, Application no. 34960/04, Judgment of 18 October 2011, citing Stankov No. 1. in § 36.

355 Stankov above n 351 § 100.

356 Baczkowski v. Poland, Application no. 1543/06, Judgment of 3 May 2007.

126 In the case, contrary to Güneri, the banned assemblies did take place despite the ban, and the police even protected the demonstrators. Also, the reviewing administrative authority quashed the first instance bans, and even the Constitutional Court – in review for compatibility initiated by the Ombudsman – ruled that some of the provisions the bans were based on were unconstitutional. Still, the ECHR declared a violation of Art. 11 on the ground that the bans were not prescribed by law since they were imposed unlawfully.

The case is important in various regards. First is the status of the ‘victim’as a requirement for standing before the Court. The Government claimed that applicants were not ‘victims’ since they did not suffer any moral or pecuniary damages, since the assembly did take place, and no sanction was applied against them. Besides, the Government also claimed that there was no interference into applicants’ rights to freedom of assembly for the same reasons. The Court rejected both of these claims and held the following in § 67:

[…][T]he applicants took a risk in holding them given the official ban in force at that time. The assemblies were held without a presumption of legality, such a presumption constituting a vital aspect of effective and unhindered exercise of the freedom of assembly and freedom of expression. The Court observes that the refusals to give authorisation could have had a chilling effect on the applicants and other participants in the assemblies. It could also have discouraged other persons from participating in the

127 assemblies on the ground that they did not have official

authorisation and that, therefore, no official protection against possible hostile counter-demonstrators would be ensured by the authorities. (Emphases added.)

This quote is highly significant especially if understood in the context of the case. The assemblies at stake were demonstrations organised by Equality Foundation in order to alert the public to the issue of discrimination against minorities and women. The banned assemblies were those which were organised by members of NGOs protecting the rights of various sexual minorities. On the same day, other assemblies were authorised, which basically wished to convey a counter-message (eg protest against partnerships,

‘paedophilia’, for ‘Christian values’, etc.).

Secondly, there was another preliminary issue raised by the government, namely that of exhaustion of domestic remedies. The Government argued that applicants failed to exhaust remedies because they did not submit a constitutional complaint whilst the ECtHR ruled in a previous judgment that the Polish constitutional complaint might qualify as an effective remedy under the Convention. The Court rejected this objection basically relying on the importance of timing in the freedom of assembly and expression context. This is one of the occasions when freedom of expression considerations successfully made their way into Art. 11 case law.

As the Court did not specify why the dates the assemblies were planned for were of special importance, in essence it ruled that any remedy which cannot be obtained before the planned date of an assembly is ineffective, and, therefore, needs not to be

128 exhausted.³⁵⁷ What is more, regarding Art. 13, the Court even declared a violation of the right to remedy for basically the same reasons (§ 82 of the judgment):

[…][S]uch is the nature of democratic debate that the timing of public meetings held in order to voice certain opinions may be crucial for the political and social weight of such a meeting.

Hence, the State authorities may, in certain circumstances, refuse permission to hold a demonstration, if such a refusal is compatible with the requirements of Article 11 of the Convention, but cannot change the date on which the organisers plan to hold it.

If a public assembly is organised after a given social issue loses its relevance or importance in a current social or political debate, the impact of the meeting may be seriously diminished. The freedom of assembly – if prevented from being exercised at a propitious time – can well be rendered meaningless.

It seems therefore to be the state of the law that organisers are the sole masters of the timing of assembly in the sense that if they say that the timing is important, it should be unquestionably considered part of the content of their message, and as such, cannot be restricted.

This stands in sharp contrast to the lenient review of the removal of the protester from the Amsterdam Central Station in the Dutch case (K. v. The Netherlands, mentioned

357 This interpretation was approved again in Patyi v. Hungary (No. 2.), Application no. 35127/08, Judgment of 17 January 2012, § 23, and Szerdahelyi v. Hungary, Application no. 30385/07, Judgment of 17 January 2012, § 31.

129 above) where the Commission considered the fact that applicant had the possibility to protest at other places (– most probably somewhere where the Olympic delegation, the target of the protest, would not have seen her), as one factor rendering the interference proportionate.

Again, one might observe a strengthening of the Convention protection in the last decade, which might be also due to the different degree of restriction in the Dutch case, on the one, and in the Polish one, on the other hand, but it might also result from the increasingly rights protective mood of the Court. In any case, these strong procedural guarantees are a far cry from the lenient standard declared by the USSC in Thomas v.

Chicago Park District as discussed above.³⁵⁸

IV. E

,

4.1. Traditional processions – content discrimination or a reasonable