CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 6 mars 1989

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          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:   <German>      "(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."   <Translation>      "(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)