Sit-in blockade Freiburg
The participant of a peaceful sit-in blockade in Freiburg is being prosecuted. We saw the fundamental right to freedom of assembly violated.
The defendant was convicted anyway. A constitutional complaint against the conviction is still pending. For GFF, the case is closed because the courts have recognized the fundamental importance of freedom of assembly. Criminal prosecution of sit-in blockades is therefore only permissible under strict conditions.
In Freiburg's city center, the fundamentalist St. Pius X Fraternity gathers annually for a march on the theme "Protection of Unborn Life." This is often accompanied by counter-protests. In 2015, various groups and individuals again called for protests to show their distaste for the positions of the Pius X Brotherhood. One of the aims of the protests was to use a sit-in blockade to generate images that could be picked up by the media and thus enter the public discourse.
Sit-in blockade protected by freedom of assembly
On April 10, 2015, peaceful protesters therefore sat down on Kaiser-Joseph-Strasse, which the procession was to pass. They held up signs and banners with messages opposing the positions of the Pius Fraternity. After the Pius Fraternity procession started moving at around 6 p.m., the protesters were informed by police at around 6:20 p.m. that the sit-in would be dispersed. This took barely fifteen minutes, so that the procession could pass the street at about 18:35.
The District Court of Freiburg sentenced the defendant for gross disturbance of a meeting according to § 21 of the Assembly Act. The appeal against this decision was unsuccessful. However, unlike the Freiburg Local Court had ruled in a parallel case in 2016, the courts found that the sit-in was protected by the freedom of assembly. It was not a so-called "prevention blockade", which is denied the protection of freedom of assembly. A purely preventive blockade is aimed exclusively at disrupting another assembly. However, if a sit-in blockade simultaneously pursues an objective aimed at participating in the formation of public opinion, it falls under the scope of protection of the freedom of assembly. The so-called "immediate objective" of the sit-in may have been to stop the execution of the Pius Fraternity's procession. However, in any case, its "distant objective" was to participate in the formation of public opinion, namely the expression of criticism of the views of the Pius brothers, including the advocacy of women's right to self-determination.
At least, however, the court recognized that the defendant's freedom of assembly must be taken into account in interpreting the offense. This is what we wanted to achieve and on this basis we will now go to the next instance.
"Gross disturbance" only in the case of particularly intensive interference with the assembly
It follows from the freedom of assembly that a sit-in blockade can only be punishable in the case of particularly intense disturbances. According to § 21 of the Assembly Act, only a "gross" disturbance is punishable. A "simple" disturbance of the assembly relevant under police law, which would sometimes have legitimized a dissolution of the sit-in under the right of assembly, is not sufficient for this. For criminal law is only used as ultima ratio of the protection of legal interests and therefore requires an increased intensity of the impairment (BVerfGE 96, 10 <25>; 120, 224 <240>). The Local Court and the Higher Regional Court considered such an intensity to be given in the case of the blockade, which lasted about 30 minutes. Thus, the courts unfortunately set too low requirements for criminal liability.
The statements on the constitutional principle of definiteness are also unsatisfactory. According to the case law of the Federal Constitutional Court, it must be foreseeable for everyone which action is threatened with which punishment, so that he can direct his behavior accordingly. For the participant in a sit-in, however, it is not recognizable at what point his protected exercise of fundamental rights crosses the line into punishability. For this to be the case, there would have to be clear rules in the law for dealing with counter-demonstrations protected by Article 8 (1) of the Basic Law, as is the case, for example, under the. It is still doubtful whether Section 21 of the Assembly Act satisfies these requirements.
Fortunately, however, some (state) legislators are beginning to rethink this issue. For example, Section 24 (1) sentence 3 of the Schleswig-Holstein Freedom of Assembly Act requires that a prior order be ignored in order to be punishable. The new Berlin Freedom of Assembly Act is also to contain a corresponding restriction on criminal liability.
The file numbers of the proceedings are 24 Cs 281 Js 40842/17 and 2 Rv 35 Ss 981/19.
