Can any police officer serve a restraining order

 
Reasons:
   
A.
 
The requests for temporary injunctions concern decisions of the police chief in Berlin that have been declared immediately enforceable that the "Fuckparade" and the "Love Parade" are not to be regarded as gatherings within the meaning of the Assembly Act.
1 I.
Procedure 1 BvQ 28/01
 
In a letter dated March 19, 2001, the first applicant reported the "Fuckparade" to the police chief in Berlin for July 14, 2001 as a counter-event to the "Love Parade". The "Fuckparade" is to lead between 2pm and midnight in the form of a star march on three routes to Alexanderplatz, where the final event is planned. Around 10,000 participants are expected at the "Fuckparade", which has been taking place annually since 1997, and will be accompanied by 40 to 50 cars from which techno music will be played. No speeches are planned during the course of the event. However, it is planned to distribute 20,000 flyers with bold formulations directed against the cultural policy of the city of Berlin and against the "Love Parade" as a commercial event.
2
In a decision of May 14, 2001, which was declared immediately enforceable, the police chief in Berlin informed applicant re 1 that the event in question was not a public meeting within the meaning of the Assembly Act. The letter of March 19, 2001 could not be accepted as a registration for a meeting. The Administrative Court of Berlin restored the suspensive effect of the appeal filed by applicant 1 against this decision on June 28, 2001 - 1 A 166.01. It is true that the expression of opinion, which is indispensable for the classification as an assembly, cannot already be seen in the playing of the music and the dance of the event participants. The movement of the participants, which is supposed to symbolize the reconquest of the city quarters by subcultural minorities, does not reveal itself to the impartial observer as an expression of opinion. Nevertheless, the event had the character of an assembly because the intention was to distribute numerous flyers on which the concerns of the event would be presented in relatively detailed and understandable manner for everyone. Against this background, the "Fuckparade" does not exclusively have the character of a fun event, the purpose of which is in no way intended to convey certain content. Rather, sufficient account is taken of the element of expressing opinion.
3
The Higher Administrative Court changed this decision with the attacked decision and rejected the urgent application. As a justification, it stated that the planned event could not be viewed as a gathering because, according to the overall impression, it had the character of a purely entertaining public mass party, while the element of expressing opinion would take a back seat. The intended distribution of leaflets does not change this assessment. The focus of the event is clearly on the field of entertainment. An entertainment event does not lose its character because more or less meaningless slogans are spread during it.
4
With his application for the issuance of an interim order according to § 32 BVerfGG, applicant re 1 complains of the violation of his fundamental rights under Article 8 (1) GG in conjunction with Article 5 (1) GG. The Higher Administrative Court wrongly denied the "Fuckparade" the status of a meeting. According to the unanimous opinion in literature and jurisprudence, Article 8 GG protects various forms of common behavior. The "Fuckparade" makes the opinions of all participants visible through non-verbal and verbal forms of expression. It represents a collective expression of opinion through music and actions. The music is the content and means of expression. The distribution of the leaflets supported the character of a demonstration; it cannot be seen as an isolated element.
5 II.
Procedure 1 BvQ 30/01
 
Applicant 2 has been organizing the "Love Parade" which takes place annually in Berlin since 1989. The event has been taking place on Straße des 17. Juni along the zoo since 1996. This year's event, which was originally planned for July 14, 2001 and is now planned for July 21, 2001, was registered with the police chief in Berlin as a gathering by the second applicant in a letter dated October 13, 2000. After the implementation of the event was initially forbidden because of a meeting on the subject of "The Tiergarten belongs to all Berliners", which had already been registered for the same period, the police chief in Berlin finally announced by decision of May 22, 2001 that the registration of the event as Meeting is not accepted. The "Love Parade" is a pure music event and does not have the unifying purpose of forming and expressing opinions, which is decisive for a gathering.
6
In a decision dated June 28, 2001, the Berlin Administrative Court rejected requests for preliminary legal protection directed against this. To justify its decision, it stated that the constitutive element of the expression of opinion was missing to qualify the "Love Parade" as an assembly. Music and dance could indeed represent non-verbal communication, but in the present case, taken by themselves, they are not aimed at expressing opinion. In addition, the fact that the "Love Parade" is a commercial event is to be denied that it is a meeting place. It is not justified to constitutionally privilege purely economically motivated gatherings of people.
7
The application for admission of the complaint was rejected by the Higher Administrative Court on July 6, 2001. The challenged decision of the administrative court did not raise any serious doubts as to its correctness. In particular, the administrative court had to agree that the "Love Parade" lacked the element constituting the fulfillment of the concept of an assembly of an outwardly visible joint formation and expression of opinion. If one were to allow the mere display of a lifestyle expressed through music and dance to be sufficient, this would inevitably mean that the high level of freedom of assembly would be lost in the consciousness of the legal community. Whether the commercial character of the "Love Parade" also stands in the way of being a public gathering remains open.
8
In the meantime, the second applicant has received a special road legal permit for the implementation of the "Love Parade".
9
With her urgent application according to § 32 BVerfGG, the second applicant asserts a violation of her fundamental right under Article 8 of the Basic Law. In the challenged decisions, the scope and importance of the freedom of assembly were misunderstood because the courts had assumed that the concept of assembly was too narrow. For a meeting it is sufficient if several people meet and their being together is supported by a common will to that effect. Political demonstrations aimed at the expression of opinion are an important, but by no means the only case of an assembly protected by Article 8 of the Basic Law. Even if a narrower term for a meeting is adopted, the "Love Parade" falls within the scope of protection of the basic right because it and its participants give an opinion. The fact that the assembly does not use conventional forms is irrelevant for the protection of fundamental rights. Incidentally, the event also ends with a speech. The state is not entitled to evaluate the content of an assembly's expressions of opinion. But this is exactly the case when the Higher Administrative Court uses the standard of an "outsider" to judge the forms of expression and goals of the "Love Parade".
10  
B.
 
The requests for interim measures are unsuccessful.
11
1. According to Section 32 (1) BVerfGG, the Federal Constitutional Court can, in the event of a dispute, provisionally regulate a situation by means of an interim order if this is urgently required in order to avert serious disadvantages. If - as here - the outcome of possible constitutional complaint proceedings is still open, the Federal Constitutional Court must weigh the consequences that would occur if the interim orders were not issued but the constitutional complaints were successful against the disadvantages that would arise if the interim orders sought were issued Constitutional complaints, however, would fail (see BVerfGE 71, 158 [161]; 91, 252 [257 f.]; 96, 120 [128 f.]; Established case-law).
12
In the course of this consideration, in proceedings of the present type it is generally excluded for the Federal Constitutional Court to enter into an independent investigation and assessment of the facts on which the request for urgent legal protection is based. In such cases, the Federal Constitutional Court generally has to base its assessment on the factual findings and factual assessments contained in the challenged decision (cf. for example BVerfGE 34, 211 [216]; 36, 37 [40]). Anything else only applies if it is obvious that the factual determinations made are incorrect or the legal assessment of the facts made is unsustainable, taking into account the protective content of the fundamental rights norm concerned (see BVerfG, 1st Chamber of the First Senate, NJW 2001, p. 1411 [1411 f.]).
13
2. When these principles are applied, the weighing up in both cases leads to the predominance of those reasons that speak against the issuance of an interim order.
14
It has neither been shown nor discernible that the actual findings of the specialized courts with regard to the individual elements of the intended events and their characterization are obviously incorrect. The reasoning of the Higher Administrative Court is also legally viable in both cases. This applies in particular to the statements on the concept of an assembly and the negation of the status of an assembly for both events in question here.
15
a) There is no constitutional objection to interpreting the term assembly within the meaning of the Assembly Act on the basis of the constitutional term assembly and limiting it to events that are characterized by a communal development of several people aimed at communication (cf. BVerfGE 69, 315 [343]; BVerfG, 1st Chamber of the First Senate, DVBl 2001, p. 901 f .; BVerwGE 82, 34 [38 f.]). The fundamental right of freedom of assembly receives its special constitutional significance in the free democratic order of the Basic Law because of the reference to the process of public opinion formation. Especially in democracies with a parliamentary representative system and low plebiscitary participation rights, the freedom of collective expression of opinion has the meaning of a fundamental functional element. The basic right guarantees in particular the protection of minorities and also gives those who are not allowed direct access to the media to express themselves in a wider public (cf. BVerfGE 69, 315 [346 et seq.]). Accordingly, assemblies within the meaning of Art. 8 GG are local gatherings of several people for the purpose of joint discussion and demonstration with the aim of participating in the formation of public opinion. The related freedom of assembly enjoys increased protection compared to the general freedom of action under Article 2, Paragraph 1 of the Basic Law. In particular, because of the constitutive significance of the fundamental right for democracy, freedom of assembly is only subject to the restrictions provided for in Article 8 (2) of the Basic Law. For the opening of the area of ​​protection of Art. 8 GG it is not sufficient that the participants are connected to one another by some purpose in their collective behavior.
16
The legislature has narrowed down the permissible restrictions on freedom of assembly in the Assembly Act, especially its Sections 14 and 15. In jurisprudence and literature, this is understood to mean that the registration requirement (Section 14 VersG) in conjunction with the option (Section 15 VersG) replaces other acts of approval and permits of the general legal system that serve to avert danger (cf. BVerwGE 82, 34 [ 38 f.]; Dietel / Gintzel / Kniesel, Freedom of Demonstration and Assembly, 12th edition, 2000, § 14 marginal number 34; Ridder / Breitbach / Rühl / Steinmeier, Versammlungsrecht, 1992, § 15 marginal number 57). This is an expression of the preference for gatherings over other gatherings. In addition, the administrative norms are to be interpreted in terms of content taking into account Art. 8 GG, and the assembly authority is obliged to cooperate with the organizer of an assembly in a manner that is friendly to the assembly (cf. BVerfGE 69, 315 [357]).
17
b) In view of such legal regulations favoring the Assembly, it is constitutionally unobjectionable if the Higher Administrative Court does not expand the term further than is necessary to grant protection under Article 8 of the Basic Law. In doing so, the court takes into account that the rights of others (for example, residents, road users and traders) are often withdrawn because of the high status of freedom of assembly. In any case, this is to be accepted if the term assembly is narrowed down. Folk festivals and entertainment events do not fall under it, nor do events that serve the mere display of an attitude towards life or that are intended as a public mass party geared towards fun and entertainment, regardless of whether the type of music prevailing there expresses an attitude towards life from so-called subcultures or corresponds to the taste of the majority .
18
c) It is therefore constitutionally acceptable not to classify the "Fuckparade" and the "Love Parade" as meetings. In any case, this is harmless insofar as both events are music and dance events. The classification is not constitutionally objectionable insofar as it is associated with disclosure purposes.
19
aa) Assemblies also fall under the protection of freedom of assembly if they achieve their communicative purposes using music and dance. This is to be answered in the affirmative if these means are used for communicative development with the aim of influencing the formation of public opinion.
20
Such events are also covered by the freedom of assembly if, for example, they advocatethat certain music and dance events will also be made possible in the future. In such cases, the communicative influence on public opinion in order to work towards the future implementation of such events is protected by Art. 8 GG, but not the holding of the music and dance event itself.
21
bb) However, a music and dance event does not become an assembly as a whole within the meaning of Article 8 of the Basic Law simply because opinions are also given on the occasion. According to this, there are no constitutional concerns that the existing elements of public expression of opinion are not considered sufficient by the Higher Administrative Court in either the "Fuckparade" or the "Love Parade" to qualify the respective event in its entirety as a gathering.
22
However, the signs of public statements of opinion prompted the administrative court in the proceedings relating to the "Fuckparade" to classify the event as a gathering. In this respect, the court referred to the content of the numerous handouts distributed, on which the communicative concerns of the organizers were reproduced in relatively detail. The event opposes the displacement of followers of certain techno music styles from traditional city districts, the closing of clubs and the dissolution of parties, the "cleaning" of the capital "of everything that is different" and the commercialized "Love Parade" "as a" pseudo-demo ". These are not meaningless slogans, but more closely justified concerns of the applicant to 1. The concern is expressed with the necessary clarity, so that in the "Fuckparade" the element of the expression of opinion does not take a back seat.
23
The Higher Administrative Court does not deny these factual circumstances, but evaluates them in such a way that they do not take away the general character of the event as a mass spectacle or popular amusement. As with the "Love Parade", the main focus of the event is on entertainment. The expression of opinion is only a casual secondary act.
24
There is no constitutional objection to judging the legal assessment according to whether the overall character of the event is a gathering or whether the focus is on fun, dance or entertainment. If there are any doubts, the high level of freedom of assembly means that the event is treated like an assembly.
25
When it comes to the question of the overall character of an event, it must be taken into account that the participants are entitled to determine for themselves what they want to make the subject of public opinion-forming and which forms of communicative influence they want to use. The legal classification of this behavior as an assembly is up to the courts appointed for it. In urgent proceedings, the Federal Constitutional Court is fundamentally prohibited from substituting its assessment for the specialized courts that are more specific to the location and the subject matter.In the present cases, the legal assessments are not obviously incorrect. Finally, the legal classification can only be clarified in the main proceedings.
26
d) After all this, the urgent requests remain unsuccessful. In order to avert serious disadvantages, an interim order is not required in either case. Applicants for 1 also have the option of applying for a special use permit for the intended event. In view of the lengthy decision-making process relating to the legal classification of the event, their granting should not be refused for reasons of time alone.
27
This decision is final.
28 Paper, Steiner, Hoffmann-Riem © 1994-2020 The Case Law (DFR).