Note: An appeal was successfully lodged against the judgment, as we also consider the ban on the use of loudspeakers in the immediate vicinity of correctional facilities, which was declared lawful here, to be unlawful: Hessian Administrative Court – 8 A 514/12
VERDICT
In the name of the people
In the administrative dispute proceedings
of the
plaintiff,
represented by: Attorney Sven Adam,
Lange Geismarstraße 55, 37073 Göttingen
against
The city of xxx,
defendant,
represented by: Hessian Association of Towns and Municipalities,
Henri-Dunant-Straße 13, 63165 Mühlheim,
because of the right of assembly
The Administrative Court of Kassel, through Judge xxx as single judge of the 7th Chamber, has ruled as follows based on the oral hearing of November 10, 2011:
It is determined that the condition in point 4 ("Contamination of public traffic areas related to the event must be removed immediately by the organizer. If the organizer fails to comply with this condition, the city of xxx is entitled to carry out the cleaning at the organizer's expense.") in the defendant's decision of November 1, 2011, was unlawful.
Furthermore, the lawsuit is dismissed.
The plaintiff and the defendant shall each bear half of the costs of the proceedings.
The judgment is provisionally enforceable with respect to costs. The respective judgment debtor may avert enforcement by providing security in the amount of their respective share of the costs, unless the respective judgment creditor provides security in the same amount before enforcement.
FACTS OF THE CASE
The plaintiff seeks a declaration that two of the conditions imposed on an assembly by the defendant's decision of November 1, 2010, were unlawful.
On Friday, October 29, 2010, the plaintiff contacted the defendant by telephone. He
stated that he intended to hold a rally on Monday, November 1, 2010, at 2:00 p.m. in the parade ground in the Ziegenhain district. In an email dated October 31, 2010, he indicated that the rally's exact motto would be "Solidarity with the prisoners, against prison arbitrariness and preventive detention!" The rally was expected to last one to two hours and included one or two speeches. Approximately 20 participants were anticipated, but it was possible that 30 people would attend. A generator and a small PA system were planned for the loudspeaker setup.
By decision dated Monday, November 1, 2010, the defendant confirmed the registration of the assembly and imposed, among other things, the following conditions:
"4. Any contamination of public traffic areas related to the event must be removed immediately by the organizer. If the organizer fails to comply with this requirement, the City of Schwalmstadt is entitled to carry out the cleaning at the organizer's expense.
...
7. The planned use of a loudspeaker system is not permitted due to the immediate proximity to the prison. Given the expected number of participants, it can be assumed that the speeches will be audible to all participants even without the use of a sound system."
The defendant further explained that the conditions were necessary and appropriate to ensure the smoothest possible and least disruptive conduct of the assembly. In particular, the conditions were necessary to maintain public safety and order, to protect the participants, and also for the sake of traffic flow.
With regard to the order, immediate enforcement was ordered pursuant to Section 80 Paragraph 2 No. 4 of the Administrative Court Procedure Act (VwGO).
On Monday, November 1, 2010, at approximately 2:00 p.m., the plaintiff had set up loudspeakers for the demonstration. The loudspeakers were not used. No court order had been issued. In the presence of two other participants in the demonstration, discussions took place with members of the press. Afterwards, the loudspeakers were dismantled, and the plaintiff and the other individuals left.
The plaintiff filed the present lawsuit on February 25, 2011.
He argues that the necessary interest in a declaratory judgment arises from the risk of recurrence, stemming from his fundamental opposition to the legal institution of preventive detention. The assembly, he maintains, did not focus on the situation of a specific inmate incarcerated at the time, but rather on the general situation of prisoners and those in preventive detention, particularly those with a political background.
He contends that the conditions imposed under points 4 and 7 of the order dated November 1, 2010, were unlawful and violated his rights under Article 8 of the Basic Law. Regarding the condition under point 4 of the order, he asserts that the organizer of an assembly is not inherently responsible for the littering of public areas, and therefore, ordering the removal of such litter is unlawful. Furthermore, a blanket obligation for the organizer to remove any litter generated in connection with the event at their own expense would impose a significant and incalculable financial risk on them, posing a considerable obstacle to holding the event and therefore unlawfully infringing upon the plaintiff's fundamental right under Article 8 of the Basic Law.
The condition in point 7, prohibiting the use of a loudspeaker system due to the immediate proximity to the prison, is equally unlawful. The organizer's right to self-determination in an assembly generally includes the right to use technical sound amplifiers, not only for internal communication but also for external communication. The very essence of an assembly lies in the endeavor to influence public opinion. Therefore, the right of assembly, as the right to collective expression of opinion, is devalued if participants in an assembly are denied the ability to have their views heard by third parties who are not themselves participating in the assembly. It is necessary that the communication signals emanating from the assembly be perceptible to third parties, as attracting public attention is a central component of the fundamental right of assembly. In the plaintiff's case, the external communication was aimed at reaching outsiders, in particular the inmates, visitors, staff, and also residents of the Schwalmstadt prison, so that they could engage with the assembly participants' views on the issue of preventive detention. It was precisely in the interest of the plaintiff and the other assembly participants to make their views on preventive detention known to both the inmates and the staff, visitors, and residents of the prison. Within the balancing of interests with the fundamental rights of third parties, the defendant was obligated to restrict the volume in a manner appropriate to the conflicting fundamental rights by means of a condition imposed under assembly law. Therefore, the condition in point 7 contradicts the principle of proportionality and violates the plaintiff's rights under Article 8 of the Basic Law.
Furthermore, the justifications for the conditions given in the decision did not meet the requirements. The justifications provided were merely an abstract reproduction of the prerequisites for conditions under assembly law pursuant to Section 15 Paragraph 1 of the Assembly Act. No factual evidence or verifiable facts that would provide concrete and comprehensible indications of dangerous situations and support a negative risk assessment were apparent. Regarding the ordered removal of contamination, it was unclear why the defendant assumed that contamination would occur.
The plaintiff requests a ruling that
1. the condition to point 4 of the defendant's decision of 01.11.2010 (file no.: 104.22/062889)
and
2. the condition in point 7 of the defendant's decision of 01.11.2010 (file no.: wo )
was unlawful.
The defendant requests that
the action be dismissed.
The court reasoned that the lawsuit was inadmissible due to the plaintiff's lack of a legitimate interest in a declaratory judgment. There was no risk of recurrence, as his intention to hold further assemblies near the Schwalmstadt prison was extremely vague. A press release indicated that the assembly in question had been carried out by three individuals (including the plaintiff). These individuals were supporters of a detainee currently serving preventive detention at the Schwalmstadt prison. Whether this individual would still be incarcerated at a later date was uncertain. It was also unclear what political decisions would be made regarding the highest court rulings on preventive detention and its implementation. Finally, the assembly in question had been held in connection with a hunger strike, the repetition of which was also questionable and vague.
Moreover, the lawsuit was unfounded. The cleaning and cost-sharing obligation imposed by the contested condition does not call into question the right to hold an assembly as such and therefore does not infringe upon the freedom of assembly. The fundamental right of freedom of assembly does not preclude the organizer of an assembly from being held liable for any littering caused by the assembly. Regarding the prohibited use of a loudspeaker system, it should be noted that with 20 participants, the use of a loudspeaker system was not necessary for internal communication among the assembly members. With regard to external communication, the condition was justified because the fundamental rights of third parties to negative freedom of expression were significant and had to be considered in this context. The external communication was directed at the persons housed in the prison. Prison xxx is a maximum-security facility housing both convicted prisoners and those held in preventive detention. The old building, which directly borders the assembly area, houses convicted prisoners, while the extension houses convicted prisoners and those in preventive detention. The use of a loudspeaker system could therefore lead to unrest among the prisoners and those in preventive detention within the prison, significantly compromising security and order. In the event of unrest, evacuations of various sections would have to be carried out, and all uninvolved prisoners would have to be contained in such a way as to prevent any shouting or visual contact with a demonstration. Furthermore, the number of security personnel would have to be increased to ensure orderly operations and to counteract any negative influences. Extensive measures to enhance security both inside and outside the prison would also be necessary.
By decision of September 8, 2011, the case was assigned to the reporting judge for a decision as a single judge.
For further details regarding the facts and the legal arguments, reference is made to the exchanged written submissions and the minutes of the oral hearing of November 10, 2011.
REASONS FOR THE DECISION
The action is admissible – without preliminary proceedings pursuant to Sections 68 et seq. of the Code of Administrative Court Procedure (VwGO) and without a time limit for filing an action pursuant to Section 74 Paragraph 1 Sentence 2 VwGO – as a declaratory judgment
The necessary interest in obtaining a declaratory judgment for continued legal effect arises in this case from the risk of recurrence, since the plaintiff, as he confirmed in the oral hearing, intends to hold similar demonstrations again in front of the xxx prison, specifically using loudspeakers to ensure that the content of the demonstration is audible within the prison to inmates, visitors, and staff. The court has no reason to doubt the seriousness of this intention in the present proceedings.
For the same reasons, the action would also be admissible and permissible in the form of a general declaratory judgment action pursuant to Section 43 VwGO.
However, the claim is only justified to the extent indicated in the operative part of the judgment.
The “condition” imposed in the defendant’s decision of November 1, 2010, item 4, concerning the removal of contamination and the regulation of liability for costs, was unlawful and violated the plaintiff’s rights; the “condition” imposed as item 7, concerning the prohibition of the use of loudspeakers, does not violate the plaintiff’s rights.
The demonstration planned by the plaintiff, as a temporary gathering of approximately 20 to a maximum of 30 participants for the common purpose of collective opinion formation and expression, constituted a public assembly in the open air, falling within the scope of protection of Article 8 Paragraph 1 of the Basic Law. The plaintiff, together with others, intended to express his opinion on preventive detention to the public.
This purpose is generally subject only to the notification requirement regulated in Section 14 Paragraph 1 of the Law on Assemblies and Processions (Federal Law Gazette I 1978, 1789, last amended by Article 2 of the Law of December 8, 2008, Federal Law Gazette I, 2366, hereinafter: Assembly Act) in conjunction with Article 8 of the Basic Law, which the plaintiff complied with by submitting his notification of Friday, October 29, 2010, supplemented by the information provided via email on Sunday, October 31, 2010.
For the announced assembly, the defendant was generally entitled under Section 15 Paragraph 1 of the Assembly Act to impose so-called conditions, insofar as these were necessary to avert danger.
As the wording of Section 15 Paragraph 1 of the Assembly Act already indicates, the decisive factor is the circumstances recognizable at the time the order was issued. Based on the knowledge of the facts and known concrete indications available at that moment, the question to be assessed is whether there was an immediate danger to public safety or order if the assembly were to take place, which, when weighed against the plaintiff's constitutionally protected right under Article 8 of the Basic Law, necessitated the imposition of conditions.
The removal order stipulated in paragraph 4, sentence 1 of the decision dated November 1, 2010, is unlawful. It is already doubtful whether, given the known plans, it could be assumed that a danger to public safety would arise, i.e., that littering was likely to occur during the assembly. According to the information available on November 1, 2010, approximately 20 to a maximum of 30 participants were expected at the demonstration. The distribution of items, such as leaflets, to the participants by the organizer was neither announced nor otherwise foreseeable.
In any case, the order is not sufficiently specific in this respect (Section 37, Paragraph 1 of the Hessian Administrative Procedure Act). The phrase "related to the event" does not specify which types of litter are meant. It is not apparent from the other content of the decision or from the circumstances known to the parties whether (only) the litter caused by the plaintiff as the organizer of the assembly, such as distributed leaflets, or also litter caused by the participants themselves, such as discarded objects, but occurring only on the occasion of and beyond the organizer's control, should be removed, since such litter could also be considered "related to the event." However, an obligation for the organizer to remove all litter under assembly law is out of the question (see Federal Administrative Court, Judgment of September 6, 1988 – 1 C 15/86 –, Juris). At most, the organizer could be held liable under the provisions of road and traffic law (see Section 15 of the Hessian Road Act) as the cause of the litter, which can be pointed out in a notice of conditions issued in connection with an assembly.
The cost burden imposed in point 4, sentence 2 of the decision of November 1, 2010, for failure to comply with the removal obligation is also unlawful, because Section 15 of the Assembly Act does not authorize the imposition of costs in the event of non-compliance with a condition. Assembly law provides for sanctions for non-compliance with conditions (see Section 15, paragraph 2 and Section 25 of the Assembly Act). Therefore, imposing the cost burden for non-compliance is not permissible (see Federal Administrative Court, judgment of September 6, 1988 – 1 C 15/86 –, Juris).
The condition imposed in point 7 of the decision dated November 1, 2010, which prohibited the use of a loudspeaker system, does not infringe upon the plaintiff's rights.
Regarding the use of loudspeakers—in this case, with the aid of a generator and a small PA system—the court notes that, in principle, the choice of means of communication for the purpose of a demonstration is free, since Article 8 of the Basic Law protects not only the right to assemble in the strict sense, i.e., to be physically present together as a group in the same place, but also, of course, both internal communication and public perception.
However, the prohibition of the use of loudspeakers does not infringe upon the plaintiff's rights. In the court's view, the right to external perception, enshrined in Articles 8 and 5 of the Basic Law, encompasses only the public sphere. The right to assembly and freedom of expression, and thus to communicate one's opinion to third parties, does not grant the right to exert influence in areas or buildings not accessible to the public—such as the prison in this case (see Berlin Administrative Court, judgment of December 21, 2005—1 A 162.01—especially paragraph 27, Juris). However, as expressly stated by the plaintiff and his counsel during the oral proceedings, the use of the loudspeakers was specifically intended to ensure that the inmates, staff, and visitors present in the prison were heard and noticed, particularly to convey the solidarity of the demonstrators to those in preventive detention and, at the same time, to draw the attention of the other inmates, as well as staff and visitors, to the special situation of those in preventive detention. This is reflected in the written submissions made by the authorized representative and is confirmed by the plaintiff's conduct, who—as he stated in the oral proceedings—broke off the demonstration because he considered it pointless without the use of loudspeakers and thus the lack of audibility within the prison.
Insofar as the plaintiff subsequently argued in the oral proceedings, during the discussion of the facts and the law, that the only discretionary decision incumbent upon the defendant would have been to require him to use loudspeakers only with appropriate aiming away from the prison or with a volume limit so that they would not be audible there, since he also wanted to be heard by all residents of the Ziegenhain district and those present at the parade ground, the action would lack admissibility. Based on the entire presentation and especially the statements made during the oral proceedings, the court is beyond doubt that the plaintiff's primary objective was, and remains, to be heard and acknowledged within the prison. Therefore, a risk of recurrence, and thus a legitimate interest in obtaining a declaratory judgment solely regarding a (potential) violation of his rights by prohibiting the use of loudspeakers to the extent that they are audible within the prison, cannot be discerned.
Even if one were to consider the choice of means of demonstration—regardless of the size and location of the event—as generally encompassed by the right to freedom of assembly under Article 8 of the Basic Law, the outcome would be no different. In that case, a balancing of the plaintiff's rights against the rights of those affected by his use of loudspeakers would be necessary. This is because, given the proximity of the prison to the demonstration site, which the plaintiff intends to reach with his loudspeaker system, a violation of the fundamental right to negative freedom of assembly of the inmates and staff would (predictably) be likely. Those present could not avoid the planned up to two hours of exposure, as neither the inmates nor the staff can freely choose their location within the prison. They are obligated to remain in specific areas due to their incarceration or by service or employment regulations. Therefore, the necessary balancing of interests must be decided against the plaintiff in this case. The interests of those who do not (want to) participate in the demonstration and would thus be affected by a loudspeaker-amplified statement outweigh the plaintiff's interest in overall visibility. In this respect, it must be considered that the infringements on the negative freedom of assembly of those present in the prison are more significant compared to passersby who happen to encounter a demonstration in a public area. The latter cannot escape the content of the demonstration in the short term and are exposed to it for a longer period than, for example, during a passing demonstration. The same applies to local residents, insofar as the plaintiff has stated that he also wishes to reach them via loudspeakers. It must be countered that the plaintiff could reach those present in the square, i.e., in the public area, without a loudspeaker, because given the (expected) number of 20 to 30 participants—regardless of whether the actual number was limited to 3, including the plaintiff—reach to passersby or anyone else present in the square was guaranteed. It should also be considered that there are numerous other ways to draw attention to the demonstration that do not affect, or affect less than, the interests of residents, inmates, and staff of the prison, such as banners or the internet.
The plaintiff's motion to hear testimony from the prison director regarding the inmates of the wing facing the parade ground being moved to other wings for the demonstration did not need to be granted. Regarding the question of whether the plaintiff's rights were violated—which the court already considers not to have been violated by the imposed condition, since the right to be heard in non-public facilities does not fall within the scope protected by Article 8 of the Basic Law—it is irrelevant whether and when these facilities are occupied and how.
In weighing the interests of those present in a facility, it must first be established that, when reviewing the authority's decision, the circumstances known at the time of the decision are decisive. It has neither been alleged nor is it otherwise apparent that all parties involved, particularly the responsible authority, were aware of the (complete and timely) evacuation of the wing of the prison facing Paradeplatz. Therefore, the defendant was entitled to assume, within the framework of the necessary predictive assessment, that those present in the prison could hear the noise. Furthermore, when weighing the plaintiff's rights under Article 8 of the Basic Law against those of the inmates and staff present in the prison, the plaintiff's interests should not be given priority over the complete evacuation of an entire prison wing in relation to the perceived visibility of the demonstration compared to an expected number of 20-30 participants.
However, assuming it is true that the relocation of all inmates in the wing of the prison facing the parade ground did take place, this confirms the defendant's assessment that the visibility of the demonstration posed a risk of unrest among the inmates. It is inconceivable that such extensive relocation measures affecting the inmates of an entire wing would be carried out within a prison without concrete indications of a threat to security within the prison.
The decision regarding costs is based on Section 155 Paragraph 1 of the Administrative Court Procedure Act (VwGO). It was taken into account that each party partially prevailed and partially lost.
The decision regarding provisional enforceability is based on Section 167 of the Administrative Court Procedure Act (VwGO) in conjunction with Sections 708 No. 11 and 711 of the Code of Civil Procedure (ZPO).
Legal remedies information:
An appeal against this judgment is available to the parties if it is granted by the Higher Administrative Court of Hesse.
The appeal will only be granted if...
1. there are serious doubts as to the correctness of the judgment,
2. the case presents particular factual or legal difficulties,
3. the case is of fundamental importance,
4. the judgment deviates from a decision of the Higher Administrative Court of Hesse, the Federal Administrative Court, the Joint Senate of the Highest Courts of the Federation or the Federal Constitutional Court and is based on this deviation, or
5. a procedural defect subject to review by the appellate court is alleged and exists, on which the decision may be based.
The application for leave to appeal must be filed within one month of service of the judgment. The application must be submitted to the
Administrative Court Kassel,
Tischbeinstraße 32,
34121 Kassel
to submit a statement. He must identify the contested judgment.
Within two months of service of the judgment, the grounds for granting leave to appeal must be stated. The statement of grounds, insofar as it has not already been submitted with the application, must be filed with the
Hessian Administrative Court,
Brüder-Grimm-Platz 1 – 3,
34117 Kassel
to submit.
Before the Higher Administrative Court of Hesse, every party filing an application must be represented by a lawyer or a professor of law at a German university within the meaning of the Higher Education Framework Act who is qualified to hold judicial office. This also applies to applications for leave to appeal.
Legal entities under public law and authorities may also be represented by civil servants or employees qualified to hold judicial office as well as graduate lawyers in the higher civil service; territorial authorities may also be represented by civil servants or employees qualified to hold judicial office of the competent supervisory authority or of the respective municipal umbrella organization of the state to which they belong as a member.
Note: An appeal was successfully lodged against the judgment, as we also consider the ban on the use of loudspeakers in the immediate vicinity of correctional facilities, which was declared lawful here, to be unlawful: Hessian Administrative Court – 8 A 514/12
