Federal Constitutional Court (First Senate) 14 May 1985, 1 BvR 233, 341/81
This case is first published in the German Law Archive courtesy of:
Translated German Cases and Materials under the direction of Professors P. Schlechtriem, B. Markesinis and S. Lorenz
BVerfGE 69, 315
Translated by Mr Raymond Youngs, Southampton Institute
Facts: An atomic power station was to be built at Brokdorf. Citizens’ action groups appealed for a large scale demonstration on the 28th February 1981 against it. The police expected that amongst the 50,000 or so demonstrators some would intend to use force, including violent occupation and damage to property at the site. Before they were notified of this meeting, and five days before the demonstrations were to take place, the competent authority issued a general ban on meetings in respect of an area of about 210 sq kilometres and ordered its immediate implementation. When the organisers later notified the competent authority, it referred to the ban which had already been issued. Some of the organisers objected and applied to the administrative court to restore the deferral effect which such objections have. This was refused on appeal by the higher administrative court.
The constitutional complaints against the order for immediate implementation of the ban and against the decisions of the higher administrative court were partially successful.
The constitutional complaints are admissible.
The complainants have been prevented from holding authorised demonstrations in the places submitted to the authority at the date planned by the immediate implementation of the demonstration bans and their judicial confirmation. The complainants consider these acts by public authority to be an interference with their legal position protected by the basic rights. As they have challenged these acts by court action and as their legal remedies in this respect have been exhausted, the statutorily prescribed prerequisites for the admissibility of their constitutional complaints, which have been submitted within the stipulated period, are met [references omitted]. The fact that legal remedies in the proceedings in the main issue are not exhausted does not, according to established case law, prevent the admissibility of their constitutional complaints. This is because the interim proceedings are according to § 80 para 5 of the Administrative Courts Order legally independent of those proceedings [references omitted]…
2. Nor is the need for legal protection (a necessary requirement) absent from the constitutional complaints. In particular, this is not lacking just because the date for the demonstration has gone by and the [order for] immediate implementation of the ban therefore has no subject matter. According to the established case law, a need for legal protection continues to exist even after the attainment of the objective pursued by the constitutional complaint if there would otherwise be no clarification of a question of constitutional law of fundamental importance and the interference concerned an especially significant basic right [references omitted]. It follows from the considerations so far that these prerequisites are present.
Such an interest deserving protection can also be confirmed for the first complainants even though they have raised no claim in relation to the main issue after dismissal of their objection. There were originally no doubts of any kind as to the admissibility of their constitutional complaint, which had been raised in the night before the planned demonstration (compare the decision about the request for an interim injunction [reference omitted]). Their need for legal protection could therefore only have ceased to exist as a result of later circumstances. But a decision must in any case be made in the proceedings of the second complainants about the objective pursued by their constitutional complaint; there is therefore no cause for placing strict requirements on the continued existence of the need for legal protection for the first complainants as a precondition for admissibility [references omitted]. The proceedings are – as mentioned – to be seen as legally independent in accordance with § 80 para 5 of the Administrative Courts Order for the purposes of the constitutional court examination and the first complainants have an interest in the constitutional court elucidating the conditions under which the immediate implementation of the ban on the demonstration might be ordered. Therefore the mere circumstance that they have raised no administrative court complaint in the main issue after the passing of the date for the demonstration does not compel one to assume that the interest in legal protection which was originally present has subsequently ceased to exist.
The constitutional complaints are well founded insofar as they are directed against the fact that the higher administrative court on the complaint of the additional parties summoned confirmed the immediate implementation of the demonstration ban beyond the scope approved by the administrative court. The provisions of the Meetings Act which are indirectly challenged withstand a constitutional court examination in the final outcome, in so far as these provisions are relevant for the decisions under challenge.
The standard for examination in constitutional law is the basic right of freedom to meet (Art 8 GG).
1. The measures challenged in the initial proceedings and the statutory provisions on which they are based restricted the complainants in the freedom to hold the planned demonstrations. This freedom is guaranteed in Art 8 GG, which protects meetings and processions – in contrast to a mere crowd or public entertainment – as an expression of communal development, intended for communication. This protection is not limited to events at which there will be arguments and disputes; it includes diverse forms of communal behaviour extending to non-verbal forms of expression. It also incorporates those that have the character of a demonstration, for which the freedom to meet is claimed for the purpose of expressing opinions in a striking or sensational way. As there were no grounds in the initial proceedings for saying that the expression of certain opinions – possibly in appeals, speeches, songs, or on banners – was to be obstructed, no examination is needed as to the way in which the basic right of freedom of opinion could be used additionally to Art 8 GG as the standard for testing measures taken against demonstrations.
2. Art 8 GG, as a defensive right which also (and principally) benefits dissident minorities, guarantees to those entitled to the basic right the right of self-determination as to the place, point in time, type and content of an event. At the same time it forbids state compulsion to take part in a public event or to stay away from it. In this sense, special status is due to the basic right in a free state; the right to meet with others without being obstructed and without special permission, was always regarded as a symbol of the freedom, independence and maturity of the self-confident citizen. But in its application to political events, the guarantee of freedom embodies at the same time a basic policy decision which in its significance goes beyond protection against state interventions and extends to the unobstructed development of the personality. In the Anglo-American legal circle the freedom to meet, which was rooted in natural law concepts, had been understood at an early stage as an expression of a people’s sovereignty and accordingly as the democratic right of the citizen to participate actively in the political process [references omitted]. This significance of the freedom is likewise emphasised in the statements of the Federal Minister for the Interior, the police trade union and the Federal Association for Citizens’ Initiatives on Environmental Pollution. In the meantime it has been generally recognised in the academic literature. [Details are given].
a) In the constitutional court case law, which has not yet occupied itself with freedom of assembly, freedom of opinion has ranked for a long time as one of the indispensable and basic functional elements of a democratic community. It is regarded as the direct expression of the human personality and as one of the highest ranking human rights, which is constitutive for a free democratic state order. This is because it makes possible the continual intellectual debate and the conflict of opinions as the vital element of this form of state (see BVerfGE 7, 198; [references omitted]). If freedom of assembly is understood as freedom for collective expression of opinion, in principle the same considerations apply to it. It is not inconsistent with this that especially with demonstrations, the argumentative factor which as a rule characterises the exercise of freedom of opinion takes second place. The demonstrator, by expressing his opinion when physically present, in full public view, without the interposition of the media, also displays his personality in a direct way. In their “ideal type” form, demonstrations are the communal physical manifestation of convictions. In them the participants on the one hand experience confirmation of these convictions communally with others. On the other hand they outwardly – through their mere presence, the way they appear and associate with each other or the choice of place – take up a position in the real sense of those words and testify to their point of view. The danger that such expressions of opinion can be misused demagogically and emotionalised in a questionable manner can be no more decisive for basic evaluations in the area of freedom of assembly than it is in the area of freedom of opinion and freedom of the press.
b) The basic significance of freedom of assembly is particularly evident when the special nature of the process of formation of political will in a democratic community is considered. It is stated in the Communist party judgment in relation to the free democratic order that it proceeds on the basis that the existing relationships of state and society which exist, and have existed, can be and need to be improved; this poses a never ending task which must be resolved by a decision of political will which is continually renewed (BVerfGE 5, 85 ). The way to form this decision is described as a process of “trial and error” which by continual intellectual debate, reciprocal control and criticism give the best guarantee for a (relatively) correct political course as a resultant and a balance between the political powers operative within the state [references omitted]. The later judgment about party financing follows on from these considerations and emphasises that in a democracy the formation of opinion must proceed from the people to the organs of the state and not the other way round. The right of the citizen to participate in forming political will does not only express itself in voting in elections, but also in exerting influence on the continual process of formation of political opinion, which in a democratic state must take place freely, openly, without regulation and in principle free from state intervention [reference omitted].
Citizens have taken part in this process to differing degrees. Large associations, wealthy donors and the mass media can exercise considerable influence, whilst the citizen feels himself to be powerless by comparison. In a society in which direct access to the media and the chance of expressing oneself through them is limited to a few, there only remains to the individual, besides organised co-operation in parties and associations in general, collective exertion of influence by using the freedom of assembly for demonstrations. The unobstructed exercise of the freedom not only counteracts the consciousness of political impotence and dangerous tendencies to a sullen attitude toward the state. In the end it also lies in the well understood public interest because in the parallelogram of powers involved in forming political opinion in general, a relatively correct resultant can only develop if all vectors are developed fairly powerfully.
Besides all this, meetings are pertinently described in the academic literature as an essential element of democratic openness: “They offer…the possibility of exerting public influence on the political process, for the development of pluralist initiatives and alternatives or even for criticism and protest…; they contain a piece of original un-harnessed direct democracy which is appropriate to preserve the political operation from paralysis in its busy routine” [references omitted]. In particular in democracies with a parliamentary representative system and few rights of participation by way of referenda, freedom of assembly has the importance of a fundamental and indispensable functional element. Here in principle – even with decisions with serious consequences for everyone which are not simply reversible after a changeover of power – the majority principle applies. On the other hand, the influence here of even the majority of voters between elections is really limited; the power of the state is exercised by special organs and administered by a superior bureaucratic apparatus. In a general sense, decisions made by these organs on the basis of the majority principle gain in legitimacy the more effectively minority protection is guaranteed; the acceptance of these decisions is influenced by whether the minority could exercise sufficient influence beforehand on the formation of opinion and will [reference omitted]. Demonstrative protest can in particular be necessary if the representative organs do not recognise possible abuses and mistakes or do not recognise them in time or accept them out of regard to other interests [reference omitted]. In the academic literature the stabilising function of freedom of assembly for the representative system is pertinently described. It permits the discontented to express and work off their displeasure and criticism publicly. It functions as a necessary condition of a political early warning system, indicates potential for trouble, makes lack of integration visible and thereby also facilitates adjustments to the course of official politics [reference omitted].
The provisions of the Meetings Act which were decisive for the initial proceedings satisfy the constitutional law requirements if they are interpreted and applied taking into consideration the fundamental importance of freedom of assembly.
1. In spite of its high rank, freedom of assembly is not guaranteed without reservation. Art 8 GG merely guarantees the right “to assemble peacefully and without weapons” (see on this III.3.a below) and furthermore makes this right subject to the statutory reservation for events in the open air. The Constitution thereby takes into account the fact that for the exercise of freedom of assembly in the open air there exists, because of the contact with the outside world, a special need for regulation (ie in organisational and procedural law) on the one hand to create the realistic prerequisites for exercise and on the other hand to preserve sufficiently the conflicting interests of others.
Whilst the Weimar Constitution expressly provided in Art 123 that meetings in the open air could “be made the subject of a duty to notify by a statute of the Reich and in case of direct danger to public safety be forbidden”, the Basic Law contents itself with a simple statutory reservation which is apparently unlimited as to its subject matter. But this does not mean that the effective power of this basic right guarantee remains limited to the area which the legislator leaves to it by respecting its essential content. As the Federal Interior Minister has pertinently stated, the same applies as with freedom of opinion. This, it is true, has its limits according to the wording of the Constitution in the boundaries of general statutes, but the scope of it may not be qualified at will by simple statute law (fundamentally, on this subject, BVerfGE 7, 198 [207f.]; [reference omitted]). In all the regimes creating the limits, the legislator must have regard to the basic constitutional law decision which has been discussed and which is embodied in Art 8 GG. He may only limit the exercise of the freedom of assembly for the protection of other legal interests of equal value and strictly preserving the principle of proportionality.
If authorities and courts interpret and apply the statutory norms devised by the legislator limiting the basic right, the same will apply as for the interpretation of provisions about the limiting of freedom of opinion (see on this BVerfGE 7, 198 ; [reference omitted]; on the right of assembly [reference omitted]). A necessity for interventions limiting freedom can arise in the area of freedom of assembly from the fact that the demonstrator by exercising it interferes with the rights of third parties. Even in relation to such interferences the state organs must always interpret the statutes limiting the basic right in the light of the fundamental importance of this basic right in a free democratic state and limit themselves in their measures to what is necessary for the protection of legal interests of equal value. Measures by authorities which go beyond the application of statutes limiting the basic right and perhaps unreasonably impede access to a demonstration by obstruction of approaches and slow preventative controls, or change their unregimented character free from state interference by excessive observations and registrations [reference omitted] would be irreconciliable with these requirements.
2. Out of the provisions of the Meetings Act (which the legislator has enacted by virtue of the statutory reservation in Art 8 (2) GG), only the duty of notification regulated in § 14 para 1 and the requirements for dispersals and bans contained in § 15 are significant for the decision in the initial proceedings. The constitutional law provisions about the period for notification and giving the name of a responsible leader need no examination; neither the administrative authority nor the courts based their decisions on these provisions.
a) The duty of notification regulated by § 14 para 1 of the Meetings Act was expressly provided for in the Weimar Constitution as a permissible limitation of the freedom of assembly. According to the opinion of the Federal Administrative Court it is as a rule only an insignificant restriction of the basic right [reference omitted]. The Bundesgerichtshof [reference omitted] and likewise the entire academic opinion hold the regime to be constitutional. That should be approved when it is taken into consideration that the duty to notify is subject to exceptions and that its violation does not give rise to automatic entitlement to impose a ban or disperse an event.
The duty to notify only applies to meetings in the open air because these frequently require special precautions on account of their external effects. The details connected with the notification are to communicate the necessary information to the authorities. This is to enable them to form a picture on the one hand of what must be arranged by way of traffic regulations and other measures for the event to run as free from disturbance as possible; and on the other hand of what is necessary in the interests of third parties as well as in the communal interest and how the two can be put in harmony with each other [reference omitted]. According to the substantially prevailing view, the duty to notify at the right time does not apply to spontaneous demonstrations which form instantaneously from some cause at that moment [references omitted]. They come under the guarantee of Art 8 GG; provisions relating to the law of meetings are not applicable to them insofar as the purpose pursued by the spontaneous event could not be attained by observance of these provisions. Their recognition despite the non-observance of such provisions is justified by the fact that Art 8 GG in its paragraph 1 guarantees in principle the freedom to meet “without notification or permission”. This freedom can, it is true, be limited on the basis of statute in accordance with paragraph 2 for meetings in the open air, but such limitations may not render the guarantee of paragraph 1 completely inapplicable for certain types of events, and this guarantee frees from the duty to notify where the named prerequisites exist.
This assessment of spontaneous demonstrations rests on the fact that the administrative provisions of the law of meetings are applied in the light of the basic right of freedom of assembly and must if need be take second place to it. It is the basic right and not the Meetings Act which guarantees the permissibility of meetings and processions; the Meetings Act merely provides for limitations insofar as these are necessary. The fact that a violation of the duty to notify does not automatically lead to a ban or to the dispersal of an event coincides with this. It is true that any person who as organiser or leader “conducts” a meeting which has not been notified commits an offence (§ 26 Meetings Act). But the Meetings Act merely provides in § 15 para 2 that the competent authority “can” disperse meetings in the open air and processions if they are not notified. The Federal Minister for the Interior considers a preventative ban to be possible as a further sanction if and insofar as this represents a more lenient method than dispersal which is expressly mentioned in the statute. But the competent authority is not in any case legally obliged to disperse or ban meetings. It merely has an authority to do so, of which it may, in the light of the great importance of freedom of assembly in general, only make use in accordance with its duty if further prerequisites for an intervention are present. The absence of notification and the resultant lack of information merely make this intervention easier to justify.
As the duty to notify does not always apply and its violation does not lead automatically to dispersal and banning, it is not evident that the duty which is based on important public welfare interests could as a rule be disproportionate. Whether and to what extent exceptional features exist for large demonstrations, which, as with spontaneous demonstrations, could justify a different assessment, is to be discussed in another connection (see below, III.2.).
b) The provisions of § 15 of the Meetings Act likewise stand up to a constitutional court examination if they are interpreted in a manner consistent with the Constitution. According to these provisions the competent authority may make the meeting dependent on certain conditions or forbid or disperse it “if, according to the circumstances evident at the time of issue of the order, public safety or order is directly endangered by the holding of the meeting or of the procession”.
The complainants and the Federal Association for Citizens Initiatives for the Protection of the Environment raise doubts because of the uncertainty of the prerequisites for intervention of “endangering of public safety or order”. [It claims that these] are so much the more problematic when the decision about interventions lies in the discretion of the lower administrative authorities and the ordinary police. The concepts mentioned have however – as the Federal Minister for the Interior pertinently explained – obtained a sufficiently clear content through police law [references omitted]. According to this the concept of “public safety” includes the protection of central legal interests like life, health, freedom, honour, property and wealth of the individual as well as maintaining the legal order and the state institutions intact. In this connection, an endangering of public safety is as a rule assumed if a criminal violation of these protected interests is threatened. “Public order” is to be understood as including the totality of unwritten rules, obedience to which is regarded, according to social and ethical opinions prevailing at the time, as an indispensable prerequisite for an orderly communal human existence within a defined area.
These explanations of the concepts on their own still admittedly do not guarantee an application of statute law which is in conformity with the Constitution. For the constitutional law assessment, two limitations are significant which are found in the statute itself and which have as a consequence that bans and dispersals can in essence only be considered for the protection of elemental legal interests. A mere endangering of the public order will not in general suffice.
Bans and dispersals presuppose firstly as their ultima ratio that the less severe method of imposing conditions has been exhausted [reference omitted]. That is based on the principle of proportionality. But this limits the discretion not only in the choice of methods, but also in actual decision by the competent authorities. The freedom of assembly protected by the basic right must only take second place when a balancing of interests which takes into consideration the importance of the freedoms shows that this is necessary for the protection of other legal interests of equal value. Accordingly, a limitation of this freedom will definitely not be justified by just any interest; inconveniences which inevitably arise from the large scale on which the basic right is exercised, and cannot be avoided without disadvantages for the purpose of the event, will generally have to be born by third parties. It will be just as inappropriate to consider banning of meetings on the basis of mere technical traffic grounds, since juxtaposition of the use of the highway by demonstrators and moving traffic is as a rule attainable by conditions.
Secondly, the power for authorities to intervene is limited by the fact that bans and dispersals are only permitted when there is a “direct endangering” of public safety or order. The prerequisites for intervention are more severely restricted by the necessity for directness than in general police law. In each actual case a prognosis of the dangers is necessary. It is true that this will always contain a judgement about probability; but its basis can and must be shown. Accordingly the statute provides that it must be based on “recognisable circumstances”, and therefore on facts, situations, and other particulars; mere suspicion or assumptions cannot suffice. Taking into consideration the fundamental importance of freedom of assembly the authority may not, in particular when issuing a preventative ban set too low a standard for the prognosis of the dangers, especially as the possibility of a later dispersal still remains open to it when the situation has been incorrectly assessed. What standards are required in the individual case must be determined first of all by the specialist courts [references omitted]. They can hardly be prescribed independently of the actual circumstances because of the Constitution. They can however depend in relation for instance to large demonstrations on how far a preparedness by the organisers to make co-operative preparations exists and whether disturbances are feared only from third parties or from a small minority (see on this III. 1. and 3. below). § 15 of the Meetings Act as a whole is in any case reconcilable with Art 8 GG when it is interpreted and applied so that the guarantee remains that bans and dispersals will only take place for the protection of important community interests; and the principle of proportionality must be adhered to and there must be an endangering of these legal interests which is direct and capable of being deduced from recognisable circumstances.
There is no objection on constitutional grounds to the fact that the provisions on the law of meetings previously discussed also apply for large demonstrations. However, when those provisions are applied experiences which have been gathered and tested in the meantime in the endeavour to facilitate the peaceful holding of even such demonstrations must be utilised.
1. According to the factual reports obtained in the initial proceedings and after the outcome of the Stuttgart discussions [reference omitted] a number of circumstances can contribute to the peaceful carrying out of events of the same kind as the Gorleben trek in 1979, the peace demonstrations in Bonn in 1981 or the South German human chain in 1983. These include, besides making the legal position clear in good time, the following. There should be no provocation or incentives to aggression on either side. The organisers should influence the participants with a view to ensuring peaceful behaviour and the isolation of violent people. State power should wisely keep a low profile – if need be by the formation of police free areas – and avoid excessive reactions. In particular, contact should be made at an early stage, at which both sides get to know one another, exchange information and possibly find their way to a co-operation based on mutual trust, which makes it easier to cope with unforeseen situations of conflict.
It can be left undecided whether a duty to consider these experiences can be derived simply from the duty of protection. According to the opinion of the police trade union this [latter duty] arises for state authorities from the basic political decision in constitutional law which Art 8 GG represents in a similar manner to other high ranking basic right guarantees; and it aims at facilitating the holding of meetings and processions as well as protecting the exercise of the basic right from disruptions and riots by third parties. In any case the recent constitutional court case law should be consulted according to which the basic rights do not only influence the form of substantive law. They also set standards for organisational and procedural forms which effectuate basic right protection and for an application of existing procedural provisions which is “basic right friendly” [references omitted]. There are no doubts about applying this case law to freedom of assembly as well, especially as this basic right has a substantial content of procedural and organisational law. As a freedom it contains no statements about the actual form of meetings and processions but leaves these to the free self-determination of the organisers and contents itself with organisational restrictions for the holding of these events. The requirement that state authorities should proceed in a “meetings-friendly” manner in accordance with the model for large demonstrations which have proceeded peacefully and should not shelter behind tried and tested experiences without sufficient grounds corresponds to the concept of striving to effectuate freedoms in procedural law. A duty not only to take these experiences into consideration but also actually to try them is additionally justified in constitutional law by the fact that this is a less severe method than interventions in the form of bans or dispersals. The more seriously the state authorities show support in this way for the peaceful holding of large demonstrations, the more likely are later bans or dispersals to stand up to an examination by an administrative court after their efforts have broken down.
The requirements of procedural law which have been mentioned may not, in their application to the state authorities, be extended so as to change in principle the character of the police task of protecting against dangers, nor, for instance, so as to make the application of flexible deployment strategies impossible. Likewise (and more importantly) no requirements may be made of the organisers of and participants in large demonstrations which would undermine the character of demontrations as contributions to the formation of political opinion and will which are in principle free of state intervention and unregimented. Nor must they undermine the right of self-determination by the organisers of the type and content of demonstrations. That will not be so if all that is required of organisers and participants is to refrain from behaviour which is not peaceful and to minimalise interference with third party interests. Such a duty follows directly from the basic right guarantee and its co-ordination with the basic rights of others. Extensive procedural law duties can possibly be justified by the fact that the exercise of the basic right has a relationship with the community and by the shared responsibility of the persons answerable for the effects of large demonstrations. Setting out such duties more precisely within the framework and boundaries of the statutory reservation using the experiences mentioned, at the level of ordinary law, must be left with the legislator. Even without a precise statement by the legislator, the organisers and participants would certainly do well to have regard as far as possible on their own initiative to the recommendations for large demonstrations derivable from proven experiences. Administrative practice and case law are in any case constrained by constitutional law to encourage willingness by the other side: the more the organisers are ready on the occasion of the notification of a large demonstration to take unilateral confidence-building measures or even ready for “demonstration-friendly” co-operation, the higher is the threshhold for intervention by an authority because of danger to public safety and order.
2. Contrary to the opinion of the Federal Association for Citizens Initiatives on the Protection of the Environment, it is not required on constitutional grounds that large demonstrations should be excepted from the duty of notification under § 14 of the Meetings Act in the same way as spontaneous demonstrations. [Details are given].
Because of the complexity of the support organisation in the case of large events an interpretation of § 14 in combination with § 15 para 2 of the Meetings Act which conforms to the Constitution would certainly seem to be indicated if individual groups or persons see themselves as incapable of carrying out an overall notification or overall leadership. A mandate only given in limited terms and a preparedness to enter a dialogue and to undertake responsibility which is only present on a limited basis cannot be left out of consideration when possible sanctions for a failure to notify are examined. The absence of a notifier with overall responsibility merely means that in the case of disturbances the intervention threshhold for competent authorities can fall – as in the case of a spontaneous demonstration. This will only apply insofar as the authority for its part has done everything to fulfill its procedural duties – perhaps by an offer of fair co-operation – in order to facilitate the holding of a demonstration which is planned as peaceful.
3. In particular, in the case of large demonstrations it is often asked – and this is also important in the initial proceedings – whether and under what conditions rioting by individuals or by a minority justify a ban of the demonstration or its dispersal because of direct danger to public safety and order in accordance with § 15 of the Meetings Act.
a) The Constitution merely guarantees the right “to gather peacefully and without weapons”. By the requirement of peacefulness, which was contained in the Paulskirchen Constitution as well as in the Weimar Constitution, something is made clear which follows from the legal nature of freedom of assembly insofar as it is understood as a means to intellectual debate and influencing formation of the political will [reference omitted]. The initial case in which acts of violence occurred gives no cause for the drawing of a more precise boundary between acceptable consequences and behaviour which is not peaceful. In any case, a participant does not behave peacefully if he commits acts of violence against persons or things. In order to avoid these, a legal order which, after overcoming the mediaeval law of the jungle, has given the state a monopoly of the exercise of power (not least in the interest of weaker minorities) must take a strict stand. That is a precondition for the guarantee of freedom of meeting as a method of active participation in the political process and – as experiences with street fights during the Weimar Republic have shown – is also indispensable for a free democracy because defence against acts of violence triggers measures limiting freedom. It is all the more appropriate to expect peaceful behaviour from demonstrators as this is the only way that they can win, whilst in violent confrontations they will always be subjected to the state’s power in the end and at the same time damage the goals which they are pursuing.
b) The ordering of a meeting ban does not raise any special problems in constitutional law even with large demonstrations if the prognosis reveals a high probability that the organiser and his following intend to commit acts of violence or will at least approve of such conduct on the part of others. A demonstration of this kind is not included in the guarantee of Art 8 GG at all as it is not peaceful; dispersing or banning it cannot therefore violate this basic right. The legal situation seems similarily clear when conversely the organiser and his following behave peacefully and disturbances only proceed from the outsiders (counter-demonstrators or disruptive groups). For this case the relevant requirement in the academic literature is that measures by the authorities must primarily be directed against the disturbers and that action may only be taken against the meeting as a whole under the special prerequisites of police emergency [references omitted].
If there is no fear of collective strife, it is not necessary to take into account the possibility that a demonstration as a whole will take a violent or rebellious course (see § 13 para 1 no 2 of the Meetings Act) or that the organiser or his following will strive for such an outcome (see § 5 no 3 of the Meetings Act) or at least approve of it. In such circumstances, for peaceful participants the protection guaranteed by the Constitution to every citizen of freedom to meet must remain preserved even if other individual demonstrators or a minority commit riots [references omitted]. If behaviour of individuals which is not peaceful were to lead to discontinuance of the basic right protection for the whole event and not only for the perpetrators, these persons would have it in their hands to “turn round” a demonstration and make it become unlawful, contrary to the intention of other participants [reference omitted]. For practical purposes every large demonstration could then be banned, as almost always “information” about non-peaceful intentions of a part of the participants can be supplied.
The protection of Art 8 GG which consequently continues to apply must have an effect on the application of the legal norms limiting the basic right (for measures in criminal law and liability law in relation to demonstrations which have taken a course which was in part not peaceful, see [references omitted]; see further the decision of the European Commission for Human Rights [reference omitted]). The guarantee of the basic right which is subject to the statutory reservation does not exclude the possibility of the authority ordering measures for the protection of public safety on the basis of § 15 of the Meetings Act against the whole demonstration even to the extent of a ban. However, it is preferable to consider a subsequent dispersal which does not deprive the peaceful demonstrators from the outset of the chance of exercising the basic right and leaves to the organiser the priority in isolating non-peaceful participants. A preventative ban of the whole event because of riots feared from a violently orientated minority is on the other hand only permissible under strict conditions and following application of § 15 of the Meetings Act in a manner conforming to the Constitution. This is required by the duty of optimal preservation of the freedom of assembly and the procedural law requirements which follow from this. There must be a high degree of probability in the prediction of the risk [references omitted] as well as prior exhaustion of all significant applicable methods which facilitate a realisation of the basic right of peaceful demonstrators (eg limiting the area to which the ban applies). In particular a ban of the whole demonstration presupposes as ultima ratio that the less severe method of preventing danger by co-operation with the peaceful demonstrators has failed or that such a co-operation was impossible for reasons for which the demonstrators were responsible. If on the basis of the detailed circumstances a general preventative ban of the demonstration is considered, it seems as a rule to be required in relation to large demonstrations in which peacefully-minded participants very much predominate, that such an extraordinary and intrusive measure is notified beforehand. A time period should also be set, so that within this period opportunity exists for discussion of the dangers which are feared and the appropriate preventative measures.
©1999 University of Oxford. Since 2002: © Translation The University of Oxford and Professor Markesinis 1999. HTML edition by Lawrence Schäfer, © 1999 Gerhard Dannemann.