1
Freedom of assembly as a condition for democracy
Roberto Dias
PhD in Public Law from PUC-SP
Professor of Constitutional Law at PUC-SP
Lucas Laurentiis
Master's Degree in constitutional law from USP.
In the PhD program in constitutional law at USP and Albert-Ludwigs Universität
Freiburg.
Introduction
Our intention for this paper is to analyze how the Brazilian Supreme Court the
German Constitutional Court have, over time, made decisions on issues involving
freedom of assembly, as essential to the preservation of democracy.
Democracy, as Norberto Bobbio reminds us, 1 has a basic procedural rule: the
decisions must be made on behalf of the consensus of the majority. This is one - but
not the only - rule which is intended for granting legitimacy to the regime. However
exactly in the act of foreseeing the consensus of the majority, there is a logical
assumption: the existence of a minority that opposes the majority group. Thus, in a
democracy, in which pluralism prevails, there is always dissent, which can only be
uprooted if there is respect for minorities and their fundamental rights, particularly
those related to freedom.
The fundamental rights - in the words of Jorge Reis Novaes - they act as
trumps against the majority, to the extent that that they show themselves as a trench
"against the decisions of the political majority," assisting "the weakest, most
unpopular or most threatened position, not to prevail against or impose upon the
majority, but to ensure that the individual or isolated minority has the same rights
1
Norberto Bobbio, The Future of democracy: a defense of the rules of the game (O futuro da
democracia: uma defesa das regras do jogo), Trad. Marco Aurélio Nogueira, 4th ed. Rio de Janeiro:
Peace and Earth (Paz e Terra), 1986, especially p. 41 and following.
2
that all have to freely and autonomously choose their life plans, to expose and
publicize their positions among citizens, to have the same possibilities and
opportunities that any others have to present and defend their ideas, opinions, or
projects, that is, to compete on equal terms in the free market of ideas. "2
For Dworkin,
3
the "State offends its citizens and denies their moral
responsibility when it decrees that they do not have enough moral quality to hear
opinions that might persuade them about dangerous or unpleasant convictions. We
only retain our individual dignity when we insist that no one - not the governing
official nor the majority of citizens - has the right to prevent us from hearing an
opinion for fear that we are not competent to hear it and ponder it."
To leave to others to decide what we may express - and, ultimately, what we
are permitted to think - is pure paternalism. And paternalism, as well demonstrated
by Berlin - based on the thoughts of Kant - is despotic, "not because it is more
oppressive than what the tyranny manifests, brutally", but for being an "insult to my
conception of myself as a human being".4
Thus, in a democracy, the consensus of the majority should live with respect
for the rights of the minority. There is no democracy without ensuring the right of
free expression of thought, individually or collectively, and the right to hear the
opinions of others without an authoritative filter imposed by the State or by the
majority of the people in the community in which we live.
Freedom of assembly is part of this context. Closely linked to freedom of
expression, it gives strength to the ideas of the minority, who when gathered, can be
heard with more intensity and perhaps achieve a democratic victory or even become
the majority without bloodshed.
We therefore analyze decisions of the Brazilian and German Constitutional
Courts in regards to the right of assembly in order to, in sequence, confront the
controversial issues with which Brazil and the world have faced in relation to the
exercise of this constitutional liberty essential to democracy. Such decisions, in
2
Jorge Reis Novaes, Fundamental rights: trumps against the majority (Direitos fundamentais: trunfos
contra a maioria), Coimbra: Coimbra, 2006, p. 33 to 35.
3
Ronald Dworkin, Freedom's Law: a moral reading of the American Constitution (O direito da
liberdade: uma leitura moral da Constituição norte-americana), Trans. Marcelo Brandão Cipolla, São
Paulo: Martins Fontes, 2006, p. 319.
4
Isaiah Berlin, Two Concepts of Liberty, In: The Proper Study of Mankind: An Anthology of Essays,
Trans. Rosaura Eichenberg, São Paulo: Companhia das Letras, 2002, p. 259.
3
addition to showing the historical background of the precedent of the said Courts,
will nourish the final arguments that we will develop.
The right of assembly in the precedent of the Brazilian Supreme Court
The first case judged by the Supreme Court involving freedom of assembly
occurred in 1919, during the term of the 1891 Constitution. 5 It was the Habeas
Corpus 4,781 filed by various personalities of the Brazilian political world at the
time, among them Ruy Barbosa. The objective was to obtain a preventive order so
that they may, in Bahia, meet "at rallies, in public squares, streets, theaters and other
venues" in order to express freely their thoughts and opinions. This is because, during
the campaign for the presidency, the petitioners began to be threatened with violence,
beyond being prevented and deterred by abuse of authority by the powers of the State.
Then the Chief of Police had prohibited, by telegram, the meeting where Dr. Guilherme
de Andrade wanted to speak in favor of the senator Epitácio Pessoa.
It has been nearly a century since, in this landmark case, the Supreme Court held
that if the police prohibits the meeting, it does not practice a mere intervention in the
meeting, it does not attend the rally, but unduly suppresses the demonstration. Moreover,
the police can not determine that the meetings be held only in certain places, because
that would imply eliminating them, because it would suffice for as much, that they
were designated locations "without the capacity for the largest gathering of people."
Years later, in 1955, in the Extraordinary Appeal No. 26,350, the Brazilian
Supreme Court, relying on that provide for in the 1946 Constitution, then in effect, in
regards to the freedoms of thought, assembly and association, 6 stated that they could
be restricted in relation "to the armed classes for the sake of military discipline".
5
The Constitution of 1891, in force at the time, stated in its art. 72, § § 8 and 12, the following: "§ 8 For all it is lawful to associate with one another and meet freely and without weapons, with the police
not being permitted to intervene except to maintain public order." "§ 12 - In any matter the expression
of thought is free by the press or by the tribune, without the need for censorship, with each one
responding for the abuses they commit in the cases and in the manner prescribed by law. Anonymity
is not allowed. "
6
In its judgment, there is mention of the art. 141, § § 5, 11 and 12 of the 1946 Constitution, worded as
follows: "§ 5. The expression of thought is free, without being dependent on censorship, except for the
shows and public entertainment, with each responding, in the cases and in the manner that the law
stipulates for the abuses committed. Anonymity is not allowed. The right to respond is assured. The
publication of books and periodicals do not depend on the permission of the government. "" § 11. All
may gather without weapons, and the police may not intervene unless to ensure public order. With this
intention, the police may designate the place for the meeting, provided that in doing so, does not make
it impossible. " "§ 12. It is guaranteed freedom of association for lawful purposes. No association may
be compulsorily dissolved except by virtue of a court decision. "
4
Constituting the focus on indiscipline and insubordination in certain military
associations, the higher authorities could withdraw the authorization to act that had
been granted, resulting in the termination of the association without the option to
appeal to the civil authority.
On this occasion, the Supreme Court held that, if the entity House of the
Sergeant of Bahia (“Casa do Sargento da Bahia”) was the meeting point where
offenses were practiced against the military law, it would not be illegal for the
commander to order the closure of the club. It was argued that, for the preservation
of the discipline it can not be accepted, not even, exaggerated or unpleasant criticism
to the military authorities, by lower hierarchies, which could jeopardize the national
defense itself. Involving, in this case, the preservation of the discipline of the military
hierarchy and to the detriment of the right to assembly.
Already under the aegis of the Charter of 1967, modified by the Constitutional
Amendment No. 1/69, which arrived at the Supreme Court the Extraordinary Appeal
No. 97,278, judged in 1982. In this case, the Defense Committee of the Island of São
Luís (Comitê de Defesa da Ilha de São Luís) intended to realize, at the “Praça
Deodoro” (Deodoro Square), a public demonstration in favor of ecological
preservation. To this end, it was requested the Public Security Office to release the
site for concentration. But such a permission was denied by the authority, under the
argument that this public area was excluded from the list of locations that would be
rallies or concentrations that would be accepted for any purpose.7
The petitioners argued that “Praça Deodoro” would be the place with the best
conditions for the type of public meeting that was intended to be carried out,
remembering that this place had been used frequently for meetings in the open, for
7
Remember that the Constitution of 1967, under EC 1/1969 art. 153, § 27, established the following:
"All may gather without weapons, and the authority may not intervene unless to ensure order. The law
will determine the cases in which prior notification to the authority will be required as well as its
designation, for the place of meeting. " The art. 3 of Law No. 1207/50, regulated the matter as
follows: "Art 3 In the Nation's Capital (Distrito Federal) and in the cities police authority of largest
category, at the beginning of each year, shall determine the squares designated for rallies and will give
publicity to this act. Any amendment shall come into force ten days after it was published. § 1 If the
setting takes place at inappropriate places that in fact, frustrate the right of assembly, any individual
may complain to the police authority, indicating a proper place. If the authority, within two days you
does not, or indicates an inappropriate place, the claimant may petition for the judge with jurisdiction
for an injunction which guarantees the right to rally, although not intending, at the moment to perform
such an activity. In such a case, it will be up to the judge to indicate the proper place, if the police,
changing its act, does not do so. § 2 The conclusion of the rally in the square set for such purpose,
independent of the permission from the police; but the promoter of it, at least twenty-four hours
before its completion, should make appropriate disclosure to the police, so that this guarantees the
respective party, according to the priority of the notice, the right against any one who on the same
day, time and place, wishes to conclude another rally. "
5
example, when the visit of the then steel industry leader came, Luiz Inacio Lula da
Silva - who decades later was elected and re-elected as President of the Republic for the installation of the Workers Party in the State of Maranhão.
Although the Supreme Court had no knowledge of the appeal nor ventured
with depth into the analysis of freedom of assembly, it left on record that despite
having jurisdiction to determine, at the beginning of each year, the meeting places or
rallies, in this case the police authority would not have invoked "motives of public
order or security of the State to reject the request, as it would be lawful for it to do."
By not submitting a justification for preventing the meeting, "based on the public
interest or for subversive motives" for the popular concentration, the exercise of the
rights by the group of ecologists should be admitted.
The decision shows that the Supreme Court was able to and would admit the
state interference in the freedom of assembly in order to protect "public order," the
"security of the State" and also to prevent demonstrations of "subversive character,"
indeterminate legal concepts quite esteemed by authoritarian regimes like the one in
power at the time.8
With the enacting of the 1988 Constitution, the right of assembly has become
disciplined in the following manner: "Everyone can gather peacefully, without
weapons, in places open to the public, regardless of authorization, provided they do
not frustrate another meeting previously convened at the same place, subject only to
prior notice to the authority with jurisdiction."9
During the term of the current Constitution, two landmark cases on the subject
are noteworthy.
The first is the prohibition of demonstrations at sites near the public buildings
of Brasilia. Such a prohibition was granted on the argument that the freedom of
assembly would not authorize the interference in the proper functioning of the public
8
This does not mean that enacted constitutions have not employed indeterminate concepts like these.
It suffices to review, for example, the aforementioned art. 141, § 11, of the 1946 Constitution: "§ 11.
All may gather without weapons, and the police may not intervene unless to ensure public order. With
this intention, the police may designate the place for the meeting, provided that in doing so, does not
make it impossible. " On freedom of assembly and indeterminate concepts, Leonardo Martins asserts:
"Many frivolous arguments may be revealed to be based exclusively on the protection of
indeterminate legal concepts such as 'public order'." (Leonardo Martins, ADPF 187/DF: 'Marijuana
March' (‘Marcha da Maconha’), in Robério Nunes dos Anjos Filho (ed.). Supreme Court and
Fundamental Rights: contemporary dialogs (STF e Direitos Fundamentais: diálogos
contemporâneos). Salvador: JusPodivm, 2013, p. 302).
9
Article 5, clause XVI.
6
bodies. The Governor of the Distrito Federal (Nation's Capital) issued a Decree 10
prohibiting the holding of public demonstrations in the Praça dos Três Poderes
(Square of the Three Powers), 11 the Esplanada dos Ministérios (Esplanade of the
Ministries) and the Praça do Buriti (Buriti Square).12
In his opinion in regards to the Preliminary Injunction on the Legal Action of
Unconstitutionality of 1969, with its judgment in 1999, the Rapporteur Minister
Marco Aurelio Mello argued that "it is not the place of the local authority to regulate
a provision of the Charter of the Republic, much less to the extent of mitigating it,"
as it had occurred in the case. He argued further that the right of assembly is closely
linked "to another of greater importance in societies that consider themselves to be
democratic": which is associated with the expression of thought. The right of
assembly is therefore not restricted to silent demonstrations, but rather, the
constitutional provision guarantees the "airing of ideas, with little importance to
whether it relates to religious, cultural or political aspects." He concluded that,
considering the possible excesses, the law enforcement should not have a preventive
character, "under penalty of incompatible intimidation with the constitutional
guarantees. There are situations where it should be resorted to, of course, in a
repressive manner only when it surpasses the limits dictated by reasonableness, when
it comes to a wave of violence against buildings and people. "
Disagreeing with the fundamentals of the opinion of the rapporteur Minister,
the Minister Nelson Jobim recognized the unconstitutionality of the Decree, as it
rendered the right of assembly in the places mentioned inviable. But, assuming that
the right of assembly is not absolute, admitting the exercise of law enforcement to
regulate and discipline demonstrations, provided it does not prevent the exercise of
the said right. With this, he asked: would it be legitimate the exercise of the right of
assembly, using cars with speakers, in front of a hospital? He expressed the view that
10
Actually, there were three decrees, No. 20.007, of January 14, 1999, No. 20,010, of the 20th of the
same month, and No. 20,098 of March 15, of that year. The first prohibited the holding of public
demonstrations in the places indicated, except those of civic-military, religious and cultural character.
The second decree, which revoked the former, did not specify the nature of the demonstrations, but
prevented them from occurring in the same places "with the use of cars with speakers or the like." The
third forbids "conducting public events with the use of cars, devices and objects that emit sound in
the Praça dos Três Poderes (Square of the Three Powers) , the Esplanada dos Ministérios (Esplanade
of Ministries) and Praça do Buriti (Buriti Square) and adjacent pathways" while repealing all
provisions to the contrary.
11
As the name indicates, it is the square where the Palácio do Planalto (Executive - Equivalent of the
White House) is located, The National Congress (Legislative) and the Supreme Court (Judicial).
12
At the Praça do Buriti (Buriti Square) is the Palace of the same name, which is the headquarters of
the Government of the Distrito Federal (Nation's Capital).
7
it would not and added the argument that the right of assembly could not frustrate,
for example, the right to not-participate in the demonstration or the right to work of
those who do not wish to be part of the event.
The Court concluded that the right of assembly is not absolute and may be
subject to discipline, as long as it is not impeded. The decree, however, in an
unconstitutional manner specified locations where demonstrations could not occur
and, also unduly restricted the manner of its exercise to prevent the use of cars,
devices or objects, which make sound.13
In 2009, after some decisions of state courts prohibiting the convening of the
"Marijuana Marches" which preached the abolition of the crime of drug use, were
proposed to the ADI No. 4274 and ADPF No. 187 which intended for the Supreme
Court perform the "interpretation in accordance with the Constitution" of the arts. 33,
§ 2 of Law 11.343/2006, and 287 of the Penal Code, to exclude any exegesis that
could "give rise to the criminalization of the advocacy of drug legalization, or any
specific narcotic substance, including by way of public demonstrations and events."
The Supreme Court realized that people can come together peacefully to
discuss the criminalization of conduct laid down in the laws. Otherwise, the criminal
laws "would be doomed in perpetuity" and, for example, it would also not be
possible to discuss the prohibition of abortion. To speak out against the
criminalization of an act does not mean apologizing for the existing crime. The
exercise of freedom of assembly, in short, is a legal-way to reach a legal-end of the
freedom of speech and "operates as a mechanism to control the abuses of the State."
It involves the protection of the minorities, which strengthens political pluralism and,
as a consequence, democracy itself. And it's not just a defense of fundamental rights,
of a defense against state intervention, but rather an imposition so that the State acts
to ensure its fulfillment.14
13
In the final judgment, in 2007, the Supreme Court partially with another formation, reiterated the
understanding provided in the Preliminary Injunction. It is true that the rapporteur, Justice Ricardo
Lewandowski, gave more emphasis to the violation of proportionality by the decree, and Justice Eros
Grau pointed out the formal unconstitutionality, being that the restrictions could not be conveyed by
decree but only by law.
14
Incidentally, Celso de Mello, even in the presence of the 1967 Constitution, with the Amendment
1/69, had already developed the idea of legal-end and legal-way. The same author, in regards to the
negative and positive status of the right of assembly, mentioned that, as a rule, it is not the place of the
public authority to intervene in the exercise of the right of assembly, other than to ensure its exercise
by individuals, to dissolve it if it is illegal and to preserve public order (The constitutional right of
assembly (O direito constitucional de reunião), in Journal of Jurisprudence of the Court of Justice of
the State of São Paulo. (Revista de Jurisprudência do Tribunal de Justiça do Estado de São Paulo), v.
12, No. 54, p. 19-23, Sep-Oct. 1978). For a critical analysis of the judgment professed in ADPF 187,
8
It is worth reiterating that, when discussing the "Marijuana March," it also
surfaced in the Supreme Court an interesting debate about the limits of freedom of
assembly, associated with freedom of expression and thought, in the cases of racist
and anti-semitic demonstrations or events that preached the decriminalization of
pedophilia.15 But the Supreme Court was restricted from deciding on the question
that was put before the court and analyzed only the constitutionality of the
demonstrations that advocate the legalization of drug use.
The right of assembly in the precedent of the German Constitutional Court
The concept of freedom of assembly was doubly limited by the recent
judgment of the German Constitutional Court. The first of these restrictions concerns
the content of the fundamental right and the second is related with the form of its
exercise. In Castor-Transport
16
and Love-Parade
17
the right of assembly was
defined as the meeting of people who, seeking a common goal, participate in the
public debate of ideas relevant to society. A common goal means one that can not be
exercised independently by each of the participants. The number of spectators at a
sporting event, a group of people who want to attend a movie, or concert
spectators, 18 though being a set of people who share the same space, are not
see: Leonardo Martins, ADPF 187/DF: 'Marijuana March' (‘Marcha da Maconha’), in Robério Nunes
dos Anjos Filho (ed.). Supreme Court and Fundamental Rights: contemporary dialogs (STF e
Direitos Fundamentais: diálogos contemporâneos). Salvador: JusPodivm, 2013, p. 277-305. This
author agrees with the Supreme Court decision that recognized the freedom of assembly in the case of
the demonstration for the decriminalization of marijuana. But disagrees with the admission of the
ADPF and the use of the "interpretation according to the Constitution as a modulation technique for
the purposes of res judicata" (p. 284 and 285).
15
Celso de Mello, in the text mentioned in the previous note - published during the military regime
and at the time that he was not yet not a Justice of the Supreme Court - argued that "assembly to
promote war propaganda, violent cases to subvert the political and social order , foster prejudices
against race or color, offending public morals, endangering public order, undermining the dignity and
national imbalances, disturbing the peace and public tranquility to cause disorder, for example, will be
considered unlawful, and thus its prohibition is just "(" The constitutional right of assembly " - “O
direito constitucional de reunião”, in Journal of Jurisprudence of the Court of Justice of the State of
São Paulo., - Revista de Jurisprudência do Tribunal de Justiça do Estado de São Paulo v. 12, No. 54,
p. 19-23, Sep-Oct. 1978). Whereas during the term of the 1988 Constitution, Fernando Dias Menezes
de Almeida argues: "Ensuring the right of individuals to gather has nothing to do with, in theory,
keeping them from practicing racism. But if when they meet and express ideas, the individuals
commit acts of racism, such conduct is necessary to be broken up, so that every party present is
subject to the application of each law. Not even the law that ensures freedom of assembly follows that
one can practice racism, nor does the law prohibiting racism imply that it is unlawful meet "(Freedom
of Assembly - Liberdade de Reunião, Sydney: Max Limonad, 2001, p. 233 and 234).
16
BVerfGE, NJW 2002 1031.
17
BVerfGE, NJW 2001, 2459.
18
Schlink / Pieroth, Staatsrecht II: Grundrecht 26. Auf., Heidelberg, CF Müller, 2010, p. 185.
9
considered to be participants of a meeting in the constitutional sense. All of these
examples lack the common and indivisible element that unites the action of the
participants. This border, which comes from the linguistic distinction of the
expressions gathering (Ansammlung) and meeting (Versammlung) of people, is not
as clear and concrete as it seems. The fans who wish to not only watch a match, but
also speak out against the poor condition of stadiums and the spectators of theaters or
plays, that when attending the spectacle wished to assert a political and social issue,
leave the passive position and begin to act actively and jointly. If this occurs, there
will be a constitutionally protected meeting.19
However the precedent of the Constitutional Court has gone beyond this. It
also requires that this common element contributes to the public debate of ideas. In
Fraport, the Constitutional Court was blunt regarding this point: in its view, it
doesn't matter if this debate - in this case involving the discussion of deportation of
those under political persecution - occurs in public spaces, such as a square or street,
or in spaces of private domain, as in the case, Frankfurt airport, which is run by a
semi-public company. What is decisive is whether such a debate occurs or not.20
The reason for this limitation is the special protection afforded to the right of
assembly in relation to freedom of expression (art. 5, GG) and general freedom of
action (art. 2, GG). The specific difference and the reason for special protection of
freedom of assembly is the correlation from this fundamental right with the exercise
and carrying out of a form of participatory democracy. 21 Meetings that simply
express popular traditions, or parties where participants only wish to have fun,
singing, dancing or listening to music, even if those words are a form of culture or
counterculture, are not considered to be demonstrations of the right of assembly.
The limitation related to the exercise of freedom of assembly is directly related
to this restrictive definition of the constitutionally protected content. When judging
the legitimacy of the action of a religious group (Sinti and
Roma), who blocked a
highway to demand a hearing with the Swiss high-commissioner in charge of the
protection of persecuted political refugees, the Constitutional Court held that this
move was intended to benefit itself and not to contribute to the public debate of
19
Sachs Verfassungsrecht II: Grundrechte, 2. Auf., Berlin, Springer, 2003, p. 359.
BVerfGE 128, 226.
21
Hoffmann-Riem, Neuere Rechtsprechung des BVerfG zur Versammlungsfreiheit, NVwZ, 2003, p.
259. In the precedent: BVerfGE, NJW 2002, 1031 (1032).
20
10
ideas. Based on that reasoning, it denied the constitutional protection for
expression.22
The constitutional literature presents strong criticism of these last two
restrictions. The first, which requires of the demonstrators the verbal disclosure of
relevant ideas to the public and democratic debate is tied to a vision of the 1968
demonstrations that no longer exists and excludes a priori the scope of protection of
the right forms of cultural and musical actions, in which the political element and the
democratic ideal may not be obvious, but may be implied.23 It also disregards that
democracy is not only realized by way of the exchange of ideas expressed verbally.
The sociability and interaction of people at public events is also a way of carrying
out, strengthening and developing the sense of belonging to a public community.24
After all, even though the tradition of exercising the right to freedom of assembly is
related to the verbal expression of political ideals,
25
the text of the Basic Law
provides no restriction on the content of the idea that it will come to be defended by
the popular demonstration. The historical tradition can serve as an auxiliary element
and guide the constitutional interpretation, as long as it does not clash with the
meaning of the constitutional text.26
The analysis of the limitation on the exercise of freedom of assembly demands
greater reflection. The blocking of the passage of cars, whether it be on a highway, or
in a public road, is the way for the demonstration to become visible, calling attention
to their problems and demands. And the mere fact that a group of people expose
themselves to the danger of such an action shows that the respective claim had no
resonance in the more traditional channels of democratic participation. It can not
then be ruled out a priori from the scope of protection of the fundamental right to
freedom of assembly, the demonstrations that perform the blocking of public roads.
Critical to addressing this issue is how this blockade is carried out. After all,
depending on the way this act is carried out, goods - cars may be damaged, for
example - or the physical integrity of persons, which may result from an accident.
The question that arises is whether these risks are not sufficient to conclude
that the demonstration causes, or may cause, substantial danger of harm to public or
22
BVerfGE, 104, 92 (39) - Sitzblockaden III.
Kniesel / Pocher, Die Entwicklung des Versammlungsrecht 2000 bis 2003 NJW 2004, p. 423.
24
Schlink / Pieroth, Staatsrecht II: Grundrecht, p. 185.
25
Cf Malgoldt / Klein, Das Bonner Grundgesetz Kommentar, 2 Auf. Berlin: Franz Vahlen 1957, art.
8, Anm. III 2.
26
Cf Cremer, Freiheitsgrundrechte: Funktionen und Strukturen, Tübingen Mohr Siebeck, 2003, p. 33.
23
11
private assets and therefore should not be regarded as a peaceful demonstration. This
reasoning has not been accepted by the German Constitutional Court, which has long
recognized that the abstract possibility of physical or property damage occurring
does not compromise the peaceful nature of the demonstration.27 It is necessary to
prove, concretely, that the way in which the blocking is carried out has the purpose
of submitting to the will of others, the threat of substantial damage to their physical
integrity or assets. It is not, therefore, each and every possibility of damage that
carries the stain of a violent and non-peaceful demonstration. On this point, the
precedent and the German constitutional literature are in agreement: the "peaceful"
concept can not be broad to the point of excluding the possibility of the
demonstration coercing people or authorities to change the course of their action.28
Without this coercive element, the effectiveness of the exercise of the right of
demonstration would become meaningless. The use of stacks, tires, racks and iron
bars by protesters solely for the purpose of road, highway or public passage
blockades, does not make the demonstration "non-peaceful."29 This does not concern
the criminal type of coercion by force or threat.30
Serious and controversial issues arise when the violence is not physical, but
rather symbolic. In part, this discussion follows the provision (art.15) of the federal
law that regulates the exercise of the right of assembly (VersG), which authorizes the
dissolution of meetings that threaten public order and security. The interpretation of
this clause has been the source of one of the most intense debates between the
Administrative Courts of the federated states and the German Constitutional Court.
The number of cases involving demonstrations of extremist groups was what
triggered this debate: at the local level, such demonstrations were banned in
consideration of the damage that they bring to the democratic debate. Extremist
ideas, these decisions state, are by definition, contrary to democratic thought and,
therefore, should be promptly banned.31
The Constitutional Court rejected this argument. Given the correlation between
freedom of expression and freedom of assembly, the limits on state action that apply
27
BVerfGE 92 1 (18) - Sitzblockaden II.
Kniesel / Pocher, Die Entwicklung, p. 423.
29
BVerfGE 73, 206 (257).
30
The criminal type that restrains the conduct of coercion by force or threat is art. 240 of the StGB.
About not concerning this precept in demonstrations that block the movement of cars, v.: BVerfGE 92
1 (16), 87, 399 (406). In the literature: Schlink / Pieroth, Staatsrecht II: Grundrecht, p. 187.
31
See, in this sense: VGH München, NVwZ 1992, p. 76; OVG Münster, DVBl, 2001, p. 584.
28
12
to that right should be applied to the control of the limitations on the exercise of the
freedom of assembly.32 In both cases, the duty is to apply neutral treatment on the
behalf of the State, who must not consider an idea or vision of the world less
valuable than another. In themselves, ideas should not be protected, encouraged or
prohibited by the State. The control is on the effects of those events and does not
have as a reference the expressed idea, but all the circumstances surrounding the
case: neo-Nazi marches convened for the day when the atrocities of the Holocaust
were remembered or in places that recall these events are not only the expression of
an idea, but an injury to the feelings and identity of the descendants of this massacre.
On this basis, restrictions on such forms of demonstration were accepted by the
German Constitutional Court.33 But even in these cases, the ban should be the last
possibility being resorted to by the control agencies. If by the change of the date or
place of the event and by prohibiting the use of extremist symbols or uniforms, the
offensive character of the demonstration is mitigated, its realization should not be
prohibited. The presumption of legitimacy of the demonstration must guide the
interpretation of the case, not the opposite. Only after the expulsion of all other
interpretations that might substantiate the legitimacy of the ideal advocated by the
demonstration, can one conclude that such content is prohibited.34
The constitutional literature presents arguments that reinforce the line of
argument of the Constitutional Court. Hoffmann-Riem, one of the judges who most
influenced the recent precedent of the Constitutional Court, contends that, after the
five decades of the existence of the German constitutional democracy, the State and
society are mature enough to have a debate on pluralistic and open ideas, including
with those who declare themselves as being their enemies.35
Poscher and Kniesel were even more compelling. 36 For them, those who
advocate a vision of democracy and the Constitution, according to which extremist
demonstrations and ideas should be excluded from the public debate of ideas, are
embracing a naive and idealistic vision of the democratic process. Clearly, the
authors say, the Basic Law as a whole is contrary to Nazi-Fascist thought. The
historical origins and theoretical conception of the document easily lead to this
32
BVerfGE, 111, 147.
BVerfGE, NJW 1993, 916 (917).
34
Hoffmann-Riem, Neuere Rechtsprechung, p. 261.
35
Hoffmann-Riem, Neuere Rechtsprechung, p. 265.
36
Kniesel/Pocher, Die Entwicklung, p . 427 and ss.
33
13
conclusion. The question is, how and in which manner this purpose can or should be
achieved.
One way of conceiving the relationship between the desideratum and
effectiveness of the Basic Law sees the debate between ideas, demonstrations and
thoughts as a fundamental part of the game that leads to continuous progress of
democracy, but never to its completion. Democracy in this sense is not only the
acceptance of differences, but also the acceptance of the defects and deviations of
thought. To think and act democratically are not forms of tolerance or respect, but
rather of acceptance of the limitations of the regulatory force of the Constitution
itself. Democracy, in this first sense, is not only a form of government that accepts
plurality, but also accepts imperfection and accepts itself as being imperfect.
The second way of addressing this issue would require that the ideal sought by
the Constitution was readily achieved, so that the enemies of democracy were
quickly labeled, made silent and excluded, that there was no escape valve for the
hard and fast thinking, as long as it is always present in the constitutional text. The
idea or demonstration that was at odds with this ideal of constitutional perfection
would be made clandestine. This radical and intolerant form of democracy can be
defended in several ways. None of them are able to fend off the perception that it is
not a form of democracy created by the Basic Law of 1949.
Freedom of assembly: new horizons, old issues
As we already mentioned in the introduction, the right to demonstrate and
exercise of democracy are inseparable elements. Therefore, the regulation of this
relationship is a continuous exercise that requires legal analysis and serious social
debate. There is no reason to wonder why many issues remain open. In Brazil, the
cycle of demonstrations that started in July 2013 brought many of these issues to
public debate. What is a peaceful demonstration? May protesters wear masks or
garments of war? May the meeting take place in both public and private spaces?
Based on the foregoing and on the contents of the Brazilian Constitution of 1988, we
present here our understanding of these issues.
Peaceful is the demonstration that is neither belligerent nor armed. The
meeting constitutionally prohibited is therefore one that concurrently presents, an
element of intent (subjective) and an element of fact (objective), which combined,
14
may present serious potential for damages to the rights of third parties. 37 If the
demonstration was organized with the intent to injure, destroy, damage or waste
public or private property, there is a subjective element of constitutional prohibition.
But only the intent to harm is not sufficient if the protesters do not have sufficient
material means to do so. Therefore, it is necessary that the demonstration is "armed."
The means employed by the protesters should be qualified to perform the intended
damage. For the legitimate right to ban the meeting, it is not sufficient, therefore, to
note that "objects" were thrown by the protesters. If these "objects" are roses,
feathers, eggs or tomatoes, there is no sufficient potential for harm to justify the
dissolving of the demonstration. The orientation of the German Constitutional Court
is correct on this point: an overly broad interpretation of the term “pacific”, which
excludes any possibility of injury from the scope of protection of the right of
assembly, may lead to a denial of that right.
This does not mean that the person that eventually feels aggrieved by the
throwing of these objects is unprotected. This person may seek in court
compensation for possible damages that he or she may have come to suffer - a
stained shirt or a car with marks from eggs, for example. None of this is reason,
however, lead to the prohibition or dissolving of the meeting. The conclusion to the
contrary simply precludes all sorts of satirical demonstrations and the happenings,
which are legitimate expressions of discontent but may cause some inconveniences.
The democratic life is not always completely enjoyable to all members of society.
Accepting this fact is the first step to building a peaceful coexistence.
A relevant issue, which has been the subject of little debate in the Brazilian
literature, is the constitutional definition of a "weapon" (art. 5, XVI). Is the forbidden
meeting the one in which all protesters carry weapons? And may the carrying of
weapons allowed by law also constitute grounds for dissolving a demonstration?
Regarding first question, three conditions must be considered. At first, all
meeting participants are carrying weapons. In the second, only a small portion of
them are carrying weapons. Finally, in the third hypothesis, a small portion carry the
weapon, but the vast majority of the participants know and support this attitude. The
first situations seem more simple: the first meeting is prohibited, the second is
allowed. The third hypothesis is complex and requires more care to analyze it. The
key to its solution lies in the combining of subjective element of the meeting: if the
37
A similar analysis is found in: Sachs Verfassungsrecht II: Grundrechte, p. 358.
15
other participants support the carrying of the weapon and know that it is intended to
hurt or harm others or meeting attendees, then such a demonstration should be
prohibited. Conversely, if the remaining protesters know that armed persons
participating in the demonstration, but do not consider the possibility of such
weapons being used to injure or cause damage, this meeting should be allowed.
Decisive for the admissibility of the dissolution of the meeting is the intention and
belligerence of all or most of the participants. If the aggression comes from a small
portion of them, the meeting can not be prohibited. In this case, the solution is to
prevent those who insist on carrying weapons from participating in the
demonstration, not the dissolving of the demonstration.
In what concerns the qualification of "carrying of a weapon", two issues must
be considered. Both are related to the Federal Law No. 10.826/03, which regulates
the registration, the possession and sale of firearms. The first question is whether
only the carrying of the "weapons" referred to in this Act may be grounds for
dissolving of the meeting. Our answer is negative. When creating these regulations,
criminal law had no purpose other than to regulate and control the movement and the
amount of weapons available to the population.38 The regulation of the constitutional
right to freedom of assembly went way beyond this legislative intent. Therefore, for
the purposes of the prohibition of meetings, a "weapon" is not necessarily a
"firearm". It is sufficient for the protesters to carry, for example, clubs, mace, iron
bars, and that which is intended to hurt or cause damage, for the constitutional
prohibition to take effect.
Finally, the legal authorization for the possession of firearms by certain groups
of people - police men or women or private security guards, for example - raises the
question as whether these armed groups may conduct demonstrations. Along these
lines, one could argue: if the legislation 39 authorizes such classes to carry weapons
daily, there is no reason to prohibit the possession during their meetings or
demonstrations. This argument is not convincing. It ignores that the public
demonstration is an act with peculiar characteristics. It is not uncommon for
demonstrators and counter-demonstrators to have confrontations and it is also not
uncommon for demonstrations to displease or cause great discomfort to others. It is
38
The fact that this Law has created a body with the specific purpose for the identification, control
and registration of firearms (Sinarm - National Arms System) indicates this purpose.
39
Article 6 of Law No. 10.826/03, regulated by Decree 5123/2004.
16
an extreme situation, in which there are not only the members of the demonstration,
but also there are individuals who are affected by it, that are in a state of great
anxiety and psychological pressure. That is the reason for the constitutional
prohibition. Therefore, it matters little that the group conducting the demonstration
has authorization to carry weapons. Any armed meeting was constitutionally
prohibited.
A separate but related question is the possibility of the participants of the
demonstration to wear masks or cloths that hide the face.40 The distinctive element to
ban the use of these garments should once again be the belligerent intentions of the
demonstrators. Masks that bring out the irony of the governing individuals are
common in demonstrations and represent a legitimate form of expression of thought.
The same conclusion holds true for masks that are related to religious orientations.
To restrict, in the abstract sense, the expression of beliefs and ideas of the protesters
is an act devoid of constitutional authorization. The Constitution guarantees the
inviolability of belief and religion, which would be enough to rule out any possibility
of control over dress for religious motives (Burqas or Niqabs, for example) used by
protesters. Incidentally, there is a strong potential for discrimination in the attitude of
the government official or judge who authorizes the demonstrators to dress in a
certain way and but not another.
This conclusion is not excluded by section IV of article 5 of the 1988
Constitution, which ensures the expression of thought, but prohibits anonymity. 41
First because there is no anonymous meeting: the protesters want to showcase their
ideas and occupy public or private spaces with this intention. If the goal was to be
anonymous, they would stay at home. Second, because if a police officer verifies the
need to identify some of the protesters, it is only necessary to request the individual's
civil identification. Only in the absence thereof, will the demonstrator be subjected to
40
The controversy in this respect is big in Brazil. The State of Rio de Janeiro, for example, enacted
Law No. 6,528, of September 11, 2013, which, in its art. 3, section IV, § 3, provides that: "Art 3 - The
constitutional right to a public meeting for expression of thought will be exercised: [...] IV - without
the use of masks or any pieces that cover the face of the citizen or hinder their identification; [...] § 3 The prohibition mentioned in item IV of this Article shall not apply to cultural events established in
the official calendar of the State ". Within the State of São Paulo, judgments banned the use of masks
by protesters. Also emerged in some cities, such as Campinas, bills for the complete prohibition of
such conduct. The proposal sent by the Ministry of Justice to regulate the right to freedom of
assembly follows in the same line. In our view, such measures have no constitutional protection.
41
For a contrary opinion, see the article of Beatriz Horbach in the edition of July 6, 2013 in the Centre
for Constitutional Justice (Observatório da justiça constitucional), available at:
http://www.conjur.com.br/2013-jul-06/observatorio-constitucional-restringir-manifestacoes-naoinconstitucional (seen on March 19, 2014).
17
criminal identification.42 All of this is independent of whether the protester wears a
mask or not. Finally, if some protesters do not want to see their face exposed in the
media, but want to express their displeasure or outrage, the use of masks becomes a
way of exercising the right of personality and image. To require that the protester
exposes him or her self in the manner intended by the State is a violation of his or her
fundamental rights.
There is only one case in which the use of masks in demonstrations is
constitutionally prohibited, if the garment indicates the performing of a paramilitary
act. When it is proven that by using masks, demonstrators indicate the common
intention of committing acts of vandalism, the banning of the garment will be
permitted. As noted by Hoffmann-Riem regarding the use of military uniforms or
symbols of war, the burden of proof falls under the responsibility of the
government.43 When in doubt, the mask should be allowed.
Finally, there is the question of where the meeting should be permitted. In this
respect, the Brazilian Constitution follows a different path from the German. 44 In
Brazil, the constitution authorizes the holding of meetings in "places open to the
public."45 The expression indicates that it doesn't matter whether the meeting place is
public or private property - this criterion of distinction could be applied if the
Brazilian Constitution said "open and public place", but it is not the case.
In the absence of a law that defines what the constitutional expression means,46
four possibilities must be considered. At first, the meeting takes place on public
property that is open to the public, in the second, the meeting is convened at a
location that belongs to the Government, but closed to the public, in the third, the
demonstration takes place in a private owned location, but open to the public, and
finally, in the fourth hypothesis, the protesters intend to gather on private property,
that is closed to the public.
42
See in this sense, art. 5, LVIII Federal Constitution of 1988: "who is civilly identified will not be
subjected to criminal identification, except in cases provided by law."
43
Hoffmann-Riem, Neuere Rechtsprechung, p. 264.
44
In Germany Article 8 of the Basic Law creates two distinct regimes of restrictions on the exercise of
the right of assembly. The first, without statutory reserve, is applied to the meetings held indoors, the
second with statutory reserve in law, is addressed to the demonstrations taking place in the open air
(Himmel unter freiem).
45
Highlights added.
46
The bill elaborated by the Brazilian government is concerned with intensifying penalties that
already exist in criminal law, for the demonstrators that may cause damage to public or private
property and neglects to address this important issue. It is an example of legislation by occasion. For
this reason, instead of identifying solutions for the interpretation of the constitutional text, this
proposal only creates more controversy and uncertainty.
18
The first two situations are resolved by administrative law. Public goods of
common use by the people- squares and avenues, for example - are, by definition,
open to the public. The demonstration is authorized in these locations. Buildings
belonging to the Government, but where access is restricted to civil servants, are
although localities where the demonstration is prohibited. The headquarters of a
municipality falls into this class of properties. On the other hand, the headquarters of
the Legislative Branch is a special case in which the workplace of the public official
has the characteristic of being necessarily open to the public. This is because, by
definition, Parliament is the space for the expression and public debate of ideas.
There is no way to prohibit the holding of demonstrations convened at these
locations.
The most problematic situations occur when the meeting takes place at a
location open to the public at a privately owned site. How can one distinguish these
private spaces closed to the public where freedom of assembly can not be exercised?
Being that the Brazilian civil law does not define the object of the "private asset open
to the public," 47 we should seek criteria and indications from the constitutional text
itself. One possibility is in the concurrence analysis - no collision, 48 for it does not
measure the actual weight of fundamental rights - including the rights to freedom of
assembly and to the inviolability of the residence. The Brazilian civil law and
precedent follow an ample interpretation of the right to inviolability of the residence:
not only the place of private residence, but also the workplace are protected under
the incidence of the fundamental right to the inviolability of the residence. 49 In the
abstract sense, the incidence of this constitutional protection supersedes the right to
freedom of assembly. Only when the actual and specific characteristics of the
workplace indicate the need to reverse that presumption is only when the meeting in
private places can be admitted.
47
The art. 98 of the Brazilian Civil Code is content with the distinction between public and private
assets.
48
The distinction between these concepts is found in: Dimoulis / Martins, General theory of
fundamental, 3rd ed rights, São Paulo.: RT 2011, pp. 160 ff. Similarly, in the German doctrine:
Schlink / Pieroth, Staatsrecht II: Grundrecht, p. 76 ff; Lothar H. Fohmann, Konkurrenzen Kollisionen
und im Grundrechtsbereicht, EuGRZ, 1985, pp. 52 to 54.
49
In this sense, see the arts. 70 and 72 of the Civil Code and the judgment of the Writ of Mandamus
of 23.595/DF , reporter Minister Celso de Melo, published in the Informativo de jurisprudência
185/2000.
19
The strike movement that occupies a bank or a factory might be one of these
examples, but here indeed a concrete collision of fundamental rights can take place.50
In such cases, the prohibition of the exercise of a fundamental right is the protection
of another fundamental right. 51 The German constitutional doctrine calls for
protection via intervention (Schutz durch Eingriff). 52 In them, the technique of
proportionality and the prohibition of excess offer doctrinal parameters to the
practical assessment of the legitimacy of the restriction on the fundamental right
affected.
Whereas the cases involving the occupation of private shopping centers, 53 or
demonstrations locations of the public domain whose administration has been
granted to the private sector,
54
for example, contains a specificity that makes
assumptions about the legitimacy of the meeting convened to occur within it: in both
cases, the private activity presupposes the movement of the public in places of the
private domain. The opening of these centers to the coexistence of people with
different democratic interests and ideals is essential and inseparable from the activity
itself from the holder of the private asset. In fact, the company that offers such
services and facilities to the public, profits from the movement of the people inside.
The rental of spaces in shopping centers and billboards in airports is in fact measured
in terms of the purchasing power and the amount of people who circulate these
locations. It is nonsense to admit that the private person may enjoy the benefit
brought by the movement of the public in situations of normality without assuming
the burden directly related to this fact, that might arise in situations of abnormality,
in which the public expresses its criticism and its discontents. The public is one and
can not be separated into "good public" and "bad public" for private business. And
the demonstrations of discontent are part of the democratic game and the relationship
50
This conflict of fundamental rights is admitted by the precedent of the Supreme Court, to the extent
that there is Binding Precedent (n. 23) regulating the jurisdiction to resolve the dispute.
51
This is about a triangular relationship involving two opposing rights holders, where the fundamental
right serves as a parameter for gauging the legitimacy of state's regulation of the conflict. A recent
German constitutional doctrine considers that this is a typical situation in which fundamental rights
arise as reflective rights, since they are incidents in cases of relations already ordered as rights. In
this respect, see: Ralf Poscher, Grundrechte als Abwehrrechte: reflexive Regelung rechtlich
geordneter Freiheit, Tübingen: Mohr Siebeck, 2003.
52
In this regard and pointing out the difficulties, especially those related to the relationship of this
object with the constitutional system of legal statutes, see.: Wahl / Masing, Schutz durch Eingriff,
Juristen Zeitung (JZ), 1990, 553-563.
53
In early 2014, Brazil has witnessed a surge of cases in which "demonstrations" were convened to
occur inside Shopping Centers. These meetings came to be called "rolezinhos."
54
This was the situation faced by the German Constitutional Court in Fraport (BVerfGE 128, 226).
20
that all, some more and some less, have with the public. The private owner has the
freedom to pursue the activity that best suits the respective objectives or provides
greater profit. If the respective choice is to work with the movement of the public,
the respective responsibility for this choice must be taken. Regarding the right to
protest, the private owner should allow for peaceful assembly on the respective
property.
Concluding Remarks
We presented in this study two different perspectives on the right of assembly:
the German and the Brazilian. We noted the points of contact between them, while
also identifying how they differ. The authoritarian past is the common horizon that
brings the two countries together. Both know that the dictatorship feeds on the
control of the conscience and expression. And they know that to impede the exercise
of the right of assembly is one of the most perverse forms of this control. Therefore,
the current precedent, both for the Brazilian as well as for the German, has been very
careful to analyze the constitutional or statutory limits of the right to peaceful
demonstration. And this is where a point of divergence lies: the legislative regulation
and the great number of judgments were the elements that gave rise, in Germany, to
an intense doctrinal and public debate about the characteristics and form of the
legitimate exercise of the right of assembly. Today Brazil is faced with a picture of
proliferation of demonstrations and the prospect of creating a new regulatory basis
for regulating this basic right. Observing the international experience and clearly
displaying the dogmatic contours of the right of assembly may be the first step of
many in the construction of a model of democracy built on freedom of social
expression. In this paper, we seek to contribute to that step being taken.
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