When can a demonstration be banned?

Article 8, paragraph 1 of Germany's constitution, or "Basic Law," states: "All Germans shall have the right to assemble peacefully and unarmed without prior notification or permission."

In principle, there is a high bar to be met in Germany before restrictions on freedom of assembly — including an outright ban — can be imposed. The ban must be very well justified, as the highest German court, the Federal Constitutional Court in Karlsruhe, has repeatedly made clear.

In recent weeks, many demonstrations have been banned by administrative courts in summary proceedings on the basis that they pose "an imminent danger to public safety and order," which means that the police expected acts of violence and property damage.

However, an outright ban is always the last resort. Instead, demonstration organizers often receive orders to remove illegal placards and banners, or to intervene in the case of verbal offenses. In an emergency, the police can still break up a demonstration.

The fact that the courts in Germany reach different conclusions on whether or not a demonstration can go ahead is largely because both the place of assembly and who is organizing the event must be taken into consideration.

Before each demonstration, the German authorities have to assess whether criminal acts are likely to occur, for example, the displaying of prohibited symbols.

Among the questions that must be answered are: Have demonstrations at a particular location escalated before? And, have the organizers barred criminal participants in the past or not?

What symbols are banned, and which aren't?

Anyone who violates Section 86a of the German Criminal Code by disseminating or publicly displaying symbols deemed anti-constitutional can be punished with a prison sentence of up to three years or a fine. This paragraph was originally intended to ensure that signs and symbols of National Socialism (Nazism) were banned from public spaces, "namely flags, badges, uniforms, slogans and forms of greeting." In other words, all symbols that were also used by Nazi-era organizations.

Accordingly, the flags of Hamas, the Popular Front for the Liberation of Palestine, Palestinian Islamic Jihad and Hezbollah, which in Germany are all classified as terrorist organizations, are prohibited. This was confirmed by the Bremen Interior Ministry in response to a inquiry by German public broadcaster ARD.

However, displaying national flags, such as the Palestinian flag or Israeli flag, is allowed.

Signs supporting Hamas' terrorist attack on Israel are also prohibited. Banners publicly endorsing murder, manslaughter, rape and hostage-taking and calling for violence against people or institutions (under section 140 of the criminal code: "Rewarding and approval of offenses") are also prohibited.

Finally, burning or destroying a national flag is also a punishable offense. Several people in both Duisburg and Berlin have already been charged under this paragraph, and the Palestinian network Samidoun will no longer be allowed to operate in Germany as a result.

Section 140 of the German penal code was changed three years ago. Before 2020, it was legal to publicly burn national flags or banners. Now it is prohibited.

Action seen as celebrating crimes is also prohibited, and they do not have to have been committed in Germany for this statute to apply. Although there has not yet been a higher court ruling on this, most jurists agree that anyone who publicly celebrates terrorist attacks such as those of September 11, 2001 in the US or in Israel on October 7 on the streets of Germany would be committing a crime. The police and public prosecutor's office are therefore also obliged to investigate when the "Z" symbol of the Russian war against Ukraine is displayed on German streets.

This article was originally written in German.

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