Case Summary and Outcome

The European Court of Human Rights held that Germany violated the applicant’s right to freedom of peaceful assembly under Article 11 of the European Convention on Human Rights. The case concerned the applicant’s criminal conviction for wearing a simple plastic visor with the inscription “smash capitalism” at a peaceful demonstration against the opening of the European Central Bank (ECB) headquarters in Frankfurt. The Court found that while the German law banning “protective weapons” at assemblies pursued legitimate aims, the domestic courts failed to justify its application in this specific case. Their reasoning was insufficient because they did not properly assess whether the simple visor posed a real threat, could incite aggression, or whether a less severe measure could have been used instead. The Court emphasized that criminal sanctions for peaceful demonstrators require special justification. Consequently, the conviction was deemed a disproportionate interference with the right to assembly, and Germany was ordered to pay the applicant’s costs and expenses.

Facts

The applicant, Benjamin Russ, participated in a demonstration under the slogan “colourful, loud – but peaceful” in Frankfurt am Main on 18 March 2015, protesting the opening of the European Central Bank headquarters. During the protest, he wore a piece of transparent plastic sheeting fastened with a rubber band over his forehead and eyes, on which he had written “smash capitalism.” The demonstration he joined remained peaceful, though significant acts of violence occurred elsewhere in the city that day involving other groups.

The Frankfurt am Main District Court subsequently issued a penalty order against Russ for violating the Act on Public Assemblies and Processions. The court held that his visor was a “protective weapon” prohibited under section 17a(1) of the Act, as its purpose was to defend against police measures like pepper spray. It found that the inscription did not change the visor’s primary defensive purpose. The order imposed a fine of 40 daily rates of 10 EUR each. After Russ objected, the District Court convicted him on May 3, 2017, imposing a cumulative penalty of 60 daily rates of 30 EUR, taking into account a previous related conviction.

The court defined protective weapons as “objects that are used for defence against attacks and are usually given this purpose at the time of manufacture” such as protective shields and self-made armours. [para. 10] It found that the visor, which could shield against liquids or gases like pepper spray, functioned as a protective weapon, and that there was no other practical civil use for it. The court held that its purpose was to defend against police coercive measures. Regarding the “smash capitalism” message on the visor, the court said the visor’s main purpose was not just to express an opinion. The court noted that Russ could have worn it on the back of his head to show the message without making it a protective weapon.

Russ appealed, and the Frankfurt am Main Regional Court reduced the fine to 10 daily rates but upheld the conviction, stating the visor “served to defend against pepper spray attacks… and not just to exercise the freedom of expression.” [para. 13] His further appeals to the Court of Appeal and the Federal Constitutional Court were rejected.

Russ subsequently lodged an application with the European Court of Human Rights.

Decision Overview

Judge Arnfinn Bårdsen, President of the Second Section, delivered the judgment for the European Court of Human Rights. The main issue before the Court was whether the applicant’s criminal conviction for wearing a plastic visor at a demonstration violated his rights under Article 10 (freedom of expression) and Article 11 (freedom of assembly) of the Convention.

Russ argued that his conviction interfered with his right to peaceful assembly, had a chilling effect, and lacked a proper legal basis as the visor could not realistically protect him against law enforcement measures such as pepper spray. He maintained that the sanction was unnecessary as he participated peacefully. Regarding Article 10, he contended that the domestic courts relied on the “smash capitalism” inscription in their reasoning.

The Government argued that the assembly was not peaceful due to widespread violence elsewhere that day, so Article 11 did not apply. In the alternative, they submitted that any interference was justified: it was prescribed by the Act on Public Assemblies and Processions, pursued the legitimate aims of preventing disorder and protecting others, and was necessary. They contended that the visor was a protective weapon that could fuel aggression, and the minor post-event fine was a proportionate response that did not restrict participation. On Article 10, they stated that the applicant was convicted for the protective object, not its message, and he remained free to express his views otherwise.

The Court first addressed the relationship between Articles 10 and 11, noting that the two rights are closely connected, yet the latter often takes precedence in cases involving participation in public assemblies. It observed that the applicant was convicted for wearing a “protective weapon,” not for the inscription. While the domestic courts referenced the text to assess the visor’s intended use, they did not punish the message itself. The Court concluded there was no separate interference with Article 10 and would examine the case primarily under Article 11, while considering it in the light of Article 10.

The Court then assessed whether there was an interference with the right to peaceful assembly. It rejected the Government’s claim that the assembly was not peaceful, reiterating that an individual does not lose protection under Article 11 because of violence committed by others, provided the individual remains peaceful. The Court noted that even if a public demonstration carries a real risk of disorder due to factors beyond the organisers’ control, it does not automatically fall outside the protection of Article 11(1), and that the authorities bear the burden of proving that the organisers had violent intentions. In the case at hand, the Government highlighted acts of violence and vandalism in Frankfurt to protest against the opening of the ECB headquarters, but did not substantiate that violence occurred within Russ’s specific demonstration or that he himself had violent intentions. Therefore, the criminal conviction constituted an interference with Article 11.

The Court examined whether the interference with Russ’s right to freedom of assembly was justified. The Court noted that Russ’s conviction was based on section 27(1) of the Act on Public Assemblies and Processions, which prohibits carrying protective weapons at public assemblies. Although the Act did not explicitly define “protective weapon,” publicly available legislative materials provided definitions and examples, which the domestic courts relied on to determine that Russ’s plastic visor qualified as a prohibited protective weapon. The Court found this interpretation neither arbitrary nor unforeseeable and noted that Russ could have sought legal advice or clarification from lawyers or the police. The conviction therefore was prescribed by law. The Court also accepted that the ban pursued the legitimate aims of preventing disorder and crime and protecting the rights of others, given that such objects could signal a willingness to use violence and escalate tensions during demonstrations.

However, the Court found the interference was not necessary in a democratic society. It reiterated that restrictions on assembly must be narrowly interpreted and convincingly established. The Court accepted that, in principle, banning protective weapons can be justified to prevent violence. However, it noted the domestic courts failed to conduct a specific assessment of the simple visor in question: they did not evaluate whether it actually posed a threat to public safety, had an aggression-stimulating effect, or indicated a willingness to use violence. The Court stated: “very simple constructions would require a special assessment by the criminal courts. In the Court’s view, the applicant’s visor, which had been constructed with a piece of transparent plastic sheeting… and a rubber band, falls into the latter category.” [para. 53]

Furthermore, it noted that the domestic courts did not consider whether an exemption under section 17a(3) of the Act applied or if a less severe measure (like an order to remove the visor) would have sufficed. The Court emphasized that “criminal sanctions require special justification” and that “a peaceful demonstration should not, in principle, be rendered subject to the threat of a criminal sanction.” [para. 51] The domestic courts failed to balance the applicant’s assembly rights with the legitimate aims pursued.

Accordingly, the Court held that there had been a violation of Article 11 of the Convention and directed the State to pay EUR 7,350.35 in respect of costs and expenses. However, the Court rejected Russ’s claim for pecuniary and non-pecuniary damages, finding the violation declaration constituted sufficient just satisfaction.