What exactly does freedom of assembly mean?
Freedom of assembly is a fundamental civil liberty and is enshrined in Article 20 of the Universal Declaration of Human Rights and in Article 12 of the Charter of Fundamental Rights of the European Union. It states that people may assemble peacefully.
However, in this case "assembly" does not necessarily refer to any meeting of several people. Meeting up with friends at the weekend to go to a football match or to attend a rock concert with thousands of people is not an "assembly" in the same sense. Rather it refers to the right is that people have to meet other people to express an opinion or to get information, for example by attending a Fridays for Future demonstration. In this way, assemblies are an important part of the culture of public debate, doing far more than just giving citizens the opportunity to express their displeasure about, say, a new law - they actually help the government to understand what the people want.
What does the German Constitution say about freedom of assembly?
Article 8 of the German Grundgesetz guarantees the freedom of assembly. Paragraph 1 states that all Germans have the right to assemble peacefully and without weapons without registration or permission. Paragraph 2 restricts this somewhat, because open-air assemblies can be restricted by and on the basis of a law.
In addition to Article 8 GG, there is also a law on assemblies which prescribes certain regulations regarding the right of assembly. Some federal states (for example Bavaria and Lower Saxony) have their own Landesversammlungsgesetz ('state assembly law'), others follow the federal law.
What are legitimate restrictions?
As described above, "open-air" assemblies can be restricted. But what does this mean, or why might this be necessary? The law may require that such events be registered. Generally, this must be done at the appropriate assembly authority (Versammlungsbehörde) no later than 48 hours prior to the public announcement. This is mainly for practical reasons, as road traffic may need to be diverted for a demonstration marching through a city centre or to ensure that security can be guaranteed.
In addition, there may be certain requirements that an open-air assembly must observe, such as having to follow the instructions of the police regarding the route of a demonstration march.
This rule does not apply to so-called spontaneous gatherings, i.e. those where people come together unplanned and without an organiser.
If there is a danger to public safety or order, a gathering can either be broken up by the police or prohibited in advance. However, both options should always be the last resort and may only come into play if regulations for the specific assembly are not being followed. Such conditions can relate either to the conduct of the event, such as the aforementioned route that a demonstration is to take, or to the content. The latter means that a person could be banned from speaking or from carrying flags. This can happen, for example, if a right-wing extremist group carries flags with swastikas (a symbol banned in Germany), i. e. something that is also punishable outside of assemblies.
The right to hold an assembly does not apply if it aims to promote a party that has been declared unconstitutional.
If a meeting is banned in advance, the organisers can go to court. The court then decides whether the ban was lawful or whether the assembly may take place.
What are the duties of the state with regard to freedom of assembly?
The German state is obliged to guarantee freedom of assembly, regardless of the views expressed by the participants. A demonstration for more renewable energy should not be banned because the government is planning new nuclear power plants.
Freedom of assembly must also be promoted by the legislature by allowing the right to peaceful assembly to be exercised in a non-discriminatory manner. What does this mean in practice? When, for example, a right-wing group announces a demonstration, left-wing counter-demonstrations usually take place at the same time. Often there are also violent confrontations. However, concerns about such confrontations must not influence whether the demonstration is allowed to take place.
This means, for example, that the fact that it can be assumed that there will be violent counter-demonstrations at a demonstration is not reason enough to refuse permission for it from the start.
And what exactly is a "pacified district"?
A "pacified district" (“Befriedeter Bezirk”) is proclaimed around the three constitutional bodies in Germany - the German Bundestag, Bundesrat and the Federal Constitutional Court - as well as around the state parliaments in the individual federal states. In these areas, open-air assemblies are generally prohibited. This is justified by the need to ensure the working and functional capacity of these organs.
However, there may be exceptions in certain cases, namely if it can be assumed that the assembly will not restrict the work of the affected institution. This may be the case, for example, when the German Bundestag is in summer recess and no sessions are taking place.
Applying for an assembly in a pacified district is more difficult than elsewhere. The Federal Ministry of the Interior and the president of the constitutional body concerned decide whether an application can be accepted. The application must be submitted at least seven days before the start of the event. Spontaneous assemblies are not permitted.
Freedom of assembly in Germany: What is the current situation?
As with many other parts of public life, the coronavirus pandemic resulted in severe restrictions on freedom of assembly.
Especially at the beginning of the pandemic, when there was a great deal of uncertainty about the virus and its consequences, public health was often placed above the fundamental right of freedom of assembly. Many federal states also issued assembly bans along with legal ordinances to protect the population from Covid-19. These ranged from a complete prohibition of assemblies to exceptions in which assemblies had to be authorised. However, the German Constitution does not provide for such permission reservations, as it explicitly states that freedom of assembly applies without permission. Therefore, the German Constitutional Court also decided in a ruling in April 2020 that a blanket suspension of freedom of assembly is not legal.
In part, there are fears that new measures for restrictions were created during the pandemic that could also be pulled out of the drawer in other social crises.
However, our democracy thrives on social exchange and political opinion-forming. Freedom of assembly is essential to guarantee both. Bans must always be the last resort, a principle that should also apply in times of exception such as a pandemic.
Further reading on this topic: