DECISION
In the administrative matter
the xxx,
plaintiff and appellant,
Legal representative: Attorney Adam,
Lange Geismarstraße 55, 37073 Göttingen,
against
the xxx,
defendant and respondent,
Subject of the dispute: Determination of the illegality of police measures
– Referral –
The 11th Senate of the Higher Administrative Court of Lower Saxony decided on November 8, 2013:
Upon the plaintiff's appeal, the decision of the Administrative Court of Hanover – 10th Chamber – of 18 September 2013 is overturned.
The defendant bears the costs of the appeal proceedings. Court fees are not charged.
Further appeal is not permitted.
REASONS
The plaintiff's appeal against the decision of the Administrative Court is successful.
The plaintiff seeks a declaratory judgment that the recording of her personal details and the subsequent identification procedures carried out on June 2, 2012, in the form of individual filming of her person, were unlawful. On June 2, 2012, the right-wing rally "Day of German Future" and counter-demonstrations took place in Hamburg. The plaintiff, along with other participants in the rally, was returning from a counter-demonstration. The measures in question were carried out at the Uelzen train station by officers of the Federal Police.
The Administrative Court wrongly referred the legal dispute to the Lüneburg Local Court in the contested decision. According to Section 40 Paragraph 1 Sentence 1 of the Code of Administrative Court Procedure (VwGO), the administrative courts have jurisdiction in the present case because the subject matter of the dispute falls (also) under public law. This provision stipulates that the administrative courts have jurisdiction in all non-constitutional public law disputes, unless the disputes are expressly assigned to another court by federal law. If the police are acting to avert danger, the administrative courts have jurisdiction. In contrast, the criminal courts have jurisdiction for reviewing criminal prosecution measures that constitute administrative acts of the judiciary, pursuant to Section 23 Paragraph 1 of the Introductory Act to the Code of Criminal Procedure (EGGVG) or, by analogy, Section 98 Paragraph 2 of the Code of Criminal Procedure (StPO).
The police measures at issue here are among the so-called dual-purpose measures of the police. These are actions that cannot be readily classified as either measures for preventing danger or for law enforcement, because they could have been carried out under both police law and the Code of Criminal Procedure, in accordance with the relevant legal provisions. According to the prevailing case law, the appropriate legal recourse for such measures is determined by whether the reason or objective of the police intervention, and if so, its primary focus, served either the prevention of danger or the enforcement of a crime. The decisive factor in distinguishing between the two areas of responsibility is how the specific facts would appear to a reasonable citizen in the position of the person concerned, from a natural perspective (Federal Administrative Court, Judgment of 3 December 1974 – BVerwG IC 11.73 –, DVBl. 1975, 581, juris, para. 24; Higher Administrative Court of Baden-Württemberg, Judgment of 14 December 2010 – 1 S 38/10 NVwZ-RR 2011, 231, juris, para. 16; Higher Administrative Court of Bavaria, Judgment of 5 November 2009 – 10 C 09.2122 –, BayVBI. 2010, 220, juris, para. 12). The facts of the case must generally be considered as a whole, unless individual parts of the sequence of events are objectively separable. If the police have forwarded the investigation to the public prosecutor's office or the local court, or have acted on the instructions of the public prosecutor's office, there can be no reasonable doubt as to the procedural nature of their intervention. A measure which, based on the overall impression, is aimed at investigating or otherwise prosecuting a criminal offense is not exempt from the review of the ordinary courts under Sections 23 et seq. of the Introductory Act to the Code of Criminal Procedure (EGGVG) simply because the police investigations may also have prevented future violations of public safety (Federal Administrative Court, Judgment of December 3, 1974 – BVerwG IC 11.73 –, loc. cit.).
In the present case, it is not possible to clearly determine, based on these criteria, whether the police acted repressively or preventively.
The plaintiff argued that no legal basis for the police action had been provided to her, and that the group she was part of had behaved peacefully. She maintained that the entire police action on the platform in Uelzen, from the beginning of the cordoning off of the area until her removal, appeared to her to be a package of measures taken to avert danger. According to the defendant, the police based the identification and filming of the individuals on both Section 163b of the German Code of Criminal Procedure (StPO) and Section 23 Paragraph 1 of the Federal Police Act (BPoIG). This is evident from the report of Chief Inspector xxx dated July 11, 2012, who led the operation and ordered the identification of the 41 left-wing demonstrators remaining on the platform, including the plaintiff. In his statement, he explains the dual purpose of the measures, stating that, according to Section 163b of the Code of Criminal Procedure, the perpetrator(s) responsible for the bottle throwing and other offenses in Hamburg were to be identified, and according to Section 23 Paragraph 1 of the Federal Police Act, given the risk of renewed clashes between left-wing and right-wing demonstrators and further anticipated offenses, these measures were intended to prevent such clashes. This was also communicated to the group several times via megaphone by Chief Inspector xxx. In contrast, Chief Inspector xxx's statement of June 14, 2012, that repressive identity checks were carried out on 41 separated individuals on suspicion of committing offenses under Sections 125 and 224 of the Criminal Code, must be considered incomplete, at the very least, in light of the report by the officer in charge, Chief Inspector xxx, who issued the contested order. This statement cannot be considered decisive for the necessary classification of the measures from the objective perspective of an affected individual.
To the extent that the defendant has asserted that the focus of the police action was likely repressive, this was not clearly apparent to the plaintiff upon a reasonable assessment of the facts. It must be considered that the police can base their actions on various legal grounds and are not required to decide at the scene whether they are acting exclusively or primarily preventively or repressively. There is no concrete evidence here that the plaintiff was given the impression by the police officers present that the implementation of the police-ordered measures served solely or primarily the purpose of criminal prosecution. Nor is it otherwise apparent from which circumstances the plaintiff should have drawn this conclusion. Apparently, no criminal investigation has been initiated against the plaintiff. It also cannot be established that, from an objective standpoint, a preventive policing purpose for the measure was no longer conceivable after the departure of the right-wing demonstrators. Temporary orders to leave Uelzen train station were issued against the 41 individuals located on the tracks, thus constituting measures to avert danger. According to the report of the incident commander, Chief Inspector xxx, these orders were intended to allow for a search of the station for any right-wing demonstrators who might have remained there. As the defendant's representative reportedly explained in the oral proceedings before the Administrative Court, based on the plaintiff's uncontested testimony, the identification process also served to ensure compliance with the orders and was therefore directly related to a measure to avert danger. It cannot, therefore, be assumed that the plaintiff's primary concern was clearly criminal prosecution.
In such a case, where the reason for the police intervention or its main focus is not unequivocally clear to the person concerned from an objective standpoint, but where a preventive policing legal basis is (at least also) conceivable for the police measure, the administrative legal process is available (see also: Higher Administrative Court of North Rhine-Westphalia, Decision of January 9, 2012 – 5 E 251/11 –, juris, para. 16; similarly, in effect: Higher Administrative Court of North Rhine-Westphalia, Decision of July 7, 2006 – 5 E 585/06 –, juris, para. 4; Higher Administrative Court of Thuringia, Decision of September 5, 2013 – 1 K 121/12 –, Vnb). The administrative court seized of the matter decides the legal dispute pursuant to Section 17 Paragraph 2 Sentence 1 of the Courts Constitution Act (GVG) under all relevant legal aspects. The comprehensive review ordered as a result therefore also extends to legal aspects for which there would otherwise be another legal avenue.
The decision on costs is based on Section 154 Paragraph 1 of the Administrative Court Procedure Act (VwGO), Section 1 of the Court Costs Act (GKG) in conjunction with No. 5502 of Annex 1 to Section 3 Paragraph 2 of the Court Costs Act (GKG). The provision of Section 17b Paragraph 2 Sentence 1 of the Courts Constitution Act (GVG), according to which, in the event of the referral of the legal dispute to another court, the costs in the proceedings before the court initially seized are treated as part of the costs before the court to which the legal dispute was referred, cannot be applied to the costs of an appeal proceeding (Kopp/Schenke, VwGO, 18th edition, Appendix to Section 41, marginal note 37 with further references).
The further appeal is inadmissible because there are no grounds for appeal within the meaning of Section 17a Paragraph 4 Sentence 5 of the Courts Constitution Act (GVG). Therefore, this decision is final and not subject to appeal (Section 17a Paragraph 4 Sentence 4 GVG).
