The tougher action by the police against unregistered demonstrations against the corona protection measures, which are largely controlled by lateral thinkers and right-wing extremists, is legal. The Berlin-Brandenburg Higher Administrative Court (OVG) has overturned a decision by the Cottbus Administrative Court and confirmed the ban on demonstrations disguised as walks. These are therefore banned until Sunday.
The right-wing scene cheered when the Cottbus administrative court overturned the ban. The police department south in Cottbus had declared the general ban on walks that were not registered as meetings in the period from January 31st to Sunday, February 13th, to be illegal. The decision of February 4th was only made public on Tuesday. The Brandenburg police lodged a complaint – and they were right.
Brandenburg’s Interior Minister Michael Stübgen (CDU) explained that the freedom of assembly for registered assemblies was guaranteed and was not affected by the ban. “Anyone who abides by law and order can demonstrate at any time. Simple rules apply,” said Stübgen. “An assembly must be registered, a leader is required and the participants must comply with the obligation to wear masks until further notice.” However, the walks violated the right of assembly and “will therefore also be dissolved in the future”.
At the same time, Stübgen paid tribute to Brandenburg’s police officers who have been protecting numerous demonstrations for weeks. “The officers are doing an incredibly good job. What sometimes takes place in some places is borderline. The police are insulted, spat on and attacked,” said Stübgen. It is impressive how calmly and professionally the police deal with it.
“I understand that many people are fed up with the pandemic,” said the Minister of the Interior. “But if someone takes their frustration out on police officers and even becomes violent in the process, then there is no more understanding. Then there are clear consequences of the rule of law.”
The Cottbus judges found that the police had not sufficiently justified the fact that there were concrete and comprehensible factual indications for the assumption that unannounced gatherings would take place, which were very likely to pose a particularly serious risk of infection or other serious risks to public safety.
The general reference to violations of the mask requirement and distance requirement without specific details is not enough. Because of the high importance of freedom of assembly, a current forecast with current corona numbers on possible risks of infection is necessary – at least that is the opinion of the judges in Cottbus.
Right-wing extremists controlled the protests
The police and the Ministry of the Interior were surprised. Because in Cottbus, the walks were largely controlled by the AfD and the right-wing extremist association “Zukunft Heimat”, violent neo-Nazis ran along.
In the past few weeks, around 3,000 opponents of the Corona measures have regularly taken to the streets in unregistered demonstrations, rules such as the obligation to wear masks and distance have been ignored. Police officers were also attacked several times when they tried to take personal details from participants.
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In its decision, the Higher Administrative Court literally tore apart the decision of the Cottbus judges. After numerous violations of the right to assembly, the police are likely to assume that the protective rules will generally not be observed in the case of future unregistered walks. And that the violations in the omicron wave lead to a significantly increased risk of infection. The violations of the corona protection rules are “almost typical” for the walks.
According to the decision of the Higher Administrative Court, the administrative court “overstretched” the requirements for how strongly the police must explain the violations. In addition, the Cottbus judges lifted the ban when the Federal Constitutional Court had long since ruled in a similar case and made a preventive ban on walkers possible in another case.
Court in Cottbus did not sufficiently take the corona situation into account
The strategy of the participants in the walks is clear to the OVG: by not registering the meeting, it should be prevented “that the authorities take the necessary organizational measures and provide personnel to ensure public safety”. They wanted to act “as unpredictably as possible for the police” and deliberately avoided the “possibility of proportionate assembly requirements”.
The danger with the walks is also greater than with registered demonstrations, because cooperation talks take place at those, a hygiene concept and routes can be determined. Compliance with the protection rules can also be better guaranteed with a meeting leader, folder and contact person at the police station. The Cottbus judges also said that the police could break up the walks. The OVG is now declaring that the risk of contagion had long since arisen before the resolution.
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And according to the OVG, the Cottbus judges also completely underestimated the risk of corona or did not take it into account at all. These include, for example, the higher infection dynamics with the omicron variant and the police assessment that “there will be massive staff shortages and thus a threat to important care areas”. Just looking at the load on the intensive care units is not enough, so the very high load on the healthcare system and the so-called critical infrastructures are hidden.
And in any case, it was for the man from Cottbus, who wanted to bring the ban on unregistered meetings to a standstill in court, “easily (…) to escape the contested ban,” the OVG decided. The man could simply register a meeting as required by law. Therefore, the intervention of the police in the fundamental right of assembly is proportionate.
The plaintiff could also simply register a meeting
According to the findings of the police, the walks in Cottbus are called on by the messenger service Telegram “from a specific person” and a group. This includes the Cottbus AfD district chief Jean-Pascal Hohm. Several procedures are running against him, for example for violating the Assembly Act.
Hohm himself is “vaccinated twice” because young people in his environment have experienced serious illnesses and are struggling with the long-term consequences. Nevertheless, he sees the demonstrations against compulsory vaccination as a fight for freedom and calls for “rebellion” and “resistance”.
According to the Office for the Protection of the Constitution, the well-known “mixed scene” of neo-Nazis, hooligans, martial artists and others is active at the meetings in Cottbus. This “toxic entity” is trying to get the bourgeois milieu to gather together. Overall, extremists struggled to manage the momentum.
