On 27 December 2023, the draft amendment to the Saxon Assembly Act was submitted to the Saxon state parliament as printed matter 7/15266. The draft provides for extensive amendments to the previously applicable Saxon Assembly Act and is now making its way through the committees and deliberations in the state parliament until it comes into force – in its current or amended form – as planned on 1 September 2024 and replaces the old Saxon Assembly Act.
In the following, we would like to discuss why we consider the draft to be a mockery of the right of assembly and why the title „Sächsisches Versammlungsverhinderungsgesetz“ seems more appropriate than the proposed title „Gesetz über den Schutz der Versammlungsfreiheit im Freistaat Sachen“.
Why should the SächsVersG be amended?
In their coalition agreement for 2019 to 2024, the CDU, Greens and SPD plan to amend the SächsVersG „[…] in order to maximise the effectiveness of the guaranteed right to political participation.“ (p. 112). And rightly so: the SächsVersG is one of the more illiberal assembly laws in Germany. However, it is hardly surprising that the current draft does not fulfil the goal proclaimed in the coalition agreement. This is because the Saxon Ministry of the Interior under the leadership of Armin Schuster was in charge. However, the draft not only fails to fulfil this goal, it misses it completely and does so with a bang.
What criticisms do we have of the planned amendment?
Firstly, it stands out that the draft is not written from the perspective of those who wish to exercise their freedom of assembly, but from that of the assembly authority and the police. This is reflected in particular in the provisions on cooperation with the assembly authority (Section 3 of the draft, abbreviated to SächsVersG-E in the following), the possible appointment of the assembly leader by the assembly authority (Section 5 (4) SächsVersG-E) and the official powers vis-à-vis the stewards (Section 16 SächsVersG-E) as well as the associated criminal and administrative offence provisions (Sections 24 et seq. SächsVersG-E). The draft thus reverses the fundamental right to freedom of assembly as a right of defence against the state into a right of the state to contain assemblies.
In addition, the vague term „public order“, which is open to interpretation, has found its way into the draft. Previously, the SächsVersG exclusively used the term „public safety“. The term „public order“ originates from police law and is characterised by its vagueness. With the right intention, anything can be read into it. To make it vivid: The draft stipulates that it is the task of the assembly authority to ward off dangers to public order posed by the assembly participants (Section 3 (1) No. 3 SächsVersG-E). Is a black bloc demonstration already suitable for posing a threat to public order? To what extent are certain demonstration slogans already suitable for posing a threat to public order? These and similar questions are unclear. The answers to these questions are initially at the discretion of the assembly authority.
Particularly affected by this restriction of the right of assembly will be marginalised people who, due to racist policies and laws, are prevented from participating in social discourse in ways other than through assemblies and the public expression of their opinions.
In addition to these key points, we criticise the following in detail:
§ Section 4 SächsVersG-E regulates who is to be considered an organiser of an assembly. The criteria used to determine who counts as an organiser are very vague. It remains unclear whether public calls for an assembly are sufficient to count as an organiser. This vagueness of the definition of organiser is at odds with the standards developed by case law. The vagueness and resulting legal uncertainty is particularly problematic as the SächsVersG-E in Sections 24 et seq. criminal and administrative offence provisions are linked to the status of organiser.
§ Section 5 (4) SächsVersG-E allows the assembly authority to „step in“ as the assembly leader if no assembly leader is appointed from among the assembly members. This provision represents a deep cut into the right to self-determination of the assembly participants. The Committee for Fundamental Rights describes this part of the provision as „[…] absurd and constitutionally untenable […]“ (p. 144). We agree with this assessment.
§ Section 10 SächsVersG-E standardises the ban on militancy at assemblies. This part of the draft also interferes with the right to self-determination of the assembly participants. It is up to them to decide how an assembly should be organised. Section 10 (1) SächsVersG-E is particularly problematic. According to this, it is prohibited to „[…] present a uniform appearance in a manner that conveys the impression of a willingness to use violence […]“. Knowing the situation in Leipzig, it can be assumed that the assembly authorities and police will extend this vague offence to the detriment of certain assemblies and use it as a reason to escalate assemblies.
§ Section 14 SächsVersG-E provides for a number of new details that must be provided when registering an assembly. This includes, for example, the planned route of a demonstration or the means of demonstration used. This creates unnecessary bureaucratic hurdles. In addition, Section 14 SächsVersG-E in conjunction with Section 24 para. 3 SächsVersG-E poses an enormous risk for those registering an assembly. This is because Section 24 para. 3 SächsVersG-E stipulates that those registering an assembly can be punished with up to six months‘ imprisonment if they organise an event „significantly different“ from that registered in accordance with Section 14 SächsVersG-E. It is unclear what is meant by „significantly different“.
§ Section 15 (3) SächsVersG-E implements a decision of the Federal Constitutional Court (BVerfG), which stated that freedom of assembly applies not only in public places, but also in private places (e.g. shopping centres or airports) under certain conditions. However, Section 15 (3) SächsVersG-E allows the assembly authority to weigh up the conflicting interests of the assembly and the owners. In practice, it is hardly to be expected that the Leipzig assembly authority will weigh up the interests in accordance with the requirements of the Federal Constitutional Court. This is particularly problematic in light of the increasing privatisation of public spaces.
§ Section 19 SächsVersG-E standardises the ban on wearing masks. In Leipzig in particular, this ban is repeatedly used by the police to intervene in assemblies and escalate them in a targeted manner. The draft does not take into account the legitimate interest and regular need to protect one’s own identity at public gatherings in the face of state or other repression.
Sections 24 et seq. of the SächsVersG-E provide for a number of new criminal and administrative offence provisions. The mere existence of these makes it easier for the assembly authorities and police to intervene in assemblies. It also makes it easier for them to criminalise individual participants and entire assemblies. They expose participants to a high risk and can therefore have a deterrent effect.
SächsVersG as an election campaign tool – then an instrument of repression?
It is not surprising that the Assembly Act is being tightened in this way shortly before the 2024 state elections. In 2019, it was the establishment of „Soko Linx“, this year it is the new Assembly Act. Both are characterised by the authoritarian law-and-order policy that the CDU, SPD and Greens use to score points and do not shy away from fishing for votes among racists and fascists on the extreme right. The next few months will show whether it is suitable as an election campaign tool.
What is worrying, however, is the idea of it becoming obsolete as an election campaign tool and coming into force on 1 September 2024. The election poll results in Saxony are foreboding bad news. The shift to the right by the centre-right parties is becoming increasingly apparent and the possibility of AfD participation in government cannot be ruled out. In its current form, the SächsVersG-E is the ideal instrument of repression for authoritarian actors to persecute and criminalise assemblies and their participants.
Concluding remarks
The current SächsVersG should also be criticised and, at best, abolished. However, the desire to replace it with the draft criticised here can only be explained by a lack of foresight or an authoritarian understanding of society. We can observe a worldwide movement towards increasingly authoritarian states and Saxony also seems to want to take the next step in this direction. A further step in the direction of objectifying people as mere tools of the state and the containment of civil society and radical left-wing protest. For us it is clear: We must oppose the amendment of the Assembly Act!