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After the riots at the “lateral thinking” demonstration in Leipzig last Saturday, there was criticism for the reluctance of the police, but also of the responsible Higher Administrative Court (OVG) in Bautzen, which made possible the demonstration in the center of the city.
Now the OVG has published its reasoning. SPIEGEL also has the reasons for the previous decision of the Leipzig Administrative Court, which required that the demonstration be moved from the city center. And as incredible as it may seem:
Both resolutions are legally defensible. At best, it can be said that the consequences of the OVG’s decision were apparently underestimated, but this accusation applies more to those who had to implement it than to the judges themselves.
Outskirts or downtown?
First of all, the initial situation: the city of Leipzig had requested, among other things, that the demonstration be moved to the outskirts, to the place of the fair there. Only there, in view of the expected number of participants, could the required safety distances due to the corona pandemic be observed. In addition, there are fewer violations of fundamental rights that other citizens may fear. The city also ordered that participants wear mouth and nose masks at the demonstration; Certificates that must be exempted from this obligation must be submitted upon request. The information provided by the organizer on the number of participants fluctuated between 16,000 and 50,000 in the course of the performances. The city took on around 20,000 participants.
The Leipzig administrative court agreed with the city. In response to a complaint from the organizer, the 6th Senate of the Higher Administrative Court only modified the decision of the administrative court on one point, but crucial: the demonstration can be held in the city center, but the meeting is “limited to a maximum of 16,000 participants “and will take place in the planned area in order to maintain the necessary distances. If there are more participants, it should dissolve.
How many square meters per person?
The organizer himself assumed a space requirement per person greater than that of the city: he based ten square meters per participant to also “allow passage through the meeting area”, as indicated in the VG resolution. The health department of the city of Leipzig in turn calculated that six square meters per participant was sufficient.
However, the city made it clear that the area designated by the organizer, in addition to Augustusplatz in front of the opera, parts of the adjacent inner city ring and other streets without associated green spaces, was too narrow for the expected number of participants. Also because it is necessary to count on “an unwanted consolidation of the assembly towards Augustusplatz”, the central meeting place.
Furthermore, the rights of road users are “disproportionately restricted” by the demonstration on these central streets. In view of the large gathering area, the organizer could hardly follow the fact that his “intervention options” were “difficult” or “almost impossible”.
In the end, city officials should be right.
The “balance of interests” of the administrative court was in favor of the city: limiting the number of participants “was not a softer means” than relocation, according to the VG judges.
The fact that potential participants who have traveled but have not had access to the main demonstration simply distribute themselves to other locations in the city center seems “impractical”. And it is “reasonable that the organizer also” expresses his communication concerns “in an alternative meeting place.
But that’s exactly what the OVG judges saw differently.
The fundamental right to freedom of assembly in article 8, paragraph 1, of the Basic Law protects “common physical display of convictions”, and that includes “choice of venue”.
Background: The organizer was really looking forward to hosting the event on the historic Augustusplatz. It is the annual festival of lights on November 9, which is reminiscent of the peaceful revolution of 1989, but was canceled this year due to the corona pandemic.
The OVG judges were of the opinion that, in view of this, it was less onerous to limit the number of participants than to demand relocation of the demonstration. In addition, the organizer has already announced that the demo will be canceled if it is referred to the new fair.
Essence of jurisprudence
The fact that two courts are largely in agreement, answering only a detailed question (in this case, whether another meeting place is reasonable) differently, and thus arriving at a completely different result, is part of the essence of law.
In hindsight, it is easy to say that the fears of the city, which the Leipzig Administrative Court followed, have come true, or have even been overcome by reality.
On the other hand, the Superior Administrative Court can be credited with trying to protect the fundamental right to freedom of assembly in the best possible way. The judges can hardly be blamed for the fact that the court’s requirements were not met and, above all, the police did not react earlier and better to violations of the number of participants, as well as the mask and distance requirements.
“Presumption in favor of freedom”
“The basic right to freedom of assembly is one of the most important constitutional decisions,” says Göttingen constitutional lawyer Frank Schorkopf. If the forecasts are not clear, there is “a presumption in favor of freedom”, that is, “if you want to restrict the right of assembly, you need very reliable facts.”
The fact that the demonstration was precisely about the crown restrictions, the celebrations of the revolution and the festival of lights, basically would have made it even more difficult to justify the move to the outskirts. “The organizers presented themselves as heirs to Monday’s demonstrations in Leipzig,” says Schorkopf, “but that is also something that must be respected legally.”
The consequences, according to Schorkopf, including necessary police action, must be accepted, “if necessary, by grinding teeth.” And if the game is repeated, the judges must show that they are “capable of learning.” The federal state of Saxony has already tightened the rules for meetings after the chaos in Leipzig.
The next demonstration of “lateral thinking” is scheduled for next Saturday. In Karlsruhe. Headquarters of the Federal Constitutional Court.
