DECISION
In the administrative litigation
To Ms. xxx,
applicant,
Authorized representative:
Attorney Sven Adam,
Lange Geismarstraße 55, 37073 Göttingen,
against
the city of Kassel, xxx
respondent,
because of the right of assembly
The Administrative Court of Kassel – 6th Chamber – decided on January 13, 2017, through Presiding Judge xxx, Judge xxx, and Judge xxx :
1. The suspensive effect of the applicant's objection of 11 January 2017 against the conditions
a) "Permissible chants must also be made in German."
and
b) "The leaflets ... must also be written in German. This also applies to posters, banners and articles of clothing."
is reinstated.
2. Furthermore, the application is rejected.
3. The applicant and the respondent shall each bear half of the costs of the proceedings.
4. The amount in dispute is set at €5,000.00.
REASONS
I.
The applicant, who holds German citizenship, objects to the conditions imposed on her concerning a procession and assemblies registered for January 14, 2017.
The applicant, by letter dated December 29, 2016, received by the respondent on the same day, notified the respondent of a public assembly and a march scheduled for January 14, 2017, at the town hall, under the theme "Lift the ban on the PKK: Freedom for Öcalan, Peace in Kurdistan!" The march and assembly were to take place between 1:30 p.m. and 3:00 p.m. in the area of Untere Königsstraße, Am Stern, Königsplatz, Friedrichsplatz, and up to the town hall, using megaphones, loudspeakers, leaflets, posters, musical accompaniment, and featuring a maximum of five speeches. The brief description indicated "CD, live music, German & Kurdish, Turkish." The expected number of participants was 200–300.
On January 6, 2017, a cooperation meeting took place between the applicant and employees of the respondent in the presence of police officers. During this meeting, the expected number of participants was reduced to approximately 150, and the route was amended by mutual agreement, including two intermediate rallies. Reference is made to the minutes of the meeting (page 7 of the official file) for further details.
By decision dated 09 January 2017, the respondent confirmed the registration of assemblies and procession of 29 December 2016 as amended on 6 January 2017 and imposed, among other things, the following conditions:
1. a) "Permissible chants must also be made in German."
b) "Leaflets must include an imprint, must not contain any illegal content, and must also be written in German. This also applies to posters, banners, and clothing."
2. "The following posters may be displayed:
• 1 poster measuring approximately 1.80 m x 1.20 m with a picture of Mr. Öcalan on a yellow background
• 10 posters measuring approximately 0.60 m x 0.60 m with a picture of Mr. Öcalan on a yellow background. Alternatively, T-shirts displaying a picture of Mr. Öcalan may be worn. The total number of posters may not exceed 10."
By letter dated 11 January 2017, the applicant, represented by her authorized representative, lodged an objection against the decision dated 9 January 2017.
At the same time, an application was filed with the Administrative Court to restore the suspensive effect of the objection concerning the aforementioned conditions.
Regarding the conditions concerning the use of the German language, the risk assessment required for imposing this condition does not meet the requirements of Section 15 Paragraph 1 of the Law on Assemblies and Processions (hereinafter: VersG). No substantiated evidence has been presented or documented to support this claim. The motto of the assembly alone does not provide sufficient grounds for a risk of criminal offenses. Insofar as the order requires the translation of permissible chants, no such risk exists in any case. Ensuring the possibility of understanding all written presentations is not the responsibility of the assembly organizer or leader. The fact that individuals in the assembly and the audience who are not proficient in the foreign language used might not understand some announcements is at most an inconvenience, but does not constitute a risk within the meaning of Section 15 Paragraph 1 VersG.
Regarding the condition concerning the display of images of Mr. Öcalan, this condition is too vague, as it suggests permission, whereas under the law of assembly only a restriction is permissible. Furthermore, the condition is disproportionate. It is unclear why 11 posters measuring 1.80 m x 1.20 m could not be carried, and why this requirement is not based on the number of participants.
The applicant requests, in essence, that:
1. The suspensive effect of the applicant's objection of January 11, 2017, against the respondent's decision of January 9, 2017 (file number: 3222-Vers 04-17) be reinstated insofar as the decision of January 9, 2017 stipulates:
a. "Permissible chants must also be made in German."
b. The leaflets... must also be written in German. This also applies to posters, banners and clothing
and
2. The suspensive effect of the applicant's objection of 11 January 2017 against the respondent's decision of 9 January 2017 (file number: 3222-Vers 04-17) is furthermore reinstated insofar as the decision of 9 January 2017 stipulates, in essence, that a maximum of 1 poster measuring approximately 1.80 m x 1.20 m with the image of Mr. Öcalan on a yellow background, along with 10 posters or T-shirts measuring approximately 0.60 m x 0.60 m with the image of Mr. Öcalan on a yellow background, may be displayed.
The respondent requests that
the application be rejected.
The authority argues that the requirement to use German for chants, posters, banners, and clothing is based on indications of an immediate threat to public safety or order during the assembly or procession. Given the provocatively chosen theme of the assembly, it is almost certain that criminal violations of the Associations Act (Section 20, Paragraph 1, Sentence 1, Nos. 4 and 5 of the Associations Act) are to be expected. The requirement is intended to enable law enforcement and the police to identify impermissible chants, which they can only understand if German is used. In this respect, the requirement represents a less restrictive measure than prohibiting the assembly. Furthermore, the requirement aims to ensure that the content of the assembly is accessible not only to participants who speak Turkish but also to non-participating citizens. This should also be in the applicant's interest. Comparable requirements have been imposed for years and have not been challenged. This also applies to the requirement to use the German language for textual expressions through leaflets, posters, banners and clothing.
Regarding the widespread display of images of Mr. Öcalan, this should be considered a criminal offense through the public use of a symbol of a banned organization under Section 20 Paragraph 1 Sentence 1 No. 5 of the Associations Act, since the mass display of posters or T-shirts bearing Mr. Öcalan's image crosses the threshold into advertising for the PKK, a workers' party banned in the Federal Republic of Germany. Displaying one poster measuring approximately 1.80 m x 1.20 m and a maximum of ten posters measuring 0.60 m x 0.60 m with Mr. Öcalan's image should be classified as permissible expressions of opinion. The imposed condition, as a less restrictive measure, prevents the otherwise necessary ban on the assembly.
Reference is also made to the exchanged written submissions and the official file submitted by the respondent (pp. 1-13).
II.
The application was to be understood in accordance with Section 88 of the Administrative Court Procedure Act (VwGO) with regard to the requested restoration of the suspensive effect of the applicant's objection concerning the showing of pictures of Öcalan in the version mentioned above.
The application, based on the written grounds for the preliminary injunction, was to be understood as a request to reinstate the suspensive effect of the entire restriction concerning the display of images of Öcalan, and not merely the display of a maximum of 10 posters (or alternatively, T-shirts) measuring approximately 0.60 m x 0.60 m with Mr. Öcalan's image on a yellow background. If the application were considered as stated verbatim, even if the applicant were successful, the restriction would remain immediately enforceable in its reduced form, with the consequence that only one poster measuring approximately 1.80 m x 1.20 m with Mr. Öcalan's image on a yellow background would be permitted at the assemblies and in the procession. It is obvious, given the applicant's entire argument, that this is not in her interest.
Since, due to the immediate enforcement formally and lawfully ordered by the respondent (§ 80 para. 2 sentence 1 no. 4 VwGO), neither an objection nor an action for annulment against the decision of 09.1.2017 has suspensive effect, the application pursuant to § 80 para. 5 sentence 1 VwGO is admissible.
The application for restoration of the suspensive effect of the objection, which is admissible pursuant to Section 80 Paragraph 5 of the Administrative Court Procedure Act (VwGO), is only justified to the extent indicated in the operative part of the judgment.
In the balancing of interests to be carried out pursuant to Section 80 Paragraph 5 of the Administrative Court Procedure Act (VwGO), the applicant's private interest in a stay of execution outweighs the public interest in enforcement only insofar as the order of conditions concerning the use of the German language, based on Section 15 Paragraph 1 of the Assembly Act (VersG), is unlawful and insofar as the applicant's fundamental right to freedom of assembly (Article 8 of the Basic Law (GG)) is violated.
According to Section 15 Paragraph 1 of the Assembly Act, an assembly or procession may be made subject to certain conditions by the competent authority if, based on the circumstances recognizable at the time the order is issued, public safety or order is directly endangered by the event. Because of the particular importance of the freedom of assembly, guaranteed to all Germans as a fundamental right (Article 8 of the Basic Law), for the functioning of democracy, its exercise may only be restricted to protect other equally important legal interests, while strictly adhering to the principle of proportionality (Federal Constitutional Court, decision of May 14, 1985, 1 BvR 233/81, 1 BvR 341/81 — Brokdorf —, juris). Freedom of assembly must yield only if a balancing of interests, taking into account the significance of the right to freedom, reveals that this is necessary to protect other equally important legal interests (Federal Constitutional Court, ibid.).
The concept of "public safety" encompasses the protection of fundamental legal interests such as the life, health, freedom, honor, property and assets of the individual, as well as the integrity of the legal order and state institutions. A threat to public safety is generally assumed when a criminal violation of these protected interests is imminent (see Federal Constitutional Court, decision of 14 May 1985 — 1 BvR 233/81 — and — 1 BvR 341/81 — Brokdorf —, juris). The concept of "imminent danger" in Section 15 Paragraph 1 of the Assembly Act places particular demands on the temporal proximity of the occurrence of damage and thus also stricter requirements on the degree of probability, in the sense that a situation justifying intervention exists (only) if the occurrence of damage is to be expected with a high degree of probability, i.e., "almost with certainty" (cf. Federal Administrative Court, Judgment of June 25, 2008 – 6 C 21/07 –, juris). This presupposes the existence of actual indications or verifiable facts; mere suspicions and assumptions are insufficient (cf. Federal Constitutional Court, Decision of May 14, 1985, loc. cit.; Decision of June 6, 2007 – 1 BvR 1423/07 –, juris). In all cases, a sufficiently concrete connection between the findings or facts and the planned event is necessary (cf. BVerfG, decision of 01.05.2001 —1 BvQ 21/01 —, juris).
The requirements concerning the use of the German language cited above under point 1. a) and b) from the decision of 09.01.2017 do not comply with these requirements.
In this respect, firstly, it is not apparent that there would be a danger to public safety or order without the simultaneous use of the German language; secondly, the requirement concerning the use of the German language, in particular for permissible chants, is not proportionate because it is not suitable to counter the danger feared by the respondent.
Insofar as the respondent fears that impermissible, i.e., prohibited, statements with criminal content will be made during chants or other textual presentations on leaflets, posters, banners, or clothing, she has presented and substantiated no comprehensible evidence to support her claim that this is a near certainty. The fact that the respondent herself only considers this a possibility is evident from her argument, in justifying the requirement, that the simultaneous use of the German language is intended to enable representatives of the law enforcement authorities and the police to intervene in the event of impermissible presentations. The motto of the assemblies and the march, which is indeed chosen to prioritize the lifting of the ban on the PKK and only secondarily, after a colon, demands freedom for Öcalan and peace for Kurdistan, does not indicate this. The use of a colon to distinguish between the two could suggest that Öcalan's release and peace for Kurdistan are only possible if the ban on the PKK is lifted, or that they are a necessary consequence of such a ban. This would imply that the release is primarily linked to the PKK's re-legalization and not primarily driven by the desire to realize human rights for Öcalan or the Kurds. In this context, the rights of the PKK might be prioritized, potentially indicating support for a banned organization. However, this remains purely speculative. No further reliable evidence or even indications have been presented, nor are any otherwise apparent.
To the extent that the respondent, by imposing conditions regarding the use of the German language, intends to enable participants who are not proficient in the foreign languages (Turkish or Kurdish) or uninvolved third parties to understand the content of the assemblies or procession, this may be a desirable goal. However, it cannot be determined which legal interests might be violated, i.e., what dangers to public safety or order might arise, if only participants in the assemblies and procession who are proficient in the foreign languages used, which the applicant indicated in its application as Kurdish and Turkish, or uninvolved third parties, can understand the written presentations. No violation of laws is apparent in this regard.
The requirement that "Permissible chants must also be performed in German" is disproportionate because it is unsuitable for addressing the risk of impermissible chants being used, and thus for preventing the commission of criminal acts. Using German for permissible chants does not even begin to prevent impermissible chants from being performed in foreign languages. This is because the respondent has not included impermissible texts in this requirement, meaning that these do not have to be performed in German.
Furthermore, the conditions are entirely unsuitable for addressing the risk of impermissible chants and other textual expressions by providing immediate intervention options for representatives of the public order authorities and the police. The required use of German simultaneously cannot achieve the respondent's objective of enabling control and timely intervention during the assemblies and marches by representatives of the public order authorities and the police who are not proficient in the foreign language. This is because the simultaneous use of German does not guarantee the accuracy of the translation, as nothing is known about the interpreting abilities of the applicant and the participants.
The aforementioned (constitutional) legal requirements are met by the condition cited above in point 2 of the decision of January 9, 2017, that a total of one poster measuring approximately 1.80 m x 1.20 m with the image of Mr. Öcalan on a yellow background and a maximum of ten posters (or alternatively, T-shirts) measuring 0.60 m x 0.60 m with the image of Mr. Öcalan on a yellow background may be displayed.
Therefore, the applicant's argument that this condition lacks specificity cannot be accepted. This lack of specificity is not eliminated simply by the use of the positive description of the "permitted" number of images of Mr. Öcalan to be displayed, which suggests a requirement for permission. In this respect, an interpretation that this imposes the condition or restriction under Section 15 Paragraph 2 of the Assembly Act (VersG) to display no more than those images specifically identified by number, size, and quality is readily possible, especially since the section of the decision dated January 9, 2017, containing this provision, is expressly headed "This confirmation is subject to the following conditions:".
In this respect, a danger to public safety, as initially mentioned only generally by the respondent in the decision of January 9, 2017 (page 3 of the decision, penultimate paragraph, first sentence, p. 18 of the file), but which was further specified in the response to the application, must also be assumed. The respondent correctly assesses the anticipated display of images of Öcalan, the leader and figurehead of the banned PKK who continues to operate from prison, as a violation of the Associations Act and a punishable offense under Section 20 Paragraph 1 Sentence 1 No. 5 of the Associations Act (see Higher Administrative Court of the Free Hanseatic City of Bremen, decision of February 21, 2011 – 1 A 227/09 –, juris with extensive further references), insofar as this occurs in the form of mass distribution, thereby crossing the threshold to prohibited advertising for a banned organization (see Higher Administrative Court of Hesse, decision of March 17, 1995 – 3 TG 802/95 –, juris, para. 3) (see Higher Administrative Court of Berlin-Brandenburg, decision of November 25, 2011 – OVG 1 S 187.11 –; previously, Administrative Court of Berlin, decision of November 22, 2011 — 1 L 369.11 —; both available on juris). This is because the threshold between permissible expression of opinion and prohibited support of a banned organization is crossed, as the topic of the assembly recedes into the background and an impartial observer perceives only the display of the PKK's figurehead. Therefore, only the occasional display of non-militaristic images of Öcalan is permissible, thus avoiding the impression that an event serves to promote the banned organization represented by Öcalan and bringing the event's topic to the forefront.
The challenged order is not flawed by an error of discretion, cf. Section 114 Sentence 1 of the Administrative Court Procedure Act (VwGO). The assembly authority exercised its discretion under Section 15 Paragraph 1 of the Assembly Act (VersG) and chose the contested condition as a less restrictive measure than prohibiting the event. This is legally sound.
The respondent's chosen stipulation regarding the number, size, and type of images is also not objectionable. To achieve sufficient specificity in the condition, which is a less restrictive alternative to prohibiting the assembly, it was necessary to specify a concrete number of images, described in terms of their quantity, size, and type. No errors of discretion are apparent in this regard; in particular, the condition appears proportionate, especially considering the constitutionally guaranteed freedom of assembly, which also includes the freedom to choose the number, size, and materials for communicating one's opinion. This is particularly true given that the condition only permits images of Öcalan against a yellow background. This takes into account that the color yellow is found in the symbols of the PKK. Therefore, by depicting Öcalan against a yellow background, his position within the PKK is emphasized, rather than his person, so that this design, in particular, can only be considered unproblematic with regard to violations of Section 20 Paragraph 1 Sentence 5 of the Associations Act to a very limited extent.
Insofar as the respondent has only set an absolute number and has not provided for any adjustments in the event of participation exceeding the expected 150 people, the Chamber finds this unobjectionable. This is because impermissible overcrowding is already possible with an absolute number, as the display of images is concentrated in one area, thus already resulting in overcrowding within the assemblies and processions.
The applicant and the respondent shall each bear half of the costs of the proceedings (Section 155 Paragraph 1 Sentence 1, 2nd variant VwGO).
The determination of the value in dispute is based on Section 53 Paragraph 2 No. 2 in conjunction with Section 52 Paragraphs 1 and 2 of the Court Costs Act (GKG). Due to the de facto anticipation of the main issue, the court applies the default value in dispute of €5,000.00 as stipulated in Section 52 Paragraph 2 GKG.
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