Corrona protest: hold out! Commentary by Thomas Fischer

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Demonstration in front of the Victory Column (August 29, 2020)

Cowards

Oh dear! Tragic! Does Germany have to go under now? This question arises - somewhat modified from the "Reichsbürger" point of view - in the face of the pre-revolutionary situation in ... oh yes: Berlin that was proclaimed by hunger artists, ice queens, shashlik roasters and admirers of the Führer. There, the immediate resignation of the "Merkel regime" was demanded today, as well as a peace treaty between the USA and the Union of Soviet Socialist Republics, or whatever is left of it, to end the Second World War and smoothly transition the (Greater) German Reich into a true one , real, real, authoritative people's democracy. There are no viruses there, and certainly no strangers. Just true love, folk hygiene and the one on the mouth who is against it.

Basics

A quick look back: On August 26th, the police chief of Berlin. Several large demonstrations were banned today, Saturday (29.8.) in Berlin (Brandenburger Tor; Straße des 17. Juni) against the "Corona policy", namely against any restrictive legal and administrative measures to protect against infection, and these bans declared "immediately enforceable". With these demonstrations and rallies, the organizers wanted to protest against what they believed to be unconstitutional encroachments on the rights of citizens protected by the constitution (in particular Article 2, Paragraph 1 of the Basic Law - general fundamental freedom, but also other guarantees).

The organizers applied against these rulings in a so-called urgent procedure before the competent administrative court to "restore the suspensive effect" of the objections lodged against the prohibition ruling. The procedural background is as follows: A "contradiction" is permissible against an onerous administrative act by an authority (here: prohibition), on which the higher authority decides in principle; against their decision ("objection notice") one can bring an action to the administrative court.

This naturally takes time. Above all, however, the objection has "suspensive effect", that is, the ban will not become legally binding until a final decision has been made.

To avoid this, "immediate execution" can be ordered. Then the admissible and sensible legal remedy is the application for restoration of suspensive effect. The whole thing happens in the "interim legal protection" procedure, a fast-track procedure in which a "summary", "provisional" review is carried out by the court in urgent cases.

The legal situation is therefore determined without further taking of evidence according to the current situation in the sense of a prognosis: How serious is the intervention that is contested? Could it be redeemed later if the order / prohibition proves unlawful in the main proceedings? Which legal aspects speak for the legality of the onerous intervention?

Thomas Fischer, arrow to the right

Born in 1953, is a legal scholar and was Chairman of the 2nd Criminal Senate of the Federal Court of Justice. He is the author of an annually revised standard short commentary on the criminal code and numerous other specialist books.

In short, a preliminary assessment of the chances of success of the appeal is made, taking into account the disadvantages (for both sides) that could result from immediate execution.

In the past few days we have heard hundreds of times about the freedom to demonstrate and about Article 8 of the Basic Law. For those who don't remember him exactly:

"(1) All Germans have the right to assemble peacefully and without weapons without registration or permission.

(2) For meetings in the open air, this right can be restricted by statute or on the basis of a statute. "

According to the Basic Law, this is not a human right, but a civil right: In Germany (only) it applies to "all Germans " . Art. 5 GG (freedom of opinion and freedom of the press) and Art. 10 of the European Convention on Human Rights (freedom of opinion) do not result in anything else. In addition, when talking about demonstrations, one must pay attention to paragraph 2: The right of assembly can be restricted by law (or by an administrative act based on a law). Section 15 of the Assembly Act (VersG) is such a law:

(1) The competent authority can prohibit the assembly or the elevator or make it dependent on certain conditions if, according to the circumstances recognizable at the time the order was issued, public safety or order is directly endangered when the assembly or the elevator is carried out (...)

(3) It can dissolve a meeting or a lift if (...) the information given in the registration is deviated from or the conditions are violated or if the conditions for a ban in accordance with paragraph 1 ... are met.

In administrative law, the blood rarely splatters

The Berlin police authority based its prohibition order on this: After the experience of the demonstration and rally in the same direction only recently, a large number of deliberate and demonstrative violations by participants of the regulations of the Berlin SARS-CoV2 Infection Protection Ordinance can be expected; furthermore that the organizers would not seriously prevent this and would not seriously implement a so-called "hygiene concept" presented by them when registering.

Administrative law, also (!) The law of protection against infection and the right of assembly that is at home in this cosmos, is a somewhat "dry" matter in which the blood usually only rarely splatters and does not stir very quickly.

Those affected and observers would often like this, for various reasons: Some because they like to see their concern as a guarantee that they are right, others because they like to make a dramatic story out of counting peas and often of necessity It's all about enemies and friends, winners and losers, resignations and battles and at the end a gladiator leaves the battlefield with the golden pea cup while the other is rustling in the dust and no longer receives a list position from the "committee" that is threatening at any time. Therefore, the argumentative paths from one's own concern to the highest and most dramatic heights of the constitution and "proportionality" are often very simple and often very short.

The basic right to demonstrate under Article 8 of the Basic Law is important and weighty. His almost anthemic elevation to the "absolutely constitutive" requirement of a democratic constitution, which was heard once more in the last two days, seems to me to be a bit exaggerated. Public safety and order reasons may limit it as far as outdoor demonstrations are concerned. Public safety is - among other things - the application of the entirety of the state legal system.

Public order is (also) unwritten rules, prerequisites for coexistence and well-being, e.g. health or freedom from fear. Section 15, Paragraph 1 of the VersG therefore formulates a lawful, constitutional, legal limit to the exercise of fundamental rights that has to be specified in individual cases. It goes without saying that the state does not have the task of protecting the right of its citizens to demonstrate "at any price", but also the duty to protect its citizens from breaches of law, injuries or attacks.

Considerations

Whether the prerequisites for a prohibition order according to Section 15 (1) VersG are met is, according to its wording, a determination that requires (several) considerations. For this reason alone, it is a mistake to claim, depending on the result, that the authority or the court decided "according to the letter of the law" (good) or not (bad). Unfortunately, it is not that simple, as can be seen from the fact that those who spread such triumphant or damning quick assessments usually fail miserably at the next corner with their own subjective ideas and prognoses: It is, except in sacred scriptures and old legends, no all-wise judge has yet fallen from heaven, even if many citizens believe that their own incomparably correct opinion in their own last legal battle proved exactly this.

The police chief of Berlin assessed the situation on August 26th in such a way that massive violations of the Infection Protection Ordinance and therefore a direct threat to public safety and order are to be expected. The Administrative Court (VG) Berlin did not see it that way - in the urgent procedure - but (presumably) viewed the "immediacy" as doubtful. The organizers had agreed on a security concept with the authorities and demonstrated organizational efforts to implement it. Therefore, the court held that a prohibition of the demonstration would create a (irreversible) threat to the fundamental right, but that the demonstration would not be a certain immediate threat to the public. From the point of view of "proportionality" (suitability, necessity, appropriateness) there was probably a lack of necessity (I do not know the text of the VG decision): Mellower means were sufficient, here: Further requirements under the VersG.

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Title: On Punishment: Law and Security in a Democratic Society

Editor: Droemer HC

Number of pages: 384

Author: Fischer, Thomas

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This decision was made by the Higher Administrative Court (OVG) Berlin-Brandenburg, to which the police authority had lodged a complaint against the first-instance urgent decision, on August 28. confirmed in another urgent decision. The suspensive effect of the objection to the prohibition was thus legally restored. The authority could not lodge a constitutional complaint (VB) against it, as the organizers could have done against a contrary decision: The VB is due to the citizen ("everyone") against intervention by the state, not the other way around. This decision of the courts was justifiable and naturally to be respected. The sometimes malicious comments against the "losers" on the part of the interior authorities are just as absurd as it would be bitterness on the other side.

It must be correctly and emphatically made clear that the proceedings were not about "opinion" as such. The "opinions" that are represented at the demonstration can be as right, wrong, clever or stupid as they want: Not only are they allowed as such, but they are also allowed to be expressed as long as they do not violate general laws violates (Art. 5 Abs. 2 GG). It can be assumed with certainty that the Senator for the Interior of the City of Berlin knows this and takes it into account in his work. The wise words that a well-known freedom and corona specialist from the Hochsauerland on August 29th. fed into the interview world to point out to the senator the "unhappiness" of his formulation, he did not want to give Reich citizens, right-wing radicals and nuts a stage for the manifestation of their "opinions" and hateful messages, we have heard, but we feel certain Doubt that they were spoken with a pure heart. It remains to be seen whether that specialist in increasing the number of unemployed people could halve the number of virus infections and Reich citizens by raising the magic index finger within a year.

What happened next

The police chief had predicted that the demonstration participants, tolerated or even encouraged by the organizers, would massively and demonstratively violate the requirements of the Infection Protection Ordinance. After fighting for the right to prove the opposite and hold the demonstration, the legal friends did exactly what was predicted: They disregarded all the police's requirements and warnings. They did not come to abide by the law, but to "revolt" against an injustice regime that existed in their imagination or in their deliberate lies. Hence the rally / gathering has been disbanded. Of course, that doesn't happen quickly and easily. It will tie up huge police forces all weekend, cause a lot of aggression, including violence, and cause very high costs.

That is the price of freedom: our freedom - one could say; and obviously it's true too. It is futile to want to be excited afterwards that you were right and the courts were wrong. Because that's not true: the fact that the positive prognoses of the court decisions have not been confirmed does not speak against them, but against the applicants. That is also a consolation: the state, which demands compliance from its citizens, adheres to its own rules. That is the core of the "constitutional state" - not a "justice" that is fantasized according to need, which is usually nothing more than an elegant description of one's own interests.

Personally, I found the police chief's prohibition order appropriate and correct. But it surprised me insofar as it showed a rule of law consistency that otherwise does not always appear to be guaranteed. It is correct: Anyone who wants to demonstrate against the regulation to wear protective masks must not do so by demonstratively not wearing protective masks and everyone coughing.

Even the judiciary cannot be "blind" and follow any "letters"

Anyone who demonstrates against the criminal liability of property damage may not do so by breaking all the window panes on his way. And those who demonstrate against globalization politics or right-wing extremist xenophobia, armed with cobblestones, are not allowed to go into battle blocks to the fictional arena of an adolescent orgy of violence, in which the sole aim is to injure as many police officers as possible and to destroy symbols of the hated enemies.

It is actually clear: the rules of the game that citizens in a state can and must agree on if they want to live reasonably safely. This means that compliance with the rules of the game is not made dependent on whether you see yourself as "good" (which you usually do) and the other as "bad" (and therefore without rights).

We know, however, that it is not that easy, and that there are many strings attached to the evaluations and considerations that many interested parties use. Even the judiciary cannot be "blind" and follow any "letters" - no matter what the cost. That doesn't happen either, contrary to all denouncing claims. And finally, one has to consider that neutral compliance with the rules, although substantially important, is at best half the battle for the rule of law. The functioning of a halfway peaceful, halfway viable society presupposes much more than a state apparatus that ensures "calm" with an iron, seemingly neutral hand (and precisely because of this always only fortifies the existing). It's about constructive arguments, opposing opinions, looking for balance.

Let's put it this way: The "opinions" represented by the demonstrators in Berlin are partly irrelevant, partly touching, partly outrageous, partly dangerous. No matter how the weekend goes on, it won't keep the excited promise of chaos. On Monday the street will be swept and the street of June 17th will be free again. You can bear that.