Decision
In the appeal proceedings
concerning the administrative enforcement procedure
against
xxx,
– Complainant and Affected Party –
Legal representative:
Attorney Sven Adam, Lange Geismarstraße 55, 37073 Göttingen
against
xxx,
– Participants –
The 10th Civil Chamber of the Regional Court of Lüneburg, composed of the presiding judge at the Regional Court xxx, the judge at the Regional Court xxx and the judge xxx, decided on February 29, 2012:
Upon the immediate appeal of the parties involved, the decision of the Dannenberg (Elbe) Local Court of 17 November 2010 is amended insofar as it is determined that the deprivation of liberty of the person concerned on 17 November 2010 between approximately 05:00 and 08:30 was unlawful.
Furthermore, the immediate appeal is dismissed.
The costs of the appeal proceedings and the costs of the affected party necessary for the proper handling of the matter shall be borne equally by the state treasury and the affected party.
The value of the case for the appeal proceedings is set at 3,000 euros.
Reasons:
I.
On the night of November 6-7, 2010, during protests against the transport of nuclear waste to Gorleben in the district of Lüchow-Dannenberg, demonstrators blocked the Lüneburg-Dannenberg railway line near the town of Harlingen. In sub-zero temperatures, more than 1,000 people sat down on the tracks to prevent the passage of a freight train loaded with Castor containers. The person affected joined this action and also sat down on one of the tracks.
Shortly after midnight, police units surrounded the participants in the sit-in and announced the clearing of the railway line. Most of the demonstrators then voluntarily left the tracks. The police allowed this to happen without hindrance, as their primary concern was to clear the railway line as quickly as possible. At approximately 1:40 a.m., the police began carrying away those remaining on the tracks and detaining them in a field detention center set up in a meadow several hundred meters away. The police had not obtained a prior judicial order for this action. Rather, an approximately one-hour cooperation meeting had taken place around 12:30 a.m., attended by the police director responsible for clearing the railway line, representatives of the blockade participants, a member of the European Parliament, the district administrator of Lüchow-Dannenberg, several church representatives, and members of a citizens' initiative against the Castor transport. During this meeting, it was agreed that the police would not record the personal details of anyone taken into custody – with the exception of known offenders and individuals who committed crimes during the clearing operation. However, those affected who questioned the legality of their detention and wished to have it reviewed in court would be able to voluntarily provide their personal details and would then be brought before the responsible judge without delay.
Due to the large number of demonstrators who refused to leave the railway tracks voluntarily, the clearing of the line dragged on for hours. Around 5:00 a.m., the individual in question was also carried away, taken to the nearby field detention center, and held there. This was a rectangular area of approximately 100 by 100 meters, enclosed by closely packed police vehicles. An area about 5 meters wide remained open as an entrance. For details, please refer to the sketch on page 12 of the file. Toilets, food, and warm blankets were provided. From about 2:30 a.m. onward, a vehicle marked "Processing Team" was parked next to the entrance of the field detention center, consisting of about four vehicles. Several police officers were stationed there to record the personal details of those who wished to be brought before the responsible judge. Some police officers deployed inside the field detention center were also aware of the "Processing Team's" location. The attempts by the person concerned to have his personal details recorded by the responsible police officers and to be brought before a judge nevertheless failed, because despite repeated inquiries to police officers standing around, he could not be told where he could present his request.
At approximately 8:30 a.m., the freight train loaded with Castor containers passed the section of the Lüneburg-Dannenberg railway line that had been cleared by the police. Immediately afterwards, the police released all persons taken into custody from field custody – including the person in question.
The affected party argues that his police custody was unlawful because he was not brought before a judge. He also contends that the manner of his deprivation of liberty was unlawful because he was held outdoors despite sub-zero temperatures. He has therefore applied to the Dannenberg Local Court for a ruling that the deprivation of liberty carried out by officers of the respondent on November 7, 2010, between approximately 1:00 a.m. and 8:30 a.m. in a field near Harlingen, was unlawful both in principle and in the manner in which it was carried out.
The Lüneburg Police Directorate, which was involved in the case, applied to the Dannenberg Local Court to dismiss the applicant's request. The police directorate argued that the order and execution of the police custody were lawful. Had the applicant spoken to a police officer on site or reported to the specially established contact point, he would have been brought before the competent judge without delay. The manner of detention was also deemed acceptable, as blankets and hot drinks were provided to all those taken into custody.
The Dannenberg Local Court, by decision of August 24, 2011, determined that the deprivation of liberty of the defendant on November 17, 2010, between 1:00 a.m. and approximately 8:30 a.m., was unlawful. The court otherwise dismissed the defendant's application. The decision was issued without court fees. The defendant's necessary costs for the proper handling of the matter were imposed on the respondent, and the value in dispute was set at €3,000. The decision was served on the defendant and the respondent, the Lüneburg Police Directorate, on August 5, 2011.
The Lüneburg Police Directorate, which is involved in this matter, filed an immediate appeal on September 19, 2011. It requests that the contested decision be overturned and the declaratory judgment action of the affected party be dismissed. The affected party, on the other hand, requests that the immediate appeal of the respondent and appellant be dismissed for the reasons stated in the contested decision of the Dannenberg Local Court of August 24, 2011.
II.
The immediate appeal is admissible and partially justified.
1. The immediate appeal is justified insofar as, contrary to the declaratory judgment sought by the person concerned, there was no unlawful deprivation of liberty between 01:00 and 05:00.
The defendant stated that he had joined the sit-in blockade of the Lüneburg/Dannenberg railway line before midnight and was only taken into custody at approximately 5:00 a.m. His unsubstantiated claim that he had been unable to leave the tracks since 1:00 a.m. because police units had surrounded the demonstrators and prevented any attempt to leave has been refuted. The court is convinced that while the demonstrators were indeed surrounded, anyone who genuinely wanted to do so could actually leave the track area. It is a matter of public record that the police leadership's strategy regarding Castor transports is primarily aimed at getting the freight train carrying the Castor containers to its destination station as quickly and smoothly as possible. The prevention and prosecution of minor offenses, by contrast, is typically considered a secondary priority. Against this backdrop, it seems unrealistic that the police would have prevented the demonstrators from leaving in this case. Furthermore, it is undisputed that hundreds, if not thousands, of demonstrators actually moved away from the tracks at the request of the police and were therefore not subsequently taken into custody. This fact cannot be reconciled with the defendant's claim that he was unable to leave. Moreover, during his hearing on June 28, 2011, before the Dannenberg (Elbe) District Court, he stated that he had been "carried away" at least four meters from the track area, which also contradicts his claim that he had intended to leave on his own.
2. The immediate appeal is unfounded insofar as the Dannenberg Local Court correctly determined that the deprivation of liberty of the person concerned between approximately 5:00 a.m. and 8:30 a.m. was unlawful.
Contrary to the requirements of Section 19 of the Lower Saxony Public Safety and Order Act (Nds. SOG), the individual in question was not brought before a judge without delay. This is not contradicted by the fact that, according to the Lüneburg Police Inspectorate, a police vehicle was marked as a "processing team" near the entrance of the field detention center from 2:30 a.m. onwards, and that other police officers on site were informed of this location. In any case, a sign with the inscription "processing team" is not a clear indication of the possibility of obtaining a judicial decision regarding the continuation of the detention. Such an indication might have been obvious to those involved in the preliminary meeting concerning the clearing of the railway line, namely the responsible police director, the representatives of the blockade participants, the Member of the European Parliament, the District Administrator of the Lüchow-Dannenberg district, several church representatives, and members of a citizens' initiative against the Castor transport. However, this is irrelevant. The decisive factor is solely the situation of the person detained in field custody, who could not find the contact point set up by the police and, given the approximately 100 by 100 meter area where more than 1,000 people were held, was not necessarily expected to. This is all the more true when one considers that it was not the person's responsibility to actively seek legal recourse within the chaotic conditions on site, despite the dismissive statements of individual police officers present. According to Section 19 of the Lower Saxony Public Safety and Order Act (Nds. SOG), the administrative authorities or the police "must" obtain a judicial decision without delay. The law thus provides effective legal protection ex officio for deprivations of liberty, with the requirement of a judicial warrant being of particular importance. Furthermore, it would have been easy, for example, to inform all persons detained in field custody via regular loudspeaker announcements where they could report to be brought before the judge responsible for their case without delay. The fact that this was omitted and that communication between the person affected and the police forces on site did not work cannot be held against the person affected.
3. The immediate appeal by the police directorate involved is clearly not directed against the rejection of the affected person's application for a declaratory judgment regarding the manner of deprivation of liberty. In this respect, it should merely be added that there are no concerns regarding the manner of deprivation of liberty in this case. The provision of blankets and hot drinks to the persons held in field custody—including the affected person—was ensured. The mere fact of being held in custody outdoors in sub-zero temperatures does not, in itself, render the deprivation of liberty unlawful.
4. The decision on costs is based on Section 7 of the Lower Saxony Act on Non-Contentious Matters (Nds. FGG) in conjunction with Section 84 of the Act on Proceedings in Family Matters and Matters of Non-Contentious Jurisdiction (FamFG) and Section 24 No. 1 of the Act on Court Costs in Family Matters (FamGKG).
The determination of the value in dispute is based on Section 30 Paragraph 2 of the Court Costs Act.
5. The further immediate appeal was not admissible pursuant to Section 19 Paragraph 2 Sentence 4 of the Lower Saxony Public Safety and Order Act (Nds. SOG), because the question at issue here is not of fundamental importance.
