In the name of the people
Verdict
In administrative law matters
xxx,
plaintiff,
Proc.: Attorney Adam,
Lange Geismarstrasse 55, 37073 Göttingen,
against
xxx,
defendant,
Subject of the dispute: identification processing
The Göttingen Administrative Court - 1st Chamber - recognized the following at the oral hearing on January 19, 2012 by the judge at the Administrative Court xxx as the sole judge for law:
The defendant's decision of March 15, 2010 is repealed.
The defendant bears the costs of the proceedings.
The judgment is provisionally enforceable because of the cost. The defendant can avert enforcement by providing security in the amount of the enforceable costs unless the plaintiff provides security in the same amount before enforcement.
Facts
The plaintiff is filing a lawsuit against the ordering of identification measures by the defendant.
On December 12, 2009 at 2:40 a.m., the plaintiff, who was born on xxx, together with several other people, refused entry to two men who he recognized as members of a student association in front of the house xxx in Göttingen. A verbal argument ensued which ended with the plaintiff spraying pepper spray into the eyes of both men. Criminal proceedings were initiated against him for this act. In the oral hearing held at the Göttingen District Court on March 22, 2011, an agreement was reached in accordance with Section 257c of the Code of Criminal Procedure between the plaintiff and his victims, who acted as co-plaintiffs. The plaintiff confessed to the crime, apologized to the injured parties and undertook to pay them a sum of money and cover their expenses in the form of legal fees. By judgment of March 22, 2011 (34 Ds 87 Js 10372/10 - 13/11) he was sentenced to a fine of 60 daily rates for grievous bodily harm. The justification for the judgment states that the plaintiff was granted a reduction in his sentence because a communicative process took place between him and his victims, the aim of which was to resolve the overall conflict underlying the crime, and because he apologized for the crime and received compensation for pain and suffering have done.
In a decision dated March 15, 2010, the defendant had already ordered that identification measures be carried out against the plaintiff by taking fingerprints, palm prints and hand edge prints as well as by taking photographs or portraits. As justification, the defendant stated that it was enough for the plaintiff to commit dangerous bodily harm that fraternity members, who were part of the “enemy” of the left-wing scene, walked past his apartment, which made him feel provoked. Since there have been repeated disputes between members of the left-wing scene and fraternity members in the past, it must be assumed that the plaintiff would behave accordingly if the facts were the same.
An extract from the Federal Central Register dated April 22, 2010 concerning the plaintiff shows no entry. In a note dated April 26, 2010 in the defendant's files, it is stated that the plaintiff made his first criminal appearance in the proceedings against him for grievous bodily harm and that no further police information was available about him.
The plaintiff filed suit on April 13, 2010. He states that the actual reasons for ordering the identification treatment were not the bodily harm he had committed, but rather the desire to obtain usable data in another procedure. This concerns the prosecution of perpetrators in the proceedings of the so-called “tea kitchen fire” in the Göttingen district building on January 22, 2010 (Göttingen public prosecutor's office, NZS 34 UJs 2347/10), which was conducted against unknown perpetrators and carried out in June 2010 by the Public prosecutor's office had been hired.
The plaintiff requests that
the defendant's decision of March 15, 2010 be repealed.
The defendant requests
that the lawsuit be dismissed.
She explains that in the “tea kitchen proceedings” it was not possible to identify him because the plaintiff was not a defendant. However, a query in the police information system revealed that proceedings for grievous bodily harm were pending against the plaintiff. The identification processing was ordered exclusively with regard to this procedure.
For further details of the facts and the arguments of the parties involved, reference is made to the written submissions exchanged between them, the defendant's administrative procedure and the criminal files used in the proceedings (Göttingen Public Prosecutor's Office, 87 Js 10372/10 and NZS 34 UJs 2347/10). were the subject of the oral hearing.
Reasons for the decision
The admissible action is well founded. The defendant's contested decision is unlawful and violates the plaintiff's rights (Section 113 Paragraph 1 Sentence 1 VwGO).
The legal basis for the disputed order of identification processing is Section 81b Alt. 2 StPO. According to this regulation, photographs and fingerprints of the accused may be taken against his will and measurements and similar measures may be carried out on him if this is necessary for the purposes of the identification service. These requirements are not met here.
At the relevant time when the notice of summons for identification was issued on March 15, 2010, the plaintiff was the accused i. S.d. § 81b Alt. 2 StPO. The order was prompted by the criminal investigation against him due to the accusation of grievous bodily harm to two fraternity students (Göttingen public prosecutor's office, 87 Js 10372/10), for which he has now been legally convicted. However, the court cannot recognize that the order is necessary for the purposes of the identification service.
The identification treatment according to Section 81 b Alt. 2 StPO does not serve to convict the accused in a specific criminal procedure, but rather, in accordance with its legal purpose, is intended to provide precautionary aid - without direct reference to a specific criminal procedure - for the investigation and investigation of criminal offenses (BVerwG, Judgment of November 23, 2005, ibid; Nds. OVG, judgment of February 26, 2009 - 11 LB 431/08 -, NdsVBI 2009, 202; Meyer-Goßner, StPO, 51st edition 2008, § 81b Rn. 3). Accordingly, the need for relevant measures depends on whether, according to criminal experience, the current criminal investigation against the person concerned, given all the circumstances of the individual case, provides evidence for the assumption that the person concerned will in future have good reasons as a suspect in the circle of potential participants in a crime that has yet to be solved Act could be included and that the identification documents could support the investigations that would then be carried out - ultimately convicting or exonerating the person concerned (BVerwG, judgment of October 19, 1982, ibid; Nds. OVG, judgment of February 26, 2009, ibid). The decision criteria that can be used are the type and seriousness of the offenses the person concerned is accused of, the manner in which they were committed, the criminal energy that the accused has shown, his personality and the period during which he has no longer appeared in criminal law ( BVerwG, judgment of October 19, 1982, loc. cit.; Nds. OVG, judgment of February 26, 2009, loc. cit., as well as resolutions of November 20, 2008 - 11 ME 297/08 - and of October 24, 2007 - 11 ME 309/07 -, each at juris ). When examining the question of whether identification treatment is necessary, it must be taken into account that it is no longer possible to correct an incorrectly omitted treatment. If identification processing is not carried out, the police may later lack the documents that could support the investigation and investigation of a crime - in certain circumstances crucial, both to the benefit and to the detriment of the person concerned (Nds. OVG, judgment of June 28, 2007 – 11 LC 372/06 -, juris). For the purposes of the identification service, it is only necessary to collect such identification service data that is suitable for and could promote future investigations. Due to the limitation of the identification measures to the necessary extent, in a specific individual case the severity of the encroachment on fundamental rights associated with the identification processing must not be disproportionate to the weight of the public interest pursued by the measure, particularly in the investigation of future crimes (Nds. OVG, judgments of February 26, 2009 and June 28, 2007 as well as resolution of November 20, 2008, each ibid). The probability judgment about the future behavior of the accused on which the police prognosis decision is based is only subject to limited administrative review as to whether the prognosis is based on accurate facts and whether it is appropriate and justifiable based on the given state of knowledge, taking into account criminal experience. Furthermore, the feature of necessity can be fully verified in court (cf. VGH Baden-Württemberg, judgment of December 18, 2003-1 S2211/02-, DÖV 2004, 440).
In order to assess the need for identification measures, reference must not (only) be made to the time at which the order was issued, but rather to the time at which these measures were actually taken. In the context of administrative court control, the factual situation at the time of the last oral hearing in the factual instance is therefore important (cf. BVerwG, judgment of October 19, 1982, loc. cit.; Nds. OVG, judgments of February 21, 2008 - 11 LB 417/07 - , NdsVBI 2008, 174, from June 28, 2007, loc. cit. and from September 28, 2006 - 11 LB 53/06 -, NdsVBI 2007, 42).
Applying these principles, the court does not share the defendant's assessment that there is a sufficiently high probability that the plaintiff will again be included as a suspect in the circle of potential participants in criminal acts that have yet to be solved. The court assumes the following: The extract from the Federal Central Register dated April 22, 2010, which was obtained by the defendant during the administrative procedure, does not show any entry for the plaintiff at this point in time. The defendant's files show that the plaintiff made his first criminal appearance in the proceedings against him for grievous bodily harm. It is true that the nature and commission of the offense alone can, under certain circumstances, justify identification processing. The offense of dangerous bodily harm to two members of a student association by spraying them with pepper spray, for which the defendant ordered the plaintiff to be identified, is of considerable importance. However, there are no compelling reasons to suggest that there is a risk of repetition of similar bodily harm. The court has no evidence to support the assumption that bodily harm offenses are crimes of inclination, which in themselves indicate that comparable behavior will be repeated (regarding the requirements for justifying the assumption that certain crimes are far above average Risk of repetition, cf. BVerfG, decision of June 1, 2006 - 1 BvR 2293/03 -, juris). The justification given by the defendant that fraternity students are the “enemy” of politically left-leaning people also does not suggest a risk of recurrence. It is mere speculation that the plaintiff would become similarly violent in the context of another verbal argument with people who he assigned to a different political spectrum. It is more likely that the plaintiff, who had previously had no criminal record and had not shown comparable behavior, would use the criminal conviction as a warning and reminder. This is particularly supported by his behavior after the crime. In the criminal proceedings he reached an agreement with his victims in accordance with Section 257c of the Code of Criminal Procedure. He confessed to the crime, apologized to the injured parties and undertook to pay them a sum of money and cover their expenses in the form of legal fees. This behavior, which the district court took into account in mitigating the sentence, as well as the fact that the plaintiff had to bear considerable financial expenses as a result of his crime, speak against him committing a comparable crime again.
According to the foregoing, the question disputed between the parties as to whether the identification process was ordered in order to obtain information in another criminal case against unknown perpetrators is irrelevant.
The cost decision is based on Section 154 Paragraph 1 VwGO.
The decision on provisional enforceability is made in accordance with Sections 167 VwGO in conjunction with Sections 708 No. 11 and 711 ZPO.
Instructions on legal remedies follow.
