Business number: 381 AR 3004/11 ASOG Berlin, May 1, 2011
In the
general matter of safety and public order
xxx
born on: xxx
residing at: xxx
Sven Adam, Lange Geismarstraße 55, 37073 Göttingen
Applicant: xxx
The application by the Berlin Police President dated May 1, 2011, for the detention of the person held in custody is rejected.
The applicant is ordered to pay the detainee's extrajudicial expenses.
Reasons:
The person concerned was provisionally arrested by police forces on April 30, 2011, at approximately 11:15 p.m. at Boxhagener Platz/Wismarer Platz in 10245 Berlin, because there was initial suspicion of an act of resistance pursuant to Section 113 of the German Criminal Code (StGB). The person concerned allegedly attempted to prevent the arrest of the separately prosecuted individual xxx by grabbing the arresting officer by the neck and striking him in the back.
At approximately 3:14 a.m. on May 1, 2011, the individual in question was taken to the ZEB (Central Office for the Protection of the Constitution and Counterterrorism) at Kruppstrasse 15 for processing of the criminal proceedings initiated against him and for the application of any measures under the Public Safety and Order Act (ASOG). During the course of the police procedures, identification measures were taken, which were carried out on the legal basis of Section 81b, second alternative, of the Code of Criminal Procedure.
At approximately 12:45 PM on May 1, 2011, the application pursuant to Sections 30 and 31 of the Public Safety and Order Act (ASOG) was filed with the court. Subsequently, the court held a hearing with the person concerned.
It could no longer be determined why a period of 4 hours elapsed between the provisional arrest of the person concerned at 23:15 and his transfer to the ZEB Kruppstr.
The application of the Berlin Police President was to be rejected because the person concerned was not brought before a judge immediately in accordance with Section 31 Paragraph 1 Sentence 1 ASOG to obtain a judicial decision.
"Without undue delay" within the meaning of Section 31 Paragraph 1 Sentence 1 ASOG means that the judicial decision must be obtained without any avoidable delay that cannot be justified on objective grounds.
In the present case, over 13 hours elapsed between the provisional arrest and the appearance of the person concerned before the judge, without the applicant being able to explain why the appearance took so long. In particular, it could no longer be clarified why the person concerned had to spend almost 4 hours waiting in a police vehicle before being taken to the Central Adult Protection Authority (ZEB).
Furthermore, the implementation of measures pursuant to Section 81b, second alternative, of the Code of Criminal Procedure before a judicial decision on the continuation of detention is obtained also violates the requirement of immediacy.
Since there was a violation of the requirement of immediacy, the police chief's application had to be rejected and the person concerned dismissed immediately.
Legal Notice:
This decision may be appealed within one month of today's date by filing a written appeal in German or by having it recorded by the clerk of the court at the Tiergarten Local Court, Tempelhafer Damm 12, 12101 Berlin. The appeal must state the designation of the decision being appealed and declare that an appeal is being filed against this decision. It must be signed by the appellant or their authorized representative.
The appeal must be received by the court within the aforementioned time limit. If the deadline falls on a Saturday, Sunday, or public holiday, the deadline is extended to the next working day.
Upon application, a direct appeal to the Federal Court of Justice may be filed bypassing the appellate court (Regional Court of Berlin) if the parties consent to this bypassing and the Federal Court of Justice grants leave to appeal. The application must be filed by a lawyer admitted to practice before the Federal Court of Justice. The declaration of consent and the application are deemed a waiver of the right to appeal.
