Judgment in the name of the people
In the administrative law case
xxx,
Plaintiff,
Legal representative: Attorney Adam,
Lange Geismarstraße 55, 37073 Göttingen,
against
xxx,
Defendant
Subject of dispute: Expulsion from the premises (Bad Nenndorf, 14.08.2010)
The Administrative Court of Hanover – 10th Chamber – held the oral hearing of March 8, 2012, with presiding judge xxx, judge xxx, judge Lange, and lay judges xxx and xxx presiding, has ruled as follows:
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:
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 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 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, a medical student, had travelled from Göttingen on a bus organized by the German Trade Union Confederation (DGB) to participate in the DGB's assembly, which lasted until 11:00 a.m. on August 14, 2010. Following the assembly, he remained in Bad Nenndorf. At approximately 2:20 p.m., he was encountered in the town of Bad Nenndorf on the periphery of a group of about 15 people, mostly dressed in dark clothing and some of whom were masked. The group moved toward a roadblock marking the route of the so-called "mourning march" near Bahnhofstraße 11 and did not stop despite being shouted at by the police officers at the roadblock. Several individuals attempted to physically attack the police officers in an attempt to break through the police line. As a result, the defendant took six people, including the plaintiff, into custody from 2:30 p.m. to 6:30 p.m. Following this arrest, the plaintiff was issued a ban from the area of the town of Bad Nenndorf for the period from 6:35 p.m. to 8:00 p.m. The handwritten form stated as justification that the plaintiff was being issued a ban pursuant to Section 17 Paragraph 4 of the Lower Saxony Public Safety and Order Act (Nds. SOG) because the plaintiff's behavior justified the assumption that he would commit criminal offenses within the town of Bad Nenndorf.
The plaintiff filed suit on February 15, 2011. 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 could lead to a ban from the premises in the future. 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, as there was no evidence whatsoever that he intended to commit a crime. He had followed the group as a volunteer first-aider to be able to provide first aid as quickly as possible in case of injuries. He immediately identified himself as a first-aider to the police officers involved. He was not involved in any acts of violence at any time. All criminal proceedings initiated against him in this context were discontinued pursuant to Section 170 Paragraph 2 of the German Code of Criminal Procedure. Furthermore, the Stadthagen Local Court, in its decision of May 11, 2011 (5 XIV 2114 (L)), confirmed by the Bückeburg Regional Court in its decision of November 16, 2011 (4 T 48/11), which examined the legality of his detention, determined the detention to be unlawful between 4:30 p.m. and 6:35 p.m. Further investigations, such as establishing his identity, searching his person and belongings (e.g., a high-visibility vest and first-aid supplies), and reviewing the video footage recorded at the scene, could have established within two hours, i.e., by 4:30 p.m., that he was not a participant in any criminal offense. A negative risk prognosis justifying further detention or a removal order was therefore not justified.
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 ban from the premises pursuant to Section 17 Paragraph 4 of the Lower Saxony Public Safety and Order Act (Nds. SOG) were met. Violent clashes between participants in the "right-wing" and "left-wing" demonstrations, resulting in significant harm to the life and limb of the demonstrators and other uninvolved parties, were to be expected, as had been demonstrated in comparable marches of right-wing and left-wing demonstrators in Dresden and Berlin, as well as in Bad Nenndorf in 2009. Against this backdrop, the plaintiff's conduct had to be assessed. He had moved within a milieu prone to violence and acting in a planned manner against others. The investigations initiated against him for breach of the peace pursuant to Section 125 Paragraph 1 No. 1 of the German Criminal Code (StGB) in conjunction with attempted aggravated assault pursuant to Sections 233 and 224 Paragraph 1 No. 4 of the German Criminal Code (StGB) were discontinued only because the plaintiff's specific contribution to the offense, required for such an offense, could not be proven. The order to leave the premises was necessary to ensure the undisturbed departure of the participants in the so-called funeral march and the DGB (German Trade Union Confederation) parade. The plaintiff could easily have taken the shortest route home to Göttingen from Stadthagen via Bad Nenndorf by train; he was simply prohibited from being in the town center of Bad Nenndorf.
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, between 6:35 p.m. and 8:00 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 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 from 6:35 p.m. to 8:00 p.m. was unlawful.
The legal basis for the order to leave the area of the city of Bad Nenndorf issued against the plaintiff is Section 17 Paragraph 4 of the Lower Saxony Public Safety and Order Act (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 criminal offense 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. Since the order to leave the area issued to the plaintiff was not limited to individual streets or a specific square, but rather applied to the entire area of the city of Bad Nenndorf, only Section 17 Paragraph 4 Nds. SOG is applicable – as also noted on the handwritten form dated August 14, 2010.
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, more specific facts must be considered. Without the need for prior relevant convictions, further factual findings may be added, such as regarding particularly aggressive behavior of this person, the carrying of weapons or tools, or previous acts of violence in connection with such events (Böhrenz/Unger/Siefken, Nds. SOG, 8th edition, § 17, Expl. 14). The police's risk assessment must be measured against whether it is justifiable from an ex-ante perspective, that is, according to the circumstances and the available knowledge at the time the preventive police measure was issued (cf. Göttingen Administrative Court, judgment of January 19, 2012, 1 A 94/10 with further references, cited according to juris).
In the present case, the defendant accused the plaintiff of having moved in the environment of a group that was prone to violence and systematically acted against others, and therefore it could be assumed that he intended to commit crimes such as resisting law enforcement officers, breach of the peace or possibly bodily harm offenses.
In the Chamber's view, the defendant's assessment at the time the order to leave the premises was issued is untenable. More than four hours passed between the plaintiff's release from police custody and the issuance of the order to leave the premises at 6:35 p.m. Within this timeframe, the defendant's police officers could easily have determined, by checking the plaintiff's personal details and his statements regarding his deployment as a volunteer medic, as well as by examining the contents of his backpack, that he did not belong to the group of obviously violent disruptors of the so-called "mourning march." Indeed, the Bückeburg Regional Court, in its decision of November 3, 2011 (4 T 48/11), when reviewing the legality of the detention, pointed out that the fact that a group of people had attacked the police officers in an attempt to disrupt or break through the cordon securing the demonstration on the right constituted a dangerous situation that initially justified the detention of the plaintiff as well. The plaintiff was not immediately identifiable as a paramedic. However, the police were only allowed a two-hour timeframe to determine, by establishing his identity, searching his backpack, and reviewing the video footage, whether the plaintiff actually posed a risk of committing criminal offenses.
In any event, at the time of the plaintiff's release from police custody and the issuance of the dispersal order, the court found that there was no concrete evidence to suggest that the plaintiff was likely to commit criminal offenses. According to his own statements, the plaintiff has medical training and was able to administer first aid with the equipment he carried. He also has no prior criminal record. Finally, the lack of concrete evidence of the plaintiff's intention to commit violent acts at the time the dispersal order was issued cannot be compensated for by the defendant's references to the potential risk of physical confrontations between left-wing and right-wing demonstrators, nor can the dispersal order justify it.
Whether the issued order to leave the area was even suitable to prevent the feared violent clash between left-wing and right-wing demonstrators seems at least doubtful, since the return journey of the participants of both rallies likely began at 6:35 p.m. and, according to the justification for the order to leave the area, the plaintiff had the direct route to the train station in Bad Nenndorf open to him, even though right-wing demonstrators who were also ready to depart were likely still there.
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.
