DECISION
In the administrative dispute proceedings
The woman xxx,
applicant,
authorized:
Attorney Sven Adam,
Lange Geismarstrasse 55, 37073 Göttingen,
against
the city of Kassel, xxx
respondent,
because of the right of assembly
The Kassel Administrative Court - 6th Chamber -
decided on January 13, 2017 the presiding judge at VG xxx,
judge at VG xxx,
judge xxx
1. The suspensive effect of the applicant's objection of January 11, 2017 against the requirements
a) "Permissible chanting must also be made in German."
and
b) “The leaflets… must also be written in German.
This also applies to posters, banners and clothing.” will be restored.
2. Otherwise the application is rejected.
3. The applicant and the respondent must 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 has German citizenship, objects to the conditions imposed on her regarding a procession and meetings registered for January 14, 2017.
In a letter dated December 29, 2016, received by the respondent on the same day, the applicant reported a public meeting at the town hall and a parade for January 14, 2017 with the topic “Away with the ban on the PKK: freedom for Öcalan, peace in Kurdistan! ” at. The procession and meeting should take place from 1:30 p.m. to 3:00 p.m. in the area of Untere Königsstrasse, Am Stern, Königsplatz, Friedrichsplatz to the town hall using megaphones, loudspeakers, leaflets, posters, musical accompaniment and with a maximum of five speeches. The short description stated “CD, live music, German & Kurdish, Turkish”. The expected number of participants is 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. The size was reduced to the expected 150 participants and the route was changed by mutual consent and included two intermediate rallies. In this respect, additional reference is made to the minutes of the conversation (BI. 7 of the official procedure).
With a decision dated January 9, 2017, the respondent confirmed the registration of meetings and parades from December 29, 2016 in the version dated January 6, 2017 and issued the following conditions, among others:
1. a) “Permissible chanting must also be carried out in German.”
b) “The leaflets must have an imprint, must not have any criminal content and must also be written in German. This also applies to posters, banners and clothing.”
2. “The following posters may be shown:
• 1 poster measuring approx. 1.80 m x 1.20 m with the picture of Mr Öcalan on a yellow background
• 10 posters measuring approx. 0.60 m x 0.60 m with the picture of Mr Öcalan on a yellow background. Alternatively, T-shirts that show Mr. Öcalan's picture can be worn. The total number may not exceed 10 images.”
In a letter dated January 11, 2017, the applicant, represented by her authorized representative, filed an objection against the decision dated January 9, 2017.
At the same time, an application was submitted to the administrative court to restore the suspensive effect of the objection regarding the above-mentioned conditions.
With regard to the requirements regarding the use of the German language, the risk forecast required for the issuance of this requirement does not meet the requirements of Section 15 Paragraph 1 of the Act on Assemblies and Elevations (hereinafter: VersG). Evidence for this has not been substantiated and proven. The motto of the meeting alone does not provide sufficient evidence of the risk of committing crimes. As long as permissible chants are to be translated, there is no danger anyway. Ensuring that all textual presentations can be understood is not the responsibility of the meeting registrant or leader. The fact that people in the meeting and in the audience who do not speak the foreign language cannot understand individual announcements is at best an annoyance, but does not represent a danger within the meaning of Section 15 Paragraph 1 VersG.
With regard to the requirement regarding the showing of pictures of Mr. Öcalan, this is indefinite because it suggests permission, whereas under the right of assembly only a restriction is possible. Furthermore, the requirement is disproportionate. It is not clear why 11 posters measuring 1.80 mx 1.20 m could not be carried and why this requirement in terms of number is not based on the number of participants.
The applicant requests accordingly,
1. The suspensive effect of the applicant's objection of January 11, 2017 against the respondent's decision of January 9, 2017 (Az: 3222-Vers 04-17) is reinstated, insofar as stated in the decision of January 9, 2017 will:
a.
“Permissible chanting must also be carried out in German” b.
The leaflets… must also be written in German. This also applies to posters, banners and items of clothing and
2. The suspensive effect of the applicant's objection of January 11, 2017 against the respondent's decision of January 9, 2017 (Az: 3222-Vers 04-17) is also restored, insofar as in According to the decision dated January 9, 2017, a maximum of 1 poster measuring approx. 1.80 mx 1.20 m with the picture of Mr. Öcalan on a yellow background, as well as 10 posters or T-shirts measuring approx. 0 .60 mx 0.60 m with the picture of Mr. Öcalan on a yellow background.
The respondent requests
that the application be rejected.
As justification, she states that with regard to the requirement to use the German language for chants, posters, banners and items of clothing, there are indications of an immediate threat to public safety or order when the meeting or procession is held. In view of the provocatively chosen topic of the meeting, it can almost certainly be assumed that criminal violations of the Association Act (Section 20 Paragraph 1 Sentence 1 Nos. 4 and 5 Associations Act) are to be expected. The requirement should enable the regulatory authorities and the police to identify inadmissible chanting, which they can only understand if the German language is used. In this respect, the requirement represents a milder means than a ban on the meeting. In addition, the purpose is to make the contents of the meeting accessible not only to participants who speak Turkish and to citizens who are not involved. This should also be in the interest of the applicant. Comparable requirements have been issued for years and have not yet been objected to. This also applies to the requirement to use the German language in the textual statements made through leaflets, posters, banners and items of clothing.
With regard to the massed display of pictures of Mr. Öcalan, this is to be viewed as a criminal offense through the public use of a symbol of a banned association according to Section 20 Paragraph 1 Sentence 1 No. 5 VereinsG, as with the massaging of posters or T-shirts with Öcalan's portrait the threshold for advertising for the workers' party PKK, which is banned in the Federal Republic of Germany, was exceeded. Showing one poster measuring approx. 1.80 m x 1.20 m and a maximum of 10 posters measuring 0.60 m x 0.60 m with Öcalan's portrait should be classified as permissible expression of opinion. The condition imposed serves as a milder means of preventing the ban on the assembly that would otherwise be imposed.
In addition, reference is made to the exchanged written submissions and the official case submitted by the respondent (BI. 1 - 13).
II.
The application was to be understood in accordance with Section 88 VwGO with regard to the requested restoration of the suspensive effect of the applicant's objection regarding the showing of Öcalan's pictures in the version mentioned above.
According to the content of the written reasons for the urgent application, the application was to be understood as an application for the restoration of the suspensive effect with regard to the entire edition of the showing of Öcalan's pictures and not just the showing of a maximum of 10 posters (alternatively T-shirts) with an amount of approx 0.60 mx 0.60 m with the picture of Mr. Öcalan on a yellow background. If the application were to be viewed as having been submitted in its entirety, even if the applicant were to prevail, the requirement would remain in place to a reduced extent and could be enforced immediately, with the result that only one poster measuring approx. 1.80 mx would be displayed at the meetings and in the elevator 1.20 m with the picture of Mr Öcalan on a yellow background should be shown. It is obvious that, based on the applicant's entire presentation, this is not in her interest.
Since, due to the immediate enforcement formally and lawfully ordered by the respondent (Section 80 Paragraph 2 Sentence 1 No. 4 VwGO), neither an objection nor an action for annulment against the decision of January 9, 2017 has a suspensive effect, the application is in accordance with Section 80 Paragraph 5 Sentence 1 VwGO permitted.
However, the application to restore the suspensive effect of the objection, which is permissible in accordance with Section 80 (5) VwGO, is only justified to the extent apparent from the operative part.
In the balancing of interests to be carried out in accordance with Section 80 Paragraph 5 VwGO, the applicant's private interest in delaying outweighs the public interest in enforcement only to the extent that the ordering of conditions relating to the use of the German language based on Section 15 Paragraph 1 VersG is unlawful and to this extent the applicant is in her own right The fundamental right to freedom of assembly (Art. 8 GG) is violated.
According to Section 15 Paragraph 1 of the Assembly Act, a meeting or a procession can be made subject to certain conditions by the responsible authority if, according to the circumstances apparent at the time the order is issued, public safety or order is in immediate danger when the event is held. Because of the special importance of the freedom of assembly, which is guaranteed for all Germans by fundamental rights (Article 8 of the Basic Law), for the functioning of democracy, its exercise may only be limited to protect other equivalent legal interests while strictly respecting the principle of proportionality (BVerfG, decision of May 14, 1985, 1 BvR 233 /81, 1 BvR 341/81 — Brokdorf —, juris). Freedom of assembly only has to be withdrawn if a balancing of interests, taking into account the importance of the right to freedom, shows that this is necessary to protect other equivalent legal interests (BVerfG, ibid).
The term “public security” includes the protection of central legal interests such as life, health, freedom, honor, property and assets of the individual as well as the integrity of the legal system and state institutions, whereby a threat to public security is generally assumed if There is a risk of a criminal violation of these protected interests (cf. BVerfG, decision of May 14, 1985 -1 BvR 233/81 - and -1 BvR 341/81 - Brokdorf -, juris). The term “immediate danger” in Section 15 Paragraph 1 VersG imposes special requirements on the proximity of the occurrence of damage and thus also stricter requirements on the degree of probability in the sense that a situation justifying intervention (only) exists when the occurrence of one Damage is to be expected with a high degree of probability, ie “almost with certainty” (cf. BVerwG, judgment of June 25, 2008 - 6 C 21/07 -, juris). This requires the existence of actual indications or verifiable facts; mere suspicions and assumptions are not enough (cf. BVerfG, decision of May 14, 1985, loc. cit.; decision of June 6, 2007 -1 BvR 1423/07 -, juris). What is always necessary is that the findings or facts relate to the planned event in a sufficiently concrete manner (cf. BVerfG, decision of May 1, 2001 - 1 BvQ 21/01 -, juris).
The requirements regarding the use of the German language cited above under number 1 a) and b) from the decision dated January 9, 2017 do not correspond to these requirements.
In this respect, on the one hand, it cannot be seen that without using the German language there would be a danger to public safety or order; on the other hand, the requirement regarding the use of the German language, in particular for permitted chanting, is not proportionate because it is not suitable. to counter the danger feared by the respondent.
To the extent that the respondent fears that in the context of chanting or other textual presentations on leaflets, posters, banners or items of clothing, inadmissible, i.e. prohibited, statements with criminal content will be made, it has not presented any comprehensible evidence of this and has proven that this is almost certain probability is to be feared. The fact that the respondent only sees this as possible becomes clear from the fact that in justifying the requirement she states that the use of the German language is intended to make it possible for representatives of the regulatory authorities and police to intervene in the event of the use of inadmissible language performances. The motto of the meetings and the procession alone, which is in fact chosen in such a way that the removal of the ban on the PKK is in the foreground and only secondarily, after a colon, the demand for freedom for Öcalan and peace for Kurdistan, indicates this not. The demarcation by the colon could indicate that the release of Öcalan and peace for Kurdistan only appear possible if the ban on the PKK is lifted or is a necessary consequence of the ban being lifted, i.e. it can be seen primarily in connection with the re-admission of the PKK and not significantly by The desire for the realization of human rights for Öcalan or the Kurds can be borne out, which could put the rights of the PKK in the foreground, which could indicate support for a banned organization. However, this is purely a matter of conjecture. No further reliable evidence or even circumstantial evidence has been provided or otherwise apparent.
To the extent that the respondent wants to enable participants who do not speak foreign languages (Turkish or Kurdish) or third parties who are not involved to perceive the content of the meetings or the procession with the requirements regarding the use of the German language, this may be a desirable goal. However, it cannot be determined in this regard which legal interests could be violated, ie what dangers to public safety or order could be threatened if only the foreign languages used, which the applicant stated in her registration as Kurdish and Turkish, were powerful participants in the meetings and the procession or uninvolved third parties can understand the textual presentations. This does not indicate any violation of laws.
The requirement that “permissible chanting must also be carried out in the German language” is already disproportionate because it is unsuitable for countering the risk of using impermissible chanting, i.e. preventing the commission of criminal acts. The use of the German language for permissible chanting does not even begin to prevent the performance of impermissible chanting in foreign languages. This means that the respondent has not recorded inadmissible texts, so that these do not have to be in German according to the requirement.
Furthermore, the requirements as a whole are unsuitable for countering the risk of inadmissible chanting and other textual statements by allowing representatives of the regulatory authorities and the police to intervene immediately. The required use of the German language at the same time cannot enable the purpose sought by the respondent of the possibility of control and timely intervention immediately during the meetings and the procession by representatives of the regulatory authorities and the police who do not speak the foreign language. The use of German at the same time does not guarantee the accuracy of the translation, as nothing is known about the interpreting skills of the applicant and the participants.
The (constitutional) legal requirements set out above correspond to the requirement quoted above under number 2 from the decision of January 9, 2017 that a total of 1 poster measuring approx. 1.80 mx 1.20 m with the picture of Mr. Öcalan on a yellow background and a maximum of 10 posters (alternatively T-shirts) measuring 0.60 mx 0.60 m with the picture of Mr. Öcalan on a yellow background may be shown.
In this respect, the applicant's argument that this requirement lacks certainty cannot be accepted.
This is not eliminated simply by using the positive description of the “permitted” number of Öcalan’s pictures to be shown, which suggests a reservation of permission. In this respect, it is easily possible to interpret that the requirement or restriction within the framework of Section 15 Paragraph 2 VersG is not to show more than these images, which are specifically designated according to number, size and quality, especially since the section of the decision dated January 9, 2017, in which this provision is made, is expressly entitled “This confirmation is subject to the following conditions:”. In this respect, there is also a danger to public safety, as the respondent initially only stated in general terms in the decision of January 9, 2017 (page 3 of the decision, penultimate paragraph, first sentence, BI. 18 of the file), but made more specific in the response to the application has to accept. The respondent correctly assesses the expected showing of pictures of Öcalan, as the leader and identification figure of the banned PKK, who is still active from prison today, as fundamentally a violation of the Association Act and as a criminal offense according to Section 20 Paragraph 1 Sentence 1 No. 5 Association Act ( cf. Higher Administrative Court of the Free Hanseatic City of Bremen, decision of February 21, 2011 -1 A 227/09 -, juris with extensive additional evidence), insofar as this takes place in the form of massed use, which means that the threshold for prohibited advertising for a prohibited association (cf. Hessian Administrative Court, decision of March 17, 1995 - 3 TG 802/95 -, juris, paragraph 3) is exceeded (see Berlin-Brandenburg Higher Administrative Court, decision of November 25, 2011 - OVG 1 S 187.11 -; previously VG Berlin, decision of November 22, 2011 —1 L 369.11 —; both juris). This means that the threshold from permitted expression of opinion to prohibited support for a banned association is crossed because the topic of the meeting is pushed into the background and an unbiased observer only perceives the display of the PKK's identification figure. Therefore, only the occasional showing of Öcalan's non-warlike images is permitted, which avoids the impression that an event serves to promote the banned organization represented by Öcalan and brings the topic of the event to the fore.
The challenged order does not suffer from an error of discretion, see Section 114 Sentence 1 VwGO. The assembly authority recognized the discretion to which it was entitled under Section 15 Paragraph 1 VersG and chose the condition in question as the milder means compared to a ban on the event. This is not legally objectionable.
The respondent's choice of number, size and type cannot be objected to. In order to achieve sufficient specificity in the edition, which is primarily used as a milder means of banning gatherings, a number of images, specifically described in terms of number, size and type, had to be specified in the edition. There are no discernible errors of judgment; in particular, the requirement appears to be proportionate in view of the constitutionally guaranteed freedom of assembly, which also includes the freedom to choose the number, size and materials for communicating the opinions expressed. This is particularly true considering the fact that the edition only includes images of Öcalan against a yellow background. This takes into account that the color yellow can be found in the symbols of the PKK. The way Öcalan is depicted against a yellow background puts his position in the PKK in the foreground and not his person per se, so that this design in particular can only be considered harmless to a very limited extent with regard to violations of Section 20 Paragraph 1 Sentence No. 5 VereinsG can be viewed.
To the extent that the respondent only set the number in absolute terms and did not plan to open up the number in the event that more than the expected 150 people took part, this is also not objectionable in the Chamber's opinion. The impermissible massing is already possible with an absolute number by concentrating the showing of the pictures on one area and thus already massing within the meetings and elevators.
The applicant and the respondent each have to bear half of the costs of the procedure (Section 155 Paragraph 1 Sentence 1, 2nd variant VwGO).
The determination of the amount in dispute is based on Section 53 Paragraph 2 No. 2 in conjunction with Section 52 Paragraph 1 and 2 of the Court Costs Act (GKG). Due to the factual anticipation of the main case, the court uses the standard amount in dispute under Section 52 (2) GKG of €5,000.00.
Instructions on legal remedies follow.
