1171 Js 111142/09 StA Hanover
Decision
In the criminal case
against xxx
– Defense counsel: Attorney Adam, Göttingen –
for violating the Assembly Act
The 2nd Criminal Senate of the Higher Regional Court of Celle, on the defendant's appeal against the judgment of the Hanover Local Court of 12 October 2010, after hearing the Attorney General's Office, unanimously decided on 4 May 2011 by the presiding judge of the Higher Regional Court xxx, the judge of the Higher Regional Court xxx and the judge of the Regional Court xxx :
The contested judgment is overturned, including the underlying findings.
The case is referred back to another division of the Hanover District Court for a new hearing and decision, including on the costs of the appeal.
Reasons:
I.
The Hanover District Court sentenced the defendant by judgment of 12 October 2010 to a fine of 15 daily rates of €15 each for violating the Assembly Act.
1.
According to the findings of the local court, the defendant is single, childless, and currently unemployed. He has no prior criminal record.
2.
The local court made the following findings in this matter:
On September 12, 2009, the defendant participated in a counter-demonstration against an NPD rally in Hanover. He wore a baseball cap pulled low over his forehead, sunglasses, and a jacket pulled up over his chin, in order to prevent his identity from being established.
3.
The local court considered the act a violation of the Assembly Act (prohibition of disguise) pursuant to Sections 17a Paragraph 2 No. 1, 27 Paragraph 2 No. 2 of the Assembly Act and imposed a fine of 15 daily rates of 15,– Euro each.
4.
The defendant has appealed this judgment, alleging violations of procedural and substantive law.
5.
The Attorney General's Office has requested that the appeal be dismissed.
II.
The defendant's appeal on points of law, admissible pursuant to Section 335 Paragraph 1 of the Code of Criminal Procedure, is successful on the merits. The defendant's conviction for violating the prohibition against wearing masks cannot stand, as the legal situation changed with the entry into force of the Lower Saxony Assembly Act on February 1, 2011.
1.
As part of the 2006 federalism reform, legislative competence for the right of assembly was transferred from the federal government to the exclusive jurisdiction of the states (see the Law Amending the Basic Law of August 28, 2006, Federal Law Gazette I, p. 2034). According to Article 125a, paragraph 1 of the Basic Law, the existing right of assembly remained in force as federal law until it was replaced by state law (see Epping/Hillgruber, Basic Law, Article 125a, marginal note 4).
2.
With the law on the reform of the right of assembly of 7 October 2010 (Nds. GVBI. p. 532), the state of Lower Saxony has made use of its new competence.
Section 9, paragraph 2, number 1 of the Lower Saxony Assembly Act (NVersG) (corresponding to Section 17a, paragraph 2, number 1 of the previous federal law) prohibits participation in an assembly while wearing clothing or attire that is suitable and intended to prevent the establishment of one's identity (prohibition of disguise). Section 10, paragraph 2 of the NVersG established a regulatory authority to enforce the prohibitions of Section 9 of the NVersG (see the written report of the Committee on Internal Affairs and Sport, LT – Printed Matter 16/2913). A violation of the prohibition of disguise is punishable under Section 20, paragraph 2, sentence 1, number 5 of the NVersG.
3.
The Lower Saxony Assembly Act entered into force on February 1, 2011 (see Article 6 of the Act on the Reorganization of Assembly Law) and, with regard to the state of Lower Saxony, replaces the federal law previously in force. This is not contradicted by the fact that the federal government has concurrent legislative power over criminal law pursuant to Articles 72(1) and 74(1) No. 1 of the Basic Law, with regard to the criminal offense under Section 20 of the Lower Saxony Assembly Act. This is because Article 125a(1) of the Basic Law grants the states comprehensive powers of substitution (see Wolff in v, Mangoldt/Klein/Starck Commentary on the Basic Law, 6th ed., Article 125a, marginal notes 24 et seq.).
a)
Originally, the criminal offense defined in Section 27 of the Federal Assembly Act was to be incorporated into the Lower Saxony Assembly Act with only linguistic changes (see draft bill for the reform of the Assembly Act, Parliamentary Document 16/2075, pp. 10, 41). However, constitutional concerns regarding the principle of legal certainty and the principle of proportionality (see written report of the Committee on Internal Affairs and Sport, Parliamentary Document 16/2913) led to the limitation of criminal liability for violations of the prohibition against wearing a disguise to cases in which the illegality of the disguise previously been established by an administrative act specifying the required conduct. According to Section 20 Paragraph 2 Sentence 1 No. 5, Sentence 2 of the Lower Saxony Assembly Act (NVersG), participation in an assembly in an appearance described in Section 9 Paragraph 2 No. 1 of the NVersG is therefore only punishable if this contravenes an enforceable measure under Section 10 Paragraph 2 of the NVersG.
b)
This amendment to the law represents a continuation of the original criminal liability and not the introduction of a (completely) new criminal offense with the consequence of the defendant's impunity.
There is a continuity of wrongdoing between Section 20 Paragraph 2 Sentence 1 No. 5 of the Lower Saxony Assembly Act (NVersG) and Section 27 Paragraph 2 No. 2 of the Federal Assembly Act (VersG (Bund)). A comparison of both sets of facts shows that the essence of the offense described in the earlier law remained unchanged by the amendment (cf. generally BGHSt 26, 167ff) and no completely new type of wrongdoing was created.
c)
According to Section 2 Paragraph 3 of the German Criminal Code (StGB), the most lenient law is to be applied if the law in force at the time the act was completed is amended before the (final) decision (so-called most-favored-nation principle).
In determining the more lenient law, the decisive factor is which regulation, in the individual case and according to its specific circumstances, allows for a more lenient assessment for the offender (see Federal Court of Justice, decision of June 19, 2003, 5 StR 160/03 – juris). The ultimate mitigation is the complete absence of criminal liability (see Federal Court of Justice, BGHSt 20, 116, 119). Accordingly, Section 20 Paragraph 2 Sentence 1 No. 5 of the Lower Saxony Assembly Act (NVersG) is the more lenient law for the defendant in this specific case compared to Section 27 Paragraph 2 No. 2 of the Federal Assembly Act (VersG (Bund)). This is because the new regulation, while maintaining the same penalty, introduced additional elements of criminal liability, thereby raising the bar for establishing a criminal violation of the prohibition against wearing a disguise. Failure to meet these requirements precludes criminal liability.
d)
The change in the legal situation also had to be taken into account in the appeal on points of law (cf. Schönke/Schröder – Eser/Hecker StGB, 28th ed., § 2 para. 17 with further references) and the more lenient law had to be applied mandatorily (cf. Schmitz in Munich Commentary on the Criminal Code, § 2 para. 39).
4.
The findings of the local court do not support a conviction for violating the prohibition against wearing masks pursuant to Section 20 Paragraph 2 Sentence 1 No. 5 in conjunction with Section 9 Paragraph 2 No. 1 of the Lower Saxony Assembly Act (NVersG). The grounds for the judgment do not indicate that the defendant acted contrary to an enforceable measure under Section 10 Paragraph 2 of the Lower Saxony Assembly Act (NVersG).
While the testimony of police officer xxx, as presented in the judgment, indicates that a group of counter-demonstrators, including the defendant, allegedly refused to remove their masks despite being asked to do so, such a request could constitute an enforceable measure under Section 10 Paragraph 2 of the Lower Saxony Assembly Act (NVersG) in the form of a general administrative act (Section 35 Sentence 2 of the Administrative Procedure Act (VwVfG)). However, the judgment contains no further findings on this point. It is not clear from the judgment who issued the request, how and in what form it was made, its content, whether it was specifically addressed to the defendant, whether the defendant perceived the request, and whether he considered it to apply to him.
III.
The judgment was therefore to be set aside and referred back to another division of the Hanover District Court.
For the new main hearing, the Senate points out the following:
To enable the court of appeal to review whether the defendant's disguise was actually capable of obstructing the establishment of his identity, it would be helpful if the panel could examine the photographs taken after the defendant's arrest. According to the findings to date, this has not been the case. An image only becomes part of a judgment in its entirety, and thus accessible to the court of appeal for inspection, if a reference is made that complies with the requirements of Section 267 Paragraph 1 Sentence 3 of the German Code of Criminal Procedure (see, regarding the requirements, KK-Engelhardt, German Code of Criminal Procedure, 6th edition, Section 267, marginal note 6). The mere notification that the photographs have been examined is insufficient for this purpose, as it only describes the process of gathering evidence (see Berlin Higher Regional Court, decision of June 4, 2007, 2 Ss 293/06 – juris).
