SECOND SECTION
CASE OF RUSS v. GERMANY
(Application no. 44241/20)
 
 
JUDGMENT
Art 11 (read in the light of Art 10) • Freedom of peaceful assembly • Applicant’s criminal conviction and fine for wearing a plastic visor during a peaceful demonstration found to breach the domestic ban on “protective weapons” at public outdoor assemblies • Lack of sufficient reasons • Domestic courts’ failure to balance applicant’s right with the legitimate aims pursued by the ban or the exemptions from the ban under domestic law and sufficiently assess the overall circumstances of the demonstration • Interference not “necessary in a democratic society”
 
Prepared by the Registry. Does not bind the Court. STRASBOURG
20 May 2025
 
FINAL
 
20/08/2025
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Russ v. Germany,
The European Court of Human Rights (Second Section), sitting as a Chamber composed of:
 Arnfinn Bårdsen, President,
 Saadet Yüksel,
 Jovan Ilievski,
 Péter Paczolay,
 Anja Seibert-Fohr,
 Davor Derenčinović,
 Juha Lavapuro, judges,
and Dorothee von Arnim, Deputy Section Registrar,
Having regard to:
the application (no. 44241/20) against the Federal Republic of Germany lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a German national, Mr Benjamin Russ (“the applicant”), on 1 October 2020;
the decision to give notice to the German Government (“the Government”) of the complaints concerning Articles 10 and 11 of the Convention;
the parties’ observations;
Having deliberated in private on 29 April 2025,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The application concerns the criminal conviction of the applicant for wearing a plastic visor at a demonstration in breach of a general prohibition of carrying protective weapons (Schutzwaffen) at public outdoor assemblies in Germany. The applicant relied on Articles 7, 10 and 11 of the Convention. THE FACTS
2. The applicant was born in 1985 and lives in Munich. He was represented by Mr M. Breuer, a lawyer practising in Munich. 3. The Government were represented by one of their Agents, Ms N. Wenzel, of the Federal Ministry of Justice. 4. The facts of the case may be summarised as follows. THE DEMONSTRATION
5. On 18 March 2015 the newly built building of the European Central Bank (ECB) headquarters was opened in Frankfurt am Main. A broad alliance of organisations and parties, called Blockupy, organised and called for various protests during that day in Frankfurt, including peaceful blockades and a demonstration. 6. The applicant participated in a demonstration on the morning of 18 March 2015, which included peaceful blockades, under the slogan “colourful, loud – but peaceful” (bunt, laut – aber friedlich). For about three hours, he wore a piece of transparent plastic sheeting (relatively hard but flexible and thinner than Plexiglas), which he had fastened with a rubber band so that it covered his forehead and eyes. Several participants of the demonstration wore a similar visor. The applicant had written the words “smash capitalism” on his visor. During the demonstration the police officers present neither warned nor fined the applicant nor requested that he remove the visor. 7. Before the start of that demonstration, from around 5 a.m. until midday, groups of individuals willing to commit acts of violence also gathered in the Frankfurt district of Ostend, where the ECB’s headquarters are located and where the demonstration in which the applicant participated took place. These groups blocked a number of streets, erected barricades and then set them on fire. They also damaged a large number of cars, some of which they also set on fire. They threw stones and bottles at police officers and some attacked bystanders, firefighters and emergency medical services. Other activities included damaging property, setting fire to police vehicles and inflicting bodily harm on police officers. THE CRIMINAL PROCEEDINGS
8. On 28 June 2016 the Frankfurt am Main District Court issued a penalty order against the applicant. The order imposed a fine of 40 daily rates at 10 euros (EUR) each. The penalty order stated that on 18 March 2015 the applicant, as a participant in a demonstration, had temporarily worn a plastic visor over his face for the purpose of protecting himself against police measures, such as the use of pepper spray. 9. After the applicant objected to the penalty order and a hearing was held on 3 May 2017, the District Court convicted the applicant and sentenced him to a cumulative penalty of 60 daily rates at EUR 30 each, taking into account a previous conviction with a related penalty of 50 daily rates. 10. The court considered that the wearing of the plastic visor was a violation of sections 17a(1) and 27(2) § 1 of the Act on Public Assemblies and Processions (Versammlungsgesetz) (see paragraphs 17 and 18 below), which prohibits the carrying of protective weapons at public outdoor assemblies. Referring to documentation of the legislative process (see paragraph 19 below), the court defined protective weapons as “objects that are used for defence against attacks and are usually given this purpose at the time of manufacture”. Examples given in the documentation from the legislative process included “protective shields, self-made armour or equipment for police and/or military use (e.g. steel helmets [and] NBC protective gas masks) or [items used in the] martial arts” (see paragraph 19 below). The District Court stated that the plastic visor, despite its simple construction, was designed to be such a protective weapon as it was capable of “preventing the eyes from being directly exposed to liquids or gases, in particular to pepper spray, and thus ensuring or at least prolonging the ability of the wearer of the plastic visor to defend himself in the event that such coercive measures are used by the police”. The court further found that the visor had been designed for that purpose, since no other “civil” use of such a visor was imaginable. 11. With regard to the inscription “smash capitalism” on the plastic visor, the court held that the purpose of the visor was not solely the expression of an opinion. Therefore, the inscription did not affect the nature of the visor as a protective weapon. The applicant could have worn the visor on the back of his head, which would have allowed him to show the inscription, but the visor would not have constituted a protective weapon. 12. The applicant appealed against that decision and the Frankfurt am Main Regional Court reduced the penalty to 10 daily rates on the grounds that the previous conviction, taken into account by the District Court, had already been served. The Regional Court otherwise found the applicant guilty of carrying a protective weapon in violation of the Act on Public Assemblies and Processions. 13. As regards the interpretation of the term “protective weapon”, the Regional Court stated:
“Protective weapons are not weapons in a technical sense. They are objects that are used for defence against attacks and are usually given this purpose at the time of manufacture. The plastic sheet used by the defendant with the inscription ‘smash capitalism’ constitutes a protective weapon according to this definition. The sheet served to defend against pepper spray attacks in the context of coercive police measures, and not just to exercise the freedom of expression; this purpose was already assigned to it when it was manufactured, as follows from the inscription ‘smash capitalism’.”
14. The court also rejected the possibility that the applicant had made a mistake and should thus be exempted from punishment. The fact that the police officers at the demonstration had not pointed out that it was a criminal offence to carry a protective weapon was irrelevant. Given the applicant’s role as a spokesperson for the Stop G7 alliance and his long‑standing involvement in the demonstration scene, the Regional Court did not consider that he had made a mistake; in any event, any such mistake would have been avoidable, as he could have asked the police officers present before the demonstration for clarification on the legality of wearing the plastic visor. 15. The applicant lodged an appeal on points of law and on 13 August 2019 the Court of Appeal rejected it. 16. On 18 March 2020 the Federal Constitutional Court refused to accept for examination a constitutional complaint lodged by the applicant, without providing reasons (file no. 2 BvR 1796/19). The decision was received by the applicant’s representative on 30 March 2020. RELEVANT LEGAL FRAMEWORK
17. Section 17a(1) of the Act on Public Assemblies and Processions prohibits the carrying of protective weapons or objects, suitable for use as protective weapons and, in the circumstances, intended to ward off law‑enforcement measures used by a holder of sovereign power, while present at or travelling to public outdoor assemblies, processions or other outdoor public events. Subsection 3 of the provision exempts religious services and processions, pilgrimages, funerals, processions of wedding parties and traditional folk festivals from the prohibition. It also permits the competent authority to grant further exemptions where there is no reason to fear a threat to public safety or order. In accordance with subsection 4 of the provision, the competent authority is permitted to issue orders to enforce the prohibition and in particular to exclude persons from the event who violate these prohibitions. 18. Section 27(1) of the Act on Public Assemblies and Processions concerns the criminal liability of violations of the above-mentioned prohibition and reads, in so far as relevant, as follows:
“... Any person who,
1.  contrary to section 17a(1), carries protective weapons or 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, while [present] at or travelling to public outdoor assemblies, processions or other outdoor public events,
...
[shall] incur a penalty of imprisonment for a term not exceeding one year or a fine.”
19. During the legislative process introducing the prohibition of protective weapons into German law in 1985 the Legal Committee of the German Parliament stated the following in its report (BT-Drs. 10/3580, p. 4):
“Protective weapons are objects that are used for defence against attacks and are usually given this purpose at the time of manufacture. Protective weapons are therefore primarily protective shields, self-made armour or equipment for police [and/or] military use (e.g. steel helmets [and] NBC protective masks) or [items used in the] martial arts. These items pose a threat to public safety and order at assemblies and processions, regardless of whether they are intended to be used as a means of warding off law‑enforcement measures in individual cases; participants who carry such protective weapons demonstrate an obvious willingness to use violence on account of their martial appearance and, according to findings in the field of crowd psychology, have an aggression-stimulating effect on the crowd. It therefore appears necessary to include the carrying of protective weapons in subsection 1 without the need for a specific intention to use them. In the opinion of the committee majority, it is ensured that the use of protective weapons as mere symbols solely for the expression of opinion is not covered by the legal prohibition in paragraph 1.”
THE LAW
ALLEGED VIOLATION OF ARTICLES 10 AND 11 OF THE CONVENTION
20. The applicant complained that his criminal conviction for wearing a plastic visor at a peaceful assembly and the reasoning of the criminal courts had violated his rights to freedom of assembly and to freedom of expression. He relied on Articles 10 and 11 of the Convention, which read, in so far as relevant, as follows:
Article 10
“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. ... 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, ...”
Article 11
“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. ...”
Admissibility
21. The Government pointed out that the applicant had sent his application more than six months after his representative had received the final decision of the Federal Constitutional Court. 22. The applicant clarified in his application that his representative had attempted to deliver the application in person to the Court on 30 September 2020, but had been unable to do so, as he had only arrived at night, there had been no mailbox, and the security guard post had not been staffed. He had therefore returned to Munich and mailed the application the next day. 23. The Court notes that the six-month period applicable at the relevant time started to run on 31 March 2020, the day after the applicant’s representative received the final decision. Ordinarily, this period would have expired six calendar months later, on 30 September 2020 (see Otto v. Germany (dec.), no. 21425/06, 10 November 2009). However, invoking its interpretive jurisdiction under Article 32 of the Convention, the Court held that, in light of the global pandemic, the method of calculating the six-month rule had to be adapted to the exceptional circumstances. In particular, if the six-month period either commenced or was due to expire during the period defined in the President of the Court’s decisions (16 March to 15 June 2020), the rule under Article 35 § 1 should be considered exceptionally suspended for a total of three calendar months (see Saakashvili v. Georgia (dec.), nos.  6232/20 and 22394/20, §§ 49-59, 1 March 2022, and Makarashvili and Others v. Georgia, nos. 23158/20 and 2 others, § 47, 1 September 2022). 24. In the present case, since the six-month period began on 31 March 2020 and the original expiry date (30 September 2020) fell within the relevant suspension window, the Court concludes that the applicant had an additional three months until 30 December 2020 to submit the application. Since the application was introduced on 1 October 2020, the Court finds that the application cannot be considered to have been lodged out of time within the meaning of Article 35 § 1 of the Convention, in the light of the exceptional circumstances outlined above. 25. The Court further notes that the complaints are neither manifestly ill‑founded nor inadmissible on any other grounds listed in Article 35 of the Convention. They must therefore be declared admissible. MeritsThe parties’ submissions

(a)   The applicant
26. The applicant submitted that his criminal conviction for wearing a plastic visor at a demonstration had interfered with his right to freedom of peaceful assembly. As the interference had constituted a criminal conviction it had had a chilling effect. The interference had not had a legal basis, since the plastic visor could not have been considered a weapon, and it had not pursued a legitimate aim, as the plastic visor was incapable of protecting him against targeted and legitimate enforcement measures by the police, in particular the use of pepper spray. 27. Moreover, the criminal conviction had not been necessary in a democratic society. A criminal conviction as a sanction in the context of political acts should have only been used in exceptional circumstances. Those circumstances had, however, not existed, as he had not given any reason for enforcement measures to be used by the police against him, but had demonstrated peacefully. While criminal offences had been committed on that day in Frankfurt, this had neither taken place in the demonstration in which he had participated nor had he committed any. 28. Regarding Article 10 of the Convention the applicant submitted that Article 11 had to be considered in the light of Article 10 of the Convention. Moreover, he complained under Article 10 of the Convention that the Regional Court had relied on the inscription “smash capitalism” on the applicant’s plastic visor in its reasoning when assessing whether the visor had constituted a protective weapon. (b)   The Government
29. The Government submitted that while a subsequent criminal conviction might in principle constitute an interference with the right to freedom of assembly, the applicant’s conviction had not constituted an interference with Article 11 of the Convention, since the assembly on 18 March 2015 in Frankfurt had not been peaceful and Article 11 of the Convention therefore did not apply. The demonstration on 18 March 2015 had been marked by many acts of violence, such as attacks on police officers and bystanders and vandalism. 30. They further stated that, in the event that the Court concluded that the conviction had constituted an interference, this interference would have been justified. It had pursued the legitimate aims of preventing disorder and crime and protecting the rights and freedom of others. It had also been prescribed by law. Section 17a(1) of the Act on Public Assemblies and Processions set out a ban on carrying protective weapons, while section 27(2) § 1 regulated criminal sanctions for breaches of that ban. Even though there had been no court decision prior to the assembly on 18 March 2015 that directly addressed the question of whether a plastic visor had to be classified as a protective weapon, on the basis of the documentation of the legislative process the courts had come to the conclusion that the specific visor constituted a protective weapon. That conclusion had neither been unpredictable nor arbitrary but had been sufficiently foreseeable for the applicant, if need be with appropriate advice. 31. According to the Government’s submissions, the applicant’s criminal conviction had also been necessary in a democratic society and had fallen within the wider margin of appreciation enjoyed by the State, given the violent nature of the assembly. The demonstration on 18 March 2015 had been marked by countless acts of violence and had therefore posed a real and significant threat to public order. Notwithstanding the simple design of the plastic visor, it had represented a willingness to engage in violence or to protect oneself against any coercive measures by the police. Therefore, protective weapons, in particular if carried by multiple participants, had been able to fuel aggression irrespective of its design. Moreover, the degree of interference had to be categorised as relatively minor. The conviction had constituted a small fine, it had not penalised the applicant’s mere participation at the demonstration and, as it had only been imposed after the assembly, it had not restricted his freedom of assembly during the assembly itself. 32. With regard to Article 10 of the Convention the Government submitted that the domestic courts had taken into account that the visor had been inscribed with the words “smash capitalism”. This inscription had not, however, transformed an unlawful protective weapon into a lawful object for expressing an opinion, since the applicant had not used the visor at the demonstration for the sole purpose of expressing his political opinion but also, according to his own account, to protect himself against the potential use of pepper spray. The applicant had not been convicted for expressing his opinion and had been free to express his opinion at the assembly in ways other than through an inscription on a protective weapon. In general, in the context of assemblies, Article 11 of the Convention had to be considered to be lex specialis and would take precedence over Article 10 of the Convention. Nonetheless, Article 11 of the Convention had to be interpreted in the light of the right to freedom of expression, as had been done by the domestic courts.

Outcome for Article 11: violation