Four and a half years after the G8 summit in Heiligendamm, the European Court of Human Rights in Strasbourg declared the deprivation of liberty of two activists unlawful in a ruling published today. The Court found that the two applicants, Sven Schwabe and MG, were wrongly held in preventive police custody for a period of almost six days after a vehicle inspection revealed banners with the inscriptions “Freedom for all prisoners” and “Free all now”. were found with them.
The German courts and the German federal government believed that the two wanted to call for “prisoner release” and that they had to be prevented from doing so by locking them up. For Sven Schwabe and MG, their stay in prison before and during the entire G8 summit meant that they were unable to express any protest against illegal deprivations of liberty by the police (over 1,000 during the week) or against the policies of the G8. The deprivation of their liberty was part of the German authorities' practice of using the harshest means such as deprivation of liberty or physical violence to respond to political protests on the streets, as is currently the case with the Castor transport, without regard to proportionality considerations. Other examples of this include counter-events to Nazi marches or protests against major construction projects such as Stuttgart 21.
The Strasbourg Court has now found that this form of deprivation of liberty violates the European Convention on Human Rights (ECHR). According to the judgment of November 8, 2011, the right to freedom under Article 5 and the freedom of assembly under Article 11 of the Convention were violated. The Court did not examine a violation of freedom of expression separately, since the expression of opinion should take place within the framework of a meeting and in this respect Article 11 ECHR applies overall.
Lawyer Anna Luczak: “Especially against the background of the police practice of using deprivation of liberty as a deterrent method against political protests, this explicit inclusion of freedom of assembly is very welcome.”
What is particularly important is the reason why the Court convicted Germany of deprivation of liberty. According to this, a further form of deprivation of liberty is now in question in Germany after preventive detention. Like preventive detention, police custody can be ordered under German law if “facts justify the belief” that a person would commit crimes while at liberty.
In the police custody case now decided by the Court, the prognosis was based on the alleged danger of the inscription “Freedom for all prisoners”. None of the German authorities, not even the federal government in their statements, properly appreciated what the Court now clearly stated: the slogan “Freedom for prisoners” has many meanings and can in no way be read only as an incitement to commit a crime. The Court therefore classified the deprivation of liberty as contrary to the Convention simply because of the incorrect interpretation of the applicants' political statements. Further proceedings will show whether there is even a conceivable constellation in which the “certain prognosis of an imminent crime” can allow police custody under the Convention.
Lawyer Anna Luczak: “After this ruling, the German authorities – police and judiciary – must examine their practice of deprivation of liberty. The Court expressly stated that the police custody of the applicants was not one of the five forms of permissible deprivation of liberty listed conclusively in Article 5(1) of the ECHR. As long as no specific act or breach of duty that can be expected and punished can be named, the right to freedom must not be restricted.”
Sven Schwabe is relieved after the verdict: “It is strange that German courts, which had the matter before them for a decision a total of seven times, did not see what was now clearly stated at the international level: There was no reason at all to be put in prison for almost six days. There was no reason to let us waste our time in cells. The ruling from Strasbourg cannot undo that. But the police and judiciary must now react and ensure that the police are no longer allowed to simply take protesters away, surround them or lock them up for hours or even days.”
Dr.
Anna Luczak lawyer
Telephone availability:
Attorney Dr.
Luczak: 030/5471 6772 or 0163/570 0538 Sven Schwabe: 0176/34605653
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You can read the Chancellor's press release here (pdf) (published by migrationsrecht.net ).
ECHR 269 (2011)
