Freedom of Association and Assembly / Protests, Political Expression
Tatár v. Hungary
Closed Mixed Outcome
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The Administrative Court in Oldenburg, Germany held that the City of Oldenburg’s decision to revoke permission for an event regarding the Boycott, Divestment and Sanctions Movement against Israel (BDS) in a public building was a violation of the rights to freedom of expression and assembly. A BDS activist had applied for permission and entered into a lease agreement with the City to rent a room for an event featuring a presentation from a human rights activist followed by a discussion with the audience. After receiving complaints, the City revoked its permission and terminated the lease agreement on the grounds that the event could threaten public safety. The Court held that in reversing its original decision, the City had not adequately balanced the rights to freedom of expression and assembly with the need to protect public safety, and held that the decision infringed the Basic Law.
This analysis was possible thanks to contributions by the European Legal Support Center (ELSC) and The Rights Forum.
On May 18, 2016, the BDS Initiative Oldenburg – a German chapter of the Palestinian-led campaign Boycott, Divestment and Sanctions – planned to host an event titled “BDS – die palästinensische Menschenrechtskampagne stellt sich vor” (BDS – the Palestinian human rights campaign introduces itself). The event was going to feature a presentation from Ronny Barkan, an Israeli human rights activist. On April 15, 2016, Christoph Glanz, one of the BDS Initiative Oldenburg members, applied to rent a room for the event in the City of Oldenburg’s cultural center, PFL. One of the City’s employees informed Glanz on May 9, 2016 that his request had been granted and Glanz and the City entered into a lease agreement for the room. Glanz then sent out invitations for the event.
After the City received a number of emails from third parties expressing doubts about the BDS event Glanz was told that permission to rent the room had been withdrawn and the lease agreement terminated. The City argued that the “policy concerning the cession of event spaces at the PFL” allowed such a termination, even though the policy was not included or referred to in the contract between the parties for the lease of the room. Section 1(4) of the policy justifies the termination of a lease agreement for “urgent reasons” including the potential destruction of the premises or disturbance of the public safety and order. The City believed that a confrontation between BDS supporters and its opponents was likely during the event and so public safety could not be guaranteed and there was a risk of destruction of the rented room.
Glanz believed that the City’s decision was merely a political one, not grounded in law. He approached the Administrative Court in Oldenburg, arguing that the termination of the lease agreement and the withdrawal of permission to hold the event violated his right to freedom of expression under article 5(1) and his right to freedom of assembly under article 8(1) of the Basic Law.
Art. 5 (1) states: “Every person shall have the right freely to express and disseminate his opinions in speech, writing and pictures and to inform himself without hindrance from generally accessible sources”. Art. 8 (1) states: “All Germans shall have the right to assemble peacefully and unarmed without prior notification or permission”.
The central issue for determination by the Administrative Court was whether articles 5 and 8 were violated by the City’s decision to withdraw permission for the BDS event and terminate the lease agreement with Glanz.
The Court noted that as Glanz’s planned event was scheduled for four hours it was likely that a discussion would follow the presentation, and so fell within the scope of protection from articles 5(1) and 8(1). The Court held that a state decision amounts to a violation of articles 5(1) and 8(1) if an assembly is prohibited or its implementation is restricted. It added that it is not permissible for the state to prohibit an assembly on the basis of opinion or because the topic of the assembly concerns a certain opinion or viewpoint.
In examining the nature of the rights protected by articles 5(1) and 8(1), the Court noted that the right to freedom of assembly includes the freedom to decide when, where and for which purpose the assembly should take place. However, the Court stressed that this does not mean that article 8(1) grants everyone a right to access any chosen place: when it comes to public facilities it is every municipality’s right to determine for which purpose a public facility can or cannot be used. Consequently, the Court noted that if the City had rejected Glanz’s request when he first applied for permission on April 15, 2016 the question of whether there had been a violation of the rights to freedom of expression and assembly would be markedly different than it was in the present case. The Court held that withdrawing permission after granting access was undeniably a breach of article 8(1). The Court applied the same reasoning to article 5(1) and held that although the right does not include the right to access any chosen place to express an opinion, the withdrawal of the decision did constitute a violation of article 5(1).
The Court noted that the least the City was expected to do when a breach of such important rights was threatened by withdrawing permission was to have balanced Glanz’s rights against the public safety which the City felt was at risk. It added that this balancing of rights is necessary in order to keep limitations of the basic law to a minimum. However, the Court held that the City did not weigh those opposing rights, and so the withdrawal of permission was unlawful.
Accordingly, the Court held that there was an infringement of articles 5(1) and 8(1).
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision by the Administrative Court Oldenburg expands expression by holding that the rights to freedom of expression and to freedom of assembly are violated if access to a public facility to host an event is withdrawn after it initially having been granted. However, the Court did emphasize that this does not mean that denying access in the first place would automatically also be a violation of the rights.
In a similar preliminary proceeding Christoph Glanz, the same claimant as in this case, filed another motion at the Administrative Court Oldenburg, again claiming to have a right to access a public facility to hold a BDS event. However, in that case the Court denied his application because firstly, the City did not withdraw its permission but denied access at the outset. Secondly, the Court said that access to a public facility can only be granted if the planned event does not violate any higher-ranking law – in particular human dignity under article 1(1) Basic Law. The Court said that Glanz’s application raised the question of whether the BDS campaign is antisemitic, which would then be incompatible with article 1(1). However, it noted that this issue could not be discussed in detail during preliminary proceedings, and so dismissed Glanz’s preliminary application. Glanz then filed a complaint at the Higher Administrative Court of Lower Saxony which overruled the lower court stating that it was not Glanz’s burden of proof to show that the BDS movement does not violate the free democratic basic order. However, that Court upheld the Administrative Court in Oldenburg’s ruling in regard to the refusal to grant access to a public facility on the grounds that the City can determine the purpose for which their public facilities can be used and the City expressly excluded political events from the range of permissible uses.
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