Disguise prohibition

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Masked protesters in the USA

The prohibition of masking prohibits participants in demonstrations from covering their faces or carrying objects that are intended to cover their faces and thus prevent the identification of their identity , such as balaclavas . A masking ban exists in Germany , Austria and some cantons of Switzerland . In addition to the ban on masking, there is also a ban on uniforms and a ban on so-called protective weapons , such as hockey armor or helmets.

Legal position

Germany

Masked protester in Frankfurt

There is no general ban on masking in public.

According to § 17a Abs. 2 VersammlG , which was adopted in this point by most of the federal states, masking at meetings is a criminal offense and according to § 27 Abs. 2 and § 29 Abs. 2 VersammlG with imprisonment of up to one year or punished with a fine . Carrying masking utensils is threatened in the VersG as an administrative offense with a fine of 500 euros. ( Section 29 Paragraph 1 No. 1 a VersG)

In Schleswig-Holstein , masking has only been an administrative offense since 2015, which is punishable with a maximum of 1500 euros. (§ 24 VersFG SH).

On June 28, 1985, a ban on “masking” and “ protective armament ” was passed with the votes of the conservative-liberal coalition under Helmut Kohl in the Bundestag . "Masking" became a criminal offense in accordance with Section 125 (2) StGB ( breach of the peace ) if the persons concerned were in a "violent crowd" and the police had asked them to part. In 1989 “masking” and “protective armament” were generally upgraded to criminal offenses.

Disguise in football stadiums

The legal hood ban applies in principle in football stadiums, although the football stadium the domestic authority is subject to the organizer. However, if in principle everyone has access to the football stadium, which is almost always the case with the exception of ghost games , there is no “private event” but an “other public event” i. S. of Section 17a of the Assembly Act. In practice, however, the police often refrain from intervening against masked football fans , despite the existing principle of legality , as long as they remain calm and there are no other reasons for police action.

Disguise as a driver

Since October 19, 2017, drivers are not allowed to cover or cover their faces ( Section 23 (4 ) StVO ). The driver must ensure that his vision and hearing are not impaired while driving. A mask can significantly restrict the field of vision, which also increases the risk of accidents.

During the corona pandemic, in some federal states, vehicle drivers in local public transport were allowed, and sometimes even required, to wear a face mask.

Carnival

In principle, costumes, masks and the like are prohibited at public events and may not be worn. Section 17a of the Assembly Act defines that the competent authority can also make exceptions. Thus, it is legitimate to dress up for Mardi Gras, even if it is considered disguise. There are also forbidden carnival costumes. There are a few things to keep in mind when driving a vehicle: If an accident is caused, the cladding can quickly lead to disadvantages in terms of insurance for the person concerned. So it is likely that he will be awarded at least part of the debt or, in the worst case, the insurance cover can also expire.

Austria

Black Block 2012 in Vienna

In Austria, the ban on masking is regulated in Section 9 of the Assembly Act. The prohibition may not be enforced if there is no risk of endangering public safety and order. According to Section 19, a violation can be punished with a prison sentence of up to six weeks or a fine. If a weapon is carried in the event of the offense, Section 19a provides for a prison sentence of up to six months, in the event of repetition of up to a year, or a fine.

The ban on masking was passed on July 9, 2002 in the National Council with the votes of the then governing parties (FPÖ and ÖVP, see government Schüssel ).

October 1, 2017, the true anti-face veil law that a concealment ban imports and prohibits the concealment of facial features in public spaces.

Switzerland

In the cantons of Basel-Stadt (1990), Zurich (1995), Bern (1999), Lucerne (2004), Thurgau (2004), Solothurn (2006) and St. Gallen (2009), masking is prohibited. The cantonal laws prescribe imprisonment or fine as punishment for those who make themselves unrecognizable at meetings or rallies requiring a permit. The Ticino ban on veiling (referendum 2013) forbids covering or hiding one's face in public, which also applies to covering up during meetings.

The ban on masking in Basel was reviewed by the Federal Supreme Court as part of a constitutional complaint and found to be constitutional. The Federal Supreme Court considered the possibility of an exemption (e.g. rallies by homosexuals or Islamic women, but also at events against the bad air using gas masks) to be decisive.

Italy

In Italy there has been a ban on masking in public since 1975. Article 5 of Legge 22 maggio 1975, n.152 , translates as follows: The use of protective helmets ('caschi protettivi') or any other means that is used to make it more difficult to recognize a person in a public place is prohibited or a place open to the public without a justified motive ('giustificato motivo'). (...) The law was introduced during the Anni di piombo (leaden years), during which there were extremist and terrorist groups, numerous violent demonstrations, some political murders (e.g. Aldo Moro 1978) and numerous attacks (140 between 1968 and 1974, e.g. in Milan at the end of 1969 ).

South Africa

In South Africa , the prohibition of masking was introduced as part of apartheid policy in 1969 by the Prohibition of Disguises Act ( Act No. 16/1969 ). Actions against this law were punishable by a fine of up to 200 rand , imprisonment for up to 6 months, or both. A violation was assumed if it was concluded from the circumstances of the data subject that he or she wanted to commit a criminal offense, or that he could instigate, encourage or help another person to do so, unless he could prove that he did not have such an intention . In October 1969, the Board of Directors of the Association of Law Societies criticized the state's tendency to increasingly postpone the evidence to prove innocence in alleged crimes to the accused. As an accompanying legal provision to the Internal Security Act of 1982, this law was one of the most important regulations in this sphere of activity.

background

Police video surveillance during a demonstration

The aim of the ban on masking is to facilitate the prosecution of crimes committed during a demonstration . In order to make this possible by means of face recognition, police video and photography teams are allowed to take pictures of people who pose significant threats to public safety or order. A mask would make identification difficult or impossible.

rating

Against the ban

It is debatable whether this restriction of personal freedom is an adequate and necessary means of maintaining public order . Harmless demonstrators who do not want to openly reveal their identity for other reasons (general desire for anonymity , fear of discrimination, for example by the employer, fear of violent attacks by political opponents or the police after participating in demonstrations), either make themselves up according to this law criminal or are indirectly prevented by the ban on masking from expressing their opinion in the context of a demonstration. In addition, bans on masking are more a sign of repressive (police) states than a characteristic of liberal countries. The ban on masking must therefore also be seen in the context of countries like North Korea or Egypt , where masking guarantees freedom of assembly at all by preventing the authorities from identifying unpopular people.

For the ban

Proponents oppose that a simplified implementation of criminal prosecution outweighs the desire of the demonstrators for anonymity. Discrimination by your employer is illegal . In addition, it is stated that masked participants would not give the impression of wanting to demonstrate peacefully because of their sometimes martial appearance.

Technical progress

In view of the fact that today a lot of picture material of meetings is made by private individuals and no longer mainly by the press and the police, the ban on masking may have to be reassessed. High- resolution digital cameras are affordable, and pictures and videos can easily be made available to a wide range of people via the Internet, and ultimately, in some cases, biometric facial recognition software can be used by private individuals ( FindFace as an example). A court had therefore already acquitted a demonstrator who had disguised herself to protect herself from political opponents who systematically film or photograph the rallies and possibly use the images for reprisals. The LG Hanover noted that the legislature could unwittingly make itself an assistant to certain political groups by prohibiting masking. However, the case law is not uniform. For example, the OLG Dresden decided in 2013 that the ban on masking applies unreservedly because of the abstract danger emanating from masked demonstrators. Masking is consequently also punishable if the perpetrator does not intend to evade police identification.

In 2018, the Scientific Service of the Bundestag represented in the status report "The ban on masking under assembly law", the view that masking with the aim of not being recognized by third parties is permissible. "Therefore, it is not against the prohibition, who disguises himself in order not to be recognized by third parties. Such a case exists, for example, when a participant wants to protect himself from violent political opponents, especially when these meeting participants take photos." On the basis of this legal assessment, a demonstrator was acquitted of the charge of masking in front of the district court of Germersheim in August 2019.

enforcement

The ban on masking causes the police several problems in implementation. On the one hand, it is left to the discretion of the officials and can only be judged later as to when a person is considered to be masked. Even in the case of a clear violation, further action depends on various factors: The criminal prosecution of every person wearing a hood is associated with a great deal of effort. On the other hand, calls for the constitutional principle of legality , a penalize any violations, which means that a demonstration be resolved by largely non-masked protesters must once only a few people disguise, located. This effectively gives the police a means to more or less arbitrarily restrict the freedom of assembly .

The masking ban was created with the intention of ensuring more peaceful gatherings by better prosecuting offenders. According to some voices, however, the enforcement of the ban can lead to an escalation of violence.

Legal sources

Germany
  • Law to amend the Criminal Code, the Code of Criminal Procedure and the Assembly Act and to introduce a leniency program for terrorist offenses of June 9, 1989 ( Federal Law Gazette No. 26 of June 15, 1989, page 1059 ff.)

See also

Web links

Wiktionary: Disguise ban  - explanations of meanings, word origins, synonyms, translations

Individual evidence

  1. Heiner Busch: By law against a basic right - A short history of the right to demonstrate . In: Cilip . No. 072, August 7, 2002
  2. Item 7 of the agenda with further links
  3. www.parlament.gv.at
  4. BGE  117 Ia 472, 486 .
  5. LEGGE 22 maggio 1975, n.152
  6. E 'vietato l'uso di caschi protettivi, o di qualunque altro mezzo atto a rendere difficoltoso il riconoscimento della persona, in luogo pubblico o aperto al pubblico, senza giustificato motivo. (...)
  7. Christoph Sodemann: The laws of apartheid . Southern Africa Information Center , Bonn 1986, p. 109
  8. ^ SAIRR : A Survey of Race Relations in South Africa 1969 . Johannesburg 1970, p. 40
  9. Muriel Horrell, SAIRR : Law Affecting Race Relations in South Africa . The Natal Witness, Johannesburg, Pietermaritzburg 1978, p. 433 ISBN 0-86982-168-7
  10. Criticism of the prohibition of masking by the working group on data storage
  11. a b taz.de : "Stab in the back for the Basic Law" , interview with criminal lawyer Udo Vetter , July 7, 2017
  12. a b Neues Deutschland : On the Right to Anonymity, June 28, 2010
  13. ^ LG Hanover, judgment of January 20, 2009, Az. 62 c 69/08, full text .
  14. OLG Dresden, judgment of 23 September 2013, Az. 2 OLG 21 Ss 693/13, full text .
  15. The ban on masking under assembly law . Scientific service of the Bundestag, progress report from September 13, 2018, AZWD 3-3000-313 / 18 full text .
  16. "Sunglasses, scarf and hood no disguise:" Kandel gegen Rechts "demonstrator wins in court" on pfalz-express.de from August 19, 2019 [1]