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. 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:   <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."           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)