“All Germans have the right to assemble peacefully and without weapons without registration or permission,” says Article 8 of the Basic Law. But what if they gather on private property to protest against the climate catastrophe, for example on the premises of companies whose production is particularly harmful to the climate? And what remains of the right of assembly, possibly the earliest democratic right, if these companies – as has been happening more and more recently – defend themselves with a lot of money and good lawyers and sue everyone who protests against them?
“Human dignity is inviolable” is the first article of the German constitution. But what happens when two prisoners have to live in a cell of 7.41 square meters? Or people, even in urgent cases, cannot see a doctor or go to the hospital because they are in Germany without recognized papers?
Two examples from the most recent “Fundamental Rights Report” that was published this week. Ten civil rights organizations and legal associations have published this “Report on the situation of civil and human rights in Germany” every year since 1997.
In the 2022 edition, around two dozen fundamental rights guaranteed by the Basic Law are listed as disregarded, the constitutional breaches by the state – which, from the authors’ point of view, also tolerates the abuse of civil law and claims for damages against climate activists – are documented and discussed. The creators do not claim to be complete; but one wants to cover as broad a spectrum as possible of endangered civil and human rights.
In addition, each fundamental rights report is dedicated to key issues. Last year it was the restrictions on fundamental rights in the pandemic and their very different consequences, depending on whether people in the middle of society hit them or those on the fringes. The current review of the past year is about breaches of the law in connection with the withdrawal from Afghanistan and the climate protests.
The Bavarian police intervened massively to prevent protests against the IAA motor show in Munich, writes Munich criminal lawyer Antonella Giamattei. Demonstrators were locked away as a precaution (“preventive custody”) after hanging protest posters on highway bridges. Others were held in police custody for 12 hours for messing up the stand of an automobile manufacturer with spray chalk that could be washed off.
The comprehensive protection of their property, which companies enjoy in Germany, makes it possible to turn on the police against protesters. Laura Jacobs and Joschka Selinger write that if property seems threatened, they can determine their personal details and arrest them. This is what happened at the protest against the expansion of the cargo airport in Leipzig.
The police respected him as legitimate and did not intervene – until the transport company DHL claimed that the nighttime blockade of one of their access roads caused damage of one and a half million euros. This “unilateral privilege” of companies could undermine protest; a blanket statement would suffice.
And the state helps by law. According to the report, the new assembly law, which has been in force since December 2021 in North Rhine-Westphalia, which has so far been governed by black and yellow government, “fundamentally calls into question Article 8 Paragraph 1 of the Basic Law as a right to defend against the state, as protection from the state.” It is ” a law that sees gatherings as a danger,” writes Bonn lawyer Anna Magdalena Busl. The police can even reject meeting leaders or individual folders. The principle that demonstrations generally do not require a permit is reversed in the law.
In the case of the other focus of the report, Afghanistan, the authors immediately open up a whole panorama of violations of fundamental rights: Among the 5,000 people whom the federal government flown out during the days of the chaotic western withdrawal last September, only 140 are so-called local workers been, i.e. those who had worked for years as translators, drivers, service personnel for the Bundeswehr and German non-governmental organizations and are therefore particularly in the Taliban’s crosshairs – not just since the withdrawal, as the authors write.
“The majority of the approximately 20,000 people who had to fear for their lives and that of their family members because of their cooperation with the German state therefore stayed behind in the country,” says the chapter “Suppressed fundamental rights to protect Afghan local workers”.
It was much easier for Afghans to return in the opposite direction, because many of them had not had the right to asylum under Article 16a of the Basic Law for years. The myth that Afghans could find safe places in parts of their own country served as the main argument for the Federal Office for Migration and Refugees to reject the applications of those seeking protection.
Even when the Taliban had regained control of large parts of the country, more than a third of those who made it to Germany at all did not receive a protective title. Although the UN refugee agency has not seen a safe place in the country since 2018 at the latest, Germany has repeatedly deported people there – from 2016 to a few days before the Taliban took over power completely in August 2021, a total of 1,104 men, according to the report.
The publicly expressed joy of the then Interior Minister Horst Seehofer about the deportation of 69 Afghans on July 11, 2018 (“on my 69th birthday of all things”) became notorious.
Kava Spartak from the board of the “Yaar” initiative, which works for Afghan refugees, one of the panellists during the presentation of the fundamental rights report, brought the particular harshness against people “from a country that has been at war for 40 years” in connection with the Bundeswehr presence in Afghanistan. Instead of using the knowledge of international organizations such as the UNHCR, the situation reports of the Federal Foreign Office were decisive for the authorities’ no to asylum seekers.
The office, however, “beautified” the situation because they wanted to serve the hope that it would at least not get worse. The “evacuation catastrophe,” he judges, “like the entire operation, is a failure, a betrayal of democracy.”
The fundamental rights report is rightly regarded as an “alternative constitutional protection report,” praised the publicist and anti-racism specialist Ferda Ataman, this year’s commentator on the 222-page work. She emphasized the indications that it contains, according to Ataman, “undermining of democracy by right-wing extremists” – she mentioned, among other things, the Attac decision of the Federal Fiscal Court from the beginning of 2021, which only wants to recognize non-profit status if it is necessary for the political commitment of a association or an NGO has a recognized purpose in the tax code.
Every football club must now think carefully about whether it is still committed to fighting racism on the pitch. “Basically, all that remains is to use the outdated concept of friendship between peoples,” says Ataman. The AfD is already using the decision to take action against initiatives that they denounce.
The Berlin social judge John Philipp Thurn reports another disturbing case in his text on Article 101 of the Basic Law (“No one may be deprived of his legal judge.”) A Giessen administrative judge had agreed with the NPD when they complained that the city was showing its posters had been removed as hate speech. In his verdict, the judge described the NPD’s claim that “migration kills” as fact and prophesied the “creeping demise” of Germany through immigration. The bias application that an asylum seeker filed against the judge – he decides on asylum procedures in Giessen – was rejected by his colleagues at the administrative court.
Which in turn was classified as unconstitutional by the Federal Constitutional Court last year. The bias test was far too superficial, the plaintiff was without a judge, as he should be: impartial.
The highest judges in Karlsruhe also get one thing in the Fundamental Rights Report 2022: their decision on the “Federal Emergency Brake” in the Infection Protection Act last year was acceptable in substance, but “highly dangerous”. Karlsruhe hardly makes any test requirements for encroachments on fundamental rights, such as whether they are really unavoidable. Bad things can be expected “particularly in the field of so-called security laws, which is characterized by notorious border crossings”.
In the case of the judge with NPD sympathies, however, the Fundamental Rights Report no longer sees Karlsruhe as responsible, but rather the judiciary itself ‘Right-wing judges’ with authoritarian and racist attitudes ‘no higher being will save us’ in the form of executive supervision.” Judges in particular should “discuss how anti-democratic and ethnic positions can be countered in the judiciary”.