Lange Geismarstraße 55, 37073 Göttingen,
plaintiff,
Eichhofstrasse 14, 24116 Kiel, – H 4652/10 –
against
xxx
defendant,
Subject of the dispute: injunctive relief (injunction and elimination of consequences)
Did the Göttingen Administrative Court – 1st Chamber – respond to the oral hearing on February 9, 2011 xxx
The proceedings will be discontinued if the legal dispute has been unanimously declared resolved.
The defendant is sentenced to refrain from publicly asserting, literally or figuratively, that the lawsuits brought by the plaintiff for failure to act in social law disputes are "coaching" or an "attempt at cronyism" and that such lawsuits are "without material interests of the plaintiffs" (from the social court proceedings) in order to be able to "generate legal fees", or the plaintiff himself ensured that the files were withdrawn from the district for several weeks.
The defendant is obliged to publicly revoke the claim in a press release to the plaintiff, the StadtRadio Göttingen, the Göttinger Tageblatt, the taz Hamburg, the Harzkurier Osterode and "extra am Wednesday" that the actions brought by the plaintiff for failure to act in social court disputes are " Bag-tailoring" or the "attempt at bag-cutting" or such lawsuits were made "without any material interests of the plaintiffs" (from the social law proceedings) in order to be able to "generate attorney's fees". In addition, the defendant is obliged to revoke the claim against the plaintiff, the Harzkurier Osterode and "extra am Wednesday" that the plaintiff himself ensured that the district's files were withdrawn for several weeks.
Moreover, the application is dismissed.
The defendant bears the costs of the proceedings.
The judgment is provisionally enforceable because of the cost. The defendant can avert enforcement by providing security in the amount of the enforceable costs unless the plaintiff provides security in the same amount before enforcement.
Facts of the case
The plaintiff, in his capacity as a lawyer, requests that the defendant's legal advisor refrain from making statements and that they be revoked.
In April and June 2010, the plaintiff brought an action for failure to act against the defendant in two cases before the Hildesheim Social Court after objections to social law decisions had not been decided within the three-month period set out in Section 88 (2) of the Social Court Act (SGG). After service of the actions for failure to act, the defendant issued the respective objection notices, whereupon the plaintiff, on behalf of and on behalf of his clients, declared the proceedings closed and requested that the costs be imposed on the defendant. In two separate written submissions dated August 18, 2010, the defendant's legal advisor took a position in the two proceedings and spoke out against a decision on costs to the detriment of the defendant. In these pleadings, he stated, among other things, that the filing of the actions for failure to act itself was "nothing more than a coup" or "nothing more than an attempt at a coup" because the plaintiff, as the legal representative at the time, was granted access to the files, but the administrative processes only took weeks came back later.
In a letter dated August 24, 2010, the plaintiff filed a criminal complaint for insult against the defendant's legal advisor and filed a criminal complaint because of these statements. The public prosecutor's investigation has not yet been completed.
On August 25, 2010, the plaintiff distributed the statements of the defendant's general counsel in a press release outlining the facts. The announcement received a broad response in the regional and sometimes national press. In the articles it was reported that the defendant's legal counsel did not dispute the words "bag tailoring", but continued to stand by them and added that the lawsuits were only brought in order to make money or generate legal fees. In some press publications (Harzkurier Osterode from August 28th, 2010 and "extra am Wednesday" from September 1st, 2010), the defendant's legal advisor also stated that the plaintiff had filed a lawsuit for failure to act, even though he had previously inspected the files in his office for weeks and submitted urgent applications to the court himself ensured that the defendant's files were withdrawn for several weeks.
With a decision of September 20, 2010, the Hildesheim Social Court ordered the defendant to pay the costs in one of the completed action for failure to act (S 54 AS 744/10) on the grounds that the defendant could not derive sufficient reason within the meaning of Section 88 SGG from the fact that An interim legal protection procedure was pending between the parties involved following the plaintiff's objection. It is the defendant's responsibility to create duplicate files necessary to meet the deadlines for submitting proceedings or making a decision in order to maintain these deadlines.
In a letter dated September 24, 2010 to the Hildesheim Social Court in another social law dispute (S 33 AS 1135/10), the defendant stated that "the disputed letter of August 18, 2010 provided a welcome opportunity for advertising on the plaintiff's own behalf. In fact, only the plaintiff himself seemed to believe that the plaintiff had been insulted as a person: neither the administrative court nor the public prosecutor's office had anything to complain about in the wording at the time. In a further statement to the Hildesheim Social Court on September 28, 2010 in another legal dispute (S 45 AS 1332/10), the defendant stated that the plaintiff had not changed the action for failure to act to the benefit in the main case, but rather to a separate one filed a lawsuit would show that the purpose of the actions brought for failure to act must objectively be viewed solely as "generating attorney's fees."
The plaintiff filed suit on September 7, 2010. He is of the opinion that the description of a permissible and even necessary filing of an action for failure to act in the interests of the clients as "bag-cutting" represents an insult to honor. The Braunschweig Higher Regional Court has already determined this in the context of a disputed value complaint procedure. In addition, he did not inspect the files for weeks in the disputed social law cases, which the defendant's legal advisor also knew. Rather, he received the administrative files in his office on January 18, 2010 and sent them back to the defendant on January 21, 2010. The defendant's written statement dated September 24, 2010 shows that he adheres to the controversial statements.
In the oral hearing, the defendant stated that in the future it would refrain from claiming that the plaintiff had "inspected weeks of files in his office" in one of the social law proceedings on which this case is based. He will also revoke this statement to the Harzkurier Osterode and “extra on Wednesday”. The parties involved then declared the legal dispute to be settled.
The plaintiff requests
1. to oblige the defendant, in particular xxx, to refrain from publicly or substantively asserting that the lawsuits brought by the plaintiff for failure to act in social law disputes are "pursuit" or "an attempt at pandering" and that such lawsuits are "without material interests the plaintiff" (from the social law proceedings) in order to "generate" legal fees, or the plaintiff himself ensured that the files were withdrawn from the district for several weeks,
2. to oblige the defendant to publicly revoke the statements mentioned in the application under 1 in a press release, which is to be sent to the usual press distribution list of the district, but in any case to the following press organs and people:
StadtRadio Göttingen
Göttinger Tageblatt
taz Hamburg
Harzkurier Osterode
extra on Wednesday and
the plaintiff
The defendant requests
reject the complaint.
He is of the opinion that the plaintiff lacks the need for legal protection because he himself circulated the controversial words through a press release. In addition, there is no risk of repetition because the defendant has no interest in keeping this matter in the public eye. In addition, the term “bag tailoring” represents an assessment that was made in the pursuit of legitimate legal and economic interests. It is not an insult. Furthermore, he did not describe the plaintiff as a "bag cutter", but simply described his behavior. There was no personal characterization of the plaintiff.
In response to the application for the issuance of an interim order to stop the allegation of "bag-cutting" and the "week-long inspection of the files in the underlying social law proceedings in his office", the adjudicating chamber prohibited the defendant from making public statements in public, literally or in the spirit, by a legally binding decision dated September 17, 2010 to claim that the plaintiff had "inspected files in his office for weeks" in social law proceedings and "he himself ensured that the files were withdrawn from the district for several weeks." Furthermore, the court rejected the application.
For further details of the facts and status of the dispute, reference is made to the contents of the court file.
Reasons for the decision
1. a) If the plaintiff asserts a claim for injunctive relief and revocation against the defendant, the action is admissible and, in particular, administrative legal proceedings are opened. According to Section 40 Paragraph 1 Sentence 1 VwGO, the administrative legal process is available in all public law disputes of a non-constitutional nature, unless the dispute is expressly assigned to another court by federal law. Actions for an injunction and revocation of defamatory, credit-damaging or otherwise inadmissible statements made by a public administration body in the performance of sovereign tasks and based on existing or supposed public law powers are disputes under public law (cf. Kopp/Schenke, VwGO, 16th edition 2009, § 40 Rn.28). The statements made by the defendant's general counsel were made in his capacity as a public official in the performance of his public duties as a representative in court proceedings.
b) The permissible type of action for the claim for injunctive relief and revocation pursued by the plaintiff is the general action for performance.
If the plaintiff demands that the defendant refrain from making future statements, there is a special need for legal protection, i.e. specifically aimed at taking preventive legal protection. The plaintiff cannot be expected to first wait for the controversial statement to be repeated and only then take action against it (see also VG Lüneburg, judgment of October 17, 2007 - 5 A 247/06 -, Juris para. 19). There is also a risk of repetition. The legitimate interest in claiming legal protection with regard to the injunction only ceases if a repetition of the statement at issue can be clearly and precluded from the outset. The existence of the risk of repetition is a factual feature of the existence of a claim for injunctive relief, so that it is questionable whether it should already be examined within the scope of admissibility (see VG Regensburg, judgment of December 10, 2009 - RO 3 K 08.1960 -, Juris Rn. 28) . However, this can remain an open question since the existence of a risk of repetition cannot be ruled out from the outset. The defendant's legal advisor generally adheres to the content of his statements and defends them. This is particularly evident in the two written submissions dated September 24th and 28th, 2010.
The plaintiff's need for legal protection does not disappear because the objectionable statements were made in direct connection with legal prosecution or legal defense in a legally regulated administrative and judicial procedure. Such statements, which in individual cases can have an offensive character, should generally not be able to be defended against defamation suits. The so-called main proceedings should not be impaired by a restriction on the freedom of expression of those involved. Rather, the parties and, as a result, the persons or lawyers authorized by them should be allowed to present anything in court proceedings that they consider necessary to protect the rights of the parties, even if this affects the honor of another. Whether the argument is true and relevant should only be examined in the main proceedings, which are subject to their own rules. It would be incompatible with the interests of those affected that are worthy of protection and with the requirements of the proper functioning of the administration of justice if the powers of the court in the main proceedings could be undermined by the possibility of asserting defense claims in a separate process - possibly before a different court. Therefore, in such cases there should generally be no need for legal protection for an action for the protection of honor (OVG Saarland, decision of March 29, 2007 - 1 Q 46/06 -, Juris Rn. 15 with further evidence). It is true that the challenged statements regarding the accusation of "criminalism" were made in social court proceedings, so there may be no need for legal protection for the lawsuit in this respect. However, an exception applies if the statements appear to be insulting criticism. However, an expression of opinion does not become insulting simply because of its disparaging effect on third parties. Rather, a disparaging statement only takes on the character of insults when the focus is no longer on the discussion of the matter, but rather on the defamation of the person. Beyond polemical and exaggerated criticism, it must consist of the degradation of the person (OVG Saarland, aa 0., Rn. 18). Just as with the risk of repetition, the defamatory statement is a criterion for the existence of a claim for injunctive relief, so that here too it is questionable whether it is already necessary to check within the scope of admissibility whether the defamatory statement is an insult in the sense described above. However, this can also remain an open question, as it cannot be ruled out in advance that the attacked statements could constitute insults. In order to avoid repetition, reference is made to the validity check below.
The interest in legal protection with regard to the omission of the allegations of "bag cutting" is not missing because the plaintiff himself made these statements public. This would only be the case if bringing the lawsuit would obviously be an abuse of law. There is no evidence that the plaintiff disseminated the statements solely in order to create grounds for asserting an injunction in court. Since the statements in a court pleading have already reached a certain level of publicity, at least those involved in the proceedings and the court's employees, and the plaintiff could not influence their further distribution, the plaintiff was able to send his own statement to the (broader) ) Go public without losing your right to an injunction.
2. The lawsuit is justified to the extent apparent from the tenor.
The right to refrain from making the disputed statements has its roots in Section 1004 Paragraph 1 Sentence 1 of the German Civil Code (BGB), which must be applied in the event of the violation of other absolute rights such as honor in addition to the property explicitly mentioned in the standard. The basis for the claim with regard to the request for injunctive relief is in analogous application of Section 12 Sentence 2, Section 862 Paragraph 1 Sentence 2, Section 1004 Paragraph 1 Sentence 2 BGB in conjunction with. V. m. § 823 paragraphs 1 and 2 BGB, §§ 185 ff. StGB in conjunction with V. with Articles 1, 2 and 12 GG the so-called quasi-negatory injunctive relief. The claim is triggered by attacks on the protection of personal rights and can be directed against statements of fact as well as expressions of opinion and value judgments.
Statements of fact exist when a statement is based on provable processes, i.e. the correctness of the statement can be objectively determined through the collection of evidence. Expressions of opinion, on the other hand, are characterized in terms of their essential content by elements of opinion, opinion or value and are therefore not amenable to objective proof of correctness. If both elements mix in an utterance and cannot be separated from each other without changing the content of the statement, a distinction must be made based on the focus of the utterance - whether the evaluation predominates or the information about actual facts. In the case of factual statements, their truthfulness must always be checked. It should also be noted that even statements that are true in isolation can give an untrue picture of reality if important parts of the event are not presented or are only presented in a distorted manner. On the other hand, allegations that are themselves untrue can be corrected by later explanations, lose their defamatory character or be weakened in this way. When expressing opinions, the question must be asked whether the principle of objectivity, which requires restraint and moderation, has been violated (cf. overall BVerfG, decision of October 25, 2005 - 1 BvR 1696/98 -, Juris Rn. 34; VG Regensburg, aa 0., Rn . 34 f.) and – in the case of statements made in legal proceedings – whether it is a matter of abusive criticism (see above).
Measured against these principles, the statements about the "bag-cutting" and that the lawsuits were filed "without any material interests of the plaintiffs" in order to be able to "generate attorney's fees" are expressions of opinion in the form of an insult (a) and in the statement , "the plaintiff himself ensured that the district's files were withdrawn for several weeks" because of an untrue statement of facts (b).
a) In the Middle Ages, a "bag cutter" was used to describe a thief who cut off the money or alms bag attached to his belt and its contents. Today, in a figurative sense, a provider of overpriced goods or services is also referred to as a cutthroat (see Wikipedia). It is a derogatory remark that is understood in the sense of plundering, taking advantage or cheating (www.duden.de). Whether the person is described as a "bag cutter" or their behavior as "bag cutter" may make a difference linguistically, but not in meaning. By describing the behavior, a statement is made about the person. A person accused of "bag cutting" is accused of reprehensible, illegal and underhanded behavior. The description of the behavior of a legal representative and lawyer as "bag-cutting" is intended to devalue and defame their work. It therefore affects him as a person and in his professional practice. The lawyer is assumed to be focused solely on his own benefit - namely, obtaining as many and high fees as possible - without caring about the interests and concerns of his clients. The use of this term no longer has anything to do with a factual dispute about the obligation to bear costs in completed social court proceedings. It therefore represents an insult to the plaintiff. The same applies to the statement that the (inaction) lawsuits were made "without any material interests of the plaintiff" in order to "generate attorney's fees." In doing so, the defendant has once again filled in and described the term "bag tailoring" in a generally understandable way in order to clearly identify what he sees as the plaintiff's reprehensible behavior. The fact that the defendant's legal advisor confirmed the use of the term "bag tailoring" in the press, partially confirmed it and, beyond the text of the plaintiff's press release, presented the behavior as if the plaintiff had acted purely out of a desire for profit is also a statement the public. This is therefore an unlawful sovereign interference with the plaintiff's freedom of occupation (Art. 12 Para. 1 GG) as well as the general personal rights (Art. 2 Para. 1 GG) (as already stated by the Braunschweig Higher Regional Court, decision of October 27, 2010 - 2W 129/10 -). This applies all the more since the plaintiff only exercised the rights to which his clients were entitled under Section 88 SGG. It is the defendant's sole responsibility to decide on objections within three months. If this does not happen, those affected have the option of filing an action for failure to act in accordance with Section 88 SGG. To describe the exercise of these rights as "neat-cutting" or to assume a desire for profit not only misses the point, but also shifts the areas of responsibility and represents a disparagement of the plaintiff. The defendant's legal advisor must also be aware that waiting the decision in an interim legal protection procedure is not a sufficient reason for forgoing the decision on an objection within the meaning of Section 88 SGG (see Meyer-Gladewig/Keller/Leiterer, Commentary on the SGG, 9th edition 2008, Section 88 Rn. 7b) . In addition, the behavior of the plaintiff that was assumed to justify the “bag cutting” did not even exist. The defendant's legal advisor wrongly and against his better judgment accused the plaintiff of having withheld the administrative procedures from being processed for weeks (see in detail below).
As a preventive protection of personal rights, the quasi-negatory injunction requires that there is a risk of unlawful impairment. There is a concrete risk of recurrence. It requires objective, factual, serious concern about further disruption at the time of the last oral factual hearing. Other identical or analogous statements include: B. to be concerned if a cease and desist declaration is not made and the statements already made are considered appropriate. The repetition of a statement, on the other hand, seems questionable if, according to the current state of knowledge, there is no situation in which reflections on the abstract question can be expected and the topic is not of current importance (cf. VG Hamburg, judgment of October 11, 2006 - 10 K 914/06 -, Juris Rn. 83 with further references). The defendant did not issue a cease and desist declaration and did not indicate that he would refrain from making the statement. He continues to be of the opinion that he can continue to use the term "tailoring" to defend his legal position in a regulated legal procedure and in a public battle of opinion. He made this clear again in the oral hearing. He also made it clear to the SG Hildesheim, with reference to the administrative court and the public prosecutor's office, that there was nothing wrong with the term "bag tailoring", although the administrative court expressly left this question open in its emergency decision of September 17, 2010 and the public prosecutor's office was still investigating hadn't even been completed.
The requirements for a claim for injunctive relief are therefore met.
b) The assertion by the defendant's legal advisor that the plaintiff "himself ensured that the district's files were withdrawn for several weeks" in social law proceedings is an untrue statement of fact. By submitting corresponding letters and extracts from the outgoing mail book of the plaintiff's office, it is clear that the defendant sent the plaintiff the administrative files in a letter dated January 13, 2010, which arrived in his office on January 18, 2010. The plaintiff then sent the files back to the defendant on January 21, 2010 in a letter dated January 20, 2010. The defendant does not deny this (anymore). To the extent that he states that the statements meant that the files were not available to him for processing for several weeks because they had to be presented to the social court due to urgent applications made by the plaintiff in the same matter, this does not justify the statements . The plaintiff's actual inspection of the files only took three days. If the files were not available to the defendant for processing due to the files being submitted to the court, this is not the responsibility of the plaintiff, but of the defendant himself. By creating retainers, he would have been able to continue processing (see also the decision of the SG Hildesheim from September 20, 2010 - S 54 AS 744/10 -). Through statements in the press, the defendant concealed this fact and wrongly wanted to shift responsibility to the plaintiff. The statements in the press do not allow for any other understanding. They read: "...has brought an action for failure to act in the matter of the extended H. family, although he himself ensured that the district's files were withdrawn for several weeks by inspecting the files in his office for weeks and urgent applications to the court." During the oral hearing, the defendant insisted on the correctness of his statement and his interpretation. He expressly rejected a cease and desist declaration, so that there is also the necessary risk of repetition.
The plaintiff therefore also has a claim for injunctive relief.
3. The plaintiff is largely entitled to the public law revocation claim asserted in the complaint under 2.
The public law right to revocation is also derived from the corresponding application of Section 1004 of the German Civil Code (BGB) directly from the right to remedy the consequences. It presupposes that the statement whose revocation is sought is an assertion that is defamatory to the person concerned and that the impairment continues to have an effect in the present (cf. VG Minden, judgment of November 3, 2003 - 3 K 1966/02 -, Juris Rn. 57). It is aimed at restoring the condition that existed at the time of the intervention. As explained under 2., these requirements apply here.
Since the defendant's statements were not distributed via the defendant's "usual" press distribution list, but were only made in special press organs, the right to revocation only exists against these press organs and against the plaintiff.
The decision on costs is based on Sections 154 Paragraph 1, 161 Paragraph 2 Sentence 1 in conjunction with. V. m. 155 Para. 1 Sentence 3 VwGO, because the plaintiff's defeat is minor and the defendant has partially complied with the claim by submitting the (partial) cease and desist declaration.
The decision on provisional enforceability follows Section 167 VwGO in conjunction with. V. m. §§ 708 No. 11,711 ZPO. The plaintiff's revocation and injunction action is a performance action aimed at simple sovereign administrative actions, to which Section 167 (2) VwGO applies accordingly in accordance with the meaning and purpose of the regulation - to intervene in the sovereign administration only with legally binding decisions. Accordingly, the enforcement order was to be limited to the costs decision (cf. Nds. OVG, judgment of January 18, 2000 - 11 L 87/00 -, Juris Rn. 13).
Instructions on legal remedies follow.
