Brokdorf resolution
| Brokdorf II | ||||||
|---|---|---|---|---|---|---|
 |
||||||
| Delivered May 14, 1985 | ||||||
| File number: 1 BvR 233/81 , 1 BvR 341/81 | ||||||
|
||||||
| facts | ||||||
| Judicial confirmation of the legality of the immediate implementation of a preventive general ban on demonstrations | ||||||
| Guiding principles | ||||||
|
||||||
| Applied Law | ||||||
| Art. 5 GG, Art. 8 GG, § 80 II 4 VwGO , § 14 VersG, § 15 VersG | ||||||
| reaction | ||||||
|
The VB is justified in parts. |
The Brokdorf decision is a fundamental decision of the Federal Constitutional Court on the right of assembly from 1985. In it, the Federal Constitutional Court dealt in detail with freedom of assembly for the first time .
background
During the planning and construction phase of the Brokdorf nuclear power plant , demonstrations took place since May 1976 , some of which were violent. At the large demonstration near Brokdorf on February 28, 1981 , well over 50,000 citizens gathered and demonstrated mostly peacefully against the building. The legal dispute in the run-up ended in the last instance with a ban on this large-scale demonstration. In May 1985 the Federal Constitutional Court ruled on the constitutional complaint lodged by the organizers.
facts
On February 14th, the citizens' groups decided to hold a large demonstration on February 28th and publicly called for participation. After the details were planned on the 21st, the demonstration should be officially registered on the next working day, February 23rd, 1981 . On this day, the district administrator of the Steinburg district issued a general order by which all demonstrations directed against the nuclear power plant on the building site and the surrounding area of the Wilstermarsch were banned from February 27 to March 1, 1981 . At the same time, the district administrator ordered the immediate execution of the general decree.
The demonstration ban was justified by the fact that, contrary to the legal regulation of Section 14 of the Assembly Act, no registration had yet been made. Even if the demonstration had already been registered, it should have been banned as it would lead to unpeaceful actions. This statement was based on newspaper reports, information in leaflets from various groups and experiences at other demonstrations.
Against this general order, the organizers of the demonstrations put contradict one over which the district but initially decided not (he rejected the opposition until the summer of the year back). The Schleswig-Holstein Administrative Court ordered at the request of the complainant on 27 February 1981 the partial restoration of the suspensive effect of the contradictions to the effect that the prohibition does not concern the whole area.
The district administrator and other parties involved lodged a complaint against this with the Higher Administrative Court for the states of Lower Saxony and Schleswig-Holstein , which in the night of February 28, 1981 amended the first-instance decisions to the effect that the applications to restore the suspensive effect were rejected in full . In its reasoning, it stated that there was a risk and that no discretionary errors on the part of the district administrator could be identified. It is also questionable whether an unregistered assembly could enjoy the protection of Article 8 GG , the guarantee of which is limited by the obligation to register under assembly law.
That same night, the applicants lodged a constitutional complaint against this judgment . At the same time, the organizers submitted an application to the Federal Constitutional Court for an interim order, which was unsuccessful. Nevertheless, the demonstration took place with the participation of well over 50,000 citizens. A decision was made in May 1985 on the complaints to the Federal Constitutional Court, which had been filed by the Hamburg lawyer Klaus Sojka on behalf of a board member of the World Association for the Protection of Life and the Federal Association of Citizens' Initiatives Environmental Protection .
The decision of the Federal Constitutional Court
Constitutional interpretation of the obligation to register for meetings
In its decision on the main matter, the Federal Constitutional Court stated that the obligation to register for open-air meetings under the Assembly Act meets the constitutional requirements if interpreted in accordance with the constitution . The regulations are to be interpreted in such a way that there is no obligation to register for demonstrations that arise from a current occasion ( spontaneous demonstrations ). The court thus confirmed the relevant case law of the Federal Administrative Court and the prevailing view in the literature. In addition, the prohibition or the dissolution of a meeting cannot be based solely on the violation of the registration obligation. The wording of Art. 8 Ⅰ GG , which grants freedom of assembly “without registration or permission”, speaks for both . No exception to the registration requirement is required for large-scale demonstrations organized by numerous sponsoring organizations. However, the applicants cannot always be expected to assume overall responsibility for the demonstration.
Cooperation between organizers and authorities
The threshold for an official intervention in demonstrations to protect security and order is higher, the more the organizers of the demonstrations undertake confidence-building measures or are willing to cooperate with the responsible authorities. It is the duty of the authorities to act in a meeting-friendly manner and to contribute to the establishment of a cooperation. For large demonstrations, when applying the right of assembly, the experience with the peaceful implementation of such assemblies should be used. The court explicitly names the Gorleben Trek 1979 , the Bonn Peace Demonstration in 1981 and the human chain from Stuttgart to Neu-Ulm in 1983 as positive examples .
Protection of the freedom of assembly of peaceful participants
The freedom of assembly of peaceful demonstration participants would be maintained even if riots by individuals or a minority are to be expected. A ban can only be considered if a demonstration as a whole takes an unsettled course or if the organizer seeks or approves such a course; Here too, however, the authorities must first exhaust all means that enable the peaceful demonstrators to realize their fundamental rights.
Requirements for the hazard prognosis in the event of prohibitions
Since, unlike in general police law, bans and dissolution of assemblies could only be issued if there was a direct threat to public safety or order , strict requirements for the hazard prognosis had to be met. Suspicions or assumptions are not sufficient; rather, the forecast must be based on concrete facts, circumstances and other details.
Difference between meeting and events: There is a legal difference between event and meeting insofar as, according to Art. 8 GG, only the meeting as such is protected. For example, an event is not so strongly protected by police measures. In particular, the right of assembly (VersG) applies to restrictions on assemblies. Here participants are protected by this as long as no exclusion has taken place. This is not the case for an event. While a meeting is a matter of the state and must be registered with the police, events have to be registered with the municipality or city.
literature
- Anselm Doering-Manteuffel, Bernd Greiner, Oliver Lepsius: The Brokdorf decision of the Federal Constitutional Court 1985 . A publication from the working group for law and contemporary history at the Academy of Sciences and Literature, Mainz. Mohr Siebeck, Tübingen 2015, ISBN 978-3-16-153745-5 .
See also
Web links
- BVerfGE 69, 315 , decision of the First Senate of May 14, 1985 , file number 1 BvR 233, 341/81
- Hans Schueler: A demonstration for civil liberty. In: The time. August 2, 1985. Retrieved May 15, 2017 .
Remarks
- ↑ on the constitutional interpretation of the ban on uniforms from the BVerfG, (non-acceptance) decision of April 27, 1985 , file number 1 BvR 1138/81 , NJW 1982, 1803.
Individual evidence
- ↑ Federal Constitutional Court, decision of December 28, 1981 , file number 1 BvR 233/81 , BVerfGE, 56, 244–246 - "Brokdorf Ⅰ"
- ↑ The right to demonstrate again occupies BVG . In: Weser courier . April 14, 1981, p. 2 .
