More and more people take to the streets unannounced against the corona measures. Violence occurs more and more often. Should the state let the protesters go anyway? This is not easy to answer legally, but it is in practice.
In the third year of the pandemic, in the middle of the fifth wave, the coronavirus is putting German democracy to the test more than ever. In these weeks the country has to negotiate on two fronts as to whether other fundamental freedoms will have to back off in favor of the right to physical integrity: in the debate about a general vaccination requirement and the question of how to properly deal with the growing corona protests. While the possible compulsory vaccination is still awaiting a detailed elaboration, the basis for discussion therefore remains vague, the challenge for the free constitutional state through unannounced protests these days is very concrete.
Since the spring of 2020, people have been meeting for supposed walks, deliberately bypassing the right of assembly, to protest against restrictions on fundamental rights to protect against infection. The trick, which began with the Sunday meetings along the B96 – with a focus on Saxony – is now being used in all federal states: tens of thousands, if not hundreds of thousands, came together in hundreds of places last Monday, mostly only in two and three-digit numbers, in cities, however, more and more often also in four digits.
The state cannot turn a blind eye to questions of equal treatment for all citizens and to ensure public order. He doesn’t do that with other demonstrators either. The federal government and the federal states inevitably position themselves if the law and statute are ignored and broken. Finally, tolerating or ignoring the meetings and walks also sends out a signal.
Freedom of assembly as important as freedom of expression
But the question arises as to who commits the greater breach of the law: In his Basic verdict on the anti-nuclear power plant protests in Brokdorf In 1985 the Federal Constitutional Court placed freedom of assembly on a par with freedom of expression, which is expressed collectively at demonstrations. As the essence of democracy, freedom of expression can hardly be restricted. The only exceptions in Germany are denial of the Holocaust and efforts to overthrow the constitutional order. The freedom of assembly also has central functions because it corrects political bodies that act relatively autonomously between elections and helps integrate dissatisfied people by participating in the political decision-making process, argued Karlsruhe in 1985.
Since then, the freedom of assembly has been considered to be barely touchable. Even bans on demonstrably right-wing extremist meetings can only be enforced for cities and municipalities with great legal effort. According to the assessment of the Freiburg constitutional lawyer Dietrich Murswiek, the absolute assembly bans in the first lockdown phase were accordingly “Disproportionate from the start and therefore unconstitutional”. The Federal Constitutional Court, on the other hand, seems to support the lockdown measures of the first wave of pandemics by and large – the reasons for the judgment are still unpublished.
Doubts in Saxony
The currently applicable rigid restrictions in some federal states, such as in Saxony, where only a maximum of ten people are allowed to come together in a fixed location and subject to hygiene requirements, potentially move at least in a gray area. Greens and the left also expressed their doubts about the narrow restriction on Wednesday when the Saxon state parliament debated an AfD application to restore full freedom of assembly and, as expected, ultimately rejected it.
The Greens and Left believe that the strict requirements are more useful to those who ignore them: Because counter-demonstrations are rare, the public creates a crooked image of resolute opponents of measures and a silent crowd. The fact that people in Saxony also and especially reject the corona protests remains invisible under these conditions. In this way, the restriction of freedom of assembly becomes a boomerang.
Registered demos disregarded requirements
But the dilemma facing the state cannot be resolved by having all the meetings held as they were before the pandemic. Without requirements on distance and masks, the demonstrations would again be potential drivers of pandemics, for which there is scientific evidence. Courts have repeatedly confirmed bans on registered corona demonstrations because their registrants had not enforced compliance with the requirements at previous meetings. The only thing left for the police to do is to remind the unruly crowd of the rules and finally to dissolve the meeting. However, the state does not have to expect its servants to do this, especially since the dissolution can escalate quickly and disproportionately.
The unregistered walks are not least a reaction to these requirements. The opponents of the measures want to take to the streets without any distance or masks. If the police do not intervene, as a look at the relevant forums and platforms shows, the participants feel strengthened in their view that they are right.
If the state takes action by taking personal details, issuing evictions and imposing administrative offenses backed by fines, the demonstrators denigrate the police officers as “henchmen” and “militias”. This quickly leads to ugly scenes, the video recordings of which – partly manipulated – are distributed on social media in order to stir up the furor even further. Especially since police officers actually use excessive harshness from time to time – and the more often the more the police are overburdened by the multitude of operations and the nerves of the officials are broke. The risk of burning police officers is growing, and the pandemic could continue for a long time.
A question of the balance of power
The state police have repeatedly rejected criticism of failure to intervene with reference to the principle of proportionality. Breaking up an otherwise peaceful unannounced demonstration using force would actually be a questionable procedure. However, so far it has been shown that violence only occurs when the number of police officers is significantly too low. In Saxony, warns the police union GdP, that is exactly what is happening more and more often. The officials cannot be everywhere at the same time and certainly not preventively.
The question of proportionality is increasingly oriented towards the balance of power between the demonstrators and the police officers present. In case of doubt, the state has to let go, which it actually cannot tolerate if laws are to apply equally to everyone. For those who resolutely oppose corona protests, this is a bitter truth – with which they will have to come to terms for the foreseeable future.