Schwabe and M.G. v. Germany (Applications nos. 8080/08 and 8577/08)

A selection of key paragraph(s) can be found below the document.

85. The Court further takes note of the Government’s argument that without the possibility of detaining individuals for preventive purposes, the State would be unable to comply with its positive obligation to protect its citizens from impending criminal offences. In the case at hand, however, even taking into account the general situation before and during the G8 summit, it has not been sufficiently demonstrated that the liberation of prisoners had been imminent [The Rostock District and Regional Courts appear to have considered that the applicants, with the help of the impugned banners, had intended to incite others to free prisoners detained in Waldeck prison by force (see paragraphs 14 and 17 above)]. Therefore, the commission of that offence could not have justified an interference with the right to liberty, especially as less intrusive measures could have been taken (see paragraph 78 above). The Court reiterates that, in any event, the Convention obliges State authorities to take reasonable steps within the scope of their powers to prevent criminal offences of which they had or ought to have had knowledge. However, it does not permit a State to protect individuals from criminal acts of a person by measures which are in breach of that person’s Convention rights, in particular the right to liberty as guaranteed by Article 5 § 1 (see Jendrowiak v. Germany, no. 30060/04, §§ 37-38, 14 April 2011, with further references) and as at issue in the applicants’ case.

117. In sum, the applicants’ intended protests during the G8 summit must be considered to have been aimed at participating in a debate of public interest, in respect of which there is little scope for restriction (see paragraph 113 above). Moreover, the applicants were not shown to have had the intention of inciting others to violence. In these circumstances, the Court considers that a considerable sanction, namely detention for almost six days, was not a proportionate measure in order to prevent the applicants from possibly negligently inciting others to liberate by force demonstrators detained during the G8 summit. In such a situation, 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.

118. In particular, the Court is not convinced that there were not any effective, less intrusive measures available to attain the said aims in a proportionate manner. Notably, it considers that in the given situation, in which it has not been shown that the applicants were aware that the police considered the slogans on their banners illegal, it would have been sufficient to seize the banners in question. This could reasonably be expected to have had a chilling effect on the applicants, preventing them from drawing up new, comparable banners immediately. Even if their freedom of expression would then have been restricted to a certain extent, their taking part in the demonstrations would not have been made impossible from the very outset.

119. In view of the foregoing, the Court concludes that the interference with the applicants’ right to freedom of assembly was not “necessary in a democratic society”. There has accordingly been a violation of Article 11 of the Convention.