Schwabe and M.G. against Germany

As the G8 Summit for Heads of State and Government was held in Heiligendamm, near Rostock, on June 6-8, 2007, German authorities were concerned about terrorist attacks and property destruction by radicals who planned to sabotage the summit. The reasons for the concern of the German authorities came as a result of the week prior the summit since in the country serious riots and disturbances had taken place, where over 1000 protesters were arrested and 400 police officers were injured.

During the evening of June 3, the plaintiffs were in the parking lot of Waldeck Prison in Rostock, along with 7 other people, when the police approached them. Police allege that one of the plaintiffs objected to the police’s identity check and that there were signs of a minor physical altercation. After checking their IDs, authorities inspected the plaintiffs’ car and found banners with the slogans “Freedom for all prisoners” and “Release all now”. Police then arrested the two plaintiffs and seized their placards.

They were brought before the District Court during the early hours of the morning of June 4th 2007. The court ordered their detention until June 9th 2007 on the grounds that it was prohibiting them from committing crimes.

The plaintiffs filed several appeals in the German court, but all proved unsuccessful. They were held in jail for 5 and a half days and when they were released, the G8 Summit was over. The criminal charges against one of the plaintiffs for obstructing police officers during identity check were dropped and no charges of incitement to conflict were ever filed.

Decision

The arrest and detention of the plaintiffs, according to the European Court of Human Rights (hereinafter referred to as “the Court”), violated their rights to liberty and security of person under Article 5 of the European Convention on Human Rights.

The Court rejected Germany’s allegations that its actions were in conformity with the Convention because the prohibition was necessary and reasonable, in order to prevent the commission of a criminal offense (Article 5(1)(c)) at the same time. Germany must also fulfill its obligation to protect German citizens (Article 5(1)(b)).

According to the Court, Article 5(1)(c), which allows a State to detain a person “where necessary, reasonably to prevent him from committing a criminal offense”, allows a State only to prevent a “concrete and specific act”. To rely on this basis, the state must be able to determine the location, time and victims of the potential crime. Furthermore, the detention should be carried out with the purpose to bring the individual before a competent legal body to respond the criminal charges.

The court noted that the German primary courts had consistently failed to identify alleged crimes that plaintiffs could commit. For example, one court alleged that the plaintiffs wanted to incite others to forcibly release inmates at Waldeck Jail, while another court said they intended to drive to Rostock and provoke the crowd, which included extremely violent demonstrators. The plaintiffs said that the language used in the banners was by no means intended to inspire civilians to release the prisoners by force, but rather addressed the authorities, a statement which created even more ambiguity. The court stated that the detention was not reasonably made by the authorities because the police could simply have seized the banners. The Court therefore ruled that the sentence was not justified under Article 5(1)(c).

The Court also stated that Article 5(1)(b), which authorizes detention on remand to ensure “the fulfillment of any obligation provided by law”, may be limited to situations in which a person is prohibited from forcing him to fulfill a truth and specific obligation ”, which he / she has not fulfilled. The detention should not be punitive and should definitely end after the obligation has been settled. In this case, Article 5(1) (b) did not guarantee imprisonment since Germany failed to identify the legal obligation that the plaintiffs had violated.

Freedom of peaceful assembly

The Court stated that Germany had also violated the right to freedom of peaceful assembly, Article 11 of the Convention. The breach came because the plaintiffs’ imprisonment barred them from expressing their views along with other demonstrators protesting against the G8 Summit.

The Court stated that Article 11 exclusively protects the right to peaceful assembly and that it does not apply to demonstrations in which the organizers or participants intend to use violence. However, the possibility of radicals joining the protests does not mean that the right can be violated. Where this danger exists, the right to freedom of assembly may be restricted in ways that are authorized by law, essential to a democratic society, and justified by a legitimate aim such as national security or the prevention of crime. So it is about balancing rights and freedoms.

The Court voiced that the detention of the plaintiffs for a period of several days was disproportionate to the threats in this situation. “A fair balance between the aims of protecting public safety and preventing crime and the applicants’ right to freedom of assembly could not be achieved by taking plaintiffs to prison for several days,” the Court said.

For this violation, the Court ordered Germany to pay each plaintiff the amount of 3000 euros as compensation as well as the payment of legal costs.

Eni Zere – Intern