VERDICT
In the administrative law case
of xxx,
plaintiff,
represented by: Attorney Adam,
Lange Geismarstraße 55, 37073 Göttingen,
against
xxx,
Defendant,
Subject of dispute: Police law
– Order to leave the premises 04.06.2011 –
The Administrative Court of Braunschweig – 5th Chamber – rendered the following judgment in the oral proceedings of November 7, 2012, with presiding judge xxx, judge xxx, judge xxx, and lay judges xxx and xxx presiding:
It is determined that the defendant's decision of June 4, 2011 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 the enforceable costs, unless the plaintiff provides security in the same amount beforehand.
The amount in dispute is set at 5,000.00 euros.
FACTS OF
The plaintiff seeks a declaration that a police order to leave the area, in the form of a ban on being present, issued against him on June 4, 2011, was unlawful.
On Saturday, June 4, 2011, a demonstration by the right-wing scene was originally scheduled to take place from Braunschweig Central Station from 11:00 AM to 8:00 PM under the motto "Day of German Future – A Signal Against Foreign Infiltration – Together for a German Future." After the city of Braunschweig banned the march and any form of alternative event with immediate effect, the Higher Administrative Court of Lower Saxony, in expedited proceedings (Bv 01.06.2011 - 11 ME 164/11, – juris and www.Rechtsprechung.Niedersachsen.de), reinstated the suspensive effect of the organizer's lawsuit, stipulating that the assembly could take place as a stationary event at Braunschweig Central Station in the parking lot between the southwest end of the main station building and the central bus station on Salzdahlumer Straße between 12:00 PM and 3:00 PM. The German Trade Union Confederation (DGB) had also registered a meeting on the topic of “Democracy and Civil Courage” for the same day near the train station, which was to take place from 10 a.m. to 7 p.m.
A special unit of the Hanover Police Directorate, which had been deployed in Braunschweig in connection with these demonstrations, carried out identity checks at a cordon in the area of Viewegstraße, which leads directly to Berliner Platz in front of the train station.
At approximately 9:30 a.m., the plaintiff, accompanied by three other individuals, walked through the area in the direction of the train station. Since he and his companions appeared to be from the left-wing spectrum, according to the police, officers approached them and asked for identification. The plaintiff and the rest of the group complied reluctantly, according to the police, and only after repeated requests. They stated that they were on their way to the German Trade Union Confederation (DGB) rally. During the check, the police officers discovered that the plaintiff was listed in the police information system "INPOL" as a "left-wing motivated offender." The group also included the plaintiff in the parallel case 5 A 11/12, who—as only came to light during his legal proceedings—was listed in "INPOL" for dangerous interference with rail, shipping, or air traffic. The four individuals were subsequently searched. The police officers found black hoodies, sunglasses and a scarf, which they considered to be "masking materials", but were unable to attribute them to any individual persons.
At 9:45 a.m., the officer in charge issued a ban from the entire city center of Braunschweig to all members of the group, including the plaintiff, until midnight on June 4, 2011. The plaintiff was given a banning order form which stated the following justification: “Mr. xxx is associated with the left-wing spectrum. He was moving in a group toward the outer cordon. He was carrying items for disguising his identity and was uncooperative with the police during the check. Mr. xxx is registered as a criminal offender.” The plaintiff and the three other individuals were then released and proceeded toward Heinrich-Büssing-Ring.
On June 8, 2011, the plaintiff filed a declaratory judgment action. He maintains that there was no objective evidence of a criminal offense. As he was unfamiliar with the area, he was unaware of any route other than the one he and his companions took to reach the DGB (German Trade Union Confederation) rally. He initially did not mention that he intended to attend the DGB event, but rather asked the police why they were conducting an identity check. Even if his behavior had posed a threat to public safety, being ordered to leave the premises was not the least intrusive measure. Furthermore, he was neither carrying any disguise material nor was he asked to leave behind any items found on him. Since he could not explain his entry as a left-wing motivated offender, he submitted a corresponding request for information to the Office for the Protection of the Constitution (domestic intelligence agency) and the state and federal criminal investigation offices (BKA). The BKA file revealed that investigations had been conducted against him by the Halle public prosecutor's office (case number: 419 Js 35138/7) on suspicion of breach of the peace on September 15, 2007, and in Neuruppin, Brandenburg, on suspicion of a violation of the Assembly Act on March 27, 2010. Both proceedings were discontinued. Meanwhile, the Saxony-Anhalt State Criminal Police Office (LKA) has confirmed that all personal data stored about him in "INPOL" has been deleted.
The plaintiff requests
a ruling that the order to leave the premises issued against him on June 4, 2011, in the form of a ban on his presence, was unlawful.
The defendant requests that
the action be dismissed.
She argues that, given the overall situation, there was a risk that the plaintiff, who is associated with the left-wing spectrum, would commit criminal offenses. After his initial uncooperative behavior, his claim that he intended to attend the DGB (German Trade Union Confederation) event was no longer credible. In particular, the discovered materials used for disguising one's identity strongly suggested a violation of the prohibition against disguising one's identity under Section 9, Paragraph 2, Number 2 of the Lower Saxony Assembly Act (NVersG). This provision also prohibits carrying objects on the way to or during an assembly that are suitable or intended to prevent the establishment of one's identity. The ban on being present was also not disproportionate in terms of duration, as the "Right-Wing" demonstration was registered until 8 p.m., and she had allotted four hours for dismantling the equipment and the departure of the participants, because criminal offenses such as property damage were still to be expected even after the event had ended. The fact that the rally was ultimately only allowed to take place from 12 to 15 o'clock does not change the fact that there was an interest in keeping counter-demonstrators out of the city center until the end of the day.
For further details of the facts and the submissions of the parties involved, reference is made to the contents of the court file and the administrative file of the defendant.
REASONS FOR THE DECISION
The action is admissible and well-founded.
The action is admissible as a declaratory judgment action pursuant to Section 113 Paragraph 1 Sentence 4 of the German Code of Administrative Procedure (VwGO). According to this provision, the court, upon application, declares by judgment that an administrative act was unlawful if the administrative act became moot after the action was filed but before the judgment was rendered, and the plaintiff has a legitimate interest in this declaration. Since the defendant's decision of June 4, 2011, became moot upon the expiration of that date, before the action was filed, Section 113 Paragraph 1 Sentence 4 of the VwGO applies accordingly.
The plaintiff's legitimate interest in a declaration of illegality arises here from a significant infringement of his fundamental right under Article 8 of the Basic Law (freedom of assembly) in conjunction with the risk of recurrence. Due to the order to leave the premises, the plaintiff was prevented from participating in the assembly of the German Trade Union Confederation (DGB). For the assumption of a risk of recurrence, it suffices that the plaintiff's intention to participate in future assemblies that, by their nature, could lead to the same legal issues and thus the same assessment of their legality is discernible. This can be assumed here; the plaintiff states that he seeks the declaration as a "guideline for future conduct.".
The action is well-founded. The order to leave the premises in the form of a ban on entering the area, issued on June 4, 2011, was unlawful and violated the plaintiff's rights (Section 113 Paragraph 1 Sentence 4 of the Administrative Court Procedure Act).
At the time the order to leave the premises or the ban on being present was issued, neither the conditions of Section 10 Paragraph 3 of the Lower Saxony Assembly Act (NVersG) nor those of Section 17 Paragraph 4 of the Lower Saxony Act on Public Safety and Order (Nds. SOG) were met.
The police order to disperse, in the form of a ban on remaining in the area, is not authorized by Section 17 Paragraph 4 of the Lower Saxony Public Safety and Order Act (Nds.SOG) due to the primacy of the right of assembly. The protection of the freedom of assembly under Article 8 of the Basic Law (GG) is not limited to participation in an existing assembly, but also encompasses the entire process of assembling, including access to an impending or forming assembly. Otherwise, the freedom of assembly would be at risk of being undermined by state measures taken prior to the exercise of this fundamental right. The protection of Article 8 GG ends where the aim is not participation in the assembly—even if critical—but rather its prevention (Federal Constitutional Court, Decision of June 11, 1991 - 1 BvR 772/90 -, juris para. 16 f.).
The police officers at the checkpoint had no sufficient grounds to assume that the plaintiff did not intend to participate in a DGB assembly, but instead wanted to visit the "right-wing" rally in order to prevent or disrupt it.
The plaintiff stated that he was on his way to the announced DGB (German Trade Union Confederation) rally. Whether he stated this to the police at the beginning or during the course of the check is legally irrelevant. What is crucial is that the DGB event took place near the "right-wing rally," and that it was possible to reach both events from the barrier on Viewegstrasse, where the check was carried out. The fact that this was not necessarily the shortest route for the plaintiff to reach the DGB rally does not automatically lead to the assumption that he intended to disrupt the "right-wing rally," especially since the plaintiff lives in xxx and was therefore unfamiliar with the area. Furthermore, given the uncooperative behavior criticized by the police officers and their association of the plaintiff with the left-wing spectrum, there was no reason to consider his statement that he was on his way to the DGB rally as implausible. The statement from the operations manager dated July 7, 2011, does not provide any specific reasons for this.
The items found on the plaintiff and his companions for disguising their identity (a scarf, black hoodies, and sunglasses) did not necessarily indicate that the plaintiff intended to disrupt the right-wing demonstration. Since this does not disprove that he was on his way to the DGB (German Trade Union Confederation) assembly, the plaintiff is protected by the right of assembly, and police law does not apply.
Section 10, paragraph 3 of the Lower Saxony Assembly Act (NVersG) governs, as a lex specialis, the exclusion from and prohibition of participation in an assembly. This provision is applicable even before the assembly takes place (Ullrich, Niedersächsisches Versammlungsgesetz, § 10 Rn. 23). Only after a prohibition of participation in the assembly has been issued can a removal order be issued pursuant to Section 17 of the Lower Saxony Public Safety and Order Act (Nds. SOG) (Ullrich, ibid., § 10, Rn. 18).
In order for the scope of application of Section 17 Paragraph 4 of the Lower Saxony Public Safety and Order Act (Nds. SOG) to be opened, the police officers would therefore have had to first prohibit the plaintiff from participating in the assembly pursuant to Section 10 Paragraph 3 of the Lower Saxony Assembly Act (NVersG). According to the file, they did not do this, but instead immediately issued a removal order in the form of a ban on being present pursuant to Section 17 Paragraph 4 of the Lower Saxony Public Safety and Order Act (NSOG).
It cannot be assumed that the prohibition of participation was implicitly contained in the order to leave the premises. The prohibition of participation pursuant to Section 10 Paragraph 3 of the Lower Saxony Assembly Act (NVersG) and the order to leave the premises pursuant to Section 17 Paragraph 4 of the Lower Saxony Public Safety and Order Act (Nds. SOG) have different prerequisites and each requires the proper exercise of the discretion granted. A reinterpretation of the legal basis is not possible with regard to discretionary provisions (cf. Göttingen Administrative Court, Judgment of February 24, 2012 – 1 A 69/10 –, juris para. 18).
For the aforementioned reasons, the removal order based on Section 17 Paragraph 4 of the Lower Saxony Public Safety and Order Act (Nds. SOG) in the form of a ban on remaining in the area was unlawful and violated the plaintiff's rights.
Even if the defendant's view were followed and the applicability of Section 17 Paragraph 4 of the Lower Saxony Public Safety and Order Act (Nds. SOG) were assumed, the imposed ban on residence would have been unlawful.
According to Section 17 Paragraph 4 Sentence 1 of the Lower Saxony Public Safety and Order Act (Nds. SOG), administrative authorities or the police may prohibit a person from entering or remaining in a specific area for a certain period of time if there are grounds to believe that the person will commit a crime in that area. No such grounds were apparent here. Indications of an impending crime exist, for example, if weapons, tools, or other objects are found on the person in question or their companion that are clearly intended for committing a crime or are known to be used in such crimes. As mentioned above, items used for disguising one's identity are not considered such items. Furthermore, carrying items used for disguising one's identity is not a criminal offense under Section 21 Paragraph 1 Number 15 of the Lower Saxony Assembly Act (NVersG), but rather an administrative offense. According to Section 20 Paragraph 2 Number 5 of the Lower Saxony Assembly Act (NVersG), a criminal offense only occurs if the items used for disguising one's identity are put on and a request from the police regarding these items is disregarded. There was no evidence to suggest that the plaintiff would not remove the items used for disguising one's identity after being asked to do so by the police officers. The fact that the plaintiff did not immediately comply with the request to show his identity card is certainly insufficient to establish this.
Finally, the duration of the curfew until midnight was also unreasonably long. While the defendant initially justified this by stating that the "right-wing" demonstration was registered until 8 p.m., this was true. However, the defendant and the police officers present were aware that, following the ban on this event by the city of Braunschweig, the duration had been limited to the period from noon to 3 p.m. due to an expedited court order. Therefore, there was no justification for keeping counter-demonstrators out of the city center until the end of the day.
For legal clarification, the adjudicating chamber points out the following:
A prohibition of participation under the Assembly Act would also have been unlawful here. According to Section 10 Paragraph 3 of the Lower Saxony Assembly Act (NVersG), the competent authority may prohibit persons from participating in an assembly or exclude them from the assembly if this is essential for enforcing the prohibitions under Sections 3 and 9 of the NVersG. In the case of a measure issued in advance – as here – concrete facts must support the assumption that the person in question will violate one of the prohibitions under Section 3 or Section 9 of the NVersG at the assembly; mere assumptions or general statements are insufficient (Ullrich, loc. cit., Section 10, marginal note 23).
While a violation of the prohibition against disguising oneself under Section 9 Paragraph 2 of the Lower Saxony Assembly Act (NVersG) could have been considered here, since according to its No. 2, even carrying items that, if used, would constitute disguising oneself as defined in No. 1 is prohibited, it is irrelevant whether the black hoodies, scarf, and sunglasses constitute items for disguising oneself. Even if the plaintiff had violated Section 9 Paragraph 2 No. 2 of the NVersG, prohibiting participation in the assembly would not have been essential for enforcing the prohibition against disguising oneself within the meaning of Section 10 Paragraph 3 Sentence 1 of the NVersG. The term "essential" indicates, according to the principle of last resort, that exclusion or a prohibition of participation is only considered if less restrictive measures taken beforehand are insufficient. A schematic exclusion solely on the grounds of the presence of protective equipment or disguise is inadmissible, at least when a violent course of events is not to be expected (Ullrich, aaO, § 10, Rn. 25).
The defendant has not presented any concrete evidence as to why the plaintiff's participation was likely to lead to violence, nor is any such evidence otherwise apparent. The mere fact that the plaintiff carried a black hooded sweatshirt and a scarf does not, in itself, indicate the commission of criminal offenses or a violent outcome of the assembly. Items used for disguising one's identity are not objects intended for committing crimes or typically used in such acts.
Although the plaintiff was still listed in the INPOL database as a "left-wing motivated offender" on June 4, 2011, this fact alone is insufficient to assume that the plaintiff's participation would lead to a violent outcome.
The data from the joint database of the police information system (INPOL) can be entered into the wanted persons database in advance of demonstrations, thus granting state police departments access to the data. During checks, particular attention should then be paid to individuals whose data is stored in the database (see Stuttgart Administrative Court, decision of April 4, 2009 – 11 K 1293/09 –, juris para. 12). Information contained in a security-relevant database is insufficient to establish that there are indications of a violent course of events or the commission of criminal offenses. The database only indicates that the individual in question was under police surveillance and, according to the assessment of an unknown police department, belongs to the "left-wing criminal" spectrum. However, concrete evidence on which this assessment is based is lacking. For a realistic threat assessment, it is necessary to know the events underlying the entry (Stuttgart Administrative Court, ibid., para. 12).
Since the police officers present on June 4, 2011, who issued the order to leave the premises, could not have had precise knowledge of the incident that led to the entry in the record, their required risk assessment had to include the possibility that, based on the specific circumstances, a repetition of this behavior was to be expected. Such indications include, in particular, but not exclusively, the announcement or incitement of the act, the carrying of certain objects that incite or are intended for the commission of an act, or that are known to be used for such an act (Higher Regional Court of Munich, Decision of August 9, 2007, Case No.: 34 Wx 31/07, 34 Wx 031/07 juris, para. 22). This was not the case here. Neither the carrying of items for disguising oneself nor the fact that the plaintiff reluctantly showed his identity card only after repeated requests by the police is sufficient to conclude that criminal offenses were being committed. As a less intrusive measure, the police should therefore have considered, pursuant to Section 10 Paragraph 2 Sentence 3 of the Lower Saxony Assembly Act (NVersG), confiscating only the items used for disguising one's identity.
The decision on costs is based on Section 154 Paragraph 1 of the Administrative Court Procedure Act (VwGO). The decision on provisional enforceability follows from Section 167 Paragraph 2 of the Administrative Court Procedure Act (VwGO) in conjunction with Section 708 No. 11 and Section 711 of the Code of Civil Procedure (ZPO).
The determination of the value in dispute is based on Section 52 Paragraph 2 of the Court Costs Act (GKG) and is guided by the recommendation of the schedule of values in dispute for administrative court proceedings (see NVwZ 2004, 1327 ff., here: II. No. 45.4).
The following is information on legal remedies.
