AS TO THE ADMISSIBILITY OF

                      Application No. 13235/87

                      by W.M.

                      and H.O.

                      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 8 May 1987

by W.M. and H.O. against the Federal

Republic of Germany and registered on 28 September 1987 under file No.

13235/87;

        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

applicants, may be summarised as follows:

        The first applicant, born in 1957, is a German national and

resident at L..  He is a political scientist.  The second

applicant, born in 1954, is a German national and resident in

T..  He is a teacher by profession.  Before the Commission

they are represented by Mr.  K.J. Hemeyer, a lawyer practising in

T..

        On 1 April 1982 the Reutlingen District Court (Amtsgericht),

acquitted the applicants 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 applicants had participated

in a demonstration against nuclear armament in front of the Eberhard

Finckh barracks at Engstingen from 13 July 1981 at 9 hours 15 until 9

hours 15 on 14 July 1981.  The demonstrators had blocked the road to

the barracks by fastening themselves with locks to a steel chain which

they had put across the road and fastened with locks to a street sign

and to the guard-house of the barracks.  On 14 July 1981, the police

had ordered that the demonstrators should leave the road.  The

applicants and other demonstrators who did not comply with this order

were then cut off the steel chain.  The District Court considered that

this action did not constitute unlawful use of force within the

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

        On 6 September 1982 the T. Regional Court (Landgericht),

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

anwaltschaft), quashed the judgment of 1 April 1982.  Having held

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

of the Criminal Code and fined them DM 600 (30 day-rates of DM 20).

        The Regional Court found in particular that the blockade of

the approach road to the military barracks at Engstingen constituted

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

The applicants intended to prevent any driver from using the road

during the period 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 applicants' goal to draw public attention to the

risks of nuclear armament did not justify the persistent blockade of

the Engstingen military barracks.

        On 23 March 1983 the T. Court of Appeal (Oberlandes-

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

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

concerning the applicants' and joined cases, the Federal

Constitutional Court (Bundesverfassungsgericht) dismissed the

applicants' 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 of 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.

COMPLAINTS

1.      The applicants complain under Article 7 of the Convention that

their participation in the demonstration and the blockade in front of the

Engstingen military barracks 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.

2.      The applicants also complain under Article 11 of the

Convention that their conviction for coercion violated their right to

freedom of peaceful assembly.

3.      The applicants moreover invoke Articles 2 para. 1, 5 para. 1,

9 and 10 of the Convention in respect of the above complaints.

THE LAW

1.      The applicants complain under Article 7 (Art. 7) of the Convention that

their conviction by the T. Regional Court on 6 September 1982 for their

participation in a blockade 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 applicants were acquitted of the

charge of coercion under S. 240 of the Criminal Code by the Reutlingen

District Court.  Upon the appeal of the Public Prosecutor's Office,

the T. Regional Court convicted the applicants of coercion by

force.  The Regional Court found in particular that the applicants,

who had participated in a blockade on 13 and 14 July 1981, prevented

others by "force" from using 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 applicants'

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 applicants could

thus clearly foresee the risk of punishment for their participation in

the blockade on 13 and 14 July 1981.

        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 applicants' 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 applicants complain that their conviction by the T.

Regional Court on 6 September 1982 for their participation in the blockade of

the Engstingen barracks violated their 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

participants in the blockade on 13 and 14 July 1981, including the

applicants, intended to demonstrate by means of a sit-in 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 applicants and the other demonstrators had not been

actively violent in the course of the blockade.  The Commission accepts that

the applicants' conviction under S. 240 of the Criminal Code interfered with

their 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

applicants' complaint under Article 7 para. 1 (Art. 7-1) of the Convention,

considers that their conviction for coercion within the meaning of S.

240 of the Criminal Code was a restriction on their right to freedom

of peaceful assembly, prescribed by German law.

        Furthermore, the Commission finds that, in the circumstances

of the present case, the applicants' conviction for having

participated in the blockade 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 applicants

had not been punished for their participation in a demonstration 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 applicants 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 applicants in choosing the particular

form of a sit-in, the applicants' 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.      Moreover, the applicants invoke Articles 2 para. 1, 5 para. 1, 9 and 10

(Art. 2-1, 5-1, 9, 10) of the Convention in respect of the above complaints.

However, the Commission finds no appearance of a violation of these provisions.

This part of the application is, therefore, also 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)