September 16, 2025
By Florian Kriener
The right to assemble peacefully as guaranteed by Article 11 of the European Convention of Human Rights (ECHR) is essential in any democracy. It protects the right of a democracy’s citizens to unite and publicly demand changes in public policy. Peaceful assemblies and protests are therefore widely recognized for their role in challenging established paradigms and channeling the concerns of marginalized groups. However, their regulation within a democracy can prove thorny. Large crowds of people in the public space carry inherent risks ranging from mass panic to obstructions of public life or violent escalations. The European Court of Human Rights’ (ECtHR) docket on Article 11 of the ECHR has continuously grown over the years. While states that are notorious for quashing peaceful assemblies top the list – including Russia, Azerbaijan, Turkey, and Georgia – finding a legal framework for peaceful assemblies in conformity with human rights law has also proven a challenge for Council of Europe Member States with higher democracy levels (including Greece, Switzerland, Spain).
In its 2025 judgment in Russ v. Germany, the Court found that the application of the German Law on Assemblies against the applicant Benjamin Ruß qualified as a violation of his freedom of assembly under the Convention. The applicant received a criminal conviction for wearing a transparent plastic sheeting (relatively hard but flexible and thinner than Plexiglas) that was attached to his head with a rubber band during a peaceful assembly (§ 53).
In this blog post, I first briefly summarise the facts and then assess the three substantive issues addressed by the Court. My main critique of the ECtHR’s judgment concerns the addressee of the ruling. The Court argues that the assessments made by the district and regional courts were insufficient to justify an interference with Article 11 ECHR. However, the lower courts merely applied an overly expansive definition of prohibited protective weapon developed by legislation and higher courts. The Court should have identified the overly broad definition as the core of problem, which raises the question whether the interference was based on a sufficiently clear and foreseeable legal basis.
The applicant had joined a demonstration on 18 March 2015 protesting the newly opened headquarters of the European Central Bank in Frankfurt, Germany. The group “Blockupy” had convened the demonstration and dispersed the plastic sheets and rubber bands among participants of the assembly for protection against the use of pepper spray by German police (see an example of the protection here). The applicant built a plastic visor by attaching the sheet that reads “Smash Capitalism” to his forehead and fixating it with the rubber band. The assembly in which the applicant participated remained peaceful, in contrast to other incidents of unrest throughout the city. Nonetheless, police identified the applicant in video footage of the assembly, recognizing him due to his prominent role as a spokesperson in previous protests across Germany.
The prosecutor’s office pursued charges against the applicant pursuant to Section 27 para. 2 undersection 1 of the Federal Act on Public Assemblies and Processions (Gesetz über Versammlungen und Aufzüge). At the time, the Federal Assemblies Act was still in effect in the state of Hesse, but it was replaced in 2023 by state legislation. Under the terms of Section 27(2)(1) of the Federal Assemblies Act, participants of an assembly that carry “protective weapons” contrary to Section 17a(1) of the Federal Assemblies Act are liable to criminal conviction, which can result in imprisonment of up to one year. The legislation itself does not define the term “protective weapons” but refers to “objects that are suitable for use as protective weapons which, in the circumstances, are intended to defend against enforcement measures by a holder of sovereign power”. The provision is therefore intended to enable effective law enforcement measures, should they become necessary in the context of an assembly.
The prosecution argued that the plastic sheet fixed with a rubber band qualified as such a protective weapon because its sole purpose was the protection of the protester against the possible use of tear gas by law enforcement officers. This District Court of Frankfurt am Main followed this assessment and convicted Ruß to a fine of 400 euros. The judgment was confirmed by the Frankfurt am Main Regional Court and Higher Regional Court of Hesse. The Federal Constitutional Court refused to accept a constitutional complaint. Benjamin Ruß therefore lodged an individual application to the ECtHR in 2020. The ECtHR retained jurisdiction over the application against the judgment under Articles 34 and 35 ECHR (§§ 21-25).
The German government argued that the applicant could not invoke the protection of Article 11 due to the violent nature of the demonstration (§ 29). The Court resoundingly rejected this argument. For the Court, the burden of proof regarding the use of violence in the context of assemblies lies with the German Government (§ 37) which was unable to adduce sufficient evidence in this case. Importantly, the Court stressed that district and regional courts had not expanded on the question of whether the applicant had participated in violent conduct or espoused violent sentiments (§ 38).
After establishing the application of Article 11 ECHR to the case, the Court accepted that a criminal conviction for participating in a peaceful assembly, even if limited to 400 euros, qualifies as an interference. To be justified, this interference requires a legal basis and must be necessary in a democratic society. The applicant argued that it had not been sufficiently foreseeable from the text of Section 27 of the Federal Assemblies Act to assume that a plastic visor would qualify as a protective weapon (§ 44). The Court rejected this argument. Recalling its well-established case law, the Court stated that an interference is prescribed by law, if the citizen can reasonably foresee the consequences of their actions (§ 43). The Court held that the determinations made by the district and regional courts to count a plastic visor as a protective weapon were neither arbitrary nor unpredictable (§ 45). Although the legislation itself does not contain a definition of a protective weapon, the documents from the legislative process ahead of its adoption in 1985 contain a definition that has since been applied and refined by German courts (§ 45). Furthermore, the applicant could have attained legal certainty by asking a lawyer or a police officer offer at the demonstration concerning the legality of the visor.
Furthermore, the Court accepted the aims pursued by Section 27 of the Federal Assemblies Act to be valid. Relying on the arguments advanced during the legislative process of Section 27 and 17a in 1985, the Court agreed with the Government’s assumption that “participants who carry such protective weapons, by virtue of their martial appearance, display an obvious willingness to use violence and, according to findings in the field of crowd psychology, have an aggression-stimulating effect on the crowd” (§ 48). This assumption of the German legislator was based on sociological studies at the time. In a first step, the Court thus held that it is a reasonable and legitimate interpretation of Section 27 of the Federal Assemblies Act to prohibit the use of low-tech plastic visors during an assembly.
However, in assessing the specific application of Section 27 of the Federal Assemblies Act to the facts of the case, the Court noted significant deficits. To build its standard, the Court recalled its case law and asserted that it must exercise particular scrutiny in such cases, when criminal sentences are imposed in connection with the participation in a peaceful assembly (§§ 53, 55). Its main criticism of the judgments of the district and regional courts is the limited assessment provided by the respective courts. Both only engaged with the question of whether the plastic visor qualifies as a “protective weapon” but failed to demonstrate why the use of this particular “protective weapon” posed a danger to public safety. In the ECtHR’s view, the courts were thus unable to explain why the interference in the specific case was necessary in a democratic society (§ 56). The Court further mentioned the possibility of permitting protective weapons during an assembly under Section 17a para. 4 of the Federal Assemblies Act and recalled that this option was not discussed by the national courts (§ 54). Moreover, the Court highlighted the circumstance that the criminal sanction was applied after the end of the assembly and that the police officials at the rally had not asked the applicant to remove his visor (§ 55). These two aspects, however, remain unconnected to the main argument presented by the Court.
The central basis for the Court’s finding of a Convention violation lies in the limited reasoning provided in the judgments of the regional and district courts. As the Court elaborates later, this violation is of “minor gravity” given that the relevant legal provisions and their general application were in conformity with Article 11 ECHR (§ 64).
The Court’s judgment is puzzling. Its central point of critique is the lacking reasoning by the national courts and their failure to demonstrate that the plastic visor was dangerous in the specific circumstances. However, German law (Sections 27 and 17a of the Federal Assemblies Act) does not require a specific assessment of the danger posed by a protective weapon. To the contrary, the requirements of Section 27 are fulfilled if a person knowingly carries a protective weapon during an assembly. The law therefore only obliges German courts to assert whether an object qualifies as a protective weapon (objective element) and then, in a second step, to assess whether this weapon was knowingly carried at an assembly (subjective element).
Section 27 has therefore been criticized for being too wide and criminalizing protest too heavily. Some authors have suggested raising the threshold for the subjective element. Rather than merely requiring that the individual knowingly carried the protective weapon, they propose a more stringent standard – namely, the intent to use the weapon in response to actions by law enforcement officers. Similarly, a more restrictive definition of what constitutes a “protective weapon” could be considered. Such a definition would prohibit only major protective gear – such as shields and gas masks – while permitting the use of minor items like goggles, FFP2 masks, or mouthguards. Another approach to restricting Section 27 would be to introduce an individual “balancing test”, requiring a proportionality assessment between the interference and the right to peaceful assembly. In principle, all German courts are obligated to consider the right to peaceful assembly under Article 8 of the German Basic Law when restricting this right. However, this does not imply that a detailed proportionality analysis must be conducted in every case involving peaceful assembly. Lower courts must interpret the laws in light of Article 8 of the Basic Law and consider whether their judgment complies with the jurisprudence of higher courts. However, the responsibility for ensuring that the jurisprudence in this area – including the definitions and conceptual frameworks applied – aligns with constitutional standards generally lies with the higher courts, and ultimately with the Federal Constitutional Court.
The district and regional courts thus applied the law as it currently stands and as interpreted by the higher courts. Introducing an additional requirement – such as an “actual danger to public safety” to qualify an item as a protective weapon – would contradict the wording of Section 27 and the jurisprudence of the Federal Court of Justice. Likewise, conducting an additional balancing test would not have aligned with established precedent. The ECtHR’s criticism of the district and regional courts for insufficient reasoning is therefore misplaced. The Court portrays the violation of Article 11 ECHR as a case specific problem although it touches upon a broader problem that is not limited to the applicant’s case.
The critique should instead have been directed at the expansive interpretation of “protective weapon” under German law. The Court correctly notes that the term is not defined in the Federal Assemblies Act and that, generally, such a definition is not required for a law to serve as a valid legal basis for interferences with fundamental rights (§ 45). Interpreting and developing definitions for abstract legal terms is a traditional role of the judiciary – particularly of the higher courts. The appropriate addressee of the Court’s concerns should therefore have been the federal or higher regional courts.
The judgments of the Higher Regional Court of Hesse and the German Constitutional Court were only few sentences long in this case due to procedural reasons. Accordingly, they did not constitute an adequate target for the ECtHR’s critique. Still, the ECtHR’s reliance on the limited assessment by the district and regional courts is puzzling, given that the actual problem that led to the wrongful conviction of the application is much wider and based on an overly broad definition of protective weapon. This critique should have been formulated when assessing the question, whether there is a legal basis for the interference. Following the ECtHR’s logic the answer should have been “no”: Sections 27 and 17a of the Federal Assemblies Act does not provide an adequate legal basis because they employ an overly broad notion of “protective weapon”, which results in a law that is not sufficiently foreseeable and does not balance the competing rights and interests sufficiently.
Besides addressing the wrong level, the ECtHR’s shrouded approach to Russ v. Germany poses the risk of ill compliance. Drawing on its reasoning and its determination under Article 41 ECHR (§ 64), Germany is only compelled to reopen the criminal proceedings against the applicant pursuant to § 359 of the German Code of Criminal Procedure. In applying Section 27 of the Federal Assemblies Act, the courts could continue to apply the same definition and conceptualization and simply add a short assessment as to why the protective weapon is actually a danger to public safety in the case at hand. This translates to perhaps two additional sentences in a judgment, which will not influence the outcome. The legal situation as a whole will therefore most probably remain unchanged.
This would be unfortunate for Germany and send a wrong signal. As I highlighted in my introduction, finding an adequate framework for peaceful assembly is an ever-evolving challenge. In recent years, public prosecutors and courts in Germany have made excessive use of criminal law to address protests, most notably in the context of climate protests. Of course, the right to peaceful assembly is not unqualified and disruptive protests can be subject to state sanctions (ECtHR, Kudrevicius v Lithuania). Relying heavily on criminal law for this purpose is however questionable and a concerning development. Particularly, the use of wide definitions (such as “coercion” in § 240 of the German Criminal Code) is associated with growing concerns over the state of the freedom of assembly in Germany. It would have been laudable had the ECtHR been able to state this clearly with regard to Section 27 of the Federal Assemblies Act.
Its omission on this point similarly sends a troubling signal to states facing more fundamental challenges in regulating peaceful protests. If the Court permits overly broad definitions that are not carefully scrutinized by national courts, the responsibility for applying these norms effectively shifts to the executive branch, thereby expanding its discretionary power. This concern has been a central criticism in other cases (ECtHR, Navalnyy v Russia, §§ 116-119). It would have thus been more advisable for the ECtHR to label the definition of “protective weapon” as overly broad and thus set the precedent for reigning in other overly wide definitions in the legal framework for regulating peaceful assemblies.
Strasbourg Observers is an academic blog that discusses recent developments at the European Court of Human Rights. The editorial team of Strasbourg Observers is based at the Human Rights Centre of Ghent University and the Centre for Government and Law of Hasselt University.
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