“Private öffentliche Räume“ im Polizei- und Versammlungsrecht

Abstract

“Public Private Spaces“ in Law of Police and Law of Assembly

The article centers on the “Bierdosen-Flashmob“-decision by the German Federal Constitutional Court and its impact on administrative law, with a special focus on the implications on law of police and law of assembly. The Federal Constitutional Court’s decision extended the scope of protection under art. 8 Basic Law, which protects the freedom of assembly, to public spaces belonging to the property of private individuals or corporations if the space is open to public access. Automatically, this extension leads to increased powers of the authorities because several statutes provide powers with regard to assemblies. Among them are possible restrictions on a specific assembly as such, the exclusion of protesters and video surveillance. However, the protection of private property is first and foremost the responsibility of its respective owner. Due to the far-reaching powers granted by the statutes, the police and other competent authorities may act as if they were owners of the property in question, without the actual owner playing a role in the decision. This article elaborates on whether or not this really is possible under the law. After this is answered affirmatively, it continues to analyze possible measures taken by the authorities and highlights the problematic aspects of the Federal Constitutional Court’s decision.