How long does freedom of assembly last?


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from: Ursula Knapp

The ‘last generation’ is in action: Blockade in Munich for more climate protection. © dpa

“The last generation” goes beyond the limits of criminal law with its actions. Ultimately, the Federal Constitutional Court will probably decide what is allowed and when

A wave of lawsuits against the “last generation” began. District courts are handing down sentences to seat blockers who force fines to be fixed with superglue, row after row. Sometimes sensitive fines are given, as in Stuttgart. The two defendants should pay EUR 5,500 and EUR 2,200 respectively. Both of these would have a criminal record as 110 per diem is over the criminal limit of 90 per diem. However, the case has not yet been finally resolved, and both the accused and the prosecutor have appealed, which has now been confirmed by the Stuttgart courts. It was the turn of the Stuttgart District Court. This is also the case in Berlin and other places.

It is likely that the cases will be heard by higher regional courts and eventually by the Federal Constitutional Court. This would be the 5th judgment of the German Supreme Court in Karlsruhe.

Illegal coercion by force? The fundamental question in all the courts is this: Is it coercion by violence when seat blockers stick to the streets and cause long traffic jams? Yes, say the courts unanimously. The Federal Constitutional Court in 1995 decided that sit-down demonstrations only put psychological pressure on the oncoming driver and are not violence. However, this jurisprudence has diverged significantly in subsequent years. in 2001 Karlsruhe ruled that anyone who chained themselves during a sit-in, as was the case during protests against the Wackersdorf refinery, was committing violence.

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Then there was “second tier case law”. Even if drivers in the front row are only under psychological pressure to slow down their car: the vehicles behind have a real obstacle in front of them and are physically forced to stop. Many years ago, the Federal Court of Justice (BGH) classified this as coercion by violence, and the Federal Constitutional Court also confirmed this jurisprudence in 2010. So the trapping of the “last generation” in the current blockades can probably be classified as violence, just like the chaining.

freedom of assembly: However, this is not the end. Because the activists of the “Last Generation” have a fundamental right on their side: “All Germans have the right… to assemble peacefully and without weapons,” as stated in Article 8 of the Basic Law. This means: Even if the acts of obstruction are classified as coercion with violence, this does not cause concern for the assembly itself. This can be seen from the 4th decision of the Federal Constitutional Court in 2010. An assembly is only considered “inappropriate” and therefore no longer has freedom of demonstration if there is violence against people or things. So far, there has been no mention of it in the roadblocks.

This starts the second step. Coercion not only presupposes violence, but also the fact that “the use of violence or the threat of evil for the purpose is regarded as reprehensible”.

So far, the vast majority of district courts have upheld it. Only a judge at Berlin’s Tiergarten District Court deviated and dismissed the blocker’s penalty. This judge appealed to the Federal Constitutional Court: the goal and the means used must be fully weighed. How long were drivers blocked, was a rescue lane formed? Is there a connection between the purpose of the campaign (measures against the impending climate catastrophe from the point of view of the blockers) and the blocked traffic? According to the Berlin judge, this ratio of final measures was maintained in the case under consideration. This is an exception to previous case law. Lawyer Christian Janeczek, a member of the criminal law section of the German Bar Association, like most lawyers, believes that pasting acts are punishable.

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For prevention behind bars

After the traffic jam In Munich, several “last generation” climate activists are back in police custody, sometimes for several days. The Munich District Court has examined the cases and ordered the arrest, police have now announced. On Monday, protesters blocked traffic at the Luitpold Bridge twice, with some of them stuck on the road. Three of the…

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