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 xxx,
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 individuals 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 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 encountered by a police patrol on August 14, 2010, at approximately 10:20 a.m., as part of a group of five people, predominantly dressed in dark clothing, hooded sweatshirts, and sunglasses. The group was moving from the direction of the German Trade Union Confederation (DGB) assembly toward a barricade intended to protect the intermediate rally area of the so-called "mourning march," where troublemakers from the left-wing spectrum had already gathered. The plaintiff's group was carrying a printed map showing the route of the "right-wing" demonstration. While the individuals in this group were being identified, the plaintiff was on a phone call during which, according to the police officers, he allegedly said to the person on the other end of the line: "We can't go any further right now; we're being subjected to a barrage of measures by two cops." After being informed that the officers would not tolerate any further insults, the plaintiff and his companions were each issued with a detailed map showing the specific exclusion zone and ordered to leave the area until 7 p.m. The police officers justified the orders by stating that further offenses and provocations against officers, as well as disruptions at the roadblocks, had to be prevented. The police officers did not comply with the request of the plaintiff's legal representative, who had arrived in the meantime, to suspend the exclusion order, arguing that the group might be part of the demonstration. They pointed out that the DGB (German Trade Union Confederation) rally had already ended at 11:04 a.m.
The plaintiff filed suit on December 20, 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 public nuisance. Furthermore, he asserts that there is a risk of recurrence and wants a ruling on whether such behavior, in particular the statement that one is "being subjected to measures by two cops," could continue to lead to a ban from the premises. He also contends that the ban from the premises was 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. The provision in Section 17 Paragraph 4 of the Nds. SOG is also inapplicable, he argues, as there was no evidence whatsoever that he intended to commit a crime. He did not act aggressively, threateningly, or provocatively towards the police officers involved. His statement on the phone, that "we can't go any further at the moment, we're being subjected to excessive measures by two cops," was made while he was turned away from the police officers at a distance of approximately four meters, and he neither looked provocatively at any of the officers nor adopted a threatening posture. As a participant in the DGB (German Trade Union Confederation) rally, his departure from the demonstration was also covered by the fundamental right to protection of Article 8 of the Basic Law (German Constitution). He intended to continue expressing his protest against the march of the right-wing demonstrators in the park through spontaneous actions. While there was police information regarding another person in the group, xxx, indicating that this individual was a left-wing motivated offender, this did not allow for any conclusions to be drawn about him, the plaintiff. Furthermore, the defendant acknowledged xxx's claim for a declaratory judgment that the removal order was unlawful in the court proceedings (10 A 4204/10).
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 conditions for issuing a removal order were met under both Section 17 Paragraph 1 and Section 17 Paragraph 4 of the Lower Saxony Public Safety and Order Act (Nds. SOG). Violent clashes between participants in the "right-wing" and "left-wing" demonstrations, with potentially significant harm to the life and limb of the demonstrators and other bystanders, were to be expected, as had been demonstrated at comparable events in Dresden and Berlin, as well as in Bad Nenndorf in 2009. Against this backdrop, the plaintiff's behavior had to be assessed. The plaintiff had made insulting remarks and had also acted very aggressively and provocatively towards the police officers, giving rise to the suspicion that he would cause a disturbance of public order by committing criminal offenses. Furthermore, the plaintiff, as well as the rest of the group, carried items that could have made establishing their identities extremely difficult. The plaintiff also did not claim to have been a participant in an assembly. Furthermore, the plaintiff's right to leave his assembly was not restricted; he was merely prevented from disrupting the demonstration in a "right-wing" manner.
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.
The action 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, had already become moot due to the passage of time 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 following categories of cases have emerged as categories of legitimate interest in a determination: the risk of repetition, the interest in rehabilitation, the prejudicial nature with regard to a claim for damages, and the profound violations of fundamental rights (Wysk, VwGO, § 113, Rn. 78 ff. with detailed references to case law).
In the present case, the plaintiff can invoke an interest in rehabilitation. Regarding the requirements for accepting such an interest in rehabilitation, the Federal Administrative Court stated the following in its decision of October 4, 2006 (6 B 64/06, cited according to juris):
"A legitimate interest in establishing the illegality of a completed administrative act within the meaning of Section 113 Paragraph 1 Sentence 4 of the German Code of Administrative Procedure (VwGO) exists, inter alia, in the case of a recognizable interest in rehabilitation. An interest in rehabilitation justifies a declaratory judgment if, upon reasonable consideration of the circumstances of the individual case, it is deemed worthy of protection (established case law, see, e.g., decision of July 18, 2000 – BVerwG 1 WB 34.00 – Buchholz 310 § 113 Paragraph 1 VwGO No. 11 p. 23 with further references). This can be the case, in particular, if the plaintiff's right to privacy is objectively impaired by the contested measure (see decision of March 4, 1976 – BVerwG 1 WB 54.74 – BVerwGE 53, 134 <138>). Such impairment can also arise from the reasoning of the contested administrative decision." (cf. judgment of 19 March 1992 – BVerwG 5 C 44.87 – Buchholz 310 § 113 VwGO No. 244 p. 86 f.)..“
According to the jurisprudence of the Federal Administrative Court, it is not indiscriminately necessary to grant subsequent legal protection through the administrative courts in all cases where an affected party merely seeks to be freed from a negative assessment as a public nuisance under police law. Furthermore, given the various forms that can be taken when a person is ordered to leave a public place, a rehabilitative interest cannot always be assumed in cases of police-issued orders to leave a public place (Federal Administrative Court, Decision of April 30, 1999, 1 B 36/99, Buchholz 310 § 113 para. 1 VwGO No. 6, pp. 11, 14).
However, the order to leave the premises issued to the plaintiff – taking into account the aforementioned standards – had a discriminatory effect because it was a broad-based ban on being present in the entire town of Bad Nenndorf, which, according to the justification for the measure, was based on the fact that the plaintiff posed a risk of committing criminal offenses. By issuing the order to leave the premises, the defendant thus indicated that it considered the plaintiff – unlike others – to be a potential criminal and, in that respect, expressed a socio-ethical judgment of unworthiness about him. The detrimental effect of such a negative judgment, against which the plaintiff was unable to obtain timely legal protection, can be effectively countered by a judicial declaration of the illegality of the measure (see also VGH Baden-Württemberg, judgment of 07.12.2004, 1 S 2218/03, VBIBW 2005, p. 231, 232; VG Lüneburg, judgment of 17.12.2003, 3 A 84/02, cited according to juris).
Therefore, it is not necessary to decide whether there is also a risk of repetition.
The claim is also justified, as the order to leave the premises issued to the plaintiff on August 14, 2010, for the period until 7 p.m. was unlawful.
The legal basis for the order to remove the plaintiff from 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.
A further requirement under Section 17 Paragraph 4 Sentence 1 of the Lower Saxony Public Safety and Order Act (Nds. SOG) is the existence of facts that justify the assumption that the plaintiff intended to commit criminal offenses within the territory of the city of Bad Nenndorf. 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).
The plaintiff is accused of having made insulting remarks to one of the police officers and of having displayed threatening and aggressive behavior. Based on this behavior, the items he was carrying for disguise, and the police's knowledge of xxx, it was to be expected that the plaintiff would insult other persons, including police officers and uninvolved third parties, and behave aggressively towards them. Since the threshold for committing offenses against police officers had already been crossed, further offenses against others could not be ruled out.
Even though particularly aggressive behavior can, in principle, justify issuing a ban from a certain area, there is a lack of concrete evidence in this case to support the assumption that the plaintiff intended to commit criminal offenses within the town of Bad Nenndorf. Aside from the defendant's general assertion—which the plaintiff disputes—that the plaintiff appeared threatening and aggressive, there is no concrete explanation as to how the plaintiff's behavior could be interpreted as indicating criminally relevant acts of violence. It has neither been alleged nor is it otherwise apparent that the plaintiff's behavior could be understood as a threat or even coercion. The plaintiff himself has no prior record of relevant acts of violence or assault; only one of his companions has. However, information relevant to criminal law concerning an associate of the plaintiff does not permit any conclusions to be drawn about possible violent behavior on the part of the plaintiff himself. Nor can the defendant's indications of the potential risk of violent clashes between left-wing and right-wing demonstrators justify the contested order to leave the area, as long as – as in this case – there is no evidence of violent behavior on the part of the plaintiff himself. Insofar as the defendant has pointed out that the plaintiff insulted police officers in connection with the identification process, the circumstances of this insult – which, incidentally, was not reported – are not sufficient to establish a risk of further insults against police officers. Furthermore, the mere suspicion of renewed insulting remarks by the plaintiff cannot, in light of the principle of proportionality, justify the issuance of a blanket ban on entering the entire area of the town of Bad Nenndorf.
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.
