Case Summary and Outcome

The Federal Administrative Court of Germany ruled that the low-altitude overflight of a fighter jet over a protest camp in the run-up to the 2007 G8 summit encroached upon the right to freedom of assembly. In the context of the G8 summit in 2007, protesters had set up a camp from which they participated in several demonstrations. In support of the local police authorities, a fighter jet of the German armed forces performed a low-altitude flight over the protest camp to conduct aerial reconnaissance. The claimants asserted that the flight was unlawful, because it constituted a de-facto infringement upon its right to freedom of assembly under art. 8 German Basic Law. The claimants’ action for a declaratory judgment was refused in the first and second instance. The Court ruled that although the protest camp was not an assembly as such, it was protected as a run-up activity necessary for a later participation in actual assemblies. The extreme noise level and the threatening sight of the surprising overflight created an effect of intimidation and deterrence on the persons in the run-up to a later participation in demonstrations. This effect was capable of discouraging persons to participate in the later assemblies. Therefore, it constituted a de-facto encroachment on the right to freedom of assembly. The Court reversed and remanded the case for a decision in accordance with its ruling to the appellate court.

Facts

In the run-up to the G8 summit on June 6 to 8, 2007 in Heiligendamm, the Ministry of the Interior of Mecklenburg-Western Pomerania requested administrative assistance from the Federal Ministry of Defense. Based on previous experience with such summits, the state’s responsible security authorities assumed that not all of the announced demonstrations would be peaceful. The state’s ministry asked the federal ministry to perform overflights and to take aerial photographs in the region around the venue. The intention was to discover possible earth dumps and manipulations of important roadways, which could be used by violent disruptors to store tools and means of blockades. Since the end of May 2007, opponents of the summit had set up a camp approximately 10 kilometers from the venue to accommodate up to 5,000 people who intended to take part in protest actions. On June 5, 2017 at about 10:30 a.m. a Tornado fighter jet of the German Federal Armed Forces (Bundeswehr) flew over the camp at an altitude of about 114 meters. The aerial pictures taken were forwarded to the Rostock Police Headquarters for evaluation and depicted the protest camp and individual groups of persons. The claimants stayed in the camp from June 1 to 6, 2007 and participated in assemblies in the context of the G8 summit. In the aftermath, the Federal Ministry of Defense issued a report which stated that the cameras used by the Tornado jet were not capable of depicting individual persons or vehicle’s license plates.

On August 20, 2007, the claimants sought an action for a declaratory judgment before the Administrative Court Schwerin (Verwaltungsgericht Schwerin) that the aerial reconnaissance performed by the Tornado jet was unlawful. They asserted that the overflight violated their right to informational self-determination under art. 2 (1) German Basic Law in connection with art. 1 (1) German Basic Law as well as their right to freedom of expression and freedom of assembly under art. 5 (1) and 8 (1) German Basic Law. Since the administration could not rely on a sufficient statutory basis for their conduct, a justification would not be possible. The claimants asserted that the deployment of military equipment in the direct proximity of a camp with thousands of persons was a measure of intimidation and threat. Moreover, the use of military forces in the inner territory would be unlawful as their deployment is restricted to purposes of national defense.

On September 29, 2011, the Administrative Court found that the action was inadmissible, since the claimants missed the required interest in an action for a declaratory judgment (Feststellungsinteresse). Even if the action were admissible, the protest camp did not fall within the scope of protection of the right to freedom of assembly. The court referred to settled case-law that an assembly is characterized by the purpose of a common forming and expressing of opinions. In respect thereof, a protest camp would be a “base of operations […] for the intended demonstrations, which themselves are aimed at expression of opinions in the public” [cf. para. 57], the court said citing another court’s decision. It reasoned that if the mere presence in the camp would be regarded as an “implied expression of solidarity” [Id.] with the demonstrations, the criterion of a common expression of opinion would become indistinct. Therefore, “a fixed ‘infrastructure’ does not anymore fall under the protection of the basic right [to freedom of assembly]; because it is no longer functionally necessary for the actual assembly” [para. 60]. Furthermore, the court held that the overflight did not encroach upon the claimants’ right to informational self-determination and freedom of expression. Firstly, the photographs did not allow the authorities to monitor or identify the claimants and secondly, they were not provably impeded in expressing their opinions.

On July 15, 2015, the Higher Administrative Court Mecklenburg-West Pomerania (Oberverwaltungsgericht Mecklenburg-Vorpommern) dismissed the claimants’ appeal. It ruled that although the protest camp fell within the scope of protection of the right to freedom of assembly, there was no encroachment on art. 8 (1) German Basic Law. The court stated that for an encroachment it was sufficient if a measure was aimed at and objectively capable of deterring participation in a later assembly from the viewpoint of a reasonable third party. Such a reasonable third party would understand the overflight of the jet as a measure of reconnaissance, however, because of the short duration, the overflight had no effect of intimidation on the exercise of the freedom of assembly and could not be understood as a persistent measure of surveillance.

The claimants appealed to the Federal Administrative Court (Bundesverwaltungsgericht) and asserted a violation of its right to freedom of assembly. In support of this, it stated that the mere assumption that the reconnaissance measures were capable of depicting individuals in an identifiable manner in the moment of the assembly impaired the free decision of potential assembly participants. This had an effect of intimidation and uncertainty which constituted an encroachment on the right to inner freedom of assembly.

Decision Overview

The Federal Administrative Court of Germany delivered a per curiam decision on October 25, 2017.

The first issue for the Court to determine was whether the protest camp fell in the scope of the right to freedom of assembly under art. 8 (1) German Basic Law. This article reads as follows:
(1) All Germans shall have the right to assemble peacefully and unarmed without prior notification or permission.
(2) For assemblies in the open air, this right may be restricted by or pursuant to a law.

The Court established in accordance with settled case-law that an assembly pursuant to art. 8 (1) German Basic Law is a “local gathering of several people for the purpose of collective debate or demonstration aimed at participating in the formation of opinions” [para. 25]¹. The formation and expression of opinions had to be “aimed at influencing the public accordingly” and concern matters that are “intended and eligible for the formation of public opinion” [para. 25]². For this reason, the “mere stay of persons in a camp for the purpose of accommodation and their intention to participate in assemblies, in itself […]” [para. 25] did not fulfil these criteria. The Court continued to assess the scope of protection of art. 8 German Basic Law in respect of its effects in the run-up to assemblies and stated it was “not limited to the period during which an assembly is held, but already takes effect in the run-up to it” [para. 28]³. Otherwise, the freedom of assembly could be undermined by state measures in the run-up to assemblies. Hence, the freedom of assembly protects the “entire process of assembling, which includes access and travel” [para. 28]⁴ to an upcoming assembly. The Court found that the stay in the protest camp had a direct connection in time and space to the demonstrations around the G8 summit. Participating in the demonstrations was possible for most of the participants only, if they “arrived early and had a local accommodation for the entire duration of the event” [para. 29]. Therefore, the Court held that the stay in the protest camp was part of the act of gathering and embraced by the run-up protection of art. 8 (1) German Basic Law.

The second issue for the Court to decide was whether the flight of the Tornado jet over the protest camp for the purpose of the taking photographs encroached on the claimants’ right to freedom of assembly. Referring to consistent case-law of the Federal Constitutional Court, the Court laid out that art. 8 (1) German Basic Law guarantees not only protection against direct and targeted measures, but also against de-facto encroachments (faktischer Eingriff) on the freedom of assembly. Such a de-facto encroachment is on hand, when “the state action has an intimidating or deterrent effect or is capable of influencing the free formation of will and the freedom of decision of those persons” who wish to participate in assemblies [para. 32]. For the determination whether a measure has an intimidating or deterrent effect an objective standard of assessment on a case-by-case basis had to be applied. Like the appellate court, the Court used the “viewpoint of a so-called reasonable third party” to assess whether as a result of the state measure a “person in the situation of the […] persons concerned would seriously consider refraining from participating in the (forthcoming) meeting in the planned form” [para. 33]. This also applied in the run-up to an assembly. However, a “state measure generally is all the less likely to influence the free formation of will and the freedom of decision of those persons, […] the greater the spatial or temporal distance to the protected assembly and the less a connection of the measure to the later assembly is recognizable for the later assembly participants” [para. 35].

On this basis, the Court determined that – independent of the actual use of means of aerial reconnaissance – the extreme noise level, the threatening sight of the low-flying fighter jet, the surprise effect of the overflight and its close and spatial connection to the G8 demonstrations induced an effect of intimidation and deterrence for the potential participants of the assemblies. Notwithstanding the short duration of the overflight, it had a “surprising visual and acoustic stimulus which is typically particularly capable of being perceived as potentially threatening” [para. 38]. Therefore, its influence on the formation of will of the potential participants was so intensive that it had a relevant effect of intimidation and deterrence and could “typically trigger fears or defensive reflexes” [para. 39] that let persons refrain from participating in assemblies. Also, the protesters in the camp could not anticipate the use of heaviest military equipment. Thus, the Court found that the low-altitude overflight of the Tornado fighter jet constituted a de-facto encroachment on the claimants’ right to freedom of assembly under art. 8 (1) German Basic Law.

In respect of a possible constitutional justification of the measure, the Court found that it could not conclusively decide this question on the basis of the findings of fact by the appellate court. Consequently, the Court did not finally determine whether the overflight was unlawful as an unjustified encroachment of the claimants’ right to freedom of assembly.

Finally, the Court held that the overflight did not constitute an internal deployment of armed forces prohibited by the German Basic Law (cf. art. 87a (2) Basic Law) and thus was not unlawful for this reason. Instead, the overflight was a “technical support service of the Bundeswehr by way of administrative assistance to the police authorities” [para. 42], as other technical means of aerial reconnaissance were not available.

Since the findings of the appellate court were not sufficient to enable the Court to decide conclusively on the claim for a declaratory judgment asserted in the action, the Court reversed the appellate decision and remanded the case to the Higher Administrative Court Mecklenburg-Western Pomerania for a decision in accordance with its ruling.

1. Referring to BVerfG, 1 BvR 1190/90 (10/24/2001), para. 39 ↩

2. Citing a prior decision: BVerwG, 6 C 23.06 (05/16/2007), para. 15 ↩

3. Referring to BVerfG, 1 BvR 772/90 (06/11/1991)  ↩

4. cf. BVerfG, 1 BvR 233/81 (05/14/1985) and BVerfG, 1 BvR 772/90 (06/11/1991), para. 16 ↩