Saturday, July 11, 2020

Corona measures particularly affect freedom of association

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Dhe Federal Constitutional Court lifted a ban on the assembly as unconstitutional for the first time since the beginning of the Corona crisis. Behind the lawsuit was an alliance of activists who worked daily at Berliner Platz in Gießen from April 14 to 17 under the motto “Strengthen health instead of fundamental rights – protection against viruses, not against people”, among other things for the reception of asylum seekers and wanted to demonstrate the introduction of an unconditional basic income.

The event was prohibited by the city of Gießen, although the organizers had announced that a minimum distance of six meters between the demonstration participants would be ensured by means of marked starting positions, folders and signs.

The Federal Constitutional Court does not conclusively comment on the admissibility of the planned demonstration. However, the ban is unconstitutional if only because the city has assumed that any demonstrations can currently be prohibited, regardless of their specific risk potential and any protective measures. This does not correspond to the Hesse Corona Regulation, nor does it do justice to the fundamental rights of freedom of assembly.

Success for the Gießen Alliance

“We then carried out a reassessment and approved the meeting for the remaining dates on April 16 and 17,” said Giessen Mayor Peter Neidel at the request of F.A.Z. However, the number of participants is limited to 15 people and the meeting should not last longer than an hour to prevent spontaneous access by passers-by. In addition, a mouth protection and minimum distance requirement apply.

Another decision from Karlsruhe last Thursday shows that the Federal Constitutional Court is willing to support the complete prohibition of meetings if the reasons are justified. In it, the same three judges, who were now also responsible for the Gießen case, confirmed the ban on a planned meeting on the banks of the Isar in Munich.

In this case, the meeting leaders had announced that they would ensure that a safety distance was maintained. However, the city of Munich had objected that the spontaneous arrival of other participants in the assembly, onlookers or counter-demonstrators, who in turn would not pay attention to compliance with the distance rules, could not be ruled out.

Crossover judgments on demo in Munich

The Karlsruhe judges found the argument plausible enough not to lift the ban in any event in the proceedings for interim relief. However, the small demonstration under the motto “Protect freedom of association even during the Corona crisis” could nevertheless take place because the Bavarian Administrative Court, also called, ruled on the same day in a rare, hasty overlap in legal protection in favor of the demonstrators.

The growing number of first instance administrative court decisions shows that freedom of assembly is particularly sensitive to infection control measures. If the judges agree with the plaintiffs, they regularly demand a maximum of 15 or 20 participants. Wearing a face mask is usually mandatory so that small-scale demonstrations can continue; paradoxically, a masking requirement applies.

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