DECISION
In the administrative dispute proceedings
of the xxx,
applicant,
authorized:
Attorney Sven Adam,
Lange Geismarstrasse 55, 37073 Göttingen,
against
the city of Kassel ,
represented by the mayor, town hall, 34117 Kassel,
respondent,
because of the right of assembly
the Kassel Administrative Court – 6th Chamber – has carried out
Presiding judge at VG xxx,
judge at VG xxx,
judge xxx
decided on March 18, 2021:
- The suspensive effect of the objection of March 18, 2021 against the order of March 16, 2021 is restored.
- The respondent must 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 March 18, 2021 against the respondent's decision of March 16, 2021 (ref.: 3222-Vers 86-21) is restored,
is permissible and justified.
In accordance with Section 5 Paragraph 3 Sentence 1 and 2 VwGO, the chamber decides on the composition of its professional judges without the participation of the volunteer judges.
According to Section 80 Paragraph 5 Sentence 1 VwGO, the court in the main case can, upon request, in cases in which immediate enforcement has been specifically ordered by the authority in the public interest or in the overriding interest of one of the parties involved (Section 80 Paragraph 2 Sentence 1 No. 4 VwGO), restore the suspensive effect in whole or in part. As part of the court decision, the public interest in the immediate execution of the contested administrative act must be weighed up against the applicant's interest in suspensive action. What matters is the likelihood of success of the appeal lodged in the main matter. According to this, the private interest prevails if the administrative act is obviously illegal within the scope of the summary examination required under Section 80 (5) VwGO, since there can be no public interest in the execution of an illegal administrative act. Conversely, the public interest prevails if the administrative act is obviously lawful after a summary examination and there is a particular interest in enforcement. If the prospects of success in the main case are open, the court must carry out an independent weighing of interests. The intensity of the court's examination must be tightened if the intensity of intervention is high due to the seriousness and irreparable nature of the disadvantage threatened by the applicant. The more serious the burden imposed on the individual and the more the measure has an unchangeable effect, the less the individual's right to legal protection may be delayed (cf. BVerfG, decision of January 29, 2020 - 2 BvR 690/19, juris Rn. 16, st. Rsp.).
The applicant's suspensory interest then prevails. The ban on a meeting ordered by the respondent (No. 1 of the decision) and numbers 2 and 3 of the decision based on it prove to be obviously illegal.
When applying Section 15 of the VersG, the respondent clearly fails to recognize the constitutional requirements of freedom of assembly resulting from Article 8 of the Basic Law, which are absolutely constitutive of a free, democratic state order.
1. The Chamber initially assumes that the requirements of infection protection law addressed to the health authorities, namely Section 28 and in particular Section 28a Paragraph 1 No. 10, Paragraph 2 Sentence 1 No. 1 IfSG, do not have a blocking effect compared to the provisions of assembly law (as here: BayVGH, decision of February 21, 2021 - 10 CS 21.526, juris Rn. 3, 14; VG Munich, decision of February 20, 2021 - M 13 S 21.900, juris Rn. 23). This applies in any case if the assembly authority - as here - also provides its order with assembly-specific reasons, such as the risk of clashes with counter-demonstrations (see below).
2. According to Section 15 Paragraph 1 VersG, the competent authority can prohibit a meeting or make it subject to certain conditions if, according to the circumstances apparent at the time the order is issued, public safety or order is in immediate danger when the meeting or procession is held .
a) 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. A threat to public safety can also arise from other serious threats to high-value protected goods such as life and limb (Art. 2 Para. 2 Sentence 1 GG) 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 disease progression.
b) When applying Section 15 Paragraph 1 VersG, the special importance of the constitutionally enshrined freedom of assembly in Article 8 Paragraph 1 GG must always be taken into account. This protects the freedom to come together locally with other people for the purpose of a communal discussion or demonstration aimed at participating in the formation of public opinion. As the freedom to collectively express one's opinion, freedom of assembly is fundamental to a free, democratic state order. The fundamental right to freedom of assembly also guarantees the right to self-determination over the place, time, type and content of the event. In particular, citizens should be able to decide for themselves where they can most effectively assert their concerns (cf. BVerfG, judgment of February 22, 2011 - 1 BvR 699/06, juris para. 63 f.). However, freedom of assembly is not guaranteed unconditionally. Rather, open-air gatherings can be restricted by law - such as here Section 15 VersG - or on the basis of a law in accordance with Article 8 Paragraph 2 of the Basic Law. Such restrictions must be interpreted in the light of the fundamental meaning of Article 8 Paragraph 1 GG. Interventions in the freedom of assembly are only permissible to protect other equally important legal interests in strict compliance with proportionality (cf. BVerfG, decision of August 30, 2020 - 1 BvQ 94/20, juris Rn. 14, established case law). In particular, the fundamental right of third parties to life and physical integrity in accordance with Article 2 Paragraph 2 Sentence 1 of the Basic Law is one of those legal interests which, while strictly adhering to the principle of proportionality, can justify measures restricting gatherings, which in principle also include bans on gatherings (cf. BVerfG, Decision of August 30, 2020 – 1 BvQ 94/20, juris para. 16). According to the principle of proportionality, a ban on gatherings is ruled out as long as milder means and methods of managing conflicts of legal interests, such as requirements or restrictions under the law on gatherings and the increased use of police controls, have not been exhausted or eliminated with viable justification (cf. BayVGH, decision of September 11, 2020 – 10 CS 20.2063, juris para. 9 with reference; BVerfG, decision of September 4, 2009 – 1 BvR 2147/09, juris para. 17.).
c) With regard to the corona pandemic, requirements with the obligation to maintain certain minimum distances, but also restrictions on the number of participants, come into consideration in order to prevent the necessary minimum distances from being fallen short of, which can occur due to the dynamics in a large crowd or the layout and Character of a meeting can occur in individual cases even if, based on the expected number of participants, a sufficiently large meeting area is available in purely mathematical terms. In addition, ordering the meeting participants to wear mouth and nose coverings and holding it as a fixed rally instead of as an elevator or relocating it to an alternative location that is preferable from an infection protection point of view generally represents a milder means (cf. BVerfG, decision of August 30, 2020 – 1 BvQ 94/20, juris para. 16).
d) Interventions in Article 8 Paragraph 1 of the Basic Law only come into consideration from the outset if public safety and thus, for example, the legal interest of life and physical integrity are in immediate danger, i.e. if the danger forecast to be made by the assembly authority has concrete and comprehensible factual evidence based on which, when judiciously assessed, there is a sufficient probability that the danger will occur; Mere suspicions and assumptions are not sufficient in themselves (BVerfG, decision of May 12, 2010 - 1 BvR 2636/04, juris Rn. 17; ThürOVG, decision of February 26, 2021 - 3 EO 134/21, juris Rn .6). Events in connection with previous assemblies can be used as indications for the danger forecast, as long as they have similarities to the planned assembly in terms of the motto, the location, the date and the group of participants and organizers (BVerfG, 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 presenting and proving the existence of measures restricting freedom lies with the authority (BVerfG, decision of September 4, 2009 - 1 BvR 2147/ 09, juris para. 13).
3. Based on these standards, the ban imposed by the respondent is obviously unlawful.
a) In principle, dangers that arise from an increased risk of infection are also suitable for justifying a ban on gatherings. Given the paramount constitutional importance of freedom of assembly, this can only be permissible in extreme situations. The respondent did not identify this in the contested order and does not exist.
The primary goals of the restrictions resulting from the corona pandemic are to prevent the healthcare 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 health system being overwhelmed. The number of reported COVID-19 cases treated in intensive care throughout Germany has fallen from its peak of 5,745 on January 3, 2021 to 2,843 on March 16, 2021, and has therefore more than halved. In Hesse, the peak was on January 5th, 2021 with 523 and is now on March 16th, 2021 at 274, which is almost halved (see https://www.intensivregister.de/#/aktuelle-lage/zeitserien ). If the respondent counters that the current number of intensive care cases in Hesse significantly exceeds the maximum value during the first wave, this is objectively true. However, the respondent does not sufficiently take into account the fact that in January 2021 - i.e. in the second wave - the value was almost twice as high without the health system being overwhelmed. In addition, the respondent does not sufficiently take into account the fact that by vaccinating the older population groups, a particularly vulnerable part of the population could be protected. Finally, in this context, the reference to the currently free intensive care capacities (15.19%) is not convincing. The respondent does not take into account that these capacities are adapted to the respective needs, as can be seen from the twice as high number of cases treated in intensive care in January.
Against this background, the court is convinced that there is no acute risk of the health system being overwhelmed. Therefore, no ban on gatherings can be justified with this argument.
It should also be noted that preventing the health system from being overwhelmed is the central concern of all Corona regulations. All other justification approaches, in particular the determination of incidence values, are a means to an end.
The court took into account the increasing number of infections. The current incidence values in Kassel and nationwide are still below the value of 100. The Prime Minister's Conference on March 3, 2021 came to the conclusion, based on the current risk of infection, that schools and daycare centers are allowed to reopen and that further relaxations are being sought. Only from an incidence value of 100 (in Brandenburg only from 200) should the corona regulations be tightened again, as an emergency brake, so to speak. This value is not reached. Nationwide, the incidence 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 value has risen to 100 today ( https://www.hessenschau.de ). The reference to the incidence value of 100 set in the Prime Minister's Conference should not be linked to the statement that if it were exceeded, all gatherings would be excluded. The chamber simply wanted to clarify what risk assessment was made by the Prime Minister's Conference with regard to the incidence value. The view there was that up to an incidence value of 100, children could be taught face-to-face lessons in schools, i.e. in closed rooms. However, if this is possible, it must be possible to hold a meeting in the open air, where the risk of infection is significantly lower, given the outstanding importance of freedom of assembly for the free, democratic state order. Therefore, the respondent's reference to the mutations - which are potentially more contagious and associated with a higher risk of mortality - is not suitable to justify a different decision. In this context, it should also be noted that the significant increase in the incidence value will be at least partly due to the fact that people who have been included in the statistics as part of the rapid and self-tests that have only recently become available.
The massive decline in the number of deaths is remarkable. On December 29, 2020, 1,244 people died in one day as a result of their illness (see https://de.statista.com ). On March 17, 2021, the RKI reported 249 deaths in 24 hours (see https://experience.arcgis.com ). This represents a massive decline and shows that official measures such as vaccinations - especially those of vulnerable people - are starting to show success. As the number of deaths declines, the justification requirements for a ban on gatherings increase. The respondent's general statements obviously do not meet these requirements.
Insofar as the respondent refers to the study by Lange and Monscheuer (Spreading the Disease: Protest in Times of Pandemics, http://ftp.zew.de ), it should first be pointed out that so far it is only a discussion paper , which has not yet gone through the usual peer review process ( https://www.hu-berlin.de ). It is also not a medical/epidemiological study; rather, the authors are economists. Furthermore, the study would not justify a total ban on gatherings even if the results were taken into account as objectively accurate. As already shown above, a risk of infection can only justify a ban on gatherings in extreme situations. This is not described by the study. Furthermore, it is important to note – also at this point – that other measures (keeping your distance/wearing a mask, etc.) can reduce the risk of infection to such an extent that a total ban proves to be disproportionate.
The court also took into account the fact that the ban on gatherings here clearly also affects those who are not responsible. The measures are also aimed at people who neither objectively nor apparently pose a danger or have a reasonable suspicion of causing a danger in the sense of spreading the corona virus. However, there are no concerns about the fundamental permissibility of such restrictions because otherwise the spread of undetected infectious diseases in general and the coronavirus in particular cannot be successfully countered. The fact that this is generally permissible is made clear by Section 9 in conjunction with Section 3 Paragraph 1 Sentence 3 HSOG.
b) The ban on the meeting is also obviously illegal because milder measures are possible or the respondent has not excluded them with a viable justification.
As shown above, with a view to the corona pandemic, milder measures that could be considered include wearing mouth and nose coverings or maintaining minimum distances as well as stationary rallies. One can still understand the respondent's considerations with regard to the eleven registered meetings that were critical of the corona measures - even though the respondent's reasons do not support a ban due to a lack of sufficient factual basis (resolutions of yesterday 6 L 562/21.KS and 6 L 573 /21.KS) - because there have been several cases in the past in which meeting participants did not adhere to the relevant requirements in comparable cases, it has not been shown in the slightest that there is even a suspicion of this for the counter-demonstration in question here , the participants would not adhere to the relevant requirements. Insofar as the respondent fears that there could be a “mixing up” of the 17 registered meetings so far, it does not explain why the participants in the counter-demonstration at issue here should not adhere to any requirements. It is only claimed that there are not enough police forces available to prevent the different demonstrations from clashing. The press, on the other hand, can tell that the police are “well prepared” (a police spokesman told the editorial network Germany – https://www.rnd.de ). Based on these considerations alone, the contested ban on gatherings turns out to be obviously unlawful.
To the extent that the respondent indicates a police emergency as a reason for the ban in the contested order, the court already decided yesterday regarding two meetings 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 requirements for a ban on gatherings due to a police emergency are not even remotely explained. This applies even more to the counter-demonstration at issue here with 200 registered participants.
4. Apart from this, the court must itself impose conditions in accordance with Section 80 Paragraph 5 Sentence 4 VwGO. This is primarily the responsibility of the administration. The court itself can only impose conditions in time-related emergency situations. In view of the fact that the respondent was already instructed to prepare this in the initial order, the court can waive this. It is also important that cooperative coordination with the applicant on all protective measures under consideration in order to enable the creation of practical concordance between the goal of infection protection and the protection of life and limb on the one hand and freedom of assembly on the other ( see BVerfG, decision of April 17, 2020 - 1 BvQ 37/20, juris para. 27), which has not yet taken place.
5. The cost decision follows from Section 154 Paragraph 1 Sentence 1 VwGO.
6. The determination of the amount in dispute is based on Section 52 Paragraph 2, Section 53 Paragraph 2 No. 2 GKG in conjunction with Section 45.4 of the catalog of the value in dispute for administrative jurisdiction. There will be no further reduction in the amount in dispute in view of the anticipation of the main matter.
Instructions on legal remedies follow.
