AS TO THE ADMISSIBILITY OF
Application No. 13389/87
by Hermann SCHIEFER
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 18 September 1987
by Hermann Schiefer against the Federal Republic of Germany and
registered on 13 November 1987 under file No. 13389/87;
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 1958, is a German national and resident
at Fröndenberg. He is a student. Before the Commission he is
represented by Mr. R. Schön, a lawyer practising in Cologne.
On 29 February 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 three counts. He was fined
DM 900.
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 18 October 1984, the Schwäbisch Gmünd District Court, upon
the applicant's appeal (Einspruch), held trial and convicted him of
unlawful coercion on two counts. He was fined DM 800 (40 day rates of
DM 20).
The District Court found that the applicant had participated
in demonstrations in front of the US military barracks at Mutlangen on
7 and 11 December 1983 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 10 April 1985 the Ellwangen Regional Court (Landgericht)
dismissed the applicant's appeal (Berufung); however, the amount of
the day rates was reduced to DM 10. The Regional Court considered in
particular that the applicant and the other participants in the
sit-ins on 7 and 11 December 1983 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 19 July 1985 the Stuttgart Court of Appeal (Oberlandes-
gericht) dismissed the applicant's appeal on points of law (Revision).
On 25 May 1987 the Federal Constitutional Court (Bundesver-
fassungsgericht) 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 of 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
his 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 his conviction for unlawful coercion violates his
right to freedom of peaceful assembly.
THE LAW
1. The applicant complains under Article 7 (Art. 7) of the Convention that
his conviction by the Schwäbisch Gmünd District Court on 18 October 1984 and
the Ellwangen Regional Court on 10 April 1985 for his 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 7 and 11 December 1983, prevented others by "force" from
using the road concerned. The Federal Constitutional Court, in its
decision of 25 May 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 his participation in
the sit-ins of 7 and 11 December 1983.
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 his conviction by the
Schwäbisch Gmünd District Court on 18 October 1984 and the Ellwangen Regional
Court on 10 April 1985 for his participation in two sit-ins violated his 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 of the demonstrations in front of the Mutlangen military
barracks on 7 and 11 December 1983, 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 his 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 his conviction for coercion within the meaning of
S. 240 of the Criminal Code was a restriction on his 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 his 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 of choosing the particular form
of a 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.
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE
Secretary to the Commission President of the Commission
(H. C. KRÜGER) (C. A. NØRGAARD)