FEDERAL CONSTITUTIONAL COURT

– 1 BvR 605/04 –

– 1 BvR 674/04 –

– 1 BvR 1580/04 –

In the proceedings
on
the constitutional complaints of

– 1 BvR 605/04 –,

– 1 BvR 674/04 –,

– 1 BvR 1580/04 –,

the First Chamber of the First Senate of the Federal Constitutional Court

with the participation of Justices

President Papier,

Hohmann-Dennhardt

and Hoffmann-Riem

on the basis of § 93b in conjunction with § 93a of the Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz – BVerfGG) in the version published on 11 August 1993 (Federal Law Gazette (Bundesgesetzblatt – BGBl) I p. 1473) unanimously held on 26 September 2006:

1. The constitutional complaints are not admitted for decision.

R e a s o n s:

The constitutional complaints are directed against the imposition by criminal courts of administrative fines for contraventions of a ban on activities under the law of association (§ 20.1 no. 4 of the Association Act (Vereinsgesetz – VereinsG) in conjunction with § 18 sentence 2 of the Association Act).

I.

1. By a decree issued by the Federal Minister of the Interior on 22 November 1993, a ban on activities pursuant to § 18 sentence 2 of the Association Act was imposed on the “Kurdistan Workers' Party” (PKK). The ban was published in the Federal Bulletin (Bundesanzeiger – BAnz) of 26 November 1993 (No. 222) (Federal Bulletin 1993, 10313-10314). Nos. 1 and 2 of the decree read, in parts, as follows:

1. The activity of the “Kurdistan Workers’ Party” (PKK), including its branches (…), infringes criminal laws, is directed against the idea of international understanding, endangers the internal security, the public order and other important interests of the Federal Republic of Germany.

2. The “Kurdistan Workers’ Party” (PKK) (…) may no longer be active within the area of application of the Association Act.

The decree imposing the ban attained administrative finality; the PKK as such did not bring action against it. An action brought by branches of the PKK was rejected by the Federal Administrative Court (Bundesverwaltungsgericht ); the court only regarded the plaintiffs’ allegation not to be branches as an admissible subject-matter of the action but not the question of whether the grounds for the ban that was directed against the PKK as a whole in fact existed (see Federal Administrative Court (BVerwG), Neue Zeitschrift für Verwaltungsrecht – NVwZ 1998, p. 174 (174-175)). On 15 February 1999, the leader of the PKK, Abdullah Öcalan, was arrested in Kenya by Turkish officials (see European Court of Human Rights (ECtHR), Öcalan v. Turkey , Europäische Grundrechte-Zeitschrift (EuGRZ) 2003, p. 472), which resulted in – partly violent – protests by PKK supporters.

Subsequently, the PKK changed its action (see Federal Court of Justice (BGH), Neue Juristische Wochenschrift (NJW) 2005, p. 80 (81 et seq.)). The PKK leadership unilaterally declared the end of its guerrilla fight against Turkish army units and ordered the withdrawal of its armed units from Turkey. On the seventh extraordinary party convention on 17 January 2000, a “peace initiative” was declared binding party policy. After this point in time, no ostentatious criminal acts of violence organised by the PKK were committed in Germany (see Federal Court of Justice, loc. cit. , pp. 82-83, also as regards the question of whether the PKK leadership all the same continued to be oriented towards committing such offences, and as regards the offences committed in connection with the so-called “Homeland Office” and the system of punishment of PKK commands acting against members and outsiders). The unilateral ceasefire was observed by the PKK and its successor organisations ("Kurdish Congress for Freedom and Democracy” – KADEK, since spring 2002; "Kurdistan People's Congress” – KONGRA GEL, since November 2003) until mid-2004; since then, there have again been clashes in Turkey (see Federal Ministry of the Interior, Verfassungsschutzbericht 2005 (preliminary version), p. 255).

In 2001, the PKK Presidential Council decided to launch a large-scale campaign in which its supporters were intended to contact public authorities, to declare their sympathy for the PKK and to call for a lift of the PKK ban. The participants of the campaign signed letters of self-incrimination, which were submitted in large numbers to German parliaments, public authorities and courts. The declarations were partly in German and partly in Turkish; one of the largely identical German versions read as follows (see also the declaration “Auch ich bin eine PKK'lerin ”, which makes reference to the position of Kurdish women: Federal Court of Justice, Neue Juristische Wochenschrift 2003, p. 2621 (2621)):

Self-declaration:

“I am also a member of PKK”

As the Kurdish people was deprived even of the elementary right to live, it had no choice but to take up arms. After more than twenty years of war, a change of strategy was initiated by our national leadership, Abdullah Öcalan. For two years now, the PKK has been fighting with exclusively political means for a peaceful and democratic solution of the Kurdish question. On the basis of this new strategy, the Kurdistan Workers’ Party (PKK) is experiencing a comprehensive renovation. Firmly resolved to reach a solution, it has further developed its political activities against all opposition without transgressing the bounds of legality.

Even though, in geographical terms, the Kurdish question arose in the Middle East, it is nevertheless, due to its historical, political and international connection, a problem of Europe which awaits its solution. Europe played an important part for instance in the determination of the borders of the Middle East. Therefore Europe is now faced with the task of playing a part in a solution of the problems there as well. Just as Europe showed by the abduction of our Chairman in the context of an international conspiracy that it did not have a perspective for a solution, today it also does not avail itself of the opportunity provided by the PKK.

While the majority of the European Member States makes the observance of the Copenhagen criteria the precondition for Turkey’s accession to the European Union, they at the same time negate the national and political status of the Kurds living in Europe. Thus, in particular Germany and England insist vis-à-vis the PKK, as the legitimate political representation of the Kurdish people, on a policy of bans. With this destructive attitude, Europe places itself in the context of the policy of destruction and denial against the Kurdish people. As in the past, Europe is continuing its negative policy today. This is nothing else than a policy of double standards:

1. On this basis, I declare, as a member of the Kurdish people, that I share the new line of the PKK, which has been waging its political struggle on a legal basis for two years now. I furthermore declare my affiliation to the PKK.

2. I call upon the European Member States to have themselves judged against the standards which they apply with regard to other non-Member States. Apart from this, I call upon these states to themselves take due account of the declared criteria of an accession to the European Union with regard to the Kurds living in Europe. I therefore demand for the Kurdish people the official recognition of the rights which are also conceded to other peoples.

3. I furthermore demand the official recognition of the cultural and political values which the Kurdish people has created in a great struggle. In this context I demand the respect of the national and political identity of my people.

4. I support the PKK’s line of democratic struggle, which was confirmed also by its 7th Convention. With a view to the fact that in a period of two years, the PKK has not carried out a single violent action, I demand the lift of all bans which are being applied to the PKK.

5. I furthermore declare that the only guarantee for a lasting solution is the freedom of our national leader, Abdullah Öcalan, and the creation of possibilities for his political activity. I therefore demand: “Freedom for Abdullah Öcalan – Peace in Kurdistan”.

I herewith declare that I most severely condemn the ban imposed on the PKK and the criminal prosecution of PKK membership and of active sympathy for the PKK. I furthermore declare that I do not recognise this ban and will assume all responsibility resulting therefrom.

2. Proceedings 1 BvR 605/04

According to the facts established by the Regional Court, the first complainant, on the occasion of an event of the association "M. e.V." in S., signed, on 8 July 2001, one of the self-declarations in a German version. The declarations were collected there and submitted to the Federal Constitutional Court, together with several thousand such declarations, on 10 July 2001. In the challenged judgment, the Regional Court sentenced the first complainant to a fine of 120 daily rates of €15 each for contravening a ban on activities under the law of association. The complainant’s appeal on points of law was rejected as unfounded by the order of the Federal Court of Justice which is challenged as well. By means of his constitutional complaint, the complainant challenges a violation of his fundamental right under Article 5.1 sentence 1 of the Basic Law (Grundgesetz – GG).

3. Proceedings 1 BvR 674/04

a) According to the facts established by the Regional Court, the second complainant organised and coordinated, together with other persons, a campaign for collecting signatures on self-declarations of the described type in Berlin. She herself collected a large number of signatures, asked her compatriots to sign and brought together the collected signatures in several files. She herself signed a declaration as well. On 16 July 2001, she, together with two other persons, submitted two files with a total of 467 self-declarations to the Berlin public prosecution office. On 24 September 2001, she submitted another file with self-declarations. In a search of the second complainant’s flat, 15 self-declarations in German and one in Turkish were seized. Apart from this, the complainant on several occasions donated money for the “Kurdish Democratic People's Union”, (YDK), a successor organisation of the “National Liberation Front” (ERNK) that had been banned by the decree of 22 November 1993.

b) In the challenged judgment, the Regional Court sentenced the complainant to a fine of 150 daily rates of €8 each for an infringement of § 18 sentence 2 in conjunction with § 20.1 no. 4 of the Association Act. The court held that the complainant had infringed the ban on activities by signing the declaration, by taking part in the campaign and by her donations.

The Federal Court of Justice rejected the complainant’s appeal on points of law as unfounded by the challenged order. The Federal Court of Justice held that the Regional Court had rightly assumed that by signing the declaration and participating in the organisation of the campaign decided by the PKK’s Presidential Council, the complainant had contravened the enforceable ban on engaging in activities in favour of the PKK under § 18 sentence 2 of the Association Act, thereby realising the elements of the offence set out in § 20.1 no. 4 of the Association Act. For details, the Federal Court of Justice made reference to the judgment of the Senate of 27 March 2003 – 3 StR 377/02 –, Neue Juristische Wochenschrift 2003, pp. 2621-2622. The court held that as for the rest, the Regional Court’s interpretation of the self-declaration and its evaluation of the complainant’s behaviour complied with the requirements following from Article 5.1 sentence 1 of the Basic Law. According to the court, the complainant’s lack of willingness to observe the ban was confirmed by the circumstance that she had previously been convicted for the same type of offence and that irrespective of the self-declaration campaign she had infringed the ban on activities in another case by funding the ERNK. When fixing the fine, the criminal division had also observed the value-determining significance of the freedom of opinion.

c) The complainant challenges violations of her rights under Article 5.1 sentence 1 of the Basic Law and Article 17 of the Basic Law; on this, she submits inter alia the following:

aa) Her right to free expression of opinion is violated. The challenged judgment recognisably fails to appreciate the meaning of the statement in dispute. In a previous ruling, the Regional Court’s adjudicating criminal division itself regarded an interpretation as obvious that does not result in a punishability of the statement. In the challenged decision, the Regional Court, in contrast, focuses on two circumstances: the alleged commitment to non-observation of the punishable ban on activities also in the future and the strengthening of solidarity among individuals who are equally minded in this respect. Both lines of reasoning compete with interpretations that are at least equally obvious. Contrary to the view held in the challenged judgment, the passage of the self-declaration which states the intention not to recognise the ban and to assume all responsibility resulting therefrom need not (forcibly) be understood to mean that the complainant thereby wants to commit herself to infringing the law on associations in the future.

After ceasing the armed struggle, the PKK stopped all illegal activities also in Europe. This has remained so until today and will, according to the complainant’s conviction, remain so in the future. It is not plausible that the responsible non-recognition of the ban at the same time comprises the commitment to perpetrating future offences. The assumption of responsibility defies the ban and primarily confirms its disapproval, which had been explained in great detail before. It does not necessarily at the same time announce the deliberate and intended contravention in the future, contravention which, apart from this, the informed public does not expect with a view to the PKK’s having proclaimed to act in legality.

It was only possible to ascertain the complainant’s alleged aim to sabotage, together with others, the functioning of the administration of justice in order to make it possible for the PKK to continue its prohibited activity by an infringement of the value-defining significance of the freedom of opinion. This already follows from the circumstance that the content of the self-declaration cannot be understood in such a way that the complainant had wanted to provoke the institution of criminal proceedings.

bb) Article 17 of the Basic Law is violated as well. It guarantees the right to submit requests or complaints to public authorities. The boundaries under criminal law of the freedom of petition are not narrower than that of the freedom of opinion. The right of petition under Article 17 of the Basic Law, which is guaranteed without reservation, privileges the holders of the fundamental right even in comparison to the freedom of opinion as regards the content and the circumstances of a petition.

4. Proceedings 1 BvR 1580/04

On 13 and 20 June 2001, demonstrations of PKK sympathisers took place before the Düsseldorf Higher Regional Court. At that time, a trial against a high-ranking PKK member – H. – took place there. On these days, several thousand self-declarations of the type described above were handed in at the court building. On 10 June 2001, the third complainant signed such a declaration in Turkish, which was handed in with others at the Higher Regional Court on 13 June 2001.

In the challenged judgment, the Düsseldorf Regional Court sentenced the complainant to a fine of 50 daily rates of €8 each for contravening a ban on activities under the law of association. The complainant’s appeal on points of law was rejected as unfounded by the order of the Federal Court of Justice which is challenged as well. The Federal Court of Justice held that the Regional Court had rightly assumed that by signing the declaration and participating in the campaign, the complainant had contravened the enforceable ban on engaging in activities for the PKK under § 18 sentence 2 of the Association Act, thereby realising the elements of the offence set out in § 20.1 no. 4 of the Association Act. For details, the Federal Court of Justice made reference to the judgment of the Senate of 27 March 2003 – 3 StR 377/02 –, Neue Juristische Wochenschrift 2003, pp. 2621-2621. By means of his constitutional complaint, the complainant challenges a violation of his fundamental right under Article 2.1, Article 3.1 and 3.3 and Article 5.1 sentence 1 of the Basic Law as well as of the right under Article 103.2 of the Basic Law.

II.

There are no reasons for admitting the constitutional complaints. The constitutional complaints have no fundamental constitutional significance (§ 93a.2 letter a of the Federal Constitutional Court Act because the relevant questions under constitutional law have already been decided by the Federal Constitutional Court. The admission of the constitutional complaint is also not indicated to enforce the rights mentioned in § 90.1 of the Federal Constitutional Court Act (§ 93b.2 letter b of the Federal Constitutional Court Act). The constitutional complaints have no prospects of success. They are unfounded.

1. The challenged decisions do not violate the complainants’ right to freedom of opinion from § 5.1 sentence 1 of the Basic Law.

a)The statements on account of which the complainants were sentenced for contravening a ban on activities under the law of association are covered by the scope of protection of the freedom of opinion. This also applies to the extent that the self-declarations, apart from evaluative statements, contain opinion-related allegations of facts. The punishment imposed on account of these expressions of opinion constitutes an encroachment on the fundamental right.

b) The encroachment is based on a legal basis which is constitutional.

aa) The fundamental right of opinion is not guaranteed without reservation. Pursuant to Article 5.2 of the Basic Law, it is bounded inter alia by the general laws.

These are laws which are not directed against the freedom of opinion as such or against the expression of a specific opinion; on the contrary, they serve the protection of a legal interest which must be protected per se , irrespective of a specific opinion. This legal interest must be protected in the legal system in general; hence it must be protected irrespective of whether it can be violated by expressions of opinion or in other ways (see Decisions of the Federal Constitutional Court (Entscheidungen des Bundesverfassungsgerichts – BVerfGE 111, 147 (155); established case-law).

The provision of § 20.1 sentence 1 no. 4 of the Association Act, on which the challenged decisions are based, is a general law within this meaning (see (Federal Constitutional Court (Bundesverfassungsgericht – BVerfG), orders of the First Chamber of the First Senate of 15 November 2001 – 1 BvR 98/97 –, Neue Zeitschrift für Verwaltungsrecht (NVwZ) 2002, p. 709 (709); – 1 BvR 2180/98 –, NVwZ 2002, p. 711 (711); – 1 BvR 289/00 –, NVwZ 2002, p. 712 (712)). It makes the contravention of an enforceable ban under § 18 sentence 2 of the Association Act a punishable offence in order to ensure the enforcement of a ban on the activity of a foreign association in the area of application of the Association Act. Pursuant to § 15.1 and § 14.1 of the Association Act, such bans may be imposed to protect the legal interests mentioned in Article 9.2 of the Basic Law, and where associations violate or endanger the internal or external security, the public order or other important interests of the Federal Republic of Germany or of one of its Länder . These legal interests are protected irrespective of the type of danger they are threatened with, i.e. also if they are endangered in another way than by expressions of opinion. It is constitutionally unobjectionable if the legislature gives the protection of this legal interest priority over the freedom of opinion. The interpretation and application of § 2.1 sentence 1 No. 4 of the Association Act may, however, not disregard the content of protection of Article 5.1 of the Basic Law.

bb) § 20. 1 no. 4 of the Association Act does not infringe the principle of definiteness under Article 103.2 of the Basic Law (see Federal Constitutional Court, order of the Third Chamber of the Second Senate of 5 June 2000 –  2 BvR 566/00 –, Neue Zeitschrift für Strafrecht (NStZ) 2000, p. 540; order of the First Chamber of the First Senate, Neue Zeitschrift für Verwaltungsrecht 2002, p. 709 (711)).

Pursuant to Article 103.2 of the Basic Law, an act may only be punished if it was defined by a law as a criminal offence before the act was committed. The provision obliges the legislature to specify the preconditions of punishability in such a way that the implications and the scope of application of the constituent elements of offences can be recognised and can be ascertained by interpretation (see BVerfGE 64, 389 (393-394); 80, 244 (256-257)). § 20.1 sentence 1 no. 4 of the Association Act contains, in conjunction with § 14.3 sentence 1 and § 18 sentence 2 of the Association Act, a description of the punishable conduct which complies with these requirements (see BVerfGE 80, 244 (256-257) on § 20.1 no. 1 of the Association Act; Federal Constitutional Court, Neue Zeitschrift für Strafrecht 2000, p. 540; Neue Zeitschrift für Verwaltungsrecht 2002, p. 709 (711); Federal Court of Justice, Neue Juristische Wochenschrift 2002, p. 2190 (2191)).

c) It is for the non-constitutional courts to interpret and apply non-constitutional law. The Federal Constitutional Court only examines whether in doing so, they respect the fundamental rights (see BVerfGE 7, 198 (205 et seq.); 18, 85 (92-93)). This is the case here.

aa) As the criminal provision affects the individual’s freedom of opinion, the significance of the fundamental right must be taken into account in the interpretation of the provision (see BVerfGE 25, 44 (55)). The interpretation of § 20.1 no. 4 of the Association Act complies with these requirements.

(1) The challenged decisions rely on the judgment of the Federal Court of Justice of 27 March 2003 concerning the compatibility of the self-declarations in favour of the PKK with § 20.1 no. 4 of the Association Act (Federal Court of Justice, Neue Juristische Wochenschrift 2003, p. 2621 et seq.). This judgment, in turn, takes up the previous case-law of the Federal Court of Justice on § 20.1 no. 4 of the Association Act. According to this case-law, inter alia the following applies:

A third party who is neither a member nor otherwise involved in the organisation of an association contravenes a ban on activities pursuant to § 18 sentence 2 of the Association Act if his or her conduct relates to the prohibited activity of the association and is beneficial to such activity. Whether it can be established that a measurable benefit has actually occurred is not decisive; it is sufficient for the offender’s action to be concretely suitable to bring about an effect that is advantageous to the association’s prohibited activity (see Federal Court of Justice, Neue Juristische Wochenschrift 2003, p. 2621 (2622), with reference to Decisions of the Federal Court of Justice in Criminal Matters (Entscheidungen des Bundesgerichtshofes in Strafsachen – BGHSt) 42, 30 (31); furthermore for instance: Federal Court of Justice, Neue Zeitschrift für Strafecht-Rechtsprechungs-Report – NStZ-RR) 1996, p. 218 (218); NStZ-RR 1996, p. 219 (219)).

According to this case-law, the inclusion of outside third parties requires a conduct that is relevant exactly under the perspective of the grounds for the ban (see Entscheidungen des Bundesgerichtshofes in Strafsachen 42, 30 (36); 43, 312 (313); Federal Court of Justice, Neue Juristische Wochenschrift (NJW) 1997, p. 2248 (2249); NJW 1997, p. 2251 (2251-2252); Neue Zeitschrift für Strafrecht 1997, p. 497 (497); NJW 2002, p. 2190 (2190-2191); NJW 2003, p. 2621 (2623)). According to this case-law, a content-related concretisation of the ban on political activity can be inferred from its meaning and purpose illustrated by the grounds for the ban (§ 3.1, § 14.1 of the Association Act). Accordingly, all activities of the banned association are covered which can be relevant under the perspective of the grounds for the ban (see Decisions of the Federal Court of Justice in Criminal Matters 42, 30 (36)). Third-party action that is covered by the elements of the offence is only affected if such behaviour is relevant, under the perspective of the reasons resulting in the ban on activities, in such a way that it can contribute to increasing the dangers which are intended to be prevented by the ban on activities. Such conduct in principle includes propaganda activities within the meaning of so-called sympathy campaigns for the association affected by the ban (see Federal Court of Justice, Neue Juristische Wochenschrift 1997, p. 2248 (2249)). If press products are disseminated, it is not sufficient for them to fall under this concept if they merely advocate the same objectives as the association does, without making reference to the association (see Federal Court of Justice, Neue Juristische Wochenschrift 1997, p. 2248 (2249)). What is important is that § 20.1 no. 4 of the Association Act is not directed against the expression of opinion as such but against its advancing, in a targeted manner, the association’s activity that is banned to protect the democratic state under the rule of law. Individuals are hence not affected to the extent that they themselves support certain political objectives; they are merely prohibited from doing so by supporting the activities of an association on which a ban on activities has been imposed (see Federal Court of Justice, loc. cit. , with reference to BVerfGE 25, 44 (57)). An interpretation of § 20.1 no. 4 of the Association Act which takes Article 103.2 of the Basic Law into account must be restricted to conduct which is potentially relevant under the perspective of the grounds for the ban (see Federal Court of Justice, Neue Juristische Wochenschrift 2002, p. 2190 (2190-2191), with reference to Federal Constitutional Court, Neue Zeitschrift für Strafrecht 2000, p. 540).

(2) This interpretation of the provision is sound under constitutional law.

(a) Considering the lack of organisational structures and the special conditions of realising the ban on activities which result from it, it is constitutionally unobjectionable for the Federal Court of Justice to regard it as sufficient if the offender’s action is actually suitable to bring about an effect that is advantageous to the prohibited activity of the association without demanding evidence of the association’s organisational structure thereby being stabilised and strengthened to a measurable extent (see Federal Constitutional Court, Neue Zeitschrift für Verwaltungsrecht 2 002, p. 709 (710)).

(b) Pursuant to § 18 sentence 2 of the Association Act, the ban on a foreign association which is active in the Federal Republic of Germany but has no (ascertainable) organisational structure there may only be directed against the association’s activity. With a view to the fact that German state authority is limited to the German territory, an order imposing a ban on, and the dissolution of, an association which has its seat abroad would be legally ineffective. The ban on activities is an effective possibility of prohibiting activities of foreign associations which do not have a seat, a branch or an organisation in the Federal Republic of Germany (see Köbler, Neue Zeitschrift für Strafrecht 1995, p. 531 (532); Scholz, Neue Zeitschrift für Strafrecht 1996, p. 602 (603)). The same applies where, as is the case with the PKK, the association as a whole has a domestic branch but is active in the area of application of the Act beyond this, i.e. not only through its domestic branch (see Federal Administrative Court, Neue Zeitschrift für Verwaltungsrecht 1998, p. 174 (175)). Such a ban on activities is constitutionally unobjectionable. The starting point of the assessment, under criminal law, of contraventions is the very ban on activities under administrative law, as is also the case with other criminal provisions that are auxiliary to administrative law (see Decisions of the Federal Court of Justice in Criminal Matters 42, 30 (35 et seq.); Federal Constitutional Court, Neue Zeitschrift für Strafrecht 2000, p. 540).

(c) The interpretation of § 20.1 sentence 1 no. 4 in conjunction with § 18 of the Association Act by the Federal Court of Justice takes sufficient account of the special significance of freedom of opinion for the order established by the Basic Law.

According to this case-law, punishability only covers conduct which is relevant precisely under the perspective of the specific grounds for the ban (see Federal Constitutional Court, Neue Zeitschrift für Verwaltungsrecht 2002, p. 709 (710); Neue Zeitschrift für Strafrecht 2000, p. 540). Furthermore, the conduct must bear a relation to the association’s activity. The relation to the association’s activity (Organisationsbezug ) thus remains a requirement (see Federal Constitutional Court, Neue Zeitschrift für Verwaltungsrecht 2002, p. 709 (710)). Article 5.1 of the Basic Law does not have to come second already where someone advocates the same opinions as the organisation affected by the ban; it does have to come second, however, if an unbiased observer has the impression that this is an action which is directly in favour of the association itself (see BVerfGE 25, 44 (58-59)). Authorisations to limit freedoms guaranteed by fundamental rights are not imposed on account of someone’s mental attitude but on account of the threats to legal interests that follow from concrete conduct (see BVerfGE 25, 44 (58); 111, 147 (159)). Accordingly, the ban on activities under the law of association is intended to counter threats which emanate from the pursuit of an objective that takes place in an organised manner.

The question of whether an activity bears a concrete relation to the activity of an association cannot be answered in the affirmative for the mere reason that reference of any kind whatsoever is made to the association and its activities if the statement, according to its clearly recognisable sense, does not intend to promote precisely the activity of the association affected by the ban. The necessary relation to the concrete grounds for the ban is lacking where, for instance in view of changed circumstances, statements of opinion work towards the lift of a ban on activities; in this case, the person making the statement does not promote the continuation, in contravention of the ban, of the association’s activity, but seeks to create the very conditions for a permitted activity of the association. This is constitutionally protected in the interest of the openness of the democratic process (see Federal Constitutional Court, Neue Zeitschrift für Verwaltungsrecht 2002, 709 (710)).

bb) Also on the level of the application of § 20.1 no. 4 of the Association Act to the individual case, the requirements under Article 5.1 sentence 1 of the Basic Law have not been violated.

(1) Pursuant to § 3.1 and § 18 sentence 2 of the Association Act, the legal precondition of the order imposing the ban is that the association’s activity is the expression of an objective that exists irrespective of a specific situation and that is generally and persistently dangerous (see Federal Constitutional Court, Neue Zeitschrift für Verwaltungsrecht 2002, p. 709 (710-711)). In the context of the criminal court s’ examination of whether the constituent elements of an offence exist, freedom of opinion takes second place without a weighing being required in the individual case, notwithstanding individual weighing that is necessary on other levels, for instance as regards the fixing of the fine. The only decisive question is whether the criteria have been met which are contained, in an abstract form, in the provision that is compatible with constitutional law when the provision is interpreted according to the fundamental rights (see Federal Constitutional Court, Neue Zeitschrift für Verwaltungsrecht 2002, p. 709 (710-711)). Here, the courts assumed this without thereby infringing fundamental rights.

(a) The courts answered the question of whether the self-declarations bear sufficient relation to the association’s activity in the affirmative. According to the facts established by the non-constitutional courts, which are constitutionally unobjectionable, the declarations were made in the context of a mass campaign initiated and steered by the PKK leadership, which was carried out Germany-wide and attracted considerable public attention. The campaign was preceded by large-scale advertising, the content of the declaration was discussed among Kurdish compatriots, the letters were collected and submitted, sometimes in the course of demonstrations (see Federal Court of Justice, Neue Juristische Wochenschrift 2003, p. 2621 (2622)). The headline and the text of the declaration itself ("I am also a member of PKK"; "I furthermore declare my affiliation to the PKK.") also made it possible for the courts to infer, in a constitutionally unobjectionable manner, a sufficient relation precisely to the PKK as the organisation affected from the ban on activities.

(b) The courts observed the principles established by the Federal Court of Justice in its judgment of 27 March 2003 that the self-declarations would nevertheless have been an exercise of the fundamental right of freedom of opinion, which is constitutionally protected against criminal sanctions, if they had restricted themselves to demanding freedom and self-determination for the Kurdish people, to calling for a lift of the ban on activities imposed on the PKK and to severely condemning the maintenance of the ban (see Federal Court of Justice, Neue Juristische Wochenschrift 2003, p. 2621 (2623)). The fundamental right to freedom of opinion includes the right to assert one’s opinion as effectively as possible. The effect of a strengthening of solidarity that goes along with a support of the lift of the ban is to be tolerated in the interest of the free expression of opinion even if it is at the same time an expression of sympathy for the banned association (see Federal Constitutional Court, Neue Zeitschrift für Verwaltungsrecht 2002, 709 (710)).

The courts, however, assumed in a constitutionally unobjectionable manner that the self-declarations in favour of the PKK transgressed the boundaries, thus determined, of declarations of solidarity and sympathy in favour of an association affected by a ban on activities to the extent that they had to be understood as a commitment made by those signing it not to respect the ban on activities in the future and not to be deterred from contravening the ban even by the threat of criminal sanctions. The courts could assume without misjudging freedom of opinion that such a declaration of willingness to break the law that was made in the context of a mass campaign complied with the constituent elements of the offence in question.

(2) The precondition of any criminal conviction for a statement is that the meaning of the statement has been properly grasped. With a view to the intensity of the encroachment of a fundamental right that is inherent in any punishment under criminal law, freedom of opinion is violated if an individual is punished for a statement that he did not make, or did not make in this manner (see BVerfGE 43, 130 (136)). Criminal provisions must therefore be interpreted in such a way that they only permit punishment for a statement if due account has been taken of the requirements placed on the interpretation of controversial statements (on these requirements, see BVerfGE 93, 266 (295-296); 114, 339 (349-350)).

The challenged decisions have assumed without thereby infringing the constitution that only the interpretation to the effect that the self-declaration also contains a commitment made by those signing it not to respect the ban on activities in the future and not to be deterred from contravening the ban even by the threat of criminal sanctions comes into consideration, i.e. the interpretation which results in the punishability of the statement. It has been taken into account here that the objective of interpretation is to determine the objective meaning of a statement. The decisive thing is not the subjective intention of the utterer but the meaning it has according to the understanding of an unbiased, reasonable audience (see BVerfGE 93, 266 (295)).

The courts primarily focused on the last sentence of the self-declaration ("I furthermore declare that I do not recognise the ban and will assume all responsibility resulting therefrom."). They reject, for plausible reasons, the possible variant of interpretation of this statement on whose basis punishment would be incompatible with freedom of opinion. According to this interpretation, which is put forward particularly by the second complainant, the statement not to recognise the ban would have to be understood merely as non-recognition of the legitimacy and lawfulness of the ban and not as a denial of the obligation to observe it.

Such an understanding of the self-declarations is excluded by the courts with reference to the overall context of the declaration and to the circumstances of the campaign which have been established. It is constitutionally unobjectionable that the Federal Court of Justice regards the firm assumption of “all responsibility” for the non-recognition of the ban as an indication of the circumstance that ultimately, the willingness of contravening the ban is intended to be declared as well. It is also unobjectionable that the Federal Court of Justice bases the interpretation of the self-declaration as a statement of the willingness to contravene the ban also on the fact that it had been a declared objective of the campaign to burden the prosecuting authorities with such a large number of proceedings that they would no longer be able to deal with them (see Federal Court of Justice, Neue Juristische Wochenschrift 2003 , p. 2621 (2623)).

2. The freedom of petition under Article 17 of the Basic Law of the complainant in proceedings 1 BvR 674/04 has not been violated.

Article 17 of the Basic Law guarantees every person the right individually or jointly with others to address written requests or complaints to competent authorities and to the legislature. The right of petition opens the petitioner access to a specific group of addressees and prohibits impeding such access. The authority addressed not only has to accept the petition but must examine it as regards its subject-matter and has to inform the petitioner in writing at least of the manner in which it has been dealt with (see BVerfGE 2, 225 (225); 13, 54 (90); Federal Constitutional Court, order of the Third Chamber of the First Senate of 15 May 1992 – 1 BvR 1533/90 –, Neue Juristische Wochenschrift 1992, p. 3033). However, Article 17 of the Basic Law does not contain a statement to the effect that the content of a petition which infringes criminal law or other legal provisions and is thus not protected by the freedom of opinion pursuant to Article 5.2 of the Basic Law becomes lawful for the sole reason of being incorporated into a petition (see Chamber Decisions of the Federal Constitutional Court (Kammerentscheidungen des Bundesverfassungsgerichts – BVerfGK 1, 343 (348)). Therefore Article 17 of the Basic Law does not provide any further-reaching protection against criminal sanctions that is due to the content of expressions of opinion which are the subject-matter of a petition than the protection which already follows from Article 5.1 sentence 1 of the Basic Law.

3. A more detailed reasoning is dispensed with (§ 93d.1 sentence 3 of the Federal Constitutional Court Act).

The decision is unappealable.