FIFTH SECTION

CASE OF SCHWABE AND M.G. v. GERMANY

(Applications nos. 8080/08 and 8577/08)

JUDGMENT

STRASBOURG

1 December 2011

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention.
It may be subject to editorial revision.

In the case of Schwabe and M.G. v. Germany,
The European Court of Human Rights (Fifth Section), sitting as a Chamber composed
of:
Dean Spielmann, President,
Elisabet Fura,
Karel Jungwiert,
Boštjan M. Zupančič,
Mark Villiger,
Ganna Yudkivska,
Angelika Nußberger, judges,
and Claudia Westerdiek, Section Registrar,
Having deliberated in private on 8 November 2011,
Delivers the following judgment, which was adopte d on that date:
PROCEDURE
1. The cases originated in two applications (nos. 8080/08 and 8577/08) against the Federal
Republic of Germany lodged with the Court under Article 34 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two
German nationals, Mr Sven Schwabe (“the first applicant”) and Mr M.G. (“the second
applicant”), on 8 February 2008 and 11 February 2008 respectively. On 23 August 2010
the President of the Chamber acceded to the second applicant’s request dated 7 July 2010
not to have his identity disclosed (Rule 47 § 3 of the Rules of Court).
2. The first applicant was initially represented before the Court by Ms K. Ullmann, a
lawyer pract ising in Hamburg, and subsequently by Ms A. Luczak, a lawyer practising in
Berlin. The second applicant was also represented before the Court by Ms A. Luczak.
The German Government (“the Government”) were represented by their Agent, Mrs A.
Wittling Vogel, Ministerialdirigentin , and by their permanent Deputy Agent, Mr H. -J.
Behrens, Ministerialrat , of the Federal Ministry of Justice .
3. The applicants alleged, in particular, that their detention for preventive purposes
during a G8 summit, which had prevented them from participating in demonstrations, had
violated Articles 5 § 1, 10 and 11 of the Convention.
4. On 30 November 2009 the President of the Fifth Section decided to give notice of the
applications to the Government. It was also decided to rule on the ad missibility and
merits of the applications at the same time (Article 29 § 1).

THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
5. The applicants were both born in 1985 and live in Bad Bevensen and Berlin respectively.
A. Background to the case
1. The authorities’ assessment of the security situation and the security measures
taken during the G8 summit
6. From 6 to 8 June 2007 a G8 summit of Heads of State and Government was held in
Heiligendamm, in the vicinity of Rostock.
7. The police considered that there was a threat of terrorist attacks, in particular by Islamist
terrorists, during the summit. Furthermore, having regard to the experience of previous
G8 summits, they considered that there was a risk of property damage by left -wing
extremists. The lat ter were found to have planned to protest against, block and sabotage
the summit.
8. The police estimated that there would be around 25,000 participants at an international
demonstration in Rostock on 2 June 2007, 2,500 of whom were ready to use violence,
an d that there would be around 15,000 demonstrators present during the summit, 1,500 of
whom would be ready to use violence.
9. On 2 June 2007 serious riots broke out in Rostock city centre, involving well -organised
violent demonstrators, forming what has been termed a “black block”, who attacked the
police with stones and baseball bats. 400 policemen were injured.
10 . According to a press release of the Mecklenburg Western -Pomerania Ministry of the
Interior dated 28 June 2007, some 17,000 police officers had been involved in ensuring
that the G8 summit could be held without disruption and in protecting its participants
from attacks by terrorists or anti globalisation demonstrators prepared to use violence.
During the summit, 1,112 people had been detained in holdi ng pens for prisoners
(Gefangenensammelstellen ). The courts had been asked to confirm the detainees’
detention in 628 cases; they had done so in respect of 113 individuals.
2. The applicants’ arrest
11 . In June 2007 the applicants drove to Rostock in order to participate in demonstrations
against the G8 summit in Heiligendamm.
12 . On 3 June 2007 at around 10.15 p.m. the applicants’ identity was checked and established
by the police in a car park in front of Waldeck prison, where they were standing next to a
van in the company of seven other people. No other people were present in the car park.
The police submitted that the first applicant had physically resisted the identity check. He

had allegedly hit the ar ms of a policeman who had attempted to determine the second
applicant’s identity. He had also kicked another policeman’s shin in order to prevent his
own identity from being determined. The applicants submitted that the second applicant
had himself been hi t by the police, although he had already been holding his identity card
in his hand ready for inspection. The police searched the van and found folded -up
banners bearing the inscriptions “freedom for all prisoners” and “free all now”. The
applicants were a rrested. It appears that the banners found were seized.
B. The proceedings at issue
1. The proceedings before the District Court
13 . In two separate decisions taken on 4 June 2007 at 4.20 a.m. and at 4.00 a.m., respectively,
the Rostock District Court, having examined both applicants in person, ordered the
applicants’ detention ( amtlicher Gewahrsam ) until 9 June 2007, 12.00 a.m. at the latest.
14 . Relying on sections 55(1) paragraph 2(a) and 56(5) of the Mecklenburg Western –
Pomerania Public Security and Order Act (Gesetz über die öffentliche Sicherheit und
Ordnung in Mecklenburg -Vorpommern – “the PSOA”, see paragraphs 37 -38 below), the
District Court found that the applicants’ detention had been lawful in order to prevent the
imminent commission or continuation of a criminal offence. As the applicants had been
found in front of Waldeck prison in a van in which objects calling for the liberation of
prisoners had been discovered, it had to be assumed that they had been about to commit
or aid and abet a criminal offen ce.
15 . The District Court further found that the applicants’ continued detention was
indispensable and proportionate. At the hearing, both applicants had given the impression
that they had intended to proceed with committing an offence. As they had not made any
statements or submissions on the merits, they had been unable to justify their conduct.
2. The proceedings before the Regional Court
16 . On 4 June 2007 the Rostock Regional Court, in two separate decisions, dismissed appeals
lodged by the first and second applicants ( sofortige Beschwerde ).
17 . The Regional Court confirmed the District Court’s finding that the applicants’ arrest had
been lawful under section 55(1) paragraph 2 (a) of the PSOA. As the applicants had been
found in the vicinity of Waldeck prison i n possession of banners with an imperative
wording (“free”), they had intended to incite others to free prisoners and that constituted
an offence. Moreover, having regard to the material in the case file, the first applicant had
obstructed police officers in the exercise of their duties. The second applicant, for his part,
had been charged with dangerous interference with rail traffic in 2002 in connection with
the transport of “castor 1” containers. The Regional Court further agreed with the District
Court’s reasoning to the effect that the continuation of the applicants’ detention was
indispensable and proportionate.

3. The proceedings before the Court of Appeal
18 . On 7 Jun e 2007 the Rostock Court of Appeal dismissed further appeals ( sofortige weitere
Beschwerde ) subsequently brought by the applicants. In their appeals, the applicants,
represented by counsel, had submitted that the slogans on the banners had been addressed
to the police and the authorities, urging them to end the numerous arrests and detentions
of demonstrators. They had not been meant to call upon others to attack prisons and to
free prisoners by force, an interpretation which had to be considered as far -fet ched, given
that there had not been any violent liberation of detainees from German prisons in recent
decades.
19 . The Court of Appeal upheld the lower courts’ finding that the requirements of section
55(1) paragraph 2(a) of the PSOA had been met. The applica nts’ arrest and continued
detention was indispensible in order to avert a danger to public security and order. The
banner “free all now”, together with the banner “freedom for all prisoners”, could be
understood as an incitement to liberate prisoners, an o ffence under Article 120 of the
Criminal Code (see paragraph 41 below). The police had been entitled to assume that the
applicants had intended to drive to Rostock and display the banners at the partly violent
demonstrations there. As a result, a crowd whi ch had been ready to use violence might
have been incited to liberate people who had been arrested and detained.
20 . In respect of the second applicant, the requirements of section 55(1) paragraph 2(c) of the
PSOA (see paragraph 37 below) had also been met. The second applicant had been
arrested in 2002 in comparable circumstances on suspicion of dangerous interference
with rail traffic in connection with the transport of castor containers. It was irrelevant
whether he had subsequently been convicte d.
21 . The applicants had not contested the courts’ conclusions; they had not made any
statements or submissions on the merits. The police had been obliged to take into
consideration the general security situation in Rostock on 2 and 3 June 2007. On those
day s, very violent clashes between demonstrators and the police had taken place in the
city centre. Moreover, the applicants had proved to be prone to violence themselves by
attacking police officers.
22 . The Court of Appeal further considered that the applicant s’ right to freedom of
expression under the Basic Law did not warrant a different conclusion. It accepted that
the slogans on the banners could be understood in different ways. However, in the tense
situation in and around Rostock the police had been autho rised to prevent ambiguous
declarations which could have lead to a risk to public security and order.
23 . Furthermore, the duration of the applicants’ detention was proportionate. According to a
report by the Rostock police of 6 June 2007, between 6,000 and 1 0,000 anti -globalisation
activists, some of whom were very violent, were moving towards Heiligendamm and
were calling for an “attack on the embankment”. It could not be excluded that the
applicants would have participated in those demonstrations with the b anners and would
thus have incited other demonstrators to liberate prisoners.

4. The proceedings before the Federal Constitutional Court
24 . On 6 June 2007 both applicants lodged a constitutional complaint with the Federal
Constitutional Court and applied for an interim injunction ordering their immediate
release.
25 . The applicants complained that their detention had violated, in particular, their right to
liberty and their right to freedom of expression. The second applicant further submitted
that his detention had been in breach of his right to freedom of assembly. Both applicants
argued that it had been far -fetched to interpret the slogans on the banners as inciting other
demonstrators to attack prisons and to liberate prisoners. The banners had been addressed
to the police, who had already arrested many anti globalisation activists, to the
participants at the G8 summit and to the public in general, and had not advocated acts of
violence. The applicants further stressed that they did not have any previous convi ctions.
The second applicant submitted, in particular, that the criminal proceedings against him
for dangerous interference with rail traffic had been discontinued.
26 . These complaints were initially registered under file nos. 2 BvR 1195/07 and 2 BvR
1196/07 respectively. On 8 June 2007 the judge rapporteur at the Federal Constitutional
Court informed the applicants’ representatives by telephone that the Federal
Constitutional Court would not take a decision on the applicants’ request for interim
measures.
27 . On 9 June 2007 at 12.00 a.m. the applicants were released from prison.
28 . The applicants’ constitutional complaints of 6 June 2007 were then considered as having
become devoid of purpose following their release.
29 . On 6 July 2007 the applicants asked the Consti tutional Court to find that their detention
had been unconstitutional, despite the fact that they had been released in the meantime.
Thereupon, their constitutional complaints were registered anew (file nos. 2 BvR 1521/07
and 2 BvR 1520/07 respectively).
30 . On 6 August 2007 the Federal Constitutional Court, in two separate decisions, declined to
consider the first and second applicants’ constitutional complaints, without giving
reasons (file nos. 2 BvR 1521/07 and 2 BvR 1520/07 respectively).
31 . The decision was served on the first applicant’s counsel on 14 August 2007 and on the
second applicant’s counsel on 13 August 2007.
C. Subsequent developments
32 . The criminal proceedings instituted against the first applicant for having obstructed
public off icers in the exercise of their duties ( Widerstand gegen Vollstreckungsbeamte ) in
the course of the identity check on 3 June 2007 were discontinued, in exchange for the

first applicant paying 200 euros (EUR). The criminal proceedings against the second
appl icant for the same offence were discontinued on grounds of insignificance.
33 . The applicants submitted that one of the police officers involved in their arrest had later
been convicted of causing bodily harm while exercising public office in relation to a
different matter. They submitted that the proceedings were still pending before the
appellate court. The Government did not comment on that point.
34 . No criminal proceedings were brought against the applicants for having incited others to
free prisoners.
35 . On 2 0 December 2007 the Rostock Court of Appeal dismissed the applicants’ complaints
of a violation of their right to be heard.
36 . On 1 May 2008 the Federal Constitutional Court declined to consider the first applicant’s
fresh constitutional complaint (file no. 2 BvR 538/08) and on 3 May 2008 that court
declined to consider the second applicant’s fresh constitutional complaint (file no. 2 BvR
164/08). In their complaints, the applicants had relied, in particular, on their rights to
liberty, to freedom of expressi on and to freedom of assembly.
II. RELEVANT DOMESTIC LAW
A. The Mecklenburg Western -Pomerania Public Security and Order Act (“the
PSOA”)
37 . Section 55(1) of the PSOA, in so far as relevant, provides:
“A person may only be detained if:
1. … ;
2. this is indispensable in order to prevent the imminent commission or continuation of a criminal
offence; the assumption that a person will commit or aid and abet such an offence may be based, in
particular, on the fact that,
(a) he / she has announced or i ncited the commission of the offence or carries banners or other
items containing such incitement;
…
(c) he / she has been apprehended in the past on comparable grounds as a person involved in the
commission of offences, and if facts warrant the conclusi on that a repetition of this conduct is to be
expected …”
38 . Section 56(5) of the PSOA provides that if the police take a person into custody, they
must immediately obtain a judicial decision on the lawfulness and continuation of the
detention. The judicial decision must set a maximum duration of detention, which may
not exceed ten days in cases governed by section 55(1) paragraph 2. The District Court in
the district in which the person concerned was arrested has jurisdiction to take the
decision.

39 . Under se ction 52 of the PSOA, the authorities may order a person to leave a place or
prohibit a person from going to a specific place in order to avert a real danger
(Platzverweisung ). If the facts warrant the conclusion that the person will commit an
offence in a specific area, that person may be prohibited from entering that area for up to
ten weeks.
40 . Under section 61(1) of the PSOA, an item may only be seized in order to avert an
imminent danger to public security or order (paragraph 1) or if the facts warrant t he
conclusion that it might be used in order to commit a criminal or regulatory offence
(paragraph 4).
B. The Criminal Code
41 . Section 120(1) of the Criminal Code provides that whoever frees a prisoner or incites or
helps him to escape shall be punished with imprisonment of up to three years or a fine.
Subsection 3 of section 120 provides that an attempt shall be punishable.
C. The Code of Criminal Procedure
42 . Sections 112 et seq. of the Code of Criminal Procedure concern pre trial detention.
Pursuant to S ection 112(1) of the Code, a defendant may be remanded in custody if there
is a strong suspicion that he has committed a criminal offence and if there are grounds for
arresting him. It may not be ordered if it is disproportionate to the importance of the c ase
and to the penalty or measure of correction and prevention expected to be imposed.
THE LAW
I. JOINDER OF THE APPLICATIONS
43 . Given that the present two applications concern two sets of proceedings in which the
same subject matter – namely, the applicants ’ detention for preventive purposes during
the 2007 G8 summit in Heiligendamm – was at issue, the Court decides that the
applications shall be joined (Rule 42 § 1 of the Rules of Court).
II. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION
44 . The applicants complained that their detention for preventive purposes during the G8
summit had violated Article 5 § 1 of the Convention, which, in so far as relevant, reads as
follows:
“Everyone has the right to liberty and security of person. No one shall b e deprived of his liberty save
in the following cases and in accordance with a procedure prescribed by law:
(a) the lawful detention of a person after conviction by a competent court;

(b) the lawful arrest or detention of a person for non -compliance with t he lawful order of a court or
in order to secure the fulfilment of any obligation prescribed by law;
(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the
competent legal authority on reasonable suspicion of hav ing committed an offence or when it is
reasonably considered necessary to prevent his committing an offence or fleeing after having done
so; …”
45 . The Government contested that argument.
A. Admissibility
46 . The Government took the view that the applicants had failed to exhaust domestic
remedies as required by Article 35 § 1 of the Convention. They had not brought an action
for compensation for their allegedly illegal detention under Article 5 § 5 of the
Convention before the German courts prior to lodging thei r applications with the Court.
The Government conceded that the applicants had utilised all existing remedies
concerning their detention. Their primary aim – to obtain their release from prison – had,
however, become devoid of purpose after their release o n 9 June 2007. Afterwards, they
could only have obtained compensation from the State.
47 . The applicants contested that view. They had complained that their detention had
breached their fundamental rights, both in the proceedings before the Rostock courts
con cerning the lawfulness of their detention and before the Federal Constitutional Court.
Proceedings for damages in the civil courts would not have had a sufficiently wide scope
and would not have been an effective remedy that could have been used to obtain a
speedy decision on the lawfulness of their detention and to obtain their release if the
detention was not lawful. Moreover, bringing a compensation claim after the detention
had been considered lawful by the Rostock courts in the proceedings at issue wou ld not
have had any prospects of success. There was not a single case in which the civil courts,
in compensation proceedings, had not followed a previous ruling of the courts deciding
on the lawfulness of a person’s detention. In these circumstances, the a pplicants had not
been obliged to use another remedy in addition to the proceedings contesting the
lawfulness of their detention that they had brought.
48 . The Court reiterates that the rule of exhaustion of domestic remedies referred to in Article
35 § 1 of the Convention obliges applicants to first use the remedies that are normally
available and sufficient in the domestic legal system to enable them to obtain redress for
the breaches alleged (see, inter alia , Akdivar and Others v. Turkey , 16 September 1996, §
66, Reports of Judgments and Decisions 1996 IV; and Aksoy v. Turkey , 18 December
1996, § 52, Reports 1996 -VI).
49 . Under the Convention organs’ well -established case -law, where lawfulness of detention
is concerned, an action for damages against the State i s not a remedy which has to be
exhausted, because the right to have the lawfulness of detention examined by a court and
the right to obtain compensation for any deprivation of liberty incompatible with Article
5 are two separate rights (see, inter alia , Wł och v. Poland , no. 27785/95, § 90, ECHR
2000 XI; Belchev v. Bulgaria (dec.), no. 39270/98, 6 February 2003; and Khadisov and

Tsechoyev v. Russia , no. 21519/02, § 151, 5 February 2009, with further references).
Paragraph 1 of Article 5 of the Convention cov ers the former right and paragraph 5 of
Article 5 the latter ( Khadisov and Tsechoyev , cited above, § 151).
50 . The Court notes that the applicants complained before the Court that their detention for
preventive purposes during a G8 summit had violated Article 5 § 1 and that they had
previously contested the lawfulness of the detention order before all competent domestic
courts. Having regard to its case -law, they thereby exhausted domestic remedies for the
purposes of their complaint under Article 5 § 1. The G overnment’s objection of non
exhaustion must therefore be dismissed.
51 . The Court further notes that this complaint is not manifestly ill founded within the
meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible
on any other grounds. It must therefore be declared admissible.
B. Merits
1. The parties’ submissions
(a) The applicants
52 . The applicants argued that their detention from 3 to 9 June 2007 had violated Article 5 §
1 of the Convention. It had not been justified under any of the sub -paragraphs of that
provision.
53 . The applicants submitted, in particular, that their detention had not been justified under
sub -paragraph (c) of Article 5 § 1, as that provision did not authorise a purely preventive
deprivation of liberty. They had not been detained in connection with criminal
proceedings, as required by that provision as interpreted in the Court’s case -law (they
referred, inter alia , to Ječius v. Lithuania , no. 34578/97, § 50, ECHR 2000 IX). This was
proven by the fact that their detention had not been based on section 112 of the Code of
Criminal Procedure, which concerned remand in custody (see paragraph 42 above). On
the contrary, the courts had based their det ention on sections 55 and 56 of the
Mecklenburg Western -Pomerania Public Security and Order Act (“the PSOA”), which
governed detention for preventive purposes without any link to criminal proceedings.
54 . Moreover, the applicants argued that the aim of their detention had not been to bring
them promptly before a judge and to try them for potential, future offences, as required
by Article 5 § 3, read in conjunction with Article 5 § 1 (c). Nor could their detention have
been reasonably considered necessary to pr event their committing an offence under the
second alternative of Article 5 § 1 (c). Their potential offences had not been sufficiently
outlined with a reasonable degree of specificity as regards, in particular, the place and
time of their commission and t heir victims, as required by the Court’s case -law (they
cited, inter alia , M. v. Germany , no. 19359/04, § 102, 17 December 2009).

55 . The applicants further submitted that their detention had not been justified under sub –
paragraph (b) of Article 5 § 1 either. There had not been any court order that the
applicants had failed to comply with. There had also not been any obligation incumbent
on them which they had not fulfilled. Even if they had displayed the banners seized in the
van, they would not have committe d an offence.
56 . In the applicants’ submission, their detention had also not met the requirements of sub –
paragraph (a) of Article 5 § 1 for lack of a “conviction”.
57 . Furthermore, in the applicants’ view, their detention had not been “lawful” as required by
Ar ticle 5 § 1. Section 55(1) of the PSOA, on which their detention had been based, had
not been sufficiently precise so as to make it foreseeable to them that they faced detention
for their conduct. Furthermore, that provision had not been applied correctly. There had
been nothing to indicate that the applicants had been about to commit a specific offence
at a given time and place. Even assuming, contrary to the fact that the applicants had
themselves been hit by the police officers, that the first applicant had hit the arm and
kicked the shin of a police officer, this had not warranted the conclusion that both
applicants had been about to commit another completely different offence, a liberation of
prisoners by force. In any event, even if the applicants had displayed the banners, this
would not have been illegal. Their inscriptions had not advocated violence or harm to
anyone. The applicants stressed in that connection that their lawyers had explained the
different meaning attributable to the slogans on the b anners, both at the hearing before
the Regional Court and in their written statement of further appeal.
58 . Moreover, the applicants’ detention had also not been indispensable to prevent the
imminent liberation of prisoners by force or an incitement of others to do so. There had
been nothing to indicate that the applicants, who had not had any tools on them that could
have been used to free prisoners, had been about to attack Waldeck prison, which was a
high -security institution. There had not been any crowd o f people present in the car park
who could have been incited to liberate detainees in that prison by force. The assumption
that the applicants might have displayed the banners at an unspecified demonstration,
possibly attended by individuals prepared to us e violence, could not be considered
sufficient to have assumed the imminent commission of an offence, as required by
section 55(1) paragraph 2 of the PSOA. The applicants further submitted that, contrary to
the Government’s submissions, none of the domesti c courts had suggested that the
applicants had intended to liberate prisoners by force themselves. The courts had only
stated that there was reason to believe that the applicants had intended to incite others to
do so.
59 . The applicants’ detention had also b een arbitrary, in that it had not been necessary to
achieve the aim pursued. The police could simply have ordered the applicants not to enter
the area in which the G8 demonstrations had taken place under section 52 of the PSOA
(see paragraph 39 above). Alt ernatively, they could also have seized the banners under
section 61 of the PSOA (see paragraph 40 above). The applicants would then have been
aware that the police considered the slogans illegal. In view of the chilling effect of such
a police measure, it ought not to be assumed that the applicants would have reproduced

and used similar banners, as was claimed by the Government. As there had not been
further violent demonstrations during the whole week of the G8 summit, the applicants’
detention for six da ys had been disproportionate. They further noted in that connection
that the seven Belorussian individuals also present in the van when the applicants had
been arrested and to whom the banners could also have belonged had not been arrested
and detained.
(b) The Government
60 . The Government took the view that the applicants’ detention had complied with Article 5
§ 1 of the Convention. It had been justified under the second alternative of sub -paragraph
(c) of Article 5 § 1 as detention reasonably considered ne cessary to prevent the applicants
from committing an offence.
61 . The Government contested the applicants’ assertion that detention for preventive
purposes was only authorised under Article 5 § 1 (c) of the Convention in connection
with criminal proceedings. The applicants’ detention had not been effected in connection
with criminal proceedings and their preparatory acts undertaken to free prisoners by force
or to incite others to do so had not been punishable. Under the wording of Article 5 § 1
(c), second al ternative, detention for preventive purposes was justified if it was necessary
to prevent a person from committing a concrete and specific offence, which, if carried out,
would entail criminal proceedings. It was not necessary for the person concerned to h ave
already committed an offence; the second alternative of Article 5 § 1 (c) would otherwise
be superfluous in addition to the first alternative of that provision. Article 5 § 3 of the
Convention had to be interpreted in the context of Article 5 § 1 (c) a s requiring a prompt
examination of the lawfulness of the detention of the person concerned: a criminal trial
was not necessary, as the person was not charged with a criminal offence.
62 . The Government further argued that in Germany such detention for preven tive purposes
was necessary, as acts preparing criminal offences were, as a rule, not yet punishable,
contrary to the criminal law applicable in other Contracting Parties to the Convention.
This served to encourage potential offenders to give up their plan s to commit an offence.
Without the possibility to detain persons for preventive purposes, the State would
therefore be unable to comply with its positive obligation to protect its citizens from
impending criminal offences – for instance, in the context of the transport of castor
containers or football hooligans setting up an arranged brawl.
63 . Referring to the case of Guzzardi v. Italy (6 November 1980, § 102, Series A no. 39), the
Government submitted that the applicants’ detention had been justified under the second
alternative of sub -paragraph (c) of Article 5 § 1. There had been specific facts warranting
the conclusion that it had been necessary to prevent them from committing an offence in
the imminent future. The applicants had been found by the police standing next to a van
in a car park in front of Waldeck prison in the company of seven other people one day
after violent riots in Rostock city centre. The first applicant had violently resisted the
police’s identity check. The police had found folded -up banners bearing the inscriptions
“freedom for all prisoners” and “free all now” in the van. In these circumstances, it had
been reasonable for the police to assume that the applicants had been about to join the

ongoing demonstrations in Rostock and to disp lay the banners to demonstrators, some of
whom had been violent. This would have amounted to an incitement of others to free
prisoners, punishable under Article 120 of the Criminal Code.
64 . The Government submitted that the wording of the banner bearing the inscription “free
all now” could have reasonably been interpreted as a call upon other demonstrators to
violently free prisoners, rather than as a call upon the State authorities to order their
release. The first applicant had violently resisted the identi ty check and proceedings had
previously been brought against the second applicant for dangerous interference with rail
traffic arising in the context of the transport of castor containers. Therefore, it had to be
assumed that the applicants had wanted to d isturb the summit by violent means and had
wanted to incite other violent demonstrators present in Rostock to free prisoners held in
the holding pens for prisoners which had been set up in the city centre or individuals
arrested during a demonstration by f orce. The applicants had not explained in the
proceedings before the domestic courts that the inscriptions on their banners had had a
different meaning.
65 . The Government further argued that the applicants’ detention had also been justified
under sub -paragra ph (b) of Article 5 § 1. It had been necessary to secure the fulfilment of
an obligation prescribed by law. Having regard to the circumstances of the case, it was
certain that the applicants would not have fulfilled their legal duty to comply with an
order to report to a police station in their town of residence at regular intervals
(Meldeauflage ) or with an order not to enter a particular area ( Platzverweis ). The
applicants had travelled several hundred kilometres in order to reach the venue of the G8
summ it and had resisted the identity check. They had thus demonstrated that they would
not follow orders made by the police. Having regard to the exceptional situation at hand,
it had not been necessary to wait until the applicants had in fact breached such an order.
Bearing in mind the great number of demonstrators present, it would not have been
possible to prevent the applicants from committing offences upon their doing so.
Therefore, compliance with their legal duties to respect such an order and the preven tion
of specific offences could only have been secured by their instantaneous detention.
66 . In the Government’s submission, following the decision of the District Court ordering the
applicants’ detention, their deprivation of liberty had also been justified under sub –
paragraph (a) of Article 5 § 1. They argued that the term “conviction” in that provision,
contrary to the Court’s case -law (they referred, inter alia , to M. v. Germany , no.
19359/04, §§ 87, 95, 17 December 2009), did not only comprise criminal co nvictions, but
also court decisions ordering detention for preventive purposes.
67 . The Government further argued that the applicants’ detention had been lawful and in
accordance with a procedure prescribed by law. It had been based on section 55(1)
paragraph 2 (a) of the PSOA. The detention of the second applicant, who had been
arrested in 2002 on suspicion of dangerous interference with rail traffic, had been based,
in addition, on section 55(1) paragraph 2 (c) of the PSOA.

68 . In the Government’s view, the app licants’ detention had also been proportionate and not
arbitrary. There had not been any less intrusive means available to prevent them from
freeing prisoners by force or inciting others to do so during the whole duration of the G8
summit. In particular, a s shown above (see paragraph 65), obliging them to report to a
police station outside the G8 area at regular intervals would not have been sufficient to
prevent them committing an offence. For the same reasons set out above, an order made
against them not to enter a particular area – that of the G8 summit – had not been suitable
to avert the offence. The same applied to the seizure of the banners, which the applicants
could have reproduced.
2. The Court’s assessment
(a) Recapitulation of the relevant princ iples
69 . The Court reiterates that Article 5 § 1 sub -paragraphs (a) to (f) contain an exhaustive list
of permissible grounds for deprivation of liberty, and no deprivation of liberty will be
lawful unless it falls within one of those grounds (see, inter alia , Guzzardi v. Italy , 6
November 1980, § 96, Series A no. 39; Witold Litwa v. Poland , no. 26629/95, § 49,
ECHR 2000 III; and Saadi v. the United Kingdom [GC], no. 13229/03, § 43, ECHR
2008 …).
70 . Under the second alternative of sub -paragraph (c) of Article 5 § 1, the detention of a
person may be justified “when it is reasonably considered necessary to prevent his
committing an offence”. That ground of detention does no more than afford the
Contracting States a means of preventing a concrete and specific offen ce (see Guzzardi ,
cited above, § 102; Ciulla v. Italy , 22 February 1989, § 40, Series A no. 148; and
Shimovolos v. Russia , no. 30194/09 , § 54, 21 June 2011 (not yet final) ) as regards, in
particular, the place and time of its commission and its victim(s) (see M. v. Germany , no.
19359/04, §§ 89, 102, 17 December 2009). This can be seen both from the use of the
singular (“an offence”) and from the object of Article 5, namely to ensure that no one
should be dispossessed of his liberty in an arbitrary fashion (see Guzzardi , ibid.; and M. v.
Germany , cited above, § 89).
71 . Under the Court’s well -established case -law, detention to prevent a person from
committing an offence must, in addition, be “effected for the purpose of bringing him
before the competent legal authority”, a requirement which qualifies every category of
detention referred to in Article 5 § 1 (c) (see Lawless v. Ireland (no. 3) , 1 July 1961, pp.
51 -53, § 14, Series A no. 3, and, mutatis mutandis , Ječius v. Lithuania , no. 34578/97, §§
50 -51, ECHR 2000 IX, and Engel and Others v. the Netherlands , 8 June 1976, § 69,
Series A no. 22).
72 . Sub -paragraph (c) thus permits deprivation of liberty only in connection with criminal
proceedings (see Ječius , cited above, § 50). It go verns pre -trial detention (see Ciulla ,
cited above, §§ 38 -40). This is apparent from its wording, which must be read in
conjunction both with sub -paragraph (a) and with paragraph 3, which form a whole with
it (see, inter alia , Ciulla , cited above, § 38; an d Epple v. Germany , no. 77909/01, § 35, 24
March 2005). Paragraph 3 of Article 5 § 1 stipulates that everyone arrested or detained in

accordance with the provisions of paragraph 1 (c) of Article 5 shall be brought promptly
before a judge – in any of the ci rcumstances contemplated by the provisions of that
paragraph – and shall be entitled to trial within a reasonable time (see also Lawless , cited
above, pp. 51 -53, § 14).
73 . Furthermore, detention is authorised under the second limb of sub paragraph (b) of
Art icle 5 § 1 to “secure the fulfilment of any obligation prescribed by law”. It concerns
cases where the law permits the detention of a person to compel him to fulfil a real and
specific obligation already incumbent on him, and which he has until then failed to
satisfy ( Engel and Others , cited above, § 69; Guzzardi , cited above, § 101; Ciulla , cited
above, § 36; and Epple , cited above, § 37). The arrest and detention must be for the
purpose of securing the fulfilment of the obligation and not punitive in char acter (see
Gatt v. Malta , no. 28221/08, § 46, ECHR 2010 …). As soon as the relevant obligation has
been fulfilled, the basis for detention under Article 5 § 1 (b) ceases to exist ( Vasileva v.
Denmark , no. 52792/99, § 36, 25 September 2003; and Epple , cit ed above, § 37). It does
not justify, for example, administrative internment meant to compel a citizen to discharge
his general duty of obedience to the law ( Engel and Others , cited above, § 69). Finally, a
balance must be drawn between the importance in a democratic society of securing the
immediate fulfilment of the obligation in question, and the importance of the right to
liberty ( Vasileva , cited above, § 37; and Epple , cited above, § 37).
74 . For the purposes of sub -paragraph (a) of Article 5 § 1, the wor d “conviction”, having
regard to the French text (“ condamnation ”), has to be understood as signifying both a
finding of guilt after it has been established in accordance with the law that there has
been an offence (see Guzzardi , cited above, § 100), and th e imposition of a penalty or
other measure involving deprivation of liberty (see Van Droogenbroeck v. Belgium , 24
June 1982, § 35, Series A no. 50; and M. v. Germany , cited above, § 87).
(b) Application of these principles to the present case
75 . The Court is called upon to determine, first, whether the applicants’ detention under
section 55(1) paragraph 2 of the PSOA in order to prevent them from committing a
criminal offence fell within one of the permissible grounds for deprivation of liberty
listed in sub -paragraphs (a) to (f) of Article 5 § 1.
76 . The Court observes that in the Government’s submission, the applicants’ detention was
justified, in the first place, under sub paragraph (c) of Article 5 § 1. It further notes that
the applicants, by being in the po ssession of folded -up banners bearing the inscriptions
“freedom for all prisoners” and “free all now”, had not yet committed a criminal offence
and were subsequently never charged with having incited others to liberate prisoners by
force. This is uncontest ed between the parties. Their detention therefore falls to be
examined under the second alternative of Article 5 § 1 (c) as detention reasonably
considered necessary to prevent them committing an offence.
77 . In determining whether the offence that the author ities sought to prevent the applicants
from committing can be considered as sufficiently concrete and specific, as required by
the Court’s case -law in respect of, in particular, the place and time of its commission and

its victim(s) (see paragraph 70 above ), the Court observes that the domestic courts appear
to have diverged on the specific offence the applicants were about to commit. The
Rostock District and Regional Courts appear to have considered that the applicants, with
the help of the impugned banner s, had intended to incite others to free prisoners detained
in Waldeck prison by force (see paragraphs 14 and 17 above). This was inferred from the
applicants’ presence in the car park in front of that prison – in which, however, apart
from the seven passe ngers in the van, no other people were present (see paragraph 12
above). On the contrary, the Rostock Court of Appeal considered that the applicants had
intended to drive to Rostock and display the banners at the partly violent demonstrations
there and thu s incite the crowd present in Rostock to liberate prisoners by force (see
paragraph 19 above).
78 . In addition, in determining whether the applicants’ detention could be “reasonably
considered necessary” in order to prevent them from inciting others to libera te prisoners
by force, the Court cannot but note that the applicants were detained for some five and a
half days for preventive purposes and thus for a considerable time. Moreover, as was also
accepted by the Court of Appeal (see paragraph 22 above), the i nscriptions on the
banners could be understood in different ways. The applicants, represented by counsel in
the proceedings, had explained that the slogans had been addressed to the police and the
authorities, urging them to end the numerous detentions of demonstrators, and had not
been meant to call upon others to free prisoners by force. It is also uncontested that the
applicants had not themselves carried any instruments which could have served to
liberate prisoners violently. In these circumstances, the Court is not convinced that their
continuing detention could reasonably be considered necessary to prevent them from
committing a sufficiently concrete and specific offence. The Court is further not
convinced of the necessity of the applicants’ detention because it would, in any event,
have been sufficient to seize the banners in question in order to make them aware of
potential negative consequences and prevent them from inciting others – negligently – to
liberate prisoners.
79 . The Court further refers to i ts long -established case -law under which, in order to be
justified under Article 5 § 1 (c), the applicants’ detention must have been effected for the
purpose of bringing them before the competent legal authority in the course of their pre –
trial detention a nd aimed at committing them to a criminal trial (see paragraphs 71 -72
above). Having regard to its above finding that the applicants’ detention could not
reasonably be considered necessary in the circumstances of the present case, it does not,
however, con sider it necessary to respond to the parties’ detailed arguments on that point,
especially the Government’s arguments advocating a revision of the Court’s long –
standing case -law.
80 . Consequently, the applicants’ detention was not justified under sub paragraph (c) of
Article 5 § 1.
81 . The Court further notes that, in the Government’s submission, the applicants’ detention
was also justified under sub -paragraph (b) of Article 5 § 1 “in order to secure the
fulfilment of any obligation pr escribed by law”. They argued that the applicants would

neither have respected an order to report to a police station in their respective towns of
residence at regular intervals nor an order not to enter the area in which the G8 -related
demonstrations took place. It had therefore been justified to secure their compliance with
such an order by their detention. In this respect, the Court cannot but note that the police
in fact neither ordered the applicants to report to a police station in their town of
resid ence nor prohibited them from entering the area in which G8 -related demonstrations
took place. The applicants therefore cannot be considered to have been under an
“obligation prescribed by law”, for the purposes of Article 5 § 1 (b), to report to a police
station or to not enter the area of the G8 -related demonstrations and which they failed to
satisfy.
82 . The Court observes that the Government further argued that the applicants had been
detained in accordance with Article 5 § 1 (b) in order to secure the ful filment of their
obligation not to commit a specific offence – the incitement of others to liberate prisoners.
In this respect, the Court refers to its case -law, cited above, under which the “obligation
prescribed by law”, for the purposes of the said prov ision, must be real and specific,
already incumbent on the person concerned and which the person has until the time of
detention failed to satisfy (see paragraph 73). It notes that the applicants were detained
under section 55(1) paragraph 2 of the PSOA, w hich authorises detention if “this is
indispensable in order to prevent the imminent commission … of a criminal offence” (see
paragraph 37 above), such as an offence under section 120 of the Criminal Code. The
Court considers that the duty not to commit a criminal offence in the imminent future
cannot be considered as sufficiently concrete and specific, as defined in the Court’s case –
law, so as to fall under Article 5 § 1 (b), at least as long as there are not any specific
measures ordered which have not been complied with. It reiterates in that connection that
a wide interpretation of sub -paragraph (b) of Article 5 § 1 would entail consequences
incompatible with the notion of the rule of law, from which the whole Convention draws
its inspiration (see Enge l and Others , cited above, § 69). Moreover, the applicants cannot
be considered to have previously failed in their duty not to commit such an offence. The
applicants’ detention was therefore not covered by sub -paragraph (b) of Article 5 § 1
either.
83 . The Co urt further notes the Government’s argument that following the District Court’s
order authorising the applicants’ deprivation of liberty under section 55(1) paragraph 2 of
the PSOA, their detention was also justified under sub -paragraph (a) of Article 5 § 1.
They submitted that, under its wording, that provision had also covered court decisions
ordering detention for preventive purposes. The Court, however, refers to its well
established case -law stating that a “conviction”, having regard to the French text
(“condamnation ”), has to be understood as a finding of guilt of an offence (see paragraph
74 above). It observes that in the proceedings at issue, the domestic courts did not find
the applicants guilty of any criminal offence, but rather ordered their det ention in order to
prevent them from committing an offence in the future. Their detention thus did not fall
under sub -paragraph (a) of Article 5 § 1.

84 . The Court considers – and this is uncontested by the parties – that the applicants’
detention for prevent ive purposes was not justified under any of the other sub -paragraphs
of Article 5 § 1 either.
85 . The Court further takes note of the Government’s argument that without the possibility of
detaining individuals for preventive purposes, the State would be unabl e to comply with
its positive obligation to protect its citizens from impending criminal offences. In the case
at hand, however, even taking into account the general situation before and during the G8
summit, it has not been sufficiently demonstrated that a liberation of prisoners had been
imminent. Therefore, the commission of that offence could not justify an interference
with the right to liberty, especially as less intrusive measures could have been taken (see
paragraph 78 above). The Court reiterates t hat, in any event, the Convention obliges State
authorities to take reasonable steps within the scope of their powers to prevent criminal
offences of which they had or ought to have had knowledge. However, it does not permit
a State to protect individuals from criminal acts of a person by measures which are in
breach of that person’s Convention rights, in particular the right to liberty as guaranteed
by Article 5 § 1 (see Jendrowiak v. Germany , no. 30060/04 , §§ 37 -38, 14 April 2011 with
further references) and as at issue in the applicants’ case .
86 . There has accordingly been a violation of Article 5 § 1 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 5 § 5 OF THE CONVENTION
87 . Relying on Article 5 § 5 of the Convention, the first applicant further submitte d that a
claim for compensation in respect of damage caused by his unlawful detention had had
no prospects of success.
88 . The Court has examined the first applicant’s complaint as submitted by him. However,
having regard to all the material in its possession , the Court finds that, even assuming the
exhaustion of domestic remedies in all respects, the complaint does not disclose any
appearance of a violation of Article 5 § 5.
89 . It follows that this part of the application must be rejected as manifestly ill -foun ded,
pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
IV. ALLEGED VIOLATION OF ARTICLE 10 AND ARTICLE 11 OF THE
CONVENTION
90 . The applicants further argued that their detention had disproportionately interfered with
their right to freedom of expression guaranteed by Article 10 of the Convention and their
right to freedom of assembly under Article 11 of the Convention, as it had made it
impossible for them to participate and expre ss their views in demonstrations during the
G8 summit.
91 . Article 10 and Article 11 of the Convention, in so far as relevant, provide:

Article 10
“1. Everyone has the right to freedom of expression. This right shall include freedom to hold
opinions and to r eceive and impart information and ideas without interference by public authority and
regardless of frontiers. …
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject
to such formalities, conditions, restr ictions or penalties as are prescribed by law and are necessary in a
democratic society, in the interests of national security, territorial integrity or public safety, for the
prevention of disorder or crime, for the protection of health or morals, for the protection of the
reputation or rights of others, for preventing the disclosure of information received in confidence, or
for maintaining the authority and impartiality of the judiciary.”
Article 11
“1. Everyone has the right to freedom of peaceful assemb ly 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. …”
92 . The Government contested that argument.
A. Admissibility
93 . The Court notes that this complaint is not manifestl y ill -founded within the meaning of
Article 35 § 3 (a) of the Convention. Referring also to its findings above (see paragraphs
48 -50), it further notes that it is not inadmissible on any other grounds. It must therefore
be declared admissible.
B. Merits
1. The parties’ submissions
(a) The applicants
94 . The applicants argued that their detention had violated both their freedom of expression
under Article 10 of the Convention and their freedom of peaceful assembly under Article
11 of the Convention. The interference with those rights by their detention had not been
justified. It had not been “prescribed by law” and had not pursued a legitimate aim for the
reasons they set out in relation to Article 5 § 1 (see paragraph 57 above). In partic ular, it
had been uncertain if, when and where the applicants would display the banners “freedom
for prisoners” and “free all now”. Doing so would, furthermore, not have been an offence
under the Criminal Code. The slogans could not have been understood as an incitement to
a very uncommon crime but had had a different, more obvious meaning. With more than
1,000 demonstrators having been detained in connection with the G8 summit but only
100 detentions having been approved by the courts, there had been more than enough
reason to criticise the deprivations of liberty that had taken place in connection with the
summit.

95 . The applicants further submitted that their detention had been disproportionate and thus
not “necessary” in terms of paragraph 2 of Articles 10 and 11. The public interest in
preventing the uncertain commission of an offence at an indefinite place and time had not
outweighed their interest in showing their disagreement with many unlawful deprivations
of liberty in the course of the G8 summit and in taking part in protests against that
summit. The slogans “freedom for prisoners” and “free all now” had been well -known,
conventional leftist slogans in respect of such detentions and could not have been
interpreted as a call for violent liberation of p risoners. Depriving them of their liberty in
the given circumstances had discouraged an open discussion of matters of public interest.
(b) The Government
96 . The Government considered that neither Article 10 nor Article 11 of the Convention had
been breached. The interference with the applicants’ freedom of expression and freedom
of assembly by their detention had been justified. It had been based on section 55(1)
paragraph 2 (a) of the PSOA, a provision which had been sufficiently precise to be
foreseeable in terms of its application to the applicants. It had pursued legitimate aims, as
the applicants’ detention had been in the interest of public safety and for the prevention
of crime.
97 . The Government further argued that the interference had been “necessary in a democratic
society” for the purposes of Article 10 § 2 and Article 11 § 2. They stressed that there had
not been a less restrictive measure than the applicants’ detention available in order to
achieve the said legitimate aims. In particular, it had not been sufficient to seize the
banners in question, as the applicants could easily have drawn up new, comparable
banners at any time and could have used them immediately during the demonstrations in
Rostock. It had also been proportionate to detain the appli cants. There had been riots in
Rostock city centre the day before. The applicants, who had shown themselves to be
prepared to use violence, had been on their way to Rostock to participate in the
demonstrations. There had been reason to fear that the applic ants’ banners would have
incited other violent demonstrators to liberate prisoners detained in the prisoner holding
pens in Rostock by force. In these circumstances, the public interest in maintaining public
order and in the prevention of crime had outweig hed the applicants’ interest in
participating in the demonstrations.
2. The Court’s assessment
(a) Applicable Convention Article
98 . The Court reiterates that the protection of personal opinions, secured by Article 10 of the
Convention, is one of the objectiv es of freedom of peaceful assembly as enshrined in
Article 11 of the Convention (see Ezelin v. France , 26 April 1991, § 37, Series A no. 202;
Djavit An v. Turkey , no. 20652/92, § 39, ECHR 2003 III; Women On Waves and Others v.
Portugal , no. 31276/05, § 28, ECHR 2009 … (extracts); Barraco v. France , no. 31684/05,
§ 27, ECHR 2009 …; and Palomo Sánchez and Others v. Spain [GC], nos. 28955/06,
28957/06, 28959/06 and 28964/06 , § 52, 12 September 2011 ).

99 . The Court notes that in cases in which applicants compl ained that they had been
prevented from participating in and expressing their views during assemblies, including
demonstrations, or that they had been sanctioned for such conduct, it has taken several
elements into account in determining the relationship b etween the right to freedom of
expression and the right to freedom of assembly. Depending on the circumstances of the
case, Article 11 has often been regarded as the lex specialis, taking precedence for
assemblies over Article 10 (see, for instance, Ezelin , cited above, § 35, concerning a
disciplinary sanction imposed on the applicant, a lawyer, after having participated in a
demonstration to protest against two court decisions; Osmani and Others v. “the former
Yugoslav Republic of Macedonia” (dec.), no. 50 841/99, ECHR 2001 X, concerning the
conviction of the applicant, an elected official, for having stirred up national hatred in a
speech he delivered at an assembly he had organised; Djavit An , cited above, § 39,
concerning the refusal of the Turkish and Tu rkish -Cypriot authorities to allow the
applicant to cross the “green line” into southern Cyprus in order to participate in inter –
community meetings; Galstyan v. Armenia , no. 26986/03, § 95, 15 November 2007,
concerning a sanction of three days’ detention f or having participated in a demonstration;
and Barraco , cited above, § 26, concerning the applicant’s conviction for having
participated in a traffic -slowing operation organised as part of a day of protest by a trade
union).
100 . In other cases, the Court, hav ing regard to the specific circumstances of the case
and the way in which the applicants formulated their complaints, has considered that the
main focus of the respective applicants’ complaints lay on the right to freedom of
expression and thus examined th e case under Article 10 alone (see, for instance,
Karademirci and Others v. Turkey , nos. 37096/97 and 37101/97, § 26, ECHR 2005 I,
concerning a criminal sanction for having read out a statement during an assembly in
front of a school, and Yılmaz and Kılıç v. Turkey , no. 68514/01, § 33, 17 July 2008,
concerning the applicants’ criminal conviction for having participated in demonstrations
in support of Abdullah Öcalan).
101 . The Court notes that in the present case, the parties submitted arguments in
relation to Articles 10 and 11 together in the proceedings before the Court. It finds that
the applicants essentially complained of the fact that, owing to their detention throughout
the duration of the G8 summit, they were unable to express their views together with the
other demonstrators present to protest against the summit. They also protested against the
prohibition to express their views concerning the detention of demonstrators as expressed
on the banners. The main focus of their complaints lies, however, on th eir right to
freedom of assembly as they were prevented from taking part in the demonstrations and
expressing their views. It will therefore examine this part of the application under Article
11 alone. It notes, however, that the issue of freedom of expres sion cannot in the present
case be entirely separated from that of freedom of assembly. Notwithstanding its
autonomous role and particular sphere of application, Article 11 must therefore also be
considered in the light of Article 10 (see, mutatis mutandis , Ezelin , cited above, § 37).

(b) Whether there was an interference with the right to freedom of peaceful assembly
102 . The Court considers that, by their detention, ordered by the domestic courts for
the entire duration of the G8 summit, the applicants were p revented from taking part in
demonstrations against that summit.
103 . The Court reiterates that Article 11 of the Convention only protects the right to
“peaceful assembly”. That notion does not cover a demonstration where the organisers
and participants have violent intentions (see Stankov and the United Macedonian
Organisation Ilinden v. Bulgaria , nos. 29221/95 and 29225/95, § 77, ECHR 2001 IX; and
Galstyan , cited above, § 101). However, the pos sibility of extremists with violent
intentions who are not members of the organising group joining a demonstration cannot
as such take away that right. Even if there is a real risk of a public demonstration
resulting in disorder as a result of developments outside the control of those organising it,
such a demonstration does not as such fall outside the scope of Article 11 § 1, but any
restriction placed on such an assembly must be in conformity with the terms of paragraph
2 of that provision (see Christian s against Racism and Fascism v. the United Kingdom ,
no. 8440/78, Commission decision of 16 July 1980, Decisions and Reports (DR) 21, pp.
148 -149; and, mutatis mutandis , Ezelin , cited above, § 41).
104 . The Court notes that at the time of their arrest, the appl icants intended to take part
in future demonstrations against the G8 summit. There is nothing to indicate that the
organisers of the demonstrations in which the applicants intended to participate had
violent intentions. As shown above (paragraphs 8 and 103 ), the fact that the police also
expected extremists with violent intentions to join the otherwise peaceful demonstrations
does not result in those demonstrations losing the protection of Article 11 § 1.
105 . As for the applicants’ own aims in joining the demo nstrations, the Court is not
satisfied that it has been shown that the applicants had violent intentions in seeking to
participate in G8 -related demonstrations. In this connection, it notes, first, that the
domestic courts did not consider that the applica nts, by carrying banners bearing the
inscriptions “freedom for all prisoners” and “free all now”, intended to liberate prisoners
by force themselves. It also observes that no weapons were found on the applicants. It
further takes note of the Court of Appea l’s finding that a crowd which was ready to use
violence might be incited by the banners to liberate prisoners by force, but further notes
that that court conceded that the slogans on the banners at issue in the present case could
be understood in differen t ways (see paragraphs 19, 21 and 22 above). It also takes into
account the declaration made by the applicants, represented by counsel, in the
proceedings before the domestic courts. They had explained that the slogans on the
banners had been addressed to the police and the authorities, urging them to end the
numerous detentions of demonstrators, and had not been meant to call upon others to
attack prisons and to free prisoners by force (see paragraphs 18 and 25 above). In the
Court’s view, the applicants g ave a plausible interpretation of the inscriptions on their
banners, which themselves clearly did not openly advocate violence. Having regard also
to the domestic court’s finding of the slogans’ ambivalent content allowing for different
interpretations, th e Court considers that it has not been proven that the applicants
deliberately intended to incite others to violence. Neither could, in the Court’s view, such

a conclusion be drawn from the fact that one of the applicants was considered to have
resisted th e police’s identity check by force and was thus considered to have used force
himself – in different circumstances and in a different manner than by displaying banners
to others at a demonstration. It further notes in this connection that neither of the
ap plicants was shown to have previous convictions for violent conduct during
demonstrations or in comparable situations.
106 . The applicants’ detention thus interfered with their right to freedom of peaceful
assembly under Article 11 § 1. This is uncontested bet ween the parties.
(c) Whether the interference was justified
107 . Such an interference gives rise to a breach of Article 11 unless it can be shown
that it was “prescribed by law”, pursued one or more legitimate aims as defined in
paragraph 2 of that Article, a nd was “necessary in a democratic society”.
(i) “Prescribed by law” and legitimate aim
108 . In determining whether the interference was “prescribed by law”, the Court
reiterates that a norm cannot be regarded as a “law” unless it is formulated with sufficient
precision to enable the citizen – if need be, with appropriate advice – to foresee, to a
degree that is reasonable in the circumstances, the consequences which a given action
may entail (see Ezelin , cited above, § 45). It observes that it is contested betw een the
parties whether the applicants’ detention was prescribed by a law – section 55(1)
paragraph 2 of the PSOA – which was sufficiently precise to be foreseeable in its
application in the circumstances of the applicants’ case. The Court considers that it can
leave that question open and examine the case on the assumption that the interference
was “prescribed by law” for the reasons which follow.
109 . The Court is satisfied that the aim of the authorities in ordering the applicants’
detention was to prevent th em from committing a crime, namely inciting others to
liberate prisoners by force. This aim as such is legitimate under Article 11 § 2.
(ii) “Necessary in a democratic society”
110 . In determining whether the interference was “necessary in a democratic society ”,
the Court reiterates that the right to freedom of assembly is a fundamental right in a
democratic society and, like the right to freedom of expression, is one of the foundations
of such a society. Thus, it should not be interpreted restrictively (see Dj avit An , cited
above, § 56; and Barraco , cited above, § 41).
111 . The expression “necessary in a democratic society” implies that the interference
corresponds to a “pressing social need” and, in particular, that it is proportionate to the
legitimate aim pursue d. The nature and severity of the sanction imposed are factors to be
taken into account when assessing the proportionality of an interference in relation to the
aim pursued (see Osmani and Others , cited above, with further references).

112 . The Court must furt her determine whether the reasons adduced by the national
authorities to justify the interference are “relevant and sufficient”. In so doing, the Court
has to satisfy itself that the national authorities applied standards which were in
conformity with the principles embodied in Article 11 and, moreover, that they based
their decisions on an acceptable assessment of the relevant facts (see United Communist
Party of Turkey and Others v. Turkey , 30 January 1998, § 47, Reports 1998 I; and
Stankov and the United Macedonian Organisation Ilinden , cited above, § 87).
113 . The Contracting States have a certain margin of appreciation in assessing whether
an interference is “necessary in a democratic society”, but it goes hand in hand with
European supervision, emb racing both the legislation and the decisions applying it (see
Stankov and the United Macedonian Organisation Ilinden , cited above, § 87; and
Barraco , cited above, § 42). There is little scope under Article 10 of the Convention – in
the light of which Arti cle 11 has to be construed (see paragraphs 98 and 101 above) – for
restrictions on political speech or on debate on questions of public interest (see Stankov
and the United Macedonian Organisation Ilinden , cited above, § 88, with further
references). However, where there has been incitement to violence against an individual
or a public official or a sector of the population, the State authorities enjoy a wider
margin of appreciation when examining the need for an interference with freedom of
expression (see Stankov and the United Macedonian Organisation Ilinden , cited above, §
90; and, mutatis mutandis , Galstyan , cited above, § 115, and Osmani and Others , cited
above).
114 . In the present case, the Court notes that the applicants were detained for almost
six days in order to prevent them from inciting others to liberate prisoners by force during
demonstrations against the G8 summit. It found above (see paragraphs 75 -86) that the
applicants’ detention for prevent ive purposes did not fall within any of the permissible
grounds for deprivation of liberty under Article 5 § 1 and was thus in breach of that
provision. The Court further observes that the summit was expected to attract a
considerable number of demonstrato rs (some 25,000), a large majority of whom were
peaceful, but who also included a considerable number of demonstrators prepared to use
violence. A number of mass demonstrations were scheduled to take place over several
days, some of which had descended int o riots in Rostock city centre prior to the
applicants’ arrest. The Court accepts that guaranteeing the security of the participants at
the summit and maintaining public order in general in this situation was a considerable
challenge for the domestic autho rities, where decisions often had to be taken speedily.
115 . However, as set out above (see paragraph 105), the Court cannot consider it
established that the applicants had intended, by displaying the banners bearing the
impugned inscriptions at the demonstrat ions, to deliberately stir up other demonstrators
prepared to use violence to liberate prisoners taken during the G8 summit by force. It
appears, on the contrary, an acceptable assessment of the relevant facts by the authorities,
having regard to their mar gin of appreciation, that the slogans could be considered
ambiguous and that the applicants could thus have negligently incited others to violence
by displaying them during certain demonstrations (see, for a case concerning the use of

symbols with multiple meanings, Vajnai v. Hungary , no. 33629/06, §§ 51 et seq., 8 July
2008).
116 . The Court further finds that the applicants, by taking part in the demonstrations
against the G8 summit, intended to participate in a debate on matters of public interest,
namely the effects of globalisation on peoples’ lives. Moreover, by the slogans on their
banners, they intended to criticize the police’s management in securing the summit, in
particular the high number of detentions of demonstrators. Given that a considerable
numbe r of demonstrators (more than 1,000 of the 25,000 demonstrators expected) were
temporarily detained during the course of the summit, the Court considers that the
slogans contributed to a debate on a question of public interest. It is further clear that
dep riving the applicants of their liberty for several days for having intended to display the
impugned banners had a chilling effect on the expression of such an opinion and
restricted the public debate on that issue.
117 . In sum, the applicants’ intended protest s during the G8 summit must be
considered to have been aimed at participating in a debate of public interest, to which
there is little scope for restriction (see paragraph 113 above). Moreover, the applicants
were not shown to have had the intention of inc iting others to violence. In these
circumstances, the Court considers that a considerable sanction, namely detention for
almost six days, was not a proportionate measure in order to prevent the applicants from
possibly negligently inciting others to libera te demonstrators detained during the G8
summit by force. In such a situation, a fair balance between the aims of securing public
safety and prevention of crime and the applicants’ interest in freedom of assembly could
not be struck by immediately taking th e applicants into detention for several days.
118 . In particular, the Court is not convinced that there were not any effective, less
intrusive measures available to attain the said aims in a proportionate manner. Notably, it
considers that in the given situati on, in which it has not been shown that the applicants
were aware that the police considered the slogans on their banners illegal, it would have
been sufficient to seize the banners in question. This could reasonably be expected to
have had a chilling effe ct on the applicants, preventing them from drawing up new,
comparable banners immediately. Even if freedom of expression would then have been
restricted to a certain extent, taking part in the demonstrations would not have been made
impossible from the ver y outset.
119 . In view of the foregoing, the Court concludes that the interference with the
applicants’ right to freedom of assembly has not been “necessary in a democratic society”.
There has accordingly been a violation of Article 11 of the Convention.
V. A PPLICATION OF ARTICLE 41 OF THE CONVENTION
120 . Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only p artial reparation to be made, the
Court shall, if necessary, afford just satisfaction to the injured party.”
A. Damage
121 . The applicants claimed 10,000 euros (EUR) each in respect of non pecuniary
damage suffered as a result of their detention in breach of th e Convention. They referred
to the awards of just satisfaction the Court made in the cases of Brega v. Moldova (no.
52100/08, § 52, 20 April 2010) and Vasileva v. Denmark (no. 52792/99, § 47, 25
September 2003) to support their view that the sum claimed wa s reasonable. They asked
all payments to be made into their lawyer’s fiduciary bank account.
122 . The Government considered the amounts claimed excessive. They submitted that
if the Court were to find a violation of the Convention, this would constitute sufficient
just satisfaction. They argued that the facts of the cases cited by the applicants in support
of their view were not comparable to those at issue in the present applications.
123 . The Court considers that their dete ntion for some six days in breach of Articles 5
§ 1 and 11 of the Convention must have caused the applicants distress which would not
be adequately compensated by the finding of a violation alone. Making an assessment on
an equitable basis, it therefore aw ards each of the applicants EUR 3,000 in respect of
non -pecuniary damage, plus any tax that may be chargeable, under this head. Having
regard to the power of attorney presented by the applicants’ lawyer, which authorises her
to accept any payments to be ma de by the other party to the proceedings, it orders the
sums payable to the applicants to be paid into their lawyer’s fiduciary bank account.
B. Costs and expenses
124 . The first applicant also claimed EUR 2,340.85 for costs and expenses incurred
before the do mestic courts (EUR 68 in court costs and EUR 2,272.85 in lawyers’ fees,
including VAT payable thereon) and EUR 1,892.50 (including VAT) for those incurred
before the Court. The second applicant claimed EUR 2,370.65 for costs and expenses
incurred before th e domestic courts (EUR 68 in court costs and EUR 2,302.65 in lawyers’
fees, including VAT payable thereon) and EUR 2,082.50 (including VAT) for those
incurred before this Court. They submitted documentary evidence to support their claims.
125 . The Government, arguing in general that no compensation was payable to the
applicants under Article 41 of the Convention, did not comment on these claims.
126 . According to the Court’s case -law, an applicant is entitled to the reimbursement
of costs and expenses only in so fa r as it has been shown that these have been actually
and necessarily incurred and are reasonable as to quantum. In the present case, regard
being had to the documents in its possession and the above criteria, the Court is satisfied
that the proceedings bef ore the domestic courts and before this Court were aimed at
preventing and then redressing the violations of Articles 5 § 1 and 11 of the Convention

found. It further finds that the costs and expenses claimed by the applicants were
necessarily incurred and reasonable as to quantum.
127 . The Court therefore awards the first applicant EUR 4,233.35 (including VAT),
covering costs and expenses under all heads, plus any tax that may be chargeable to him.
It further awards the second applicant EUR 4,453.15 (including VAT), covering costs
and expenses under all heads, plus any tax that may be chargeable to him. It orders also
these sums payable to them to be paid into their lawyer’s fiduciary bank account.
C. Default interest
128 . The Court considers it appropriate that th e default interest rate should be based on
the marginal lending rate of the European Central Bank, to which should be added three
percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Decides to join the applications;

2. Declares the first applicant ’s complaint under Article 5 § 5 of the Convention
inadmissible and the remainder of the applications admissible;

3. Holds that there has been a violation of Article 5 § 1 of the Convention;

4. Holds that there has been a violation of Article 11 of the Convention;

5. Holds
(a) that the respondent State is to pay, within three months from the date on which the
judgment becomes final in accordance with Article 44 § 2 of the Convention, into the
applicants’ lawyer’s fiduciary bank account
(i) EUR 3,000 (three thousand euros), plus any tax that may be chargeable, to
each of the applicants in respect of non -pecuniary damage;

(ii) EUR 4,233.35 (four thousand two hundred thirty -three euros, thirty -five
cents), including VAT, to the first appli cant, plus any tax that may be chargeable
to him, in respect of costs and expenses;
(ii) EUR 4,453.15 (four thousand four hundred fifty -three euros, fifteen cents),
including VAT, to the second applicant, plus any tax that may be chargeable to
him, in resp ect of costs and expenses;
(b) that from the expiry of the above -mentioned three months until settlement simple
interest shall be payable on the above amounts at a rate equal to the marginal lending
rate of the European Central Bank during the default peri od plus three percentage
points;

6. Dismisses the remainder of the applicants’ claim for just satisfaction.
Done in English, and notified in writing on 1 December 2011, pursuant to Rule 77 §§ 2
and 3 of the Rules of Court.
Claudia Westerdiek Dean Spielmann
Registrar President
1 Cask for the storage and transport of radioactive material.

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