VERDICT
103 Cs 27 Js 7311/20
In the criminal case
against
xxx,
born on: xxx in xxx,
residing at xxx
, single, nationality: German,
Defense counsel:
Attorney Sven Adam, Lange Geismarstr. 55, 37073 Göttingen
for violating the Lower Saxony Assembly Act
The Hildesheim District Court — Criminal Judge — ruled in the public session of February 10, 2021 and February 24, 2021, in which the following participated:
Judge at the District Court xxx
as criminal judge
AA'in xxx and StA xxx
as officials of the public prosecutor's office
Lawyer Sven Adam
as defense counsel
Senior Court Clerk xxx
as certifying officer of the registry
recognized as rightful:
The defendant is acquitted.
The costs of the proceedings and the necessary expenses of the defendant shall be borne by the state treasury.
REASONS
I.
The defendant was born on xxx and is a German national.
The defendant has no prior criminal record.
II.
1.
The defendant was charged with the following offenses by penal order of the Hildesheim District Court dated October 22, 2020:
"On May 18, 2020, at approximately 12:20 p.m., the defendant initially participated in a registered and approved demonstration of approximately 1,200 people, which, under the motto "Hearts Instead of Hate," was intended as a counter-demonstration to the also approved and almost simultaneously taking place march and rally of the party "Die Rechte" (The Right) in the city of Hildesheim in connection with the European elections. At approximately 12:30 p.m., the defendant, along with about 200 other like-minded, some masked, demonstrators, began to sit down on Martin-Luther-Straße near the street "An der Johanniskirche" (At St. John's Church). The defendant did not comply with the organizer's requests to continue the march. The street was thus completely blocked at this point, which was part of the intended route of the subsequent march." Passing this section of the route was impossible at this time and at a later time for the assembly that followed at around 2:30 pm, partly due to the car with a loudspeaker that was being transported.
Despite repeated loudspeaker announcements by the police command on site, the defendant and the other blockaders were unwilling to clear the route for the other assembly, so these 16 participants and their vehicle were unable to continue their route as determined by the city of Hildesheim, but instead remained at a distance of approximately 250 meters from the blockade from 3:10 p.m. to 4:50 p.m., in order to involuntarily break off and end the assembly there.
After several attempts at mediation and loudspeaker announcements to promptly clear the roadway had failed, the police broke up the sit-in blockade, which was classified as a new assembly, announced this via megaphone, threatened to prosecute a criminal offense pursuant to Section 20 Paragraph 1 Number 2 of the Lower Saxony Assembly Act, and began clearing the participants of the (preventive sit-in) blockade at approximately 3:40 p.m.
By participating in this sit-in, the defendant obstructed and ultimately significantly thwarted the orderly conduct of another authorized assembly. Knowing the situation on site, and at the latest after the repeated, clear, and properly worded loudspeaker announcements from the police command, the defendant was aware that his actions significantly disrupted another, legal assembly, and in particular, prevented its participants from exercising their constitutional right to demonstrate. Furthermore, by aiming to prevent the assembly of the party "Die Rechte" (The Right), which he did not support, or to manipulate it in such a way that it could not achieve the desired effect, the defendant also acted with the intent to obstruct the assembly.
Based on the aforementioned information, it would have been possible and reasonable for the defendant to follow the example of other sit-in protesters and simultaneously move away from this group of people, thus limiting the disruption to others in an acceptable manner
The defendant was therefore accused of having committed an offense against the Lower Saxony Assembly Act pursuant to Sections 4, 20 Paragraph 1 No. 2 NVersG.
2.
In contrast, the court made the following findings:
After the group of approximately 200 people around the defendant (hereinafter referred to as the counter-demonstration) had sat down on Martin-Luther-Straße at around 12:31 p.m., numerous officers from the police unit deployed for security that day positioned themselves on the left-hand sidewalk (in the direction of the march). A police VW Transporter was parked on the right-hand sidewalk. At 1:12 p.m., the police issued a restrictive order requiring the demonstrators to keep the sidewalk clear as an emergency access route. This order was complied with; at no point did any demonstrators sit down there. Thus, between the start of the counter-demonstration and its dispersal by the police at around 3:10 p.m., at least the right-hand sidewalk of Martin-Luther-Straße (in the direction of the march) was at all times safe for individuals and small groups, and at least passable for a car.
Nevertheless, the police commander on site decided to disperse the counter-demonstration, which had initially been declared a spontaneous demonstration, by speaking to and escorting away the individual participants. The police did not attempt to allow the rally organized by the party "Die Rechte" (hereinafter: the rally) and its accompanying vehicle (a VW Passat) to pass the counter-demonstration.
The counter-demonstration, comprising 200 people, was never directly asked by the police, via loudspeaker announcements, to clear Martin-Luther-Straße for the demonstration that had prompted the protest. Instead, the demonstrators were merely offered the option to leave at any time.
III.
1.
The findings regarding the defendant's person are based on the extract from the Federal Central Register dated January 8, 2021, which was read out during the main hearing.
2.
The findings under II. 2. are based on the evidence presented, in particular the examination of witnesses xxx, xxx, xxx, and the inspection of the video recordings from the day of the crime.
Witness xxx testified in the main hearing that he was deployed on-site that day as the section commander and specifically responsible for keeping the march route clear. After the counter-demonstration had settled in the street, he, the witness, had actually intended to have the police announce over loudspeakers that they should clear the street. However, due to an internal police oversight, this announcement was not formulated with sufficient specificity, which is why the demonstrators were only repeatedly offered the option of leaving the assembly at any time and were warned that they would be committing a crime if they did not accept this offer. After some time, he finally learned that the demonstration in question insisted on using its authorized route and did not want to use an alternative route that had been offered to them. However, due to the spatial constraints, it was not desirable for the demonstration in question to pass by the counter-demonstration. He decided against this because he wanted to avoid a situation in which the two groups – in the event of an escalation – would have been difficult to separate. The witness denied the court's question as to whether any circumstances had come to light beforehand that would have made a meeting between the two groups impossible (threats or similar). Upon further questioning, the witness replied that the 16-17 people of the organizing demonstration could have been escorted past the location (referring to the site of the counter-demonstration), but not the vehicle brought by the organizing demonstration. When confronted with the fact that a police VW Transporter appeared to be parked on the right-hand sidewalk (in the direction of the march) as seen in the video of the event, the witness replied that it did not belong to his unit and he did not know whether the vehicle had been parked there beforehand. He added that he had not measured whether a vehicle could be driven over the sidewalk.
Witness xxx, who stated that he was responsible for the entire police operation as incident commander each day, testified that he received continuous updates on the situation on the ground from his section commanders on the street, but was himself at the police station and therefore not present at the scene. He admitted to considering the possibility of allowing the group that triggered the operation to pass by the seated demonstration, but after several discussions with section commander xxx, he decided against it because the latter considered it practically impossible due to the spatial constraints of the location. Witness xxx stated that he trusted this assessment and consequently decided against attempting such a move. He was aware that the demonstration that triggered the operation consisted of only 16-17 people and a car.
Finally, witness xxx, who was also deployed on-site as a duty officer on the day of the demonstrations, testified, in response to the court's question as to why no attempt had been made to allow the demonstrators to pass by, that this had "not been desired." Specifically asked how he personally assessed the situation on site, the witness replied that he considered it quite possible to allow the demonstrators to pass by with the assistance of a police cordon for safety reasons.
The review of the video recordings of the events of that day, conducted as part of the evidentiary hearing, ultimately revealed that, contrary to the statements of witnesses xxx and xxx, it would have been objectively possible for a small group of people—such as the group that initiated the demonstration—and a car to pass the counter-demonstration, or at least it did not appear obviously impossible. The video recordings show that the counter-demonstration had indeed settled down in the middle of the road, surrounding their own loudspeaker truck. However, both to the left and right of the center line, a portion of the road itself, as well as the adjacent sidewalk, was clear of demonstrators. On the sidewalk to the right (in the direction of the march), numerous people were standing, who appeared to be observers of the counter-demonstration. The aforementioned police van was also parked there. On the sidewalk to the left (in the direction of the march), only riot police officers were present.
It was not observed that the counter-demonstration completely blocked the width of the road and the adjacent sidewalks. Furthermore, when questioned and shown the video footage, witness xxx testified that the size of the counter-demonstration group visible in the video recording corresponded to the situation when the police decided to clear the area.
IV.
The defendant's conduct does not fulfill the elements of the offense under Section 20 Paragraph 1 Number 2 of the Lower Saxony Assembly Act (NVersG). According to this provision, anyone who, with the intention of thwarting a lawful assembly, commits or threatens acts of violence or causes a significant disruption of order at the assembly is punishable by imprisonment for up to two years or by a fine. According to the explanatory memorandum to the legislative initiative (Lower Saxony State Parliament – 16th legislative period, printed document 16/2075, on Section 7), significant disruptions are those that are objectively capable of thwarting the assembly. The disruptive behavior must therefore call into question the orderly external course of the original assembly, and the impairment of the disruptor, in both form and content, must be so severe that only the removal of the disruption is a viable alternative to interrupting or dissolving the assembly. Consequently, the sole focus is on the objective nature of the disruption and thus on the question of whether it was so significant that the continuation of the demonstration that prompted the action was effectively precluded.
The court was not convinced of this after hearing the evidence, especially since, apart from the police offering an alternative route, no attempt was made to allow both assemblies to take place simultaneously. In the court's opinion, it would have been possible, firstly, to briefly withdraw the numerous riot police officers standing on the sidewalk to the left of the march route, and secondly, to allow the counter-assembly to pass the main assembly on that sidewalk. Furthermore, the court remained doubtful as to why, based on objective circumstances, it should not have been possible to use the right-hand sidewalk for this purpose, especially since it was apparently only occupied by (uninvolved) observers of the counter-assembly, and a VW Bulli, which was wider than the VW Passat used by the main assembly, could also fit there.
Consequently, the court was unable to determine that the counter-demonstration led by the defendant effectively prevented the original assembly, consisting of only 16-17 people and their cars, from passing by. The court acknowledges that the decision of the officer in charge and his section commanders to separate the two groups early on, ensuring they never even came within sight of each other, appears understandable and possibly correct from a purely tactical and public safety perspective. However, the decisive factor in determining the defendant's criminal liability is solely whether the disruption of the orderly conduct of the original assembly caused by his actions was so significant that it crossed the line into criminal liability. For the reasons stated above, this question is not answered.
V.
The decision on costs is based on Section 467 Paragraph 1 of the Code of Criminal Procedure.
