The Mitte district office must approve the erection of a wrecked Russian tank near the Russian embassy in Berlin. The local administrative court decided on a protest action by way of temporary legal protection.
As the administrative court (VG) Berlin decided in summary proceedings, the Mitte district office must issue a road traffic exemption under Sections 46 (1) No. 8, 32 (1) Road Traffic Act (StVO) in conjunction with Section 8 (1) Fernstrassengesetz (FStrG) for the Authorize the installation of a shot-up Russian tank near the Russian embassy (decision of October 11, 2022, Az. VG 1 L 304/22). The authority initially rejected the application for approval submitted by the Berlin association “Historiale” in June.
The district office justified its decision, among other things, with the fact that the planned action in front of the Russian embassy is not about art. In addition, an exceptional permit under road traffic law should be rejected, since there is no particularly urgent individual case and there is a risk of endangering pedestrians and road traffic as well as the listed central promenade in front of the Russian embassy.
If not art, then at least opinion
As the VG now found in the summary examination to be carried out by way of interim legal protection, it is irrelevant whether the action is art within the meaning of Art. 5 Para. 3 Sentence 1 Var. 1 Basic Law (GG) can be classified or not. In any case, according to the court, it represents an expression of opinion. “By setting up the wrecked tank, the applicant is expressing her protest against the attack on Ukraine by Russian forces,” said the Administrative Court in its decision LTO present. The action therefore falls within the scope of freedom of expression from Art. 5 Para. 1 Sentence 1 Var. 1GG
In the opinion of the VG, the association cannot actually demand that the wreck be set up directly in front of the Russian embassy due to the heavy weight of the tank. The road there is not designed for a load of 40 tons. However, the authority may not refuse approval of the campaign, which is protected by fundamental rights, on nearby Schadowstrasse. According to the court, there is no concrete danger to road traffic that is required for the rejection of the exemption permit under Section 46 (1) StVO.
dr Patrick Heinemann from the law firm Bender Harrer Krevet, lawyer for the plaintiff association “Historiale”, comments on the decision LTO So: “The administrative court cleared up the sometimes hair-raising arguments of the district office and underlined the importance of freedom of expression in road traffic law. This makes it clear: the Berlin authorities are not allowed to freely decide which forms of protest against the Russian war of aggression are permitted in public space .”