Business No.: 1 T 24/11
4 XIV 8/10 B Göttingen District Court
in the case of deprivation of liberty
xxx,
applicant and complainant,
Legal representative: Attorney Sven Adam, Lange Geismarstraße 55, 37073 Göttingen
The 1st Civil Chamber of the Göttingen Regional Court decided on July 25, 2011:
The decision of the Göttingen District Court of 2 May 2011 to refer the matter to the lower court and not to grant relief is hereby overturned and the case is referred back to the District Court for a new decision.
Reasons:
The referral and non-remedy decision had to be set aside because the non-remedy decision does not meet the requirements of Section 68 Paragraph 1 of the Act on Proceedings in Family Matters and Matters of Non-Contentious Jurisdiction (FamFG). The non-remedy decision lacks a statement of reasons. A non-remedy decision must be reasoned, in particular, if the appeal, as in this case, contains new submissions, and must specifically address the appellant's relevant arguments (Bumiller/Harders, FamFG, 10th ed., Section 68, marginal note 3).
The court exercises its right, in cases of serious deficiencies in the non-remedy procedure, to remand the case to the court of first instance for a new remedial procedure. It points out that the new remedial procedure will likely need to clarify whether a personal hearing should have been conducted and whether the violation of the citation requirement affects the applicability of Section 18 Paragraph 1 No. 2 of the Lower Saxony Public Safety and Order Act (Nds.SOG). To assess the legality of the several hours of detention, it will be necessary to obtain a supplementary statement from the police regarding the reasons for the length of the detention.
