Global Freedom of Expression

Schwabe and M.G. v. Germany

Closed Expands Expression

Key Details

  • Mode of Expression
    Public Assembly
  • Date of Decision
    December 1, 2011
  • Outcome
    ECtHR, Article 11 Violation
  • Case Number
    Applications nos. 8080/08 and 8577/08
  • Region & Country
    Germany, Europe and Central Asia
  • Judicial Body
    European Court of Human Rights (ECtHR)
  • Type of Law
    International Human Rights Law, International/Regional Human Rights Law
  • Themes
    Freedom of Association and Assembly / Protests
  • Tags
    Policing of Protests, Political expression

Content Attribution Policy

Global Freedom of Expression is an academic initiative and therefore, we encourage you to share and republish excerpts of our content so long as they are not used for commercial purposes and you respect the following policy:

  • Attribute Columbia Global Freedom of Expression as the source.
  • Link to the original URL of the specific case analysis, publication, update, blog or landing page of the down loadable content you are referencing.

Attribution, copyright, and license information for media used by Global Freedom of Expression is available on our Credits page.

Case Analysis

Case Summary and Outcome

On December 1, 2011, the European Court of Human Rights (ECtHR) held that German government was responsible for violating two German nationals’, Mr. Sven Schwambe and Mr. M.G.’s, right to freedom of peaceful assembly under the Article 11 of the European Convention on Human Rights (ECHR) and awarded them EUR 3,000 (approx USD 3250). The applicants were arrested during the demonstrations organised against the G8 summit in Heiligendamm, Rostock in June 2007 since posters bearing the inscriptions “Freedom for all prisoners” and “Free all now” were found in the applicants’ van. The Court remarked that the applicants gave a plausible interpretation of the inscriptions, namely that they directed towards police officers to release the prisoners instead of inciting prisoners themselves. The Court, in the instant case, noted that there was little scope for restricting applicants’ right to protest since there was no intention of inciting others to violence and they only aimed at participating in a debate on issues of public interest such as impact of G8 summit and effects of globalisation on the people. Therefore, the Court held that the applicants’ detention was not proportionate and unreasonably interfered with their right to freedom of peaceful assembly under Article 11.


Facts

Two German nationals, Mr. Sven Schwabe and Mr. M. G. (the applicants), were arrested from the demonstrations organised against the G8 summit in Heiligendamm, Rostock in June 2007 [p. 11]. These demonstrations, according to the police, were “planned to protest against, block and sabotage the summit” and there was a “risk of property damage by left-wing extremists” [p. 7]. The police estimated that there would be around 25,000 participants at an international demonstration in Rostock on June 2, 2007, 2,500 of whom were ready to use violence, and that there would be around 15,000 demonstrators present during the summit, 1,500 of whom would be ready to use violence [p. 8].

The police submitted that the first applicant had physically resisted the identity check and hit the policeman who had attempted to determine the second applicant’s identity. The police claimed that they found folded-up banners bearing the inscriptions “Freedom for all prisoners” and “Free all now” in the applicants’ van, after which they were arrested [p. 12].

On June 4, 2007, the Rostock District Court ordered their detention until June 9 2007 under section 55 and 56 of the Mecklenburg-West Pomerania Public Security and Order Act (POSA) since it was necessary to prevent the imminent commission or continuation of a criminal offence [p. 13-14]. The District Court further found that the applicants’ continued detention was indispensable and proportionate [p. 15].

On June 4, 2007, the Regional Court confirmed the District Court’s finding that the applicants’ arrest had been lawful since they carried banners with an imperative wording (“free”), indicating their intention to incite others to free prisoners [p. 17] and under section 120 of the Criminal Code, it was an offence to free a prisoner or incite them to escape [p. 41].

On June 7, 2007, the Rostock Court of Appeal dismissed further appeals [p. 18]. The applicants asserted that their posters were aimed at urging police officers to end the numerous arrests and detentions of demonstrators, rather than calling upon others to attack prisons and to free prisoners by force [p. 18]. However, the Court of Appeal upheld the lower courts’ finding and ruled that the applicants’ arrest and continued detention was indispensable in order to avert a danger to public security and order [p. 19].

On June 6, 2007, both applicants lodged a constitutional complaint with the Federal Constitutional Court for an interim injunction ordering their immediate release but the judge refused to take a decision on the applicants’ request for interim measures on June 8, 2007 [p 26].

On June 9, 2007, the applicants were released from prison [p. 27] and their constitutional complaints became devoid of purpose following their release. On July 6, 2007, the applicants requested the Constitutional Court to find that their detention had been unconstitutional, despite the fact that they had been released in the meantime however on August 6, 2007 the Federal Constitutional Court declined to consider the complaints [p. 29-30].

The criminal proceedings instituted against the first applicant for having obstructed public officers in the exercise of their duties were discontinued, after payment of Euros 200. The criminal proceedings against the second applicant for the same offence were discontinued on grounds of insignificance [p. 32].


Decision Overview

The judgement was delivered by the Fifth Section of the European Court of Human Rights (the Court) with Mr. Dean Spielmann as the President. The central issue for consideration was whether the arrests of both the applicants were violative of their right to freedom of expression and right to peaceful assembly under Article 10 and 11 of the European Convention on Human Rights (the Convention).

Firstly, the Court reiterated that Article 11 of the Convention only protected the right to “peaceful assembly” which did not cover a demonstration where the organisers and participants had violent intentions [p. 103]. On the same hand, in the Court’s view, the mere possibility of extremists with violent intentions joining a demonstration could not take away that right. The Court observed that, “even if there is a real risk of a public demonstration resulting in disorder as a result of developments outside the control of those organising it, such a demonstration does not as such fall outside the scope of Article 11” [p. 103]. In the present case, the Court noted although the police  expected extremists with violent intentions to join but according to the court, this by itself was not enough to withdraw the protection guaranteed to an otherwise peaceful demonstration under Article 11 § 1. The Court opined that the domestic courts did not consider that the applicants neither had violent intentions in participating in the demonstrations, nor had weapons. Regarding the posters bearing the inscriptions “Freedom for all prisoners” and “Free all now”, the Court remarked that the applicants gave a plausible interpretation of the inscriptions, which themselves clearly did not openly advocate violence. Therefore, the Court ruled that the applicants’ detention interfered with their right to freedom of peaceful assembly under Article 11 § 1 [p. 106].

Secondly, after deliberating whether there was interference with the freedom of peaceful assembly, the Court examined whether the interference was “prescribed by law” and had a legitimate aim and if it was “necessary in democratic society” [p. 107]. Although the Court held that the police authorities had a legitimate aim under Article 11 in ordering the applicants’ detention was to prevent them from committing a crime [p. 109], it wasn’t proportionate to the “legitimate aim” pursued.  While according to the Court’s opinion, the state authorities enjoyed a wider margin of appreciation when examining the need for an interference with freedom of expression [p. 114], they had to justify that the interference was “relevant and sufficient” [p. 112], and in doing so “nature and severity” of the restrictions need to be considered [p. 111].

The Court, in the instant case, noted that there was little scope for restricting applicants’ right to protest since there was no intention of inciting others to violence and they only aimed at participating in a debate on issues of public interest such as impact of G8 summit and effects of globalisation on the people [p. 117]. The Court found it difficult to conclude that the applicants’ use of banners  with ambiguous slogans was aimed at encouraging other demonstrators to use violence to liberate by force prisoners taken during the G8 summit [p. 115]. Even if the applicants could “negligently incite other people”, the Court considered that detention for almost six days, was not a proportionate measure. In particular, the Court was not convinced that there were not any effective, less intrusive measures available to attain the said aims in a proportionate manner [p. 118] and remarked that the authorities failed to achieve a “fair balance between the aims of securing public safety and prevention of crime and the applicants’ interest in freedom of assembly”.

This, according to the Court, had a “chilling effect on the expression of such an opinion and restricted the public debate on that issue” and therefore, the Court concluded that the interference with the applicants’ right to freedom of assembly was not “necessary in a democratic society” and Article 11 of the Convention was violated [p. 119].


Decision Direction

Quick Info

Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.

Expands Expression

By ruling that the applicants’ detention unreasonably interfered with their right to freedom of peaceful assembly under Article 11 of the European Convention on Human Rights, the Court expanded expression. The Court reiterated that the right to freedom of assembly was a fundamental right in a democratic society and, like the right to freedom of expression, was one of the foundations of such a society, which should not be interpreted restrictively. In the present case, the Court found that the detention of the applicants for displaying banners had a “chilling effect on the expression of such an opinion and restricted the public debate on that issue.”

Global Perspective

Quick Info

Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.

Table of Authorities

Related International and/or regional laws

Case Significance

Quick Info

Case significance refers to how influential the case is and how its significance changes over time.

The decision establishes a binding or persuasive precedent within its jurisdiction.

The decision was cited in:

Official Case Documents

Have comments?

Let us know if you notice errors or if the case analysis needs revision.

Send Feedback