Case Summary and Outcome
Germany’s Federal Constitutional Court ordered the City of Hamburg to apply the law of assembly by way of precaution in deciding whether to allow a planned protest camp to be set up in the city park but said that restrictions may be imposed by the authority to guard against permanent damage to the park. The Applicant, Mr. K., had filed an application for a preliminary injunction after the Higher Administrative Court agreed with the City of Hamburg that the camp did not qualify as an assembly protected under Art. 8 Grundgesetz (German Constitution).
The Court said it had to balance the consequences of applying the law of assembly to the request to set up the protest camp against the consequences of not applying the law of assembly. It reasoned that the risk of an infringement to the Applicant’s right to freedom of assembly should the court in the main proceedings find that the law of assembly was applicable outweighed the risk of permanent damage to the park should the court in the main proceedings find it wasn’t applicable. Accordingly, the Court reasoned that the City of Hamburg must apply the law of assembly but that it could include any restrictions necessary to protect the park.
The Applicant, Mr. K., registered an event scheduled to take place from June 30 until July 9 2017 in the form of a political protest camp on the fairgrounds of Hamburg’s city park against the G20 summit taking place on July 7 and 8 in Hamburg. Mr. K. was also the designated leader of the event which was entitled and registered as the “Antikapitalistisches Camp – Alternativen zum Kapitalismus leben und sichtbar machen” (anti-capitalist camp – living and making visible alternatives to a capitalist life). Around 10,000 people from all over the world were expected to attend and live in 3,000 tents.
The Respondent, the Free and Hanseatic City of Hamburg, did not consider that the event was an assembly that should be classified and protected as such under Art. 8 Grundgesetz (German Constitution). Instead it banned the event under a park law provision that prohibited camping in public park and recreation areas.
Mr. K. applied for a review of the ban to the Verwaltungsgericht (Administrative Court) which ordered the City to allow the protest camp because it was protected under the law of assembly. The City appealed the decision and the Oberverwaltungsgericht (Higher Administrative Court) found that the camp did not qualify as an assembly protected under Art. 8 Grundgesetz.
Mr. K. subsequently filed an application for a preliminary injunction at the Bundesverfassungsgericht (BVerfG – Federal Constitutional Court), so that he could go ahead with the preparation and realization of the event.
The Court delivered a per curiam decision, stating that the City of Hamburg must apply the law of assembly by way of precaution in the event that it was found in the main proceedings that the protest camp was protected by freedom of assembly. However, the Court also said that restrictions may be imposed by the City of Hamburg. The Court did not address the question of whether and to what extent the protest camp could be restricted or even banned with regard to public safety.
The Court noted that this was the first time it had been called upon to consider whether a protest camp like the one at hand could constitute an assembly according to Art. 8 Grundgesetz and that it must therefore make a decision by “balancing the respective consequences”.
In this context, the Court said that on the one hand, if the preliminary injunction wasn’t granted and, in the main proceedings, the protest camp was (at least partially) found to be protected by freedom of assembly, then the Applicant would retroactively have been barred from exercising his fundamental right in the form of realizing the protest camp which would constitute an infringement of his right with regard to an important political event.
On the other hand, the Court had to consider that if the preliminary injunction was issued and it was found in the principal proceedings that the planned protest camp was not a protected assembly, then not only would the public have been unjustifiably deprived of a major park area for the duration of about three weeks, but public authorities would have been burdened with the risk of permanent damage to the park without reason.
Having considered both sides, the Court came to the conclusion that a compromise was needed which would allow Mr. K. to realize the protest camp during the G20 Summit to the largest possible extent while at the same time preventing permanent damage to the city park and minimising the related risks for public authorities.
Accordingly, it found that the law of assembly had to be applied but that the ruling would include allowing the authority to consider to what extent the camp’s extensive elements of infrastructure were necessary to support the political assembly aspect of the camp. In particular, the Court said, the City was entitled to prohibit tents and facilities which were merely set up as accommodation without any relation to the expression of opinions.