69 BVerfGE 315 (1985)

[Facts:

The German Basic Law in Article 8 provides for a right to assemble peaceably and without weapons without prior notification or permission. For open-air meetings this right may be restricted by or pursuant to a law. Section 14.1. of the Assembly Law (Versammlungsgesetz, hereafter AL) rules that anyone who plans to organize an open-air assembly must register with the responsible authority at least 48 hours prior to the announcement of the event and declare the nature of the event. Section 14.2 of the AL requires that the registration must include the name of who is supposed to be responsible for the leadership of the event. Section 15.1. of the AL allows the responsible authorities to prohibit the event or render permission of the event conditional on compliance with certain requirements when, in the light of the circumstances at the time of the decision, the event immediately endangers public safety or order. Section 15.2. of the AL allows the responsible authorities to break up an event if no registration was filed, or if the nature of the event turns out to be different than declared, or if requirements are not being complied with, or if the prerequisites for a prohibition from Section 15.1. are met. Section 15.3. of the AL declares that a prohibited event must be broken up. Sections 26 and 29 of the AL provide for penal measurements for persons who organize or are responsible for prohibited and non-registered events and for people who participate in prohibited events.

The construction of a nuclear power plant in Brokdorf is the starting point of this dispute. In 1980 an end to the interruption of the construction of the plant was announced and a continuation of the work was expected in early 1981. On February 14, 1981, 400 delegates from more than 60 organizations met in Hannover and announced their plan to call for an international demonstration against the plan to build the nuclear power plant on February 28, 1981. No one filed a registration for the planned demonstration. The head of the administration of the county Steinburg in which the demonstration was to take place issued a general decree (Allgemeinverfuegung) on February 23, 1981. The decree prohibited any demonstration against the nuclear power plant for the time between February 27, 1981 and March 1, 1981 for an area covering 210 square kilometers, an equivalent of 51,891 acres. As a justification the head of the administration proposed that he expected 50,000 citizens and recent similar events always led to illegal violence and great damage. He argued that experience teaches that potentially violent citizens will use peaceful demonstrators as a shield for their ambitions. He furthermore explicitly stated that his decision to prohibit the demonstration would have been the same had a registration been filed. Moreover the head of the administration ordered immediate execution of his general decree.

Petitioners two filed a registration for a demonstration on February 28 on February 24, 1981. The head of the administration of the county rejected the registration, citing his general decree and the order to immediately execute it. Petitioner two challenged the general decree at the office of the administration. Petitioner one also challenged the general decree at the office of the administration on February 26, 1981.

The head of the administration did not immediately render any decision upon the challenges to his general decree. On a motion of the petitioners the Administrative Court of Schleswig-Holstein upheld the general decree prohibiting the demonstration on February 27, 1981 but significantly reduced its scope. The court ruled that an immediate ban on demonstrations could only be upheld for an area limited by two police road blocks distanced 4.5 and 9 kilometers (equivalent to 2.8 and 5.6 miles respectively) from the construction site. In the justification for its decision the court articulated doubts about the proportionality of the comprehensive ban declared by head of the administration.

In the afternoon of February 27, 1981 the High Administrative Court of Schleswig-Holstein overruled the lower court=s decision and reinstated the scope of the general decree as articulated by the head of the administration prohibiting the demonstration. Among other things it argued that an immediate danger to public safety was not only present for the more limited area as described by the Administrative Court but for the larger area as described by the head of the administration.

The two petitioners then filed separate constitutional complaints. Both constitutional complaints challenged the prohibition of the demonstration as articulated by the head of the administration and the High Administrative Court as a violation of their basic rights to freedom of expression and to freedom of assembly (Articles 5 and 8 of the Basic Law respectively). Petitioner two furthermore challenged the decision by the Administrative Court to ordain a non-demonstration zone as large as it did. Petitioner two contended in his complaint that a non-demonstration zone with a radius of about 2 kilometers (equivalent to 1.24 miles) around the construction cite would have been sufficient.

This decision is a consolidation of the two constitutional complaints.

The demonstration took place anyway on February 28, 1981 and was attended by about 50,000 citizens. It was partly violent.

The Federal Constitutional Court reviewed briefs by the Federal and State government, by the head of the administration of the county Steinburg, by the Union of the Police, and by an association of environmental movements. Thereafter the Federal Constitutional Court found the Constitutional complaints permissible.

Issues:

a) Does the decision of the Administrative Court, scaling back the administrative decision of the head of the county administration but still finding an exclusionary zone as described above, constitute a violation of the petitioners= right to freedom of assembly as guaranteed by Article 8 of the Basic Law?

b) Does the decision of the High Administrative Court, reinstating the administrative decision of the head of the county administration, constitute a violation of the petitioners=, right to freedom of assembly as guaranteed by Article 8 of the Basic Law?

Holding by the First Senate:

a) No, it does not.

b) Probably. The Federal Constitutional Court does not decide this issue on the merits but finds that the High Court of Administration had no right in the first place to alter the decision of the Administrative Court.

Discussion:]

C.

The constitutional complaints are justified as far as they [challenge the decision] of the High Administrative Court... to allow for an immediate execution of the demonstration ban in excess of the scale allowed for by the Administrative Court. The indirectly challenged regulations of the Assembly Law, as far as they are relevant for the challenged decisions, withstand in result a constitutional review.

I.

Constitutional standard is the basic right of freedom of assembly (Article 8 of the Basic Law).

1. The measurements challenged in the initial trials as well as the legal regulations [which were the basis for those regulations] limited the petitioners in the liberty to conduct the planned demonstrations. This liberty is guaranteed in Article 8 of the Basic Law, which protects assemblies and parades--in contrast to mere crowds or public entertainment--as an expression of social development (Entfaltung) geared towards communication. This protection is not limited to events at which [people] argue and fight, but rather encompasses varied forms of joined behavior [and even] non-verbal forms of expression. [The protection also encompasses demonstration-like events at with] the freedom of assembly is being employed for the purpose of striking or sensational proclamation of opinion. Because in the initial trials indications are absent that the proclamation of certain opinions--for instance in proclamations, speeches, songs or on banners--[was trigger of the administrative obstructions, one] need not check how one could employ the basic right to freedom of opinion as a standard supplementary to Article 8 of the Basic Law when reviewing the measurements against the demonstration.

2. As a defensive right, which also and in particular benefits dissenting minorities, Article 8 of the Basic Law guarantees the holders of the right the right to self-determination on location, nature and content of the event and simultaneously prohibits an obligation by the state to participate in or stay away from a public event. Already in this sense the basic right deserves a particular rank in a freedom-oriented state (freiheitliches Staatswesen); the right to assemble with others without obstruction and without particular permission has [always] been regarded as a sign of freedom, independence and responsibility (Muendigkeit) of the confident citizen...

a) In the constitutional articulation of justice (Rechtssprechung), which so far has not addressed the freedom of association, the freedom of opinion has long been regarded as an indispensable and fundamental functional element of a democratic community. [The freedom of opinion is regarded] as the most immediate expression of human personality and as one of the most noble human rights at all, which is constituent of a free and democratic state order (freiheitliche demokratische Staatsordnung); for only [the freedom of opinion] renders possible a continuous intellectual analysis and the struggle of opinions as an element of life of this form of state(*). If the freedom of association is understood as the freedom of collective proclamation of opinion, [then] nothing fundamentally different can apply [for the freedom of association]...

{In this case of first impression, the Federal Constitutional Court next derives at length and very theoretical why the freedom of association is of importance.}

II.

The regulations of the Assembly Law relevant for the initial trials fulfill the constitutional requirements when they are interpreted and applied with consideration of the meaning of the freedom of assembly [as a basic right].

1. Despite its high rank, the freedom of assembly is not granted without reservation. Article 8 of the Basic Law merely guarantees the right Ato assemble peaceably and without weapons@ and moreover subjects this right to a right of the legislator to pass legal restrictions (Gesetzesvorbehalt) for open-air events. Thereby the constitution takes into account the circumstance that for the open-air exercise of the freedom to assemble, due to the contact with the outside world, a particular, namely an organizational and procedural need for regulation exists, in order to, on the one hand, create the real prerequisites for the exercise, [and], on the other hand, to safeguard sufficiently colliding interests of others...

In all limiting regulations the legislator must take into account the constitutionally fundamental decision embodied in Article 8 of the Basic Law; [the legislator] may only limit the exercise of the freedom to assemble for the protection of other legal values of the same weight under strict compliance with the principle of proportionality...

2. Of the regulations in the Assembly Law, which the legislator enacted empowered by the right to pass legal restrictions of Article 8.2. of the Basic Law, merely the duty to register of Section 14 and the requirements for prohibition and break-up from Section 15 are relevant for the decisions in the initial trials...

a) ...The duty to register only applies to open-air events because these [events] often require particular precautions due to their [exterior effects] (Aussenwirkungen). The facts [required] in relation with the registration are supposed to convey the necessary information to the authorities in order to enable them to get a picture of, on the one hand, what kind of traffic and other general measurements have to be taken to ensure a course of the event with the least possible disturbances, and, on the other hand, what is necessary for the interests of third persons and the community, and, how both [sides] can be reconciled with each other. According to entirely prevailing opinion, the duty to timely register [does not apply in cases] of spontaneous demonstrations that form themselves within moments due to some current trigger...

This assessment of spontaneous demonstrations rests upon [the fact] that the [restrictive ordinary law] regulations with respect to assemblies have to be applied in the light of the basic right to the freedom of assembly and [if the facts so require the ordinary law has to give way to the basic right]. The basic right and not the Assembly Law guarantees the permissibility of assemblies and parades; the Assembly Law merely provides for restrictions as far as they are necessary...

If the duty to register does not hold without exception and [if a violation of that duty] does not automatically lead to break-up and prohibition, then it cannot be found that the duty, which is rooted in weighty aspects of community well-being, is improportional in the regular case...

b) Section 15 of the Assembly Law also withstands constitutional review by the Federal Constitutional Court, [Section 15 of the AL] whereby the responsible authority may render permission of the event conditional on compliance with certain requirements or prohibit or break-up [the event], Awhen, in the light of the circumstances at the time of the decision, the assembly or parade immediately endangers public safety or order.@

The petitioners... articulate misgivings due to the vague prerequisite for [state] interference Aendangerment of public safety and order@, which is argued to be even more problematic [due to the fact] that the decision whether to interfere lies within the discretion of the lower administrative organs and the executing police. However, the cited terms have reached a sufficiently clear content by the aid of the police law, as the Federal Minister of the Interior correctly outlined [in his brief] (*). Accordingly, the term Apublic safety@ encompasses the protection of central legal values such as life, health, freedom, honor, property and wealth of the individual as well as the inviolability of the legal order and of public institutions, whereat in general an endangerment of the public safety is assumed when a punishable violation of these protected goods is imminent. The term @public order@ is being understood [to encompass] the entirety of the unwritten rules, the compliance of which is being understood, according to the currently dominant social and ethical beliefs, as an indispensable prerequisite of an orderly human coexistence within a certain domain.

These definitions of terms alone, however, do not ensure an application of law in conformity with the constitution. Important for the constitutional assessment are two limitations which are rooted in the law itself and have the consequence that prohibitions and break-ups essentially can only be considered for the protection of elementary legal values, whereas a mere endangerment of the public order generally will not suffice.

First, break-up and prohibition, being [measurements] of last resort, do have the prerequisite that the milder measurement of imposing certain requirements has been employed exhaustively (*). This rests upon the principle of proportionality...

Second, the power granted to the authorities to interfere is being limited by the fact that prohibitions and break-ups are permissible only in cases of Aimmediate endangerment@ of public security and order. By the requirement of immediateness the prerequisites to interfere are being more strongly limited than by the general police law. A prognosis of the danger is necessary in each concrete case. It is true that [this prognosis] always includes a judgment of probabilities; however, the foundations of [this judgment of probabilities] can and must be stated. Accordingly, the law determines that [the prognosis of probabilities] must rest upon Arecognizable circumstances@, that is to say, upon facts, sets of facts or other details; mere suspicion or conjecture can not suffice. Taking into consideration the fundamental importance of the freedom of assembly, the authority may not, in cases of preventive prohibitions, employ requirements too low on the prognosis of the danger, especially because [the authority], in cases of an erroneous judgment, always has the option of a later break-up. Which requirements are necessary in each case has to be decided initially by the [responsible] courts (*)... Altogether Section 15 of the AL is in accord with Article 8 of the Basic Law when in its application and use it remains secure that prohibitions and break-ups are only being employed for the protection of important community values (Gemeinschaftsgueter) in compliance with the principle of proportionality and [are only being employed in cases] of immediate endangerment, [which] can be derived from recognizable circumstances, of those legal values.

III.

{In the following section, the Federal Constitutional Court picks up the issue whether large demonstrations need be treated differently from regular demonstrations. What the term large means is not being defined. The court first rejects the claim made in a brief filed with the court that large demonstrations shall be excluded the duty to file a registration from Section 15 of the AL.

The Federal Constitutional Court next recognizes the problem of how to deal with prohibitions or break-ups of large demonstrations in which violent minorities seem to endanger public security and order. The court proposes the following guidelines:}

3. ..

b) The order to prohibit an assembly also does not pose any particular constitutional problems in cases of large demonstrations when the [endangerment] prognosis results that with a large probability the organizer and its followers plan to commit violent acts or at least do not disapprove of such acts. A demonstration of such kind, being unpeaceably, is not at all within the guarantee of Article 8 of the Basic Law; its break-up or prohibition can therefore not violate the [right to freedom of assembly]. The legal situation appears similarly clear when [the roles are reversed] and the organizer and its followers act peaceably and disturbances merely emerge from outsiders (counterdemonstrators, groups of trouble-makers). For this case the literature correctly demands that all measurements by the authorities must primarily be directed against the trouble-makers and that only under the particular circumstances of police emergencies (polizeiliche Notstaende) [it is permissible to take measurements] against the event in its entirety...

IV.

Since, according to the [discussion above], the regulations relevant for the initial trials are [valid] if construed in conformity with the constitution, the challenged decisions [by the administrative courts] do not already violate basic rights of the petitioners, because [the decisions] were based upon these regulations. The application of the legal regulations, however, does not withstand a constitutional review in its entirety...

2. ...The Administrative Court correctly emphasizes in its decision the high rank of the basic right to freedom of assembly, which also encompasses the right to assemble [at a location which] the organizers deem desirable. It does not [rely] on the [failure to register the demonstration] but rather, in accord with Section 15 of the AL, on an immediate endangerment of the public safety due to violent excesses. In doing this, [the court], in accord with the justification of the prohibition of the head of the administration and the later [decision] of the High Court of Administration, recognizably assumes that such [violent] excesses were to be feared only from a small minority of the participants. Under these assumptions the continuously existing [right] of the [large majority] of the peaceable participants to have their basic right protected caused that a preemptive prohibition to demonstrate based on Section 15 of the AL presupposed a heightened prognosis of the danger as well as the prior exhaustion of all means that can be sensibly employed to provide the peaceable demonstrators with the possibility of the realization of a basic right. This has been sufficiently taken into account by the Administrative Court in that it limited the immediate execution of the prohibition [to demonstrate] to the closer vicinity of the construction project.

In rendering this decision the Administrative Court already in the context of the review of the legality of the prohibition and again [in the context] of the balancing of interests [considered] the principle of proportionality and [the fact] that the use of violence against parts of the construction site was reasonably to be feared whereas indications for other [violent excesses] were lacking. This prognosis rested upon the available material, that is, on recognizable circumstances; it was moreover later affirmed by the fact that close to the construction site violent excesses actually occurred. Accordingly, petitioner one did not object to the immediate execution [of the prohibition to demonstrate] in the extend ordered by the Administrative Court. Only petitioner two was of the opinion that for the protection of the construction site a more narrowly drawn Aexclusionary zone@ (Bannmeile) would have been sufficient. However, [petitioner two] fails to take into account that the emotionalizing proximity of a disputed construction project can result in potentially dangerous developments, so that in heated situations at large demonstrations a larger distance [to the site] can be necessary. In particular, [petitioner two] misjudges the scope of discretion (Entscheidungsspielraum) that in this context is [necessary] for the administrative agency for the ordering of effective protective measurements, [the scope of discretion] which was respected by the Administrative Court in that it oriented its [drawing of an exclusionary zone] at the road blocks prepared by the police...

3. In accordance with the discussion above the decision of the High Court of Administration cannot be objected so far as it affirmed the [the decision by the Administrative Court] to reject the complaint of petitioner two. The decisions of the High Court of Administration, however, violate the basic rights from Article 8 of the Basic Law in relation with the principle of the rule of law (Rechtsstaatsprinzip) of all petitioners so far as the High Court of Administration [affirmed the decision of the head of the administration and ruled for a prohibition of demonstrations for an area larger than the one found by the Administrative Court...

Altogether [one can find arguments] that serious doubts about the legality of the unusually broad prohibition to demonstrate existed [at the time he High Court of Administration rendered its decision, a prohibition] which practically suspended the basic right of freedom of assembly also for a large majority of peaceable demonstrators for several days for an area of 210 square kilometers... Whether with this factual situation and under consideration of the particularities of rush holdings (Eilverfahren) it is still constitutionally acceptable that the High Court of Administrative Justice at the time of its decision judged the prohibition [of the head of the administration as legal] need not be decided. This is so because the constitutional complaints have to be upheld as justified already due to the fact that the High Court of Administration was, according to the legal situation at the time of the decision, not permitted to alter the [decisions of the Administrative Court] to the disadvantage of the petitioners:

{In the final section of this opinion the Federal Constitutional Court explained that for procedural reason the High Court of Administration was not permitted to alter the ruling of the Administrative Court to the disadvantage of the petitioners.}

[Signed by all eight Judges.]

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