Decision
In the administrative litigation
Mr. xxx
– Plaintiff –
against
xxx
– Defendant –
because of
police law
The 2nd Chamber of the Administrative Court of Meiningen, composed of the xxx of the Administrative Court xxx, the Judge at the Administrative Court xxx and the Judge at the Administrative Court xxx, decided on November 16, 2011:
The plaintiff is granted legal aid from the date the lawsuit is filed. Attorney Adam of Göttingen is appointed to represent him, and the costs incurred must not exceed those of representation by an attorney located within the jurisdiction of the Meiningen Administrative Court.
Reasons:
Pursuant to Section 166 of the Administrative Court Procedure Act (VwGO) in conjunction with Section 114 of the Code of Civil Procedure (ZPO), a party is to be granted legal aid upon application if, based on their personal and financial circumstances, they are unable to bear the costs of litigation, or can only bear them in part or in installments, and if the intended legal action offers sufficient prospects of success and does not appear frivolous. Taking these principles into account, the plaintiff's application for legal aid and the appointment of their legal representative is to be granted.
The plaintiff cannot afford the costs of the proceedings; the evidence required under Section 117 Paragraph 2 of the German Code of Civil Procedure (ZPO) has been submitted.
The assessment of the merits of the claim must not be overly rigorous; in particular, Section 114 Sentence 1 of the German Code of Civil Procedure (ZPO) must not be interpreted to mean that legal questions not yet sufficiently clarified may be decided in legal aid proceedings (Federal Constitutional Court, Decision of January 12, 1993, Case No.: 2 BvR 1584/92, Juris). The Basic Law mandates a far-reaching equalization of the situation of those with and without means in the realization of legal protection. Article 3 Paragraph 1 of the Basic Law places compliance with this requirement of equality before the law under fundamental rights protection. An interpretation of Section 114 Sentence 1 of the German Code of Civil Procedure (ZPO) to the effect that even difficult, unresolved legal questions can be decided in legal aid proceedings would disregard the significance of equality before the law (Federal Constitutional Court, Decision of March 13, 1990, Case No.: 2 BvR 94/88, BVerfGE 81, 347 = DVBl 1990, 926 = NJW 1991, 413). Accordingly, a standard of interpretation that disproportionately hinders an indigent party's ability to pursue or defend their legal rights compared to a party with sufficient means would be incompatible with Article 3 Paragraph 1 of the German Basic Law (GG).
Legal aid is therefore always to be granted if the proceedings involve either legal questions that have not yet been sufficiently clarified or if, at the time of the decision on the application for legal aid, the court cannot foresee how the legal dispute will turn out because the assessment of the facts is legally difficult or the facts still require clarification, for example through the taking of evidence, and thus the outcome of the legal dispute is still open.
The lawsuit has a reasonable prospect of success. Based on the court's current understanding, everything points to the admissibility and merit of the claim.
The action is admissible as a declaratory judgment action analogous to Section 113 Paragraph 1 Sentence 4 of the German Administrative Court Procedure Act (VwGO). In the present case, the proceedings were concluded with the issuance of the administrative act regarding the deletion of the images on the camera and the determination of personal data, or through the immediately subsequent enforcement, i.e., before the action was filed. A declaratory judgment action is also admissible in such cases, as otherwise legal protection would be impossible in violation of Article 19 Paragraph 4 of the German Basic Law (GG).
The plaintiff also has a legitimate interest in a declaration that the administrative acts are unlawful because there is a risk of recurrence. This is evident, among other things, from the fact that the authority made it clear in its response to the complaint that it considers the chosen course of action to be correct and appropriate in such cases, thus indicating that it will continue to proceed in this manner in the future.
The court will most likely conclude in its judgment that the lawsuit is also justified because the actions of the police officers were unlawful.
The unusual aspect of this case is the absence of official records. According to the authorities, despite being advised by the court, no notes were made regarding the interactions between the plaintiff and the police officer. Only more than a month after the lawsuit was filed was a police officer prepared a statement of facts, presumably in preparation for the defense. Furthermore, written reports from the Gotha Police Directorate, dated July 25 and 27, 2011, to the Thuringian Ministry of the Interior, are available. These reports were written by senior police officers who were not directly involved in the incident in question.
Under these circumstances, the coherence of the arguments presented by the parties involved becomes increasingly important.
The plaintiff's account of events is internally consistent. He claims that he photographed a police operation on the sidelines of the demonstration against the German Burschenschaft Convention to ensure "that evidence would be available should the person involved wish to file a criminal complaint against the police officers." He states that he photographed into a building entrance where the police action was taking place. He claims that the police officers then detained him and forced him to manually delete the photograph, as well as other photographs taken earlier that day. Finally, his personal details were recorded.
In contrast, the defendant's account of the facts is difficult to comprehend. Indeed, in the statements of defense dated July 28, 2011, and October 25, 2011, it is argued that the order to delete the images was based on Section 12 Paragraph 1 of the Police Act (PAG) and constituted an administrative act. This act, it was claimed, served to protect the officers. There was a concern that portrait photos of the officers would be disseminated within the meaning of Sections 22 and 23 of the Copyright Act. The officers had a legitimate interest in preventing such dissemination. However, the submissions from the Gotha Police Directorate dated July 27, 2011, which were submitted to the court, state that the plaintiff deleted the images voluntarily, and therefore no infringement occurred. The same view is expressed in the letter from the Gotha Police Directorate dated July 25, 2011. The statement of facts dated July 22, 2011, also emphasized the voluntary nature of the deletion. The defendant's account of the facts is therefore highly contradictory.
Even if one were to accept the defendant's view, interpreting the statements regarding voluntariness to mean that no coercion was necessary to enforce the order, no danger to public safety or order within the meaning of Section 12 Paragraph 1 of the Police Act (PAG) can be identified. There is no evidence that the plaintiff ever intended to publish the images he originally took.
The assertion that the plaintiff's statement in the complaint—that he intended to provide the images to those affected by a police action to substantiate a potential criminal complaint—proves that "the plaintiff is not presumed to act lawfully" is untenable. Indeed, case law holds that under certain circumstances, it could be assumed that photographs taken by press photographers will also be published (see VGH Mannheim, judgment of July 10, 2000, case no.: 1 S 2239/99 = NVwZ 2001, 1292). A prerequisite for taking such action is objective evidence that publication is planned in the specific case. However, it cannot be assumed that photographs deemed inadmissible under Sections 22 and 23 of the German Copyright Act are always disseminated (cf. Federal Administrative Court, Judgment of July 14, 1990, Case No.: 6 C 7/98 = NVwZ 2000, 63). The fact that such photographs of police officers are generally published more frequently on the internet is insufficient. Rather, a concrete connection to the individual case is necessary. This connection could, as with press photographers, potentially lie in the profession of the person concerned, since the purpose of a press photographer's work is obviously to produce photographs for publication. However, no such connection exists in the plaintiff's case. Nor was it even alleged.
The fact that the plaintiff was encountered a second time, after the first incident, initially left quickly but was then detained, does not lead to such a conclusion.
The recording of the plaintiff's personal details was therefore also unlawful, because there was no danger within the meaning of Section 14 Paragraph 1 No. 1 of the Police Act (PAG). However, the defendant cited this provision to justify the order. No other grounds for recording the plaintiff's personal details are apparent.
The plaintiff was therefore to be granted legal aid with the appointment of his authorized representative, whereby the legal aid was to be limited in accordance with Section 173 of the Administrative Court Procedure Act (VwGO) in conjunction with Section 121 Paragraph 3 of the Code of Civil Procedure (ZPO).
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