Icon: enlarge
Participant in the demonstration in Leipzig
Photo: Sebastian Kahnert / dpa
After the riots at the Leipzig "lateral thinking demo" last Saturday, there was criticism of the reluctance of the police - but also of the responsible Higher Administrative Court (OVG) in Bautzen, which made the demonstration in the city center possible.
Now the OVG has published its reasoning.
SPIEGEL also has the reasons for the previous decision by the Administrative Court in Leipzig, which demanded that the demonstration be relocated from the city center.
And as amazing as it may sound:
Both resolutions are legally defensible.
At most, one can say that the consequences of the OVG decision were apparently underestimated - but this accusation applies more to those who had to implement it than to the judges themselves.
Outskirts or center?
First of all, the initial situation: The city of Leipzig had requested, among other things, to move the demo to the outskirts, to the site of the trade fair there.
Only there, in view of the expected number of participants, could the safety distances required due to the corona pandemic be observed.
In addition, there are fewer fundamental rights impairments for other citizens to be feared.
In addition, the city ordered that the participants wear mouth and nose masks at the demonstration;
Certificates that should exempt from this obligation are to be shown on request.
The information provided by the organizer on the number of participants fluctuated between 16,000 and 50,000 in the course of the proceedings.
The city assumed around 20,000 participants.
The administrative court of Leipzig agreed with the city.
In response to a complaint by the organizer, the 6th Senate of the Higher Administrative Court only changed the administrative court's decision in one but crucial point: The demo may be held in the city center, but the meeting is "limited to a maximum of 16,000 participants" to take place on the planned area to be able to keep the necessary distances.
If there are more participants, it would have to be dissolved.
How many square meters per person?
The organizer himself assumed a higher space requirement per person than the city: he based ten square meters per participant in order to also "enable passage through the assembly area", as stated in the VG resolution.
The health department of the city of Leipzig in turn calculated that six square meters per participant was sufficient.
Nevertheless, 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 tight for the envisaged number of participants.
Also because one has to reckon with "an unwanted consolidation of the assembly towards Augustusplatz", the central meeting place.
In addition, the rights of road users are "disproportionately restricted" by the demonstration on these central streets.
In view of the widely spread assembly area, the organizer could hardly keep track of the fact that his "intervention options" were "made difficult" or "made almost impossible".
In the end, the city officials should be right.
The administrative court's "balancing of interests" was in favor of the city: the limitation of the number of participants was "not a milder means" than the relocation, according to the VG judges.
The fact that potential participants who have traveled but would not get access to the main demo simply distribute themselves to other places in the city center seems "impractical".
And it is "reasonable for the organizer to also" express his communicative concerns "at an alternative meeting place.
But that is exactly what the OVG judges saw differently.
The basic right to freedom of assembly from Article 8 paragraph 1 of the Basic Law protects "the common physical visualization of convictions", and this also includes "the choice of location".
Background: The organizer absolutely wanted to hold the event on the historic Augustusplatz.
It is about the annual festival of lights on November 9th, which is reminiscent of the peaceful revolution in 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 burdensome to limit the number of participants than to demand that the demo be relocated.
In addition, the organizer has already announced that the demo will be canceled if he is referred to the new fair.
Essence of jurisprudence
The fact that two courts are largely in agreement, answering only one detailed question - here, whether another meeting place is reasonable - differently, and thus arriving at a completely different result, is part of the essence of jurisprudence.
In retrospect, it is easy to say that the city's fears, which the Leipzig Administrative Court followed, have come true - or have even been exceeded by reality.
On the other hand, the Higher Administrative Court can be credited with trying to protect the fundamental right to freedom of assembly in the best possible way.
The fact that the requirements of the court were not complied with - and, above all, the police did not react earlier and better to the violations, both against the number of participants, but also the mask and distance requirements - can hardly be blamed on the judges.
"Presumption in favor of freedom"
"The basic right to freedom of assembly is one of the very big constitutional decisions," says the Göttingen constitutional lawyer Frank Schorkopf.
If the forecasts are unclear, 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 demo was precisely about the corona restrictions, the revolution celebrations and the festival of lights, would have basically made it even more difficult to justify relocation to the outskirts.
"The organizers presented themselves as heirs to the Leipzig Monday demonstrations," says Schorkopf, "but that too is something that has to be legally respected".
According to Schorkopf, the consequences, including the necessary police action, are to be accepted, "if necessary, grinding teeth."
And if the game repeats itself, judges should also show themselves to be "capable of learning".
The federal state of Saxony has already tightened the rules for meetings after the chaos in Leipzig.
The next lateral thinking demo is planned for next Saturday.
In Karlsruhe.
The seat of the Federal Constitutional Court.
Icon: The mirror