What does the police code 143 mean?

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143 I 147


13. Extract from the judgment of the I. Public Law Department i.S. Democratic lawyers Lucerne (DJL) and Mitb. against the government council and canton council of the canton of Lucerne (complaint in public law matters)
1C_502 / 2015 of January 18, 2017


Art. 16 Paragraphs 1 and 2 and Art. 22 BV; Freedom of expression and assembly in connection with the imposition of costs at public rallies.
Imposition of costs as an encroachment on fundamental rights (E. 3.1). Basic principles of freedom of expression and assembly at rallies on public land (E. 3.2). Deterrence or intimidation effect ("chilling effect") when exercising these ideal basic rights (E. 3.3).


32b para. 3 PolG / LU; Art. 5 Para. 2 and Art. 9 BV; Obligation of the organizer to pay for events with violence. Equivalence principle.
Rally organizers as initiators can in principle be apprehended as perpetrators without violating Art. 22 BV (confirmation of case law; E. 5.2). Proportionality of the restriction of the freedom of expression and assembly (E. 5.3). Compatibility of the organiser's obligation to pay for events involving violence with the tax law principle of equivalence (E. 6.3).


32b para. 4 PolG / LU; Art. 5 Para. 2 and Art. 9 BV; Pro-rata cost-bearing obligation of the persons involved in the violence of a maximum of CHF 30,000 for the costs of a police operation. "Chilling effect". Equivalence principle.
Fundamental deterrent effect of a vague legal regulation (question left open in the present case; E. 11). Assessment of the obligation to bear costs on the basis of an objective examination ex post and in accordance with the specific liability share of the individual perpetrators (E. 12.3). Violation of the principle of equivalence confirmed (E. 12.4).



A. After viewing the government council's dispatch dated December 9, 2014, the Cantonal Council of Lucerne decided on June 25, 2015 the following amendment to the law of January 27, 1998 on the Lucerne police (PolG / LU; SRL 350):
2 In particular, [the Lucerne police] can charge the perpetrator for extraordinary expenses that arise during a police operation, in particular if these expenses are caused intentionally or with gross negligence or if they are primarily in the private interest.
32a Reimbursement of costs for events
1 In the case of events with a commercial purpose, the Lucerne police will invoice the organizer for the costs of the police operation.
2 For events with a wholly or partially non-material purpose, the Lucerne police, in agreement with the Justice and Security Department, will charge reduced costs depending on the proportion of the non-material purpose. In the case of rallies, the invoice is waived, subject to 32b.
3 In the ordinance, the government council determines the number of hours that are provided free of charge as part of the basic police service.
32b Reimbursement of costs for events involving violence
1 In the case of events at which violence was committed against people or property, the organizer and the persons involved in the violence can be charged for the costs of the police operation from the beginning of the violence in addition to the reimbursement of costs according to 32a become.
2 A maximum of 40 percent of the costs of the police operation from the beginning of the violence will be divided between the organizer and 60 percent between the people involved in the violence.
3 The organizer is only liable to pay a fee if he does not have the required permit or has intentionally or grossly negligently failed to comply with the permit conditions. Depending on compliance with the approval requirements, the share to be borne by the organizer must be reduced. A maximum of 30,000 francs can be billed to the organizer.
4 The share that is to be borne by the persons involved in the violence is divided equally between the individual persons. A maximum of 30,000 francs can be billed to a single person.
The referendum period expired on August 26, 2015. When it was published in the Cantonal Gazette on August 29, 2015, it was established that the amendment to the Police Act had become final and will come into force on January 1, 2016.

B. The Democratic Jurists of Lucerne, the Young Socialists of the Canton of Lucerne, the Social Democratic Party of the Canton of Lucerne, the Green Party of the Canton of Lucerne, the Lucerne Trade Union Confederation, the Young Greens of the Canton of Lucerne and three private individuals file complaints in public -legal matters to the Federal Supreme Court. You apply for the cancellation of 32b PolG / LU and accordingly also of 32a para. 2 PolG / LU, insofar as this links the waiver of invoicing to the reservation of 32b PolG / LU at rallies.
The Federal Supreme Court deliberated the matter publicly and partially approved the complaint.



3. According to 32a para. 2 sentence 2 PolG / LU, the reservation of 32b PolG / LU relates to rallies, i.e. to events of non-material content. These rallies are protected by freedom of expression and assembly (Art. 16 and Art. 22 BV).

3.1 Every person has the right to form his or her opinion freely and to express and disseminate it unhindered (Art. 16 Para. 1 and 2 BV; Art. 10 ECHR and Art. 21 UN Pact II [SR 0.103.2] ). This includes the most diverse forms of expressing opinions (BGE 132 I 256 E. 3 p. 258 with reference). The freedom of assembly guarantees the right to organize assemblies, to attend assemblies or to stay away from assemblies (Art. 22 BV; Art. 11 ECHR; Art. 21 UN Covenant II). The assemblies include the most varied of ways of bringing people together within the framework of a certain organization with a widely understood mutual opinion-forming or opinion-forming purpose (see BGE 137 I 31 E. 6.1 p. 44 with references).
The imposition of costs in connection with the exercise of freedom of expression and assembly can constitute an encroachment on fundamental rights (cf. CHRISTOPH ERRASS, in: Die Schweizerische Bundesverfassungs, St. Gallen Commentary, 3rd edition 2014, No. 53 on Art. 22 BV). Interferences with fundamental rights require a legal basis and must be justified and proportionate by a public interest (Art. 36 BV). The contested provisions of the Lucerne Police Act provide a legal basis (Art. 36 Paragraph 1 BV; [...]). As in the present case, the protection of public order and security can be considered as a public interest within the meaning of Art. 36 Paragraph 2 BV. The requirement of proportionality in accordance with Art. 36 Paragraph 3 BV requires that an official measure is suitable and necessary for the achievement of the public interest objective and that it is suitable for those affected In view of the severity of the restriction of fundamental rights proves to be reasonable (reasonable ends-means-relation). Police measures must be directed against the perpetrator (personal necessity; see instead of many H FELIN / M LLER / UHLMANN, General Administrative Law, 7th edition 2016, margin no. 554). The reasonableness of the interference is assessed on the basis of a comprehensive weighing of interests between private and public interests (cf. on the whole BGE 132 I 49 E. 6 and 7 p. 57 ff .; ERRASS, loc. Cit., N. 55 ff. On Art. 22 BV).

3.2 The Federal Supreme Court has summarized the basic principles of freedom of expression and assembly for demonstrations on public grounds in BGE 132 I 256 E. 3 p. 258 ff. (With references): Freedom of expression and assembly are maintained in connection with demonstrations a character that goes beyond pure defense rights and has a certain performance element. The mentioned basic rights require that public grounds are made available for rallies. Furthermore, the authorities are obliged to take appropriate measures, such as by granting adequate police protection, to ensure that public rallies can actually take place and are not disrupted or prevented by opposing circles. Demonstrations can be subject to a permit requirement. In the approval process, the authority may take into account the police reasons speaking against a rally, the appropriate use of public land in the interest of the general public and the residents and the impairment of the freedom rights of uninvolved third parties caused by a rally. Police reasons include, in particular, maintaining security and averting the immediate dangers of rioting, rioting and violence as well as assaults and criminal offenses of any kind Are connected with illegal acts (such as damage to property) or pursue a violent purpose. Accordingly, only (originally) peaceful assemblies fall under the protection of fundamental rights. In the approval process, the ideal content of freedom of expression and freedom of assembly must be taken into account. The various interests must be weighed against one another and weighted according to objective criteria. A design that complies with the principle of proportionality may require the arrangement of requirements and conditions as well as a corresponding proportionate participation by the organizers (...). In this sense, based on the freedom of expression and assembly, there is a fundamental right to use public grounds for rallies with an appeal effect.
According to what has been said, Art. 22 BV only protects peaceful gatherings. If, in an initially peaceful gathering, violence develops to such an extent that the opinion-forming component takes a back seat, the protection of the fundamental right may no longer apply. Smaller groups that riot on the fringes of an assembly, however, cannot remove the protection of fundamental rights for the assembly as a whole (M LLER / SCHEFER, Grundrechte in der Schweiz, 4th edition 2008, p. 585; MAYA HERTIG, in: Basler Commentary, Federal Constitution, 2015, N. 8 f. to Art. 22 BV). The fact that there is violence at an originally peaceful rally does not let the protection of fundamental rights lapse from the outset.

3.3 In addition, it should be noted that freedom of expression and freedom of assembly cannot only be impaired by direct interventions such as bans and sanctions. Indirect impairment of these basic rights is also conceivable in the sense that the person concerned no longer dares to make use of the basic right again due to an official reaction. In jurisprudence and teaching, the so-called "chilling effect" (also "effet dissuasif") is spoken of (for the history of the development of this metaphor, which comes from US constitutional law, see JULIAN STABEN, The deterrent effect on the exercise of basic rights, 2016, P. 44 ff .; fundamentally the judgment of the Grand Chamber of the European Court of Justice for Human Rights [ECHR] Goodwin v United Kingdom of March 27, 1996, No. 17488/90, Receuil CourEDH 1996-II p. 500 - 39; further evidence from GRABENWARTER / PABEL, European Convention on Human Rights, 6th edition 2016, 23 N. 27 i.f .; BGE 131 IV 23 at 3.1 p. 28; see also