AS TO THE ADMISSIBILITY OF

                      Application No. 13079/87
                      by M.C.
                      against the Federal Republic of Germany


        The European Commission of Human Rights sitting in private
on 6 March 1989, the following members being present:

              MM. C.A. NØRGAARD, President
                  J.A. FROWEIN
                  S. TRECHSEL
                  G. SPERDUTI
                  E. BUSUTTIL
                  G. JÖRUNDSSON
                  A. WEITZEL
                  J.-C. SOYER
                  H.G. SCHERMERS
                  H. DANELIUS
                  G. BATLINER
             Sir  Basil HALL
             MM.  F. MARTINEZ
                  C.L. ROZAKIS
             Mrs.  J. LIDDY
             Mr.  L. LOUCAIDES

             Mr.  H.C. KRÜGER, Secretary to the Commission

        Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;

        Having regard to the application introduced on 7 May 1987
by M.C. against the Federal Republic of Germany and
registered on 16 July 1987 under file No. 13079/87;

        Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;

        Having deliberated;

        Decides as follows:


THE FACTS

        The facts of the case, as they have been submitted by the
applicant, may be summarised as follows:

        The applicant, born in 1960, is a German national and resident
at R..  He is a student.  Before the Commission he is
respresented by Mr.  R. Schmid, a lawyer practising at Nagold.

        On 3 August 1983 the Stuttgart District Court (Amtsgericht)
acquitted the applicant of the charge of having committed unlawful
coercion (Nötigung) under S. 240 of the German Criminal Code
(Strafgesetzbuch).

        S. 240 of the Criminal Code provides:

<German>

   "(1) Wer einen anderen rechtswidrig mit Gewalt oder durch Drohung
        mit einem empfindlichen Übel zu einer Handlung, Duldung oder
        Unterlassung nötigt, wird mit Freiheitsstrafe bis zu drei
        Jahren oder mit Geldstrafe, in besonders schweren Fällen mit
        Freiheitsstrafe von sechs Monaten bis zu fünf Jahren bestraft.

    (2) Rechtswidrig ist die Tat, wenn die Anwendung der Gewalt oder
        die Androhung des Übels zu dem angestrebten Zweck als
        verwerflich anzusehen ist.

    (3) Der Versuch ist strafbar."

<Translation>

   "(1) Anybody who coerces another to do something, tolerate
        something or omit to do something by force or dangerous
        threats shall be punished with imprisonment up to three years
        or a fine, in specially aggravated cases with imprisonment
        from six months to five years.

    (2) The act shall be unlawful only if the application of the force
        or the dangerous threat to the desired end is blameworthy.

    (3) An attempt is punishable."

        The District Court found that the applicant had participated
in a demonstration in front of the US military barracks on 12 December
1982 on the occasion of the third anniversary of the NATO Twin-Track
Agreement (NATO-Doppelbeschluß).  The demonstrators had blocked the
road to the barracks every full hour for a period of twelve minutes.
During these sit-ins the traffic had been closed by US military forces
and the police.  The applicant had participated in one blockade at
about 11.58 hours.  The police had ordered that the demonstrators should
leave the road.  The applicant and other demonstrators who did not
comply with this order were then carried away.  At 12.06 hours the
road was again opened for traffic.

        The District Court considered that, in the particular
circumstances of the present case, the blockades did not even cause
mental duress (psychische Zwangseinwirkung) on persons who wanted to
pass on the road and did not, therefore, constitute unlawful use of
force within the meaning of S. 240 para. 2 of the Criminal Code.
        Furthermore, the District Court considered that the applicant
did not commit a "regulatory offence" (Ordnungswidrigkeit) under the
Assembly Act (Versammlungsgesetz) in that he did not comply with the
order of the police authorities to leave the road.  The District Court
in this respect found that the sit-in had not been dispersed by the
competent department of the police authorities.

        On 23 December 1983 the Stuttgart Regional Court (Landgericht),
upon the appeal (Berufung) of the Public Prosecutor's Office (Staats-
anwaltschaft), quashed the judgment of 3 August 1983.  Having held
trial, it convicted the applicant of attempted coercion under S. 240
of the Criminal Code and fined him DM 100 (10 day-rates of DM 10).

        The Regional Court found in particular that the sit-ins on the
approach road to the US military barracks in Stuttgart constituted
coercion by force within the meaning of S. 240 of the Criminal Code.
They intended to prevent any driver from using the road during the
periods concerned.

        Furthermore, the Regional Court considered that this use of
force was unlawful within the meaning of S. 240 para. 2 of the
Criminal Code.  The organisers of the demonstration had not requested
prior authorisation for the demonstration under the relevant provision
of the German Assembly Act (Versammlungsgesetz).  The different peace
groups and their members participating in the sit-ins intended to draw
public attention to their goals, namely resistance and a fight against
nuclear armament by unlawful means.  They deliberately interfered with
the rights of others.  Such agitation was not covered by the right to
peaceful assembly.  Moreover, the action taken was not justified as a
measure necessary in a state of emergency (übergesetzlicher Notstand).
The risks of nuclear armament could not be eliminated by blocking an
approach road to US military forces.  However, the offence had not
been completed on the ground that the drivers who wanted to use the
road in question were in fact already beforehand stopped by the German
police or members of the US military forces.

        On 25 July 1984 the Stuttgart Court of Appeal (Oberlandes-
gericht) dismissed the applicant's appeal on points of law (Revision).

        On 11 November 1986, upon hearings on 15 and 16 July 1986
concerning the applicant's and joined cases, the Federal
Constitutional Court (Bundesverfassungsgericht) dismissed the
applicant's constitutional complaint (Verfassungsbeschwerde).  It could
not find a violation of the Basic Law due to equality of votes.

        In its very detailed judgment of 57 pages, the Constitutional
Court observed that the legal opinions in jurisprudence and doctrine
as regards sit-ins were divergent.  It found that the definition of
unlawful coercion in S. 240 of the Criminal Code was sufficiently
concrete and did not violate the requirements of legal certainty
(Bestimmtheitsgebot), as derived from Article 103 para. 2 of the Basic
Law (Grundgesetz).  However, the application and interpretation of
S. 240 of the Criminal Code by the German courts could raise problems
with regard to the prohibition of defining crimes by analogy with
existing offences (Analogieverbot), also derived from Article 103
para. 2 of the Basic Law.

        Article 103 para. 2 of the Basic Law provides that an act can
be punished only if it was an offence against the law before the act
was committed.
        The Federal Constitutional Court noted that the term "force"
in S. 240 para. 1 of the Criminal Code was initially interpreted as
use of physical force by the offender in order to overcome actual or
probable resistance (Entfaltung von körperlicher Kraft durch den Täter
zur Überwindung eines geleisteten oder erwarteten Widerstands).  In
subsequent cases the Federal Court of Justice (Bundesgerichtshof) held
that there was also "use of force where the offender acts in such a
way as to cause the victim's resistance (actual or probable) to be
overcome by an agent acting directly on the victim, the amount of
physical force used being irrelevant" ("Gewalt liegt auch vor, wenn
der Täter durch körperliche Handlungen die Ursache dafür setzt, daß
der wirkliche oder erwartete Widerstand des Angegriffenen durch ein
unmittelbar auf dessen Körper einwirkendes Mittel gebrochen oder
verhindert wird, gleichviel, ob der Täter dazu größere oder nur
geringere Körperkraft braucht").  Finally, in a decision of 1969
concerning sit-ins, the Federal Court of Justice considered to be
decisive that there was "an effect which inevitably influenced the
victim's freedom to decide or to turn ideas into actions" ("eine die
Freiheit der Willensentschließung oder Willensbetätigung beeinträch-
tigende Zwangswirkung"); it was "sufficient that the offender, with
only a minimal expenditure of energy, set up a process which acted
conclusively on the victim's mind, thereby compelling him to act in a
particular way" ("es genügt, daß der Täter mit nur geringem Kraft-
aufwand einen lediglich psychisch determinierten Prozeß in Lauf setzt
und dadurch einen unwiderstehlichen Zwang auf den Genötigten ausübt").

        Four judges of the Constitutional Court found that the
application of S. 240 of the Criminal Code to sit-ins such as in the
present case was incompatible with the prohibition of defining crimes
by analogy to existing offences under Article 103 para. 2 of the Basic
law.  The progressively broader interpretation of the term "force"
under S. 240 of the Criminal Code had not been foreseeable for the
citizen.  The context of S. 240 para. 1 clearly indicated that not any
coercion was deemed to be punishable, but only coercion by "force" or
"dangerous threats".  They considered that the participants in the
sit-ins in question did not use force, but, after sitting down on the
road, they remained completely passive.  Moreover, it had not been
established that any driver had felt compelled to stop by the sit-ins.

        In the opinion of the four other judges the broad
interpretation by German courts of the term "force" in S. 240  para. 1
of the Criminal Code cannot be objected to under constitutional law.  It
observed the limits of the ordinary sense of the term "force" as long
as an expenditure of energy in the process of compelling the victim
was required.  Furthermore, having regard to the jurisprudence of the
German courts in such matters, the risk of penalty for behaviour such
as in the present case was foreseeable.

        Furthermore, the Constitutional Court unanimously found that
an act of "coercion by force" in the broad interpretation of S. 240
para. 1 of the Criminal Code should, however, not automatically be
considered unlawful.  The unlawfulness had to be established
separately under S. 240 para. 2.  The judges disagreed about whether
sit-ins were "blameworthy".

        Four of the judges found that sit-ins such as in the present
case, which intended to force public attention towards protest against
nuclear armament, were in principle not blameworthy.

        The four other judges found that the application of S. 240
para. 2 of the Criminal Code, notably the assessment of the particular
circumstances of a case, were the task of the criminal courts.  The
conviction in the present case did not arbitrarily disregard any
constitutional right.  The right to peaceful assembly under Article 8
of the Basic Law would not justify sit-ins which aimed principally at
obstructing the traffic and were lawfully dispersed by the police.
Furthermore sit-ins could not be justified as measures of "civil
disobedience" ("ziviler Ungehorsam"), i.e. sensational action in
breach of law (aufsehenerregende Regelverletzung) in order to protest
against national policy.

        In the meantime, the applicant had instituted administrative
court proceedings against a cost order of the Stuttgart II
Police Department (Landespolizeidirektion) of 31 January 1983
concerning the police action on 12 December 1982.  On 5 November 1985
the Stuttgart Administrative Court (Verwaltungsgericht) decided that
the cost order was unlawful on the ground that the dispersal of the
demonstration on 12 December had been unlawful.  The Court found in
particular that the police forces which had ordered that the
demonstration in question be dispersed were not competent under the
relevant rules on the organisation of the police.  The Administrative
Court considered that, under the circumstances of the present case, it
was not prevented from examining the order of dispersal in the context
of the proceedings concerning the subsequent cost order, although the
applicant had not instituted administrative court proceedings to
challenge the lawfulness of this measure under S. 113 para. 1 fourth
sentence of the German Code of Administrative Court Procedure
(Verwaltungsgerichtsordnung).


COMPLAINTS

1.      The applicant complains under Article 7 of the Convention that
his participation in the demonstration and the sit-in in front of the
US military barracks in Stuttgart did not constitute a criminal
offence under German penal law but was defined, by analogy to the
criminal offence of "coercion by force", under S. 240 of the Criminal
Code.

2.      The applicant also complains under Article 11 of the
Convention that the action taken by the German police authorities in
dispersing the demonstration on 12 December 1982 and his conviction
for coercion violates his right to freedom of peaceful assembly.  He
submits in particular that the dispersal of the sit-in had been
unlawful under German law.  He refers in that respect to the decision of
the Stuttgart Administrative Court dated 5 November 1985.

3.      The applicant moreover invokes Article 14 of the Convention in
respect of the above complaints.  He submits that the prosecution of
members of the peace movement discriminates against them on the ground
of political opinion.


THE LAW

1.      The applicant complains under Article 7 (Art. 7) of the Convention that
his conviction by the Stuttgart Regional Court on 23 December 1983 for
his participation in a sit-in was based on an unlawful analogy to the
existing crime of coercion by force under S. 240 of the German Criminal
Code.
        Article 7 para. 1 (Art. 7-1) of the Convention reads as follows:

"No one shall be held guilty of any criminal offence on
account of any act or omission which did not constitute a
criminal offence under national or international law at the
time when it was committed.  Nor shall a heavier penalty be
imposed than the one that was applicable at the time the
criminal offence was committed."

        In the sphere of criminal law Article 7 para. 1 (Art. 7-1) of the
Convention confirms the general principle that legal provisions which interfere
with individual rights must be adequately accessible, and formulated with
sufficient precision to enable the citizen to regulate his conduct (cf.  Eur.
Court H.R., Sunday Times judgment of 26 April 1979, Series A No. 30, p. 31,
para. 49).  Article 7 para. 1 (Art. 7-1) of the Convention prohibits in
particular that existing offences be extended to cover facts which previously
clearly did not constitute a criminal offence.  This implies that constituent
elements of an offence may not be essentially changed by the case-law of the
domestic courts.  It is not objectionable that the existing elements of the
offence are clarified and adapted to new circumstances which can reasonably be
brought under the original concept of the offence (cf.  No. 8710/79, Dec.
7.5.82, D.R. 28 p. 77).

        The Commission notes that the applicant was acquitted of the charge of
coercion under S. 240 of the Criminal Code by the Stuttgart District Court.
Upon the appeal of the Public Prosecutor's Office, the Stuttgart Regional Court
convicted the applicant of attempted coercion by force.  The Regional Court
found in particular that the applicant, who had participated in a sit-in on 12
December 1982, attempted to coerce others by "force" not to use the road
concerned. The Federal Constitutional Court, in its detailed judgment of 11
November 1986, referred to the jurisprudence of the German penal courts which
had progressively developed the interpretation of the term "force" in the
context of S. 240 of the Criminal Code.  The Constitutional Court did not find
a violation of the Basic Law due to equality of votes as regards, inter alia,
the question whether or not this jurisprudence violated the prohibition against
defining crimes by analogy to existing offences.

        The Commission considers that the progressively broader interpretation
of the term "force" within the context of S. 240 of the Criminal Code, which
covers, inter alia, sit-ins as in the applicant's case, has adapted the offence
of "unlawful coercion by force" to new circumstances and developments in
society which can still reasonably be brought under the original concept of the
offence.  The applicability of S. 240 of the Criminal Code to sit-ins was
clarified by the Federal Court of Justice in 1969 and, although the legal
opinions remained divergent in this respect, the applicant could thus clearly
foresee the risk of punishment for his participation in the sit-in of 12
December 1982.

        Consequently, the Commission finds that there is no appearance of a
violation of Article 7 para. 1 (Art. 7-1) of the Convention.  It follows that
the applicant's complaint in this respect is manifestly ill-founded within the
meaning of Article 27 para. 2 (Art. 27-2) of the Convention.


2.      Furthermore, the applicant complains that his conviction by the
Stuttgart Regional Court on 23 December 1983 for his participation in one of
the sit-ins violated his right to freedom of peaceful assembly as guaranteed by
Article 11 (Art. 11) of the Convention.

        Article 11 (Art. 11) of the Convention provides:

"1.   Everyone has the right to freedom of peaceful assembly 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. ..."

        The Commission considers that the right to freedom of peaceful assembly
is secured to everyone who organises or participates in a peaceful
demonstration.  The notion of "peaceful assembly" does not, however, cover a
demonstration where the organisers and participants have violent intentions
which result in public disorder (cf. No. 8440/78, Dec. 16.7.80, D.R. 21 p.
138).

        In the present case, the Commission notes that the demonstration on 12
December 1982 in front of the Stuttgart barracks of the US forces had not been
notified under the relevant provisions of the German Assembly Act.  The peace
groups organising the demonstration and the participants, including the
applicant, intended to demonstrate in particular by means of repeated sit-ins
blocking the approach road to the barracks concerned and did thereby act
illegally.

        However, the Commission finds that the right to freedom of peaceful
assembly is one of the foundations of a democratic society (No. 8191/78, Dec.
10.10.79, D.R. 17 p. 93) and should not be interpreted restrictively.  The
applicant and the other demonstrators had not been actively violent in the
course of the sit-in concerned. The Commission accepts that the applicant's
conviction under S. 240 of the Criminal Code interfered with his right under
Article 11 para. 1 (Art. 11-1) and needs to be justified as a restriction
prescribed by law and necessary in a democratic society for one of the purposes
set out in Article 11 para. 2 (Art. 11-2) of the Convention.

        The Commission, referring to its findings as regards the applicant's
complaint under Article 7 para. 1 (Art. 7-1) of the Convention, considers that
his conviction for attempted coercion within the meaning of S. 240 of the
Criminal Code was a restriction on his right to freedom of peaceful assembly,
prescribed by German law.

        Furthermore, the Commission finds that, in the circumstances of the
present case, the applicant's conviction for having participated in a sit-in
can reasonably be considered as necessary in a democractic society for the
prevention of disorder and crime.  In this respect, the Commission considers
especially that the applicant had not been punished for his participation in
the demonstration of 12 December 1982 as such, but for particular behaviour in
the course of the demonstration, namely the blocking of a public road, thereby
causing more obstruction than would normally arise from the exercise of the
right of peaceful assembly.  The applicant and the other demonstrators had
thereby intended to attract broader public attention to their political
opinions concerning nuclear armament.  However, balancing the public interest
in the prevention of disorder and the interest of the applicant and the other
demonstrators in choosing the particular form of a sit-in, the applicant's
conviction for the criminal offence of unlawful coercion does not appear
disproportionate to the aims pursued.

        It follows that this part of the application is also manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.


3.      The applicant moreover complains under Article 11 (Art. 11) of the
Convention of the police measures taken on 12 December 1982 to disperse the
sit-in in which he participated.

        The Commission notes that the applicant instituted administrative court
proceedings against the cost order of the Stuttgart II Police Department
concerning the police action on the occasion of the demonstration in question,
in the course of which the Stuttgart Administrative Court found that the police
action, i.e. the order that the demonstration be dispersed, had been unlawful.
The Administrative Court, therefore, quashed the cost order.

        The Commission considers that the applicant, under such circumstances,
has not shown any legal interest to have the dispersal of the demonstration of
12 December 1982 examined by the Commission under Article 11 para. 1 (Art.
11-1) of the Convention.  Accordingly, he cannot, in this respect, claim under
Article 25 (Art. 25) of the Convention to be a victim of a violation of his
rights under the Convention.

        This part of the application is, therefore, incompatible ratione
personae with the Convention within the meaning of Article 27 para. 2 (Art.
27-2) of the Convention.

4.      Moreover, the applicant complains under Article 14 (Art. 14) in
conjunction with Article 11 (Art. 11) of the Convention in respect of the above
complaints.  However, the Commission finds no appearance of discriminatory
treatment in the circumstances of the present case. This part of the
application is, therefore, manifestly ill-founded within the meaning of Article
27 para. 2 (Art. 27-2) of the Convention.


        For these reasons, the Commission


        DECLARES THE APPLICATION INADMISSIBLE



Secretary to the Commission         President of the Commission




    (H. C. KRÜGER)                       (C. A. NØRGAARD)