The Hamburg judiciary is prosecuting all participants in an anti-G20 demonstration for serious breach of the peace – even if they remained non-violent.
Is running around already a crime? Photo: reuters
Dozens of G20 opponents are currently being investigated for aggravated breach of the peace – even though no acts of violence can be proven against them. Legally, this is quite possible. Nevertheless, the actions of the Hamburg judiciary are not convincing.
All those concerned were arrested on July 7 (the first day of the G20 summit) as participants in an unannounced demonstration. A procession of 150 to 200 left-wing radicals left the protest camp in Altona early in the morning, with a banner reading "Build counter-power – smash capitalism" in front. On the way to the city center, various damages to property were committed from the demo: Paint graffiti, the destruction of sidewalk plates and a bus stop.
On the street Rondenbarg, the police tried to stop the marchers. There, according to police counts, 14 stones and four firecrackers flew in their direction. The police immediately counterattacked, the left-wing radicals fled, and many were injured.
The only one to stand trial so far is Fabio V., an 18-year-old Italian citizen. The trial began in October. He was held in pre-trial detention for four months because he was a flight risk. He was released on bail only on November 27. The Hamburg Higher Regional Court (OLG) confirmed twice that there was "strong suspicion" against Fabio V., especially for serious breach of the peace. The next day of the trial is January 3.
Fabio V. is not an isolated case
Parallel investigations are currently underway against a further 74 people. They were also present at Rondenbarg, and are also accused of serious breach of the peace, although no concrete acts of violence can be proven against them either. In 22 cases nationwide, apartments were searched on December 5. At the latest now it became nationally known that Fabio V. is not an individual case.
The "breach of the peace" is an old offense. It was already included as Section 125 when the Criminal Code came into force in 1872. At that time, anyone participating in a "gathering" that "commits acts of violence against persons or property with united forces" was punished.
Under Willy Brandt’s social-liberal coalition, the penal code was greatly simplified.
In addition, there was its sister paragraph 116, which provided that anyone who did not leave a crowd after being asked to do so for the third time by a police officer could be punished for "rioting. Both paragraphs remained in force unchanged until 1969.
Under the social-liberal coalition and SPD Chancellor Willy Brandt, the criminal law was severely cleaned up. In 1970, "rioting" was dropped as a criminal offense and downgraded to an administrative offense as "unauthorized assembly." Those who do not remove themselves after the third summons must pay a maximum fine of 1,000 euros.
To date, the Union has not given up
The "breach of the peace" remained as a criminal offense, but was completely redesigned. Since then, mere presence in an unpeaceful assembly is no longer punishable.
Today, it is required that someone participates as a perpetrator or participant in "acts of violence against people or property" and that these were committed from a crowd. The penalty is a fine or imprisonment of up to three years. This new social-liberal regulation is still in force today.
However, the CDU/CSU was against it at the time and still is. Three times – in 1974, 19 – the CDU/CSU launched initiatives in the Bundestag to return to the old concept. Even participation in a violent assembly was to be punishable again. Without success.
To this day, the Union has not given up. Shortly before the 2017 Bundestag election, the interior and justice ministers of the CDU/CSU published a joint demand paper. According to this, those "who consciously join a violent crowd and support the attackers by offering them protection in the crowd" should also be punishable for breach of the peace.
Psychological aiding and abetting is enough
And in early December, Federal Interior Minister Thomas de Maizière (CDU) announced that he wanted to examine whether the evidence requirements for breach of the peace could be lowered to enable more convictions. The reason for this was the "events surrounding the G20 summit.
But even without tightening the law, people can be punished for breach of the peace who have not thrown stones. This is because anyone who participates as a "perpetrator or participant" in acts of violence from the crowd is liable to prosecution. In legal terminology, a "participant" also includes anyone who aids and abets. This is immediately obvious if someone digs up paving stones so that someone else can throw them. But physically shielding the stone-throwers so that they cannot be recognized and arrested also counts as aiding and abetting.
It is even sufficient "psychological aid" that encourages the stone-throwers in their actions. However, the Federal Supreme Court (BGH) clarified several times that the mere presence in a violent crowd is not sufficient. For otherwise the decision of the legislature in 1970 would be undermined. Thus, even in the case of "psychological complicity," a concrete act of complicity must always be proven, for example, that "crime-motivating slogans" were chanted.
In May 2017, the Federal Court of Justice (BGH) commented in more detail on psychological aiding and abetting in the case of a brawl between soccer hooligans. The "ostentatious" (i.e. the emphatically conspicuous) marching along to the arranged place of the brawl could also be punished as a breach of the peace. A group of 60 to 100 men marched in three rows to the arranged place of the brawl in Cologne. The procession in "closed march formation" had been suitable to intimidate the opponents and to strengthen the solidarity in the own group.
Punishment of mere presence
At the time, the BGH explicitly stated that such arranged hooligan battles differ from cases under criminal law relating to demonstrations, in which "acts of violence are committed from a gathering, but not all persons want to use violence or support this." It is not clear whether the BGH intended this to treat all demonstrations differently or only certain ones.
In any case, the Hamburg Higher Regional Court applied this BGH ruling to the Rondenbarg demonstration. It justified with it, why against Fabio V. "urgent suspicion" of the breach of the peace exists, although he is accused personally no act of violence. However, it remains completely open with which concrete action Fabio V. is supposed to have encouraged the stone-throwers. Ultimately, he is only accused of being present at the Rondenbarg. And according to the Federal Court of Justice, that is not sufficient for criminal liability.
The Hamburg public prosecutor’s office, however, goes even further. She accuses Fabio V. and the other defendants not only of psychological aiding and abetting, but even of "complicity" in the breach of the peace. The entire demonstration had pursued the "common plan of action" to immediately attack the police "massively" when they encountered them. But here, too, it is unclear what contribution to the crime Fabio V. was supposed to make. Ultimately, this construction also amounts to a punishment of his mere presence.
If the Federal Court of Justice takes its previous case law seriously, the Hamburg judiciary is unlikely to get away with its so far rather thin accusations.