Academic institutions as spaces for democratic debate and voicing dissent –​ ​legal protections for students on university premises and in the classroom.

Over the past two years, universities have been used as venues for events and gatherings in solidarity with Palestine. Groups of students have organized information events, occupied lecture halls, held protest camps. They aimed to provide an arena for exchange, draw attention to violations of international law by the Israeli state and highlight the precarious asylum status of Palestinians from Gaza in Germany. The protest movement was diverse, overlaid by internal bartering around positions that should or could be represented. Jewish student groups sometimes took part in the protests, others reported experiencing antisemitism and accordingly felt threatened by the meetings.

There is no indication that the universities adopted a united, nationwide response to protests and political events about the conflict between Israel and Palestine. In Berlin, for example, the Freie Universität had protesters evicted from a camp and the Humboldt-Universität also sent in the police against activists, whereas at the Technische Universität events were left to run their course. In other federal states, there were no evictions at Ludwig-Maximilians-Universität in Munich or at the Goethe-Universität in Frankfurt am Main.

The first thing to note from these varied responses is that university administrations have scope for discretion in dealing with student protests and are prepared to make different use of their options. ​​In legal terms, this leeway and the limits to it result, first, from the powers and duties attributed by a university to its own employees and students under higher education legislation; second, from the fundamental right of assembly and freedom of expression of protesters; and third, from elements of criminal law that restrict the right of assembly and freedom of expression.

At the same time, this leeway creates a perceived grey zone for students when they protest on university land. They, too, confront red lines that have been drawn by the university but are often only visible once they have been crossed. ​​For international or migrant students, the consequences of crossing those putative red lines, whether they do so deliberately or because the effect is unpredictable, are weightier than for their German fellow-students who have never experienced racism. 

When a university administration chooses to seek criminal charges against evicted students, the political negotiation of legitimate positions on the Israeli-Palestinian conflict shifts into the arena of criminal law. Above all, this can have consequences for the residence status of students who do not have (definitive) German citizenship. Lawyers practicing in Berlin agree in observing that police action to clear the premises or break up a meeting in solidarity with Palestine has resulted in numerous charges of obstructing police officers. Moreover, the boards of both the Freie Universität and the Humboldt Universität in Berlin decided to press charges of trespass or damage against protesting students. Although Berlin’s Justice Department has not supplied any precise statistics relating to protests and occupations at Berlin’s universities, it is fair to assume that there have been at least 300 cases. The proceedings and their potential outcomes place a mental and financial strain on students. For those who are not German citizens, the mere fact that the police have pressed charges, regardless of the outcome, may pose an existential threat. In Berlin, the police immediately inform the immigration authority, which then suspends any ongoing residence applications. According to lawyers, this repeatedly results in the accused consenting to a suspension in order to bring the procedure to a rapid end,​​ even if they stand a good chance of being found innocent. 

The utilization of criminal law to manage conflict is consistent with the processes of securitization underway at German universities. This is having consequences not only for students, but also for the university as a forum for social and political conflict. Politically active students must attend not only to the criminal proceedings filed against them but also to mobilizing support for students facing charges. This displaces their activity from the university to the courtroom and isolates it​.​ By involving the security services, a university administration hands over its competence for organizing a stage for academic debate and in particular a differentiated response to the diversity of views around the war in Gaza, while at the same time denying the collective competence of its students. Instead of letting the criminal courts assume competence for these debates and for analyzing such situations together with students, universities should be devising non-carceral strategies for dealing with the expression of discriminatory and antisemitic views on campus. 

ECCHR 

Students have the right to assemble on the university campus. Student assemblies and protests are invocations of democratic participation and freedom of expression. They are protected by Germany’s Basic Law (GG), specifically by the freedom of assembly under Article 8 GG and the freedom of expression under Article 5 GG. However, certain characteristics peculiar to universities create tensions between these fundamental, constitutional rights and the university’s public law right to enforce “house rules.”

Article 8 of the Basic Law protects the right to assemble peacefully and without weapons. This protection also applies in principle to students on university property. However, the Basic Law also distinguishes between publicassemblies and non-public assemblies (both of which can take place either indoors or outdoors). This is further regulated in the federal states by laws of assembly, where Section 14 provides that 48 hours of notice must be given for outdoor assemblies. Ad-hoc assemblies addressing a sudden issue are specifically protected under Article 8 of the Basic Law and therefore exempt from the notification requirements in Section 14. Assemblies taking place on private property face less scrutiny.

As a university campus is not necessarily considered a “publicly accessible place,” invoking protection for assemblies is contingent upon the purpose for which premises are specifically used. Universities are public institutions that serve the purpose of research, teaching and study. They are not typical public places like streets or parks, where freedom of assembly applies with little restriction. Nevertheless, universities are crucial spaces for public debate and student self-organizing. Whether university property can be regarded as “public space” with full freedom of assembly depends, therefore, on its function and accessibility. If, for example, an assembly is held within a closed courtyard, this most probably restricts the freedom of assembly. Lecture halls, although they are crucial spaces for political and philosophical debate in the public interest, are often considered “not open to general public traffic”and therefore do not fall within the scope of Article 8 GG. 

However, if a campus is largely open to the general public and regularly tolerates discussion of political or social issues, that argues in favor of a constitutionally protected right to expression, even outside of teaching. In these cases, freedom of assembly is fully protected. Any measure taken against protest must then comply with the law governing assemblies in the federal state concerned, which takes precedence over federal assembly law, but not over the Basic Law. 

Assembly law can also protect protestors from other laws that might be used against them. For example, “eviction” must respect the provisions of assembly law: protestors cannot be evicted from university grounds until the assembly has been dissolved or terminated in accordance with the law of assembly. Dissolution of public assemblies may only be carried out by the police, and only when there is a ​​​​danger to public safety and order; for example, if university operations are threatened. In order to dissolve an entire assembly, ​​it is not sufficient for a single person participating in the assembly to commit ​​a criminal offence. In this case, the police have the option of removing that person from the assembly. Only when the assembly as a whole can be classified as disorderly, for example because of collective aggression or targeted acts of violence, can the assembly be dissolved. The overall character of the assembly is the decisive factor here. If the assembly is marked by violence or accepts it as a means to an end, then it can be dissolved; singular criminal offences are not sufficient. Universities must therefore tolerate public student assemblies as a matter of principle and​​ cannot freely exercise their house and ​​property rights to exclude persons and control activities. 

The situation is somewhat different when a lecture hall is occupied. According to​​​​ case law, this undoubtedly constitutes a form of assembly. However, such a location does not attract the full scope of protection of the Freedom of Assembly Act, as it is open only to a specific group of people and has a specific, limited purpose ‒ the teaching of courses. Universities, therefore, ​​have the option of not tolerating the assembly and can exercise their ​​property rights(“Hausrecht”) to end activities. They can then also arrange for the police to clear the premises. 

Jessica Grimm (criminal defense attorney) 

Universities enjoy a certain degree of organizational autonomy within the regulatory framework of their university autonomy. In principle, therefore, the university management is responsible for enforcing house rules on the university campus. This is further detailed in the higher education laws of the federal states. In the past two years, we have witnessed instances when police were called to enter university campuses to enforce the discontinuation of specific events. 

Even so, police may only enter university grounds and buildings and intervene in events under certain conditions. A balance must be struck between the university’s right to enforce its house rules, academic freedom and the duty of the police to avert danger. This means that police access is generally permitted only with the university administration’s consent.

An exception is made for urgent police matters. If there is an imminent threat, for example, that serious harm will be done to the lives or property of others, the police are entitled to enter the premises. More specifically, and in the university context, the police may intervene if an event poses such danger that waiting for approval from the university administration would result in significantly greater damage. This provision must be interpreted narrowly. 

A legal assessment of police action would look as follows:   

• Concrete danger: There must be a concrete and present danger to public safety, significant disturbance or endangerment of persons (e.g., bodily injury, fire hazard, hostage-taking, suspicion of terrorism).
• Imminent danger: The police must be able to demonstrate objectively that immediate action was necessary and that there was no time to wait for the university’s decision.
• Proportionality: Police intervention must be appropriate, necessary and proportionate. Excessive intervention in a peaceful event would be disproportionate.
• No less severe means: If, for example, it is possible to call on in-house security personnel or contact the university management, this would take precedence. 

Under Berlin law, both the local police force and the State Criminal Police Office (Landeskriminalamt, LKA) operate under the same statutory powers ‒ primarily Sections 1–3 and 17 of the General Safety and Order Act (ASOG Berlin)for danger prevention and, where applicable, the Code of Criminal Procedure (Strafprozessordnung, StPO) for investigative measures. This means that the LKA has no greater authority to enter university premises than local police units. Both are bound by the identical legal thresholds of concrete danger, proportionality, judicial authorization and university request. 

If the event is a public assembly, the provisions of the right of assembly must also be observed: “All Germans have the right to assemble peacefully and without weapons without prior notification or permission”. ​​Here, too, intervention is justified only in the event of an immediate threat (incitement to violence, sedition or similar) or imminent danger. According to the prevailing understanding in the literature and guiding principles of case law of the Federal Constitutional Court, an assembly is only considered unpeaceful if it takes a violent or coercive course, or directly aims to do so. In reality, however, the unclear line of distinguishing certain spaces within university premises as “not open to general public traffic” has been hijacked as a legal back door to justify disproportionate police interventions.

While criminal offences committed through expressions of opinion may justify intervention under public safety law within the meaning of the Assembly Act, they do not render a demonstration non-peaceful pursuant to Article 8 of the Basic Law, which protects even highly provocative or offensive speech as long as no physical violence occurs.

Armaghan Naghipour (Attorney, former State Secretary for Higher Education and Research) 

Protest action and assemblies on university grounds are protected by the fundamental right to freedom of assembly. Nevertheless, protestors may be charged for criminal acts that occur in the course of such actions. The most common criminal charges in connection with student protests include: 

• trespassing​​ (§ 123 Criminal Code), for example, if university premises are entered or occupied without permission;
• damage to property (§ 303 Criminal Code), for example, painting or sticking posters on walls or windows;
• coercion (§ 240 Criminal Code), if blockades or threats hinder the running of the university; resistance to law enforcement officers (§ 113 Criminal Code); and bodily harm (§ 223 Criminal Code), ​​in the case of physical resistance against police officers during an eviction;
• “physical assault on law enforcement officers” (§ 114 Criminal Code), which is interpreted much more broadly than bodily harm and includes action aimed directly at the body of the officer or soldier with hostile intent, i.e.regardless of the outcome of the act and whether an injury actually occurred.
• “incitement to hatred” (Volksverhetzung) (§ 130 Criminal Code), in the case of statements that incite hatred against certain sections of the population or call for violence. 

Trespassing and property damage are known as “offense-by-complaint” crimes. ​​They are only prosecuted if the university, as the property owner, actively initiates proceedings by filing a criminal complaint. Without this complaint, no proceedings will be opened. In reality, however, students are often arrested without having committed an offense, as the police operate under the pretext of “preventing” potential criminal activity from occurring. In other words, the university decides whether it wishes to take criminal action against students or other protesters. A criminal complaint that has already been filed can also be withdrawn. However, withdrawal of the complaint does not necessarily mean an end to criminal proceedings. If, for example, an additional offense, such as resisting law enforcement officers, has been reported, the prosecution may continue independently.

Some offenses, such as incitement to hatred, ​​bodily harm or resisting state authority, are prosecuted ex officio, regardless of the university’s wishes. A preliminary investigation must be initiated as soon as the police or public prosecutor’s office becomes aware of such acts, whether through a witness report, media coverage or their own research. In such cases, the police reserve the right to request the release of CCTV footage. The university has no direct influence over the proceedings.

A legal review of a criminal complaint by lawyers is often important, especially to establish whether the assembly was dissolved in a legally valid manner and whether coercive measures were properly announced and carried out. If there were procedural errors or unlawful police action, any acts of resistance may be justified and thus not punishable. 

In the case of protests in solidarity with the people of Gaza, criminal charges for incitement to hatred (§ 130 German Criminal Code) and for the use of symbols of unconstitutional or terrorist organizations (§ 86a German Criminal Code) are becoming more frequent. The focus is on slogans such as “from the river to the sea, Palestine will be free” and symbols such as the red triangle, which the Federal Ministry of the Interior considers to be symbols of Hamas. A final judicial assessment of this practice in the light of the right to freedom of expression is still pending. 

Jessica Grimm (criminal defense attorney) 

Universities are places for the free exercise of research and scholarship, intellectual exchange and the forming of opinions (as set out in the higher education acts of each federal state). In this context, the question of whether and to what extent political symbols may be displayed on campus is particularly important. Students and other members of the university often use symbols, slogans or flags to draw attention to political, social or international concerns, conflicts and perceived injustices. This raises the question of what legal framework applies to the use of such symbols and what leeway universities have to set regulatory benchmarks.

The basis for political expression on campus is the freedom of expression enshrined in Article 5(1) of the Basic Law (GG). It protects not only the spoken and written word, but also symbolic forms of expression, such as wearing political symbols, displaying flags or hanging posters. This freedom applies in principle to all members of the university community. However, freedom of expression is not unlimited. According to Article 5(2) Basic Law, it is subject to restrictions imposed by general laws and the rights of third parties. For example, displaying political symbols may be prohibited if it jeopardizes campus peace, disrupts teaching or discriminates against or offends others. Universities have what is known as household or domiciliary rights, which allow them to regulate behavior on their premises. In exercising this right, they can issue house rules and usage guidelines that set the framework for assemblies, postering, room occupancy or the display of political symbols. The purpose of such regulations is to ensure orderly study activities and respectful coexistence. However, those rules must be neutral in content, transparent and proportionate: a university may not arbitrarily prohibit or favor certain political opinions.

A university is permitted to specify places and times for political activities (e.g., no posters in lecture halls) or to take measures against deliberate disruptions to teaching. A blanket ban on political symbols on the entire university campus is, however, unconstitutional. It is also inadmissible to exclude certain groups from using parts of the campus solely because of their political views. Tensions arise when political expression collides with other interests, such as the right to undisturbed teaching, the duty of public institutions to remain neutral or protection from discrimination, as may occur when political symbols are brought into teaching sessions, deliberately provoke other people or convey content that violates criminal law by, for example, inciting hatred (§ 130 Criminal Code) or displaying unconstitutional symbols (§ 86a Criminal Code). 

Universities may, within the scope of their domiciliary rights, make initial assessments as to whether political symbols – such as flags, slogans, or emblems – are of concern under criminal law or constitute permissible political expression. Interventions must always be based on a clear legal basis and must not be mere reactions to public criticism or political sentiment. However, a binding decision on whether a symbol is punishable under Section 86a Criminal Code can only be made by a criminal court.

Jessica Grimm (criminal defense attorney) 

Academic freedom is enshrined in ​​Article 5, paragraph 3, sentence 1 of the German Basic Law. It protects research and teaching and is one of the central principles of a free, democratic society. ​​Academic freedom is a universal fundamental right. This means that any natural person can invoke the fundamental right of academic freedom if they are engaged in independent scholarly or scientific activity. Students are part of the academic community and contribute to the advancement of knowledge, including through their term papers, presentations and bachelor’s or master’s theses. In this context, they have the right to develop, express and represent their own positions independently of political, ideological or mainstream professional opinions. They can choose their own research questions, formulate and defend hypotheses and draw conclusions, as long as these are methodologically justifiable. This freedom protects not only the results of their academic work, but also the process, i.e., their choice of methods, sources and arguments.

Academic freedom is a particularly strong fundamental right, but it is subject to certain restrictions. Although Article 5(3) of the German Basic Law does not explicitly mention any legal reservations, conflicts with other fundamental rights, such as the personal rights of third parties, may justify restrictions. University rules, such as plagiarism guidelines, examination regulations or ethical standards, also limit the scope for scientific activity. Furthermore, protection ends where statements are no longer academically sound. The protection of academic freedom only applies if the findings being disseminated relate to one’s own research. Expressions of opinion in an academic context – for example, in a seminar paper – are specially protected by Article 5(3) of the German Basic Law if they follow academic criteria. Purely political or personal opinions without any methodological reference, on the other hand, fall under freedom of expression pursuant to Article 5(1) of the Basic Law and are not protected by academic freedom. ​​Academic freedom does not, therefore, protect every political expression of opinion or form of protest on university premises. ​​It refers specifically to​​ knowledge-related activities, such as research, teaching, publication or study. Political demonstrations, sit-ins or occupations do not generally fall within the immediate scope of protection. ​​In these cases, however, students can generally invoke freedom of expression under Article 5(1) of the Basic Law and freedom of assembly under Article 8(1) of the Basic Law. 

 Jessica Grimm (criminal defense attorney) 

Universities have the right and the duty to ensure an orderly environment for study and teaching. If students violate their obligations by, for example, disrupting operations, exam fraud, violence or discrimination, the university can impose various sanctions. Disciplinary measures are a key means of punishment. Most education acts adopted by federal states provide a catalog of regulations listing types of misconduct and corresponding disciplinary measures. Typical disciplinary measures include warnings, reprimands, exclusion from events or facilities, exclusion from re-registration, or expulsion. ​​In some cases, as a prerequisite, the person being disciplined must hold a legally binding conviction for an intentional criminal offense against a member of the university or for causing deliberate damage to the university. Sanctions must comply ​​​​with the principles underlying the rule of law, in particular the principle of proportionality.

Before a disciplinary measure can be applied, the students concerned must be ​​heard. In addition, the burden of proof for student misconduct lies with the university. All disciplinary measures are temporary; even expulsion from the university may generally be imposed for a maximum of two years. This may, however, have more serious consequences for the ​​residence permits of international students. 

If the conditions for a breach of regulations are met, the university is obliged to demonstrate, based on the circumstances in each individual case, that a milder disciplinary measure would not be sufficient or equally effective. This applies in particular to expulsions. The case law of the Federal Constitutional Court on expulsion sets high standards, as it interferes with the fundamental right to free choice of profession (Article 12(1) of the Basic Law) and general personal rights (Article 2(1) in conjunction with Article 1(1)). At the same time, academic freedom (Article 5(3)) is affected, especially in cases of expulsion from university. Expulsion for behavioral reasons requires special justification and a specific legal basis. It may only be used as a last resort after milder measures (e.g., warnings, reprimands, bans from the premises) have been taken. 

In addition to internal university measures, the university can pursue civil or criminal action against students – for example, in cases of property damage, insult, trespassing or bodily harm. These proceedings are conducted independently of the university by the police, the public prosecutor and the courts. 

Jessica Grimm (criminal defense attorney)

Excluding students from courses because of comments made in seminars is only legally permissible under very specific conditions. The students in this case would be protected by their fundamental rights to freedom of expressionand academic freedom, as well as to free choice of profession and place of training. 

Exclusion is only permissible if there is a concrete and significant disruption to teaching (not merely differences of opinion); if there is a ​​threat to academic peace (e.g. through discriminatory, inflammatory or offensive statements); if the measure is proportionate (e.g., milder measures such as a warning or a one-on-one meeting would be insufficient); and if the expulsion has a legal basis, such as the ​​higher education act of a federal state or the respective study regulations.

In Berlin, such an exclusion qualifies as a disciplinary measure (“Ordnungsmaßnahme”) and must be decided in a formal disciplinary procedure rather than a unilateral decision by teaching staff or faculty. Section 16 of the Berlin Higher Education Act comprehensively regulates the conditions under which disciplinary measures can be imposed by the university. This Berlin model requiring a structured procedure for temporary exclusions is atypical: in most other federal states, comparable measures fall directly within the decision-making authority of the university leadership without a separate disciplinary body. 

Both temporary exclusion from classes and expulsion from the university are unlawful if based solely on a lawful, non-disruptive political statement, as neither measure meets the statutory requirements for a disciplinary violation or the constitutional standards of proportionality and freedom of expression.

Jessica Grimm (criminal defense attorney) 

If a university imposes measures under a higher education act ‒ such as expulsion, compulsory de-registration, a ban from the premises or sanctions for breaches of order ‒ there are several legal options for defending yourself. These are based on the constitutionally guaranteed legal protection under Article 19(4) of the German Basic Law. Depending on the federal state, it is possible to ​​appeal against incriminating administrative acts by the university. The deadline is one month after notification of the disciplinary measure. The university will then review whether the measure was taken lawfully. An informal letter in which the person concerned declares that they are appealing against the decision and, if necessary, submits an explanatory statement, is sufficient for the appeal. It is often advisable, however, to contact a lawyer who can justify the appeal​​.

If the university sticks to its decision or no appeal procedure is provided, legal action can be taken before the competent administrative court. The deadline in this case is also one month after notification of the administrative act (or the appeal decision). If the measure takes effect immediately and there is a risk of irreparable damage (e.g., missing exams, expulsion from campus), an ​​application for a temporary injunction (§ 123 Code of Administrative Court Procedure) can also be filed with the competent administrative court. The aim here is to temporarily halt the measure until a final decision is made. Many universities also offer internal procedures that allow those affected to turn to trusted persons, the ombudsperson or an office that handles complaints over discrimination, violence and exam issues. These procedures can be used in parallel with legal action but are not legally binding. In cases involving more serious measures (e.g., expulsion, disciplinary proceedings, exclusion from examinations), it is strongly advisable to seek legal assistance.

If a university files a criminal complaint for trespassing (§ 123 Criminal Code) after an occupation, the accused person can defend themselves on several legal levels. After the university administration has filed a criminal complaint or the police have launched an investigation based on an offense that is prosecutable ex officio, criminal proceedings are usually initiated. Those affected ​​usually receive a summons from the police within a few weeks. When summoned by the police as a suspect, one does not have to appear. It is advisable not to provide any information at first and instead to request access to the files through a lawyer. This allows the defense to examine the evidence and develop an appropriate strategy. A lawyer can assess whether there is a chance of the proceedings being dropped and, if necessary, suggest this to the public prosecutor’s office.

Jessica Grimm (criminal defense attorney) 

It is possible to defend oneself legally against the measures described above. Possible courses of action include ​​criminal, public law and civil law proceedings.

When the police break up an event, the following factors should be kept in mind: Were the police authorized to break up the event? This could only be the case if the police had a legal basis for doing so, such as a threat to public order or safety. As a rule, the police must first attempt to end the event in a less intrusive manner, e.g., by speaking with the event organizers, before resorting to violent measures. Was the action proportionate? The principle of proportionality requires that the police choose the course of action that is likely to have the least impact on individuals and the general p​​ublic.

A further question is whether the event was wrongfully dispersed. If, for example, the event was protected by academic freedom or freedom of expression, the dispersal could constitute an impermissible restriction of these rights. 

One way to take action against a violent police intervention is to file an administrative lawsuit to review the legality of the police measure before a competent administrative court. If the situation needs to be resolved quickly (e.g., if an event is at risk of being shut down), one can also apply for a temporary injunction at the administrative court. This could serve to prevent the police from violently dispersing further events if the previous dispersal was clearly u​​nlawful. 

If the police action was a clear violation of fundamental rights (e.g., academic freedom or ​​freedom of assembly), a constitutional complaint to the Federal Constitutional Court could even be considered. The aim would be to have the Federal Constitutional Court declare the action unconstitutional, thereby setting a precedent that would affect the broader legal interpretation of such interventions.

If police officers committed criminal offenses during a violent dispersal, criminal charges can be filed. These could refer, for example, to assault in office if the use of force by police officers was disproportionate and resulted in injuries. A disciplinary complaint can be filed to initiate an investigation by the competent police department or the public prosecutor into the conduct of the police officers and their operational command. If the police officers exceeded their authority, such a complaint may result in disciplinary action being taken against those responsible. 

In reality, however, many protesters feel discouraged from reporting police misconduct, as police officers often file counter-charges against protesters, such as for “resisting enforcement officers’ or “assaulting a public official,”which could lead to severe penalties. 

Armaghan Naghipour (Attorney, former State Secretary for Higher Education and Research)