Decision
In the administrative dispute proceedings
of xxx,
plaintiff and appellant
Authorized representative:
Attorney Sven Adam,
Lange Geismarstraße 55, 37073 Göttingen
against
the xxx,
defendant and respondent
Regarding
police law,
here: other complaint following a lawsuit
The 3rd Senate of the Thuringian Higher Administrative Court, composed of the presiding judge of the Higher Administrative Court xxx, the judge of the Higher Administrative Court xxx and the judge of the Higher Administrative Court xxx, decided on September 5, 2013:
Upon the plaintiff's appeal, the decision of the Weimar Administrative Court of 19 February 2013 is overturned.
The defendant shall bear the costs of the appeal proceedings.
The appeal to the Federal Administrative Court is not admitted.
REASONS
The appeal, admissible pursuant to Section 17a Paragraph 4 Sentence 3 of the Courts Constitution Act (GVG) in conjunction with Sections 146 Paragraph 1 and 147 of the Code of Administrative Court Procedure (VwGO), is well-founded. The Administrative Court should not have referred the legal dispute to the Heiligenstadt Local Court.
The referral of a legal dispute pursuant to Section 17a Paragraph 2 Sentence 1 of the Courts Constitution Act (GVG) is only required and permissible if the chosen legal avenue is entirely inadmissible, i.e., inadmissible for the claim with all possible grounds for action (Federal Administrative Court, Decision of December 15, 1992 – 5 B 144/91 – Juris, Headnote and Paragraph 2; following it: Higher Administrative Court of North Rhine-Westphalia, Decision of July 7, 2006 – 5 E 585/06 – Juris). Whether a legal basis exists for the claim that can be pursued in the chosen legal avenue must be examined based on the statement of claim and the facts presented to support it (cf. Federal Administrative Court, ibid., Paragraph 3, and Higher Administrative Court of North Rhine-Westphalia, ibid., Paragraph 4).
According to these principles, the referral of the legal dispute to a local court is inadmissible. According to the plaintiff's submissions, the subject of the plaintiff's claims is measures taken for (preventive) public safety following a demonstration and in connection with a subsequent spontaneous assembly, regarding which the parties dispute, among other things, whether or not the assembly was prohibited. The plaintiff argues that the deprivation of liberty associated with the "kettling" of the participants in the spontaneous assembly by police officers and the subsequent recording of their personal details were unlawful. The administrative courts have jurisdiction pursuant to Section 40 Paragraph 1 of the Code of Administrative Court Procedure (VwGO), and the claim is admissible as a so-called declaratory judgment action pursuant to Section 113 Paragraph 1 Sentence 4 of the VwGO. The defendant maintains that the administrative legal process is closed because the police officers acted repressively, namely for the purpose of prosecuting regulatory offenses (participation in a prohibited assembly, Section 29 Paragraph 1 No. 1 of the Assembly Act), so that, according to Section 23 Paragraph 1 of the Introductory Act to the Courts Constitution Act, the jurisdiction of the ordinary courts is established.
Notwithstanding some factual issues that are disputed in detail, a referral to the courts is precluded here not only because of the plaintiff's submissions – which are decisive according to the principles set out above – but also because of the defendant's submissions: Even if the (spontaneous) assembly had been prohibited, and even if the participants contained within it had been aware of this, it is by no means inconceivable that the "kettling" and the identification checks nevertheless constitute, as the plaintiff argues, (simultaneously) measures to avert danger, i.e., measures serving preventive policing purposes (see also Higher Administrative Court of North Rhine-Westphalia, loc. cit., Juris, para. 7), and with regard to which recourse to the administrative courts is available pursuant to Section 40 Paragraph 1 Sentence 1 of the Code of Administrative Court Procedure (see also the Senate's decision of May 11, 1999 – 3 VO 986/96 – DÖV regarding the jurisdiction of the administrative courts for determining the unlawfulness of measures involving deprivation of liberty). 1999, 879; Juris).
If, therefore, a referral to the local court is not possible, the administrative court will have to examine the claim in the further proceedings from all relevant legal perspectives (cf. also OVG NRW, aa 0., Juris, Rdn. 4 a. E.).
The decision on costs follows from Section 154 Paragraph 1 of the Administrative Court Procedure Act (VwGO).
A determination of the value in dispute is not required because no court fees are charged in the present case (see No. 5502 of the Schedule of Costs [Annex 1 to Section 3 GKG]).
The appeal to the Federal Administrative Court is inadmissible; the requirements for this (cf. Section 17a Paragraph 4 Sentences 4 and 5 of the Courts Constitution Act) are not met.
Note:
This decision is final and cannot be appealed (§ 17a para. 4 sentence 4 GVG).
