The International Human Rights Framework on the Right of Peaceful Assembly
Germany is a state party to the 1966 International Covenant on Civil and Political Rights (ICCPR). Article 21 governs the right of peaceful assembly, providing that:
The right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others.
Germany is also a state party to the First Optional Protocol to the ICCPR, which allows individuals to petition the Human Rights Committee if they believe the state has violated their human rights as protected under the Covenant.
At regional level, Germany is a state party to the 1950 European Convention on Human Rights. Article 11 governs freedom of assembly and association:
1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.
2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.
The Domestic Legal Framework on the Right of Peaceful Assembly
According to Article 8 of the Basic Law, as last amended on 23 December 2014:
(1) All Germans shall have the right to assemble peacefully and unarmed without prior notification or permission.
(2) In the case of outdoor assemblies, this right may be restricted by or pursuant to a law.
Under the 1953 Federal Assembly Law (“Versammlungsgesetz”), outdoor assemblies must be registered with the authorities 48 hours in advance. Spontaneous public assemblies are nevertheless permitted under certain conditions. The state may not break up a demonstration that has been permitted, except as a last resort.
The authorities can prohibit an assembly if it could endanger public safety or order. When an assembly is ongoing, any danger to public order must come from the demonstration as a whole, not just some participants. The authorities must also prove that there is a concrete danger; mere suspicions or presumptions are not sufficient for a protest to be dispersed.
The wearing of masks or any other device aimed at obscuring the protester's identity is forbidden.
The regions (Länder) also have laws in place governing assemblies. These can displace the provisions of the Federal Act on Assembly.
The Legal Framework on Use of Force During Assemblies
The Use of Force
International Legal Rules
Under international law, the duty on the state and its law enforcement agencies is to facilitate the enjoyment of the right of peaceful assembly. According to the 1990 United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials:
In the dispersal of assemblies that are unlawful but non-violent, law enforcement officials shall avoid the use of force or, where that is not practicable, shall restrict such force to the minimum extent necessary.
All force used by police and other law enforcement agencies must be necessary for a legitimate law enforcement purpose and proportionate to that purpose.
At federal level, police use of force is governed by the 1994 Federal Police Law. This allows the police to use necessary measures for the performance of their duties.S. 14(1), 1994 Federal Police Law.
In a 1992 Federal Constitutional Court Decision on assembly dispersal,87-399 Versammlungsauflösung des Ersten Senats vom 1. Dezember 1992.the Court found that it was incompatible with Article 8 of the Basic Law for a criminal prosecution of assembly participants who refuse to immediately leave a dissolved Assembly. This is in accordance with §29(1)(b) of the 1953 Federal Assembly Law, regardless of whether the dissolution was lawful.
The Use of Firearms
International Legal Rules
According to the 1990 United Nations Basic Principles, in the dispersal of violent assemblies, a law enforcement official may only use a firearm against a specific individual where this is necessary to confront an imminent threat of death or serious injury or a grave and proximate threat to life.
There is no specific legislation governing police use of firearms during assemblies.
State Compliance with its Legal Obligations
Views and Concluding Observations of United Nations Treaty Bodies
Germany has not come before the Human Rights Committee in recent years. The list of issues from the Committee prior to Germany's latest periodic report did not call for information on the laws governing assembly.
The 2018 Universal Periodic Review of Germany under the UN Human Rights Council did not address the right of peaceful assembly.
Schwabe and M.G. v. Germany (2012)
In its judgment in this case, the European Court of Human Rights addressed a number of issues under the right of peaceful assembly protected by Article 11 of the European Convention of Human Rights. The Court considered that, "as a result of their detention, ordered by the domestic courts for the entire duration of the G8 summit, the applicants were prevented from taking part in demonstrations against that summit." The Court further noted that "at the time of their arrest, the applicants intended to take part in future demonstrations against the G8 summit". There was "nothing to indicate that the organisers of the demonstrations in which the applicants intended to participate had violent intentions".
The Court was not satisfied that it had been shown that the applicants
had violent intentions in seeking to participate in G8-related demonstrations. In this connection, it notes, first, that the domestic courts did not consider that the applicants, by carrying banners bearing the inscriptions “Freedom for all prisoners” and “Free all now”, intended to liberate prisoners by force themselves. It also observes that no weapons were found on the applicants. It further takes note of the Court of Appeal’s finding that a crowd which was ready to use violence might be incited by the banners to liberate prisoners by force, but further notes that that court conceded that the slogans on the banners at issue in the present case could be understood in different ways....
In the Court’s view, the applicants
gave a plausible interpretation of the inscriptions on their banners, which themselves clearly did not openly advocate violence. Having regard also to the domestic court’s finding of the slogans’ ambivalent content allowing for different interpretations, the Court considers that it has not been proved that the applicants deliberately intended to incite others to violence. Neither could such a conclusion, in the Court’s view, be drawn from the fact that one of the applicants was considered to have resisted the police’s identity check by force and thus to have used force himself – in different circumstances and in a different manner from the display of banners to others at a demonstration. It further notes in this connection that neither of the applicants was shown to have previous convictions for violent conduct during demonstrations or in comparable situations.
The Court further noted that the applicants were detained for almost six days in order, the authorities claimed, to prevent them from inciting others to liberate prisoners by force during demonstrations against the G8 summit.
[T]he applicants’ detention for preventive purposes did not fall within any of the permissible grounds for deprivation of liberty under Article 5 § 1 and was thus in breach of that provision. The Court further observes that the summit was expected to attract a significant number of demonstrators (some 25,000), a large majority of whom were peaceful, but a considerable number of whom were prepared to use violence. A number of mass demonstrations were scheduled to take place over several days, some of which had descended into riots in Rostock city centre prior to the applicants’ arrest. The Court accepts that guaranteeing the security of the participants in the summit and maintaining public order in general in this situation was a considerable challenge for the domestic authorities, where decisions often had to be taken speedily.
The Court concluded that
a considerable sanction, namely detention for almost six days, was not a proportionate measure in order to prevent the applicants from possibly negligently inciting others to liberate by force demonstrators detained during the G8 summit. In such a situation, a fair balance between the aims of securing public safety and prevention of crime and the applicants’ interest in freedom of assembly could not be struck by immediately taking the applicants into detention for several days.
In particular, the Court was not convinced that
there were not any effective, less intrusive measures available to attain the said aims in a proportionate manner. Notably, it considers that in the given situation, in which it has not been shown that the applicants were aware that the police considered the slogans on their banners illegal, it would have been sufficient to seize the banners in question. This could reasonably be expected to have had a chilling effect on the applicants, preventing them from drawing up new, comparable banners immediately. Even if their freedom of expression would then have been restricted to a certain extent, their taking part in the demonstrations would not have been made impossible from the very outset.
The Court concluded, therefore, that the interference with the applicants’ right to freedom of assembly was not “necessary in a democratic society” and held that Article 11 of the Convention had been violated.
Views of Civil Society
According to Freedom House's 2019 report on Germany:
The right to peaceful assembly is enshrined in the German constitution and is generally respected in practice, except in the case of outlawed groups, such as those advocating Nazism or opposing democratic order. In August and September 2018, anti-immigration protests in Chemnitz turned violent when far-right protestors attacked and harassed people they perceived to be immigrants. Clashes also erupted between the right-wing protestors and counterdemonstrators, with both sides throwing projectiles at each other. As a result of the unrest, at least 18 people were injured.