AS TO THE ADMISSIBILITY OF

                      Application No. 13079/87

                      by M.C.

                      against the Federal Republic of Germany

        The European Commission of Human Rights sitting in private

on 6 March 1989, the following members being present:

              MM. C.A. NØRGAARD, President

                  J.A. FROWEIN

                  S. TRECHSEL

                  G. SPERDUTI

                  E. BUSUTTIL

                  G. JÖRUNDSSON

                  A. WEITZEL

                  J.-C. SOYER

                  H.G. SCHERMERS

                  H. DANELIUS

                  G. BATLINER

             Sir  Basil HALL

             MM.  F. MARTINEZ

                  C.L. ROZAKIS

             Mrs.  J. LIDDY

             Mr.  L. LOUCAIDES

             Mr.  H.C. KRÜGER, Secretary to the Commission

        Having regard to Article 25 of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

        Having regard to the application introduced on 7 May 1987

by M.C. against the Federal Republic of Germany and

registered on 16 July 1987 under file No. 13079/87;

        Having regard to the report provided for in Rule 40 of the

Rules of Procedure of the Commission;

        Having deliberated;

        Decides as follows:

THE FACTS

        The facts of the case, as they have been submitted by the

applicant, may be summarised as follows:

        The applicant, born in 1960, is a German national and resident

at R..  He is a student.  Before the Commission he is

respresented by Mr.  R. Schmid, a lawyer practising at Nagold.

        On 3 August 1983 the Stuttgart District Court (Amtsgericht)

acquitted the applicant of the charge of having committed unlawful

coercion (Nötigung) under S. 240 of the German Criminal Code

(Strafgesetzbuch).

        S. 240 of the Criminal Code provides:

   "(1) Wer einen anderen rechtswidrig mit Gewalt oder durch Drohung

        mit einem empfindlichen Übel zu einer Handlung, Duldung oder

        Unterlassung nötigt, wird mit Freiheitsstrafe bis zu drei

        Jahren oder mit Geldstrafe, in besonders schweren Fällen mit

        Freiheitsstrafe von sechs Monaten bis zu fünf Jahren bestraft.

    (2) Rechtswidrig ist die Tat, wenn die Anwendung der Gewalt oder

        die Androhung des Übels zu dem angestrebten Zweck als

        verwerflich anzusehen ist.

    (3) Der Versuch ist strafbar."

   "(1) Anybody who coerces another to do something, tolerate

        something or omit to do something by force or dangerous

        threats shall be punished with imprisonment up to three years

        or a fine, in specially aggravated cases with imprisonment

        from six months to five years.

    (2) The act shall be unlawful only if the application of the force

        or the dangerous threat to the desired end is blameworthy.

    (3) An attempt is punishable."

        The District Court found that the applicant had participated

in a demonstration in front of the US military barracks on 12 December

1982 on the occasion of the third anniversary of the NATO Twin-Track

Agreement (NATO-Doppelbeschluß).  The demonstrators had blocked the

road to the barracks every full hour for a period of twelve minutes.

During these sit-ins the traffic had been closed by US military forces

and the police.  The applicant had participated in one blockade at

about 11.58 hours.  The police had ordered that the demonstrators should

leave the road.  The applicant and other demonstrators who did not

comply with this order were then carried away.  At 12.06 hours the

road was again opened for traffic.

        The District Court considered that, in the particular

circumstances of the present case, the blockades did not even cause

mental duress (psychische Zwangseinwirkung) on persons who wanted to

pass on the road and did not, therefore, constitute unlawful use of

force within the meaning of S. 240 para. 2 of the Criminal Code.

        Furthermore, the District Court considered that the applicant

did not commit a "regulatory offence" (Ordnungswidrigkeit) under the

Assembly Act (Versammlungsgesetz) in that he did not comply with the

order of the police authorities to leave the road.  The District Court

in this respect found that the sit-in had not been dispersed by the

competent department of the police authorities.

        On 23 December 1983 the Stuttgart Regional Court (Landgericht),

upon the appeal (Berufung) of the Public Prosecutor's Office (Staats-

anwaltschaft), quashed the judgment of 3 August 1983.  Having held

trial, it convicted the applicant of attempted coercion under S. 240

of the Criminal Code and fined him DM 100 (10 day-rates of DM 10).

        The Regional Court found in particular that the sit-ins on the

approach road to the US military barracks in Stuttgart constituted

coercion by force within the meaning of S. 240 of the Criminal Code.

They intended to prevent any driver from using the road during the

periods concerned.

        Furthermore, the Regional Court considered that this use of

force was unlawful within the meaning of S. 240 para. 2 of the

Criminal Code.  The organisers of the demonstration had not requested

prior authorisation for the demonstration under the relevant provision

of the German Assembly Act (Versammlungsgesetz).  The different peace

groups and their members participating in the sit-ins intended to draw

public attention to their goals, namely resistance and a fight against

nuclear armament by unlawful means.  They deliberately interfered with

the rights of others.  Such agitation was not covered by the right to

peaceful assembly.  Moreover, the action taken was not justified as a

measure necessary in a state of emergency (übergesetzlicher Notstand).

The risks of nuclear armament could not be eliminated by blocking an

approach road to US military forces.  However, the offence had not

been completed on the ground that the drivers who wanted to use the

road in question were in fact already beforehand stopped by the German

police or members of the US military forces.

        On 25 July 1984 the Stuttgart Court of Appeal (Oberlandes-

gericht) dismissed the applicant's appeal on points of law (Revision).

        On 11 November 1986, upon hearings on 15 and 16 July 1986

concerning the applicant's and joined cases, the Federal

Constitutional Court (Bundesverfassungsgericht) dismissed the

applicant's constitutional complaint (Verfassungsbeschwerde).  It could

not find a violation of the Basic Law due to equality of votes.

        In its very detailed judgment of 57 pages, the Constitutional

Court observed that the legal opinions in jurisprudence and doctrine

as regards sit-ins were divergent.  It found that the definition of

unlawful coercion in S. 240 of the Criminal Code was sufficiently

concrete and did not violate the requirements of legal certainty

(Bestimmtheitsgebot), as derived from Article 103 para. 2 of the Basic

Law (Grundgesetz).  However, the application and interpretation of

S. 240 of the Criminal Code by the German courts could raise problems

with regard to the prohibition of defining crimes by analogy with

existing offences (Analogieverbot), also derived from Article 103

para. 2 of the Basic Law.

        Article 103 para. 2 of the Basic Law provides that an act can

be punished only if it was an offence against the law before the act

was committed.

        The Federal Constitutional Court noted that the term "force"

in S. 240 para. 1 of the Criminal Code was initially interpreted as

use of physical force by the offender in order to overcome actual or

probable resistance (Entfaltung von körperlicher Kraft durch den Täter

zur Überwindung eines geleisteten oder erwarteten Widerstands).  In

subsequent cases the Federal Court of Justice (Bundesgerichtshof) held

that there was also "use of force where the offender acts in such a

way as to cause the victim's resistance (actual or probable) to be

overcome by an agent acting directly on the victim, the amount of

physical force used being irrelevant" ("Gewalt liegt auch vor, wenn

der Täter durch körperliche Handlungen die Ursache dafür setzt, daß

der wirkliche oder erwartete Widerstand des Angegriffenen durch ein

unmittelbar auf dessen Körper einwirkendes Mittel gebrochen oder

verhindert wird, gleichviel, ob der Täter dazu größere oder nur

geringere Körperkraft braucht").  Finally, in a decision of 1969

concerning sit-ins, the Federal Court of Justice considered to be

decisive that there was "an effect which inevitably influenced the

victim's freedom to decide or to turn ideas into actions" ("eine die

Freiheit der Willensentschließung oder Willensbetätigung beeinträch-

tigende Zwangswirkung"); it was "sufficient that the offender, with

only a minimal expenditure of energy, set up a process which acted

conclusively on the victim's mind, thereby compelling him to act in a

particular way" ("es genügt, daß der Täter mit nur geringem Kraft-

aufwand einen lediglich psychisch determinierten Prozeß in Lauf setzt

und dadurch einen unwiderstehlichen Zwang auf den Genötigten ausübt").

        Four judges of the Constitutional Court found that the

application of S. 240 of the Criminal Code to sit-ins such as in the

present case was incompatible with the prohibition of defining crimes

by analogy to existing offences under Article 103 para. 2 of the Basic

law.  The progressively broader interpretation of the term "force"

under S. 240 of the Criminal Code had not been foreseeable for the

citizen.  The context of S. 240 para. 1 clearly indicated that not any

coercion was deemed to be punishable, but only coercion by "force" or

"dangerous threats".  They considered that the participants in the

sit-ins in question did not use force, but, after sitting down on the

road, they remained completely passive.  Moreover, it had not been

established that any driver had felt compelled to stop by the sit-ins.

        In the opinion of the four other judges the broad

interpretation by German courts of the term "force" in S. 240  para. 1

of the Criminal Code cannot be objected to under constitutional law.  It

observed the limits of the ordinary sense of the term "force" as long

as an expenditure of energy in the process of compelling the victim

was required.  Furthermore, having regard to the jurisprudence of the

German courts in such matters, the risk of penalty for behaviour such

as in the present case was foreseeable.

        Furthermore, the Constitutional Court unanimously found that

an act of "coercion by force" in the broad interpretation of S. 240

para. 1 of the Criminal Code should, however, not automatically be

considered unlawful.  The unlawfulness had to be established

separately under S. 240 para. 2.  The judges disagreed about whether

sit-ins were "blameworthy".

        Four of the judges found that sit-ins such as in the present

case, which intended to force public attention towards protest against

nuclear armament, were in principle not blameworthy.

        The four other judges found that the application of S. 240

para. 2 of the Criminal Code, notably the assessment of the particular

circumstances of a case, were the task of the criminal courts.  The

conviction in the present case did not arbitrarily disregard any

constitutional right.  The right to peaceful assembly under Article 8

of the Basic Law would not justify sit-ins which aimed principally at

obstructing the traffic and were lawfully dispersed by the police.

Furthermore sit-ins could not be justified as measures of "civil

disobedience" ("ziviler Ungehorsam"), i.e. sensational action in

breach of law (aufsehenerregende Regelverletzung) in order to protest

against national policy.

        In the meantime, the applicant had instituted administrative

court proceedings against a cost order of the Stuttgart II

Police Department (Landespolizeidirektion) of 31 January 1983

concerning the police action on 12 December 1982.  On 5 November 1985

the Stuttgart Administrative Court (Verwaltungsgericht) decided that

the cost order was unlawful on the ground that the dispersal of the

demonstration on 12 December had been unlawful.  The Court found in

particular that the police forces which had ordered that the

demonstration in question be dispersed were not competent under the

relevant rules on the organisation of the police.  The Administrative

Court considered that, under the circumstances of the present case, it

was not prevented from examining the order of dispersal in the context

of the proceedings concerning the subsequent cost order, although the

applicant had not instituted administrative court proceedings to

challenge the lawfulness of this measure under S. 113 para. 1 fourth

sentence of the German Code of Administrative Court Procedure

(Verwaltungsgerichtsordnung).

COMPLAINTS

1.      The applicant complains under Article 7 of the Convention that

his participation in the demonstration and the sit-in in front of the

US military barracks in Stuttgart did not constitute a criminal

offence under German penal law but was defined, by analogy to the

criminal offence of "coercion by force", under S. 240 of the Criminal

Code.

Convention that the action taken by the German police authorities in

dispersing the demonstration on 12 December 1982 and his conviction

for coercion violates his right to freedom of peaceful assembly.  He

submits in particular that the dispersal of the sit-in had been

unlawful under German law.  He refers in that respect to the decision of

the Stuttgart Administrative Court dated 5 November 1985.

3.      The applicant moreover invokes Article 14 of the Convention in

respect of the above complaints.  He submits that the prosecution of

members of the peace movement discriminates against them on the ground

of political opinion.

THE LAW

1.      The applicant complains under Article 7 (Art. 7) of the Convention that

his conviction by the Stuttgart Regional Court on 23 December 1983 for

his participation in a sit-in was based on an unlawful analogy to the

existing crime of coercion by force under S. 240 of the German Criminal

Code.

        Article 7 para. 1 (Art. 7-1) of the Convention reads as follows:

"No one shall be held guilty of any criminal offence on

account of any act or omission which did not constitute a

criminal offence under national or international law at the

time when it was committed.  Nor shall a heavier penalty be

imposed than the one that was applicable at the time the

criminal offence was committed."

        In the sphere of criminal law Article 7 para. 1 (Art. 7-1) of the

Convention confirms the general principle that legal provisions which interfere

with individual rights must be adequately accessible, and formulated with

sufficient precision to enable the citizen to regulate his conduct (cf.  Eur.

Court H.R., Sunday Times judgment of 26 April 1979, Series A No. 30, p. 31,

para. 49).  Article 7 para. 1 (Art. 7-1) of the Convention prohibits in

particular that existing offences be extended to cover facts which previously

clearly did not constitute a criminal offence.  This implies that constituent

elements of an offence may not be essentially changed by the case-law of the

domestic courts.  It is not objectionable that the existing elements of the

offence are clarified and adapted to new circumstances which can reasonably be

brought under the original concept of the offence (cf.  No. 8710/79, Dec.

7.5.82, D.R. 28 p. 77).

        The Commission notes that the applicant was acquitted of the charge of

coercion under S. 240 of the Criminal Code by the Stuttgart District Court.

Upon the appeal of the Public Prosecutor's Office, the Stuttgart Regional Court

convicted the applicant of attempted coercion by force.  The Regional Court

found in particular that the applicant, who had participated in a sit-in on 12

December 1982, attempted to coerce others by "force" not to use the road

concerned. The Federal Constitutional Court, in its detailed judgment of 11

November 1986, referred to the jurisprudence of the German penal courts which

had progressively developed the interpretation of the term "force" in the

context of S. 240 of the Criminal Code.  The Constitutional Court did not find

a violation of the Basic Law due to equality of votes as regards, inter alia,

the question whether or not this jurisprudence violated the prohibition against

defining crimes by analogy to existing offences.

        The Commission considers that the progressively broader interpretation

of the term "force" within the context of S. 240 of the Criminal Code, which

covers, inter alia, sit-ins as in the applicant's case, has adapted the offence

of "unlawful coercion by force" to new circumstances and developments in

society which can still reasonably be brought under the original concept of the

offence.  The applicability of S. 240 of the Criminal Code to sit-ins was

clarified by the Federal Court of Justice in 1969 and, although the legal

opinions remained divergent in this respect, the applicant could thus clearly

foresee the risk of punishment for his participation in the sit-in of 12

December 1982.

        Consequently, the Commission finds that there is no appearance of a

violation of Article 7 para. 1 (Art. 7-1) of the Convention.  It follows that

the applicant's complaint in this respect is manifestly ill-founded within the

meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

2.      Furthermore, the applicant complains that his conviction by the

Stuttgart Regional Court on 23 December 1983 for his participation in one of

the sit-ins violated his right to freedom of peaceful assembly as guaranteed by

Article 11 (Art. 11) of the Convention.

        Article 11 (Art. 11) of the Convention provides:

"1.   Everyone has the right to freedom of peaceful assembly and to freedom of

association with others, ...

2.   No restrictions shall be placed on the exercise of these rights other than

such as are prescribed by law and are necessary in a democratic society in the

interests of national security or public safety, for the prevention of disorder

or crime, for the protection of health or morals or for the protection of the

rights and freedoms of others. ..."

        The Commission considers that the right to freedom of peaceful assembly

is secured to everyone who organises or participates in a peaceful

demonstration.  The notion of "peaceful assembly" does not, however, cover a

demonstration where the organisers and participants have violent intentions

which result in public disorder (cf. No. 8440/78, Dec. 16.7.80, D.R. 21 p.

138).

        In the present case, the Commission notes that the demonstration on 12

December 1982 in front of the Stuttgart barracks of the US forces had not been

notified under the relevant provisions of the German Assembly Act.  The peace

groups organising the demonstration and the participants, including the

applicant, intended to demonstrate in particular by means of repeated sit-ins

blocking the approach road to the barracks concerned and did thereby act

illegally.

        However, the Commission finds that the right to freedom of peaceful

assembly is one of the foundations of a democratic society (No. 8191/78, Dec.

10.10.79, D.R. 17 p. 93) and should not be interpreted restrictively.  The

applicant and the other demonstrators had not been actively violent in the

course of the sit-in concerned. The Commission accepts that the applicant's

conviction under S. 240 of the Criminal Code interfered with his right under

Article 11 para. 1 (Art. 11-1) and needs to be justified as a restriction

prescribed by law and necessary in a democratic society for one of the purposes

set out in Article 11 para. 2 (Art. 11-2) of the Convention.

        The Commission, referring to its findings as regards the applicant's

complaint under Article 7 para. 1 (Art. 7-1) of the Convention, considers that

his conviction for attempted coercion within the meaning of S. 240 of the

Criminal Code was a restriction on his right to freedom of peaceful assembly,

prescribed by German law.

        Furthermore, the Commission finds that, in the circumstances of the

present case, the applicant's conviction for having participated in a sit-in

can reasonably be considered as necessary in a democractic society for the

prevention of disorder and crime.  In this respect, the Commission considers

especially that the applicant had not been punished for his participation in

the demonstration of 12 December 1982 as such, but for particular behaviour in

the course of the demonstration, namely the blocking of a public road, thereby

causing more obstruction than would normally arise from the exercise of the

right of peaceful assembly.  The applicant and the other demonstrators had

thereby intended to attract broader public attention to their political

opinions concerning nuclear armament.  However, balancing the public interest

in the prevention of disorder and the interest of the applicant and the other

demonstrators in choosing the particular form of a sit-in, the applicant's

conviction for the criminal offence of unlawful coercion does not appear

disproportionate to the aims pursued.

        It follows that this part of the application is also manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

3.      The applicant moreover complains under Article 11 (Art. 11) of the

Convention of the police measures taken on 12 December 1982 to disperse the

sit-in in which he participated.

        The Commission notes that the applicant instituted administrative court

proceedings against the cost order of the Stuttgart II Police Department

concerning the police action on the occasion of the demonstration in question,

in the course of which the Stuttgart Administrative Court found that the police

action, i.e. the order that the demonstration be dispersed, had been unlawful.

The Administrative Court, therefore, quashed the cost order.

        The Commission considers that the applicant, under such circumstances,

has not shown any legal interest to have the dispersal of the demonstration of

12 December 1982 examined by the Commission under Article 11 para. 1 (Art.

11-1) of the Convention.  Accordingly, he cannot, in this respect, claim under

Article 25 (Art. 25) of the Convention to be a victim of a violation of his

rights under the Convention.

        This part of the application is, therefore, incompatible ratione

personae with the Convention within the meaning of Article 27 para. 2 (Art.

27-2) of the Convention.

4.      Moreover, the applicant complains under Article 14 (Art. 14) in

conjunction with Article 11 (Art. 11) of the Convention in respect of the above

complaints.  However, the Commission finds no appearance of discriminatory

treatment in the circumstances of the present case. This part of the

application is, therefore, manifestly ill-founded within the meaning of Article

27 para. 2 (Art. 27-2) of the Convention.

        For these reasons, the Commission

        DECLARES THE APPLICATION INADMISSIBLE

Secretary to the Commission         President of the Commission

    (H. C. KRÜGER)                       (C. A. NØRGAARD)