Riots in public space

7 June 2013. Riots in the context of protests have caused a stir of late in Swiss cities. Particular notice was attracted by such events if they resulted in acts of violence, criminal damage or major defilement of property. Events such as “Tanz dich frei” (Berne, May 2013), “Reclaim the Streets” (for instance in Zurich, October 2012), spontaneous SMS parties (for instance in St.Gallen, July 2012) and collective drinking orgies (co-called Botellóns, for instance in Zurich, August 2008) are cases in point.

The fact that politicians call for the identification of the people who are “responsible” for these events and want the authorities to clamp down on these events (“zero-tolerance policy”) may be understandable. It must be borne in mind, however, that the law limits the authorities’ scope of action.

Freedom of expression is centre stage
People who make use of public space are able to invoke their fundamental rights for the purpose. The focus is on the freedom of expression (Art. 16, Federal Constitution) and the freedom of assembly (Art. 22, FC). The freedom of expression can be invoked by people, in particular, who want to express a political or ideological opinion in public space.

According to the case law of the Swiss Federal Court, the freedom of assembly can also be invoked by people who only gather for a convivial purpose, for example if they want to party together or to consume alcohol. However, there is no unconditional right to the use of public space, particularly if this use exceeds a certain intensity. This “more intensive common use” of public ground may be made subject to permission obtained from the authorities in advance.

This permission is primarily for the benefit of coordination with other users of public space (market stallholders, organisers of other events, etc.) but is also intended to guarantee security (for instance if a violent counter-demonstration is to be expected) and provide the basis for the organisation of subsequent clean-up operations. Often, the permission procedure is also an occasion when the authorities and the organisers arrange the exact time and place of the event.

The anonymous organisation of events in public space through the internet or by text messages regularly results in a situation whereby such permission is not obtained and the authorities have no one to contact. This creates a dilemma for the authorities, and other users of public space are impaired in the exercise of their fundamental rights. This inconsiderate behaviour does not prevent participants in an unpermitted event from being able, in principle, to invoke their right of assembly (and if need be also the right to freedom of expression). People who organise an event in public space without permission may also be punished, in certain circumstances with a fine (in the Canton of Berne, for example, with a fine of up to 5,000.00 Swiss Francs).

Violent riots in connection with peaceful demonstrations
In the recent past, various unpermitted events were characterised by the fact that they were hijacked by a small group of people prepared to use violence in order to commit criminal acts (criminal damage, but also crimes against health and life). Such punishable behaviour is no longer protected by the fundamental rights. However, it cannot simply be held against the organisers of an event if they have not obtained permission and remain anonymous.

Accordingly, the demand made on operators of internet platforms to disclose people’s names might not, as a rule, result in the people concerned being punished – apart from a fine on account of ignoring the duty to obtain permission – unless the organisers had expressly called on participants to commit acts of violence. Also, it might well be disproportionate to impose the police costs caused by the event they had basically planned as a peaceful assembly, as a recent ruling of the Lucerne Administrative Court makes clear.

This would result in a “chilling effect” which would keep people from organising a peaceful event. The traditional events of Labour Day, for which permission is always obtained long in advance, demonstrate that any large-scale event can be misused for their own purposes by people who want to use violence.

Zero-tolerance strategy does not work
If such a situation is to be prevented, this unfortunately requires a large-scale police presence and a difficult process of weighing up whether to tolerate some criminal acts or to intervene at once. There are no simple solutions: neither a zero-tolerance strategy, which sometimes provokes even more violence, nor the disclosure of the personal data of those who are allegedly “responsible” for the event will do the trick.

Photo: Photocase / Katharina Levy