JUDGMENT
In the name of the people
In the criminal case
against
xxx,
Defense counsel:
Attorney Sven Adam, Lange Geismarstraße 55, 37073 Göttingen
because of holding a meeting without registration
The Eschwege District Court — Criminal Judge — ruled in the session of April 25, 2013, which was attended by:
Director of the District Court xxx
as criminal judge
Public Prosecutor xxx
as an official of the Public Prosecutor's Office
Lawyer Sven Adam
as defense counsel
Senior Court Clerk xxx
as certifying officer of the registry
acquitted
at the expense of the state treasury, which must also bear the necessary expenses of the defendant.
REASONS:
(abbreviated according to § 267 para. 4 StPO)
I.
The defendant, born on [date] in [city] and now residing in [city] following her studies in [field], is single and a German citizen. She has no prior criminal record.
II.
The defendant was charged by penal order of the Eschwege District Court dated September 24, 2012, with having organized or led an unregistered public assembly or procession in Witzenhausen on May 17, 2012. On this day (Ascension Day), the traditional initiation ceremony of the Brunsviga and Hannovera fraternities from Göttingen takes place, which arouses the displeasure of politically left-leaning students. When the fraternity's event was scheduled to take place in Witzenhausen on May 17, 2012, it was prevented by an unregistered demonstration in the Witzenhausen market square, for which participation had been advertised online and promoted by various posters.
The defendant was in the market square of Witzenhausen with approximately 50 other people. When police officers PHK xxx and POK xxx noticed this, the defendant identified herself to the officers as the organizer and registered a spontaneous demonstration on the topic of "Against discrimination against homosexuals and transsexuals." The police officers granted permission for the event, subject to certain conditions.
The penalty order, accusing the defendant of holding the event without proper registration, was served on her on September 27, 2012. She filed a timely and formally correct objection to this penalty order.
III.
The defendant was to be acquitted of the charge of having organized a public assembly in the open air for factual reasons.
While the demonstration held in the market square on May 17, 2012, was not a spontaneous assembly, for which no registration is required (since registration was practically impossible and insisting on the registration requirement would lead to the impermissibility of spontaneous assemblies, thus restricting the fundamental right of freedom of assembly more than necessary), the online announcement on May 7, 2012, and the posters advertising the event clearly indicate that it was a planned event. However, there is no evidence whatsoever to suggest that the defendant was the organizer or leader of the assembly. An organizer is defined as someone who prepares and plans the assembly or procession, or who invites people to it, thereby bearing or demonstrating a certain degree of responsibility for the event. There is no basis for assuming this applies to the defendant in this case. Witness PHK xxx also had no testimony to this effect. The defendant herself did not comment on the charges against her.
Insofar as the defendant later stated to the police that she intended to assume responsibility and act as the organizer, this does not constitute an offense under Section 26 No. 2 of the Assembly Act. Section 26 Paragraph 1 No. 2 of the Assembly Act does not criminalize the failure to register an assembly under the conditions of Section 14 of the Assembly Act, but rather the holding of an assembly without registration. Here, the law refers to the registration itself, not a registration as defined in Section 14 of the Assembly Act. In this case, the demonstration was approved by the police, albeit with conditions. Even if the registration was late, this does not constitute an offense under Section 26 Paragraph 1 No. 2 of the Assembly Act, as the only requirement is that a registration was made at all. The late registration is sufficient to preclude a violation of Section 26 Paragraph 1 No. 2 of the Assembly Act.
IV.
The decision on costs follows from § 467 of the Code of Criminal Procedure.
