DECISION
In the administrative court proceedings
of xxx,
plaintiff,
represented by: Attorney Sven Adam, Lange Geismarstraße 55, 37073 Göttingen,
against
the xxx,
defendants,
Re: Police law – identification, search of a vehicle;
here: application for leave to appeal
The 5th Senate of the
Higher Administrative Court for the State of North Rhine-Westphalia
on December 18, 2012
by
the judge at the Higher Administrative Court xxx,
the judge at the Higher Administrative Court xxx,
the female judge at the Higher Administrative Court xxx,
decided:
The plaintiff's appeal against the judgment of the Düsseldorf Administrative Court issued on the basis of the oral hearing of July 13, 2011, is admitted.
The allocation of costs for the application procedure remains subject to the decision on the appeal.
REASONS
The appeal is admissible pursuant to Section 124 Paragraph 2 No. 1 of the Code of Administrative Court Procedure (VwGO) because the grounds presented by the plaintiff in due time raise serious doubts as to the correctness of the contested judgment. The plaintiff's submissions convincingly challenge the Administrative Court's assumption underlying the contested judgment that the action for a declaratory judgment that the identity check and search of the plaintiff's vehicle on March 28, 2010, was unlawful is inadmissible due to a lack of legitimate interest in a declaratory judgment.
Taking into account the new factual submissions in the appeal proceedings, there is considerable support for the conclusion that a legitimate interest in a declaratory judgment exists, at least from the perspective of the risk of recurrence. The plaintiff has now expressly asserted that, as part of his political activism against right-wing extremism, he attends protests against marches simultaneously held by right-wing extremists. He will therefore likely be subjected to similar police measures in North Rhine-Westphalia in the future when traveling to such events. The NPD has already registered another demonstration in Dortmund for September 3, 2011.
The argument that the situation in which a demonstrator is confronted with police measures can only ever be assessed on a case-by-case basis is unlikely to counter the risk of recurrence. The plaintiff raises serious doubts about this objection of the Administrative Court by arguing that, considering the deterrent effect that unlawful police checks have on the future exercise of the fundamental right of assembly, his mere intention to participate in future assemblies that, by their nature, could lead to the same legal problems regarding travel to the assembly and thus to the same assessment of the legality of related measures should suffice.
The following is information on legal remedies.
