All across Germany people demonstrate against corona restrictions and mandates. This is the emergence of a new form of protest and they call it the ‘street walks’ (‘Spaziergänge’; the singular is ‘Spaziergang’). Their main characteristic is that they are a widely decentralized expression of anger that hinges on no established institution. And they are a reflection of our times.
Old institutions have failed the public and their leaders are mentally transfixed on only consolidating the interests of society’s pseudo-representatives while ignoring the ordinary people they are supposed to represent. The street walks represent the street walkers.
After years of defaming one protest organizer after the other, independent of their cause, as “right-wing extremist” (or whatever proxy-word for “Nazi” they use) people are now taking to the streets either without registration or with registrations of independent individuals.
The threshold to register a protest in Germany is actually lower than most people think. You only have to announce your protest to the appropriate authority (which differs by location) until two days before the fact (§14 (1) VersG). You don’t have to wait for a permit (Art. 8 (1) GG) and, as I will explain later, the authority can only ban you in very few contexts. All it takes is to drop a letter into the letter box of the police station or into that of whatever the appropriate local authority is. Alternatively, one can send either a fax or an email, or make a phone call. The registration must only include your name, the cause, the time and date, the crowd size you personally take responsibility for (can be yourself, i.e. one ), materials (loudspeakers, banners …) and the venue. In case you take responsibility for a larger crowd, you may also name helpers that make sure people follow general laws. If you only register your family and a couple of friends, even that is not necessary. It might be strategically conducive for more and more people to formally register protests even if a registration is made by almost every participant. It gives less legal ground for the authorities to counter your ambition.
The actual reason why people might hesitate to register their protests might be the justified mistrust of our authorities. It makes people uncomfortable to operate politically. Out of fear more and more people would prefer to be anonymous entirely, cover their faces and hide their traces online. However, protests are registered locally and there are boatloads of rules in place that prohibit an aggregation of data across government bodies.
Which authority can ban protests differs locally and is referred to in the law as ‘the responsible office’ (die zuständige Behörde). The grounds on which they may do so in advance differ from those on which the police may disperse an existing one. A ban can be justified by a threat to the public ‘safety and order’ (§15 (1) VersG), a venue being a memorial for Nazi victims ( §15 (2) VersG ) or an absence of registration ( §15 (3) VersG ). The police can, of course, also end a protest when it gets violent ( §13 (1) 2 VersG ). Additionally, they can do that when people with weapons are not removed from the crowd ( §13 (1) 3 VersG ), when the leader/organiser (usually the person who registered the protest) tries to abolish the free democratic order or belongs to a banned political party or outlawed group. Outside of the leader/organiser provision, the event can only be ended when other police interventions, including temporary pauses, have failed (§13 (1) S2 VersG). The law does not give the right to end an unregistered protest to the police. Instead, the ‘responsible office’ comes to ban an ongoing process (it’s §15 (3) VersG) and the police acts on that order.
Freedom of assembly is a basic human right without which a people cannot govern itself. In German law there are five conditions the government must meet in order to curtail human rights. They are colloquially called the ‘limits -limits’ (German: Schranken-Schranken) because they limit the government in its power to limit the exercise of a citizen’s rights. The first is the ‘law requirement’ (Bestimmtheitsgrundsatz). Any restrictions of a human right must explicitly be based on a law passed by parliament. A second limits-limit demands that an order to that effect must transparently quote said laws (citation obligation, Zitiergebot). Many newspaper articles quote a fear of the authorities that corona infection regulations are violated. This is supposedly one of the motivation for the protest bans. But the assembly law does not allow the government to ban assemblies based on diseases. The best match in the law would be §13 (1) 4 VersG which allows a ban based on criminal behavior or misdemeanors. Those misdemeanors must, however, be a significant disturbance since the third limis-limit is the ‘proportionality principle’ (Verhältnismäßigkeitsgebot). Your human rights are not supposed to be taken away from you upon dropping a chewing gum on the pavement or breathing outdoors without a mask. A fourth limits-limit is the prohibition of a law to target individual cases. The parliament can pass the competence to an executing body which may specify directives and orders more specific to the cases at hand. Essential is, however, the last limits-limit which calls for the protection of a right’s core (Wesensgehaltsgarantie). While a right may be compromised, it may not be taken away entirely. The right of possession, for example, can be compromised by a fine or through taxation, but you remain entitled to accumulate a property of your own. Likewise, protest bans must ensure that the citizens can protest their cause otherwise (different date, place, or in keeping of different regulations). A cause of a protest must not be banned as long as it does not violate the free democratic fundamental order of the republic (freiheitlich demokratische Grundordnung).
Many of the mentioned concepts are fuzzy enough to require a clarification by precedents. And the go-to-case to check whether protest bans are legitimate is the Supreme-Court verdict on the anti-nuclear-power protests in Brokdorf, a municipality in Northern Germany (state of Schleswig-Holstein).
Since that verdict in 1985 the assembly-ban law (§15 VersG) has changed in 1999 and in 2005. The changes don’t touch anything the Brokdorf ruling clarified. In 1999, it became more difficult to ban protests in the area around the federal government buildings in Berlin and in 2005 the mentioned Nazi-victim-memorial ban was included. The law on which the police can disperse an existing protest ( §13 VersG) has not changed at all.
When the planning of the march against the construction of the nuclear power station in Brokdorf was completed, the county administration (Landrat) preempted its registration for the envisioned period from February 27 th to March 1 st, 1985, with a ban. The organisers filed a formal complaint (Widerspruch), which was only formally rejected after the fact in summer. The protest went ahead, anyway. So this precedent clarifies something that looked already clear in the law. As I mentioned above the law says clearly that a protest can be banned when it’s not registered. The Supreme Court, however, ruled that the right to protest is so important that a lack of registration does not suffice. Additionally, the community council (Landrat) argued at the court that the protest would have been banned with or without registration. The reason the authorities feared a march on and in Brokdorf was that leaflets openly called for violence and previous nuclear movement protests turned violent regularly, both at the same site, but also on the construction sites of other nuclear power stations, reprocessing plants, or waste rod deposits.
The worst incident was four years prior. On March 19th , 1977, the aptly called ‘Battle of Grohnde’ spiraled out of control. With 1040 injured (800 participants and 240 police officers) the demonstration against the construction of the nuclear power station in Grohnde was the most violent protest in post-war German history at the time. With that in mind, the authorities had every reason to fear the protest. And they were right. 3,000 rioters threw stones and Molotov cocktails. Yet, as you know by now, the Supreme Court decided that the ban was unlawful.
The related term that needs clarification is ‘safety and order’ (Sicherheit und Ordnung). This word pair has a long legal tradition and remains weakly defined. The general understanding is that laws are kept and nobody harasses uninvolved individual by either noise, traffic blockade or by any other means. The Brokdorf incident involved said 3,000 well-organised rioters and a 1,000 individuals stormed the property of the company. A police officer who stumbled and fell to the ground was beaten on the head by two men with a club and a spate.
There have also been minor brawls around the street walks, but nothing that comes close to that scale. It would have made national news, probably international news, if we talked about a comparable magnitude.
The authorities don’t fear rioting. They say that they fear the violation of Covid rules during the protests. The assembly law explained above does not contain the rights of any ‘responsible office’ or the police to ban or end a protest on the ostensible basis of disease control. The case for that is extremely weak since, at worst, gatherings can be dissolved for misdemeanors. But as the Brokdorf verdict showed those must be very grave and even violence and property damage – as long as it is only committed by a comparatively small fraction of the participants – would not allow the police to end a march.
I found an order of the town Ostfildern which is likely to be typical of many other bans justified with infection risk excuses. The order of the town is based on an administrative order of its state – in this case the state of Baden-Württemberg. The latter is named ‘Corona order of the state of Baden-Württemberg ’(Corona-Verordnung des Landes Baden-Württemberg). And this order refers to a federal law because – as you know by now – restrictions of human rights require a law. And that law is §§28 – 32 IfSG.
Unsurprisingly, the law does not speak about dissolving a protest at all. The closest to it is the line §28 (1) S. 2 IfSG which allows to end events and gatherings of whatever kind if there is a presence of one or more highly infectious individuals. That law is about epidemics in general and was written for deceases like the bubonic plague or smallpox. It even mentions an infectious corpse (‘ein Verstorbener’) as a reason to clear gatherings or to ban people from a place. Covid is not a drop-dead disease that requires hysterical intervention.
The flood of annoying regulations that are put in place whenever a protest gathers finds its closest justification in the law §28a IfSG. That section, however, requires an ‘epidemic situation of national significance’ (epidemischen Lage von nationaler Tragweite). That sounds like a match, but the legal expression is very specific and the parliament has formally ended the ‘epidemic situation of national significance.’ The official end was the 25th November last year, but the instruments justified by it may persist until 19th March this year. This could theoretically be extended once (by a majority vote of the parliament Bundestag) for a period of another three months (19th June). In the meantime local authorities can randomly impose all kind of restrictions as they see fit. And some, like the City of Ulm abuse that legal construct to mandate masks outdoors in the time slots when they expect protesters. In the City of Frankfurt (am Main) the police used yardsticks to measure the distance between participants.
The reason why the police can go full draconian on enforcing dubious procedures is §5 (1) No 4 VersG . The ‘responsible office’ may ban assemblies only under a few conditions and one of them is that the ‘organiser or his surroundings may hold views or condone speech that include crimes or other misdemeanors enforced by authorities.’ Unfortunately, the German original is grammatically as dubious as my translation. What I translate with ‘include’ (original: zum Gegenstand haben) is a weasel expression that can broadly mean anything and everything. I could have translated it with ‘that have to do with crime and misdemeanors.’ In the light of multiple anti-speech laws, the views and words themselves could be illegal, or they could be broadly on a topic of a crime (e.g. what penalty would be appropriate) or they could condone crimes and misdemeanors committed by the protesters. The last one of my interpretations is apparently the reason why the police is excessively checking up on potential misdemeanors that otherwise – for example, at the gay pride march – were not an issue. The interpretation that broadly the organizers’ views or speech must not deal with misdemeanors or crimes in any capacity makes the section so universally applicable that it could ban any protest against any prohibition independent of Covid. A protest that asks for prohibitions that don’t yet exist like the marches to ban the construction of nuclear power stations or Fridays for Future does not ‘deal with’ a crime or misdemeanor. Yet all protests for freedom could conveniently be dissolved by the government because they ‘deal with’ an existing prohibitive rule. As far as I know, this is not the way the sentence materialises in actual court cases. The most sound interpretation is probably in use which is that the views and speech must condone rioting or comparable offenses in order to justify a protest ban.
The Brokdorf Supreme Court verdict says that the right of the police to wrap up a march is proportionate to the unwillingness of the participants to cooperate. It commands both sides, the protesters and the police (and other government entities), to be as cooperative as possible. In Section Rn 21 the verdict lists as a behavior that should be avoided ‘police operations that appear unnecessary, exaggerated or incomprehensible.’ And while the disease control law does not specify what restrictions a local authority can place on a time and location, keeping distance or wearing masks outdoors are obviously policies that are only in place for the sake of harassment as they are not enforced elsewhere. This undermines the credibility of the police and puts it at odds with the cooperation mandate of the Supreme Court.
On the other hand, both sides have to show cooperativeness. The municipalities issue statement after statement to say that registrations are required and protests without them could carry a fine of up to 3,000 EUR (e.g. Munich). One way to deal with this – if you are in the money – is to pick the bill and run with it through the court circuit to (possibly) shoot the way free for others. Brokdorf was unregistered and banned. Another option is that more and more people drop a registration into the respective post boxes two days in advance. Showing cooperativeness increases the chances of a successful lawsuit against the authorities, should they crack down.
Goldstein 