West Germany affirms right of citizens to demonstrate peacefully

By , Staff writer of The Christian Science Monitor

The West German supreme court has shored up the rights of demonstrators -- and ensured that a strict new law against violence at public protests will sooner or later be scrutinized by the courts. In a decision hailed by civil-rights proponents, the First Senate of the Federal Constitutional Court ruled late last month that the requirement to give notice of demonstrations should not serve as a rigid ban on protests.

The court's July 23 verdict established that:

Citizens have a strong constitutional right of political assembly.

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A ``spontaneous demonstration'' in exercise of this right may not be banned or broken up just because those gathering failed to get prior official permission.

If it cannot be shown that a demonstration in its entirety endangers public safety or that the organizers intend or approve endangering actions, peaceful participants continue to enjoy their right of assembly.

Even if a minority of protesters turns violent or is expected to turn violent, other means of maintaining order must be exhausted before resort is made to forbidding the entire demonstration.

Legislative and police regulations of demonstrations are permissible, but only when they stay within these broad guidelines, the court ruled. They must be in conformity with contitutional provisions that ``All Germans shall have the right to assemble peaceably and unarmed without prior notification or permission,'' and ``With regard to open-air meetings this right may be restricted by or pursuant to a law.''

The supreme-court verdict was handed down, not in a case arising from the mass protests against nuclear weapons of the early 1980s, but rather in a case involving an antinuclear-power rally at the construction site for the Brokdorf generating plant in 1981.

The constitutional court ruled invalid an injunction against the march granted at the time by a L"ueneburg court. Some 70,000 participated despite the ban, almost all of them peacefully. Some 200 to 300 ``chaotics'' (according to police estimates) battled the police, but these were separated from the main body of demonstrators by a ditch of water and were not supported by the other demonstrators.

Since the supreme court does not identify split voting by the eight judges, it is not known how many on the panel actually approved the decision. There was no written dissent, however.

In June, a Frankfurt court of first instance also decided in favor of demonstrators in the case of a peace protest, but on grounds that many jurists deem political rather than legal.

Judge Christoph Jahr acquitted seven demonstrators of the charge of ``coercion'' for having staged a sit-in that blocked United States vehicles at a military depot in Frankfurt in 1983.

Judge Jahr ruled that NATO deployment of US missiles heightened the danger of war, threatened East Germans in particular, and so ``violated the codified commandment of [German] reunification in the preamble of the Constitution.''

That verdict went far toward accepting the maximal claims of the Green Party plaintiffs in the case. Certainly it went well beyond minimal claims of lawyers for demonstrators: that passive sitting and non-resistance to physical removal by police violate only traffic and road laws and do not constitute ``coercion'' -- the indictment for which local courts routinely fine anti-nuclear demonstrators several thousand marks. The state is appealing the Frankfurt verdict and has opened proceedings for miscond uct against Jahr.

Late last year the constitutional court ruled the Euromissile deployment legal.

The supreme court's defense of demonstrators' rights last month suggests that future court tests lie in store for a law passed by Bonn's center-right coalition a month and a half ago.

This legislation harks back to turn-of-the-century precepts of holding even peaceful demonstrators responsible for disturbance of the peace by violent participants in the same protest. In the new law police are given the authority to order all demonstrators to disperse in case of violence even by a minority. Criminal penalties are further specified for peaceful demonstrators if they fail to follow such police orders.

One other new restriction on demonstrators was voided (temporarily) by a court last month, on technical rather than civil-rights grounds.

The Baden-W"urttemberg administrative court said that a recent law requiring demonstrators to pay the costs of any special police deployments for their demonstration was improperly written.

The state government has made known its intention of revising the law to meet the court's objections. Critics call the law political, in applying only to demonstrations and not, for example, to rowdy fans who necessitate additional police protection at soccer matches.

Ironically, Roman Herzog, the Baden-W"urttemberg justice minister who introduced the ``demonstration fee,'' as critics term it, has since been appointed to the constitutional court. As court vice-president he chaired the First Senate's liberal ruling in the Brokdorf case at the end of July.

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