VERDICT
In the administrative litigation
of xxx
Plaintiff's
Authorized representative: Attorney Sven Adam,
Lange Geismarstraße 55, 37073 Göttingen,
against
The State of Hesse,
represented by the North Hesse Police Headquarters, Grüner Weg 33, 34117 Kassel,
Defendant,
because of the right of assembly
The Administrative Court of Kassel – 6th Chamber – rendered the following judgment by presiding judge xxx as a single judge without oral proceedings on January 5, 2021:
- It is determined that the prohibition on the use of a flag of the Yekineyön Berxwedana sengalö, imposed by the defendant during a meeting on September 7, 2017, was unlawful.
- The defendant shall bear the costs of the proceedings.
- The judgment is provisionally enforceable with respect to costs. The defendant may avert enforcement by providing security in the amount of 110% of the amount enforceable under the judgment, unless the plaintiff provides security in the amount of 110% of the amount to be enforced before enforcement proceedings commence.
FACTS
The parties involved are arguing about whether the use of a flag during a meeting was lawful.
During the assembly duly notified by the plaintiff on October 7, 2017, under the motto "Peace in Kurdistan – Freedom for Abdullah Öcalan", police officers present verbally prohibited the participants from using the flag of Yekineyön Berxwedana $engalö (hereinafter: YBS).
In its assembly order of October 4, 2017, the City of Kassel prohibited posters, banners, flags, clothing, and/or similar displays and chants related to the Kurdistan Workers' Party (Partiya Karkeren Kurdistan – hereinafter: PKK) and/or its ideological goals. The ban also extended to the organizations KADEK, KONGRA GEL, KKK, and KCK. The justification for the ban cited the 1993 prohibition of the PKK by the Federal Minister of the Interior and a recent assessment by the Federal Ministry of the Interior regarding the organizational identities of PKK rebranding and new formations under the Associations Act.
The plaintiff filed a declaratory judgment action on November 5, 2017, against the actions of the police officers. He considers the ban unlawful. He claims he was not informed of the legal basis for the ban. Even though the ban has since been lifted, he argues he can assert its unlawfulness due to the risk of recurrence and a serious infringement of his fundamental rights.
The plaintiff requests:
It is determined that the prohibition imposed by officials of the defendant on the use of the flag of the Yekîneyên Berxwedana Sengalê (YBS) during a meeting on October 7, 2017, was unlawful.
The defendant requests that
the action be dismissed.
The defendant maintains that the ban is lawful. The legal basis is Section 11 of the Hessian Public Safety and Order Act (HSOG) in conjunction with the assembly order issued by the City of Kassel on October 4, 2017. The YBS is a Yazidi vigilante group initiated by the Yekineyen Parastina Gel (hereinafter: YPG) as a resistance unit against the Islamic State. The YPG, in turn, is known as the Syrian faction of the PKK. The PKK is thus the umbrella organization of the YPG. An assessment by the Federal Ministry of the Interior from March 2017 regarding the current organizational names and symbols of the PKK indicates that not only the associations mentioned therein are prohibited, but that the ban on symbols also extends to the symbols used and to all symbols subsequently added as a result of name changes. This includes the numerous sub-organizations and affiliated groups, which, notwithstanding their apparent organizational independence, are within the sphere of influence of the PKK. The YPG founded and established the YBS. Therefore, the PKK is also indirectly represented through the symbolism of the YBS. Given this, the ban is covered by the assembly law.
The plaintiff accuses the defendant of developing inaccurate and inconclusive connections. Regarding the question of a ban on YPG symbols, the plaintiff, citing a decision of the Frankfurt Administrative Court, argues that a contextual assessment is crucial. Furthermore, the state of Berlin, due to a clearly changed foreign policy assessment, has ceased issuing bans on the symbols of the PYD, YPG, and YPJ. This is consistent, the plaintiff contends, because the PYD and YPG are clearly not sub-organizations of the PKK. Finally, the disputed YBS symbol is not listed in the annex to the order issued by the Federal Ministry of the Interior on March 2, 2017. It also bears no resemblance whatsoever to the symbolism of the YPG or even the PKK. Moreover, the YBS and PKK do not share the same political goals or a common structure. There is no obligation to follow the PKK's directives. There are no such connections with the YPG; in particular, the YBS is not a subsidiary organization of the YPG.
According to the defendant, the purpose of the assembly establishes a connection to the banned organization PKK. Precisely because the participants also demonstrated for the release of Abdullah Öcalan, they showed solidarity with the goals and views of both him and the banned PKK. The case would have been assessed differently if the participants – as in a case decided by the Frankfurt Administrative Court – had demonstrated for the liberation of Kubane from ISIS. The question of whether the YPG is a sub-organization of the PKK is irrelevant in the present legal dispute. The decisive factor is solely whether the YBS identifies with the ideology of the PKK, which is banned under the Associations Act, and whether the use of its flag has a concrete connection to the PKK.
By decision of 7 September 2020, the Chamber transferred the legal dispute to the rapporteur as a single judge for a decision.
By written submissions dated September 14, 2020 (plaintiff) and October 13, 2020 (defendant), the parties gave their consent to a decision without oral proceedings pursuant to Section 101 Paragraph 2 of the Administrative Court Procedure Act (VwGO)
For further details of the facts and the legal issues, reference is made to the contents of the court file and the administrative records.
REASONS FOR DECISION
I.
Following the transfer of the case pursuant to Section 6 Paragraph 1 Sentence 1 of the Code of Administrative Court Procedure (VwGO), the reporting judge decides as a single judge. The decision could be made without an oral hearing pursuant to Section 101 Paragraph 2 of the Code of Administrative Court Procedure (VwGO) because the parties had given their consent.
II.
Analogous to Section 113 Paragraph 1 Sentence 4 of the Administrative Court Procedure Act (VwGO), the action is admissible as a declaratory judgment action.
The prohibition on the use of the flag, which was issued orally (§ 37 para. 2 sentence 1 HVwVfG), constitutes an administrative act within the meaning of § 35 HVwVfG, in view of the principle of freedom of form (cf. only Ramsauer, in: Kopp/Ramsauer, VwVfG, 21st edition 2020, § 35 marginal note 18).
Once this matter has been resolved, the plaintiff can proceed by way of a declaratory judgment action. The court leaves open the question of whether the plaintiff has a legitimate interest in such a declaratory judgment due to a risk of recurrence, given the lack of specific factual information on this point. In any case, a legitimate interest in such a declaratory judgment exists due to a serious (and typically short-lived) infringement of the freedom of expression guaranteed by Article 5 Paragraph 1 Sentence 1 of the Basic Law and the freedom of assembly guaranteed by Article 8 of the Basic Law.
Since the administrative act was resolved before the objection period expired, no preliminary proceedings were necessary. No time limit for filing a lawsuit had to be observed.
III.
The lawsuit is also justified.
The ban on the use of the flag is unlawful. The defendant lacks a legal basis for the imposed ban.
The court can leave open the question of whether, as the defendant argues, Section 11 of the Hessian Public Safety and Order Act (HSOG) should be invoked as the legal basis for authorization, or whether – in view of the police-proof nature of the right of assembly (cf., e.g., Bavarian Administrative Court, Decision of January 10, 2020 – 10 B 19.2363, juris para. 22 et seq.) – Section 15 para. 1 of the Assembly Act (VersG) should be applied analogously. Both provisions presuppose a danger to public safety (see section 1) or order (see section 2). No such danger exists.
1. Public safety refers to the inviolability of the objective legal order, the protection of the subjective rights and legal interests of the individual, and the existence and functionality of the institutions and events of the state and other public authorities. However, there was no danger to public safety, as the use of the flag did not violate any legal norms. The prohibition has no legal basis in the Associations Act (see a) and cannot be justified by the order imposing conditions (see b).
a. The defendant cannot rely on a prohibition on insignia under Section 9 of the Associations Act. According to the legal definition in Section 9 Paragraph 2 Sentence 1 of the Associations Act, flags are expressly included in the prohibition on insignia. However, the court could not determine that the YBS is a prohibited association within the meaning of Section 9 Paragraph 1 Sentence 1 Number 1 of the Associations Act. The YBS itself is not prohibited. Based on the information available to the court, it also cannot be assumed that the YBS is a sub-organization covered by the prohibition of the PKK within the meaning of Section 3 Paragraph 1 Sentence 1 of the Associations Act. The court does not need to decide whether this also applies to the YPG. This appears questionable in light of the fact that non-territorial sub-organizations (with their own legal personality) are only covered by a prohibition of an association pursuant to Section 3 Paragraph 3 Sentence 2 of the Associations Act if they are expressly named in the prohibition order. In any case, the court has no reliable information regarding the YBS that would justify classifying it as a sub-organization of the PKK – and thus subject to the ban on associations. Furthermore, neither the YPG nor the YBS are explicitly named in the assessment of currently used organizational names and the resulting PKK identifiers issued by the Federal Ministry of the Interior on March 2, 2017, which was referenced by the defendant.
Based on the available information, a ban on the insignia is also not possible under Section 9 Paragraph 4 of the Associations Act, according to which insignia of a successor organization are covered by the prohibition provisions of Section 9 Paragraphs 1 to 3 of the Associations Act. In this respect, the factual prerequisite of a corresponding enforceable determination pursuant to Section 8 Paragraph 2 Sentence 1 of the Associations Act is lacking.
The flag of the YBS does not look confusingly similar to that of the PKK, so it is not covered by the prohibition of symbols under Section 9 Paragraph 2 Sentence 2 of the Associations Act.
The YBS flag is also not an emblem of a banned association that is used in essentially the same form by other non-banned sub-organizations or independent associations, as defined in Section 9 Paragraph 3 Sentence 1 of the Associations Act. According to Section 9 Paragraph 3 Sentence 2 of the Associations Act, this is regularly assumed to be the case if, with a similar overall appearance, the emblem of the banned association or parts thereof is adorned with other place or regional designations. The defendant does not even claim that this is the case with the YBS flag.
b. To the extent that the defendant seeks to derive the legality of the prohibition from the City of Kassel's order of October 4, 2017, this argument is also unsuccessful. The defendant argues that the plaintiff violated the condition that flags and/or similar conspicuous displays related to the PKK and/or its ideological aims were not displayed during the assembly, because the YBS flag continued to be displayed despite corresponding requests from police officers. Since the demonstration also called for the release of PKK leader Öcalan from prison, the defendant contends that the use of the YBS flag can be subsumed under the condition that no flags, posters, or similar items related to the PKK and/or its ideological aims are used. The defendant argues that the use of the flag in question would be judged differently if the participants in the assembly had been demonstrating for the liberation of Kubane from ISIS.
This is unconvincing for several reasons. Firstly, this reasoning would make it possible to prohibit any flags – for example, those of national political parties – displayed at the assembly, which would be unconstitutional under Article 5 Paragraph 1 Sentence 1 of the Basic Law (cf. regarding the standard, Federal Constitutional Court, decision of 19 December 2007 – 1 BvR 2793/04, juris para. 14 et seq.).
Furthermore, the defendant impermissibly narrows his perspective to the second part of the assembly's purpose, thereby completely ignoring the fact that the assembly was primarily held for "peace in Kurdistan." The court fails to understand, and the defendant does not explain, why the flag of a Yazidi militia, founded in response to the IS terrorist organization's summer offensive in 2014, may not be displayed in this context.
Furthermore, the assembly authority has no reservations regarding the second part of the assembly – as evidenced by its order, which even authorizes the display of images of Abdullah Öcalan – which is why it is incomprehensible why an assembly topic deemed legitimate should lead to a ban on flags of non-banned organizations that express solidarity with it. The court notes that there are indeed serious voices that (continue to) assume that displaying an image of Abdullah Öcalan falls under the prohibition of symbols in Section 20 Paragraph 1 Sentence 1 No. 5 of the Associations Act and thus also under the criminal provisions of Section 86a of the Criminal Code (Higher Administrative Court of North Rhine-Westphalia, Decision of November 3, 2017 – 15 B 1371/17, juris, para. 28; Baudewin, Public Order and Assembly Law, 3rd ed. 2020, para. 560 with further references). However, this was irrelevant to the question at hand, because the city of Kassel expressly authorized this in the order imposing the conditions. Furthermore, the court does not have to decide how this affects any potential criminal liability. The decisive factor here is solely the contradictory argumentation, which is insufficient to justify the ban on the YBS flag.
The court expressly leaves open the question of whether a regulation prohibiting flags, posters, or similar items that promote the ideological goals of the PKK is legally permissible in principle. Doubts exist in this regard, particularly considering the (strict) legal requirements of the Associations Act. Furthermore, concerns exist concerning the principle of essentiality and the requirement of legal certainty. However, these points are not decisive in the present case, as the defendant has not demonstrated that the YBS pursues the ideological goals of the PKK. It is not even specified which ideological goals are meant in this context. Let alone is it explained whether, and if so, in what form, these goals are shared by the YBS.
2. There is also no violation of public order. Public order refers to the entirety of unwritten rules, the observance of which, according to prevailing social and ethical views, is considered an indispensable prerequisite for orderly human coexistence within a specific area.
While public order – independent of other prohibitions – can provide a suitable legal basis if the use of flags is likely to have an intimidating, non-communicative (potential for violence) or provocative effect, it must in any case be the manner of use that is objectionable. Substantive restrictions cannot be justified in this respect, taking into account the requirements of Article 5 Paragraph 1 Sentence 1 of the Basic Law, as the criminal law provisions are exhaustive in this regard (see, for example, Federal Constitutional Court, Decision of December 19, 2007 – 1 BvR 2793/04, juris para. 21). In the present case, however, the authority based its decision (exclusively) on the content. A potential for violence through the use of the flag is neither apparent nor alleged (see, in general, Baudewin, Public Order and Assembly Law, 3rd ed. 2020, paras. 332 and 584 with further references).
For the aforementioned reasons, even an (isolated) enforcement of the assembly order (without including public order via Section 11 HSOG or Section 15 Paragraph 1 VersG) would prove to be unlawful.
IV.
The allocation of costs is governed by Section 154 Paragraph 1 of the Administrative Court Procedure Act (VwGO).
V.
The decision regarding the provisional enforceability of the judgment concerning costs is based on Section 167 of the Administrative Court Procedure Act (VwGO) in conjunction with Section 708 No. 11, Section 711 Sentence 1 of the Code of Civil Procedure (ZPO).
The following is information on legal remedies.
