In the
general matter of safety and public order
Regarding: 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 on May 1, 2011 at approximately 1:30 a.m. at the intersection of Boxhagener Str. / Mainzer Str. because there was initial suspicion against her of breach of the peace in conjunction with attempted dangerous bodily harm pursuant to Sections 125, 125a, 223, 224 Paragraph 1 No. 2, 22, 23, 52 of the German Criminal Code (StGB), as she is suspected of having thrown a glass bottle at a police officer from a crowd, whereby the glass bottle bounced off the officer's protective clothing.
The person concerned was initially taken to the ZEB Kruppstr. 15. At approximately 8:30 a.m. on May 1, 2011, she was then taken to the Tempelhof detention center for a court appearance before a magistrate. The Berlin public prosecutor's office did not apply for an arrest warrant. Therefore, at approximately 2:30 p.m., the person concerned was transported back to the ZEB Kruppstr., where she arrived at approximately 3:00 p.m.
A hearing before the ASOG judge took place from 4:35 pm.
The application by 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.
While the timing of the police measures was generally correct, the police's decision to bring the individual before the duty judge for a hearing before the magistrate without prior consultation with the responsible public prosecutor was erroneous and led to an avoidable delay in the proceedings. Prior consultation with the Berlin public prosecutor's office would have been necessary, given a reasonable assessment of the facts and the law, particularly considering the individual's age, stable social circumstances, and the fact that she had no prior criminal record.
A hearing before a magistrate would have been ruled out from the outset had the Berlin public prosecutor's office been consulted, meaning that the person in question did not need to be taken into custody by the duty judge. Instead, she could have been brought before the ASOG judge for a hearing shortly after her arrest, especially since she was already at the ZEB Kruppstrasse.
An appeal may be lodged against this decision within one month of today's date by submitting 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 contested decision and a declaration that an appeal is being lodged against this decision. It must be signed by the appellant or their authorized representative
The appeal must be received by the court within the stated deadline. 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.
