AS TO THE ADMISSIBILITY OF
Application No. 13858/88
by C.S.
against the Federal Republic of Germany
The European Commission of Human Rights sitting in private
on 6 March 1989, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
G. SPERDUTI
E. BUSUTTIL
G. JÖRUNDSSON
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
Mr. L. LOUCAIDES
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 16 March 1988
by C.S. against the Federal Republic of Germany and
registered on 12 May 1988 file No. 13858/88;
Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The facts of the case, as they have been submitted by the
applicant, may be summarised as follows:
The applicant, born in 1950, is a German national and resident
at F.. She is a social pedagogue by profession. Before the
Commission she is represented by Mr. R. Schmid, a lawyer practising at
N..
On 27 March 1984 the Schwäbisch Gmünd District Court,
(Amtsgericht) in summary proceedings, convicted the applicant of
having committed unlawful coercion (Nötigung) under S. 240 of the
German Criminal Code (Strafgesetzbuch) on two counts. She was fined
DM 1200.
S. 240 of the Criminal Code provides:
"(1) Wer einen anderen rechtswidrig mit Gewalt oder durch Drohung
mit einem empfindlichen Übel zu einer Handlung, Duldung oder
Unterlassung nötigt, wird mit Freiheitsstrafe bis zu drei
Jahren oder mit Geldstrafe, in besonders schweren Fällen mit
Freiheitsstrafe von sechs Monaten bis zu fünf Jahren bestraft.
(2) Rechtswidrig ist die Tat, wenn die Anwendung der Gewalt oder
die Androhung des Übels zu dem angestrebten Zweck als
verwerflich anzusehen ist.
(3) Der Versuch ist strafbar."
"(1) Anybody who coerces another to do something, tolerate
something or omit to do something by force or dangerous
threats shall be punished with imprisonment up to three years
or a fine, in specially aggravated cases with imprisonment from
six months to five years.
(2) The act shall be unlawful only if the application of the force
or the dangerous threat to the desired end is blameworthy.
(3) An attempt is punishable."
On 6 September 1984, the Schwäbisch Gmünd District Court, upon
the applicant's appeal (Einspruch), held trial and convicted her of
unlawful coercion on two counts. She was fined DM 1600 (40 day rates
of DM 40).
The District Court found that the applicant had participated
in demonstrations in front of the US military barracks at Mutlangen on
30 December 1983 and 6 January 1984 in order to protest against
nuclear armament. The applicant and other demonstrators had blocked
the road to the barracks for several minutes and thus prevented
military cars from using the road. The police had three times ordered
that the demonstrators should leave the road. The applicant and others
who did not comply with this order were then carried away.
The District Court considered that the sit-ins on the approach
road to the US military barracks in Mutlangen constituted coercion by
force within the meaning of S. 240 of the Criminal Code. Furthermore,
the Court was of the opinion that coercion of others in order only to
get public attention for one's political aims was blameworthy within
the meaning of S. 240 para. 2 of the Criminal Code.
On 9 February 1987 the Ellwangen Regional Court (Landgericht)
dismissed the applicant's appeal (Berufung). The Regional Court
considered in particular that the applicant and the other participants
in the sit-ins on 30 December 1983 and 6 January 1984 had used force
to prevent the drivers of military cars from using the road.
Furthermore, the Regional Court, having regard to the right to freedom
of expression and the right to peaceful assembly as guaranteed by the
Basic Law (Grundgesetz), found that, in a democratic society, the use
of force in order to influence public opinion could not be tolerated.
On 15 May 1987 the Stuttgart Court of Appeal (Oberlandes-
gericht) dismissed the applicant's appeal on points of law (Revision).
On 14 September 1987 the Federal Constitutional Court (Bundes-
verfassungsgericht) refused to admit the applicant's constitutional
complaint (Verfassungsbeschwerde). It found that the decisive issues
under the Basic Law had already been decided by the Court in its
judgment of 11 November 1986, and that the applicant's complaint
offered as little prospect of success as those constitutional
complaints which had been rejected by the above judgment.
In the above judgment of 11 November 1986 the Federal
Constitutional Court had dismissed several constitutional complaints
of persons who had participated in sit-ins and then been convicted of
unlawful coercion by force. It could not find a violation of the
Basic Law due to equality of votes.
In this very detailed judgment of 57 pages, the Constitutional
Court observed that the legal opinions in jurisprudence and doctrine
as regards sit-ins were divergent. It found that the definition of
unlawful coercion in S. 240 of the Criminal Code was sufficiently
concrete and did not violate the requirements of legal certainty
(Bestimmtheitsgebot), as derived from Article 103 para. 2 of the Basic
Law (Grundgesetz). However, the application and interpretation of S.
240 of the Criminal Code by the German courts could raise problems
with regard to the prohibition of defining crimes by analogy with
existing offences (Analogieverbot), also derived from Article 103
para. 2 of the Basic Law.
Article 103 para. 2 of the Basic Law provides that an act can
be punished only if it was an offence against the law before the act
was committed.
The Federal Constitutional Court noted that the term "force"
in S. 240 para. 1 of the Criminal Code was initially interpreted as
use of physical force by the offender in order to overcome actual or
probable resistance (Entfaltung von körperlicher Kraft durch den Täter
zur Überwindung eines geleisteten oder erwarteten Widerstands). In
subsequent cases the Federal Court of Justice (Bundesgerichtshof) held
that there was also "use of force where the offender acts in such a
way as to cause the victim's resistance (actual or probable) to be
overcome by an agent acting directly on the victim, the amount of
physical force used being irrelevant" ("Gewalt liegt auch vor, wenn
der Täter durch körperliche Handlungen die Ursache dafür setzt, daß
der wirkliche oder erwartete Widerstand des Angegriffenen durch ein
unmittelbar auf dessen Körper einwirkendes Mittel gebrochen oder
verhindert wird, gleichviel, ob der Täter dazu größere oder nur
geringere Körperkraft braucht"). Finally, in a decision of 1969
concerning sit-ins, the Federal Court of Justice considered to be
decisive that there was "an effect which inevitably influenced the
victim's freedom to decide or to turn ideas into actions" ("eine die
Freiheit der Willensentschließung oder Willensbetätigung beeinträch-
tigende Zwangswirkung"); it was "sufficient that the offender, with
only a minimal expenditure of energy, set up a process which acted
conclusively on the victim's mind, thereby compelling him to act in a
particular way" ("es genügt, daß der Täter mit nur geringem Kraft-
aufwand einen lediglich psychisch determinierten Prozeß in Lauf setzt
und dadurch einen unwiderstehlichen Zwang auf den Genötigten ausübt").
Four judges of the Constitutional Court found that the
application of S. 240 of the Criminal Code to sit-ins such as in the
present case was incompatible with the prohibition of defining crimes
by analogy to existing offences under Article 103 para. 2 of the Basic
law. The progressively broader interpretation of the term "force"
under S. 240 of the Criminal Code had not been foreseeable for the
citizen. The context of S. 240 para. 1 clearly indicated that not any
coercion was deemed to be punishable, but only coercion by "force" or
"dangerous threats". They considered that the participants in the
sit-ins in question did not use force, but, after sitting down on the
road, they remained completely passive. Moreover, it had not been
established that any driver had felt compelled to stop by the sit-ins.
In the opinion of the four other judges the broad
interpretation by German courts of the term "force" in S. 240 para. 1
of the Criminal Code cannot be objected to under constitutional law. It
observed the limits of the ordinary meaning of the term "force" as long
as an expenditure of energy in the process of compelling the victim
was required. Furthermore, having regard to the jurisprudence of the
German courts in such matters, the risk of penalty for behaviour such
as in the present case was foreseeable.
Furthermore, the Constitutional Court unanimously found that
an act of "coercion by force" in the broad interpretation of S. 240
para. 1 of the Criminal Code should, however, not automatically be
considered unlawful. The unlawfulness had to be established
separately under S. 240 para. 2. The judges disagreed about whether
sit-ins were "blameworthy".
Four of the judges found that sit-ins such as in the present
case, which intended to force public attention towards protest against
nuclear armament, were in principle not blameworthy.
The four other judges found that the application of S. 240
para. 2 of the Criminal Code, notably the assessment of the particular
circumstances of a case, were the task of the criminal courts. The
conviction in the present case did not arbitrarily disregard any
constitutional right. The right to peaceful assembly under Article 8
of the Basic Law would not justify sit-ins which aimed principally at
obstructing the traffic and were lawfully dispersed by the police.
Furthermore sit-ins could not be justified as measures of "civil
disobedience" ("ziviler Ungehorsam"), i.e. sensational action in
breach of law (aufsehenerregende Regelverletzung) in order to protest
against national policy.
COMPLAINTS
1. The applicant complains under Article 7 of the Convention that
her participation in the sit-ins in front of the US military barracks
at Mutlangen, although not constituting a criminal offence under
German penal law, was treated, by analogy to the criminal offence of
"coercion by force", as punishable under S. 240 of the Criminal Code.
2. The applicant also complains under Article 11 of the
Convention that her conviction for unlawful coercion violates her
right to freedom of peaceful assembly.
3. Furthermore, the applicant invokes Article 14 of the
Convention in respect of her above complaints.
THE LAW
1. The applicant complains under Article 7 (Art. 7) of the Convention that
her conviction by the Schwäbisch Gmünd District Court on 6 September 1984 and
the Ellwangen Regional Court on 9 February 1987 for her participation in two
sit-ins was based on an unlawful analogy to the existing offence of unlawful
coercion by force under S. 240 of the German Criminal Code.
Article 7 para. 1 (Art. 7-1) of the Convention reads as follows:
"No one shall be held guilty of any criminal offence on account of any
act or omission which did not constitute a criminal offence under
national or international law at the time when it was committed. Nor
shall a heavier penalty be imposed than the one that was applicable at
the time the criminal offence was committed."
In the sphere of criminal law Article 7 para. 1 (Art. 7-1) of the
Convention confirms the general principle that legal provisions which
interfere with individual rights must be adequately accessible, and
formulated with sufficient precision to enable the citizen to regulate
his conduct (cf. Eur. Court H.R., Sunday Times judgment of 26 April
1979, Series A No. 30, p. 31, para. 49). Article 7 para. 1 (Art. 7-1) of the
Convention prohibits in particular that existing offences be extended
to cover facts which previously clearly did not constitute a criminal
offence. This implies that constituent elements of an offence may not
be essentially changed by the case-law of the domestic courts. It is
not objectionable that the existing elements of the offence are
clarified and adapted to new circumstances which can reasonably be
brought under the original concept of the offence (cf. No. 8710/79,
Dec. 7.5.82, D.R. 28 p. 77).
The Commission notes that the Schwäbisch Gmünd District Court
and the Ellwangen Regional Court convicted the applicant of unlawful
coercion by force under S. 240 of the Criminal Code. Both Courts
found in particular that the applicant, who had participated in
sit-ins on 30 December 1983 and 6 January 1984, prevented others by
"force" from using the road concerned. The Federal Constitutional
Court, in its decision of 14 September 1987 in the applicant's case,
referred to its detailed judgment of 11 November 1986. In that
judgment the Federal Constitutional Court had stated that the
jurisprudence of the German penal courts had progressively developed
the interpretation of the term "force" in the context of S. 240 of the
Criminal Code. The Constitutional Court had not found a violation of
the Basic Law due to equality of votes as regards, inter alia, the
question whether or not this jurisprudence violated the prohibition
against defining crimes by analogy to existing offences.
The Commission considers that the progressively broader
interpretation of the term "force" within the context of S. 240 of the
Criminal Code, which covers, inter alia, sit-ins as in the applicant's
case, has adapted the offence of "unlawful coercion by force" to new
circumstances and developments in society which can still reasonably
be brought under the original concept of the offence. The
applicability of S. 240 of the Criminal Code to sit-ins was clarified
by the Federal Court of Justice in 1969 and, although the legal
opinions remained divergent in this respect, the applicant could
thus clearly foresee the risk of punishment for her participation in
the sit-ins of 30 December 1983 and 6 January 1984.
Consequently, the Commission finds that there is no appearance of a
violation of Article 7 para. 1 (Art. 7-1) of the Convention. It follows that
the applicant's complaint in this respect is manifestly ill-founded within the
meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
2. Furthermore, the applicant complains that her conviction by
the Schwäbisch Gmünd District Court on 6 September 1984 and the
Ellwangen Regional Court on 9 February 1987 for her participation in
two sit-ins violated her right to freedom of peaceful assembly as
guaranteed by Article 11 (Art. 11) of the Convention.
Article 11 (Art. 11) of the Convention provides:
"1. Everyone has the right to freedom of peaceful assembly and
to freedom of association with others, ...
2. No restrictions shall be placed on the exercise of these
rights other than such as are prescribed by law and are necessary
in a democratic society in the interests of national security or
public safety, for the prevention of disorder or crime, for the
protection of health or morals or for the protection of the
rights and freedoms of others. ..."
The Commission considers that the right to freedom of peaceful
assembly is secured to everyone who organises or participates in a
peaceful demonstration. The notion of "peaceful assembly" does not,
however, cover a demonstration where the organisers and participants
have violent intentions which result in public disorder (cf.
No. 8440/78, Dec. 16.7.80, D.R. 21 p. 138).
In the present case, the Commission notes that the
participants in the demonstrations in front of the Mutlangen military
barracks on 30 December 1983 and 6 January 1984, including the
applicant, intended to demonstrate in particular by means of sit-ins
blocking the approach road to the barracks concerned and did thereby
act illegally.
However, the Commission finds that the right to freedom of
peaceful assembly is one of the foundations of a democratic society
(No. 8191/78, Dec. 10.10.79, D.R. 17 p. 93) and should not be
interpreted restrictively. The applicant and the other demonstrators
had not been actively violent in the course of the sit-ins concerned.
The Commission accepts that the applicant's conviction under S. 240 of
the Criminal Code interfered with her right under Article 11 para. 1 (Art. 11-1)
and needs to be justified as a restriction prescribed by law and
necessary in a democratic society for one of the purposes set out in
Article 11 para. 2 (Art. 11-2) of the Convention.
The Commission, referring to its findings as regards the
applicant's complaint under Article 7 para. 1 (Art. 7-1) of the Convention,
considers that her conviction for coercion within the meaning of
S. 240 of the Criminal Code was a restriction on her right to freedom
of peaceful assembly prescribed by German law.
Furthermore, the Commission finds that, in the circumstances
of the present case, the applicant's conviction for having
participated in sit-ins can reasonably be considered as necessary in
a democractic society for the prevention of disorder and crime. In
this respect, the Commission considers especially that the applicant
had not been punished for her participation in any demonstration as
such, but for particular behaviour in the course of the demonstration,
namely the blocking of a public road, thereby causing more obstruction
than would normally arise from the exercise of the right of peaceful
assembly. The applicant and the other demonstrators had thereby
intended to attract broader public attention to their political
opinions concerning nuclear armament. However, balancing the public
interest in the prevention of disorder and the interest of the
applicant and the other demonstrators in choosing a particular form
of sit-in, the applicant's conviction for the criminal offence of
unlawful coercion does not appear disproportionate to the aims
pursued.
It follows that this part of the application is also manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
3. Moreover, the applicant invokes Article 14 (Art. 14) in respect of the
above complaints under Articles 7 para. 1 and 11 (Art. 7-1, 11) of the
Convention. However, the Commission finds no appearance of discriminatory
treatment in the circumstances of the present case. This part of the
application is, therefore, manifestly ill-founded within the meaning of Article
27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H. C. KRÜGER) (C. A. NØRGAARD)