Schwabe and M.G. v Germany - 8080/08  ECHR 1986 (1 December 2011)
The European Court of Human Rights has ruled that the detention of two German citizens, who planned to be involved in protests against the 2007 G8 summit, constituted an unlawful breach of the rights to liberty and security of person and freedom of peaceful assembly under the European Convention on Human Rights.
During 6 – 8 June 2007, Germany hosted the G8 summit for Heads of State and Government in Heiligendamm, in the vicinity of Rostock. In the lead-up to the summit German police held fears about terrorist attacks and property damage by extremists planning to sabotage the summit. Serious riots broke-out during the week prior to the summit. Some 400 police officers were injured and over 1000 rioters were detained.
On the evening of 3 June 2007, the applicants were in the car park of Waldeck Prison, in Rostock, with seven other people when they were approached by police. One of the applicants allegedly resisted an identity check by the police. There was some evidence of a minor scuffle. After ascertaining the applicants’ identities, the police searched their car and found banners bearing the inscriptions “freedom for all prisoners” and “free all now”. The police arrested the applicants on the spot and seized their banners.
In the early hours of 4 June 2007, the applicants were brought before a District Court which ordered their detention until 9 June 2007 in order to prevent the applicants from committing crimes.
The applicants’ numerous appeals to German courts failed. They remained in detention for some five and a half days, by which time the G8 summit was over. Criminal proceedings against one of the applicants for obstructing the police officers in the course of the identity check were dropped and charges for incitement offences were never laid.
Liberty and security of person
The Court held that the applicants’ arrest and detention unlawfully breached their rights to liberty and security of person under article 5 of the Convention.
In reaching this conclusion, the Court rejected Germany’s claims that its actions complied with the Convention because the detention was reasonably necessary to prevent the commission of a criminal offence (article 5(1)(c)) and for the purpose of meeting Germany’s obligation to protect its citizens (article 5(1)(b)).
The Court said that article 5(1)(c), which provides a basis for detention “when it is reasonably necessary to prevent his committing an offence”, goes no further than enabling a state to prevent a “concrete and specific offence”. In order to rely on this basis, the state must be able to identify the place, time and victims of the impending offence. Further, the detention must be effected for the purpose of bringing the person before a competent legal authority to respond to criminal allegations.
The Court noted that Germany’s lower courts had failed to consistently identify the offences that the applicants were supposedly about to commit. For example, one lower court found that the applicants had intended to incite others to free prisoners by force at Waldeck Prison, while another lower court said they planned to drive to Rostock and incite the crowd (including violent demonstrators) there. Ambiguity also arose from the language printed on the banners – the applicants claimed it was not intended to incite civilians to release prisoners but was, instead, directed at the authorities. Further, the Court said the detention was not “reasonably necessary” in the circumstances, as it would have been sufficient for the police to seize the banners. For these reasons, the Court held that the detention was not justifiable under article 5(1)(c).
The Court also said that article 5(1)(b), which provides a basis for detention to secure “the fulfillment of any obligation prescribed by law”, is limited to cases where a person is detained in order to compel him or her to fulfill a “real and specific obligation” which he or she has already failed to fulfill. The detention must not be punitive and must cease as soon as the obligation has been fulfilled. Article 5(1)(b) did not justify detention, in this case, because Germany failed to identify any specific legal obligation, such as a particular criminal law, that the applicants had failed to comply with.
Freedom of peaceful assembly
The Court also found that Germany had breached the applicants’ right to freedom of peaceful assembly (article 11) when read in conjunction with their right to freedom of expression (article 10). The breach arose because the detention prevented the applicants from expressing their views together with other demonstrators protesting against the G8 summit.
The Court reiterated that article 11 only extends to a right to peaceful assembly and does not cover demonstrations where the organizers and participants have violent intentions. However, the risk of violent extremists becoming involved in protests does not take away the right. Rather, where this risk exists, the right to freedom of assembly may be limited in manner that is “prescribed by law”, pursued for a legitimate aim (including national security, public safety or the prevention of disorder or crime) and “necessary in a democratic society”. Hence, it becomes a question of appropriately balancing competing rights and freedoms.
In this case, the Court said the applicants’ detention for a number of days was a disproportionate response to the risks. Specifically, the Court noted that “a fair balance between the aims of securing public safety and prevention of crime and the applicants’ interest in freedom of assembly could not be struck by immediately taking the applicants into detention for several days”.
The Court ordered Germany to pay each applicant EUR 3,000 in damages, plus their legal costs for the breaches.
Relevance to the Victorian Charter
The Victorian Charter of Human Rights and Responsibilities also contains rights to liberty and security of person (s 21), freedom of expression (s 15) and freedom of peaceful assembly and association (s 16) which, although worded differently from the Convention, are based on the same international legal principles.
This case provides useful commentary about what is ‘lawful’ detention and what constitutes a reasonable limitation on the right to freedom of peaceful assembly under international law which may have application to cases under the Charter.
The decision is available at http://www.bailii.org/eu/cases/ECHR/2011/1986.html.
Emma Purdue is on secondment to the Human Rights Law Centre from Lander & Rogers