SCHIEFER proti Německu



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)