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Right of assembly: banners are not privacy screens

Banners are important tools for gatherings, they can be used to convey content-related messages to the outside world. Often, however, they are a thorn in the side of the assembly authorities and they try to regulate the use of banners by imposing requirements. In a current appeal, the Saxon Higher Administrative Court ruled (Sächs. OVG, judgment of May 31, 2014 - 3 A 199/17 1) that the requirement that banners were not displayed or carried in such a way that “they act as a privacy screen for meeting participants can serve, d. H. that they cover the facial areas of the wearer and people walking behind the banner "is unlawful.

In order to be able to issue a condition, according to § 15 Abs. 1 SächsVersG there needs to be an immediate danger to public safety or order. The OVG was unable to identify any such.

The Higher Administrative Court of North Rhine-Westphalia ruled in 2017 that the assembly authority cannot prohibit the carrying of side banners simply because of the general possibility of their misuse to prevent the identification of troublemakers (OVG NRW, decision of 03.11.2017 - 15 B 1371/17). Rather, what is needed is concrete and comprehensible factual evidence that carrying the banners - or their size - directly endangers public safety and order.

First of all, the court makes it clear that the prohibition of masking cannot be used to justify the above-mentioned requirement:

“Just wearing banners at face level does not constitute a“ presentation ”i. S. v. Section 17 (2) No. 1 SächsVersG, which is suitable and, depending on the circumstances, aimed at preventing the establishment of identity [...] according to the wording, a "presentation" refers to the design of the body itself, for example by wearing Clothing, but not by holding objects in front of the face. This is also supported by the comparison with the regulation in Section 17 (2) No. 2 SächsVersG, according to which it is forbidden to carry objects with you to prevent identification. "

In addition, the use of banners is subject to the freedom of assembly protected by the Basic Law. The general possibility that criminals could hide behind banners or prepare criminal offenses is not sufficient for a condition. The assembly authority was unable to provide any comprehensible evidence according to which it was actually to be feared that banners would be misused by assembly participants in this way.

The verdict is gratifying, it strengthens the freedom of assembly. It would be desirable if such processes were conducted more frequently.

I provide the full text of the judgment here:

SAXON HIGH ADMINISTRATIVE COURT

In the administrative case

- Plaintiff -
- Appellant -

represented by the Lord Mayor

- defendant -
- Defendant -

Assembly law requirements (demonstration on May 31, 2014)
here: calling

the 3rd Senate of the Saxon Higher Administrative Court through the presiding judge at the Higher Administrative Court Dr. A., as well as the judges at the Higher Administrative Court B. and C. on the basis of the oral hearing

In response to the plaintiff's appeal, the judgment of the Leipzig Administrative Court of February 26, 2016 - 1 K 1556/14 - is changed. It is found that condition No. 14 sentence 3 of the defendant's notice of May 27, 2014 was unlawful.

The defendant bears the costs of the legal dispute in both cases. The revision is not permitted.

The plaintiff objects to the requirement issued on the occasion of a demonstration on May 31, 2014 not to put up banners as privacy screens for meeting participants.

In a letter dated May 12, 2014, the plaintiff registered with the defendant a meeting with the motto “Right to the city!” For May 31, 2014 for the period from 4:00 p.m. to 9:00 p.m. The expected number of participants was given as 500 people. By decision of May 27, 2014, the defendant issued a notice under assembly law. Its edition No. 14 - of which only sentence 3 is contested - reads: "Ropes, ropes, banners and flags as well as other means of demonstration may not circumnavigate the demonstration and may not be used to make any necessary police coercive measures more difficult or even entirely to prevent. Police access against troublemakers who act to protect the generally peaceful assembly must not be hindered in particular by holding up the aforementioned means of demonstration. Furthermore, banners may not be stretched or carried in such a way that they can serve as a privacy screen for meeting participants, i. H. that they cover the facial areas of the wearer and people walking behind the banner. "

The reason given was that the issuing of conditions was necessary in order to effectively counteract impending dangers to public safety and order. The condition No. 14 serves to ensure the prohibition of masking according to § 17 Abs. 2 Nr. 1 SächsVersG and does not represent a restriction for the meeting participants. The banners should not be carried in such a way that they cover the faces of the meeting participants, since the identity of one Determine the meeting participant based on his face. On the other hand, the plaintiff's interest in the greatest possible publicity must be withdrawn, especially since the publicity can also be created if the banners are worn in such a way that the faces of the people behind them are visible. The depth of engagement of the edition is thus only small.

After the objection to condition no. 14 sentence 3 was unsuccessful, the plaintiff filed a lawsuit on June 19, 2014 and requested that this condition be unlawful.

The administrative court dismissed the action for a continuation of the declaratory judgment on February 26, 2016. The admissible action is unfounded. The condition No. 14 sentence 3 of the defendant's decision of May 27, 2014 is lawful. It can be based on Section 15 (1) of the SächsVersG and serves to avert danger. Contrary to the view of the plaintiff, the condition is sufficiently specific. There is also an "immediate hazard" i. S. d. Submit Section 15 (1) SächsVersG. On the basis of the plaintiff's previous meetings, at which participants in the meeting wore the banners at face height to conceal their identity, the defendant rightly assumed that there was a high probability that such behavior would also occur at the meeting on May 31, 2014. Insofar as the defendant justified the requirement with a guarantee of the prohibition of masking, it is doubtful whether the mere wearing of banners at face height fulfills the requirements of § 17 Abs. 2 Nr. 1 or 2 SächsVersG. There is probably no "presentation" i. S. v. Section 17 (2) No. 1 SächsVersG. It is also questionable whether the banners are objects i. S. v. Section 17, Paragraph 2, No. 2 of the SächsVersG acts that are “suitable and, according to the circumstances, intended to prevent the establishment of identity”. Because in an open-air gathering protected by Art. 8, Paragraph 1 of the Basic Law, the carrying of banners at meetings, if an opinion is expressed in writing or pictures, is additionally protected by Art. 5 of the Basic Law. These questions do not require a final decision. Because the defendant based the condition in dispute also on § 15 Abs. 1 SächsVersG and correctly affirmed an imminent danger of preventing the identification of the identity by holding up banners at face level. If banners were used primarily as a privacy screen during attacks on police officers, the disputed requirement is justified. Such "abuse" would create a threat to public safety and order i. S. v. Section 15 (1) SächsVersG. If a peaceful gathering is disrupted, it is the police's primary task to remove the disturbing people from the gathering. The police could not do justice to this task, however, if their view of the meeting as a whole was taken away from the view of the meeting as a whole by holding up banners at the participants' face level. The police officers would then not be able to see what was going on in the non-observable room and whether preparations were being made there for an outward attack. From the fact that the plaintiff's demonstrations were basically non-violent, it cannot be concluded that all participants actually behaved non-violently. This was the course of other demonstrations in which, inter alia, the plaintiff had been involved as chair of the meeting, impressively proved. Contrary to the view of the plaintiff, it is not necessary that public safety disturbances are actually prepared behind the banners held up. Rather, it is sufficient that the identity of the participants is concealed by holding up the banners at face level. For this purpose, the defendant listed several meetings from 2012 and 2013 in detail. In particular, at a meeting on October 27, 2012, the first 15 rows or so would have completely wrapped themselves under a banner and pyrotechnics ignited. The defendant was allowed to fall back on this experience. In particular, the condition is also proportionate in the narrower sense. The interest in particularly clearly visible banners must subordinate to the guarantee of the security and order of the assembly. It is a comparatively minor and therefore proportionate impairment of the freedom of assembly and expression, which poses possible dangers for the physical integrity of the officials and third parties, which in the end could turn out to be very serious.

At the request of the plaintiff, the Senate approved the appeal by resolution of March 18, 2017 - 3 A 324/16 - due to serious doubts. It is questionable whether the mere wearing of banners at eye level poses an immediate danger to public safety and order.

In support of her appeal, the plaintiff explains: She registered the assembly for the alliance “Right to the City”. This unites various urban development policy initiatives, including the alliance “City for All”, as well as several common good-oriented house projects and construction trailer sites. The demonstration took place as part of the 36th BUKO Congress, which was held from May 29 to June 1, 2014 in Leipzig with the focus on urban development and migration. The demonstration served as the actionist highlight of the BUKO congress. Most of the participants in the congress had come from all over Germany.

The lawsuit is well founded, since holding up banners does not pose a direct risk i. S. v. § 15 Abs. 1 SächsVersG is given. This is the case if the imminent occurrence of damage is so close that it can occur at any time, under certain circumstances immediately. The administrative court was unable to explain to which damage occurrence simply holding up banners should lead. According to the case law of the Bavarian Administrative Court, the general possibility of misusing banners is not sufficient. Rather, there should be knowledge of impending disruptions and intentions to misuse the banners. Such facts do not exist. Even if the administrative court's view of a risk in the case of holding up banners is correct, there is no risk prognosis that such holding up will occur. In this respect, events from previous meetings could - only - represent indications, but do not replace the risk prognosis. In addition, there is not the similarity assumed by the administrative court to the meetings cited by the defendant.

to change the judgment of the Administrative Court of Leipzig of February 26, 2016 - 1 K 1556/14 - and to determine that the condition No. 14 sentence 3 of the decision of May 27, 2014 was unlawful.

to reject the appeal against the judgment of the Administrative Court of Leipzig of February 26, 2016 - 1 K 1556/17.

The defendant did not make any statements in the appeal proceedings.

For further details of the facts and disputes, reference is made to the court file and the administrative procedures involved.

The plaintiff's admissible appeal is successful. The administrative court wrongly dismissed the action, because the condition No. 14 sentence 3 of the notice of conditions of May 27, 2014, according to which "banners are not stretched or carried in such a way that they can serve as a privacy screen for the meeting participants, i. H. that through it the facial areas of the wearer are covered under people walking behind the banner ”, was illegal and violated the plaintiff's rights (Section 113 (1) sentence 4 VwGO in corresponding application).

1. With the Administrative Court of Leipzig, the action is to be viewed as admissible as a continuation action in the analogous application of Section 113 (1) sentence 4 VwGO.

In particular, the plaintiff has an interest in continuing a determination.

Effective legal protection requires that a person concerned can have onerous intervention measures checked in a main judicial proceeding. As long as he is adversely affected by the administrative act, he has the right to challenge and to take legal action under Section 42 (1) VwGO. If the administrative act is resolved by the cessation of the complaint, legal protection is granted in accordance with Section 113, Paragraph 1, Clause 4 VwGO or in accordance with Section 113, Paragraph 1, Clause 4 VwGO if the person concerned has a legitimate legal, non-material or economic interest in doing so. If his concern is exhausted in the mere clarification of the legality of the completed administrative act, an interest in continuation of a determination according to Article 19.4 of the Basic Law is to be affirmed, if otherwise no effective legal protection against such interference could be obtained. This can only be assumed in the case of measures that typically take place at such short notice that they cannot regularly be subjected to a review in the main court proceedings without the assumption of an interest in continuing a determination. The decisive factor here is whether the short-term settlement, excluding any action for rescission or obligation, results from the nature of the administrative act itself (BVerwG, ruling of May 16, 2013 - 8 C 15.12 -, juris para. 32; ruling of 16 May 2013 - 8 C 20.12 -, juris Rn. 23 ff .; SächsOVG, ruling of 25 January 2018 - 3 A 246/17 -, juris Rn. 23).

After that, there is an interest in continuing a determination here. The requirement imposed on the plaintiff regarding the handling of banners is an administrative act by the police that has been dealt with at the latest by the time the plaintiff's meeting ended. The condition challenged by the plaintiff is also an interference of some weight with her fundamental rights, since she concerns the exercise of her right to freedom of demonstration (see SächsOVG, ruling of May 19, 2016 - 3 A 194/15 - , juris Rn. 18 ff. with further references; also decision of November 17, 2015 - 3 A 440/15 -, juris Rn. 8).

2. The action for a continuation of the declaratory judgment is also well founded, because the requirement to handle banners at the meeting announced by the plaintiff has proven to be unlawful.

Pursuant to Section 15 (1) of the SächsVersG, the competent authority can prohibit the gathering or the elevator or make it dependent on certain restrictions if, according to the circumstances recognizable at the time the order was issued, public safety or order is directly endangered when the gathering or the elevator is carried out . Taking into account the fundamental importance of the freedom of assembly in the democratic community, its restriction presupposes the establishment of a practical concordance between the fundamental rights protected legal interests concerned (SächsOVG, decision of February 6, 2015 - 3 B 105/15 -Juris Rn. 6 with further references. ).

If there is a conflict of legal interests, the right to self-determination can be limited by the rights of others. In this case, mutual allocation of legal interests must be ensured with the aim of ensuring the greatest possible protection. If the opposing interests of third parties or the general public are not sufficiently taken into account when planning the registered meeting, the practical concordance between the legal interests can be established through requirements imposed by the assembly authorities (BVerfG, decision of May 6, 2005 - 1 BvR 961/05 - juris Rn. 24; SächsOVG, decision of March 17, 2017 - 3 B 82/17 -, juris Rn.5 ff .; Dietel / Gintzel / Kniesel, freedom of demonstration and assembly, 16th edition 2011, § 15 marginal number 156 with further details).

Together with the administrative court, the Senate is of the opinion that the disputed condition i. S. v. 37 para. 1 VwVfG is sufficiently determined. This is the case if the content of the regulation can be clearly and unequivocally recognized for the parties involved and in particular for the addressees of the regulation, so that they can adjust their behavior accordingly (BVerwG, ruling of 3 December 2003, BVerwGE 119, 282; SächsOVG, ruling of March 16, 2018 - 3 A 556/17 -, juris Rn. 21, Kopp / Ramsauer, VwVfG, 18th edition 2017, § 37 Rn. 5). The regulation must be understandable in and of itself. For this purpose, it is sufficient that the content of the regulation is recognizable from the overall context of the administrative act, including its justification and the details of its enactment known to the parties involved (Kopp / Ramsauer, op. Cit., Para. 12). The wording of the requirement makes it clear that the banners must not be held so high that they cover the faces of those taking part in the meeting and are therefore not recognizable.

Contrary to what the administrative court assumed, the Senate is not of the opinion that the defendant has presented sufficient facts for the assumption that there is an “immediate danger” i. S. v. Section 15 (1) of the SächsVersG existed to justify the contested condition.

If a requirement under assembly law is based on an immediate danger to public safety, a risk prognosis is required to justify it, which, with reasonable assessment of the circumstances, shows the sufficient probability of the occurrence of danger. If, in addition to indications for the risk prognosis on which the authority is based, there are also counter-indications, the authority and the courts must also deal with these in a manner that sufficiently takes into account the protection of fundamental rights under Article 8 (1) of the Basic Law. The burden of presentation and proof for the existence of reasons for a condition lies with the authority (see BVerfG, decision of December 20, 2012 - 1 BvR 2794/10 -, juris Rn. 17; decision of 12. May 2010 -1 BvR 2636/04 - Juris Rn. 17; decision of September 4, 2009 - 1 BvR 2147/09 -, juris Rn. 9 and 13). Taking into account the importance of the freedom of assembly, the authority may not place too low demands on the risk prognosis even when issuing conditions (see BVerfG, decision of December 20, 2012 loc. Cit .; decision of September 5, 2003 - 1 BvQ 32/03 -, juris para. 30).

Insofar as the defendant has based the condition that it serves to ensure the prohibition of masking according to Section 17 (2) No. 1 SächsVersG, it cannot be followed. The mere wearing of banners at face height does not constitute a “presentation” i. S. v. Section 17 (2) No. 1 SächsVersG, which is suitable and, depending on the circumstances, aimed at preventing the establishment of identity (Peters, in: Peters / Janz, Handbuch des Versammlungsrechts, 2015, F Rn. 73 mw N .; Ott / Wächtler / Heinhold, Law on Assemblies and Elevators, 7th edition 2010, § 17a marginal number 39). According to the wording, a “presentation” describes the design of the body itself, for example by wearing clothes, but not by holding objects in front of the face. This is also supported by the comparison with the regulation in Section 17 (2) No. 2 SächsVersG, according to which it is forbidden to carry objects with you to prevent identification. Only objects that are supposed to make the face unrecognizable are covered by this standard (as applicable: VG Leipzig, judgment of June 17, 2016 -1 K 1273/15 -Juris Rn. 52 with further details). Banners are also not such objects. Carrying banners at a meeting in the open air protected by Art. 8 GG is subject to both the freedom of assembly and - if an opinion is expressed on the banners in writing or images - the freedom of opinion under Art. 5 Para. 1 GG. Proceeding from this, such banners are suitable, but not intended under the circumstances, to disguise the identity (VG Leipzig, loc. Cit. Rn. 53 with reference to BayVGH, ruling of November 3, 1997 - 24 B 95.3713 -Juris Rn . 54).

The condition at issue cannot be justified solely because of the general possibility of its misuse to prevent the identification of troublemakers. Rather, concrete and comprehensible factual indications are required that there will be face concealment by holding up banners to prevent identification in the event of a specific threat of violations of public security or order (see BayVGH, decision of December 19, 2017 - IOC 17.2156 -, juris Rn. 16 with further references). The mere assumption that banners could be held at face level is therefore not sufficient. Rather, a factual prognosis is required that this handling should serve to commit crimes or other violations of public security and order while protecting anonymity. The assembly authority can also substantiate such a prognosis with specific incidents that have occurred in the past at comparable assemblies (cf. on the carrying of [page] banners: OVG NRW, decision of November 3, 2017 -15 B 1371 / 17 -Juris Rn. 11; BayVGH, decision of October 3, 2014 -10 CS 14.2156 -, juris Rn. 5; decision of April 12, 2013 - 10 CS 13.787 -, juris Rn. 4; decision of April 12, 2013 - 10 CS 13.787 -, juris Rn December 9, 2005 - 24 CS 05.3215 -, juris Rn. 21 f .; on the criteria of comparability: BVerfG, decision of May 12, 2010 - 1 BvR 2636/04 - Juris Rn. 17). The defendant was unable to provide such evidence.

Here, the defendant also relied on the grounds for the condition that otherwise the identity of every participant in the meeting could not be determined on the basis of his face. This consideration cannot justify the condition at issue. Just as the carrying of side banners cannot be prohibited simply because of the general possibility of their misuse to prevent the identification of troublemakers, but rather concrete and comprehensible evidence is required that carrying the banners directly endangers public safety and order (OVG NRW, aa O .; BayVGH, decision of October 3, 2014 loc. Cit.), Also states that the face is covered by the high shark
banners in and of themselves are not yet an “immediate threat” i. S. v. Section 15 (1) of the SächsVersG. If the defendant already considered the concealment of the face by banners to be prohibited, the necessary prognosis of a threat to public safety and order is naturally lacking.

Nothing changes in this result if one assumes that the missing risk prognosis is a mere justification deficiency, which is also accessible to a cure by making up for the justification, regardless of the interim completion of the condition notification. According to Section 39 (1) Sentences 1 and 2 VwVfG, a written administrative act must be provided with a justification in which the essential factual and legal reasons are to be communicated that prompted the authority to make its decision. This justification requirement does not require the disclosure of all the details necessary for a full review of the legality of the administrative act. However, the basic reasons on which the issuing authority was based in its decision must be given, i.e. in fact the facts determined by the authority and assumed to be given (NdsOVG, judgment of 23 February 2018 - 11 LC 177/17 - , juris marginal no. 37 with further references). On this basis, the risk prognosis for the contested edition is part of the necessary subject of its justification.

If one assumes in favor of the defendant that, with the statements in her response of August 26, 2014, she was able to cure the lack of justification according to Section 45 (1) No. 2 VwVfG, the statements there nevertheless do not offer any Sufficiently concrete evidence to justify the issue at issue. There is no concrete risk that the plaintiff at the meeting in question could use the holding up of banners while covering the face to commit crimes or other violations of public security and order, cannot be inferred from the statements there. Six demonstrations (co-) organized by the plaintiff in the period from October 27, 2012 to October 2013 are cited. Only the longest previous meeting of October 2012 is said to have covered the first 15 rows and ignited pyrotechnics . At the five subsequent meetings, the only disturbance cited is holding banners at face height, without any further incidents. This fact does not offer any reliable indications for the justification of the disputed condition. The defendant did not provide any other specific indications that the condition could be justified because of the group of participants in the disputed assembly or for other reasons. It therefore does not matter whether this meeting is comparable with the previous meetings cited by the defendant in terms of the number of participants.

If there is no concrete risk prognosis justifying the condition, the illegality of the condition does not change due to the fact that the condition at issue is a comparatively minor restriction of the freedom of assembly and expression of the participants and the applicant.

The decision on costs is based on Section 154 (2) VwGO.

The revision is not to be allowed because none of the reasons of § 132 Abs. 2 VwGO are given.

Last updated on September 7, 2020.

About the author

Attorney Dr. Jasper Prigge

Dr. Jasper Prigge is a specialist lawyer for copyright and media law. He advises companies and associations primarily on questions of copyright and IT law. Further focal points are press law and crisis communication.

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