- BVerfGE 73, 206 1 BvR 713/83, 921, 1190/84 and 333, 248, 306, 497/85 Mutlangen -decision
- 11 November 1986
- Dr. Herzog, Dr. Simon, Dr. Hesse, Dr. Katzenstein, Dr. Niemeyer, Dr. Heußner, Dr. Henschel, Dr. Seidl.
- © Nomos Verlagsgesellschaft
1. Insofar as coercion using force is made punishable under Art. 240 of the Penal Code, its regulation by the legislature satisfies the requirements of clarity and certainty which follow from Art. 103, Sect. 2 of the Basic Law.
As a result of the court being equally divided, it cannot be held that the prohibition on analogy derived from Art. 103, Sect. 2 of the Basic Law has been violated by the courts' extension of the force alternative in Art. 240 of the Penal Code to sit-down demonstrations in which the participants block access to military installations without violent conduct through staying on the roadway.
2. The Basic Law does not direct that participation in such sit-down demonstrations remain free from sanctions. Art. 240 of the Penal Code is, however, to be interpreted and applied as being in conformity with the Basic Law in the sense that a finding of coercive force, where this term is extended to sit-down demonstrations, does not immediately point to the unlawfulness of the act.
As a result of the court being equally divided, it cannot be held that it is a violation of the Basic Law for criminal courts to find after assessing the relevant circumstances that sit-down demonstrations of the kind here are reprehensible within the meaning of Art. 240, Sect. 2 of the Penal Code.
Judgment of the First Panel of 11 November 1986
on account of the court hearings dated 15/16 July 1986
1 BvR 713/83, 921, 1190/84 and 333, 248, 306, 497/85
in the proceedings on the constitutional complaints of
1. Mr. M...,
2. Mr. O...
Attorney: Advocates Karl Joachim Hemeyer and Reinhard Treimer, Mühlstraße 14, Tübingen 1 - against a) the Order of the Higher Regional Court of Stuttgart dated 23 March 1983 - 4 Ss (15) 62/83 , b) the Judgment of the Regional Court of Tübingen dated 6 September 1982 - II Ns 62/82, - 1 BvR 713/83 ; 3) of Mr. S: - Attorney: Advocate Wolfram Leyrer, Am Markt 11, Tübingen 1 - against a) the Order of the Higher Regional Court of Stuttgart dated 4 June 1984 - 3 Ss (15) 157/84 , b) the Judgment of the Regional Court of Tübingen dated 19 December 1983 - 2 Ns 143/83 , c) the Judgment of the District Court of Münsingen dated 26 April 1983 - 2 Cs 29/83, - 1 BvR921/84 - ; 4. of Mr. G... - Attorney: Advocate Rainer Schmid, Vorstadtplatz 15, Nagold - against a) the Order of the Higher Regional Court of Stuttgart dated 25 July 1984 - 1 Ss (25) 255/84 , b) the Judgment of the Regional Court of Stuttgart dated 23 December 1983 - 37 Ns 1619/83, 1672/83, 1656/83, 1603/83 - 1 BvR 1190/84 ; 5. of Mr. H... - Attorney: Prof. Dr. Wolfgang Däubler, Friedrich-Mißler-Straße 25, Bremen 21 - against a) the Order of the Higher Regional Court of Stuttgart dated 14 February 1985 - 1 Ss (22) 55/85, b) the Judgment of the Regional Court of Stuttgart dated 30 October 1984 - 32 Ns 838/84 inter alia - 1 BvR 333/85 ; 6. of Mr. W... Attorney: Advocates Frank Niepel and Klaus D. Klefke, Nikolaistraße 15/II, Munich 40 - against a) the Order of the Higher Regional Court of Bavaria dated 28 January 1985 - 5 St 373/84 -, b) the Judgment of the District Court Neu-Ulm dated 18 July 1984 - 2 Cs 14 Js23383/83 - 1 BvR 248/85 - ; 7. of Mr. L... - Attorney: Prof. Dr. Gerald Grünwald, Auf dem Heidgen 43, Bonn 1 - against a) the Order of the Higher Regional Court of Stuttgart dated 31 January 1985 - 3 Ss (14) 756/84 , b) the Judgment of the Regional Court Ellwangen dated 3 October 1984 - 3 Ns 207/84-10 3 KV 138/84 , c) the Judgment of the District Court Schwäbisch Gmünd dated 14 June 1984 - 8 Cs 273/84-16 - 1 BvR 306/85 ;8. of Mrs. S..., 9. of Mrs. S... Attorney: Advocate Alfred Hinderer, Hauptstr. 1, Mutlangen - against 1.a) the Order of the Higher Regional Court of Stuttgart dated 18 February 1985 - 3 Ss (14) 18/85 ,b) the Judgment of the Regional Court Ellwangen dated 17 October 1984 - Ns 219/84 - 10-3 KV 145/84 , c) the Judgment of the District Court Schwäbisch Gmünd dated 28 June 1984 - 5 Cs 345/84-16 , 2. a) the Order of the Higher Regional Court of Stuttgart dated 18 February 1985 - 3 Ss (14) 815/84 , b) the Judgment of the Regional Court Ellwangen dated 19 November 1984 - Ns 260/84-10-3 KV 177/84 -, c) the Judgment of the District Court Schwäbisch Gmünd dated 28 June 1984 - 5 Cs 568/84-16 - 1 BvR 497/85 .
I.__The Judgment of the Neu-Ulm District Court dated 18 July 1984 - 2 Cs 14 Js 23383/83 - and the Order of the Bavarian Higher Regional Court dated 28 January 1985 - 5 St 373/84 - infringe complainant 6)'s fundamental right under Article 2, Sect. 1 of the Basic Law in connection with the rule of law principle contained in the same statute. The decisions are set aside. The matter is referred back to the Neu-Ulm District Court.
The Free State of Bavaria shall reimburse complainant 6) for the necessary expenses.
II.__The constitutional complaints of the remaining complainants are dis-missed.
EXTRACT FROM GROUNDS:
The complainants object to the fact that their participation in sit-down blockades, which took place infront of military installations and which were a protest against rearmament, was punishable as criminal coercion.
1. On 12 December 1979 the Foreign Ministers and the Defence Ministers of the Member States of NATO in Brussels made a "Dual-Track Decision" whereby on the one hand medium range rockets with nuclear warheads were to be stationed in certain European States and on the other negotiations between the United States and the Soviet Union on arms limitations on these kinds of weapons were to be supported.
When in mid-November 1983 after two years the Geneva arms limitations talks proved fruitless, the planned stationing of 108 launch facilities for Pershing II rockets and 96 surface supported cruise missiles began (cf. in detail BVerfGE 66, 39 et seq.).
The NATO dual-track decision was the subject of controversy in and outside of parliament. Its critics were of the view that the arms race with atomic weapons, which was anyway alarming, would be continued in a dangerous fashion through the stationing of medium range rockets. The latter were of an altered quality with a destabilizing effect which was further increased by the risk of technical and human error. Due to their high aiming accuracy, their short flight and early warning times and their capacity to avoid their opponent's defence system, they were suitable as first-strike weapons. Their stationing within reach of the territory of the Soviet Union could lead it to make preventative strikes in a crisis whereby the area where the rockets were stationed would be especially endangered as a target.
2. Numerous groups and supporters of the freedom movement participated in the protest against atomic armament. They organized demonstrations, vigils, fasts, church services, petitions as well as national mass actions such as the Bonn Peace Demonstration in autumn 1981, the South German Human Chain in October 1983 as well as the Easter marches in 1983.
As these protests proved themselves to be ineffective, more and more protest demonstrations occurred in the form of road-blocks infront of military installations at which participants made efforts to avoid any kind of violence. While the demonstrators regarded their actions as "non-violent symbolic blockades", they were assessed in numerous proceedings as coercion using force and the demonstrators themselves were prosecuted under the following penal provision:
§ 240 of the Penal Code
(1) Whoever coerces another person unlawfully using force or threat of great discomfort to take action, acquiesce or make an omission shall be punishable by up to three years' imprisonment or by a fine. In especially serious cases, imprisonment shall extend from six months to five years.
(2) An act is unlawful if the application of force or threat of great discomfort for the intended purpose is to be seen as reprehensible.
(3) An attempt is punishable.
The assessment of the blockades as coercion picked up the threads of the jurisprudence which had step by step extended the term "force" used in the abovementioned penal provision. Originally, the courts preferred to focus on the show of physical strength by the offender, later they focused more on the effect on the victim's body and finally they focused generally on the characteristic of constraint, which the Federal High Court had already established in 1969 in the Laepple case (BGHSt 23, 46) concerning a protest against fare increases. According to the Laepple case, a person is guilty of coercion using force if he exerts psychological pressure by stepping onto a tramline thereby causing the driver to stop (see below B II 3 a).
1. The sit-down blockades whose prosecution is the subject of the constitutional complaints occurred from the middle of 1981 to the beginning of 1984. In all cases access roads to military installations were blocked by several persons on the roadway who were removed by the police without resistance after futile requests to move were made. There was no violence. The nature and length of the blockades as well as the obstructions caused were different in each case.
a) Proceedings 1 BvR 713/83 relate to one of the first blockade actions on 13 July 1981 in Großengstingen where American Lance rockets were already stationed at that time. After publicly announcing their intention complainants 1) and 2), who were both students, as well as eleven other members of peace groups sat themselves down on an access road to the Eberhard-Finckh barracks about seven metres infront of the main entrance across the entire width of the road for an unlimited action. Immediately beforehand they chained themselves together and to posts on both sides of the road. The commander of the barracks diverted traffic through a side gate after requests to move went unheeded. The demonstrators held a press conference with the journalists present, talked to soldiers and continued their action until the following day. Eventually, police called by the commander requested in vain the demonstrators to move and carried them away after cutting the chains.
The District Court - juvenile court with lay assessors - of Reutlingen acquitted the complainants of the charge of joint coercion. The Regional Court of Tübingen sentenced them each to a fine for 30 days at the rate of DM 20 per day. The Higher Regional Court of Stuttgart dismissed the appeal.
b) Proceedings 1 BvR 921/84 also concern an action in Großengstingen which the police and barracks commander were informed about in advance and involve the special ammunition depot for atomic short range rockets. The planned action for the period between 1 - 8 August 1982 with about 700 participants was prepared for in groups through non-violence training. Complainant 3), a university research assistant, participated twice on 2 August 1982 in groups of 10 to 50 people which took it in turns to sit themselves down in rows going across the only access road. Army vehicles wishing to enter or leave had to wait 10 to 20 minutes prior to continuing after police officials had carried demonstrators away in 16 operations.
The District Court of Münsingen sentenced the complainant on a charge of joint coercion to a fine for 20 days at the rate of DM 20 per day.
The Regional Court of Tübingen and the Higher Regional Court of Stuttgart dismissed subsequent appeals.
c) Proceedings 1 BvR 1190/84 and 333/85 relate to sit-down blockades on the third anniversary of the Nato dual-track decision, which took place after prior notification to the police and American armed forces on Sunday, 12 December 1982 on the access to the Patch barracks in Stuttgart-Vaihingen, the command centre for all US armed forces in Europe. The approximately 250 participants wanted to block the street between 8 a.m. and 5 p.m. on the hour in tightly-knit groups of 30 or more persons for the duration of 12 minutes. Half the street had already been reserved by the Jungen Union for a registered counter demonstration between 10 a.m. and noon. Complainants 4) and 5), a student and a labour court judge, took part in the road block at 9 a.m. and noon and already after five minutes they were carried away by police following non-compliance with requests to move. During the entire action approximately 150 vehicles belonging to the German police or the American military police were temporarily stopped including a taxi. There existed an additional access to the barracks site, which, however, was closed-off.
The District Court of Stuttgart acquitted the complainants. The Regional Court of Stuttgart sentenced them on charges of joint coercion and attempted joint coercion respectively and they were also sentenced to fines for 10 days at the rate of DM 10 per day and 8 days at the rate of DM 80 per day respectively. The Higher Regional Court of Stuttgart dismissed the appeals.
d) The subject of Proceedings 1 BvR 248/85 is a demonstration on Easter Sunday, 3 April 1983 infront of the American barracks in Neu-Ulm.
Complainant 6), a social worker, sat together with approximately 200 participants for a time, whose duration cannot be determined exactly, but is thought to have been only a few minutes, infront of the main entrance gate. He sat there until the police cleared the street after three requests by them to move went unheeded. The American officer in charge had already taken measures for dealing with traffic prior to the demonstration and recommended that the main gate not be used. No vehicles were obstructed.
The District Court of Neu-Ulm sentenced the complainant on a charge of attempted joint coercion to a fine for eight days at the rate of DM 25 per day (see in detail below A II 2 b). The Bavarian Higher Regional Court dismissed the appeal.
e) Proceedings 1 BvR 306/85 and 497/85 relate to blockades occurring regularly from autumn 1983 by members of the peace movement infront of the American military depot in Mutlangen where it was planned to station medium-range rockets and which was at that time accessible only via an approach road without user restrictions. When vehicles attempted to enter or leave the depot, participants sat or stood close together on the road until it was cleared by police after unsuccessful requests to move had been made. Complainant 7), a county official, participated on 11 December 1983 at approximately 7.30 p.m. in an action together with around 70 people which lasted about 15 minutes and hindered a convoy of five American military vehicles. Complainant 9), a qualified accountant, participated on 12 December 1983, the fourth anniversary of the dual-track decision, together with 13 other persons towards 9.45 a.m. in an action which hindered an American vehicle for the duration of approximately 15 minutes. Complainant 8), a sculptor, stood on 7 February 1984 at 10.37 p.m. together with nine other persons infront of a convoy of two American military vehicles so that the convoy could only keeping driving after the expiration of five to ten minutes.
The District Court of Schwäbisch Gmünd charged the complainants with coercion and fined them - complainant 7) was fined for 20 days at the rate of DM 75 per day, complainant 8) was fined for 20 days and complainant 9) for 25 days both at the rate of DM 20 per day. The Regional Court of Ellwangen dismissed the appeals as did the Higher Regional Court of Stuttgart. In the case of complainant 7) the Higher Regional Court elaborated on the reasons for its decision.
2. a) The Criminal Division of the Higher Regional Court of Stuttgart bases its sentences on the Laepple case, decided by the Federal High Court, according to which obstruction of a path using one's body amounts to coercion using force... (there follows the court's reasoning).
b) The Bavarian Higher Regional Court dismissed complainant 6)'s appeal against the judgment of the District Court unanimously without giving reasons.
The District Court held in its judgment regarding the complainant's participa-tion in the sit-down blockade at Neu-Ulm that ... (there follows the court's reasoning).
3. The complainants lodged constitutional complaints against their sentences. All of them complain of infringement of Art. 103, Sect. 2 of the Basic Law. Furthermore they claim - in some cases giving it higher priority - a violation of fundamental rights under Articles 5 and 8 of the Basic Law. Some also claim a violation of the principle of equality before the law.
The complainants argue ... (there follows the complainants' arguments).
Opinions have been given on the constitutional complaints by the Federal Minister of Justice on behalf of the Federal Government, the Minister-President of Bavaria and the Ministry of Justice of Baden-Württemberg. In the first proceedings the Criminal Division of the Federal High Court, the Police Trade Union and four Institutes for Peace and Conflict Research have also presented opinions.
1. The President of the Federal High Court has submitted the views of the competent criminal divisions on the application of § 240 of the Penal Code in their jurisprudence and its compatibility with the Basic Law... (outline of views).
2. The Federal Minister of Justice asserts that no infringement of specific constitutional law is evident in the decisions challenged. The Minister President of Bavaria ..., the Ministry of Justice of Baden-Württemberg ... also view the constitutional complaints as unjustified... (outline of views).
3. The Police Trade Union regards clarification by the Constitutional Court as to the limits of the definition of coercion as urgently necessary in the interests of the police and the demonstrators and persons concerned... (there follows an outline of views in favour of the complainants).
4. Of the four Institutes for Peace and Conflict Research, the Hamburg Institute for Peace Research and Security Policy has submitted publications on the constitutional evaluation of nuclear weapons... (there follows an outline of views in favour of the complainants).
1. In the court hearings on 15 and 16 July 1986 the following persons made representations:...
The constitutional complaint of complainant 6), which relates to the sit-down demonstration in Neu-Ulm, is admissible and justified. The remaining admissible constitutional complaints are dismissed; in this respect as a result of the court being equally divided, no violation of the Basic Law could be found (Art. 15 (3), sent. 3 Federal Constitutional Court Act).
In the jurisprudence and works of legal experts not just the constitutional evaluation, but above all the criminal evaluation of sit-down demonstrations of the type in issue is controversial. Typical of such actions is that mostly after previous public notification access to military installations is blocked without any violent behaviour by the presence of participants on the road who provide no resistance to police intervention. The possibility of prosecuting such demonstrations (in any case following lawful dispersion) as administrative offences, namely as breaches of assembly and traffic law provisions is as far as can be seen not in dispute. Numerous criminal courts have gone further following on from the Laepple case decided by the Federal High Court (BGHSt 23, 46) to condemn such demonstrations as reprehensible coercion using force (cf. in addition OLG Stuttgart, NJW 1984, p. 1909 in particular KG, NJW 1985, p. 209; OLG Düsseldorf, NJW 1986, p. 942; BayObLG, JZ 1986, p. 404) whereas other courts have acquitted or discontinued proceedings (cf. the references in the survey of jurisprudence Leb, Kritische Justiz 1984, p. 202 and Frankenberg, Kritische Justiz 1985, p. 301). Finally, following its comments in another decision (BGHSt 32, 165) the Higher Regional Court of Cologne has posed the question to the Federal High Court of whether demonstrations, which for the sake of greater publicity are aimed at impairing the freedom of movement and action of others, should always be unlawful within the meaning of § 240, Sect. 2 of the Penal Code or whether due to special circumstances in an individual case reprehensibility should be negated (NStZ 1986, p. 30; with reservations also OLG Koblenz, NJW 1985, p. 2432 in the case of short obstructions and OLG Zweibrücken, NJW 1986, p. 1055 in the event of police ordering a detour). After pronouncement of the judgment challenged the Federal High Court clarified in an Order dated 24 April 1986 (NJW 1986, p. 1883) that the circumstances of the Laepple case were in some essential points distinguishable from the sit-down blockades in issue here. The fact that a demonstration aims from the start to cause the traffic obstruction actually caused was not always sufficient for a finding of reprehensibility within the meaning of § 240, Sect. 2 of the Penal Code.
The Laepple case triggered off controversial debate among legal experts. Nevertheless, the assessment since then of sit-down blockades as coercion has notwithstanding certain reservations met with approval. Recently, however, criticism of such assessment has increased whereby both the classification of passive resistance as force as well as its evaluation as reprehensible have been questioned. In places constitutional aspects such as problems of "civil disobedience" have been expounded upon:
Bergmann, Zur strafrechtlichen Beurteilung von Straßenblockaden als Nötigung, Jura 1985, p. 457;
Blumenwitz, Versammlungsfreiheit und polizeiliche Gefahrenabwehr bei Demonstrationen, in Festschrift für Samper, 1982, p. 131;
Brink/Keller, Politische Freiheit und strafrechtlicher Gewaltbegriff, KJ 1983, p. 107;
Brohm, Demonstrationsfreiheit und Sitzblockaden, JZ 1985, p. 501;
Callies, Der strafrechtliche Nötigungstatbestand und das verfassungsrechtliche Gebot der Tatbestandsbestimmtheit, NJW 1985, p. 1506;
Esser in Schönke/Schröder, StGB, 22nd ed., 1985, maginal note 26 et seq. on § 240;
Giehring, Verkehrsblockierende Demonstration und Strafrecht, in Lüderssen/Sack, Vom Nutzen und Nachteil der Sozialwissenschaften für das Strafrecht, Vol. 2, 1980, p. 513;
Kaufmann, Gerechtigkeit - der vergessene Weg zum Frieden, 1986, p. 86;
Kniesel, Polizeiliche Lagebeurteilung bei Sitzblockaden nach Maßgabe der Versammlungsfreiheit, Die Polizei, 1986, p. 217;
Kostaras, Zur strafrechtlichen Problematik der Demonstrationsdelikte, 1982;
Krauß, Die Beurteilung "passiver Resistenz"- restriktive oder extensive Auslegung der Gewaltnötigung?, NJW 1984, p. 905;
Marxen, Demonstrationsfreiheit und strafrechtlicher Gewaltbegriff, KJ 1984, p. 54;
Offenloch, Geforderter Rechtsstaat, JZ 1986, p. 11, Ott, Rechtsprobleme bei der Auflösung einer Versammlung in Form eines Sitzstreiks, NJW 1985, p. 2384;
Preuß, Nötigung durch Demonstration?, Zur Dogmatik des Art. 8 GG, in Festschrift für R. Schmid, 1985, p. 419;
Rinken, Sitzblockaden gegen Raketenstationierung, KJ 1984, p. 44;
Schäfer in Leipziger Kommentar, 10th ed., 1986, marginal note 17 et seq., 61 et seq., 97 et seq. on § 240 StGB;
Schmitt, Der Anwendungsbereich von § 1 Strafgesetzbuch (Art. 103 Abs. 2 Grundgesetz), in Festschrift für Jescheck, 1985, p. 223;
Schüler-Springorum, Strafrechtliche Aspekte zivilen Ungehorsams, in Glotz, Ziviler Ungehorsam im Rechtsstaat, 1983, p. 76;
Schroeder, Widerstand gegen Willensmittler als Nötigung?, NJW 1985, p. 2392;
Sommer, Lücken im Strafrechtsschutz des § 240 StGB?, NJW 1985, p. 769;
Wolter, Verfassungskonforme Restriktion und Reform des Nötigungstatbestandes, NStZ 1986, p. 241.
For a discussion of civil disobedience:
Brieskorn, Der zivile Ungehorsam, in Stimmen der Zeit, 1984, p. 28;
Doehring, Staatsräson, Legalität und Widerstandsrecht, in Festschrift für Carl Carstens, 1984, p. 527;
Dreier, Widerstandsrecht und ziviler Ungehorsam im Rechtsstaat, in Glotz, Ziviler Ungehorsam im Rechtsstaat, 1983, p. 54;
Eckertz, Geburtshelfer des Rechts - Ziviler Ungehorsam im Meinungsstreit, Evangelische Kommentare, 1984, p. 553;
Engelhard, Rechtsbewußtsein der Bürger und demokratische Legitimät, Recht 1984, p. 89;
Frankenberg, Ziviler Ungehorsam und Rechtstaatliche Demokratie, JZ 1984, p. 266;
Habermas, Ziviler Ungehorsam, in Glotz, Ziviler Ungehorsam im Rechtsstaat, 1983, p. 29;
Hassemer, Ziviler Ungehorsam - ein Rechtfertigungsgrund?, in Festschrift für Wassermann, 1985, p. 325;
Isensee, Ein Grundrecht auf Ungehorsam gegen das demokratische Gesetz? - Legitimation und Perversion des Widerstandsrechts, in: Streithofen (publisher), Frieden im Land, 1983, p. 155;
Karpen, "Ziviler Ungehorsam" im demokratischen Rechtstaat, JZ 1984, p. 249;
Strecker, Ziviler Ungehorsam als Herausforderung an die drei Gewalten, in Festschrift für R. Schmid, 1985, p. 353;
Wassermann, Zur Rechtsordnung des politischen Kampfes in der verfassungsstaatlichen Demokratie, JZ 1984, p. 263.
In the original proceedings the courts sentenced the complainants on account of coercion pursuant to § 240 of the Penal Code. Insofar as this provision makes coercion using force punishable, a constitutional law examination shows that the regulation by the legislature in § 240 of the Penal Code satisfies the requirement of clarity and certainty for penal provisions which follows from Art. 103, Sect. 2 of the Basic Law. In the opinion of four members of this court, even the wide interpretation of the term force in the jurisprudence does not exceed the limits set by the Basic Law for the interpretation of penal provisions. The four other members of this court hold on the other hand that the extension by the courts of force in § 240 of the Penal Code to acts of the nature relevant here is incompatible with the prohibition on analogy derived from Art. 103, Sect. 2 of the Basic Law.
1. Art. 103, Sect. 2 of the Basic Law guarantees that an act can only be punished if its punishability was defined by statute prior to its being committed. The Federal Constitutional Court has dealt with this constitutional rule in numerous decisions and made clear early on that its significance is not limited to the prohibition on the creation of offences using custom or retrospectity (BVerfGE 14, 174 (185); instead of cases). Later decisions have elaborated that Art. 103, Sect. 2 of the Basic Law contains a clarity and certainty requirement essential for statutory provisions as well as a corresponding prohibition directed at the case law on creating offences by analogy. The Federal Constitutional Court has used a case in which Art. 103, Sect. 2 of the Basic Law had been infringed by the inadmissible interpretation of the penal provision applied in order to summarize the principles of its previous case law as follows (BVerfGE 71, 108 (114 et seq.); cf. also BVerfGE 47, 109 (123 et seq.); 64, 389 (393 et seq.)):
Art. 103, Sect. 2 of the Basic Law binds the legislature - in addition to the prohibition on retrospective legislation which need not be elaborated upon here - to circumscribe the preconditions for punishability so definitely that the reach and application of the elements of a criminal offence are recognizable and can be determined by interpretation. This duty serves two purposes. On the one hand it concerns the protection under the rule of law of the individual at whom the law is addressed. Every person should be able to foresee which conduct carries with it a threat of punishment. On the other hand in this context there should be a guarantee that it is the legislature which decides on punishability. In as much Art. 103, Sect. 2 of the Basic Law contains a strict statutory proviso which forbids the executive and the judiciary from themselves deciding on the preconditions for punishment.
If penal provisions must be clear in the way described this does not exclude the use of terms which require in special measure explanation by a judge. In penal law too the legislature is faced with the necessity of taking into account life's multifariousness. Due to the generality and abstract nature of penal provisions, it is also unavoidable that there should be border-line cases where it is doubtful whether conduct falls within the statutory elements of an offence or not. In any case it must be normally possible for the individual at whom the law is addressed to foresee with the help of the statutory provision whether conduct is punishable. This way at least the risk of punishability is recognizable in border-line cases. What is first and foremost relevant for the certainty of a penal provision is that the individual at whom the law is addressed be able to recognize and understand the wording of the statutory elements of the offence.
The necessity for statutory certainty precludes the creation of offences by way of analogy or by custom. At the same time the word "analogy" is not to be understood in a narrow technical sense - rather what is precluded is every legal "application" which goes beyond the content of a statutory penal provision. Art. 103, Sect. 2 of the Basic Law places a constitutional bar on the interpretation of penal provisions. As the subject of interpretation of statutory provisions can only ever be the wording of the statute itself, the latter is the relevant criterion. The possible lexical meaning of the statute marks the furthermost limit for permissible judicial interpretation. If, as shown, Art. 103, Sect. 2 of the Basic Law requires that the threat of punishability be recognizable and foreseeable for the individual at whom the law is addressed, this can only mean that the lexical meaning must be determined from the point of view of the citizen.
It follows: The legislature must decide whether, and to what extent, it will protect a particular object, whose legal protection it regards as essential (and necessary) with the help of the criminal law. The courts are forbidden from correcting its decision. If an "interpretation", which goes beyond the recognizable lexical meaning, leads to the conclusion that conduct is punishable, this may not be to the detriment of the citizen. Therefore, the courts must acquit in cases which are not covered by the wording of a penal provision. This also applies when as a result of penal provisions being as clearly defined as possible due to the (constitutional) requirement of certainty, individual cases with special facts fall outside the reach of the Penal Code, even if the conduct would appear deserving of punishment. In this respect the legislature must be taken by its word. It is up to it to decide whether it will allow a resulting gap in penal law to remain or whether it will create new rules. In any case, Art. 103, Sect. 2 of the Basic Law prohibits the courts from anticipating its decision.
This case law should be upheld. It also finds a large degree of consensus - apart from a few details which are of no relevance here - in the works of legal experts (cf. the references in Krahl, Die Rechtsprechung des Bundes-verfassungsgerichts und des Bundesgerichtshof zum Bestimmtheits-grundsatz im Strafrecht (Art. 103 Abs. 2 GG), 1986, p. 220 et seq.). However, the author warns against the danger of the case law only paying lip- service, as it is inclined to take a too generous view of the possibility of breaches of the requirement of certainty and clarity and the prohibition on analogy in an individual case (Krahl, op. cit. p. 412).
2. An examination of § 240 of the Penal Code by the standard of Art. 103, Sect. 2 of the Basic Law using the principles referred to shows above all that the legislature's regulation of the force alternative is not objectionable.
What the offence of coercion seeks to protect is recognizably freedom to make a voluntary decision and freedom to implement one's will (cf. Eser, op. cit. § 240, marginal note 1).The legislature has not, however, made every constraint on this freedom punishable, but rather chosen from the range of possible constraints on people those as socially damaging in which coercion using certain means takes place, namely where force or threat of great discomfort is used. The present proceedings provide no reason for examining in more detail the relationship between the elements of the two offences, which is not entirely undisputed (critical thereof see in particular Sommer op. cit.). At any rate it can be seen that the legislature in the case of the force alternative makes the present infliction of an impairment punishable, whereas in relation to the threat alternative the mere announcement of a future discomfort is covered. In using the term force it employs a linguistically comprehensible characteristic, occurring in countless other penal provisions, which may perhaps be open to interpretation, but whose reach can be established through an interpretation based on wording and statutory purpose in a way sufficiently foreseeable for the citizen. For the constitutional assessment of the elements of the offence of coercion it is further significant that under the statute coercion using force shall only then be punishable if it occurs unlawfully. In 1943 for the purposes of defining _funlawful_F more closely, together with an extension of the threat alternative (originally: "threat with a crime or an offence") a rule in the form of § 240, Sect. 2 of the Penal Code was introduced whereby how deserving of punishment an act is arises not from the means used, but from there already being a connection between means and end which should be disapproved of. According to the new version of the rule revised by the Third Penal Amendment Act dated 4 August 1953 (BGBl. I p. 735) an act is unlawful "if the application of force or the threat of discomfort for the intended purpose is to be regarded as reprehensible". The assessment as reprehensible is in the view of the Federal High Court's jurisprudence connected to socio-ethical values; reprehensibility exists if conduct appears according to general opinion so worthy of disapproval that it can be seen as a wrong deserving of punishment (cf. BGHSt 17, 328 (332); 18, 389 (391); 19, 263 (268); BGH, VRS 40, 104 (107); similarly OLG Koblenz, NJW 1985, p. 2432 (2433); OLG Cologne, NStZ 1986, p. 30 (32) and BayObLG, JZ 1986, p. 404 (405) in proceedings relating to a sit-down demonstrations). In order to avoid recourse being made to extra-legal value standards, legal experts in their writings try instead to make the assessment more from the point of view of social intolerance (cf. Welzel, Das Deutsche Strafrecht, 11th ed. 1969, p. 327).
However the term reprehensible is to be understood, it is obvious that through the reprehensibility provision contained in § 240, Sect. 2 of the Penal Code, the decision as to what in an individual case should be punishable as coercion is to a considerable extent transferred to the judge. This creates a danger that it is no longer the rule made by the legislature prior to the act, but a decision by judges made after the act as to how deserving it is of punishment, which underlies the punishment. Accordingly, legal experts express doubts in their works as to whether the rule is sufficiently certain as is required by the case law on Art. 103, Sect. 2 of the Basic Law (cf. the references in Schäfer, op. cit., marginal note 60). Their doubts are increased by wording used by the Higher Criminal Division of the Federal High Court which expressly authorized judges instead of the legislature to make evaluations in the application of § 240 of the Penal Code (BGHSt 2, 194 (195 et seq.). These reservations, nevertheless, disregard the fact that the controversial rule regarding reprehensibility - irrespective of its criminal law classification - involves a rule for correcting the elements of the offence, which restricts the punishability of a coercive act as defined by other characteristics and its application has a favourable effect on the offender. As this restriction depends on the circumstances of each individual case, it avoids a statutory definition, which is certain in advance, in the same way as this is avoided when legally protected values have to be balanced in a case of necessity (Art. 34 of the Penal Code) or where safeguarding legitimate interests (Art. 193 of the Penal Code). In such cases, it is not unconstitutional if the legislature contents itself with linguistically comprehensible terms, which must be evaluated, and leaves their application in an individual case to the court (cf. too Schäfer, op. cit., marginal note 65; Esser, op. cit., marginal note 18).
3. In spite of all that, it is not the statutory regulation by the legislature which is constitutionally doubtful, but at the most the regulation's interpretation by the courts. This is why twenty-eight professors of criminal law were prompted to raise doubts about § 240 of the Penal Code's constitutionality in submissions to the Federal Constitutional Court
a) The reach of the force alternative in § 240 of the Penal Code has been extended by the courts in the course of time in such a way as to lead to the extension being criticized as an "intellectualization" or a "deprivation of substance" of the term force. The extension was intended to satisfy the need to prosecute conduct deserving of punishment and to avoid gaps in the criminal law. Examples of relevant cases were the firing of warning shots (RGSt 60, 157; 65, 353), the blocking of a way by a threatening crowd (RGSt 45, 153), the locking of doors (RGSt 69, 327), the cunning administration of narcotics (BGSt 1, 145), harassment on the motorway (BGHSt 19, 263) and finally disruption of lectures (BGH, NJW 1982, p. 189) as well as sit-down blockades (BGHSt 23, 46).
The extension of the term force has proceeded essentially in three steps which, however, cannot be clearly separated from one another (cf. the survey in Blei, Die Auflösung des strafrechtlichen Gewaltbegriffs, JA 1970, p. 19; Schäfer, op. cit., marginal note 7 et seq.; Keller, Die neue Entwicklung des strafrechtlichen Gewaltbegriffs in der Rechtsprechung, JuS 1984, p.109 et seq.). The Supreme Court of the German Reich originally understood force as meaning a show of physical strength by the offender to overcome offered or expected resistance (cf. RGSt 56, 87 re a robbery case and RGSt 64, 113 re a sexual offence). After the Supreme Court of the German Reich had sometimes set its requirements for the show of strength rather low, the Federal High Court found in step two that the effect on the victim's body is decisive. It held force is present if the physical action of the offender causes the victim's actual or anticipated resistance to be broken or prevented through a means affecting the victim's body, and this applies irrespective thereof whether the offender needs a lot or a little strength to do this (BGHSt 1, 145 in the case of the secret administration of narcotics). In step three the Federal High Court was generally guided by the constraint placed on the victim's freedom to make a voluntary decision and freedom to implement his own will (BGHSt 8, 102 - mass strike, 19, 263 - harassment on the motorway; cf. also BGHSt 23, 126 - pointing a weapon). The 1969 Laepple case, which related to a protest against fare increases through sit-down blockades on tramlines, went the furthest (BGHSt 23, 46 (53 et seq.)). Both the requirement of the use of physical strength by the offender and the effect on the victim's body lost from this time on their considerable significance. It became sufficient that the offender using only a slight amount of strength could bring about a purely psychologically-governed process thereby exerting irresistible pressure on the victim.
The courts in the original proceedings have picked up the threads of this case law in assessing as coercion by force sit-down demonstrations during which access to military installations was blocked without violent behaviour by sitting and remaining on the road. According to the First Criminal Division of the Higher Regional Court of Stuttgart the demonstrators, who were involved in the sit-down blockade in Stuttgart-Vaihingen, exerted coercive force by sitting on the road for a time so that the entire road was blocked and truck drivers were forced to come to a halt. Their large-scale, physical action exerted irresistible pressure on the vehicle drivers, which prevented them from continuing along a public road ( NJW 1984, p. 1909 (1910)). The Third Criminal Division of the Higher Regional Court of Stuttgart is of the opinion that this interpretation is in accordance with § 240 of the Penal Code's wording and purpose. Measured by the purpose of protection, at least a physical barricade erected with the intention of coercing another, which - when the victim of the coercion does not succumb - leads to a direct collision between offender and victim and which could only be overcome by the victim's counterforce, is to be assessed in the same way as a direct physical assault for the purposes of coercion. If the victim of coercion feels prevented for reasons of conscience or at least fear from using superior counter force against the offender, then a human barricade also acts on the heart of the victim of the coercion.
Accordingly, a human chain can amount to an obstacle so that here too the behaviour forced about by the physical actions of the offenders can result from an interaction of physical and mental considerations. The District Court Neu-Ulm also identified pressure to stop going where the victims of coercion would have endangered the demonstrators and made themselves criminally liable, had they continued. In addition, it determined that complainant 6) by participating in the sit-down blockade in Neu-Ulm had begun to use psychological force in that he employed his body together with the other demonstrators to make it impossible for vehicles to drive in and out. This finding was approved of by the Bavarian Higher Regional Court in its dismissal of the appeal. In a later decision on sit-down blockades (JZ 1986, p. 404) it held that the present day case law evidences a certain change vis-à-vis previous case law as the term force has been extended and emphasis has been shifted to constraint placed on the victim. This approach takes into account the subtle and sublime forms constraint can take and the circumstance that triggering of psychological reservations on the part of the victim can be just as effective as physical pressure.
Although the court was in agreement on the constitutional analysis of the statutory rule enacted by the legislature, there is no consensus among its members in respect of the assessment of the interpretation placed on the rule.
aa) In the opinion of the four judges, whose view is decisive for the judgment, the extension of the force alternative by the courts is compatible with Art. 103, Sect. 2 of the Basic Law as it does not exceed the limits of permissible interpretation. These judges follow the previous case law which has despite certain reservations been approved of in the legal commentaries (cf. Eser, op. cit., preamble § 234, marginal note 6 et seq.; Schäfer, op. cit., marginal note 28 et seq.; Dreher/Tröndle, StGB, 42nd ed., 1985, § 240, marginal note 3 et seq.) and which was elaborated upon approvingly by Prof. Dr. Tröndle at the court hearing.
The freedom to make a voluntary decision and the freedom to implement one's will (which the Act aims to guarantee in its provision on coercion) are protected effectively through the broad interpretation of the term force even against those influences deserving of punishment, which are more sublime, but just as effective as the exertion of physical strength. The extension stays within the possible boundaries of judicial interpretation of lexical meaning. After all the term force is not fully clear and thus open to interpretation. Whereas other languages have several words at their disposal, (in German) the same word is used for different purposes, namely as a description for the application of physical strength (the English violence), further as a description of dominion (the French pouvoir, the English power) and finally as a metaphor for especially intensive or over-powering events (e.g. powerful speech). What is more in relation to the first-mentioned meaning not just the application of physical strength is described as force, but also a generally unlawful act whereby another person is forced to do something (Duden, Das große Wörterbuch der deutschen Sprache, 1977, Vol. 3, p. 1027). The boundary, which the lexical meaning places on interpretation, is in any case respected if the unavoidable constraint placed on the victim presupposes the exercise of certain albeit slight physical strength on the part of the offender (here the creation of a living barrier through sitting on the blocked street). Subject to this condition, the force alternative as the present infliction of great discomfort represents, when broadly interpreted, an independent extension to the second form of commission of an offence under § 240 of the Penal Code for which a future threat of discomfort is relevant.
In the view of the four judges constitutional doubts still do not arise when the double regulatory purpose of the prohibition on analogy is considered. It is true that this might be one of those borderline cases in which there could still be uncertainty as to whether the conduct falls within the statutory elements of the offence. The risk of punishment was, however, foreseeable for the citizen at least based on the case law recognized to a large extent in the works of legal experts (re its meaning cf. BVerfGE 14, 245 (253); 28, 175 (183); 37, 201 (208); 26, 41 (42 et seq.); 57, 250 (262)). The complainants themselves do no assert that they were not expecting to be punished. A broad interpretation of the term force is not incompatible with the other regulatory purpose of the prohibition on analogy - namely the guarantee of statutory responsibility - because the legislature by using the term "violence"- similar to its use in other penal provisions (cf. §§ 113, Sect. 2, No. 2 and 124 et seq. of the Penal Code) - could have guaranteed a narrower area of application for the coercion provision. Even when it was amending the law, the legislature did not use the case law described to justify an intervention, but was content to retain the reprehensibility clause in section 2 as a means of correcting the extension of the term force.
bb) In contrast the four other judges agree with those critics who regard the extension of the term force as incompatible with the prohibition on analogy (cf. in detail Callies, op. cit. p. 1509 et seq. ; Wolter, op. cit., p. 246 et seq. - both with other supporting references; in addition Kaufmann, op. cit. and Giehring, op. cit., p. 517 et seq.). These judges also subscribe to the view that sit-down demonstrations of the kind here are not lawful, but must be treated under existing law as breaches of assembly and traffic laws. Nevertheless, the participants cannot be charged with coercion using force within the meaning of § 240 of the Penal Code. On the contrary - apart from preparatory actions (stepping onto and sitting down on the road) which are irrelevant for the criminal law - they acted totally passively that is without any force. Indeed it was not established in the original proceedings that the drivers, who were obstructed, felt they had been coerced by forceful means. The latter stopped on police orders or those of their superiors or out of respect for the existing order of values, which prevented them from endangering the demonstrators by forcing their way through and which respect the demonstrators compelled from them due to their defencelessness and non-violence.
The extension of the term force to such conduct was not foreseeable for the citizen if the time of enactment of the Act is used as the relevant time for the determination of foreseeability. After all the Supreme Court of the German Empire emphasized expressly in 1921 that existing German law understands - in conformity with normal linguistic usage - force as being exclusively the removal of resistance through the application of physical strength (RGSt 56, 87 (88)). The Large Criminal Law Commission also acknowledged that linguistic usage associates with the term force directed at a specific person the idea of a not insignificant use of strength. The term force may not be stretched to a dimension which no longer appears compatible with the linguistic usage (Draft 1960, p. 114). When in contrast thereto the Federal High Court changed over to an interpretation requiring an analogy working to the detriment of criminals, which was permissible prior to 1945, but contrary to the rule of law (cf. RGSt 72, 349 (351) - on the administration of narcotics) and then when in the Laepple case it even classified as force unavoidable constraint through a psychologically-governed process (BGHSt 23, 46 (54)), it soon met with criticism. Legal clarity essential for foreseeability for the citizen and desirable for police action could therefore not develop and it could develop even less so when the Federal High Court placed considerably stronger requirements on the term force in relation to rape cases and did not even accept confinement in an enclosed room as the application of force (NJW 1981, p. 2204).
In the view of the four judges it is especially evident from the systematics of § 240 of the Penal Code that the extension of the term force to sit-down demonstrations of the kind here exceeds the boundaries placed by recognized rules on permissible interpretation. § 240 - as already mentioned - indicates unmistakably that the legislature does not make punishable every constraint on the freedom to make a voluntary decision and to implement one's will, but rather planned to restrict the number of forms of pressure. If causing there to be unavoidable constraint had been sufficient in the eyes of the legislature, then it could have done without naming the forms of pressure - for the use of pressure already results from the term "coerce". In addition - as already outlined by the Supreme Court of the German Reich (RGSt 64, 113) - through the "intellectualization" of the term force its boundary to "threat of great discomfort" is blurred so that the threat alternative becomes merged with the force alternative and both lose their independent meanings contrary to the clear statutory provision. If, however, the legislature regards restrictions on certain means of coercion as necessary so as to limit punishability, then the constitutional provision Art. 103, Sect. 2 of the Basic Law requires it to adhere to such decision even if this results in there being gaps in the law. It cannot be the task of the jurisprudence to close these gaps in such a way that the elements of the offence are emptied of their lexical meaning and the boundaries on punishability determined by the legislature are circumvented by resorting to the purpose of punishment. This leads to a result which is hard to believe, namely that practically every traffic obstruction through a demonstration and other similar gatherings of people - even in the case of undoubtedly lawful events - would have to be seen as falling within the meaning of force in the coercion provision.
Strict adherence to the prohibition on analogy is all the more indispensable as the original proceedings were not concerned with fighting self-interested crime, but rather with prosecution in an area of life whose control requires a special amount of responsible legislative decision-making. The participants in sit-down blockades view this as a way of confronting controversial subjects which are of a highly political nature. Whatever way their conduct is to be judged - it is to a large extent within the general public interest that such confrontations remain free from violence and that the border between violent and non-violent behaviour remains clear. The confusion of terms complained of quite rightly elsewhere is promoted by state organs themselves if exertion of psychological constraints through peaceful sit-down blockades is treated as force just like coercion using physical violence. Should this occur, then the legislature must take responsibility for it. The guarantee of this is one of the two statutory purposes of the prohibition on analogy, which reserves to the legislature the right to determine the elements of an offence and which prohibition in this sense does not rest alone on the rule of law requirement of foreseeability, but rather at the same time on the principle of democracy and the special responsibility of the legislature resulting therefrom and further on the principle of separation of powers and the thereby intended restriction on state power and, finally, on the notion that criminal law must necessarily remain fragmentary for the protection of personal freedom (cf. also v. Münch, GG, 2nd ed., 1983, Art. 103, marginal note 17).
All of the judges are unanimous in the view that the Basic Law does not require sit-down demonstrations of the kind here to go unsanctioned. What is required, however, is an interpretation and application of § 240 of the Penal Code which is compatible with the Basic Law in the sense that a finding of coercive force, where the term is extended, does not immediately indicate the act is unlawful. Moreover, it is necessary that the reprehensibility clause in subsection 2, intended by the legislature as a means of correction, be applied taking all the circumstances of the case into account. As this did not take place in the assessment of the sit-down blockade in Neu-Ulm, complainant 6)'s constitutional complaint must be allowed. In regards to the other complainants, four judges are of the view that if § 240 of the Penal Code is interpreted and applied in conformity with the Basic Law, then the challenged decisions must be overturned because acts of the kind here cannot as a rule be characterized as reprehensible when all the circumstances including the aims of the demonstrators' protest are taken into account. This applies provided no special circumstances occur in addition. In the view of the four other judges whose opinion is decisive for the judgment, the assessment of the circumstances relevant for reprehensibility is a matter for the criminal courts whose decisions in the original proceedings showed no errors stemming from a fundamentally incorrect analysis of the significance of a basic right.
1. If the legislature classifies sit-down demonstrations of the kind here as an offence against regulations or as a wrong deserving of punishment, then this is not a breach of constitutional law.
a) The complainants view their actions as the collective expression of opinions through symbolic acts, namely as an impotent, but sensational protest against the perilous atomic arms race and thus as an exercise of the basic right of freedom of assembly (cf. BVerfGE 69, 315 (342)).
Their sit-down blockades do not fall outside the scope of this basic right just because they are accused of coercion using force. It is true that Art. 8 of the Basic Law only grants the right to assemble "peacefully" (cf. BVerfGE op. cit., p. 359 et seq.). The term unpeaceful in constitutional law cannot be equated with the wide term force in the criminal law which has been developed by the case law. What already weighs against doing so is that the Basic Law treats unpeacefulness in the same way as it does the carrying of weapons, that is it requires obvious external action incorporating some danger such as violence or aggressive excesses against persons or things and it does not make the application of the basic right dependent on whether or not obstruction of third parties is intended or reckless disregard to its happening is shown. In any case, there is no need in view of the wide formulation of the legal proviso in Sect. 2 of Art. 8 of the Basic Law to interpret the term peaceful narrowly thereby limiting from the start the scope of application of the basic right guarantee so much so that the legal proviso becomes to a large extent void of function (in support too Herzog in Maunz/Dürig, GG, 1981, Art. 8, marginal note 58 et seq.; Hoffmann-Riem in Wassermann (publisher), GG (Reihe Alternativkommentare), Art. 8, marginal note 17 et seq.; v. Münch, GG, 3rd ed., Art. 8, marginal note 19; Erichsen, Zu den Grenzen der Demonstrationsfreiheit, Verw Arch., Vol. 64, p. 197 (200); Rinken, op. cit., p. 47; Preuß, op. cit., p. 429 and 444; Kostaras, op. cit., p. 166 et seq.; Ott, op. cit., p. 2384; Blumenwitz, op. cit., p. 139 et seq.; Kniesel, op. cit., p.219 et seq.; Giehring, op. cit., p. 533 et seq.; Schwäble, Das Grundrecht der Versammlungsfreiheit, 1975, p. 118 et seq.). Legal experts assume in their works that as long as participants confine themselves to passive resistance and remain peaceful, sit-down blockades can mainly be treated as assemblies within the meaning of Art. 8 of the Basic Law. This is in accordance with the fact that the Assemblies Act only treats as unpeaceful assemblies which proceed with violence or which are rebellious in nature (Art. 5, Subsection 3 and Art. 13, Sect. 1, Subsection 2).
Nevertheless, reliance on Art. 8 of the Basic Law does not lead to the conclusion that the sit-down blockades of the complainants were lawful. The above-mentioned section 2 of Article 8 of the Basic Law provides expressly that the legislature may restrict the constitutional right of assembly outdoors. Within the framework of this power to regulate, it may also order sanctions against deliberate traffic obstructions. In any case Art. 15 of the Assemblies Act is one of the constitutionally admissible restrictions limiting a basic right which allows an assembly to be dispersed where there is a direct danger to public safety (cf. BVerfGE op. cit., p. 352 et seq.). Dispersion is permissible in cases of the kind at hand if Art. 15 of the Assemblies Act is applied in conformity with the underlying meaning of the freedom of assembly. It can be assumed that freedom of assembly basically includes the choice of the type of event and its location (BVerfGE op. cit., p. 343) and insofar includes a right to share the use of public streets. The complainants' argument that every exercise of the freedom of assembly is associated with certain unavoidable coercive effects in the form of obstruction is quite correct, as third parties at a meeting place are inevitably displaced by the physical presence of demonstrators. Such obstructions and constraints can only be justified under Art. 8 of the Basic Law to the extent that they are socially-tolerable side-effects of lawful demonstrations and to the extent that they could not have been avoided through the imposition of reasonable conditions. This precondition is not satisfied if the obstruction of third parties is not only accepted as a side-effect, but was actually intended in order to increase attention for the demonstration's concerns. To this extent the Federal High Court had already expounded aptly in the Laepple judgment that the Basic Law offers wide scope for exerting an influence publicly, but that nobody is permitted to increase public attention through direct and intentional obstruction (BGHSt 23, 46 (56 et seq.)). On the contrary, the latter entitles the police to intervene against troublemakers and to disperse an assembly so as to enforce the rights of obstructed third parties where such obstruction is more than just minimal. In any case, such lawful dispersion as was ordered in the present cases excludes Art. 8 of the Basic Law as a possible grounds of justification for the conduct of sit-down blockades.
b) The sit-down blockades also cannot be classified as a permissible exercise of civil rights by treating them as civil disobedience.
What is understood by civil disobedience - in contrast to the right to resist an unjust system - is resistance by the citizen against individual important state decisions so as to counter decisions considered disastrous and ethically illegitimate through demonstrative, symbolic protest extending to sensational breaches of the law (cf. Memorandum "Evangelische Kirche und freiheitliche Demokratie" 1985, p. 21 et seq.). It has been said in the submissions of the Peace and Conflict Research Institutes and in the legal literature that only a matter of substantial general importance, in particular the prevention of serious danger for the public may be a reason for such actions. What is at stake in cases such as the present ones is not actual prevention of the reason for the protest or effective crippling of state functions, but rather the exertion of a dramatic influence on the formation of public opinion. Distinguishing features are always that the disobedience is totally non-violent and thus poses no risk to others, that it is public and accordingly in principle calculable and otherwise reasonable timewise and placewise in terms of practical concordance taking into account the relevant circumstances.
The Federal High Court held in the Laepple judgment that respect for such actions is incompatible with the basic principles of a democratic state governed by the rule of law (BGHSt 23, 46 (56 et seq.)). Legal experts have in their works agreed with the decision on the grounds that civil disobedience is a breach of the law, it breaches the national obligation to keep the peace, violates the principle that all people are equal in the eyes of the law and disregards the principle of majority rule, which is essential for a democratically drawn up body politic (cf. Karpen, op. cit. with further references; in addition Isensee, op. cit.; Doehring, op. cit.; Engelhard, op. cit.). In contrast it is argued on behalf of the Peace and Conflict Research Institutes that the concept of civil disobedience has been developed in the more mature Anglo-Saxon democracies in awareness of the imperfections of the democratic process for the development of informed opinions as a process of trial and error. The above-mentioned Memorandum, which in another context categorically supports an ethic of adherence to the law by citizens and holders of office (op. cit., p. 21, 24 et seq.), warns against dismissing the seriousness and challenge contained in civil disobedience actions by making reference to the legality and legitimacy of the parliamentary system of government and its majority decisions. Even if the actions were unlawful and subject to the sanctions provided, they should be taken seriously as a query directed at the content and form of democratic decisions (op. cit. 22).
In the present context there is no need to investigate these problems any more closely. Whether the strict preconditions mentioned for civil disobedience actions were fulfilled or not is in the opinion of four judges significant for the examination of which sanction is appropriate and whether a coercive act is to be considered reprehensible (cf. below III 2 b aa). A claim of civil disobedience is, however, in no way sufficient to legitimize deliberate and intentional traffic obstruction through sit-down blockades or to prevent state organs from treating them as a breach of regulations or as a criminal offence. Legitimization is out of the question at least where civil disobedience actions as in the case of traffic obstruction interfere with the rights of third parties, who are used in breach of their own rights of self-determination as instruments to command public attention. This ignores in addition the fact that readiness to symbolically breach rules is in the opinion of civil disobedience supporters part of its nature - in other words it includes by definition illegality with the risk of corresponding sanctions as a means of influencing the formation of public opinion. In view of this aim it would appear nonsensical to assert civil disobedience as a grounds of justification for a breach of the law. Quite correctly the complainants did not try to do this at the court hearing.
2. It is significant for the further examination of the challenged decisions that the legislature took measures against unreasonable sanctions through the enactment of the reprehensibility clause in § 240, Sect. 2 of the Penal Code. This legislative rule - to the extent that § 240 of the Penal Code is applied to sit-down blockades of the disputed kind - is also relevant constitutionally.
a) By using the reprehensibility clause to correct how the elements of the offence are regulated, the legislature has restricted the offence of coercion to acts where the application of force or the threat of great discomfort for the purposes intended by the offender must be seen as reprehensible. This clause reflects the principle of proportionality, which prohibits excessive sanctions and which is in accordance with the requirement that punishment be appropriate to a crime. The participants in a sit-down demonstration may also rely on this constitutional principle. It is then unimportant whether Art. 8 or Art. 2, Sect. 1 of the Basic Law should be used as a yardstick. Constitutional protection against disproportionate sanctions is still guaranteed when Art. 2, Sect. 1 of the Basic Law is applied as a yardstick in those cases in which the lawful dispersion of a demonstration has led to the inapplicability of the special basic right of freedom of assembly for those who themselves provoked the dispersion by trouble-making (cf. also BVerfGE 19, 206 (215 et seq., 225)).
The requirement that punishment be appropriate to a crime has already been elaborated upon by the Federal Constitutional Court in earlier decisions as a constitutional obligation placed on state organs. It follows from the general principles of the Basic Law that a threatened sanction must be in fair proportion to the seriousness of the offence and the liability of the offender (BVerfGE 6, 389 (439); instead of other case law). Insofar the principle of liability and its limiting effects on punishment corresponds with the prohibition on excessiveness (BVerfGE 50, 205 (215)). Accordingly, the Federal Constitutional Court has repeatedly examined if and under which preconditions a criminal sanction is compatible with this prohibition and if it infringes the constitutional requirement of reasonable and moderate punishment (cf. BVerfGE 45, 187 (253 et seq.); 64, 261 (270 et seq.)).
It is normally sufficient for the avoidance of disproportionate sanctions that the legislature allows the courts to impose punishments appropriate to liability from a relevant range of punishments when sentencing. This can be assumed to occur mainly where the elements of an offence define precisely and clearly unlawfulness deserving punishment and the punishment only depends on the amount of individual liability in a particular case. The possibility of imposing milder punishments would, however, not simply be enough if the broad formulation of the elements of a criminal offence were to result in conduct also being penalised for which the threatened sanctions were disproportionate in kind and extent. This danger was recognized by the legislature in particular in relation to the protection of freedom to make a voluntary decision and freedom to implement one's will through the creation of the elements of the coercion offence, which covers in its scope some very different types of behaviour from serious criminal unlawfulness to lawful obstructions, which can only be removed from the area of application of § 240 of the Penal Code with the assistance of the reprehensibility clause in Sect. 2. This clause gains increased significance for the safeguarding of reasonable and moderate punishment if the range of application of the force alternative in § 240 of the Penal Code becomes through the extension of the term force as needy of correction as that of the threat alternative after its amendment in 1943.
However, if the legislature has in the wake of the constitutional requirements and prohibitions introduced a correction to limit punishability, then the courts, which are bound by statute and law, may not avoid such rule (cf. too BVerfGE 49, 304 (320)). This occurs where the courts find that the participants in a sit-down blockade have fulfilled the elements of the crime of coercion using force and use this finding at the same time as an indication of unlawfulness thereby rendering the reprehensibility clause practically irrelevant. The Federal High Court justified this in the Laepple case (BGHSt 23, 46 (54 et seq.)) by stating that Section 2 of § 240 of the Penal Code had only become necessary through the extension of the elements of the offence in Section 1 and that such extension was only related to the threat alternative and that where force is applied only special circumstances could exclude a finding of reprehensibility. The assumption that there is such an indication appears only to be warranted where force, as understood in earlier jurisprudence of the Supreme Court of the German Reich, is used and thus an offence is committed which can as a rule be regarded as unlawful. If on the other hand, the term force is "deprived of substance" and extended even to psychological constraints, then there is no inner reason for not using the reprehensibility clause provided by statute to make corrections when applying the penal provision. Particularly in the event of such an extension it is as imperative as in the case of the threat alternative that all circumstances be taken into account. If judges are content to qualify relevant conduct as forceful and to find in favour of reprehensibility on the justification that the use of force is reprehensible as a rule and thus indicative of unlawfulness, then the necessary evaluation of the actual act, which is supposed to be realistic, would be replaced in an inadmissible way by semantic abstractions.
This view has meanwhile been adopted by the Federal High Court with its abandonment of the Laepple judgment in its Order dated 24 April, 1986 (NJW 1986, p. 1883). According to the Order the reprehensibility clause in § 240, Sect. 2 of the Penal Code is recognition that in an individual case the boundaries of the statutorily protected sphere of freedom may only then emerge if the means of coercion and the purpose of coercion are set in relation to one another. Therefore, in considering all circumstances and factors essential for the means/purpose ratio, it is necessary to balance the rights, objects of value and interests at stake according to their weight in the situation relevant for them. This applies in cases in which the offender has brought about a psychologically-governed process through only minimal use of physical strength.
Consequently, the fact that demonstrators had from the very start intended to obstruct traffic is not always justification for a finding of reprehensibility. These deliberations should be approved of provided that whenever the term force is extended to sit-down demonstrations of the kind here, not only can the reprehensibility clause be applied within the framework of the ordinary law, but it has to be applied for constitutional reasons (cf. also Eser, op. cit., preliminary note § 234 et seq., marginal note 10; Brohm, op. cit., p. 505; Kostaras, op. cit., p. 173; also Wolter, op. cit., p. 247 and 249; in addition Janknecht, Verfassungs- und strafrechtliche Fragen zu "Sitzstreiks", GA, 1969, p. 33, (37)).
In the case of the decision on the action in Neu-Ulm relating to complainant 6) § 240 of the Penal Code was not interpreted and applied in conformity with the Basic Law. Here in particular there was reason to make a closer examination of whether the participants in the sit-down demonstration acted reprehensibly. According to the criminal court's findings the complainant had sat only for a period of a few minutes infront of the main entrance gate of the barracks before being moved by the police; no vehicle was actually obstructed because the American officer in charge had already prior to the demonstration taken measures for the regulation of traffic and had recommended that the main gate not be used. When sentencing the court itself held that the application of force was at the lowest end of the scale and that it did not cause any restrictions on the activities of the barracks. Furthermore, it was held that the complainant's aim to emphatically warn the population of the dangers and consequences of atomic weapons and the stationing of rockets was commendable and not as such reprehensible. All the same it reached the conclusion that the application of force as a means to achieve the purpose desired was reprehensible. It judged - if not expressly, nevertheless in its result - the application of force as an indication of unlawfulness. To the extent that the court dealt with the details of the case at all (conduct of the demonstration on Easter Sunday and thus a day on which there was little regular work, brief duration and intensity of the action, its prior notification, possibilities of using other access and accordingly merely compulsion to use a detour, and mainly for people with a special connection to the subject of the protest), it was not done in order to examine reprehensibility, but rather at the time of sentencing. Since for these reasons already, the criminal sentence against complainant 6) as well as the dismissal of his appeal must be overturned, it is unnecessary to deal with the other objections raised by him.
b) It is true that in some of the decisions challenged by the other complainants the significance of the application of force as an indication of unlawfulness was mentioned. Punishment did not, however, depend on this since, in addition, the courts applied the reprehensibility clause taking into consideration individual circumstances - even if in some cases this was not as clearly expressed as would have been desirable. The other decisions could, therefore, only be constitutionally objectionable if there were other reasons for this. As a result of the court's being equally divided, no violation of the Basic Law can be found.
aa) If in applying the reprehensibility clause in the required way reference is made to individual circumstances, then in the opinion of four judges the aims of the demonstrators should not be overlooked. Of course in analyzing the application of force and the intended purpose the first thing to be considered is the consequences of the coercion, namely the obstruction caused by the sit-down blockade. This, however, cannot be viewed in isolation since it would not have occurred alone, but was only a dependent intermediary step to attain the real goals of the demonstration, namely the immediate goal of the coercion (compelling increased attention for expression of opinions) and the ultimate goal (protest against atomic armament considered dangerous). Contrary to the view expressed in some of the original proceedings, the courts may not avoid taking this ultimate goal into account by claiming that they are not entitled to judge opinions. The problem here is basically no different to confrontations over the breach of freedom of expression. In those case too a judge is not entitled to decide whether the opinion held is right or wrong. In the view of the jurisprudence, however, in the event of conflict freedom of expression gains in significance the more it relates to a contribution to a battle of opinions on one of the issues which fundamentally affects the public and the less it concerns comments aimed directly at a private object of legal protection, namely in commercial transactions and the pursuit of self-interested objectives (cf. BVerfGE 66, 116 (139) with further references). This must apply all the more for an examination whether a coercive act should be disapproved of as reprehensible. Here the principles of proportionality and that punishment must be appropriate to the crime inherent to the reprehensibility clause are breached if judges close their eyes to the considerable difference between conduct for self-interested objectives and conduct orientated towards public welfare. If the legislature makes liability under § 240, Sect. 2 of the Penal Code dependent on ethical values, then judges when weighing up a case may not ignore the actual cause or the sole motive for the act as a most important criterion for their decision.
If in considering all the circumstances in the way required the goals of the demonstration are weighed up, then in the view of four members of the court an application of § 240 of the Penal Code compatible with the Basic Law and orientated towards the principle of proportionality leads to the result that criminal courts may not as a rule categorize acts of the kind here in question as reprehensible coercion as long as no aggravating circumstances (for example, obstruction of ambulance services, encirclement of third parties or other especially intensive obstructions) are involved. In any event this must apply if, and to the extent, that the strict preconditions mentioned for civil disobedience are adhered to and if the reprehensibility clause is interpreted and applied in the light of the fundamental meaning of Art. 8 of the Basic Law. The sit-down blockades to be assessed here are typically distinguishable from criminally motivated coercions in that the participants - as mentioned - firstly do not act self-interestedly and secondly their application of force - insofar as their actions can be assessed as coercion using force at all - remain at the lowest boundary level; sometimes the skill of "non-violence" is especially trained in groups. Characteristic is furthermore that the actions relate to matters of considerable general importance and not simply to the interests of one group or to financial interests, that they take place in public after prior notification, that the participants through symbolic acts want to take a position in the real sense of the expression in regard to the formation of public opinion and do not seek - as in the case of truck barricades at border crossings or in the case of the Frankfurt theatre occupations - to effectively constrain decision-makers and that the demonstrators yield to police intervention without resistance. If these requirements are adhered to and if the traffic obstruction is tolerable in its duration and intensity, then the mere fact that the obstruction is intended as a means of enlightening others and is not accepted as merely an unavoidable side-effect, cannot be sufficient to regard a sit-down blockade as indissoluble and instead to even disapprove of it as reprehensible coercion (cf. too BGHSt 18, 389 (392) - for obstructions in the case of overtaking). Consequently, in the view of four judges all constitutional complaints must lead to the matters being referred back to the criminal courts so that they may fulfill the duty incumbent on them to examine whether they have before them an ordinary case or whether by way of exception reprehensibility is to be affirmed on account of the existence of special circumstances.
bb) However, the decisions challenged should not be reversed as in the opinion of the other four judges, which is decisive for the judgment, they are not constitutionally invalid. These judges proceed from the view of the established jurisprudence that the interpretation and application of constitutionally valid provisions of ordinary law is basically a matter for those courts generally competent. Errors in interpretation should only be constitutionally examined if they are caused by an incorrect understanding of the meaning of a basic right or if they affect the substance of an actual legal dispute (cf. BVerfGE 18, 85 (92 et seq.); 42, 143 (148 et seq.); 66, 116 (131)). For the reasons already mentioned a constitutionally significant mistake exists, of course, if the criminal courts neglect to examine the reprehensibility clause in cases where the term force is extended to sit-down demonstrations of the kind at hand and are thus content to treat the application of force as indicative of reprehensibility. However, when applying the reprehensibility clause the specialist courts are obliged to consider all the circumstances of a case before reaching a decision. To this extent the Federal Constitutional Court cannot prescribe to the criminal courts any specific consideration.
In the view of these four judges the examination of circumstances in the decisions challenged from the point of view of the criminal law showed no constitutionally relevant mistake. Whether the criminal courts' application of the reprehensibility clause in the one or the other case has led to results, whose correctness is open to dispute, can be left undecided, as this would not be sufficient to justify intervention by the constitutional court. In any case, a criminal judge when examining reprehensibility is not bound by the constitution to take into account the long-term goals of the demonstrators. On the contrary, the principle of proportionality and the requirement that punishment be appropriate to the crime are satisfied by taking into account the long-term goals and the motives behind the offence when passing sentence, as did occur in the decisions challenged, and this resulted in the imposition of low sentences.
Ultimately, only the constitutional complaint by complainant 6) was admissible. The others remained unsuccessful because as a result of votes being equal, no violation of the Basic Law could be found either upon an examination based on Art. 103, Sect. 2 of the Basic Law or in the interpretation and application of the reprehensibility clause and no further infringements of basic rights are apparent.
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