IN THE NAME OF THE PEOPLE
JUDGMENT
In the administrative dispute proceedings
of xxx,
plaintiff and appellant,
represented by: Attorney Sven Adam,
Lange Geismarstraße 55, 37073 Göttingen,
against
the xxx,
defendant and respondent,
represented by: Hessian Association of Towns and Municipalities eV
Henri-Dunant-Straße 13, 63165 Mühlheim am Main,
due to restrictions on a meeting
The Higher Administrative Court of Hesse – 8th Senate – composed of Presiding Judge xxx, Judge xxx, Judge xxx, Lay Judge xxx, and Lay Judge xxx, rendered the following judgment based on the oral hearing of May 31, 2012:
Upon the plaintiff's appeal, the judgment of the Kassel Administrative Court of November 10, 2011 — 7 K 216/11.KS — is amended, and it is determined that the condition in No. 7 of the order issued by the Mayor of the City of Schwalmstadt on November 1, 2010, was unlawful.
The defendant shall also bear the costs incurred in both instances insofar as they were not already imposed on her in the contested judgment.
This judgment is provisionally enforceable. The defendant may avert enforcement by providing security in the amount of the assessed costs, unless the plaintiff provides security in the same amount before enforcement.
The appeal is granted.
FACTS OF THE EVENT
The plaintiff seeks a declaration that a condition imposed on him as the organizer of a demonstration planned for November 1, 2010, in front of the Schwalmstadt Correctional Facility under the motto "Solidarity with the prisoners, against prison arbitrariness and preventive detention" was unlawful by order of the defendant's mayor, acting as the state regulatory authority, on November 1, 2010. According to the plaintiff's telephone notification of October 29, 2010, approximately 20 people were expected to participate in the demonstration in front of the correctional facility, which at that time housed 34 individuals in preventive detention. Among other conditions, the order contains the following text as item 7 of the operative part:
"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 can be heard by all participants even without the use of a transmission system."
The justification for the decision, based on Section 15 Paragraph 1 of the Assembly Act, states that the conditions are necessary and appropriate to ensure the assembly proceeds as smoothly and without disruption as possible. In particular, they are necessary to maintain public safety and order, to protect the participants, and also for the sake of traffic flow.
The press reports contained in the official files indicate that on the day of the demonstration registered by the plaintiff, approximately 20 of the 34 persons held in preventive detention at the Schwalmstadt correctional facility went on a hunger strike to protest their placement in the institution.
The plaintiff based his lawsuit, filed on February 25, 2011, with the Kassel Administrative Court, essentially on the argument that the imposed total ban on the use of loudspeakers was unlawful because it violated the organizer's right to self-determination regarding the nature and content of an assembly. He argued that sound amplification through loudspeakers serves not merely for internal communication among the assembly participants, but also for external communication aimed at influencing public opinion.
The defendant deemed the action inadmissible due to the lack of risk of repetition and, in the alternative, argued that the use of a loudspeaker system was not necessary for internal communication between the three participants in the assembly and, moreover, was problematic because the use of loudspeakers would have been likely to cause unrest within the prison.
The Kassel Administrative Court upheld the action against another challenged condition and dismissed it with regard to the condition concerning the use of loudspeakers, which is still in dispute here. For further details, in particular regarding the further submissions of the parties including their motions made in the first instance, for a further presentation of the facts and the reasoning of the contested decision, reference is made to the contested judgment of November 10, 2011 — 7 K 216/11.KS —.
The plaintiff's appeal against this judgment, which was admitted by the Senate's decision of March 5, 2012 — 8 A 216/11.KS —, was substantiated by a brief from his attorney dated March 30, 2012, which was received by the Higher Administrative Court of Hesse on April 2, 2012. He considers both the defendant's risk assessment for the challenged condition and its necessity and proportionality to be questionable and further points out that the legislature deliberately refrained from prohibiting assemblies near correctional facilities, even though this would have been possible under Article 8 Paragraph 2 of the Basic Law. Apparently, unlike the defendant and the Administrative Court, the legislature did not perceive a danger in an assembly with corresponding visibility in correctional facilities. The defendant has also failed to provide any substantiated arguments regarding the existence of such a danger.
The plaintiff requests that,
by amending the judgment of the Administrative Court of Kassel of November 10, 2011, it be determined that the condition in No. 7 of the order issued by the City of Schwalmstadt on November 1, 2010, was unlawful.
The defendant requests that
the appeal be dismissed.
and defends the contested judgment, elaborating on her arguments from the first instance.
The Senate has before it a file containing official documents from the defendant (pp. 1 to 28). It has been made the subject of the oral proceedings.
REASONS FOR THE DECISION
The appeal admitted by the Senate is also admissible in all other respects, in particular it has been substantiated in due form and time (§§ 124a, 124 para. 4, 5 and 6 VwGO).
The appeal is also justified, because the administrative court wrongly dismissed the action against condition no. 7 in the contested order of the mayor of the respondent.
However, the Administrative Court is correct in its assessment that, contrary to the defendant's view, the plaintiff has a legitimate interest in his action under the aspect of the risk of recurrence within the meaning of Section 113 Paragraph 1 Sentence 4 of the Code of Administrative Court Procedure (VwGO). The risk of recurrence is not precluded by the fact that, according to press reports (pp. 12 ff. of the case file), only three people intended to participate in the planned demonstration on November 1, 2010. Despite this small number of participants, the planned event constituted an assembly within the meaning of the Assembly Act, which does not define this term or the number of participants required. Legal literature and case law present differing opinions regarding the number of participants required for an assembly (ranging from two to seven people) (Dietel/Gintzel/Kniesel, Assembly Act, 16th ed., marginal note 18 to Section 1 with further references). The Senate concurs with the opinion of the Administrative Court of Baden-Württemberg (judgment of April 25, 2007 — 1 S 2828/06 —, ESVGH 57, 197 = juris para. 22 f.), which considers the participation of two persons in expressing a joint opinion while physically present at the same time to be sufficient, as is also the case with the only statutory provision nationwide in Section 2 Paragraph 1 of the Bavarian Assembly Act (Dietel et al., loc. cit.). The plaintiff credibly testified in the oral proceedings before the Senate that he intends to register further demonstrations against the form of preventive detention practiced in Germany. It is also foreseeable that there will be occasions for such demonstrations in Schwalmstadt, since the Hessian Ministry of Justice, Integration and Europe, in response to the corresponding case law of the European Court of Human Rights (Judgment of 13 January 2011 — 17792/07 —, EuGRZ 2011, 255 = juris Rn. 82 ff.), plans to create a special facility in Schwalmstadt for the accommodation of persons in preventive detention, including those from other federal states.
The lawsuit is justified, even insofar as the administrative court has not already made a legally binding decision on the matter, because the condition imposed on the plaintiff regarding the use of a loudspeaker system was unlawful.
As the Senate already stated in its decision granting leave to appeal of March 5, 2012, the judgment of the Berlin Administrative Court of December 21, 2006 – 1 A 162.01 – (Juris), cited by the Administrative Court, does not, contrary to the defendant's view, contribute to clarifying the question of whether the use of loudspeaker systems at demonstrations near correctional facilities is permissible. Firstly, this judgment does not address the specific problem of the acoustic impact on staff and inmates of correctional facilities; secondly, this decision – like the reasoning behind the challenged condition in point 7 of the contested decision – is based on the erroneous assumption that the use of loudspeakers at demonstrations is only permissible if it is necessary to maintain so-called internal communication between the participants of the assembly (Berlin Administrative Court, loc. cit., juris para. 29). This disregards the communicative approach of the fundamental right under Article 8 of the Basic Law, which also and specifically protects contact with non-participants and therefore generally permits the acoustic amplification of collective expressions of opinion by assembly participants, regardless of the number of participants (Federal Constitutional Court, decision of July 12, 2001 – 1 BvQ 28/01 et al. –, NJW 2001, 2459 = juris para. 24; Higher Administrative Court of Brandenburg, decision of November 14, 2003 – 4 B 365/03 –, NVwZ-RR 2004, 844 = juris para. 19). The Higher Administrative Court of Brandenburg stated the following in this regard (ibid.):
"Condition No. 13 remains unlawful insofar as it prohibits the use of a loudspeaker van. The Administrative Court has already pointed out that the use of loudspeakers at assemblies is generally permissible. As an inherent element of the assembly, it is not subject to the requirement of a special permit under traffic law pursuant to Section 33 Paragraph 1 No. 1, Section 46 Paragraph 1 No. 9 of the German Road Traffic Regulations (StVO). The respondent fails to adequately explain what specific dangers are supposed to emanate from the loudspeaker van, the use of which, according to the applicant, is only intended for playing classical music by Beethoven and Johann Strauss on the way to the cemetery and for the (currently) planned speeches by two 'eyewitnesses' in the cemetery forecourt.".
The reasoning behind the plaintiff's challenged decision also fails to reveal any concrete considerations by the assembly authority that could justify the prohibition of loudspeaker use—apart from the untenable assertion that the use of a loudspeaker system was unnecessary for internal communication among the demonstration participants. The defendant's argument, raised only during the legal proceedings, that the prohibition of loudspeaker use was necessary to protect inmates and staff at the correctional facility from unwanted expressions of opinion by the demonstration participants, is unsuitable as justification for the challenged condition, even assuming that this argument was intended to supplement, rather than replace, the original, untenable discretionary considerations (§ 114 sentence 2 VwGO). This argument fails to adequately consider the specific circumstances of the case. The planned demonstration was to take place at a time when approximately 20 of the 34 individuals held in preventive detention in Schwalmstadt were on hunger strike, and the demonstration was intended to support their action. The assumption that the inmates might have felt disturbed by this support action seems unrealistic under these circumstances. The annoying side effects of increased noise for uninvolved persons could have been kept within tolerable limits by limiting the duration of the loudspeaker use.
Contrary to the opinion of the defendant and the Administrative Court, the Basic Law does not recognize a "negative freedom of expression" that protects against any perception of differing opinions. In its decision of October 24, 2001 – 1 BvR 1190/90 – (BVerfGE 104, 92 = juris), which the Berlin Administrative Court cited in its judgment of December 21, 2005 (ibid., juris para. 26) only with regard to the dissenting opinion of a judge, the Federal Constitutional Court stated the following regarding the balancing of interests in such conflicts of fundamental rights under Section 240 Paragraph 2 of the German Criminal Code (Juris para. 62 ff.):
"The prohibition of excessive sanctions, as an expression of the principle of proportionality, protects against excessive sanctions and, in accordance with Article 8 of the Basic Law, in particular against the threat of punishment creating an excessive risk to the realization of the assembly's purpose. The principle of proportionality is also intended to ensure that other affected legal interests are protected. If freedom of assembly conflicts with the freedom of development or other fundamental rights and legal positions of third parties, a reciprocal balancing of these legal interests must be ensured with the aim of providing the greatest possible protection for both. Insofar as a criminal sanction is imposed, it must not only be suitable for protecting the legal interests of third parties or the general public, but also necessary and proportionate in light of the associated impairment of freedom of assembly.".
The right of those exercising the fundamental right of freedom of assembly must be considered; they must be able to determine for themselves the nature and circumstances of exercising this right, i.e., to decide which measures they wish to employ to draw public attention to their cause. This assessment by those exercising the fundamental right is decisive, at least insofar as it does not infringe upon the rights of third parties. However, if conflicts of legal interests arise, their right to self-determination is limited by the rights of others. In criminal proceedings, unlike in the case of decisions by assembly authorities issued prior to assemblies, there is no possibility of preventing conflicts of legal interests through assembly-related conditions and of complying with the principle of proportionality by modifying the execution of the assembly, such as changing the route of a march or the duration of the demonstration. Criminal courts can only classify the assembly, once it has taken place, under criminal law. The requirement to recognize the right to self-determination regarding the aim, subject matter, location, time, and nature of an assembly means that, in such a case, the courts must respect the assessment of those exercising the fundamental right to freedom of assembly as to how they wish to conduct their action to pursue their communication objective. However, the right to self-determination does not extend to deciding which infringements on the rights of those whose rights conflict with those of others. Therefore, in assessing proportionality, the courts must also consider whether the right to self-determination was exercised with sufficient consideration of the opposing interests of third parties or the general public. The use of any means that infringes upon these interests must be evaluated in relation to the intended purpose of the assembly in order to determine whether a punitive sanction is appropriate to protect the conflicting rights.
Therefore, the specific circumstances of the demonstration are significant for the assessment of its reprehensibility (cf. BVerfGE 73, 206 <257>). In this context, the nature and extent of the impact on affected third parties and their fundamental rights must be considered in particular. Important elements of this assessment include the duration and intensity of the action, its prior announcement, alternative routes, the urgency of the blocked transport, and also the connection between the persons whose freedom of movement is restricted and the subject of the protest (cf., referring to BVerfGE 73, 206 <257>, Eser, in: Festschrift für Jauch, 1990, p. 35 <39>). The weight of such demonstration-specific circumstances must be determined with regard to the communicative purpose of the assembly, without the court being entitled to evaluate whether it considers this purpose useful and valuable or disapproves of it. If the external design and the resulting disruptions are related to the assembly's theme, or if the concern also affects those adversely impacted by the demonstration, the infringement of their freedoms may, considering the specific circumstances, be more socially acceptable and thus more tolerable than if this were not the case. Accordingly, the assessment must consider whether and to what extent the choice of assembly location, the specific design of the assembly, and the individuals affected by it have a connection to the assembly's theme that influences the determination of its reprehensibility.
Taking these principles into account, the assembly authority could have used less restrictive measures than prohibiting all use of loudspeakers to balance the differing interests of the parties involved. In addition to limiting the duration of the demonstration, in particular, prohibiting calls for violent actions by those in preventive detention or other criminally relevant behavior by inmates of the correctional facility should have been considered. This would have ensured that the demonstration could proceed to a reasonable extent without endangering the fundamental rights of third parties, rather than canceling it entirely. The total ban on the use of loudspeakers was therefore disproportionate and thus unlawful.
The defendant must bear all costs incurred in both instances because she is now also unsuccessful with regard to the second contested condition (§ 154 para. 1 VwGO).
The decision regarding provisional enforceability and the right to avert enforcement is based on §§ 167 para. 1 VwGO, 708 no. 11, 711 ZPO.
The appeal on points of law is admissible due to the fundamental importance of the legal issue (§ 132 para. 2 no. 1 VwGO). The question of how many participants are necessary for an assembly covered by Article 8 of the Basic Law, and the problem of what considerations are required to completely prevent the exercise of fundamental rights by assembly participants due to a conflict with the fundamental rights of third parties, have not yet been clarified by the highest court's jurisprudence—as far as can be ascertained.
The following is information on legal remedies.
