decision
In the administrative dispute proceedings
Mr. xxx
– plaintiff –
against
xxx
– Defendant –
because of
police law
The 2nd Chamber of the Meiningen Administrative Court decided on November 16, 2011 through the xxx of the Administrative Court xxx, the judge at the Administrative Court xxx and the judge at the Administrative Court xxx:
The plaintiff will be granted legal aid from the time the lawsuit is filed. Attorney Adam, Göttingen, will be assigned to him, although no higher costs may be incurred than if represented by a lawyer based in the judicial district of the Meiningen Administrative Court.
Reasons:
According to § 166 VwGO in conjunction with § 114 ZPO, a party is to be granted legal aid upon request if, based on their personal and economic circumstances, they cannot afford the costs of the litigation, can only afford them in part or only in installments and if the intended legal action has sufficient prospects offers success and does not appear wanton. Taking these principles into account, the plaintiff's application for approval of legal aid must be approved with the assistance of his legal representative.
The plaintiff cannot afford the costs of the proceedings; the evidence in accordance with Section 117 (2) ZPO has been submitted.
The examination of the prospects of success of the lawsuit must not be overstretched, in particular Section 114 Sentence 1 ZPO must not be interpreted to the effect that legal questions that have not yet been sufficiently clarified are decided in the legal aid procedure (BVerfG, B. of January 12, 1993, Ref.: 2 BvR 1584 /92, Juris). The Basic Law requires the situation of those with means and those without means to be largely equalized when it comes to legal protection. Article 3 Paragraph 1 of the Basic Law places compliance with this requirement of equal legal protection under fundamental rights protection. An interpretation of Section 114 Sentence 1 ZPO to the effect that even difficult legal questions that have not yet been clarified can be decided in the legal aid procedure would fail to recognize the importance of equal legal protection (BVerfG, B. v. 13. 3, 1990, Ref: 2 BvR 94/ 88, BVerfGE 81, 347 = DVBI 1990, 926 = NJW 1991, 413). A standard of interpretation that makes it disproportionately more difficult for an indigent party to prosecute or defend a lawsuit compared to an indigent party would therefore be incompatible with Article 3 Paragraph 1 of the Basic Law.
Legal aid must therefore always be granted if legal questions that have not yet been sufficiently clarified have to be decided in the proceedings or the court cannot foresee how the legal dispute will end at the time of the decision on the application for legal aid because the assessment of the facts is legally difficult or The facts still need to be clarified through the taking of evidence, and the outcome of the legal dispute is therefore still open.
The lawsuit has a reasonable chance of success. According to the court's current state of knowledge, everything suggests that the lawsuit is admissible and well-founded.
The action is admissible as a continuation declaratory action analogous to Section 113 Paragraph 1 Sentence 4 VwGO. In the present case, the procedure was concluded with the issuance of the administrative act regarding the deletion of the images on the camera and the determination of personal details or through the immediately subsequent enforcement, i.e. before the lawsuit was filed. Even in such cases, a continued action for a declaratory judgment is permissible, as otherwise legal protection would be impossible in violation of Article 19 Para. 4 GG.
The plaintiff also has a legitimate interest in. the determination of the illegality of the administrative acts because there is a risk of repetition. This results, among other things, from the fact that the authority made it clear in its response to the lawsuit that it considers the chosen approach to be correct and appropriate in such cases and thus makes it clear that it will continue to proceed in this way in the future.
The court will most likely come to the conclusion in its judgment that the lawsuit is well founded because the actions of the police officers were unlawful.
The peculiarity of this case is that there are no official files. According to the authorities, despite advice from the court, no notes were made about the events between the plaintiff and the police officer. It was only over a month later after the lawsuit was filed that a police officer prepared a statement of the facts, probably in preparation for the response to the lawsuit. There are also written reports from the Gotha Police Department dated July 25th. and July 27, 2011 to the Thuringian Ministry of the Interior. These were written by senior police officers who were not directly involved in the disputed process.
In these circumstances, the coherence of the parties' arguments becomes increasingly important.
The plaintiff's factual submission is consistent. He claims that he photographed a police operation on the sidelines of the demonstration against the German Boys' Day in order to ensure "that there would be evidence if the person concerned wanted to file a criminal complaint against the police officers." For this purpose, he took photos into a house entrance where the police action took place. The police officers then detained him and forced him to delete the photo and other photos taken earlier that day by hand. Finally, his personal details were established.
In contrast, the defendant's argument is difficult to understand. In fact, the defense pleadings dated July 28, 2011 and October 25, 2011 state that the order to delete the images is based on Section 12 Paragraph 1 PAG and is an administrative act. This served to protect the officials. It was feared that portrait photos of the officials would be distributed within the meaning of Sections 22 and 23 of the Art Copyright Act. The distribution was countered by a legitimate interest of the emergency services. In contrast, in the pleadings submitted to the court by the Gotha police department dated July 27, 2011, it is stated that the plaintiff deleted the images voluntarily, so that there was no interference. The same opinion can also be found in the letter from the Gotha Police Department dated July 25, 2011. The voluntary nature was also pointed out in the description of the facts of July 22, 2011. The defendant's factual submission is therefore significantly contradictory.
Even if one follows the defendant's opinion by interpreting the statements about voluntariness to the effect that no coercion was necessary to enforce the order, a danger to public safety or order within the meaning of Section 12 Paragraph 1 PAG cannot be recognized . There is no evidence that the plaintiff even intended to publish the images he originally took.
The claim that the plaintiff's statement in the statement of claim that he intended to make the images available to those affected by a police action to support a possible criminal complaint proves that "the plaintiff is not presumed to be abiding by the law" cannot be understood . In fact, case law takes the view that under certain circumstances it could be assumed that photographs taken by press photographers are also published (cf. VGH Mannheim, judgment of July 10, 2000, Ref.: 1 S 2239/99 = NVwZ 2001 , 1292). The prerequisite for a measure is objective evidence that publication is planned in the specific case. However, it cannot be assumed that photographs that are inadmissible within the meaning of Sections 22 and 23 of the Art Copyright Act are always distributed (see BVerwG, judgment of July 14, 1990, Ref.: 6 C 7/98 = NVwZ 2000, 63). It is not enough for such recordings of police officers to be published more frequently on the Internet. Rather, a concrete reference to the individual case is necessary. As with press photographers, this may also be part of the person's job, since the purpose of press photographers' work is obviously to take photographs for the purpose of publication. However, there is no such connection for the plaintiff. It wasn't even claimed.
This does not follow from the fact that when the plaintiff was encountered a second time after the first incident, he initially quickly left but was then detained.
The determination of the plaintiff's personal details was also unlawful because there was no danger within the meaning of Section 14 Paragraph 1 No. 1 PAG. However, the defendant relied on this provision to justify the order. There are no other reasons for determining the plaintiff's personal details.
The plaintiff was therefore to be granted legal aid with the assistance of his authorized representative, whereby the legal aid was to be limited in accordance with Section 173 VwGO in conjunction with Section 121 Paragraph 3 ZPO.
Instructions on legal remedies follow.
