decision
In the administrative dispute proceedings
of the xxx,
plaintiff and applicant for admission,
authorized: Attorney Sven Adam,
Lange Geismarstrasse 55, 37073 Göttingen,
against
the xxx,
defendant and respondent,
authorized: xxx,
due to
requirements for a meeting (ban on the use of a loudspeaker system)
the Hessian Administrative Court - B. Senate - has carried out
Presiding judge at Hess.
VGH xxx, judge at Hess.
VGH xxx, judge at Hess. VGH xxx
decided on March 5, 2012:
In response to the application for admission, the plaintiff's appeal against the judgment of the Kassel Administrative Court of November 10, 2011 - 7 K 216/11.KS - is admitted. The proceedings will be continued as an appeal process under file number 8 A 514/12.
The decision on the costs incurred in the second instance remains reserved for the final decision in the appeal process.
The amount in dispute for the second instance is set at €5,000.00.
Reasons:
The admissible application for admission, in particular submitted and justified in due form and on time, is successful because the plaintiff correctly stated in the reasons for his application for admission that the case is of fundamental importance (Section 124 Paragraph 2 No. 3, Section 124a Paragraph 4 VwGO). It remains to be seen whether further reasons for approval have been adequately explained and exist.
The plaintiff correctly stated that the case law has not yet clarified and therefore requires clarification as to whether and under what conditions the use of loudspeakers at meetings in the immediate vicinity of correctional facilities can be restricted by meeting law requirements. Contrary to the defendant's opinion, the judgment of the Berlin Administrative Court of December 21, 2006-1 A 162.01 - (Juris) cited by the administrative court does not help to clarify this question. On the one hand, this judgment does not deal with the specific problem of acoustic impact on staff and inmates of correctional facilities, and on the other hand, this decision - like the justification for the challenged condition in No. 7 of the contested decision - is based on the incorrect assumption The use of loudspeakers at rallies is only permitted if it is necessary to maintain so-called internal communication between the participants in the meeting (VG Berlin ibid, juris para. 29). This ignores the communicative approach of the fundamental right from Article 8 of the Basic Law, which also and especially protects establishing contact with non-participants and therefore allows the acoustic amplification of collective expressions of opinions by meeting participants in principle and regardless of the number of participants (BVerfG, decision of July 12, 2001 -1 BvQ 28/01 et al. -, NJW 2001, 2459 = juris Rn. 24; OVG Brandenburg, decision of November 14, 2003 - 4 B 365/03 -, NVwZ-RR 2004, 844 = juris Rn. 19). Whether this principle is subject to restrictions in the event of intended acoustic impacts on correctional facilities will have to be clarified in the appeal process.
The decision on the amount in dispute for the second instance is based on Sections 47 and 52 GKG, whereby the Senate agrees with the determination of the amount in dispute by the administrative court because there is no evidence to quantify the plaintiff's interest.
This decision is incontestable (§§ 124a para. 5 sentence 4, 66 para. 3 sentence 3, 68 para. 1 sentence 5 GKG).
The plaintiff's attention is drawn to the fact that the permitted appeal must be substantiated within one month of notification of this decision. The justification must be submitted to the Higher Administrative Court, the Hessian Administrative Court, Brüder-Grimm-Platz 1, 34117 Kassel. The deadline for justification can be extended by the Chairman of the Senate if an application is submitted before it expires. The justification must contain a specific request as well as the detailed reasons for the challenge (grounds of appeal). If one of these requirements is lacking, the appeal is inadmissible (Section 124a Paragraph 3 Sentence 3 to 5, Paragraph 6 VwGO).
