1. The protection offered by the Basic Law's Art. 8 does not extend to persons who have no intention of participating in an assembly, but who instead want to prevent it.
2. The adjudication of whether conduct found by the court reveals a participatory or a preventive intention can be reviewed by the Federal Constitutional Court in light of the Basic Law's Art. 8.
Order of the First Panel of 11 June 1991 1 BvR 772/90
in the proceedings concerning the Constitutional Complaint of Mr. B. . . agents:. . . against. . .DECISION:
The Constitutional Complaint is dismissed.
EXTRACT FROM GROUNDS:
The Constitutional Complaint is directed against a denial of entry to a public assembly issued by the police to the Complainant.
1. On 25 November 1987 a meeting of the "Republicans" party (Republikaner) occurred in a restaurant in Freiburg. Protection of the meeting was to be guaranteed by precautionary deployment of officers from the police's law enforcement service. At the time set for the meeting's start, 7:30 p.m., ten persons were in the assembly room. The number of participants increased to 24 by about 8 p.m. Eight persons - including the Complainant - stayed outside the assembly room. This group grew steadily and comprised 30 to 40 persons by about 8 p.m. Between 7:30 and 8 p.m. one of these persons distributed a flyer that demanded inter alia that "the appearance by that old Nazi disguised as a 'Republican', Schönhuber, ... be stopped." In addition, some individuals tried to enter the assembly room shouting such things as, "The Nazis should be thrown out!", "We've had this kind of thing once before in history - this here must be prevented!", "Let us in - the assembly would soon end!", and "When we get in there, the assembly is just about over!" They failed, however, because at the request of the assembly's director the police officers prevented entry to the assembly by members of the group just outside the room. The Complainant himself was prevented from entering the assembly room at about 8 p.m. by an oral police order. At the request of the assembly's director, the deployment's leader finally commanded the persons located outside the assembly room to leave and threatened to use direct force. Those who - like the Complainant - ignored this command were promptly forced back into the restaurant's entryway. At 8:07 p.m. this eviction was completed.
In his original complaint, the Complainant sought a declaration that the oral police order issued to him was illegal.
2. The Administrative Court dismissed this complaint, reasoning as follows. Neither under the rubric of rehabilitation nor of danger of repetition did the Complainant had a legitimate interest in the declaration he sought. The police measure did not discriminate against him. The notion that a sufficiently concrete possibility that a comparable set of facts would occur in the future could not be accepted.
The Superior Administrative Court dismissed the Complainant's appeal on points of fact and law, reasoning as follows. The request to continue the declaratory judgment action was in fact permissible, since the required interest in obtaining a declaration had to be recognized under the rubric of danger of repetition. But the complaint was unfounded. The police order that barred the Complainant's entry to the assembly had been legal. Its legal basis was the general police-authorization clause (§§1, 3 of Baden-Württemberg's Police Act). The police officers responsible in situations where danger is imminent, had possessed authority to intervene, because there had threatened to occur a disturbance that had as its aim prevention of the proper conduct of the public assembly. A threatened violation of the universally applicable duty not to cause such disturbances (§2(2) of the Assemblies Act), presented a danger to public security. Given the lack of a specific authorization to prevent external disturbances by non-participants who sought to prevent the proper conduct of a public assembly, the general police-authorization clause was applicable.
The police justifiably had assumed that the Complainant sought to prevent the proper conduct of the assembly. In the police's view, at the decisive moment of their intervention ("ex ante"), and applying the mandatory strict standard, all indications were that the Complainant did not want to participate in the assembly, but sought entry instead with the intention of disturbing it and thereby of preventing it. But one whose actions prior to an assembly allow the recognition that he intends to prevent it was not a participant in this assembly, but rather a potential disturber. He as a result had no right of entry, but could instead be kept out of the assembly by the police and told to leave the premises. Whether a different analysis would apply if the potential disturber himself were a participant in a (counter)demonstration did not need clarification in this case. The persons outside the assembly room had not formed an assembly, since, as the Complainant himself had stated, they had not come together for the purpose of common formation and expression of opinion.
The Federal Administrative Court rejected the subsequent appeal of the Superior Administrative Court's denial of leave to appeal, which the Complainant sought only on the grounds of fundamental importance in accordance with §132(2)(No.1) of the Administrative Procedure Code. It explained that this appeal's relief request was based on a set of facts different from that found by the court below, and thus did not raise a legal issue of significant import to be addressed and decided in an appeal on points of law.
The Complainant contends that the Basic Law's Articles 8(1) and 103(1) have been infringed. He has argued as follows.
The Administrative Court denied him due process of law and misperceived his basic right under the Basic Law's Art. 8(1) when it found that he lacked a sufficient interest in obtaining a declaratory judgment.
The Superior Administrative Court gleaned the requirements applicable to the police's prognosis of danger merely from general police law, and failed to take account of the special requirements that flow from Art. 8(1). In its view, the Complainant was excluded from Art. 8(1)'s protective scope. Such an understanding of the law, however, led already at the stage of the prognosis of danger to a failure to fulfill the heightened requirements mandated by the basic right's protection. But above all the Superior Administrative Court misperceived Art. 8(1)'s protective scope. The logical conclusion of its reasoning was that individuals' sharply worded expressions of contrary opinion, as well as demands that the authorities prohibit an assembly, would by themselves indicate a preventive intention on the part of a visitor who sought entry. Yet potential participants could be turned back only if they were armed or had appeared with an intention whose lack of peacefulness was unequivocally recognizable; such an intention meant an aim to engage in violent clashes at the assembly.
In addition, the Superior Administrative Court violated the Basic Law's Art. 103(1) by passing over essential facts set forth by the Complainant, by not addressing these in the oral proceedings, and by refusing to hear or take evidence as requested by the Complainant.
2. Baden-Württemberg's Minister of Justice and of Federal and European Affairs believes that the Constitutional Complaint is impermissible to the extent that it is directed against the Federal Administrative Court's 15 May 1990 decision. It did not satisfy the requirements of well-foundedness and substantiation that resulted from the Federal Constitutional Court Act's §92 in connection with §90(1). Moreover, the Constitutional Complaint was in any event unfounded.
1. The Constitutional Complaint is impermissible to the extent that the Complainant objects to the Administrative Court's decision, because to that extent an interest that requires legal protection is lacking. The Superior Administrative Court acknowledged that under the rubric of a danger of repetition the Complainant has an interest in obtaining the declaration sought, and that this interest is worthy of protection. It therefore viewed his underlying complaint as permissible. Hence he no longer has any grievance stemming from the Administrative Court's decision. The fact that the Administrative Court found no such interest, even under the rubric of rehabilitation, and that the Superior Administrative Court didn't address this, is irrelevant, because the Complainant obtained his goal of judicial review on the merits.
2. In other respects the Constitutional Complaint is permissible. The objection that the Superior Administrative Court infringed the Complainant's right to a legal hearing, however, is hindered by the principle of the Constitutional Complaint's subsidiarity, which flows from the Federal Constitutional Court Act's §90(2). This requires that the Complainant make use of all procedural opportunities that may be available, above and beyond the mandate of exhaustion of remedies in its narrowest sense, in order to effect correction of the alleged constitutional infringement (cf. BVerfGE 73, 322 ). This includes asserting the alleged unconstitutionality in the next available proceedings directly following the harm. Here it would have been necessary to have asserted the infringement of the Basic Law's Art. 103(1) in accordance with the Administrative Procedure Code's §132(3), second sentence as a procedural defect already in the grievance against the denial of leave to appeal. The Complainant neglected to do so.
Insofar as the Constitutional Complaint is permissible, it is unsuccessful on the merits. The Complainant's basic right under the Basic Law's Art. 8 has not been infringed. The contested decisions do not encroach upon this basic right's protective scope.
1. The Basic Law's Art. 8 guarantees to all Germans the right to assemble peaceably and unarmed. This basic right's protection is not limited solely to participation in an existing assembly, but instead also encompasses the entire process of assembling. Included in particular is the entry to an assembly that is imminent or in the process of forming. Otherwise there would be a danger that, even before this basic right could be exercised, freedom of assembly would be made hollow by state measures (cf. BVerfGE 69, 315 ). The basic right of freedom of assembly protects from state encroachments not only those participants who approve of the assembly's goals or the opinions presented there, but also those who are critical of or opposed to them and who wish to express this at the assembly.
The protection afforded by the Basic Law's Art. 8 ends, however, where at issue is not participation - even critical participation - in the assembly, but prevention of the assembly. The right to assemble peaceably and unarmed is guaranteed by the Basic Law in the interest of a communal formation and proclamation of opinion. The right is intended to make possible communication, planned or spontaneous and unhindered by the state, among those present, as well as the demonstrative declaration of the results of such communication. The basic right protects every German who wants to participate in this. Of course participation does not require support of the assembly's goals, but also allows opposition and protest. Yet it does demand a readiness to endure the assembly as it is and to pursue dissident goals solely with means of communication. Whoever instead seeks out an assembly with the intent of preventing it through his actions cannot avail himself of the basic right under the Basic Law's Art. 8. This is equally true for him when he appears jointly with others. That several people cooperate does not grant them the benefit of freedom of assembly when the purpose of their cooperation is merely the stoppage of an assembly.
A state action that denies a person entry to an assembly because he wants not to participate in it, but rather to disperse it, does not encroach upon Art. 8's protective scope. For this reason, one also cannot glean from the basic right of assembly any standards to govern those state actions that implement the prohibition against disturbing assemblies with an intention of preventing them, a prohibition that follows from the Assembly Act's §2(2). Rather, to this extent one must rely on the protection provided by the other liberty rights and by the basic rights' prohibition of arbitrary action.
2. The administrative courts did not violate the constitution by concluding that the police had sufficient grounds for their belief that the Complainant wanted not to participate in the assembly, but rather to prevent it through concerted action with others.
a) The factual findings upon which this conclusion rests, and their legal evaluation under the standard provided by the Assembly Act and the Police Act, are as a rule matters for the courts, and beyond the Federal Constitutional Court's control. This Court, however, must review whether in the interpretation and application of nonconstitutional law the basic rights' influence has been sufficiently heeded (cf. BVerfGE 18, 85 ). In the present case this requires an intensified control of whether the special courts' factual findings can support the conclusion drawn therefrom, namely that the Complainant wanted to disperse the assembly. Since the adjudication of whether conduct found by the court reveals a participatory or a preventive intention simultaneously decides whether it falls within freedom of assembly's protective scope or not, the basic right's protection is guaranteed only when this categorization can be reviewed by the Federal Constitutional Court in light of the basic right. This has been acknowledged for years for evaluations that determine the breadth of protection of the Basic Law's Art. 5 (cf. most recently BverfGE 81, 278 [289f.]; 82, 43 [50ff.]; 82, 272 [280f.]), and it must apply accordingly for Art. 8.
b) The result of the extended review, however, is not that the Constitutional Complaint's conduct was improperly denied the protection afforded by Art. 8.
The Complainant has not sufficiently substantiated, nor is a foundation otherwise recognizable for, the contentions that the Superior Administrative Court wrongly established - or could have inaccurately reproduced in the grounds of its opinion - the content of (1) the shouts uttered outside the assembly room; (2) the flyer distributed there; and (3) the Complainant's statements to the police deployment's leader.
The pronouncements found by the court to have occurred went beyond mere criticism, however sharply and pointedly articulated, of the assembly already underway. Rather, in them was also expressed an intent that recognisably went beyond making such a criticism to stopping the meeting via disturbing intrusions from outside. The pronouncements of opinion and of will by those persons who were outside the assembly room, which the contested decisions quoted, were particularly suited to excluding the conclusion that they could have been interested in an argumentative confrontation with the assembly participants. It therefore is not objectionable either in view of constitutional or other law that the Superior Administrative Court, on the basis of its findings, arrived at the result that the police could have concluded from the conduct of the pertinent set of persons that their sole intention was to disturb the assembly with the aim of preventing it.
Of course the Complainant objects in this regard that the shouts which the police and the Superior Administrative Court viewed as consequential were, without exception, uttered only after the police already had blocked the entry to the assembly room; therefore, he argues, the police's prohibition of entry could not have been justified by these shouts. This objection, however, does not affect the oral prohibitive order that had just previously been issued against the Complainant, and that was the exclusive object of the underlying action. With this order, the Complainant was prevented from attending the assembly at about 8 p.m. As is evident from the set of facts found in the contested appellate judgment, to which the Complainant has not objected to the extent that these facts are concerned, by that time the statements at issue already had been uttered. In any event, the prohibitive order that affects the Complainant, and that he alone contests, was issued only following these shouts.
For the review of the contested decisions, therefore, one must assume that the Complainant's actions did not lie within the protective scope of the Basic Law's Art. 8(1). Hence they cannot have violated this basic right.
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