In the name of the peoples
' judgment
In administrative law matters
of the xxx,
plaintiff,
Proc.: Attorney Adam,
Lange Geismarstrasse 55, 37073 Göttingen,
against
the xxx
defendant,
Subject of dispute: expulsion
The Hanover Administrative Court - 10th Chamber - recognized the following at the oral hearing on March 8, 2012 by the presiding judge at the Administrative Court xxx, the judge at the Administrative Court xxx, the judge at the Administrative Court xxx and the honorary judges xxx and xxx:
It is determined that the defendant's dismissal of the plaintiff on August 14, 2010 was unlawful.
The defendant bears the costs of the proceedings.
The judgment is provisionally enforceable because of the cost. The defendant can prevent enforcement by providing security in the amount of 110% of the amount enforceable from the judgment, unless the plaintiff first provides security in the amount of 110% of the amount to be enforced.
Facts of the case
The plaintiff is seeking a declaration that an expulsion ordered against him for the area of the city of Bad Nenndorf was unlawful.
For August 14, 2010, a procession had been registered in Bad Nenndorf as a “funeral march” under the motto “Imprisoned, tortured, murdered – then as now – occupiers out”. Corresponding lifts have been held in Bad Nenndorf since July 2006, and the number of participants is increasing from year to year. In 2009, around 730 right-wing extremists arrived, including around 130 Autonomous Nationalists, but they did not take part in the procession because they did not want to pass the police checkpoints.
Parallel to these marches, an alliance against right-wing extremism regularly organizes demonstrations, in which around 1,100 people took part in 2009, including 150 people from the left-wing extremist spectrum. The DGB had registered a meeting for August 14, 2010, which was intended to be directed against the march of right-wing extremists.
After the responsible meeting authority, the Schaumburg district, had initially confirmed both meetings with notices dated July 26, 2010 and July 29, 2010, subject to conditions and only with a shortened elevator route, it banned both meetings with notices dated August 11, 2010 on the grounds that Due to the increasing mobilization of violent assembly participants from the right-wing and left-wing extremist spectrum, there is now a threat of a police emergency. The Hanover Administrative Court then reinstated the suspensive effect of the action brought by the organizer of the “funeral march” against the ban order in its decision of August 12, 2010 and rejected the DGB’s application for urgent legal protection. In response to the DGB's complaint, the Lower Saxony Higher Administrative Court restored the suspensive effect of the action brought by the organizer of the DGB rally to the extent that a stationary meeting of the DGB in Bad Nenndorf was supposed to be possible on August 14, 2010 between 9 a.m. and 11 a.m. The so-called funeral march was supposed to take place on the afternoon of August 14, 2010 - on a precisely defined route secured by the police.
The plaintiff was checked on August 14, 2010 at around 10:20 a.m. in the Bad Nenndorf urban area on Landwehrstrasse as part of an ordered checkpoint. Two round pieces of wood, each 64 cm long and 2.5 cm in diameter, with a purple-black flag and adhesive tape as well as clothing suitable for masking (hat, sunglasses, hoodie) were found on him. The plaintiff was then given an expulsion from the area of the town of Bad Nenndorf that was valid for the period from 10:20 a.m. to 7:00 p.m. The reason for this is stated in the handwritten form that the plaintiff has been expelled in accordance with Section 17 Paragraph 4 Nds. SOG was issued because on the way to a meeting he had two round sticks with a purple-black flag and adhesive tape as well as masking items with him and there was police evidence of resistance, which justified the assumption that the plaintiff was in the area of the city Bad Nenndorf will commit crimes.
The plaintiff filed suit on September 29, 2010. To justify his interest in continuing the assessment, he states that he would like to be rehabilitated from the stigma of having been a troublemaker. There is also a risk of repetition because he took part in the counter-demonstration to the so-called funeral march again in 2012 and therefore wanted to determine whether such behavior could lead to an expulsion in the future. Finally, there was also a profound encroachment on fundamental rights, as he was denied participation in the DGB rally due to his expulsion. The expulsion was also materially illegal. The regulation in Section 17 Paragraph 1 Nds. SOG cannot be a legal basis for the expulsion because it is limited to narrow locations and cannot - as here - apply to the entire municipal area. The regulation in Section 17 Paragraph 4 Nds. SOG was not relevant because there was no evidence that he intended to commit a crime. He just wanted to take flags with him to a meeting.
The plaintiff requests
a declaration that the defendant's dismissal of him on August 14, 2010 was unlawful.
The defendant requests
that the lawsuit be dismissed.
She already considers the lawsuit to be inadmissible. The expulsion was neither discriminatory nor was there any concrete risk of repetition. In addition, the expulsion was legal because it posed a threat to public safety within the meaning of Section 17 Paragraph 1 Nds. SOG was present. Carrying long logs suggested that the plaintiff intended violent behavior, especially since he had concealment items with him with which he could have concealed his identity. The plaintiff had already actively resisted identity verification at a meeting in Göttingen against the current education policy on June 17, 2009. It was therefore to be assumed that he would also actively take part in a counter-demonstration with the items found. The regulation in Section 17 Paragraph 1 Nds. SOG is relevant because the expulsion was limited to 8.5 hours and had to be set over a wide area due to various events throughout the city. In addition, the requirements for expulsion according to Section 17 Paragraph 4 Nds. SOG would have been fulfilled because bodily harm offenses and a violation of the ban on masking in Section 17a Paragraph 2 No. 2 VersG would have been obvious. In this respect, it should be taken into account that the left-wing extremist scene had already called for mass blockades of the right-wing elevator route in advance of the meetings. As was shown in comparable demonstrations by right-wing and left-wing demonstrators in Dresden and Berlin as well as in Bad Nenndorf in 2009, violent clashes between the participants in the demonstrations on the “right” and “left” resulted in considerable damage to the life and limb of those taking part in the meeting and other bystanders was to be expected. Securing the flagpoles alone could not be considered as a milder means because it would not have been as effective as the ban on residence. The plaintiff was on his way to the demonstration in order to disrupt or prevent it. It was likely that he would have committed crimes at the meeting even with weapons he did not bring with him. As a non-peaceful participant, he was also not protected by the fundamental right to freedom of assembly. The residence ban served to protect valuable legal interests, namely the preservation of the physical integrity of the meeting participants, the police officers deployed and other third parties involved.
For further details of the facts and the arguments of those involved, reference is made to the content of the court file and the administrative case involved. Its content was the subject of the oral hearing.
Reasons for the decision
The lawsuit is successful.
It is admissible as a continuation declaratory action pursuant to Section 113 Paragraph 1 Sentence 4 VwGO.
The expulsion for August 14, 2010 in the period from 10:20 a.m. to 7:00 p.m. was already resolved before the lawsuit was filed due to the expiration of time. However, the fundamental right to effective legal protection requires the possibility of judicial clarification of important, but in fact outdated, encroachments on fundamental rights if, according to the typical procedural process, the direct burden caused by the contested sovereign act is limited to a period of time in which the person concerned has a judicial decision can hardly be obtained (BVerfG, 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 interference can also be caused by impairments of the fundamental right to freedom of assembly, against which legal protection in the main proceedings is typically not achievable in the time available for this. (…).
However, not every interference with the freedom of assembly gives rise to an interest in continued determination. However, such an interest exists if the contested measure seriously impairs freedom of assembly (a), if there is a risk of a repetition (b) or if, for reasons of rehabilitation, a legally recognized interest in clarifying the legality 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 fundamental rights has actually been prevented by a ban on assembly or the assembly has been dissolved. Such interference is the most serious possible impairment of freedom of assembly. The state is prohibited from giving further weight to such an encroachment on fundamental rights, for example with regard to the specific occasion or the size of the meeting.” (BVerfG, decision of March 3, 2004, 1 BvR 461/03, BVerFGE 110, 77 < 86, 89 >)
If this standard is used as a basis, an interest in continued determination must be affirmed in any case from the point of view of the profound encroachment on fundamental rights, since the plaintiff was effectively forbidden from taking part in the DGB meeting due to the expulsion and, in the short period of time within which the measure was completed, could not obtain a court decision. To the extent that the defendant pointed out that the plaintiff could not invoke the fundamental right to freedom of assembly because he was armed and only peaceful assemblies were covered by the scope of protection of Article 8 of the Basic Law, the court did not follow this argument. The flagpoles brought by the plaintiff can at best be described as non-technical weapons. There was also no concrete evidence of the plaintiff using the flagpoles as weapons at the meeting. In this respect, the flagpoles brought along do not justify excluding the plaintiff from the outset from the protection of freedom of assembly and denying him a continued interest in the determination because of a profound encroachment on fundamental rights.
It is therefore not necessary to decide whether there is a risk of recurrence or an interest in rehabilitation.
The lawsuit is also justified because the expulsion given 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 expulsion relating to the area of the city of Bad Nenndorf is Section 17 Paragraph 4 Nds. SOG and not Section 17 Paragraph 1 Nds. SO-CALLED. According to Section 17 Paragraph 4 Sentence 1 Nds. SOG may prohibit a person from entering or remaining in a particular local area for a specified period of time if facts justify the belief that the person will commit a crime in the particular local area. According to sentence 2 of the aforementioned regulation, a local area within the meaning of sentence 1 is a place or an area within a municipality or an entire municipal area. In contrast, according to Section 17 Paragraph 1 Nds. SOG the administrative authorities and the police temporarily expel any person from a place or temporarily prohibit them from entering a place in order to avert a danger.
While the expulsion is in accordance with Section 17 Paragraph 1 Nds. SOG refers to locally narrowly defined areas such as a building, a piece of land, a stretch of street or a square (cf. VG Hannover, judgment of July 7, 1997, 10 A 5589/96; Böhrenz/Unger/Siefken, Nds. SOG, 8th edition, Section 17, Explanation 2), is the largest possible local area of a residence ban according to Section 17 Paragraph 4 Sentence 2 Nds. SOG the entire municipal area. Since the expulsion issued to the plaintiff was not limited to individual streets or a specific square, but rather referred to the entire area of the city of Bad Nenndorf, only Section 17 applies - as noted on the handwritten form dated August 14, 2010 Paragraph 4 Nds. SOG in question.
According to Section 17 Paragraph 4 Sentence 1 Nds. SOG can be expelled if there are facts that justify the belief that a person will commit crimes in a particular local area. The assumption that a person will commit a crime must not be based solely on general experience, vague assumptions or insufficient evidence. For example, the mere fact that a person arriving due to their external appearance will (probably) take part in an event that will (probably) be unpeaceful, is already partially unpeaceful or is already prohibited, will generally not be sufficient to prevent a ban on staying Paragraph 4 Sentence 1 to be pronounced. Rather - without there having to have been any relevant convictions - further findings of fact must be made, for example about this person's particularly aggressive behavior, the carrying of weapons or tools or previous acts of violence in connection with such events (Böhrenz/Unger/Siefken, Nds. SOG, 8th edition, § 17, Explanation 14).
Against this background, the chamber already has doubts as to whether there were sufficient facts to assume that the plaintiff wanted to commit crimes in the area of the town of Bad Nenndorf. The defendant accused the plaintiff of probably wanting to commit bodily harm crimes while wearing a mask with the flagpoles he was carrying, especially since he had already actively resisted being identified at a meeting on June 17, 2009. However, it appears questionable whether simply carrying flagpoles can be sufficient to predict that the plaintiff was planning violence at the DGB meeting. Even if the flagpoles could have been used as weapons if used for a purpose other than their intended purpose, the plaintiff - as he argued - could have simply had the plan to accompany the meeting with flags for the purpose. In addition, there is the fact that the plaintiff has not attracted attention for any relevant acts of violence or bodily harm in the past, but has merely actively resisted being identified at a previous meeting. In addition, the defendant did not accuse him of any aggressive or threatening behavior at the time of the police stop.
Even if one assumes that the above-mentioned circumstances surrounding the arrest of the plaintiff would have justified the assumption that the plaintiff would commit crimes in the area of the town of Bad Nenndorf, the expulsion was in any case disproportionate. In this context, it must be taken into account that the expulsion prior to participation in the DGB meeting interfered with the fundamental right to freedom of assembly. The ban on residence under paragraph 4 does not become inadmissible even if it is imposed on certain (potential) participants in a meeting and is directed against the meeting as such. However, it may not be applied in such a way that its effect is equivalent to a specific assembly law measure. Whenever the person is affected by a measure in accordance with Section 17 Nds. If it is made difficult or even impossible for the person affected by the SOG to participate in a (non-prohibited) meeting, the weight must be given to the fundamental right of freedom of assembly when determining the requirements of Section 17 Nds. SOG and the exercise of discretion in accordance with this provision must be observed (see Böhrenz/Unger/Siefken, Nds. SOG, 8th edition, § 17, Explanation 17). In any case, the expulsion given to the plaintiff does not meet these requirements.
The formal expulsion does not contain a detailed prognosis, based on the weight of the fundamental right to freedom of assembly, as to which criminal offenses the plaintiff is threatened with and that these justify excluding him from taking part in the meeting.
There is also a lack of consideration as to why flagpoles and masking items were not seized as a milder means of preventing crimes. It is true that the defendant stated in the court proceedings that the seizure of these items would not have been appropriate to the same extent as the expulsion because the plaintiff was on the way to the demonstration in order to disrupt or prevent it and that it was likely that he would commit crimes even with weapons that he did not bring with him. However - as already shown above - there is a lack of any actual evidence of the predicted violence and disruptive intentions with regard to the plaintiff's person. There were no indications of planned violent or aggressive behavior from the plaintiff's specific demeanor at the time of his expulsion. The behavior shown by the plaintiff in the past also gave no reason to assume that the plaintiff would take part in acts of violence against people or property. In addition, the active resistance to an identity check at a meeting in June 2009 did not sufficiently allow the conclusion that the plaintiff would act violently. Finally, the defendant's general references to the potential danger of violent clashes between left-wing and right-wing demonstrators cannot justify issuing the plaintiff's expulsion, since, at least with regard to the plaintiff's person, no factual findings regarding violent behavior could be made.
Since securing the flagpoles would obviously have been equally suitable for preventing the possible use of the flagpoles as weapons, the de facto ban on gatherings associated with the expulsion was ultimately disproportionate.
The cost decision follows from Section 154 Paragraph 1 VwGO. The decision on provisional enforceability is based on Section 167 VwGO in conjunction with Section 708 No. 11, Section 711 Sentence 1 and 2 ZPO.
Instructions on legal remedies follow.
decision
The value of the subject matter of the dispute is set at 5,000.00 euros.
Reasons
The determination of the amount in dispute is based on Section 63 Paragraph 2 Sentence 1 GKG. The amount of the established amount in dispute follows from Section 52 Paragraph 2 GKG.
Instructions on legal remedies follow.
