Diskussion:Gruppe3 EN

Hello all

[1]

I'm testing how this works and if you can read this entry. Who can read this and reply? [2]

Hey! Can read your post and reply to you this way. Is that the idea? User122 (discussion) 16:30, 11 May 2022 (CEST) [4]

Very good that you could read my entry and replied. Your entry looks good. I hope you can see that I made a new entry. User126 (discussion) 16:30, 12 May 2022 (CEST). [6]

How about the others, can you read along and reply as well? User126 (discussion) 17:14, 13 May 2022 (CEST) [7]

It works for me too. User106 (discussion) 10:28, 16 May 2022 (CEST) [9]

I can read it too. User143 (discussion) 10:31, 16 May 2022 (CEST) [11]

I can read it too. User144 (discussion) [13]

It works for me as well. User136 (Discussion) 18:09, 16 May 2022 (CEST) [15]

It works for me too. [17]

Works for me as well. User110 (Discussion) 13:49, 17 May 2022 (CEST) [19]

Test User170 [21]

Sorry folks, I only just noticed that the exercise has already started. I will read in and familiarize myself with the software. User153 (discussion) 09:59, 19 May 2022 (CEST) [23]

Source text(Kantonales Übertretungsstrafrecht des Kt. Basel Stadt): "[According to this law is punished]: [...] [25]

Whoever, at gatherings requiring a permit, [27]

demonstrations and other gatherings of people. [29]

Exceptions may be granted." [31]

Goal: Prevention of masked chaotic people or ban on masking threatened with punishment. [34]

Editing suggestions

[36]

Perhaps everyone can briefly state here which deficiencies they notice and add to them: [37]

First sentence: [39]

Contains vague legal terms "meetings, demonstrations and other gatherings of people requiring a permit". [41]

It is not apparent what exactly "subject to authorization" refers to [42]

The relationship between assemblies and other human rights gatherings is unclear [43]

Two questions remain: (1) Does "subject to authorization" refer to all listed assemblies? (2) What is the difference between the various terms "assembly," "demonstration," and "gathering of people"? Moreover, the use of the adjective "other" seems to imply that assemblies and demonstrations are also gatherings of people. In my opinion, a common denominator should be found here; "assembly" seems most common and general. Furthermore, all these assemblies seem to have in common (with regard to the ratio of the provision) that they take place in public space. To implement these ideas, the following formulation is conceivable: "... assemblies requiring a permit in public space". User106 (discussion) 17:28, 16 May 2022 (CEST). [45]

Actually, the text is not entirely clear. Re (1): I rather understand the text as follows: the adjective "requiring a permit" refers exclusively to "assemblies" and not also to "demonstrations" and/or "gatherings of people". I therefore understand the term "other gatherings of people" as a general clause, so that all other gatherings (outside the already mentioned demonstrations and gatherings requiring a permit) are to be covered. If I am correct in my reading (which is by no means the case...), then the problem could be solved by changing the order of enumeration. e.g.: "Demonstrations, gatherings requiring a permit and other gatherings of people". Then problem (1) would be more or less solved. [47]

To (2): I think your approach is good: It seems obsolete to mention all three variants. However, if - as in your proposal - you restrict this to "gatherings in public spaces requiring a permit", then you narrow down the wording of the law compared to the original draft, since this standardization means that "other gatherings of people" that do not require a permit are no longer covered. A material restriction of our draft would be undoubtedly desirable (cf. example of Prof. Uhlmann, that even the carnival would be subsumed under this), but your proposal would nevertheless create certain gaps: I am thinking, for example, of football fans, for whom it is a tradition to meet every week and walk together to the stadium. In my opinion, such fan marches are not always increased public use, depending on the number of participants: If they clog up the streets (as is regularly the case with fans of Super League teams (1st division)), then in my opinion it is clearly increased public use. However, if it is a smaller group of a few dozen people (e.g. fans of Challenge League clubs (2nd league)), who remain mainly on the sidewalks during the fan march, then in my opinion there is no increased public use, so that the fan march would not require a permit. Nevertheless, even at smaller fan marches, the hooligans regularly disguise themselves in order to be able to riot anonymously (cars, street signs). And exactly this behavior should be punished by our norm, so that a limitation to gatherings requiring a permit would not make sense in my opinion. User136 (discussion) 19:49, 16 May 2022 (CEST) [49]

I agree with User136. A limitation to assemblies requiring a permit makes little sense. Especially since spontaneous demonstrations would not be covered either. In terms of location, how would the provision be limited to "assemblies in public spaces and places accessible to the public"? From a factual point of view, it might be possible to require that the assembly must be supported by an "aggressive mood" in order for the ban on mummery to apply (although it is very difficult to determine when such a mood exists or occurs). User144 (Discussion) [50]

So you would also want to cover non-permitted gatherings? In this case, would it make sense to speak of "gatherings of people" (in general) or "gatherings of people regardless of whether they are subject to a permit requirement"? In my opinion, the requirement of an "aggressive atmosphere" makes sense in the end -- but I still doubt its practicability. Moreover, the question arises whether then the "aggressive basic mood" is not in the center, which possibly runs counter to the (political) intention behind the rule. User106 (discussion) 14:25, 18 May 2022 (CEST) [52]

I see the same vague legal terms and open wording. Regarding User106's suggestion, my thoughts have been that a clarification with "in public space" may well make the provision more precise and clear, but in my opinion it is not necessary. Thus, everyone can and should behave freely in private space, i.e. "veiled" or not. Therefore, in my opinion, this passage is not necessary. [54]

I see the idea behind the suggestion of "aggressive basic mood". However, I can imagine that this would lead to great ambiguity, because it is difficult to determine when such a basic mood exists. I think this would make the provision open and indeterminate. Therefore, I propose to omit this clarification. [55]

I also wondered what the adjective "subject to approval" refers to. I agree with User136's suggestion to change the order of enumeration. For example, I find that in the phrase "demonstrations, gatherings requiring a permit, and other gatherings of people" it becomes clear what the adjective "requiring a permit" refers to. This makes the provision narrower or more specific overall. User126 (discussion) 10:18, 17 May 2022 (CEST). [56]

I support the suggestion to change the order. Still, one has to wonder what we are even giving examples of and naming the events that require a permit if all gatherings of people are covered anyway. Cf. my suggestion above on how to include the permit requirement without requiring an enumeration. User106 (discussion) 14:25, 18 May 2022 (CEST) [57]

Without further clarification regarding permissibility requirements for demonstrations, I'm just wondering if your suggestion to include the permit requirement narrows the scope of this provision. I do not know whether a permit must be obtained for demonstrations. If this is not the case, i.e. if demonstrations can be held without a permit, demonstrations would not be covered by the scope of the provision. Thus, "veiled" participants could not be sanctioned. User126 (discussion) 14:56, 19 May 2022 (CEST). [58]

Don't you think the general clause is too broad or too vague for criminal law? (nulla poena sine lege certa?) After all, you have to know when such a gathering of people exists. User153 (discussion) 10:05, 19 May 2022 (CEST) [59]

Second sentence: [62]

Optional provision which grants discretion. [64]

In addition, it is not specified when exceptions are granted. It is also unclear which authority must concretize the term. Depending on whether this is the legislator or an administrative authority, different questions arise under the principle of legality.User143 (discussion) 11:07, 16 May 2022 (CEST) [65]

I share these criticisms. In addition, one might consider setting limits or criteria for the exceptions already in the law. User106 (discussion) 11:09, 16 May 2022 (CEST). [66]

A valid objection. At most, one could consider formulating the exceptions similar to Art. 332a para. 2 StGB (implementation of the veiling ban initiative). However, the norm would then become very long. User122 (Discussion) 16:29, 16 May 2022 (CEST) [67]

M.E. the instrument of "granting" exceptions makes no sense at all here. As I understand the nouns, the conduct (mummery on the occasion of gatherings) is punishable. However, exceptionally it can be granted that someone is not punished. So a permit for non-punishment (does that make sense?). In my opinion, it would be better to simply say ("Not punishable are.... User144 (discussion) [69]

I share the view of the immediately preceding entry. The provision can/should be understood as allowing exceptions to (basic) criminal liability. In my view, this must refer to specific events/variations of actions. These would then have to be mentioned in the provision. This can be done in the form: "Not punishable are ...". [73]

The instrument of authorization does not seem suitable to me here. It leaves too much leeway to the enforcement authority. In addition, it is not obvious to the subjects of the law when a conduct is still exempt from punishment. It makes the provision very intransparent. Therefore, I suggest deleting the second sentence and replacing it with "Not punishable are ...". User126 (discussion) 08:51, 17 May 2022 (CEST) [74] It is unclear to me to what extent an authorization possibility can be implemented in such a way that it complies with ratio legis. There is the practical question of whether decisions are made in individual cases (very time-consuming) or whether, for example, general decrees are issued in which permitted behaviors are enumerated. User153 (discussion) 10:08, 19 May 2022 (CEST) I would suggest that we keep an exemplary list with cases where the behavior is not punishable. For example, religious, medical, etc. Reasons. [75]

Granting exceptions does not seem to me to be appropriate here either, as this would exempt in advance a theoretically punishable act from allf. Punishment is freed. It seems more practical to me to introduce a certain "de minimis threshold" or a norm with a (non-exhaustive) enumeration of acts not worthy of punishment in connection with paragraph 1. On the other hand, the judge could be given discretion and justice in individual cases with the formulation "may refrain from punishing". This seems to me more appropriate insofar as the (non-)punishability of the act is to be decided only in retrospect instead of in advance (on the basis of an authorization). Such an examination of punishability tailored to individual cases also seems appropriate to me, since in para. 1 with the formulation "other gatherings of people" a kind of catch basin is created and also cases could be covered by it, which would not at all correspond to the original realization of the goal (in general, the scope of para. 1 could be narrowed by a more precise designation of "gatherings of people", but it is questionable whether one would want to go so far as to require "a basic atmosphere threatening the peace order"; moreover: should gatherings not requiring a permit be excluded from the scope of application or rather be subsumed under the other two terms). User110 (discussion) 13:47, 17 May 2022 (CEST) [78]

Level of penalty

[80]

The draft merely provides that "under this Act [punished] shall be whoever [...]". According to the principle of legality under criminal law (nulla poena sine lege certa), this is questionable. The consequence of punishment must be clearly circumscribed in the law. [81]

In my opinion, in view of the unlawful nature of the offense, it would make sense to define it as a misdemeanor within the meaning of Art. 103 SCC; the amount of the fine should be limited. Therefore, the introductory sentence could be changed as follows: "According to this law, the following shall be punished by a fine of up to 1,000 Swiss francs:" User106 (discussion) 10:49, 16 May 2022 (CEST) [83]

Concur, limiting the fine to a maximum amount would certainly be beneficial. User122 (discussion) 16:15, 16 May 2022 (CEST). [85]

Good point, but I rather think this will not be mandatory. In any case, Art. 335(1) StGB only gives the cantons a sanctioning competence within the framework of the Übertretungsstrafrecht, whose maximum penalty is limited by federal law to a maximum of CHF 10,000 (Art. 103 ff. StGB). Furthermore, our norm that we are dealing with says: "according to this law shall be punished...". §11 para. 1 of the Übertretungsstrafgesetz of the Canton of Basel-Stadt explicitly states that the range of punishment - unless otherwise specified - is a fine of CHF 1 - CHF 10,000. In this respect, I do not see such a problem with regard to the principle nulla poena sine lege certa. A limitation to CHF 1,000 (or otherwise an appropriate maximum amount), as proposed here, can also make sense, if the "mummery of chaots" is simply not considered to be so serious a crime that it would ever justify a fine of up to CHF 10,000. But this is then a legal-political and less a legalistic question. In my opinion, we must primarily ask ourselves the following question: Do we find a penalty range of up to CHF 10,000 okay or is this too high? User136 (discussion) 19:08, 16 May 2022 (CEST) [86]

I think we need to consider whether or not the standard is too open-ended in terms of the penalty. Whether the punishment is appropriate or not is not for us to judge. In my opinion, no questions arise with regard to the openness of the wording, because the range of punishment in the criminal law of transgressions is limited to the fine (up to a maximum of CHF 10,000; cf. Art. 106 para. 1 StGB). From the provision in the context of the entire Transgression Criminal Law it is clear what sanction the person subject to the law is threatened with. A violation of this provision (the "veiling ban") can thus be punished with a fine. Consequently, for me, there is no need for any adjustments in terms of the amount of the penalty. User126 (discussion) 09:36, 17 May 2022 (CEST). [87]

As User136 said, the penalty in Art. 11 para. 1 Übertretungsstrafgesetz of the Canton of Basel-Stadt is sufficiently clear and also a limitation of the amount of the fine does not seem necessary to me (cf. also Art. 106 para. 3 StGB, according to which the fine should be proportionate to the offender's culpability). With regard to the definiteness of the penal norm, on the other hand, I would see a need for adaptation, especially whether the conduct threatened with punishment is sufficiently predictable for the norm addressees (with regard to what is to be understood by making unrecognizable and gathering of people). However, in my opinion, the variety of possible circumstances to be regulated, the rather low severity of the encroachment (transgression), as well as the concretization that is necessary in individual cases, lower the requirements for the definiteness of the norm. User110 (Discussion) 14:23, 17 May 2022 (CEST) [89]

I agree that the sanction consequence should be more precisely determined. If the idea of fairness to the addressee is brought into play, a repetition of the penalty range and the penalty type "fine" would make sense in my opinion. It would also be conceivable to make a reference to the criminal code of the canton of Basel-Stadt. (User 127) [91]

I agree with user 136 and user 110, and I think that a limitation of the amount of the fine is not necessary and does not make sense. If necessary, one could make a reference to StGB 106 ("who...is punished with a fine in the sense of StGB 106"). If one fixes the amount of the fine, there may be problems of retroactivity, if StGB 332a comes into force. Greetings User144 (Discussion) [94]

Formatting and enumeration

[96]

The standard appears to be part of an enumeration. However, there are several line breaks in it. [97]

For reasons of formatting, ease of reading and logic, I think the line breaks should be omitted. This must also apply to the last sentence concerning exceptions, if it refers only to this part of the enumeration. As a result, the text could be adapted as follows: [99]

"Who makes himself unrecognizable at meetings, demonstrations and other gatherings of people requiring a permit; exceptions may be granted." User106 (discussion) 10:56, 16 May 2022 (CEST) [101]

Agreed. User136 (discussion) 19:11, 16 May 2022 (CEST). [103]

Already much clearer this way! User110 (discussion) 14:28, 17 May 2022 (CEST) [104]

I agree that for ease of reading, the line breaks should be dropped. In my opinion, the current form is not well formatted because it is not entirely clear how the sentence relates to the exceptions to the preceding sentence. It should obviously refer (only) to this and not also to the rest of the enumeration (which we do not see). [106]

I therefore agree with User106's suggestion as well. User126 (discussion) 08:05, 17 May 2022 (CEST) [107]

@all: Can we put this in the "final" draft like this? User106 (discussion) 14:27, 18 May 2022 (CEST) [108]

I agree with you guys. User153 (discussion) 10:13, 19 May 2022 (CEST) [110]

Wouldn't it make more sense if the two half-sentences were split into two different paragraphs? User122 (discussion) 12:13, 21 May 2022 (CEST) [112]

Concept of "unrecognizability"

[114]

The penalty provision links to the fact that the offender "makes himself unrecognizable". This term is not only open-ended, but also imprecise. [115]

Since terms should be used uniformly in the overall legal system, the term "unrecognizable" must be used in view of Art. 10a BV, according to which "[n]o one [...] may veil his face in public spaces and places". [117]

Therefore, the text of the norm could be amended as follows: "Who [...] veils his face. [...]" User106 (discussion) 11:05, 16 May 2022 (CEST) [119]

I think this is a good point. One could also ask whether a separate veiling ban for gatherings, demos, crowds is needed at all, since gatherings, demos, crowds fall under Art. 10a BV anyway and are probably also considered in the implementing regulations. [121]

Find the reformulation proposal i.S. the veiling ban initiative also better. User122 (Discussion) 16:24, 16 May 2022 (CEST) [123]

In my opinion, the term "unrecognizable" holds great potential for interpretation, because it is open-ended and imprecise. When someone is unrecognizable depends very much on the perceptual abilities of the other person and, in my opinion, cannot be determined objectively/generally. Therefore, a term that is unambiguous and clear should be used. I welcome the suggestion of "veiling one's face" in principle. In this way, the requirement to use terms uniformly in the overall legal system is preserved. It also makes the wording much less open. [125]

However, it should be borne in mind that this wording is also open to interpretation. Thus, under certain circumstances, even wearing a mask can be classified as "covering one's face". User126 (discussion) 08:14, 17 May 2022 (CEST) [126]

You're right, mask-wearing probably falls under my suggestion as well; so we'd need to flesh out the exceptions (analogous to the BV provision). User106 (discussion) 13:12, 17 May 2022 (CEST) [127]

if the exceptions according to BV 10a III are to be concretized analogously, on the one hand the "native customs" would have to be omitted (I don't see any possible application here) and on the other hand the question arises in my opinion whether these exceptions should then also be formulated conclusively or exactly not? User170 (discussion) 22:26, 17 May 2022 (CEST)User170 [128]

I think the idea of uniform use of terms as in federal law is a good idea. However, I wonder in this context what is the relationship with Art. 10a BV? Doesn't Art. 10a BV anyway set a minimum level of prohibition of veiling, so that the cantons may only enact stricter prohibitions? (User 127) [129]

@all Does anyone have any objections to the proposal? User106 (discussion) 14:37, 19 May 2022 (CEST) [131]

Since no one objected to this change, I have changed the text accordingly. User122 (discussion) 12:03, 21 May 2022 (CEST) [133]

Constitutionality (esp. fundamental rights)

[135]

1. freedom of assembly and expression [136]

The threat of punishment interferes indirectly with the right to freedom of assembly (and freedom of expression) and has a chilling effect. The obligation to obtain a permit interferes directly with the right to respect for freedom of assembly and freedom of expression. [138]

It remains to be clarified whether the norm in its vagueness can be interpreted in a proportionate manner. In my opinion, problems arise with regard to necessity and reasonableness. In particular, due to the generality of the norm, I do not believe that the principle of interference is observed. [140]

If one wanted to demonstrate with gas masks in order to draw attention to air pollution, this would require a permit according to the text of the norm. According to the text of the standard, this would also apply to spontaneous demonstrations. However, requiring a permit for spontaneous demonstrations is unconstitutional. [142]

2. personal freedom [145]

The normative text also interferes with personal freedom. As a result, the normative text includes every form of gathering of several people and is therefore not suitable in every case (to prevent or solve crimes) and therefore disproportionate (e.g. when someone puts on a mask in a play, carnival, etc.). [147]

3. freedom of religion [150]

The provision also strongly interferes with religious freedom. User144 (Discussion) [152]

So, are you proposing a restriction of the norm in order to make it constitutional? What restrictions do you think would be necessary to achieve this goal? User106 (discussion) 17:30, 16 May 2022 (CEST) [155]

Yes, the standard would have to be restricted in some way, in my opinion. One could account for the restriction at the level of "principle (p. 1) or at the level of "exceptions" (p. 2). I am undecided where it makes the most sense. I would welcome prioritizing political gatherings (demonstrations) over other gatherings (e.g. fan marches on the occasion of sporting events) from a fundamental rights perspective, since political gatherings also have a democratic function. One could say, for example, that the veiling ban at demonstrations (politically motivated assemblies) only applies if the assembly is carried by an "aggressive basic mood" or "criminal acts are to be expected". But how this would be compatible with BV 10a is also not entirely clear to me. User144 (Discussion) [157]

I see your reasoning and concerns about constitutionality. After all, the "veiling ban" should not lead to an unjustified restriction of fundamental rights. Rather, the "veiling ban" should ensure the safe exercise of fundamental rights, i.e. that, for example, political demonstrations or gatherings can be held safely without "veiled chaots" causing disturbances. In my opinion, the provision in the version presented to us (only) wants to cover "veiled chaotic people" at such gatherings, so that the gathering can be held undisturbed. It does not cover all peacefully participating persons. If, however, it is determined, for example, that the prohibition of veiling at demonstrations only applies if this is carried by an aggressive basic mood, then all peaceful demonstrations can be held "veiled". In my estimation, this is not the ratio Legis of the provision. Rather, with a general ban on veiling wants to ensure a safe holding of demonstrations (= exercise of fundamental rights). [160]

To restrict the provision would, in my opinion, be exactly contrary to the Ratio Legis. User126 (discussion) 09:55, 17 May 2022 (CEST) [162]

I find the phrase "basic aggressive sentiment" somewhat problematic. It reminds me too much of offenses like breach of the peace "Grundstimmung threatening the peace", BGer. There the threshold at which one has reached the threshold for participation is very low (Appearing as part of the crowd). I have a feeling that if we choose too similar a wording, it could end up in peaceful non-chaotic people being too quickly classified as participants in the actions of the chaotic people as well, and thus still not going unpunished. User153 (discussion) 08:25, 20 May 2022 (CEST) [164]

Agree with you. User122 (discussion) 12:43, 22 May 2022 (CEST) [166]

Problem: Competence

[168]

According to StGB 335, the cantons retain the right to legislate on the criminal law of transgressions only insofar as it is not the subject of federal legislation. With StGB 332a (not yet in force), a transgression norm is enacted as a violation of the face veiling prohibition. If the norm enters into force, the canton of Basel City would not be authorized to enact its own transgression penal norm. Do you see it the same way? Would it make sense to set a time limit for the norm of the Canton of Basel City? User144 (Discussion) [169]

You are right. As soon as Art. 332a StGB enters into force, "our" provision will automatically no longer be applicable (cf. also Art. 49 BV). A time limit is therefore (materially) not mandatory, but still makes sense. On the other hand, the question then arises whether the legislative effort is in reasonable proportion to the purpose behind this "cantonal pre-effect of federal law". Should one dispense with the norm altogether and wait for federal law? If not, one could regulate the time limit in the transitional provisions or in the norm itself (e.g. in a para. 2). User106 (discussion) 13:08, 17 May 2022 (CEST). [171]

I don't think we should spend too much energy on this point. As User106 has indicated, if Art. 332a SCC were to enter into force, cantonal law would simply be derogated (Art. 49 BV and Art. 335 para. 1 SCC, according to which the cantons retain the right to legislate on the criminal law of transgressions when it is not the subject of federal legislation). In this respect, I do not think that a time limit would have to be introduced. A time limit would be very difficult anyway, since the date of entry into force of Art. 332a StGB is not yet definitely foreseeable. User122 (discussion) 12:25, 22 May 2022 (CEST) [173]

Suggestions

[175]

Here every user can make a suggestion [176]

User 144: [178]

Par. 1: Anyone who covers his face at meetings in public places or in places accessible to the public, and thereby impedes the clarification of criminal acts committed or in execution, shall be punished by a fine. [180]

Par. 2: It shall not be a punishable offence under this provision for a person who merely accepts the impediment to clarification. User144 (discussion) 21:55, 17 May 2022 (CEST) [181]

@User144 (I haven't quite figured out the technique yet, so I'll try this now): how do you come up with "and makes prosecution more difficult"? I could not derive your suggestion from the discussion. Doesn't any concealment imply an aggravation of law enforcement? User170 (discussion) 22:17, 17 May 2022 (CEST) [182]

I understand what you mostly (mean). Here's what I've been thinking about. In order for there to be a prosecution (repressive) that can be aggravated, a crime must have been committed first. If there are no crimes to prosecute, there is no prosecution that can be aggravated. Furthermore, in subj. respect, it is required that the perpetrator acts intentionally (because of: para. 2: intention or dolus directus 2nd degree). The intent must also refer to the success of the crime. Thus, the perpetrator must act at least in the certain knowledge or with the intention to cause the aggravation of a criminal prosecution. However, I have now changed the text (formerly: criminal prosecution; now: clarification of criminal offences). Thanks! User144 (discussion) 22:26, 17 May 2022 (CEST). [183]

To make it clearer what the intent should refer to, the following wording would be better, if necessary: "... in order to impede the prosecution/solving of crimes,..." User170 (discussion) 22:38, 17 May 2022 (CEST) [184]

Good idea. The word "in order to" implies that it needs intent (dolus directus 1st degree) on subj. level. Advantage of your suggestion is that the provision would so definitely not go too far and the para 2 could be deleted. Disadvantage is that the intention in individual cases and especially with "followers" (people who mask themselves, but do not commit a crime) is probably difficult to prove. I will sleep on it and think it over again. Thanks! User144 (discussion) 22:47, 17 May 2022 (CEST). [185]

I can understand your consideration to put the norm in connection with a criminal offense, however, this will not facilitate the identification of chaotic people, because if they are covered you will not be able to identify them and also not be able to initiate criminal proceedings that could then lead to punishment under this article. The provision should have a preventive effect and thus prohibit veiling or unidentification without reference to a crime. (User 127) [187]

I understand your approach. But wouldn't you also have this problem if you banned veiling without reference to a crime? Especially since the police could not dissolve the demo in the case of individual violations of the prohibition of veiling (would be disproportionate intervention). [189]

If one forbids the veiling in principle, the inhibition threshold to commit a crime sinks, since the anonymity is omitted. For this reason I believe that it makes a big difference for the achievement of the purpose whether one puts the prohibition in connection with a criminal offense or not. In the case of a connection, we have no preventive effect and the detection of crimes is not improved, the only advantage that remains is an additional sanction (in the form of the fine), because of the veiling, for the offender. (User 127) [191]

That criminals will not mask themselves, can probably not be prevented by a norm. Moreover, in the case of the masked offender, in the context of competition, the prohibition of masking will probably take a back seat to the main offense, or even be considered as unpunishable self-favoritism. I believe that the main goal is to prevent people who do not commit crimes from wearing hoods (because the more hooded people there are, the more difficult it is to identify the perpetrators), and to have a "catch-all" for suspected criminals who cannot be proven to have committed any other crime.I understand what you mean by the preventive effect. I agree with you that with such a ban there is no preventive effect on criminals who want to commit crimes under the mummery. For those who do not commit crimes under the disguise, I think the ban already has a preventive effect, because they must be aware that if they disguise themselves near criminals, they can be punished, even though they themselves have not committed any crimes. One must not forget that from a fundamental rights perspective, there are legitimate reasons for wearing a mask during demonstrations, etc. (e.g. if one does not want to be recognized by one's employer, etc.). I see the public interest in security and order as predominant only if there is a sufficient danger that crimes are committed, which are more difficult to solve because of the masking. What I still have in mind, in order to have a "more preventive* effect, is to additionally criminalize the carrying of balaclavas and garments with sewn-in netting to cover the face (as often used by football chaots). (User 144) [193]

The veiling ban prevents crimes in the context of "aggressive crowds" (such as football hooligans) insofar as those persons who veil themselves in order to be able to commit crimes undetected can already be stopped and punished for the veiling. As a result, criminal liability is "brought forward" in these cases. Those who want to commit crimes are already conspicuous because of their disguise. Those who do not mask themselves for this reason (in order not to attract attention) are probably psychologically prevented from committing crimes, since they could be recognized in the process. All in all, however, this preventive effect can be achieved even without the proposed addition of "making the detection of crimes more difficult" -- in my opinion, this is even counterproductive, since it would no longer be possible to stop (and punish) everyone who is hooded, but it would have to be additionally proven that the hooding makes the detection of crimes more difficult; m.a.w., people could then hood themselves again without immediately fearing punishment. User106 (discussion) 14:35, 19 May 2022 (CEST) [195]

As mentioned above in discussions, I simply have concerns from a fundamental rights perspective if you define the scope of the provision very broadly. I understand your thoughts regarding the purpose of the norm and I also see that a broad scope would implement the ban most effectively. For this reason, and also in view of the already advanced time, I drop my proposal. User144 (discussion) 14:35, 21 May 2022 (CEST) [197]

I agree with User106's view. Linking it to "to solve crimes" seems counterproductive to me. So, as User106 said, in principle only those "veiled" participants who prevent the detection of crimes can be punished. All other "veiled" participants could "veil" themselves with impunity. I think this is not the goal of the provision. In my opinion, the goal of the provision is to have as few "veiled" participants in gatherings as possible. In this way, order and security can be ensured, because the willingness to commit offences decreases, in my estimation, without "veiling". Therefore, the provision wants to sanction "veiling" in principle. If the sanction is sufficiently deterrent, the goal of the provision can be achieved. With a sharp standard, no participants will "veil" themselves, which should basically ensure peace and order. [200]

Therefore, I think there should be no additions to the provision. The only thing that is needed, in my opinion, is a more precise wording. My suggestion is: [201]

Paragraph 1 ... whoever covers his face during demonstrations, gatherings requiring a permit and other gatherings of people. [202]

Par. 2 From the punishability of veiling are excluded in particular at [203]

- Swiss customs, such as the carnival; [204]

- religious customs; [205]

- pandemic conditions/situations. [206]

User126 (discussion) 15:31, 19 May 2022 (CEST) [207]

I agree with you in principle, User126. However, I would make the last line "pandemic conditions/situations" more general and say, for example, "... on medical indication or for the protection of public health, namely in the case of a pandemic condition". What exactly a pandemic condition should be would then have to be elicited by interpretation. User153 (discussion) 08:13, 20 May 2022 (CEST) [209]

In my opinion, the order of "events", where it is forbidden to make oneself "unrecognizable", should be changed: e.g. "...who makes himself unrecognizable or covers his face at gatherings of people (of a certain size, if necessary concretization by means of a number), esp. (permit-requiring) meetings, demonstrations etc.". This would make it clear that a permit requirement is not a prerequisite, although in my opinion the permit requirement could also be omitted entirely. As a further exemplary enumeration, one could also include "in the context of sporting events" in order to give more validity to the purpose of the norm. In addition, such a non-exhaustive list prevents certain cases from being accidentally omitted... As for the exceptions, a more open-ended wording such as "cultural & medical reasons" could be chosen, though we should still decide first whether the exceptions should be ex ante authorization (by whom?) or ex post judicial review. User110 (discussion) 13:26, 20 May 2022 (CEST) [211]

User153 is correct. The term pandemic conditions/situations should be more general. Otherwise an interpretation is necessary, which can be too narrow/wide and then not in the sense of the legislator. My suggestion is "situations to protect public health." [214]

I share User110's suggestions to change the order and add to the enumeration. This makes it clearer, in my opinion, that this is a non-exhaustive list. My suggestion is: "...who covers his face in gatherings of people, especially in gatherings, demonstrations, fan marches, etc." User126 (discussion) 11:19, 21 May 2022 (CEST) [215]

My thoughts about your suggestion [216]

1. i think it's good to make the scope in paragraph 1 broad and then restrict it in paragraph 2 [217]

2) I find a non-exhaustive enumeration delicate with regard to the principle of legality under criminal law. [218]

3. veiling in the context of demonstrations, which are considered as an expression of peaceful expression of opinion should be allowed in my opinion (e.g. demonstrating in protective masks to draw attention to bad air). [219]

4) The addition "namely Fassnacht" could be deleted in my opinion. [220]

5. the problem with all the exceptions is that e.g. chaotic people who wear medical masks (during a pandemic) or who wear carnival masks during the carnival do not fall under the ban. One could therefore formulate as the only exception: "Not punishable acts, who by the veiling the public safety and order and not endanger". Alternatively, one could dispense with the exceptions and simply say: "Anyone who covers his face on the occasion of demonstrations, gatherings requiring a permit and other gatherings of people and thereby endangers public safety and order will be punished with a fine. [221]

6. in my opinion, the ban should be limited to the public space and to places accessible to the public [222]

7. are police officers who make themselves unrecognizable on the occasion of such gatherings also covered? [223]

8. in my opinion, the enumeration "demonstrations, assemblies requiring a permit and other gatherings of people" is too long and could be replaced by "assemblies or other gatherings of people" User144 (discussion) 15:19, 21 May 2022 (CEST) [224]

Ratio legis

[226]

Hoi zäme [227]

can we still briefly discuss what we understand here as ratio legis of the norm? [229]

We don't have much information on what we can work with, but I would have assumed that it is about countering "football hooligans" or "field hockey hooligans". [231]

I would not have seen a political intention to restrict religious freedom or the like. (Therefore, I would not find it problematic to include an exception in favor of medical, religious or need-based coverings. [233]

Or how do you see it? LG User153 (Discussion) 10:24, 19 May 2022 (CEST) [235]

I agree with you. We should clearly rewrite the exceptions. User106 (discussion) 14:26, 19 May 2022 (CEST). [237]

I also agree. This is not about restricting religious freedom, but about protecting against people who cover their faces with the intention of remaining unrecognized. "User143 (discussion) 09:39, 23 May 2022 (CEST)" [238]

I raised the question above whether a catalog of exceptions might be useful. In terms of content as well as in terms of legislation, one could be guided by the catalog of exceptions in the new Art. 332a para. 2 StGB (implementation of the Veiling Prohibition Initiative). The only question is whether this would overload the content of the provision, since one would have to introduce a total of 7 relatively detailed exceptions (assuming that federal law is adhered to). User122 (discussion) 12:18, 21 May 2022 (CEST). [239]

Where can I find art 332a para 2 StGB? I can't find it in the current and future versions of the StGB on admin. I also doubt whether the ratio legis of the veiling ban initiative is also the same as that of the present norm. If you look at the voting posters, it is clear that in that initiative the prohibition of religious representations (Burqa, Niqab etc.) should be prohibited. Such an intention is not apparent to me in casu for our norm. User153 (discussion) 08:00, 22 May 2022 (CEST). [240]

You can find the preliminary draft here: https://www.bj.admin.ch/dam/bj/de/data/gesellschaft/gesetzgebung/verhuellungsverbot/vorentw-stgb.pdf.download.pdf/vorentw-stgb.pdf I agree with your view regarding the different ratio legis. However, I would like to orientate myself only on the exception (para. 2), which can be taken over to a large extent also with a different ratio legis. Only the exception lit. g I would not adopt, and lit. a would have to be expanded, so that regardless of the place a politically motivated face covering is not punishable. User122 (discussion) 12:37, 22 May 2022 (CEST). [241]

Thanks for the link. Yes I think a partial takeover is not bad! User153 (discussion) 17:29, 22 May 2022 (CEST) [242]

Concept of "gathering of people"

[245]

We have already discussed the term (or the factual characteristic) of "gathering of people" variously above. Now we should decide. We have to decide the following points: [246]

1) "assemblies, demonstrations and other gatherings of people" --> Is there a need for this enumeration, i.e. is it preferable to a simple general clause ("gatherings of people")? [248]

2) Does the permit requirement apply to all forms of gathering? [250]

3) Is it necessary to add "in public space"? [252]

4) Does it need an addition "aggressive atmosphere"? [254]

I don't know how we can best do this. Maybe we could take a vote and then, once we have a basic direction, we can work on the wording. So I suggest we do "stabs" for pro/contra. (And if I have forgotten any important points, please feel free to add them. We are also welcome to make such preliminary votes for other points [e.g. the intention concerning prevention of prosecution, which was suggested by some people]) User106 (discussion) 20:13, 20 May 2022 (CEST) [256]

1) Pro: I I I I / Con: II II [258]

2) Pro: / Con: I I I I I II [260]

3) Pro: I I I I I/ Contra: I [262]

4) Pro: / Contra: I I I I I II [264]

I made my dashes too "User143 (discussion) 09:35, 23 May 2022 (CEST)" [266]

I have made my dashes. User126 (discussion) 11:08, 21 May 2022 (CEST). [267]

My dashes are in place as well. User122 (discussion) 11:59, 21 May 2022 (CEST). [268]

Got my dashes in place as well. To 1) I think a non-exhaustive enumeration is appropriate for the sake of clarity, so that the addressees can form a more precise idea of the standard (e.g. "in the context of sporting events" could be added). Regarding 2) I think that the obligation to obtain a permit cannot refer to other gatherings of people and is therefore not a mandatory requirement. Therefore, it could be completely omitted from my point of view, as it would otherwise rather lead to ambiguities/misunderstandings instead of clarification. Regarding 3) since the standard is already openly formulated anyway and a limitation would be appropriate, I find this addition suitable. Regarding 4) I would rather reject this addition, since the scope of application would be limited in a way that would be contrary to the purpose of the norm (chaotic people want to mingle with peaceful "gatherings of people" in order to commit crimes under their "protective cloak"...). User110 (discussion) 13:59, 21 May 2022 (CEST) [269]

Have put my dashes too User144 (discussion) 11:08, 21 May 2022 (CEST) [271]

Got my dashes set too User170 (discussion) 19:42, 21 May 2022 (CEST)User 170 [273]

My dashes are set. User153 (discussion) 08:01, 22 May 2022 (CEST) [275]

My dashes are set. (User 127) [277]

Wonderful! Then the following is set: [279]

1) and 2) No general clause "gatherings of people" --> User 110 suggests omitting the "permit requirement" -- that makes sense! User 144 suggests "assemblies or other gatherings of people" above. This also just implements the suggestion of user 110 ==> Therefore: Are there any votes against this suggestion of user 144? [281]

3) Addition "in public space" was integrated User106 (Discussion) 19:13, 22. May 2022 (CEST) [283]

"What do you think about this wording: whoever covers his face in places open to the public or in public spaces at gatherings or other crowds?" (User 144) [285]

Regarding the restriction (or para 2?), I've summarized the suggestions in the room (hopefully correctly) (if something is wrong, please correct). Do we do a vote with dashes again? [287]

Proposal 1: (User 110) [289]

Para. 2: Not punishable is the disguising of the face for exclusively medical or health reasons as well as due to the native custom. [291]

Proposal 2: (Result from the discussion of user 126 and user 153) [294]

Para. 2: Veiling is exempt from punishment, especially in the case of [296]

a: Swiss customs, such as the carnival; [298]

b: religious customs; [300]

c: public health protection situations. [302]

Proposal 3: (User 122) [305]

Par. 2: Face coverings are not punishable: [307]

a. for religious purposes; [309]

b. for the protection and restoration of health; [311]

c. to ensure safety; [313]

d. to protect against climatic conditions; [315]

e. to maintain local customs and for artistic and entertainment performances; [317]

f. for performances for advertising purposes. [319]

Proposal 4: (User 144) [322]

Par. 2: Not punishable are face coverings: [324]

a. for religious purposes; [326]

b. for the protection and restoration of health; [328]

c. to ensure safety; [330]

d. to protect against climatic conditions; [332]

e. to maintain local customs and for artistic and entertainment performances; [334]

f. for performances for advertising purposes; [336]

g. during demonstration marches or rallies, provided that the face covering has been approved by the competent authority. [338]

Proposal 1: [341]

Proposal 2: II [343]

Proposal 3: I I [345]

Proposal 4: I [347]

@User144 I think your wording regarding para. 1 is good (short and sweet), but I would use either "in publicly accessible places" or "in public space" and not both together (demonstrations could also be included by me and at most add "esp. in the context of sports events" in brackets after "other gatherings of people" to clarify a main concern of the norm). Regarding para. 2, I would prefer a narrower exception (proposal 2, for example), whereby we could also add a sentence stating that "the competent authority may grant further exceptions". User110 (discussion) 23:57, 22 May 2022 (CEST) [349]

Agreed re. the "double" mention of the public. However, I would already rewrite the exceptions in more detail, as is the case with proposal #3, for example. In proposal #2, we also have "customs" twice, which is rather unattractive wording. User136 (Discussion) 00:21, 23 May 2022 (CEST) [351]

Adjusted the text regarding para 1. Demonstrations are special types of assemblies, so demonstrations of assemblies are included. [352]

I would have combined b and d "User143 (Discussion) 09:31, 23 May 2022 (CEST)" or added lit b of proposal 3 to proposal 2. "User143 (Discussion) 09:42, 23 May 2022 (CEST)" [354]

I agree with you: Lit. b and lit. d actually belong together, in my opinion, one protects oneself from climatic conditions with a mask because one wants to protect one's own health. User136 (discussion) 09:41, 23 May 2022 (CEST) [356]

Exemption

[359]

How should we now design our exception rule? On the one hand, we should first agree on whether a "permit requirement", "legal exceptions to criminal liability" or a "subsequent judicial assessment regarding criminal liability in individual cases" should be chosen. [360]

-> Suggestions: Not punishable is the "making unrecognizable"/"face covering": ... [362]

On the other hand, the question arises whether our catalog of exceptions should be conclusive or not, as well as how we want to concretize the exceptions. User110 (Discussion) 14:22, 21 May 2022 (CEST) [364]

-> Suggestions: ... exclusively for medical/health reasons as well as due to local customs. [366]

I bring in the question again, doesn't the regulation have to be stricter than the one on federal level "veiling ban" anyway? (User 127) [368]

@User 127: I think this is also an important question: how does the norm relate to BV 10a? we have already addressed this above, but have not yet found an answer User170 (Discussion) 19:44, 21 May 2022 (CEST)User170 [370]

See my answer above. This online exercise has existed since 2017, a time when the veiling ban initiative was narrowly tabled and the question about the relationship to cantonal provisions had not yet arisen. I don't think we should worry too much about the competitive relationship with Art. 332a StGB. User122 (discussion) 12:29, 22 May 2022 (CEST) [372]

Suggestion: We simply adopt the wording of the preliminary draft of the StGB revision regarding the implementation of BV 10a

[374]

Para. 1: Whoever covers his face at meetings, demonstrations and other gatherings of people in places accessible to the public, which require a permit, shall be punished by a fine. [375]

Para. 2: Face coverings are not punishable: [377]

a. in places of worship; [379]

b. for the protection and restoration of health; [381]

c. to ensure safety; [383]

d. to protect against climatic conditions; [385]

e. to maintain local customs and for artistic and entertainment performances; [387]

f. for performances for advertising purposes; [389]

g. in the case of individual appearances and gatherings in public spaces, if the covering of the face is necessary for the exercise of the fundamental rights of freedom of expression or freedom of assembly, or if it is a visual expression of opinion that does not impair public safety and order. [391]

If necessary, we could still narrow the provision to assemblies, etc. User144 (discussion) 11:04, 22 May 2022 (CEST) [394]

I like the idea for para 2, but would choose this version as the first paragraph: [397]

Para 1 According to this law, whoever covers his face at meetings, demonstrations and other gatherings of people in places open to the public, which require a permit, shall be punished by a fine. (User 127) [399]

However, we would have to adapt the exception (para. 2) a bit to our provision. Lit. a is too narrow; this would have to be expanded so that all religiously motivated face coverings are excluded from criminal liability, regardless of the place of residence. With regard to lit. g, we would have to ask ourselves whether this does not include conduct that we actually want to punish. Therefore, I would not adopt lit. g in the tendency, in the thrust, one comes with this exception through the back door again to the "peace-threatening basic mood", of which we agreed above that we do not want to introduce it as a criterion. User122 (discussion) 12:42, 22 May 2022 (CEST) [402]

Thanks, I'll summarize: [405]

Para 1: Whoever covers his face in places open to the public at meetings, demonstrations and other gatherings of people requiring a permit shall be punished by a fine. [407]

Para. 2: Face coverings are not punishable: [409]

a. for religious purposes; [411]

b. for the protection and restoration of health; [413]

c. to ensure safety; [415]

d. to protect against climatic conditions; [417]

e. to maintain local customs and for artistic and entertainment performances; [419]

f. for performances for advertising purposes. [421]

Instead of the lit. g criticized by you, one could provide the following passage: (lit. g): (Not punishable are face coverings), at demonstration marches or rallies, provided that the face covering was approved by the competent authority. In my opinion, without such a provision, there would be a great risk that our article could not be interpreted in conformity with the constitution, since the freedom of expression and assembly would be restricted to an extent that is not necessary. (cf. https://www.bj.admin.ch/dam/bj/de/data/gesellschaft/gesetzgebung/verhuellungsverbot/vn-ber-stgb.pdf (p. 20 ff., esp. p. 23)). User144 [423]

Structure in paragraphs

[425]

Just a small formal suggestion. Wouldn't it be nicer if we divided the two sub-sentences into two paragraphs? Or is that not possible on this wiki? User122 (discussion) 12:47, 22 May 2022 (CEST) [426]

I assume that the provision is part of an enumeration and therefore the distinction into paragraphs is not possible. User106 (discussion) 19:15, 22 May 2022 (CEST) [428]