DECISION
In the administrative litigation
of xxx
applicant,
Authorized representative:
Attorney Sven Adam,
Lange Geismarstraße 55, 37073 Göttingen,
against
The City of Kassel,
represented by the Mayor, City Hall, 34117 Kassel,
Respondent,
because of the right of assembly
The Kassel Administrative Court – 6th Chamber – has ruled by
Presiding Judge at the Administrative Court xxx,
Judge at the Administrative Court xxx,
Judge xxx
Decided on March 18, 2021:
- The suspensive effect of the objection of 18 March 2021 against the order of 16 March 2021 is reinstated.
- The respondent shall bear the costs of the proceedings.
- The amount in dispute is set at €2,500.
REASONS
The application submitted on March 18, 2021,
The suspensive effect of the applicant's objection of 18 March 2021 against the respondent's decision of 16 March 2021 (file no.: 3222-Vers 86-21) is reinstated
is permissible and justified.
The chamber decides in accordance with Section 5 Paragraph 3 Sentences 1 and 2 of the Administrative Court Procedure Act (VwGO) in the composition of its professional judges without the participation of the lay judges.
Pursuant to Section 80 Paragraph 5 Sentence 1 of the German Code of Administrative Procedure (VwGO), the court of first instance may, upon application, reinstate the suspensive effect in whole or in part in cases where immediate enforcement has been specifically ordered by the authority in the public interest or in the overriding interest of a party involved (Section 80 Paragraph 2 Sentence 1 No. 4 VwGO). In its decision, the court must weigh the public interest in the immediate enforcement of the contested administrative act against the applicant's interest in its suspension. The prospects of success of the appeal in the main proceedings are decisive in this regard. Accordingly, the private interest prevails if the administrative act is manifestly unlawful upon summary review as required by Section 80 Paragraph 5 VwGO, since there can be no public interest in the enforcement of an unlawful administrative act. Conversely, the public interest prevails if the administrative act is manifestly lawful upon summary review and a particular interest in its enforcement exists. If the prospects of success in the main proceedings are uncertain, the court must conduct an independent balancing of interests. In cases of high-intensity intervention, the court's scrutiny must be intensified due to the severity and irreparability of the harm threatened to the applicant. The more serious the burden imposed on the individual and the more irreversible the effect of the measure, the less the individual's right to legal protection may be disregarded (cf. Federal Constitutional Court, Decision of January 29, 2020 – 2 BvR 690/19, juris para. 16, established case law).
The applicant's interest in suspension therefore prevails. The prohibition of an assembly ordered by the respondent (No. 1 of the decision) and the resulting Nos. 2 and 3 of the decision are clearly unlawful.
In applying Section 15 of the Assembly Act, the respondent clearly misunderstands the constitutional requirements of freedom of assembly arising from Article 8 of the Basic Law, which are absolutely fundamental to a free and democratic state order.
1. The Chamber initially assumes that the provisions of infection control law addressed to the health authorities, namely Section 28 and especially Section 28a Paragraph 1 No. 10, Paragraph 2 Sentence 1 No. 1 of the Infection Protection Act (IfSG), do not have a preclusive effect on the regulations governing assemblies (as here: Bavarian Administrative Court, Decision of February 21, 2021 – 10 CS 21.526, juris para. 3, 14; Munich Administrative Court, Decision of February 20, 2021 – M 13 S 21.900, juris para. 23). This applies at least when the assembly authority – as here – also bases its order on assembly-specific reasons, such as the risk of clashes with counter-demonstrations (see below).
2. According to Section 15 Paragraph 1 of the Assembly Act, the competent authority may prohibit an assembly or make it subject to certain conditions if, according to the circumstances recognizable at the time the order is issued, public safety or order is directly endangered by the assembly or procession.
a) 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 can also arise from other serious dangers to high-ranking protected interests such as life and limb (Article 2, Paragraph 2, Sentence 1 of the Basic Law) or the maintenance of the public health system in the event of a pandemic caused by a highly contagious virus with a high number of severe cases.
b) When applying Section 15 Paragraph 1 of the Assembly Act, the special significance of the constitutionally enshrined freedom of assembly under Article 8 Paragraph 1 of the Basic Law must always be considered. This protects the freedom to assemble with other persons in a specific location for the purpose of a joint discussion or demonstration aimed at participating in the formation of public opinion. As the freedom to express opinions collectively, freedom of assembly is absolutely fundamental to a free and democratic constitutional order. The fundamental right to freedom of assembly also guarantees the right to self-determination regarding the location, time, nature, and content of the event. Citizens should thus be able to decide for themselves, in particular, where they can most effectively assert their concerns (cf. Federal Constitutional Court, Judgment of February 22, 2011 – 1 BvR 699/06, juris para. 63 et seq.). However, freedom of assembly is not guaranteed without reservation. Rather, assemblies in the open air can be restricted by law – as in this case, Section 15 of the Assembly Act – or on the basis of a law, pursuant to Article 8 Paragraph 2 of the Basic Law. Such restrictions must be interpreted in light of the fundamental importance of Article 8 Paragraph 1 of the Basic Law. Interferences with the freedom of assembly are only permissible to protect other equally important legal interests, while strictly adhering to the principle of proportionality (see Federal Constitutional Court, Decision of August 30, 2020 – 1 BvQ 94/20, juris para. 14, established case law). In particular, the fundamental right of third parties to life and physical integrity pursuant to Article 2 Paragraph 2 Sentence 1 of the Basic Law is among such legal interests which, under strict adherence to the principle of proportionality, can justify measures restricting assemblies, which in principle also include bans on assemblies (cf. Federal Constitutional Court, Decision of 30 August 2020 – 1 BvQ 94/20, juris para. 16). However, a ban on assemblies is ruled out according to the principle of proportionality as long as less intrusive means and methods of resolving conflicts of legal interests, such as conditions or restrictions on assemblies and the increased use of police controls, have not been exhausted or have been ruled out with sound justification (see BayVGH, Decision of 11.09.2020 – 10 CS 20.2063, juris para. 9 with further references; BVerfG, Decision of 04.09.2009 – 1 BvR 2147/09, juris para. 17).
c) In light of the coronavirus pandemic, specific measures such as the obligation to maintain certain minimum distances, as well as restrictions on the number of participants, are being considered to prevent a breach of the necessary minimum distances. Such a breach can occur in individual cases due to the dynamics within a large crowd or the nature and character of an assembly, even if, based on the expected number of participants, a sufficiently large assembly area is available in purely mathematical terms. Furthermore, requiring participants to wear face coverings, holding the assembly as a stationary demonstration instead of a march, or relocating it to an alternative location that is preferable from an infection control perspective, generally constitutes a less restrictive measure (see Federal Constitutional Court, Decision of August 30, 2020 – 1 BvQ 94/20, juris para. 16).
d) However, infringements of Article 8 Paragraph 1 of the Basic Law are only permissible if public safety, and thus, for example, the legally protected interests of life and physical integrity, are directly endangered, i.e., if the danger assessment to be carried out by the assembly authority is based on concrete and comprehensible factual indications which, upon reasonable consideration, result in a sufficient probability of the danger occurring; mere suspicions and assumptions are not sufficient on their own (Federal Constitutional Court, Decision of 12 May 2010 – 1 BvR 2636/04, juris para. 17; Thuringian Higher Administrative Court, Decision of 26 February 2021 – 3 EO 134/21, juris para. 6). For the purpose of assessing the risk of a potential riot, events related to previous assemblies can be used as indicators, provided they exhibit similarities to the planned assembly with regard to the theme, location, date, and the group of participants and organizers (Federal Constitutional Court, Decision of May 12, 2010 – 1 BvR 2636/04, juris para. 17). According to the general rules of administrative law, which are aligned with the concept of fundamental rights as defensive rights, the burden of proof for the existence of measures restricting freedom lies with the authority (Federal Constitutional Court, Decision of September 4, 2009 – 1 BvR 2147/09, juris para. 13).
3. Based on these standards, the prohibition imposed by the respondent is manifestly unlawful.
a) In principle, dangers arising from an increased risk of infection are also suitable to justify a ban on assemblies. However, due to the paramount constitutional importance of freedom of assembly, this can only be permissible in extreme situations. The respondent did not establish such a situation in the contested order, nor does it exist.
The primary goals of the restrictions resulting from the Corona pandemic are to prevent the health system from being overwhelmed and to protect the fundamental right of third parties to life and health.
Contrary to the assumption in the contested order, there is no acute risk of the healthcare system being overwhelmed. The number of reported COVID-19 cases requiring intensive care across Germany has fallen from its peak of 5,745 on January 3, 2021, to 2,843 on March 16, 2021, thus more than halving. In Hesse, the peak was 523 on January 5, 2021, and the number stood at 274 on March 16, 2021, representing almost a halving (see https://www.intensivregister.de/#/aktuelle-lage/zeitreihen). The respondent's counter-argument that the current number of intensive care cases in Hesse significantly exceeds the peak during the first wave is objectively true. The respondent fails to adequately consider that in January 2021 – during the second wave – the figure was almost twice as high, yet the healthcare system was not overwhelmed. Furthermore, the respondent does not sufficiently account for the fact that the vaccination of older population groups effectively protected a particularly vulnerable segment of the population. Finally, the reference to the currently available intensive care capacity (15.19%) is unconvincing in this context. The respondent overlooks the fact that this capacity is adjusted to meet the specific needs, as evidenced by the twice as high number of cases requiring intensive care in January.
Against this background, the court is not convinced that there is an acute risk of the healthcare system being overwhelmed. Therefore, this argument cannot justify a ban on gatherings.
It should be noted that preventing the healthcare system from being overwhelmed remains the central aim of all coronavirus regulations. All other justifications, particularly the setting of incidence rates, are merely means to this end.
The court took the rising infection numbers into account. The current incidence rates in Kassel, as well as nationwide, are still below 100. Based on the current infection risk, the Conference of Minister-Presidents on March 3, 2021, concluded that schools and daycare centers could reopen and that further easing of restrictions should be pursued. Only if the incidence rate reaches 100 (200 in Brandenburg) will the coronavirus regulations be tightened again, essentially as an emergency brake. This threshold has not been reached. Nationwide, the incidence rate is currently 86 (see https://www.rki.de, as of March 17, 2021). In Kassel, it is currently 67.9 (city) and 52.4 (district) (see https://www.kassel.de, as of March 17, 2021). In Hesse, the rate has now risen to 100 (https://www.hessenschau.de). The reference to the incidence rate of 100, established at the Conference of Minister-Presidents, is not intended to imply that all gatherings would be prohibited if this rate were exceeded. The Chamber merely sought to clarify the risk assessment regarding the incidence rate undertaken by the Conference of Minister-Presidents. They were of the opinion that, up to an incidence rate of 100, even children could be taught in person at schools, i.e., in enclosed spaces. If this is permissible, then, given the paramount importance of freedom of assembly for the free and democratic order, holding an assembly outdoors, where the risk of infection is significantly lower, must be all the more permissible. Therefore, the respondent's reference to the potentially more contagious mutations, which are associated with a higher mortality risk, is insufficient to justify a different decision. Furthermore, it should be noted in this context that the significant increase in the incidence rate will at least partly be due to the fact that people who have only recently become available through rapid and self-tests have been included in the statistics.
The massive decline in the death toll is remarkable. On December 29, 2020, 1,244 people died in a single day as a result of their illness (see https://de.statista.com). In contrast, on March 17, 2021, the Robert Koch Institute (RKI) reported 249 deaths in 24 hours (see https://experience.arcgis.com). This represents a massive decrease and shows that the official measures, such as vaccinations—especially those of vulnerable individuals—are beginning to show initial success. With the decline in the death toll, the requirements for justifying a ban on gatherings increase. The respondent's general statements clearly do not meet these requirements.
Insofar as the respondent relies on the study by Lange and Monscheuer (Spreading the Disease: Protest in Times of Pandemics, http://ftp.zew.de), it should first be noted that this is currently only a discussion paper that has not yet undergone the usual peer-review process (https://www.hu-berlin.de). Furthermore, it is not a medical/epidemiological study; rather, the authors are economists. Moreover, even if the study were considered objectively accurate, it would not justify a total ban on assemblies. As already demonstrated above, an infection risk can only justify a ban on assemblies in extreme situations. The study does not describe such a situation. Moreover, it should be noted—again—that other measures (social distancing/wearing masks, etc.) can reduce the risk of infection to such an extent that a total ban would prove disproportionate.
The court also took into account, and indeed specifically considered, that the assembly ban in this case clearly also affects those who are not responsible for the situation. The measures are directed against individuals from whom there is neither an objective nor an apparent danger or a well-founded suspicion of causing a danger in the sense of spreading the coronavirus. However, there are no fundamental concerns regarding the permissibility of such restrictions, because otherwise the spread of undetected infectious diseases in general, and the coronavirus in particular, cannot be successfully countered. That this is generally permissible is clarified by Section 9 in conjunction with Section 3 Paragraph 1 Sentence 3 of the Hessian Public Safety and Order Act (HSOG).
b) Furthermore, the prohibition of the assembly is clearly unlawful because less restrictive measures are possible or the respondent has not ruled them out with a sound justification.
As outlined above, less restrictive measures in light of the coronavirus pandemic include wearing face masks, maintaining social distancing, and holding stationary demonstrations. While the respondent's considerations regarding the eleven registered assemblies critical of the coronavirus measures may be understandable – although the respondent's reasoning lacks sufficient factual basis to justify a ban (decisions of yesterday, 6 L 562/21.KS and 6 L 573/21.KS) – because there have been several past cases where participants in comparable assemblies failed to comply with the relevant regulations, there is no evidence whatsoever to suggest that the participants in the counter-demonstration at issue here would fail to comply with such regulations. Insofar as the respondent fears a "mixing" of the 17 registered assemblies, she fails to explain why the participants in the counter-demonstration at issue here should not adhere to any applicable regulations. The claim that there are insufficient police forces available to prevent a clash between the different demonstrations is merely asserted. However, press reports indicate that the police are "well prepared" (according to a police spokesperson speaking to the Redaktionsnetzwerk Deutschland – https://www.rnd.de). Based on these considerations alone, the challenged assembly ban is clearly unlawful.
Insofar as the respondent suggests a police emergency as grounds for prohibition in the contested order, the court already ruled yesterday with regard to two assemblies with significantly higher numbers of participants (6 L 562/21.KS – 6,000 participants and 6 L 573/21.KS – 17,500 participants) that the prerequisites for prohibiting an assembly based on a police emergency have not even been demonstrated. This applies all the more to the counter-demonstration at issue here, with 200 registered participants.
4. The court refrained from imposing conditions itself pursuant to Section 80 Paragraph 5 Sentence 4 of the Administrative Court Procedure Act (VwGO). This is primarily the responsibility of the administration. The court may only impose conditions itself in emergency situations. Given that the respondent was already instructed in the initial order to prepare for this, the court can refrain from doing so. Furthermore, it is significant that cooperative consultation with the applicant regarding all possible protective measures, in order to achieve a practical balance between the goal of infection control and the protection of life and limb on the one hand, and freedom of assembly on the other (cf. Federal Constitutional Court, Decision of April 17, 2020 – 1 BvQ 37/20, juris para. 27), has not yet taken place.
5. The decision on costs follows from Section 154 Paragraph 1 Sentence 1 of the Administrative Court Procedure Act (VwGO).
6. The determination of the value in dispute is based on Section 52 Paragraph 2, Section 53 Paragraph 2 No. 2 of the Court Costs Act (GKG) in conjunction with Item 45.4 of the Schedule of Values in Dispute for Administrative Court Proceedings. No further reduction of the value in dispute will be made in view of the anticipation of the main proceedings.
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