DECISION
In the administrative dispute proceedings
of xxx,
plaintiff,
represented by:
Attorney Sven Adam,
Lange Geismarstraße 55, 37073 Göttingen
against
the xxx,
defendant,
because of police law
The Administrative Court of Kassel, through Presiding Judge xxx (assigned judge) as single judge of the 3rd Chamber, decided on December 10, 2012:
1. The proceedings are discontinued.
2. The defendant shall bear the costs of the proceedings.
3. The value in dispute is set at EUR 5,000.00.
REASONS
After the parties have unanimously declared the main proceedings to be settled, they are to be discontinued in accordance with Section 92 Paragraph 3 Sentence 1 of the Administrative Court Procedure Act (VwGO).
The costs of the proceedings are to be allocated at the court's discretion, taking into account the facts and the state of the case (§ 161 para. 2 VwGO [German Code of Administrative Procedure]), whereby it is generally impractical to make further findings of fact, to gather evidence, or to clarify difficult legal questions (Kopp/Schenke, VwGO, Commentary, 14th ed. 2005, marginal note 15 to § 161). In addition to the question of the prospects of success in the proceedings, it is important for the cost decision whether one of the parties has brought about the settlement through their own volition; it is generally within the court's discretion to charge this party with the costs (Redeker/v. Oertzen, Administrative Court Procedure, 14th ed. 2004, marginal note 6 to § 161 with further references).
The defendant brought about the event that rendered the case moot, because he deleted the data collected and stored during the plaintiff's identification procedure on February 16, 2011, and destroyed the documents produced in this regard.
Notwithstanding the foregoing, the defendant would likely have lost because the prognosis, which is based on the concrete endangerment of legal interests of significant value expressed in Section 315 of the German Criminal Code, is not tenable in view of the discontinuation order issued by the Fulda Public Prosecutor's Office on November 14, 2011.
However, if the underlying proceedings were subsequently discontinued, continued data storage requires a remaining suspicion of a criminal offense. In the event of discontinuation of proceedings (or an acquittal), it must therefore be examined whether there are still grounds for suspicion against the individual concerned that justify continued storage for preventive policing purposes. With regard to the requirement of a risk of reoffending, these cases necessitate a thorough assessment of all relevant circumstances of the individual case, taking into account the reasons for discontinuation of proceedings (Federal Constitutional Court, decision of May 16, 2002 – 1 BvR 2257/01; Higher Administrative Court of North Rhine-Westphalia, decision of April 14, 2010 – 5 A 479/09).
In the dismissal order, the public prosecutor's office determined that neither the elements of the offense under Section 315 nor those of Section 316b of the German Criminal Code (StGB) were present; whether the elements of the offense of coercion under Section 240 of the German Criminal Code (StGB) were met, given the question of whether "violence" within the meaning of the provision had been used, remained open.
In light of these statements, a thorough case-by-case examination would have been necessary with regard to the risk of recurrence.
The determination of the value in dispute is based on Section 52 Paragraph 1 of the Court Costs Act (GKG). The preliminary determination of the value in dispute is therefore rendered moot.
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