Berlin coronavirus protests trigger debate on basic rights

To allow or prohibit demonstrations — this question can often divide opinion, not least when officially approved protests spiral out of control or even turn violent.

But freedom of assembly — along with free elections — is one of the core pillars of democracy. 

Read more: Germany debates freedom of assembly after first big coronavirus protest in Berlin

Germany, in particular, shies away from overly fast or extensive restrictions on free assembly because of its relatively recent experiences of dictatorship. The authors of Germany's postwar democratic constitution dedicated Article 8 of the new law of the land to precisely this issue. It reads:

(1) All Germans shall have the right to assemble peacefully and unarmed without prior notification or permission.

(2) In the case of outdoor assemblies, this right may be restricted by or pursuant to a law.

Read more: Never again dictatorship — What is Germany's Basic Law?

These formulations may be short and sweet, but the further laws governing how public gatherings can be controlled are less so. Those rules are made up of 33 paragraphs in total.

Rules on freedom of assembly do not apply to political parties outlawed in Germany. So, had the 2017 bid by German states to deem the far-right NPD party illegal been successful, its members would not have been permitted to take part in Saturday's march.

Uniforms are forbidden, imperial German war flag is not

There are limitations on symbols and clothing at public protests. An array of fascist symbols from Adolf Hitler's government are not legal in modern Germany. 

Furthermore, in reference to the legacy of Hitler's brownshirts, protesters are not permitted to wear clothing or items of clothing that resemble a uniform and are designed to serve as "an expression of a collective political set of convictions." 

But right-wing groups in Germany try to circumvent such rules by using controversial symbols from history. Often they reach further back than the Nazi period, to use symbols from imperial-era Germany instead — the black, white and red imperial flag, or even the imperial war flag with an eagle and cross, for example. Both of these are permitted, while Nazi-era swastikas are not. 

When a contentious planned and previously approved protest reaches the courts, very often paragraph 15 of the rules on gatherings plays a key role. It says that limitations, or a ban as a last resort, are only possible if there's a demonstrable risk either to public order or the demonstrators' safety by allowing the protest.

At the previous demonstrations on August 1, protesters in Berlin failed to implement social distancing or wear face masks. 

Read more: Could violators of Germany's constitution forfeit basic rights?

No luck in banning the protests

Last week, Berlin police chief Barbara Slowik feared that anti-coronavirus regulations would again be violated, posing a general threat to health.

"The right to life and to avoiding unnecessary injury outweighs the fundamental right to free assembly in this legal balancing act," she said.

But two court rulings disagreed, allowing the demonstrations to go ahead. They ruled that "facts, evidence, and other details" would be necessary to back up these concerns; a "simple suspicion or expectation" did not satisfy them. 

The judges also pointed to Berlin's own rules on preventing infection, which put no limit on the numbers of protesters and also mandate face masks only in places where there isn't enough space to keep one's distance.

If in doubt, courts favor free expression

In theory, the demonstrations could have been held without much problem on Berlin's broad streets and spacious squares, even while maintaining social distancing. Yet, of course, it didn't turn out that way. That's why the police moved to break up the protests. And the court ruling permitting the protests always allowed for this. 

Read more: The clear line between hate speech and free speech

However, the courts had stressed that the importance of free assembly was so great that they were concerned about setting "too low" a burden of proof on authorities seeking to show the protests posed a danger.

The police chief had also pointed out that protesters would include "members of extreme right-wing groups." 

But Article 5 of Germany's Basic Law guarantees freedom of opinion. And the courts indirectly referred to this when ruling: "So long as there are no concrete indications that the participants' comments will cross into areas that are potentially prosecutable, this [their political orientation] does not stand in the way of holding such a protest."

Reichstag scenes could have consequences

One thing's no longer clear, especially after this past weekend: whether or not a third major coronavirus skeptics' protest would be permitted in the German capital. 

After all, for a second time, the organizers were unable to get participants to keep to the rules they'd agreed with city authorities — despite their stewards and the de-escalation teams who were supposed to keep the protesters in check without the need for police intervention.

Above all, the images at the Reichstag building might be seen as a red line crossed when it comes to future similar decisions. 

German law already stipulates that protests in front of the national lower house of parliament, the Bundestag — or the upper house, the Bundesrat — can only take place in weeks when politicians are not in session. That was the case this weekend, which helps explain why the police presence there was light.

But courts and politicians alike will likely want to avoid such scenes going global again.