Berlin, Germany – Early Saturday afternoon, officers in central Berlin led an elderly German woman to a police car so her sign could be checked.

She was preparing to take part in a march calling for a ceasefire in the Gaza Strip.

Her banner said she was ashamed to be German and that a “genocide” was taking place in the densely populated Palestinian enclave being bombed by Israel.

The police released her and her sign and she joined the march.

Later, as the rally began, a group of officers in riot gear readied themselves in front of a crowd of chanting protesters.

An estimated 8,000 to 10,000 people marched through the German capital. Around 1,000 police officers were deployed to stop anti-Semitic speeches and signs.

Until recently, most pro-Palestinian demonstrations in Berlin were banned because local authorities feared an outbreak of violence or anti-Semitism. However, the decision was criticized as a violation of the democratic right to freedom of assembly.

Several protests have been allowed in the last two weeks, including Saturday’s march.

A protester is arrested by police officers after climbing the Neptune Fountain during a pro-Palestinian demonstration in Berlin, November 4, 2023 [Liesa Johannssen/Reuters]

At around 4 p.m., the police pushed into the crowd and pulled Monika Kalinowska out amid shouts of “shame, shame.”

Their sign read in red letters: “Israel is a terrorist state.”

“I’m really starting to question whether we actually have freedom of expression in Germany,” said Kalinowska, who called the incident annoying.

After she was searched and her ID checked, she was told there was nothing wrong with her sign – although it was confiscated – and was allowed to leave. Police said she could pick up the sign the next day.

“But I got really angry when the police officer asked me if I identified as a woman,” she said. “I didn’t say anything illegal, and I mean, if you don’t respect my freedom of expression, how are you going to respect whether I identify as a man or a woman?”

The official who briefly banned Kalinowska from the protest told Al Jazeera that there was no formal list or specific guidelines to follow.

“Really, I just use my intuition,” he said. “If I see something that I think is bad, we’ll get it.”

In another case, a large poster describing German Chancellor Olaf Scholz and Israeli Prime Minister Benjamin Netanyahu as “deadly assassins” was taken.

A group of young Italians were told to destroy their homes and said: “Stop the genocide. Stop the apartheid.”

“He told me if I said these things I could be arrested,” one of the Italians, who wished to remain anonymous, told Al Jazeera.

“No, I didn’t,” replied the police officer. “I said you could be arrested if you said those things in certain circumstances.”

Asked what those circumstances might be, the official told Al Jazeera: “I don’t want to get into that with you.”

“There are certain symbols that are banned,” another official said, referring to Germany’s recent ban on Hamas, the Palestinian group that rules Gaza and was behind the deadly attacks in Israel on October 7.

In a statement to Al Jazeera, police spokeswoman Anja Dierschke said officers acted in accordance with previously issued guidelines on the Middle East conflict and that a prosecutor was in the operations room during the protest to answer any legal questions.

In the end, seven violations related to the signage were recorded, the police said.

While it is difficult for police to identify illegal signs, their actions during protests have a “chilling” effect, lawyers from the European Legal Support Center (ELSC) told Al Jazeera.

“People are now wondering whether what they wear or say will lead to them being arrested or even deported,” said a spokesman for ELSC, which provides legal support on Palestinian matters and has an office in Berlin.

“The police basically decide the law on the street. They appear to have used extensive discretion and almost declared a state of emergency, although without any legal basis. It resembles the practices of an authoritarian regime.”

“It still has to be tolerated”

Germany has a “special responsibility” towards the Jewish people, towards Israel and in combating anti-Semitism because it is responsible for the Holocaust.

The country primarily uses two laws to prosecute the public expression of hate speech.

Section 130 of the Criminal Code is about incitement against a specific group of people, which has so far served to combat the glorification of National Socialist Germany, the denial of the Holocaust and anti-Semitic, racist or homophobic incitement. The penalty ranges from a fine to a prison sentence of up to five years.

Section 140 examines whether crime is tolerated in a manner that incites further violence or disturbs the peace.

But Michael Wrase, a professor of public law and constitutional law expert at the Berlin Social Science Center, said it was difficult for police deployed at protests to make decisions about whether certain signs and banners violated the law.

“It’s a balancing act that everyone is walking on,” he explained.

For example, while flying a Hamas flag is clearly a criminal offense, other acts are not.

“Because with some symbols or signs, the interpretation can be very different depending on who is observing them,” said Wrase.

Ultimately, context is crucial.

For example, the cry of “From the river to the sea, Palestine will be free” on October 8, immediately after Hamas’s attack on Israel in which more than 1,400 people were killed and more than 240 were kidnapped, could well be understood as a celebration of violence stimulate more.

However, chanting the same slogan during a “Ceasefire Now” demonstration a month and more than 10,000 Palestinian deaths later has a different context, as do signs reading “From the river to the sea, we demand equality.”

In mid-October, the Berlin public prosecutor’s office announced that the slogan “river to the sea” would be prosecuted.

However, the legality of this decision still needs to be examined in a German court.

In mid-August, a Dutch court declined to prosecute an activist who used the rhyme in a speech in 2021, saying those allegations were unfounded.

While the situation is heated, the law should – as the saying goes – be blind, Wrase said.

The case law in Germany up to the country’s highest court shows that freedom of assembly has priority and that all demonstrators should initially be given a benefit of the doubt, which is why right-wing extremist activists can continue to hold rallies.

“Even if you don’t agree with what people are demonstrating for, you still have to tolerate it,” Wrase said.

“And in principle – the Federal Constitutional Court also states this – if you have different options for interpreting a certain slogan, you should err on the side of legality interpretation. “You have to give those exercising their democratic freedoms the benefit of the doubt.”

‘Deterrent effect

Thomas Fischer, a former presiding judge at the Federal Court of Justice, the country’s highest criminal court, agreed with Wrase, saying: “Even if an opinion is morally dubious or simply wrong, according to the German constitution you have the right to express it.”

“Nobody should use criminal or civil law to ensure that only opinions with which the federal government agrees are expressed,” he said.

For example, criticism of the Israeli government and its actions is not anti-Semitic, explained Fischer.

“It would be ridiculous to equate all Jews with the government of Israel. That would actually be anti-Semitic.”

Last month, German politicians called for changes to various laws, including those relating to the right to demonstrate and freedom of expression.

The idea of ​​stripping citizenship, residency, benefits or funding from anyone accused of making anti-Semitic remarks has been floated, as has the plan to allow only “native Germans” to protest.

This week, as communal tensions simmered in Europe as a result of the Gaza war, German President Frank-Walter Steinmeier called on people of Arab and Palestinian descent to “speak for themselves and take a clear stand against terror,” a commentary said , which was harshly criticized by some as discriminatory because it singled out minority groups.

“It is still too early to say what concrete impact these calls from conservative politicians will have,” said the ELSC spokesman.

“But these are indeed racist measures. We still have courts in Germany, and if necessary we will go there to protect fundamental rights, because this lack of clarity is extremely dangerous for our democracy.”

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