Judgment in the name of the people
In the administrative law case
of xxx,
plaintiff,
Legal representative: Attorney Adam,
Lange Geismarstraße 55, 37073 Göttingen,
against
the
defendant
Subject of dispute: Expulsion order
The Administrative Court of Hanover – 10th Chamber – rendered the following judgment in the oral proceedings of March 8, 2012, by the presiding judge of the Administrative Court xxx, the judge of the Administrative Court xxx, the judge of the Administrative Court xxx, and the lay judges xxx and xxx:
It is determined that the order to remove the plaintiff from the premises issued by the defendant on August 14, 2010, was unlawful.
The defendant shall bear the costs of the proceedings.
The judgment is provisionally enforceable with respect to costs. The defendant may avert enforcement by providing security in the amount of 110% of the amount enforceable under the judgment, unless the plaintiff provides security in the amount of 110% of the amount to be enforced beforehand.
Facts of the case:
The plaintiff seeks a declaration that a ban on leaving the area of the city of Bad Nenndorf issued against him was unlawful.
A march, dubbed a "mourning march," was registered for August 14, 2010, in Bad Nenndorf under the motto "Imprisoned, Tortured, Murdered – Then as Now – Occupiers Out." Similar marches have been held in Bad Nenndorf since July 2006, with participation increasing year by year. In 2009, approximately 730 right-wing extremists traveled to the town, including about 130 Autonomous Nationalists, who, however, did not participate in the march because they refused to pass through police checkpoints.
Parallel to these marches, an alliance against right-wing extremism regularly organizes demonstrations, which in 2009 were attended by approximately 1,100 people, including 150 from the left-wing extremist spectrum. The German Trade Union Confederation (DGB) had registered a rally for August 14, 2010, which was intended to counter the right-wing extremist march.
After the responsible assembly authority, the Schaumburg district, initially approved both assemblies with orders dated July 26, 2010, and July 29, 2010, subject to conditions and with shortened march routes, it prohibited both assemblies with orders dated August 11, 2010, on the grounds that the increasing mobilization of violent participants from the right-wing and left-wing extremist spectrum now threatened a state of emergency requiring police intervention. Subsequently, the Hanover Administrative Court, in a decision dated August 12, 2010, reinstated the suspensive effect of the organizer's lawsuit against the prohibition order and rejected the German Trade Union Confederation's (DGB) application for preliminary injunction. Following an appeal by the German Trade Union Confederation (DGB), the Higher Administrative Court of Lower Saxony reinstated the suspensive effect of the organizer's lawsuit for the DGB rally, insofar as a stationary DGB assembly in Bad Nenndorf on August 14, 2010, between 9:00 a.m. and 11:00 a.m., was to be permitted. The so-called memorial march was to take place on the afternoon of August 14, 2010, along a precisely defined route secured by the police.
The plaintiff was stopped and checked at a designated checkpoint on Landwehrstraße in the town of Bad Nenndorf at approximately 10:20 a.m. on August 14, 2010. Two round wooden sticks, each 64 cm long and 2.5 cm in diameter, adorned with a purple and black flag and adhesive tape, as well as clothing suitable for disguising one's identity (hat, sunglasses, hooded sweatshirt), were found in his possession. The plaintiff was subsequently issued a ban from the town of Bad Nenndorf, valid from 10:20 a.m. to 7:00 p.m. The handwritten form stated as justification that the plaintiff was being issued a ban from the area pursuant to Section 17 Paragraph 4 of the Lower Saxony Public Safety and Order Act. The SOG order was issued because, on his way to an assembly, he had carried two round wooden sticks with a purple-black flag and adhesive tape, as well as items for disguising himself, and there was police information regarding his resistance, which justified the assumption that the plaintiff would commit criminal offenses in the area of the city of Bad Nenndorf.
The plaintiff filed suit on September 29, 2010. In support of his interest in a declaratory judgment, he argues that he wishes to be rehabilitated from the stigma of having been a troublemaker. Furthermore, he claims there is a risk of recurrence because he intends to participate again in the counter-demonstration to the so-called "mourning march" in 2012 and therefore wants a ruling on whether such behavior could lead to a ban from the premises in the future. Finally, he argues that there has been a profound infringement of his fundamental rights, as the ban prevented him from participating in the DGB (German Trade Union Confederation) rally. He also contends that the ban is substantively unlawful. The provision in Section 17 Paragraph 1 of the Lower Saxony Public Safety and Order Act (Nds. SOG) cannot serve as a legal basis for the ban, as it is limited to narrowly defined locations and cannot – as in this case – apply to the entire municipality. He further argues that the provision in Section 17 Paragraph 4 of the Lower Saxony Public Safety and Order Act (Nds. SOG) is also invalid. The SOG (Law on Public Safety and Order) was not applicable, as there was no evidence whatsoever that he intended to commit a crime. He had merely wanted to take flags to a meeting.
The plaintiff requests
a ruling that the order to leave the premises issued to him by the defendant on August 14, 2010 was unlawful.
The defendant requests that
the action be dismissed.
The court already considers the lawsuit inadmissible. The order to leave the premises was neither discriminatory, nor was there any concrete risk of repetition. Furthermore, the order was lawful because there was a danger to public safety within the meaning of Section 17 Paragraph 1 of the Lower Saxony Public Safety and Order Act (Nds. SOG). The plaintiff's carrying of long wooden poles suggested an intention to engage in violent behavior, especially since he also possessed items for disguising his identity. The plaintiff had already actively resisted identification during a demonstration in Göttingen on June 17, 2009, against current education policy. Therefore, it was reasonable to assume that he would also actively participate in a counter-demonstration with the items found. The provision in Section 17 Paragraph 1 of the Lower Saxony Public Safety and Order Act (Nds. SOG) was applicable because the order to leave the premises was limited to 8.5 hours and, due to various events taking place throughout the city, had to be applied over a wide area. Furthermore, the conditions for a removal order pursuant to Section 17 Paragraph 4 of the Lower Saxony Public Safety and Order Act (Nds. SOG) were also met, as offenses involving bodily harm and a violation of the prohibition against face coverings under Section 17a Paragraph 2 Number 2 of the Assembly Act (VersG) were highly likely. In this respect, it had to be taken into account that the far-left scene had already called for mass blockades of the right-wing march route in the run-up to the assemblies. As had been shown in comparable marches of right-wing and left-wing demonstrators in Dresden and Berlin, as well as in Bad Nenndorf in 2009, violent clashes between the participants of the "right" and "left" demonstrations, resulting in considerable harm to the life and limb of the assembly participants and other uninvolved parties, were to be expected. Securing the flagpoles alone was not considered a less restrictive measure, as it would not have been as effective as the ban on being present. The plaintiff was on his way to the demonstration with the intention of disrupting or preventing it. It was likely that he would have committed crimes during the assembly, even with weapons he had not brought himself. As a disruptive participant, he was not protected by the fundamental right to freedom of assembly. The ban on his presence served to protect important legal interests, namely the physical safety of the assembly participants, the police officers present, and other involved third parties.
For further details of the facts and the submissions of the parties, reference is made to the contents of the court file and the administrative file. Their contents were the subject of the oral hearing.
Reasons for
The lawsuit is successful.
It is admissible as a declaratory judgment action pursuant to Section 113 Paragraph 1 Sentence 4 of the Administrative Court Procedure Act (VwGO).
Although the order to leave the premises for August 14, 2010, between 10:20 a.m. and 7:00 p.m., had already expired before the lawsuit was filed, the fundamental right to effective legal protection requires that the possibility of judicial clarification be opened for significant, but factually outdated, infringements of fundamental rights, if the direct burden caused by the challenged official act is limited, according to the typical course of proceedings, to a period in which the affected party can hardly obtain a judicial decision (Federal Constitutional Court, Decision of March 3, 2004, 1 BvR 461/03, BVerfGE 110, 77<86> with references to BVerfGE 81, 138 <140 f.>; 96, 27 <40>; 104, 220 <233 f.>). The Federal Constitutional Court stated the following in this context:
“Such interferences can also be caused by infringements of the fundamental right to freedom of assembly, against which legal protection in the main proceedings is typically not available within the time frame available. (…).
However, not every infringement of the freedom of assembly justifies a legitimate interest in a declaratory judgment. Such an interest exists, however, if the challenged measure severely impairs the freedom of assembly (a), if there is a risk of repetition (b), or if, for reasons of rehabilitation, a legally recognized interest in clarifying the legality of the measure can be assumed (c).
a) The importance of freedom of assembly in a democracy always requires the possibility of subsequent legal protection if the exercise of this fundamental right has been effectively prevented by a ban on assembly or if the assembly has been dissolved. Such interferences constitute the most serious possible infringement of freedom of assembly. The state is precluded from further weighing such an infringement of this fundamental right, for example, with regard to the specific occasion or the size of the assembly. (Federal Constitutional Court, Decision of March 3, 2004, 1 BvR 461/03, BVerFGE 110, 77 < 86, 89>)
Applying this standard, a legitimate interest in a declaratory judgment must be affirmed, at least from the perspective of the profound infringement of fundamental rights, since the plaintiff was effectively prohibited from participating in the DGB assembly by being ordered to leave the premises, and he could not obtain a judicial decision within the short period in which the measure was resolved. The court does not accept the defendant's argument that the plaintiff could not invoke the fundamental right to freedom of assembly because he was armed and only peaceful assemblies are protected under Article 8 of the Basic Law. The flagpoles brought by the plaintiff can at most be described as non-technical weapons. Furthermore, there was no concrete evidence that the plaintiff used the flagpoles as weapons at the assembly. Therefore, the flagpoles he brought do not justify excluding the plaintiff from the protection of freedom of assembly from the outset and denying him a legitimate interest in a declaratory judgment due to a profound infringement of fundamental rights.
Therefore, it is not necessary to decide whether there is also a risk of recurrence or an interest in rehabilitation.
The claim is also justified, as the order to leave the premises issued to the plaintiff on August 14, 2010, for the period from 10:20 a.m. to 7:00 p.m. was unlawful.
The legal basis for the order to leave the area of the town of Bad Nenndorf is Section 17 Paragraph 4 of the Lower Saxony Public Safety and Order Act (Nds. SOG), and not Section 17 Paragraph 1 Nds. SOG. According to Section 17 Paragraph 4 Sentence 1 Nds. SOG, a person may be prohibited from entering or remaining in a specific local area for a certain period of time if there are grounds to believe that the person will commit a crime in that local area. Sentence 2 of the aforementioned provision defines a local area as a place or area within a municipality, or even an entire municipal area. In contrast, Section 17 Paragraph 1 Nds. SOG allows administrative authorities and the police to temporarily remove any person from a location or temporarily prohibit them from entering a location in order to avert a danger.
While a removal order pursuant to Section 17 Paragraph 1 of the Lower Saxony Public Safety and Order Act (Nds. SOG) applies to narrowly defined areas such as a building, a property, a section of road, or a square (see Hanover Administrative Court, Judgment of July 7, 1997, 10 A 5589/96; Böhrenz/Unger/Siefken, Nds. SOG, 8th edition, Section 17, Explanatory Note 2), the largest possible local area for a prohibition on being present pursuant to Section 17 Paragraph 4 Sentence 2 of the Nds. SOG is the entire municipal area. Since the removal order issued to the plaintiff was not limited to individual streets or a specific square, but rather applied to the entire area of the town of Bad Nenndorf, only the application of Section 17 Paragraph 4 of the Nds. SOG is possible – as also noted on the handwritten form dated August 14, 2010.
According to Section 17 Paragraph 4 Sentence 1 of the Lower Saxony Public Safety and Order Act (Nds. SOG), a removal order may be issued if there are facts that justify the assumption that a person will commit criminal offenses in a specific local area. The assumption that a person will commit a criminal offense may not be based solely on general principles of experience, vague assumptions, or insufficient evidence. For example, the mere fact that an arriving person, based on their outward appearance, will (probably) participate in an event that will (probably) be unruly, is already partly unruly, or is already prohibited, will generally not be sufficient to issue a preventive ban on their presence in the area pursuant to Paragraph 4 Sentence 1. Rather, further factual findings must be added – without there having to be any relevant convictions already – for example, regarding particularly aggressive behavior of this person, the carrying of weapons or tools, or regarding previous acts of violence in connection with such events (Böhrenz/Unger/Siefken, Nds. SOG, 8th edition, § 17, Expl. 14).
Against this background, the court already has doubts as to whether there was sufficient factual basis to assume that the plaintiff intended to commit criminal offenses in the area of the town of Bad Nenndorf. The defendant accused the plaintiff of presumably intending to commit assault offenses while masked and carrying the flagpoles, especially since he had already actively resisted an identity check during a demonstration on June 17, 2009. However, it seems questionable whether the mere carrying of flagpoles can be sufficient to predict that the plaintiff planned acts of violence at the DGB (German Trade Union Confederation) demonstration. Even if the flagpoles could certainly have been used as weapons if misused, the plaintiff could just as easily have planned – as he himself stated – to accompany the demonstration appropriately with flags. Furthermore, the plaintiff has no prior record of violent acts or assault offenses, but merely resisted an identity check during a previous assembly. Moreover, the defendant did not accuse him of any aggressive or threatening behavior at the time of the police check.
Even assuming that, based on the aforementioned circumstances of the plaintiff's arrest, it would have been justified to assume that the plaintiff would commit criminal offenses within the city limits of Bad Nenndorf, the issuance of the order to leave the premises was disproportionate in any case. In this context, it must be considered that the order to leave the premises, issued prior to participation in the DGB (German Trade Union Confederation) assembly, infringed upon the fundamental right to freedom of assembly. While the prohibition of presence under paragraph 4 does not become inadmissible even if it is issued against specific (potential) participants in an assembly, and is directed against the assembly as such, it may not be applied in such a way that its effect is equivalent to a measure specifically governed by assembly law. Whenever a person affected by a measure under Section 17 of the Lower Saxony Public Safety and Order Act (Nds. SOG) is hindered or even prevented from participating in a (not prohibited) assembly, the weight of the fundamental right to freedom of assembly must be given due consideration when determining the prerequisites of Section 17 Nds. SOG. The requirements of the Public Safety and Order Act (SOG) and the exercise of discretion under this provision must be observed (cf. Böhrenz/Unger/Siefken, Nds. SOG, 8th edition, § 17, Expl. 17). The order to leave the premises issued to the plaintiff does not meet these requirements.
The standard form order to remove the plaintiff from the assembly does not contain a detailed prognosis, based on the weight of the fundamental right to freedom of assembly, regarding which criminal offenses the plaintiff threatened to commit and that these justified excluding him from participating in the assembly.
Furthermore, there is no justification for why the confiscation of the flagpoles and items used for disguising one's identity was not considered a less intrusive measure to prevent criminal offenses. While the defendant argued in court that confiscating these items would not have been as effective as issuing the order to leave the premises, because the plaintiff was on his way to the demonstration with the intention of disrupting or preventing it, and that it was likely he would commit crimes even with weapons he had not brought himself, there is—as already explained above—a complete lack of any factual evidence regarding the plaintiff's personal circumstances to support the predicted acts of violence and disruptive intent. The plaintiff's specific demeanor at the time of the order to leave the premises provided no indication of planned violent or aggressive behavior. Nor did the plaintiff's past conduct give any reason to believe that he would participate in acts of violence against persons or property. Furthermore, the plaintiff's active resistance to identity verification at a rally in June 2009 did not sufficiently justify the conclusion that he would act violently. Finally, the defendant's general warnings about the potential risk of violent clashes between left-wing and right-wing demonstrators cannot justify issuing a ban from the premises to the plaintiff, since, at least with regard to the plaintiff personally, no factual findings could be made to support his claim of violent behavior.
Since securing the flagpoles would obviously have been equally suitable to prevent their possible use as weapons, the de facto ban on assembly associated with the eviction was ultimately disproportionate.
The decision on costs is based on Section 154 Paragraph 1 of the Administrative Court Procedure Act (VwGO). The decision on provisional enforceability is based on Section 167 of the Administrative Court Procedure Act (VwGO) in conjunction with Section 708 No. 11, Section 711 Sentences 1 and 2 of the Code of Civil Procedure (ZPO).
The following is information on legal remedies.
Decision
The value of the subject matter of the dispute is set at 5,000.00 euros.
Reasons:
The determination of the value in dispute is based on Section 63 Paragraph 2 Sentence 1 of the Court Costs Act (GKG). The amount of the determined value in dispute follows from Section 52 Paragraph 2 of the Court Costs Act (GKG).
The following is information on legal remedies.
