FIFTH SECTION
DECISION
Applications nos. 6315/09 and 12134/09
Martin DONAT against Germany
and Maleen FASSNACHT-ALBERS against Germany
The European Court of Human Rights (Fifth Section), sitting on 11 February 2014 as a Chamber composed of:
Mark Villiger, President,
Angelika Nußberger,
Boštjan M. Zupančič,
Ann Power-Forde,
Vincent A. De Gaetano,
Helena Jäderblom,
Aleš Pejchal, judges,
and Claudia Westerdiek, Section Registrar,
Having regard to the above applications lodged on 30 January 2009 and on 3 March 2009 respectively,
Having deliberated, decides as follows:
THE FACTS
1. The first applicant, Mr Martin Donat, is a German national, who was born in 1963 and lives in Damnatz. The second applicant, Mrs Maleen Faßnacht-Albers, is a German national, who was born in 1942 and lives in Dannenberg. They were represented before the Court by Ms U. Donat, a lawyer practising in Hamburg.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicants, may be summarised as follows.
1. Background to the case
3. On 10 November 2006 around 7.30 p.m. a group of persons started blocking the crossing of a federal road with a county road in Pudripp in order to protest against the forthcoming transport of “castor”[1] containers to Gorleben. A total of thirty-six tractors and two cars blocked the crossing, preventing at least twenty lorry drivers from continuing their journey.
4. The first applicant, deputy mayor of Zernien and member of the Lüchow-Dannenberg county council, as well as the second applicant and her husband were caught in the traffic jam caused by the blockade on the federal road in their cars.
5. The police present at the crossroads allowed the applicants, who had parked and left their cars, to join the persons blocking the crossroads. In the first applicant’s submission, he intended to inform himself on the event and to mediate, if necessary, in his capacity as an elected local politician. The second applicant wished to inform herself of the reasons for the blockade. Subsequently, more police forces arrived at the crossing.
6. At 9.35 p.m. the Lüneburg police contained the 315 persons present on and around the crossroads, including the applicants, in a police cordon. They informed the persons concerned at 9.44 p.m. that they were suspected of having committed an offence in view of the fact that they had been blocking the federal road for a considerable time, thereby preventing other vehicles from continuing their journey. They declared the assembly dissolved and announced that the police would establish the identity of all persons involved at a checkpoint. They further asked persons who did not feel well, children and women to process to the identity check first in order to be able to leave the cordon rapidly. The first applicant subsequently attempted in vain to leave the cordon at a different place by presenting his identity papers only.
7. Following the establishment of their identities, twenty-five persons had left the cordon by 10.19 p.m., another forty-two persons by 10.31 p.m., another seventy-five persons by 10.47 p.m. and another eighty-five persons by 10.55 p.m. At 10.57 p.m. the police ordered a toilet van for the remaining some ninety persons.
8. Around 11.30 p.m. (in the second applicant’s submission) or around 10.30 p.m. (according to the police photo in the file) the second applicant left the cordon after her identity had been recorded.
9. On 11.35 p.m. the police started pushing the remaining persons, including the first applicant, towards the identity checkpoint. At 0.55 a.m. of the following day (11 November 2006), the twenty persons remaining within the cordon, including the first applicant, were escorted by the police to the checkpoint. The first applicant left the cordon at 1.02 a.m. after his identity had been recorded. All persons had left the cordon by 1.23 a.m. following the establishment of their identities.
10. The identities of the persons cordoned off by the police were established, in principle, in the following manner. They filmed the persons concerned with a video camera when they presented their identity cards. The personal data of those persons were read out by a police officer at the same time. In contrast, the second applicant gave her identity herself and two photographs were made of her in addition to the video recording as she had left her identity card in her car.
11. Following their release from the cordon, it took the applicants at least another hour to reach their cars which were parked on the opposite side of the crossroads because the police kept blocking the crossroads, which was surrounded by a forest difficult to traverse on foot at night.
2. The proceedings at issue
(a) The decisions of the District Courts
12. On 11 December 2006 the first applicant and on 27 March 2007 the second applicant, both represented by counsel, requested the Dannenberg District Court, in an action against the Lüneburg police, to declare, in particular, that their deprivation of liberty and the manner in which personal data had been taken for the police records on 10/11 November 2006 had been unlawful.
13. On 29 March 2007 the Dannenberg District Court (civil section) transferred the cases brought by the applicants to the investigating judge responsible for the review of measures under the Code of Criminal Procedure. It argued that the applicants had not been deprived of their liberty for preventive purposes under the Lower Saxon Act on Public Security and Order. The police had in fact detained them on the basis of the Code of Criminal Procedure.
14. On 31 October 2007 the Dannenberg District Court (criminal section) found that the establishment of the first applicant’s identity under Article 163b § 1 of the Code of Criminal Procedure (see paragraph 36 below) and the taking of pictures of the first applicant for the police record under Article 81b, first alternative, of the Code of Criminal Procedure (see paragraph 37 below) had been lawful.
15. On 27 March 2008 the Lüneburg District Court (criminal section) made the same finding in respect of the second applicant.
16. In their decisions, phrased in almost identical terms, the District Courts found that the police had contained the persons participating in the blockade of the crossroads in a police cordon in order to establish their identities and to take pictures and in order to seize the vehicles involved. They considered that there had been at least sufficient factual elements for concluding that the persons concerned were guilty of joint coercion (Article 240 of the Criminal Code; see paragraph 34 below). By parking their vehicles on the crossroads and by their presence thereon, the 315 persons involved created, at least by the ensuing traffic jam, a physical barrier preventing cars from continuing their journey for a considerable time, which, having regard to the criminal courts’ case-law, amounted to force within the meaning of Article 240 § 1 of the Criminal Code. The District Courts further found that, having regard to the duration of the blockade of more than two hours and its effects for third persons, in particular at least twenty lorry drivers who partly had to deliver goods within a deadline, the blockade was also reprehensible for the purposes of Article 240 § 2 of the Criminal Code and not covered by the right to freedom of assembly or the right to freedom of expression.
17. The District Courts considered that in view of the suspicion that a joint coercion had been committed, the police had been obliged under Article 163b § 1 of the Code of Criminal Procedure to establish the identity of all persons present on the crossroads, including that of the applicants. Having regard to the number of persons involved, this measure naturally took a certain amount of time.
18. Likewise, the taking of video pictures of the persons concerned under Article 81b, first alternative, of the Code of Criminal Procedure was necessary to conduct the investigation proceedings. In order to establish the acts committed by individual perpetrators, their presence and the clothing at the time of the act had to be recorded.
19. In the District Courts’ view, the impugned measures taken by the police were not disproportionate. Even without the police cordon, there would have been inconveniences as a result of the lack of toilets, the weather and the lack of food at the crossroads, the blocking of which was to be upheld for a considerable period of time.
(b) The decisions of the Lüneburg Regional Court
20. On 5 November 2007 the first applicant and on 4 April 2008 the second applicant lodged appeals against the District Courts’ decisions. They argued, in particular, that it had been arbitrary to treat them as suspects, given that they had been caught in the traffic jam caused by the blockade themselves and had only wanted to inform themselves of the cause for the traffic jam. The District Courts had insufficiently established the relevant facts and had failed, in particular, to hear them in person.
21. On 10 December 2007 the Lüneburg Regional Court dismissed the first applicant’s appeal as ill-founded.
22. As to the lawfulness of the first applicant’s detention by the police, the Regional Court clarified that the deprivation of liberty had been based on Article 163b § 1, second sentence, of the Code of Criminal Procedure. That provision authorised holding back a person suspected of a criminal offence if that person’s identity could not be established in a different way or if that establishment would be possible only with considerable difficulty. The first applicant had been present within a group of persons having blocked a crossing with the help of tractors causing a considerable traffic jam. Even taking into account the cause for the blockade, namely to demonstrate against the forthcoming transport of castor containers, this blockade, having regard to the Federal Constitutional Court’s case-law, could constitute coercion. It had been necessary to contain the some 300 suspects in a police cordon in order to take the identity of all of them.
23. The Regional Court further considered that the first applicant’s deprivation of liberty had been proportionate. The police had enabled persons who did not feel well and minors to leave the cordon speedily. They further speeded up the establishment of the suspects’ identities by recording the reading out of the personal data on video instead of writing the data down. If the first applicant had lacked food and had been cold, he could have asked for a speedy establishment of his identity. However, it appeared that the first applicant had been part of a group of some twenty persons who had refused to go to the checkpoint to have their identities established and he had thus caused delays in the establishment of his identity himself. In so far as it had not been possible for the first applicant to regain his car after his release for a considerable time, this had been caused by the partly ongoing blockade of the crossing and did not entail a deprivation of liberty imputable to the police.
24. The Regional Court further found that the taking of the first applicant’s identity via video recording had been lawful under Article 81b, first alternative, of the Code of Criminal Procedure. It had not been arbitrary to consider the first applicant, who was within the group of persons blocking the crossroads, as a suspect of a joint coercion. Filming the persons concerned had also been proportionate. It had been necessary to document the clothing worn by the suspects in order to enable witnesses to recognise the perpetrators of an offence having caused prejudice to a considerable number of drivers at a later stage.
25. The Regional Court considered that it had not been required by the Code of Criminal Procedure for the District Court to hear the first applicant in person in the present proceedings. The District Court had sufficiently established the relevant facts, having regard also to the file on the criminal investigations against the first applicant and the documentation of the video recording made by the police.
26. On 19 December 2007 and on 8 January 2008 the Lüneburg Regional Court dismissed the first applicant’s complaints about a breach of his right to be heard. It stressed that the first applicant had had full access to the case-files, which included the police reports and pictures of the first applicant drawn from the video recordings. He had therefore been in a position to explain his view comprehensively in writing.
27. On 29 April 2008 the Lüneburg Regional Court, endorsing the reasons of the Lüneburg District Court, equally dismissed the second applicant’s appeal. It stressed that the second applicant’s counsel had had access to the complete case-file. It had not been necessary to hear the second applicant in person as the lawfulness of the impugned measures could be determined irrespective of a personal impression of her.
28. On 23 June 2008 the Lüneburg Regional Court equally dismissed the second applicant’s objection and complaint about a breach of her right to be heard.
(c) The decisions of the Federal Constitutional Court
29. On 9 January 2008 the first applicant lodged a constitutional complaint with the Federal Constitutional Court. He complained, in particular, that his detention in the police cordon on 10/11 November 2006, which he had only been able to leave under the condition that he had himself and his personal data recorded on video, had breached his constitutional right to liberty, his personality rights and his right to freedom of assembly. Moreover, the procedure before the District Court and the Regional Court had failed to grant him effective redress in relation to these complaints.
30. On 26 May 2008 the second applicant lodged a constitutional complaint in which she endorsed the complaints made by the first applicant.
31. On 28 July 2008 the Federal Constitutional Court declined to consider the first applicant’s constitutional complaint (file no. 2 BvR 76/08) and on 16 October 2008 it declined to consider the second applicant’s constitutional complaint (file no. 2 BvR 1441/08), without giving reasons. The decisions were served on the applicants’ counsel on 5 August 2008 (in respect of the first applicant) and on 28 October 2008 (in respect of the second applicant).
3. Further developments
32. On 25 April 2008 the Lüneburg Public Prosecutor’s Office discontinued the investigation proceedings for coercion against all persons present at the blockade of the crossroads on 10/11 November 2006. It dispensed with the prosecution of the offence as the suspects’ culpability would be of a minor nature and as there was no public interest in the prosecution.
33. On 30 January 2013 the Lower Saxony Administrative Court of Appeal confirmed the Lüneburg Administrative Court’s finding that the storage of data on the first applicant in the police databases on castor transports and on state security, which had been erased in the meantime, had been unlawful. Only the data concerning the first applicant contained in the Lower Saxony police’s electronic record of police measures could be kept.
B. Relevant domestic law and practice
1. Relevant provision of the Criminal Code
34. Article 240 § 1 of the Criminal Code, on coercion, provides that whoever compels another person unlawfully by force or threat of a considerable harm to commit, acquiesce in or omit an act shall be punished by imprisonment of up to three years or a fine. The act shall be unlawful for the purposes of Article 240 § 1 if the use of force or the threat of harm is to be considered reprehensible in order to attain the objective pursued by the act (Article 240 § 2 of the Criminal Code).
35. The conditions under which the blocking of streets for reasons of political protest is punishable under Article 240 of the Criminal Code has been a matter of intense academic discussion for many years and has been addressed and clarified by the Federal Constitutional Court in at least three leading decisions (file no. 1 BvR 1190/84 and others, judgment of 11 November 1986, Collection of the decisions of the Federal Constitutional Court (BVerfGE) vol. 73, pp. 206 ss.; file no. 1 BvR 718/89 and others, decision of 10 January 1995, BVerfGE vol. 92, pp. 1 ss., and file no. 1 BvR 1190/90 and others, decision of 24 October 2001, BVerfGE vol. 104, pp. 92 ss.). The Federal Constitutional Court found, in particular, that only a blockade in which the participants set up a physical barrier, going beyond the mere mental impact on the road users by their physical presence in the blocked street, may be classified as “force” for the purposes of Article 240 § 1 of the Criminal Code (file no. 1 BvR 1190/90 and others, ibid., § 31). Moreover, in determining whether an act amounted to a “reprehensible” coercion for the purposes of Article 240 § 2 of the Criminal Code, the criminal courts had to take into account the purpose of the blockade and, if applicable, the importance of the constitutional protection of the right to freedom of assembly (ibid., §§ 55 ss.).
2. Relevant provisions of the Code of Criminal Procedure
36. Under Article 163b of the Code of Criminal Procedure, the Public Prosecutor’s Office and the police officers may take the measures necessary to establish the identity of a person who is suspected of having committed a criminal offence (Article 163b § 1, first sentence). The suspect may be held back if his or her identity cannot be established in an alternative way or if establishment of his or her identity would be possible only with considerable difficulty (Article 163b § 1, second sentence).
37. Article 81b of the Code of Criminal Procedure provides that photographs and fingerprints of the accused may be taken even against his will and measurements may be made of him and other similar measures be taken with regard to him in so far as this is necessary for the conduct of the criminal proceedings or for the purposes of the police records.
COMPLAINTS
38. The applicants complained under Article 5 § 1 of the Convention that their restriction within a police cordon for several hours and their inability to leave the blocked crossroads and regain their cars for a considerable time afterwards had breached their right to liberty.
39. Relying on Article 13, read in conjunction with Article 5 § 1, of the Convention, the applicants further took the view that they had not had at their disposal an effective remedy to complain about the breach of their right to liberty before the domestic courts.
40. In the applicants’ submission, their deprivation of liberty in a police cordon encircling persons on a crossing who were protesting against a forthcoming transport of castor containers had also violated their right to freedom of expression under Article 10 of the Convention as well as their right to freedom of assembly under Article 11 of the Convention.
THE LAW
A. Joinder of the applications
41. Given that the two applications at issue both concern the same police measures, namely the applicants’ containment in a police cordon on 10/11 November 2006 and the establishment of their identities, the Court decides that the applications shall be joined (see Rule 42 § 1 of the Rules of Court).
B. Alleged violation of Article 5 § 1 of the Convention
42. In the applicants’ submission, their containment within a police cordon for several hours and their inability to leave the blocked crossroads and regain their cars a considerable time after their release from the cordon had failed to comply with Article 5 § 1 of the Convention, the relevant part of which provides:
“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
...
(b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law; ...”
43. The applicants argued, in particular, that their restriction within the police cordon for several hours had constituted a deprivation of liberty. They had further been deprived of their liberty in that they had been unable, for at least another hour after having been released from the cordon, to traverse the crossroads blocked by the police in order to reach their cars parked on the opposite side. They explained that they could only have reached their cars by making a considerable detour on foot by night otherwise.
44. The applicants submitted that their detention had not been justified under sub-paragraph (b) of Article 5 § 1 in order to secure the fulfilment of an obligation prescribed by law. In particular, given that they had arrived only after the blockade of the crossroads had been put in place, there had not been a sufficient suspicion that they had committed coercion. The duration of the detention for the establishment of their identities had been disproportionate. The first applicant claimed in that context that he should have been authorised to leave the cordon immediately by showing his identity papers only. The second applicant argued that she had had witnesses to confirm her identity and that she could have presented her identity card on return to her car.
1. Recapitulation of the relevant principles
45. The Court reiterates that Article 5 § 1 protects the physical liberty of the person. It does not concern mere restrictions upon liberty of movement, which are addressed by Article 2 of Protocol no. 4. In order to determine whether someone has been “deprived of his liberty” within the meaning of Article 5 § 1, the starting-point must be his concrete situation and account must be taken of a whole range of criteria such as the type, duration, effects and manner of implementation of the measure in question. The difference between deprivation of and restriction upon liberty is one of degree or intensity, and not of nature or substance (see Engel and Others v. the Netherlands, 8 June 1976, §§ 58-59, Series A no. 22; Guzzardi v. Italy, 6 November 1980, §§ 92-93, Series A no. 39; and Austin and Others v. the United Kingdom [GC], nos. 39692/09, 40713/09 and 41008/09, § 57, ECHR 2012).
46. Although the Court found that short-term deprivation of liberty may fall under Article 5 § 1 (see, inter alia, M.A. v. Cyprus, no. 41872/10, §§ 185-195, ECHR 2013 (extracts); and Fatma Akaltun Fırat v. Turkey,
no. 34010/06, §§ 33-36, 10 September 2013), it has considered that “kettling” differed substantially from cases of detention in police facilities (see Austin and Others, cited above, § 52). In that case, the Court found that the containment of both demonstrators and passers-by in a police cordon for up to seven hours in order to prevent a real risk of serious injury and damage to property had not involved a deprivation of liberty. It came to that conclusion based on the specific and exceptional facts of the case, notably in view of the finding that the cordon had been the least intrusive means to control the dangerous situation at hand. Moreover, the attempts made by the police to organise a controlled collective release directly after the imposition of the cordon had repeatedly been frustrated and delayed by the violent behaviour of a significant minority both within and outside the cordon (ibid., §§ 61-69).
47. Detention is authorised, in particular, under the second limb of sub‑paragraph (b) of Article 5 § 1 “to secure the fulfilment of any obligation prescribed by law”. It concerns cases where the law permits the detention of a person to compel him to fulfil a specific and concrete obligation incumbent on him, and which he has until then failed to satisfy (see, inter alia, Engel and Others, cited above, § 69; and Ostendorf v. Germany, no. 15598/08, § 69, 7 March 2013 with further references). The arrest and detention must be for the purpose of securing the fulfilment of the obligation and not punitive in character. As soon as the relevant obligation has been fulfilled, the basis for detention under Article 5 § 1 (b) ceases to exist (see Vasileva v. Denmark, no. 52792/99, § 36, 25 September 2003; Epple v. Germany, no. 77909/01, § 37, 24 March 2005; and Osypenko v. Ukraine, no. 4634/04, § 57, 9 November 2010).
48. Finally, a balance must be struck between the importance in a democratic society of securing the immediate fulfilment of the obligation in question and the importance of the right to liberty. The nature of the obligation arising from the relevant legislation including its underlying object and purpose, the person being detained and the particular circumstances leading to the detention as well as its duration are relevant factors in drawing such a balance (see Vasileva, cited above, §§ 37-38; Gatt v. Malta, no. 28221/08, § 46, ECHR 2010; Soare and Others v. Romania, no. 24329/02, § 236, 22 February 2011; and Ostendorf, cited above, § 73).
2. Application of these principles to the present case
49. In the light of the foregoing principles, the Court is called upon to determine, first, whether the police measures affecting the applicants on 10/11 November 2006 amounted to a deprivation of liberty for the purposes of Article 5 § 1.
50. In the applicants’ submission, their inability, as a result of the police still blocking the crossroads at issue, to traverse the crossroads in order to reach their cars parked on the opposite side for a considerable time (at least one hour) after their release from the cordon had deprived them of their liberty. The Court notes that the applicants could reach their cars by making a detour on different roads at the relevant time. In view of the minor intensity of the police measure, the latter entailed mere restrictions on the applicants’ liberty of movement, which fell short of a deprivation of liberty within the meaning of Article 5 § 1.
51. As regards the applicants’ further complaint about their detention in the police cordon, the Court recalls that it recently considered for the first time the application of Article 5 § 1 in respect of the “kettling” or containment of a group of people by the police on public order grounds (see Austin and Others, cited above, §§ 52 ss.). The Court considers that there are a number of elements distinguishing the present case from the Austin and Others case. In particular, the police cordon in the present applications had been put up with the aim of holding back the persons concerned, as long as necessary to establish their identities for the purpose of criminal investigations. In contrast, the police cordon in the Austin and Others case had served the purely preventive purpose of averting a real risk of serious injury and damage to property. Moreover, other than in the Austin and Others case, the speedy dissolution of the cordon had not been repeatedly frustrated or significantly delayed by violent behaviour of persons within or outside the cordon.
52. In any event, the Court can leave open the question whether the applicants’ containment in the police cordon in the present case amounted to a deprivation of liberty for the purposes of Article 5 § 1.
53. If the Court accepted the applicants’ submission, which was shared by the domestic courts for the purposes of German law, that they had been deprived of their liberty while they had been contained in the cordon, that detention was, in any event, justified under the second limb of Article 5 § 1 (b) of the Convention “in order to secure the fulfilment of an[y] obligation prescribed by law”. The statutory obligation to disclose one’s identity to the police (see Article 163b § 1, first sentence, of the Code of Criminal Procedure) is an obligation in the sense of Article 5 § 1 (b) (see already Vasileva, cited above, §§ 35, 38; Novotka v. Slovakia (dec.), no. 47244/99, 4 November 2003; and Sarigiannis v. Italy, no. 14569/05, § 42, 5 April 2011). Furthermore, the law (Article 163b § 1, second sentence, of the Code of Criminal Procedure) permitted the detention of the person concerned to compel him to fulfil that obligation.
54. The Court notes in that context that in the applicants’ submission, they had not been under an obligation to establish their identities under Article 163b § 1, first sentence, of the Code of Criminal Procedure because, being persons uninvolved in the creation of the blockade, there had not been a sufficient suspicion that they were guilty of coercion. The Court observes that according to the findings of the domestic courts, the presence of the applicants within a group of more than 300 persons on the crossroads blocked with the help of tractors, which prevented a number of lorry drivers to continue their journey, had raised the suspicion that they had committed coercion. It further appears that in the circumstances of the case, given the number of persons present on the crossroads at night, it must have been impossible for the police forces putting up the cordon to distinguish the persons involved in the creation of the blockade from passers-by without further investigations. The Court further notes that the applicants submitted in respect of their complaints under Articles 10 and 11 that they had become part of the assembly on the crossroads and had participated in the protest against the transport of castor containers. Having regard to the interpretation of the offence of coercion as clarified by the Federal Constitutional Court (see paragraph 35 above), the Court finds that the police’s conclusion that the applicants were suspects of coercion, which necessitated the establishment of their identities under Article 163b § 1, first sentence, of the Code of Criminal Procedure, cannot be considered as arbitrary.
55. Moreover, the Court recalls that the basis for the detention under Article 5 § 1 (b) ceases to exist as soon as the relevant obligation has been fulfilled. It takes note of the first applicant’s argument that he had already complied with his statutory obligation to have his identity established prior to his release from the cordon by showing his identity papers to several police officers in the cordon right after its creation. However, the Court observes the domestic courts’ finding that under Article 163b § 1, first sentence, of the Code of Criminal Procedure, read in conjunction with Article 81b, first alternative, of the Code of Criminal Procedure, the establishment of the first applicant’s identity for the purposes of the criminal investigations necessitated recording not only his personal data, but also the clothing worn at the time of the possible offence in order to be able to identify perpetrators of particular acts by witness evidence. The Court again considers that this interpretation of the provisions of domestic law cannot be considered unreasonable. The same applies, a fortiori, in respect of the second applicant’s argument that she could have presented her identity card on return to her car.
56. The Court is therefore satisfied that the applicants’ detention in the police cordon served the purpose of securing the fulfilment of their obligation to have their identities established and was not punitive for that purpose. Moreover, in accordance with the requirements of Article 5 § 1 (b), the second applicant’s detention ceased when her identity was established at the checkpoint as necessary around 10.30 p.m. (according to the police) or 11.30 p.m. (according to the second applicant) on 10 November 2006. The first applicant’s detention ceased around 1.02 a.m. on 11 November 2006 as soon as his identity was established at the checkpoint.
57. In examining, finally, whether the domestic authorities struck a fair balance between the importance of securing the immediate fulfilment of the applicants’ obligation to have their identities established and their right to liberty, the Court notes that the obligation at issue to establish their identities served the purpose of criminal investigations for coercion. It is clear in the circumstances that without an immediate establishment of the identity of the persons concerned in the blockade, the subsequent prosecution of offences, necessary in the public interest to ensure law enforcement, would be impossible or considerably more difficult in practice. Moreover, there is nothing to indicate that either the first applicant, aged 43 at the relevant time, or the second applicant, aged 64 at the time of her detention, belonged to any particularly vulnerable group of persons the police asked to proceed to the identity checkpoint first in order to have their detention terminated speedily. Had the first applicant, in particular, who claimed having been cold and hungry, considered himself to fall within that category, it had been open for him to ask for a more speedy establishment of his identity.
58. As regards the particular circumstances leading to the applicants’ detention, the Court takes note of the fact that the applicants had not been involved in creating the blockade, but had come to inform themselves of the event and, in the first applicant’s case, to mediate, if necessary. However, as found above, it had not been arbitrary in the circumstances to suspect the applicants of a coercion necessitating further investigations at the relevant time. As to the duration of the applicants’ detention, the Court notes that the first applicant was contained in the police cordon from 9.35 p.m. on 10 November 2006 until 1.02 a.m. on 11 November 2006, that is, for approximately three and a half hours. The second applicant was detained from 9.35 p.m. until around 11.30 p.m. at the latest, that is, for some two hours.
59. The Court considers that taking the identities of more than 300 persons necessarily takes a certain amount of time. It observes that more than two thirds of the persons concerned were released within less than one and a half hours. Moreover, it cannot but note that the first applicant, in particular, was found by the domestic courts to have been one of the last persons within the cordon whom the police escorted to the checkpoint in order for them to pass the control. He therefore contributed to the duration of his detention.
60. In view of the foregoing elements, the Court considers that the domestic authorities struck a fair balance between the importance of securing the immediate fulfilment of the applicants’ obligation to have their identities established and their right to liberty.
61. It follows that this part of the applications is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
C. Alleged violation of Article 13 of the Convention, read in conjunction with Article 5 § 1 of the Convention
62. In the applicants’ submission, they had not had at their disposal an effective remedy before the domestic courts, as required by Article 13 of the Convention, to complain about a violation of their right to liberty under Article 5 § 1 of the Convention. They submitted, in particular, that they had not been heard in person by the domestic courts which had based their decisions, in particular, on video recordings their counsel had not been granted access to and had insufficiently established the relevant facts.
63. The Court has examined the applicants’ above complaint as submitted by them. However, having regard to all the material in its possession, the Court finds that this complaint does not disclose any appearance of a violation of the rights and freedoms set out in the Convention.
64. It follows that this part of the applications must likewise be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
D. Alleged violation of Article 10 and Article 11 of the Convention
65. The applicants further argued that their detention on 10/11 November 2006 had disproportionately interfered with their right to freedom of assembly and their right to freedom of expression guaranteed by Articles 11 and 10 of the Convention. The first applicant submitted that he had initially joined the farmers’ protest against the transport of castor containers in order to inform himself of the event in his position as an elected local politician, but that he had then participated in the assembly. The second applicant argued that she initially only intended to inform herself of the reasons for the blockade of the road, but had then joined and thus participated in the assembly. Both applicants claimed that they had been punished for their presence in the assembly by a deprivation of liberty lasting for several hours and by an intrusive data collection by the police, which had had a deterring effect.
66. The Court notes that Article 11 of the Convention has often been regarded as the lex specialis taking precedence over Article 10 in its case‑law (see, in particular, Schwabe and M.G. v. Germany, nos. 8080/08 and 8577/08, §§ 98-100, ECHR 2011 (extracts) with further references). In any event, the main focus of the applicants’ complaint lies on their inability to express their views together with other demonstrators. The Court therefore considers that the applicants’ complaint falls to be examined under Article 11 alone, which, in so far as relevant, 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. ...”
67. The Court must examine, first, whether the applicants’ detention by the police on 10/11 November 2006 amounted to an interference with their right to freedom of peaceful assembly under Article 11 § 1. It considers that the blockade of the crossroads by vehicles and persons, without the organisers or participants having had violent intentions, was a peaceful assembly (see in the context of a sit-in already G. v. Germany, no. 13079/87, Commission decision of 6 March 1989, Decisions and Reports (DR) 60, p. 263; and Barraco v. France, no. 31684/05, § 43, 5 March 2009). The dissolution of the assembly and the containment of the participants within the police cordon interfered with their right to freedom of peaceful assembly (compare also Schwabe and M.G., cited above, §§ 102-106).
68. The Court cannot but note that the applicants’ submission that they had become part of the assembly which protested against the transport of castor containers is not entirely consistent with their submissions in the context of Article 5 § 1 that they had been caught in the cordon as uninvolved passers-by who only wanted to inform themselves of the event and, in the first applicant’s case, potentially mediate between the protesters and the police.
69. In any event, even assuming that the applicants participated in the assembly in order to express their view on the castor containers’ transport and, more generally, on the use of nuclear energy, and thus on a subject of considerable public interest in the defendant State, and that the dissolution of the assembly and their detention in the police cordon thus interfered with their right to freedom of peaceful assembly, that interference had been justified under Article 11 § 2 of the Convention for the following reasons.
70. As shown above, the applicants’ detention in the police cordon was prescribed by Article 163b § 1, first sentence, of the Code of Criminal Procedure. It served the investigation of a criminal offence, coercion, and thus the legitimate aim of protection of the rights of others.
71. In the Court’s view, the said police measures can also be regarded as necessary in a democratic society in the circumstances of the case. It reiterates that the expression “necessary in a democratic society” implies that the interference corresponds to a “pressing social need” and, in particular, that it is proportionate to the legitimate aim pursued. The nature and severity of the sanction imposed are factors to be taken into account when assessing the proportionality of an interference in relation to the aim pursued. The Court must further determine whether the reasons adduced by the national authorities to justify the interference were “relevant and sufficient” (see Schwabe and M.G., cited above, §§ 111-112 with further references).
72. The Court notes that in the present case, the first applicant had been cordoned off by the police for some three and a half hours and the second applicant for some two hours. However, in the domestic courts’ finding, the first applicant contributed to delays in his release as he failed to present himself at the identity check. The applicants had also not been persons particularly vulnerable to detention (see paragraph 57 above). Moreover, the domestic courts gave sufficient reasons as to why the applicants, the criminal proceedings against whom had later been discontinued on grounds of insignificance, had been reasonably suspected of coercion at the relevant time. In view of these elements, the impugned police measures were proportionate to the legitimate aim of the prosecution of offences.
73. It follows that this part of the applications must equally be dismissed as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court by a majority
Decides to join the applications;
Declares the applications inadmissible.
Claudia WesterdiekMark Villiger
RegistrarPresident
[1] Cask for the storage and transport of radioactive material.
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