European Court rules against German authorities' pre-emptive arrest of demonstrators prior to 2007 Heiligendamm G8 Summit
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The European Court of Human Rights has ruled that German authorities, in pre-emptively arresting and detaining two individuals travelling to protest at the 2007 G8 summit in Heiligendamm, violated articles 5(1) and 11 of the European Convention on Human Rights.

Sven Schwabe and M.G. are two German citizens who in June 2007 drove to Rostock in order to take part in the demonstrations against the annual gathering of the G8 nations - Canada, France, Germany, Italy, Japan, Russia, the UK, and the US. They had their identity checked by police whilst standing with seven other people next to a van in the car park of a prison. The police claimed that one individual physically resisted the identity check and, following a search of the van, banners were founding bearing the inscriptions "freedom for all prisoners" and "free all now". Scwabe and M.G were subsequently arrested.

On the morning of 4th June, the day after the arrest, the Rostock District Court ordered that the applicants' should be detained until midday on the 9th June at the latest. The Public Security and Order Act of the Land (federal state) of Mecklenburg Western-Pomerania provided the basis for this decision, with the court arguing that the applicants' detention "was lawful in order to prevent their committing an offence".

An appeal by Schwabe and M.G on 7th June was dismissed. They argued that the banners in the van were not intended to incite the freeing by force of prisoners. The court maintained that the banners could be understood in numerous ways, and that in light of the security situation provoked by the G8, the police were justified in their actions as they were entitled to "prevent ambiguous declarations leading to a risk to public security".

The applicants, whilst in detention, also lodged a complaint with Germany's Federal Constitutional Court (FCC). On 8th June (the fourth day of their detention), the FCC refused take a decision on their request for an interim injunction against their imprisonment. On 6th August 2007, the FCC decided to dismiss their complaint.

In light of this, and the fact that criminal proceedings issued against the applicants (for obstructing police officers in the course of their duty) were discontinued, a complaint was brought before the European Court of Human Rights. The applicants argued that there had been a violation of Article 5(1) (right to liberty and security of person; no deprivation of liberty save for under procedures prescribed by law); Article 10 (right to freedom of expression); and Article 11 (right to freedom of peaceful assembly and to freedom of association).

Violation of Article 5(1)

The Court considered the alleged violations of 5(1) and 11. With regard to the right to liberty and security of person, it was noted that the regional courts in Germany had provided differing reasons as to why detention was necessary: the district and regional courts stated the likely incitement to free prisoners by force, while the appeal court considered their intention to attend the G8 demonstrations and incite protestors by displaying the banners found in the van.

Furthermore, considering the alleged intention of the police to prevent incitement to the liberation of prisoners by physical force, the Court noted that it would have been sufficient solely to seize the banners.

The German government also argued that the detention was justified on the grounds that the applicants would have failed to comply with an order to report to their local police stations at regular intervals, or an order not to enter the area in which the protests against the G8 took place. In response, the Court noted that this had never been requested of the applicants, and thus it was not possible to say if they would have complied with such orders. The use of such a lengthy period of detention was unreasonable in such circumstances.

Whilst there is an obligation for States to take reasonable steps to prevent criminal offences from taking place, there is no right for States "to protect individuals from criminal acts committed by a particular person by measures which were in breach of that person's Convention rights". The actions of the police were therefore in violation of Article 5(1).

Violation of Article 11

Given the nature of the applicants' complaint, it was deemed more appropriate to examine the issues solely in relation to Article 11, rather than Articles 10 and 11 together. The German government did not contest the fact that their actions interfered with the applicants' right to freedom of assembly, given that they were detained in order to prevent them from participating in demonstrations both in the car park of the prison at which they were arrested, and at the G8 summit.

Using its findings from its examination of the complaint under Article 5, the Court noted that there were no grounds for the assumption that the applicants intended to "deliberately stir up other demonstrators prepared to use violence to liberate prisoners". Furthermore, the Court found that the applicants' attempt to participate in the demonstration constituted a legitimate attempt to participate in a debate on the effect of globalisation on peoples' lives, and that with their banners they intended to "criticise the security measures taken by the police, in particular the high number of detentions".

The result of more than five days' detention was a "chilling effect on the expression of such an opinion" which "restricted public debate on that issue". No fair balance was struck between, on the one hand, public safety, and on the other, the applicants' right to freedom of assembly. Less intrusive measures - for example, simply seizing the banners - would have sufficed. The German authorities were therefore found to have also violated Article 11 of the European Convention.

The Court ordered that Germany pay each applicant €3,000 "in respect of non-pecuniary damage", and separate payments of €4,233.35 to Sven Schwabe, and €4,453.15 to M.G. for costs and expenses.


Press release, 'Five-day detention to prevent young men's participation in G9 summit demonstrations not justified', ECHR 269 (2011), 1st December 2011

The full text of the Court's judgment is available here

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