Freedom of Association and Assembly / Protests
Nemtsov v. Russia
Closed Mixed Outcome
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The Bundesverfassungsgericht (Final Court of Appeal) refused to authorize a request for a protest to take place at the G8 Summit in Heiligendamm due to the risk that violence would occur. In its judgment, the Court admitted that a prohibition on a protest constitutes a profound infringement of the right to freedom of assembly, and doubted whether the reasons given by the police department to ban the protest were sufficient. Nevertheless, due to a violent demonstration in the neighbouring city of Rostock a few days prior to the planned protest in Heiligendamm and the announcement by individuals who took part in that demonstration that they would also take part in the protest in Heiligendamm, the Court rejected the appeal.
The claimants, Mr. K, Mr. P, and Mrs. J, were the organisers of a protest that was planned for June 7, 2007 during the G8 Summit in Heiligendamm. The protest was to take the form of a “Sternmarsch” (Star March), which is a march along specified routes in the formation of a star. Thus, the march was planned to leave from different locations and was to finish near the G8 Summit in Heiligendamm.
On October 30, 2006, the claimants registered six proposed demonstration routes with the police department of Rostock. The police department confirmed receipt of the registration and followed up with a request for more details. On May 10, 2007, at a meeting between the claimants and the police department, the claimants were told that the demonstration could not finish in the vicinity of the G8 Summit because there was a 40 km2 enclosed area in Heiligendamm that was to remain clear for the duration of the summit.
On May 16, 2007, the police department banned all public assemblies and protests in an area around Heiligendamm between June 5 and June 8, 2007. This area included an “inner” and “outer” prohibited zone. The “inner” zone (Zone I) covered the enclosed area which was bordered by a high fence with barbwire on top. The “outer” zone (Zone II) covered an area of a few more kilometers in front of Zone I. On the same day, the police department specifically forbade the “Sternmarsch” and its alternative routes. In its place, the department proposed that the protest be relocated outside the prohibited zone. This proposal was rejected by the claimants because such a compromise would fail to fulfill the protest’s purpose.
On May 25, 2007, the claimants’ alternative routes were upheld as permissible by the Administrative Court in Schwerin because the ban concerning Zone II was unlawful. This decision was subsequently overruled on appeal before the First Court of Appeal, which held that the protest could only take place outside the prohibited zones.
On June 2, 2007, the claimants submitted that there would be three alternative events outside the prohibited zones. Subsequently, these events were also prohibited by the police department due to the violent demonstrations in Rostock that same day.
The Court admitted that it constitutes a profound infringement of the right to freedom of assembly to prohibit a protest, and found it doubtful whether the police department’s arguments for prohibiting this protest were sufficient. The Court went on to note that it was doubtful whether the police’s arguments that there was a hypothetical possibility of violence and that it would be difficult for emergency services to reach all parts of the protest were sufficient to prohibit the demonstration. Nonetheless, in light of a violent demonstration in Rostock on June 2, 2007, the Court could not agree to reinstate the planned protest due to the risk of a violent outcome.
The Court rejected the First Court of Appeal’s arguments that (i) it was reasonable to require that the claimants take the prohibited zones into account when planning their protest and (ii) the protest would still achieve great media attention even when conducted outside the prohibited zones. The Court explained that the constitutional right to freedom of assembly protects an organizer’s right to gain public attention through a method or form of their choice. For example, in this case, the organizer wished that the protest take place near the G8 Summit.
On the other hand, the Court recognised that there was a legitimate interest in protecting the running of the summit as an event of the state, which included the interest in protecting the life and limb of all participants. The Court determined that there was an obligation on the State to take appropriate and proportionate measures to restrain protests at the event, taking into account the outbreak of violence at previous G8 Summits and the many calls for blockades at this summit. Accordingly, the creation of the “inner” protected area (Zone I) around the G8 Summit was an adequate measure and could not be found to be constitutionally objectionable. However, the Court said that expanding such an area to the “outer” protected area (Zone II), and prohibiting all demonstrations in that area on the day before and the day of the summit, may have been disproportionate.
Nevertheless, there was enough evidence that the claimants’ protest would not be peaceful because individuals from Germany and abroad with violent intentions had announced that they would be joining the claimants’ protest, and this increased the potential risk if the protest were to go ahead. On June 2 and 3, protests had turned violent in Rostock with several hundred policemen reportedly being injured. The police announced that there were approximately 2,000 violent people involved who utilised the peaceful demonstrations in Rostock as a means of achieving their violent goals. The individuals involved subsequently announced that they would take part in demonstrations and attack the police in Heiligendamm. As a result, the Court concluded that it was not possible to ensure that the protest would remain peaceful in Heiligendamm and, therefore, could not reinstate the claimants’ proposed protest.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This decision has a mixed outcome. Ultimately, the decision has restricted freedom of expression by ruling that a protest could not take place around the time of, and in the vicinity of, an event of international political importance due to the likelihood that a number of violent individuals would take part in the protest. Nonetheless, the decision recognised that the freedom to protest includes the right to protest near a particular area and/or event. The decision also recognized that a mere hypothetical risk of violence, with no evidential basis supporting such a hypothesis, will not be sufficient to justify a prohibition on a protest.
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