DECISION
In the administrative law case
of the xxx,
plaintiff and respondent,
prosecuting attorney: Adam,
Lange Geismarstraße 55, 37073 Göttingen,
against
xxx,
defendant and applicant for admission,
Subject of the dispute: Identification processing
– application for permission to appeal –
The Lower Saxony Higher Administrative Court - 11th Senate - decided on August 9, 2012:
The defendant's application to allow the appeal against the judgment of the Göttingen Administrative Court - single judge of the 1st chamber - of January 19, 2012 is rejected.
The defendant bears the costs of the approval procedure.
The amount in dispute for the admission procedure is set at EUR 5,000.
REASONS
The plaintiff objects to the order to undergo identification treatment.
On December 12, 2009, a police investigation was launched against the xx-year-old plaintiff, who is studying subjects xxx and xxx at the University of Göttingen, on suspicion of committing dangerous bodily harm. The plaintiff was accused of approaching two students on Rote Strasse in Göttingen during the night of the same day, who belonged to a student association and were on the way to their fraternity house, at the level of house number As a result of the tumultuous events that followed, pepper spray was sprayed into their faces, so that they suffered considerable pain and one of the injured parties had to go to a hospital for an examination.
With the decision of March 15, 2010, based on Section 81 b 2nd Alt. StPO, the plaintiff was requested by the defendant to have fingerprints, palm and hand edge prints taken and photographs or portraits taken at the Göttingen police station appear. The justification was given: According to the facts ascertained, the plaintiff is accused of having committed dangerous bodily harm on Rote Straße on December 12, 2009. The plaintiff undoubtedly felt provoked by the fact that fraternity members, who were recognizable as such and were part of the “enemy” of the left-wing scene, walked past the Rote Straße housing project, whose residents were part of the left-wing spectrum. Since there have been repeated arguments between people from the left-wing scene and fraternity members in the past, it must be assumed that the accused will repeat the same course of action if the facts are the same. For the reasons mentioned above, a risk of recurrence is assumed to be present.
The plaintiff filed an action to challenge this on April 13, 2010. With a judgment of March 22, 2011, the Göttingen District Court sentenced the plaintiff to a fine of 60 daily rates of EUR 20 each for dangerous bodily harm in accordance with Section 224 of the Criminal Code based on the offense on December 12, 2009 (ref. 34 Ds 87 Js 10372/ 10). The judgment was preceded by an agreement in accordance with Section 257 c of the Code of Criminal Procedure in the main hearing, in which the plaintiff undertook to pay the two victims, who acted as co-plaintiffs, compensation for pain and suffering of EUR 500 and EUR 250 respectively to cover the necessary expenses of the co-plaintiffs represented by lawyers. As part of the agreement, the plaintiff fully admitted the crime. He also apologized to the victims.
With its ruling of January 19, 2012, the administrative court upheld the lawsuit against the ordering of identification measures. As justification, it stated: The plaintiff was a defendant within the meaning of Section 81 b 2nd Old at the time of the order. However, the order is not necessary for the purposes of the identification service. There is no risk of recurrence. The plaintiff appeared criminally for the first time in the proceedings initiated against him for grievous bodily harm. The offense is of considerable importance. However, there are no compelling reasons that would indicate a risk of repetition of a comparable physical injury. The court had no evidence to support the assumption that physical injuries were acts of inclination. It is a mere speculation on the part of the defendant that the plaintiff could become violent in the same way in the context of another verbal argument with fraternity students who were part of the “enemy image” of politically left-wing people. It is more likely that the plaintiff will use the criminal conviction as a warning and reminder. This is particularly supported by the plaintiff's behavior during the oral hearing before the Göttingen District Court.
The defendant's application for admission, which is based on Section 124 Paragraph 2 No. 1 and No. 3 VwGO, is unfounded.
The defendant did not present any serious doubts about the correctness of the administrative court decision in accordance with Section 124 Paragraph 2 No. 1 VwGO. The justification for admission dated February 22, 2012 asserts that the commission of a serious and factually serious bodily harm for an objectively insignificant reason, but a radical political reason, combined with an accumulation of similar attacks from the left-wing radical spectrum against fraternity students in Göttingen, further connected with a The plaintiff's affiliation with the Göttingen left-wing scene gives rise to fears that the plaintiff will commit further crimes in the future. The administrative court wrongly assigned minor weight to the crime committed by the plaintiff. This classification does not do justice to the legislative decision to impose a minimum prison sentence of six months under Section 224 of the Criminal Code in order to make clear the special need for protection of highly personal legal interests. In addition, when committing offenses with significantly increased minimum penalties, it can be assumed that the person concerned will continue to commit crimes in the future, provided that - as in the case of the plaintiff - a low inhibition threshold towards violating the legal interests of others was expressed when committing the crime. Furthermore, bodily harm crimes are crimes of inclination, the existence of which per se indicates that the perpetrator in question has a low inhibition threshold towards the legal interests of other people, without the need for in-depth, fact-based proof of a risk of repetition in individual cases. Regardless of this, the circumstances surrounding the commission of the crime in this individual case also indicate a risk of repetition. It results from the interaction of the massive use of violence that endangers legal rights and the will to enforce an extreme political opinion. The incident is also related to the recent increase in politically motivated attacks from the “left spectrum” against fraternity students. The plaintiff's special living situation in the Rote Straße 1 - 5 housing project, a residential and action focus of the left-wing spectrum in Göttingen, should also be taken into account. Some of the residents viewed this area as a kind of “liberated zone” that could be defended against political dissidents, even with the use of massive force. Finally, when assessing the plaintiff's behavior in the criminal proceedings, the court only took insufficient account of the evidence and the plaintiff's motivation. The defendant does not succeed with this justification for admission.
The administrative court rightly denied the requirements of Section 81 b 2nd alternative StPO. According to this regulation, photographs and fingerprints of the accused may be taken against his will and measurements and similar measures may be carried out on him if this is necessary for the purposes of the identification service. Since an investigation was underway against the plaintiff at the time of the disputed order on suspicion of grievous bodily harm, he was indeed a defendant within the meaning of the aforementioned provision. However, the ordered identification measures were not necessary. For the purpose of the identification service, it is necessary to collect documents that are suitable for and could promote future investigations. As stated by the Administrative Court, in order to affirm the necessity, there must be reason to believe that the person involved in the order could in future be a suspect in the circle of potential participants in a criminal act that has yet to be solved. There is therefore a risk of repetition, which must also be based on the results of the proceedings for the offense (BVerwG, decision of November 23, 2005 - 6 C 2.05 -, NJW 2006, 1225; Senate decision of November 20, 2008 - 11 ME 297 /08 -, juris, paragraph 9). In special individual cases, the result of the initial procedure can justify the ordering of identification measures if the person concerned has not previously appeared in criminal law (Senate ruling of November 15, 2011 - 11 LB 195/11 -, Vnb). What is then relevant are the circumstances of the individual case, in particular the type, severity and manner in which the crime was committed against the person concerned in the preliminary proceedings, but also his personal circumstances and other actual circumstances relating to him, which determine the personality image to be created. Measured against this, the defendant's risk forecast is incorrect.
There was no police information against the plaintiff until the initiation of the proceedings. To justify the risk of recurrence, older investigations or criminal court decisions made in the past cannot be used. The information to be gained from the initiation process is decisive. The defendant agrees that the grievous bodily harm committed by the plaintiff is a serious crime. The particular injustice of serious bodily harm is expressed in the threat of a prison sentence of six months to 10 years (see Section 224 Paragraph 1 StGB). However, a risk of repetition cannot be derived from the commission of criminal offenses with a significantly increased minimum sentence. Even the first-time commission of simple bodily harm in accordance with Section 223 of the Criminal Code or of dangerous bodily harm in accordance with Section 224 of the Criminal Code does not allow the conclusion that the perpetrator generally has a tendency to disregard the physical integrity and health of other people. Rather - at least in the case constellation given here - in order to justify the risk of repetition, a thorough examination of the circumstances of the individual case is required, which includes not only the type and execution of the crime, but also knowledge about the personality of the person involved.
It cannot be denied that the plaintiff caused considerable pain to the victims by committing the crime by spraying pepper spray into the faces of both fraternity students. However, the fact that, according to the defendant's argument, the plaintiff attacked the two victims "planned from an ambush with a group of other people" cannot be seen from the findings of the Göttingen district court in its judgment of March 22, 2011 on the facts of the case. It simply states that the two victims were approached by the plaintiff on Rote Straße and, after the conversation was initially harmless, they were asked to turn around and stop using Rote Straße. It goes on to say that in the tumultuous event that then developed, the plaintiff sprayed pepper spray into the faces of the two victims. The statements of the two injured parties, who were questioned about the crime at the hearing before the district court, also do not indicate that the plaintiff committed the crime from an ambush. Nor can it be established that the plaintiff's approach was calculated. The district court's statements in its judgment of March 22, 2011 also do not allow for the conclusion drawn by the defendant that the plaintiff's intention in committing the offense was to create a "no-go area on Red Street" for people who... supposedly belong to the conservative to right-wing spectrum. The plaintiff's attack was preceded by a verbal argument with the two fraternity students, the exact content of which remained unclear even according to the witness statements of the two victims.
There is also no sufficient evidence that the commission of the crime testifies to the plaintiff's entrenched politically radical attitudes, which gives rise to fears that the plaintiff will commit new crimes in accordance with Sections 223 ff. of the Criminal Code. During the admission process, the plaintiff expressly denied that he belonged to a “left-wing scene of any kind.” The defendant did not present any solid facts that could undermine this admission in its grounds for admission. She simply points out that the incident is related to a recent increase in politically motivated attacks from the “left spectrum” on fraternity students in Göttingen. This means that a need for prevention cannot be justified in relation to the plaintiff. The plaintiff did not appear criminally before the offense. There is no tangible evidence in the admission submission that the plaintiff could belong to the group of perpetrators to whom the defendant attributes repeated damage to property (e.g. smearing of paint) on, among other things, student fraternity buildings, attempted arson in three cases and violent attacks against fraternity students.
The fact that the plaintiff lives at the address Rote Straße x does not indicate a risk of repetition. According to the defendant's admission submission, the residential buildings at Rote Straße No. 1 - 5 in Göttingen are the residential and action focus of the left-wing motivated spectrum. This talk is not supported by facts. Even if this assessment were correct, it does not justify the assumption that the plaintiff's “special living situation within the framework of a housing project on Rote Strasse in Göttingen,” in addition to the particular manner in which the offense was committed, “speaks for a political stance on the part of the plaintiff, or at least violence against those who think differently “I accept it with approval”. Such an admission argument, which is limited to the stated statement, does not meet the presentation requirements.
The defendant's assumption of the risk of renewed violence by the plaintiff against fraternity students in similar circumstances cannot be inferred solely from the nature and severity of the crime committed by the plaintiff. The Senate shares the administrative court's assessment that the plaintiff's behavior in the criminal proceedings suggests that he allowed the conviction to serve as a warning and reminder. In contrast, the defendant argues in vain that the plaintiff, who was recognized by one of the two victims as a fellow student, should have expected a guilty verdict for grievous bodily harm and the imposition of a prison sentence of at least six months even without a confession, and that the plaintiff very likely would have been sentenced to pay the expenses of his victims, to pay damages and to pay compensation for pain and suffering. In the oral hearing before the district court, as part of an agreement in accordance with Section 257 c of the Code of Criminal Procedure, the plaintiff agreed to make a confession, to pay the two injured parties compensation for pain and suffering of EUR 500 and EUR 250 respectively and to cover the necessary expenses to take over both victims. In return, the plaintiff was promised a fine of 50 to 100 daily rates. The Senate has no evidence that this behavior of the plaintiff is not an expression of the assumption of responsibility (cf. BGH, judgment of October 19, 2011 - 2 StR 344/11 -, juris, Rn. 2, to Section 46a No. 1 StGB). The attitude of the two victims, who appeared as co-plaintiffs in the criminal court proceedings, should also be appreciated. They agreed to the agreement and thereby made it clear to the outside world that they accepted the plaintiff's confession and his obligation to provide them with financial benefits as a peace-making settlement. The plaintiff also apologized to the victims for his actions outside of the communication. The application for admission does not explain why this should not be viewed as genuine regret for the crime. However, it is unclear whether the criminal proceedings against the plaintiff would have followed the course and outcome predicted by the defendant without the notification in accordance with Section 257c of the Code of Criminal Procedure. There is also no evidence that the plaintiff was not severely burdened by the financial consequences of the criminal proceedings. At the hearing before the district court, he explained that he received a monthly allowance of EUR 600 from his parents. The defendant's assumption that the plaintiff comes from a well-off background and the associated assumption that the plaintiff does not have to bear the financial burden of the criminal court proceedings (alone) and therefore the sum of the costs to be paid does not deter him from future acts, has no factual basis.
The application for approval is also not helped by the fact that, after the defendant's submission on June 18, 2012, a further police investigation was initiated against the plaintiff because of the allegation that an advertising banner for a brewery was attached to the outside facade of a bar in Göttingen on June 9, 2012 to have stolen something worth approx. EUR 80. According to the report from the Göttingen police station dated June 11, 2012, the operator of the bar managed to catch the plaintiff after the theft and determine his personal details. A little later, the injured party decided not to file a criminal complaint after the plaintiff apologized and offered to put the advertising sign up again. This incident cannot be taken into account in the approval process. In the admission procedure, when assessing the reason for admission in accordance with Section 124 Paragraph 2 No. 1 VwGO, changes to the facts that are relevant to the decision must be taken into account in the examination, provided that these have been presented by the applicant for admission within the application deadline (BVerwG, decision of November 11, 2002 - 7 AV 3.02 -, DVBI. 2003, 401). This is missing. The deadline for justifying the application for admission was on the 26th. March 2012. In addition, the defendant does not explain why the allegation that subsequently became known is intended to substantiate the danger that it predicted in the grounds for admission of February 22, 2012 that the plaintiff would again become violent towards fraternity students because of his radical political background.
The defendant's fundamental complaint is also not valid. A legal case only has fundamental significance within the meaning of Section 124 Paragraph 2 No. 3 VwGO if it raises a legal question that has not yet been answered by the highest court or higher court or a factual question of general importance that has not yet been clarified by the higher court, which would arise in the appeal proceedings and in the interest the unity of case law or the further development of the law requires cross-case clarification by the appeal court (Schoch/Schmidt-Aßmann/Pietzner, commentary on the VwGO, loose-leaf collection, as of January 2012, § 124 para. 30 ff. with further references). The defendant considers the question of the extent to which physical injuries can be acts of inclination to be fundamentally important. There is no need to conduct an appeal process to answer this question. According to the above statements on Section 124 Paragraph 2 No. 1 VwGO, when a physical injury is committed for the first time, the forecast as to whether a risk of recurrence can be derived must be based on the circumstances of the individual case.
The cost decision follows from Section 154 Paragraph 2 VwGO.
The determination of the amount in dispute is based on Sections 47 Paragraph 1 and Paragraph 3, 52 Paragraph 2 GKG.
This decision is incontestable (§ 152 para. 1 wGO, § 68 para. 1 sentence 5 in conjunction with § 66 para. 3 sentence 3 GKG).
