Attention – nothing is legally binding – partially overturned by decision of the Lüneburg Regional Court of 29.02.2012 – file number: 10 T 5/11.
Decision
In the
case concerning
xxx,
-affected person-
Legal representative:
Attorney Sven Adam, Lange Geismarstraße 55, 37073 Göttingen
(File number: 0494/10 sva)
Participants:
xxx,
The Dannenberg (Elbe) District Court decided by the xxx of the District Court xxx on August 24, 2011:
It is determined that the deprivation of liberty of the person concerned on November 17, 2010, between approximately 1:00 a.m. and approximately 8:30 a.m. in Hitzacker/Harlingen, was unlawful.
Furthermore, the application of November 25, 2010 is rejected.
The decision is issued free of court fees. The party concerned shall bear the costs necessary for the proper handling of the matter.
The business value is set at 3,000.00 euros.
Reasons:
I.
The person concerned is challenging the police custody he suffered in connection with the Castor transport in November 2010.
On the night of November 6-7, 2010, the individual in question participated in a sit-in protest on the Lüneburg-Dannenberg railway line near Harlingen, outside the town itself, in the district of Lüchow-Dannenberg. Well over 1,000 people had sat down on the tracks. After midnight, police surrounded the protesters. At approximately 1:40 a.m., the police cleared the blockade. Prior to this, the responsible police officer, [Name Redacted] from the [Police Headquarters Redacted], held an approximately one-hour meeting with representatives of the protesters, a Member of the European Parliament, the District Administrator of Lüchow-Dannenberg, several church representatives, and members of the local citizens' initiative opposing the Castor nuclear waste transport. During this meeting, it was agreed that the police would not record the personal details of any individuals taken into custody, with the exception of identified offenders and those who committed crimes during the clearing operation. Furthermore, those affected who doubted the legality of the measures and wanted to have this legally reviewed should be able to voluntarily provide their personal details.
The participants in the sit-in, including the person concerned (at least he was within the cordoned-off area), were gradually moved to a meadow near the railway line. This meadow was bordered by closely spaced police vehicles. Reference is made to the drawing on page 12 of the files. A contact point for complaints and applications was also located there. Reference is made to the aforementioned drawing. Until after the Castor transport passed through at approximately 8:30 a.m. on the morning of November 7, 2010, the participants in the sit-in – including the person concerned – who had been moved to the meadow, were prevented by the police from leaving the area. Food and warm blankets were provided for those detained in the field.
The attempt by the person concerned to have his personal details recorded by the responsible police officers and to be brought before a judge failed because, despite repeated inquiries to police officers standing around, he could not be told where he could present his request.
On the night of November 6th to 7th, 2010, there were several blockade actions at various road junctions throughout the district of Lüchow-Dannenberg.
The person concerned believes that his police custody was unlawful because he was not brought before a judge.
The person concerned requests,
to determine that the deprivation of liberty of the applicant carried out by officials of the respondent on November 7, 2010, between approximately 1:00 a.m. and approximately 8:30 a.m. in a field near Harlingen, was unlawful in principle and in the manner in which it was carried out.
The party concerned requests,
to reject the application.
The person concerned should have reported to the specially established contact point, then he would have been immediately brought before the responsible detention judge in Lüchow.
II.
The applicant's request is essentially successful.
1. The detention of the defendant by the police on November 7, 2010, was unlawful. After hearing the defendant's testimony, the court is convinced that he was not given sufficient opportunity on the meadow in Hitzacker/Harlingen to have his personal details recorded by the police and subsequently appear before a judge. This ultimately prevented a timely judicial decision. In this specific case, the court is convinced that, despite inquiries with police officers, the defendant was simply not directed to the designated contact point. This would have been easily possible had the officers involved been informed of the contact point's existence. While it is well-known to the court from numerous cases concerning Castor transports in recent years that detained individuals generally do not wish for the police to record their personal details, the possibility of doing so must nevertheless be provided in such cases to ensure an immediate hearing and decision before the competent judge. Therefore, if the responsible police officer reaches a de-escalation agreement regarding the recording of personal details (not recording the personal details of all persons taken into custody), the opportunity must still be provided for those (few) individuals who absolutely insist on having their personal details recorded. This must also be adequately communicated. In the specific case at hand, this did not work for the individual concerned, resulting in a violation of the requirement to obtain a judicial decision without delay, as stipulated in Section 19 Paragraph 1 Sentence 1 of the Lower Saxony Public Safety and Order Act (NdsSOG). Furthermore, the exceptional circumstances of Section 19 Paragraph 1 Sentence 2 of the NdsSOG do not apply to a very small number of individuals who insist on providing their personal details and being brought before a judge, as police transport capacity is not being used to a significant extent.
2. Furthermore, the applicant's request of November 25, 2010, is unsuccessful insofar as it concerns the manner in which his police custody was carried out. The circumstances of his detention, as described by the applicant, do not establish an independent, overriding interest in rehabilitation. The applicant was not subjected to undue hardship during his night in the field. His care and provisions were adequately provided.
3. The ancillary decisions follow from Section 13a Paragraph 1 FamFG and Section 30 Paragraph 2 KostO.
Attention – nothing is legally binding – partially overturned by decision of the Lüneburg Regional Court of 29.02.2012 – file number: 10 T 5/11.
