AS TO THE ADMISSIBILITY OF
Application No. 13235/87
by W.M.
and H.O.
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 8 May 1987
by W.M. and H.O. against the Federal
Republic of Germany and registered on 28 September 1987 under file No.
13235/87;
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
applicants, may be summarised as follows:
The first applicant, born in 1957, is a German national and
resident at L.. He is a political scientist. The second
applicant, born in 1954, is a German national and resident in
T.. He is a teacher by profession. Before the Commission
they are represented by Mr. K.J. Hemeyer, a lawyer practising in
T..
On 1 April 1982 the Reutlingen District Court (Amtsgericht),
acquitted the applicants of the charge of having committed unlawful
coercion (Nötigung) under S. 240 of the German Criminal Code
(Strafgesetzbuch).
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."
The District Court found that the applicants had participated
in a demonstration against nuclear armament in front of the Eberhard
Finckh barracks at Engstingen from 13 July 1981 at 9 hours 15 until 9
hours 15 on 14 July 1981. The demonstrators had blocked the road to
the barracks by fastening themselves with locks to a steel chain which
they had put across the road and fastened with locks to a street sign
and to the guard-house of the barracks. On 14 July 1981, the police
had ordered that the demonstrators should leave the road. The
applicants and other demonstrators who did not comply with this order
were then cut off the steel chain. The District Court considered that
this action did not constitute unlawful use of force within the
meaning of S. 240 para. 2 of the Criminal Code.
On 6 September 1982 the T. Regional Court (Landgericht),
upon the appeal (Berufung) of the Public Prosecutor's Office (Staats-
anwaltschaft), quashed the judgment of 1 April 1982. Having held
trial, it convicted the applicants of attempted coercion under S. 240
of the Criminal Code and fined them DM 600 (30 day-rates of DM 20).
The Regional Court found in particular that the blockade of
the approach road to the military barracks at Engstingen constituted
coercion by force within the meaning of S. 240 of the Criminal Code.
The applicants intended to prevent any driver from using the road
during the period concerned.
Furthermore, the Regional Court considered that this use of
force was unlawful within the meaning of S. 240 para. 2 of the
Criminal Code. The applicants' goal to draw public attention to the
risks of nuclear armament did not justify the persistent blockade of
the Engstingen military barracks.
On 23 March 1983 the T. Court of Appeal (Oberlandes-
gericht) dismissed the applicants' appeal on points of law (Revision).
On 11 November 1986, upon hearings on 15 and 16 July 1986
concerning the applicants' and joined cases, the Federal
Constitutional Court (Bundesverfassungsgericht) dismissed the
applicants' constitutional complaint (Verfassungsbeschwerde). It could
not find a violation of the Basic Law due to equality of votes.
In its 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 sense 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 applicants complain under Article 7 of the Convention that
their participation in the demonstration and the blockade in front of the
Engstingen military barracks did not constitute a criminal offence
under German penal law but was defined, by analogy to the criminal
offence of "coercion by force", under S. 240 of the Criminal Code.
2. The applicants also complain under Article 11 of the
Convention that their conviction for coercion violated their right to
freedom of peaceful assembly.
3. The applicants moreover invoke Articles 2 para. 1, 5 para. 1,
9 and 10 of the Convention in respect of the above complaints.
THE LAW
1. The applicants complain under Article 7 (Art. 7) of the Convention that
their conviction by the T. Regional Court on 6 September 1982 for their
participation in a blockade was based on an unlawful analogy to the existing
crime of 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 applicants were acquitted of the
charge of coercion under S. 240 of the Criminal Code by the Reutlingen
District Court. Upon the appeal of the Public Prosecutor's Office,
the T. Regional Court convicted the applicants of coercion by
force. The Regional Court found in particular that the applicants,
who had participated in a blockade on 13 and 14 July 1981, prevented
others by "force" from using the road concerned. The Federal
Constitutional Court, in its detailed judgment of 11 November 1986,
referred to the jurisprudence of the German penal courts which had
progressively developed the interpretation of the term "force" in the
context of S. 240 of the Criminal Code. The Constitutional Court did
not find 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 applicants'
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 applicants could
thus clearly foresee the risk of punishment for their participation in
the blockade on 13 and 14 July 1981.
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 applicants' 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 applicants complain that their conviction by the T.
Regional Court on 6 September 1982 for their participation in the blockade of
the Engstingen barracks violated their 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 blockade on 13 and 14 July 1981, including the
applicants, intended to demonstrate by means of a sit-in 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 applicants and the other demonstrators had not been
actively violent in the course of the blockade. The Commission accepts that
the applicants' conviction under S. 240 of the Criminal Code interfered with
their 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
applicants' complaint under Article 7 para. 1 (Art. 7-1) of the Convention,
considers that their conviction for coercion within the meaning of S.
240 of the Criminal Code was a restriction on their right to freedom
of peaceful assembly, prescribed by German law.
Furthermore, the Commission finds that, in the circumstances
of the present case, the applicants' conviction for having
participated in the blockade 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 applicants
had not been punished for their participation in a 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 applicants 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 applicants in choosing the particular
form of a sit-in, the applicants' 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 applicants invoke Articles 2 para. 1, 5 para. 1, 9 and 10
(Art. 2-1, 5-1, 9, 10) of the Convention in respect of the above complaints.
However, the Commission finds no appearance of a violation of these provisions.
This part of the application is, therefore, 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)