DONAT AND FASSNACHT-ALBERS v. GERMANY
Inadmissible
Aleš Pejchal;Angelika Nußberger;Ann Power-Forde;Helena Jäderblom;Mark Villiger;Vincent A. De Gaetano
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. 2. s, may be summarised as follows. 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” 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. 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. 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. 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). 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. 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.). 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.