JUDGMENT
In the administrative law dispute
of Mr. xxx,
– Plaintiff –
Attorney: Sven Adam, Lange Geismarstraße 55,
37073 Göttingen,
against
the country xxx,
– defendant –
because of police law
The 1st Chamber of the Administrative Court of Trier, based on the oral hearing of October 7, 2014, in which xxx
participated, has
ruled as follows:
It is determined that the decision of July 17, 2013, 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 110% of the costs to be assessed, unless the plaintiff provides security in the same amount before enforcement.
FACTS OF THE ACT
The plaintiff is challenging an entry and stay ban issued against him on July 17, 2013, for the match between SV Eintracht Trier 05 and KSV Hessen Kassel, which was to take place in Trier on July 27, 2013.
These two clubs had already met on April 5, 2013. During that match, violent clashes broke out involving fans of KSV Hessen Kassel. Police investigations into the events of April 5, 2013, in Trier revealed that Kassel fans attempted to reach the section containing the home supporters of SV Eintracht Trier by kicking in a security gate and eventually managing to open it. A large group from Kassel then entered the adjacent section after the gate was opened and provoked the home fans with gestures and demands. Furthermore, immediately after the final whistle at approximately 8:50 p.m., two dozen supporters from the away section stormed the pitch and sought confrontation. Trier fans also ran onto the field, and a brawl ensued in which three members of the security team were injured. After leaving the stadium, the away fans continued to behave aggressively. Some of them masked themselves and a few lit fireworks.
Following the match, criminal proceedings were initiated against the plaintiff for breach of the peace, property damage, and assault. Chief Inspector xxx, an officer with expertise in the local scene from the Kassel police, stated in his investigative report of May 17, 2013, that he had been able to identify the plaintiff based on video footage from the stadium surveillance system and several photographs. The plaintiff was known to the officer and recognizable by his distinctive red jacket and black hood.
The criminal investigation against the plaintiff was discontinued by the Kassel Public Prosecutor's Office on March 4, 2014, pursuant to Section 170 Paragraph 2 of the German Code of Criminal Procedure (StPO), as no significant contribution to the offense beyond simply entering the playing field was apparent. No formal complaint regarding Section 123 of the German Criminal Code (StGB) was filed.
In connection with the sporting event between SV Eintracht Trier 05 and KSV Hessen Kassel on July 27, 2013, a ban on entering and remaining in the area was issued against the plaintiff on July 17, 2013. This order prohibited him from entering and remaining within the entire city limits of Trier on July 27, 2013. A fine of €500 was threatened in the event of non-compliance. At the same time, the immediate enforcement of the order was ordered. This was deemed necessary in the public interest.
The Trier police department explained that they expected a large number of problematic fans to attend the aforementioned match between the clubs. Their typical behavior regularly leads to criminal offenses under the penal code, such as property damage, breach of the peace, and assault. Furthermore, they often recklessly damage property and significantly infringe upon the physical safety of uninvolved third parties. An extremely hostile atmosphere has developed within this problematic fan scene in recent years. Therefore, it is currently assumed that the majority of these fans (approximately 120 individuals) will be present in Trier on match day. Given this mobilization, it must be assumed that an uncontrolled clash between the rival fan groups will inevitably result in violent physical confrontations. Furthermore, based on past experience, it is to be expected that, prior to the so-called derbies, problematic fans will arrange physical confrontations, so-called "third-location clashes," in the lead-up to the matches. These clashes typically take place at locations not directly in the stadium area or the city center. For this reason, a ban on loitering in the entire city area should be imposed.
According to police findings, the plaintiff is a member of the KSV Hessen Kassel fan scene, a group known to the police and classified as prone to violence. Based on current information, a total of three investigations have been initiated against the plaintiff for various offenses. All of these investigations are directly related to football matches and the aforementioned Kassel fan scene. He also has two entries in the police wanted persons database as a "violent sports offender." Due to this behavior, particularly at the last football match between the two teams on April 5, 2013, at 7:00 p.m. in Trier, there is a justified prediction that the plaintiff will use the aforementioned upcoming football match between SV Eintracht Trier and KSV Hessen Kassel to commit further offenses related to the match. In light of this risk assessment, a ban on entering the area, encompassing the specified geographical and temporal scope, is necessary. This ban is the appropriate, necessary, and proportionate means to prevent the plaintiff from committing further offenses.
The plaintiff filed an objection to this order on July 25, 2013. In his objection, he requested that his conduct, which allegedly justified the prognosis, be individualized and specified, in particular by submitting the police incident report along with video footage from April 5, 2013.
On July 26, 2013, the plaintiff filed an application for preliminary legal protection with the Trier Administrative Court. In his application, he argued that both the original order and the order for immediate enforcement lacked sufficient justification. They consisted merely of formulaic statements. Furthermore, he asserted that the corresponding individual threat situation, as defined in Section 13 Paragraph 3 of the Police and Public Order Act (POG), was lacking. He maintained that concrete, factual evidence, sufficiently recent to establish a threat situation, was required. Therefore, specific and verifiable events were needed that could explicitly constitute a danger to him personally. He further argued that the alleged investigation into suspected serious breach of the peace was entirely without merit.
The defendant stated that facts had been established that justified the assumption that the plaintiff would commit a crime. This was based on the fact that, according to the findings of the police officers investigating in Kassel, the plaintiff could be clearly identified as the perpetrator of a breach of the peace in videos and photographs. On April 5, 2013, the plaintiff was part of a group of KSV Hessen Kassel hooligans who, at approximately 8:40 p.m., forcibly opened and stormed a barrier gate of the away fans' section in the Moselstadion in Trier in order to gain access to the Trier fan section. Considerable damage was caused. After the match, a physical altercation ensued with Trier hooligans. Extending the operation to the entire city was necessary to effectively counter the risk of prearranged physical confrontations following the football match and outside the stadium.
The Trier Administrative Court, in its decision of July 26, 2013, file number 1 L 957/13.TR, rejected the application, stating that the facts presented justified the assumption that the plaintiff would commit further offenses. A pending criminal investigation in connection with a football match, as well as an entry as a "violent sports offender" and a stadium ban issued by the German Football Association (DFB), were among the significant external facts relevant under Section 13 Paragraph 3 of the Police Law (POG). However, the allegations and entries could not be examined through evidence due to the cursory review within the framework of the preliminary injunction proceedings. The plaintiff had not credibly demonstrated any circumstances that would call the predictive assessment into question. In weighing the competing interests, the prevention of the risk was deemed preferable to the plaintiff's interest in participating in the event.
The Higher Administrative Court of Rhineland-Palatinate dismissed the appeal against this decision in its ruling of July 26, 2013 (case number 7 B 10771/13.0VG). The Higher Administrative Court stated that the prospects of success for the plaintiff's objection were uncertain. A certain probability that the feared crime would actually be committed was required. Therefore, it could not be based solely on assumptions, but rather on verifiable facts. The prognosis had to focus on the individual person and their behavior. Relevant facts would exist, for example, if the recipient had previously come to the attention of the authorities in the same area or for a comparable reason by committing offenses, and if, based on the specific circumstances, a repetition was to be expected. The plaintiff's inclusion in the police database "Violent Sports Offenders" was not, in itself, a significant fact, but merely provided grounds for establishing specific facts. The decisive factor for the risk assessment is solely the fact that led to the plaintiff's inclusion in the aforementioned database. Membership in the group of problem fans alone is too vague to draw any sound conclusions. However, the relevant question in this case—whether and to what extent the plaintiff acted violently or otherwise in a criminally relevant manner at the football match between KSV Hessen Kassel and SV Eintracht Trier, which was last held in Trier on April 5, 2013—requires further clarification. The only clearly demonstrable fact is that he was a spectator at the aforementioned football match as a supporter of KSV Hessen Kassel. Furthermore, the question arises whether the ban should not have been limited to the stadium in Trier and its immediate surroundings.
The plaintiff filed suit on May 5, 2014.
He requests
a ruling that the entry and residence ban imposed by the defendant on July 17, 2013, for the entire city area of Trier, including its districts and railway stations there, for the entire day of July 27, 2013, was unlawful.
The defendant requests
that the action be dismissed.
He bases his argument on the findings of the police officers investigating in Kassel, who had clearly identified the plaintiff as the perpetrator of a breach of the peace based on videos and photos. The investigating officer, Chief Inspector xxx, had reviewed the available video material – recordings from the surveillance camera in the stadium area.
The court heard evidence regarding the plaintiff's conduct in connection with the football match between SV Eintracht Trier and KSV Hessen Kassel on April 5, 2013, by examining witnesses POK xxx and POK xxx from the Kassel Police Headquarters, with the aid of photographic evidence. For the results of the taking of evidence, reference is made to the minutes of the public hearing of October 7, 2014.
For further details of the facts and the legal arguments, reference is made to the written submissions filed with the court, the defendant's administrative files, the prosecutorial investigation files of the Kassel Public Prosecutor's Office 4760 Js 4283/14 Jug (including a video CD) and 4760 Js 9602/14 Jug, as well as the Trier Public Prosecutor's Office 8027 Js 24645/13. These, like the court files 1 L 957/13.TR and 7 B 10771/13.OVG, were available to the court and were the subject of the oral proceedings.
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 Code of Administrative Court Procedure (VwGO). Although no preliminary proceedings were conducted, these are unnecessary in the case of the administrative act becoming moot – as is the case here after the filing of the objection – since the annulment of the order sought by the objection is no longer possible and it is not the task of the administration to make a binding determination of the illegality of a mooted administrative act (cf. Federal Administrative Court, Judgment of February 9, 1967 – IC 49.64 –, BVerwGE 26, 161).
The plaintiff, as the addressee of the order restricting his fundamental right to freedom of movement (Article 11 of the Basic Law – GG), is entitled to bring an action (§ 42 para. 2 VwGO) and also has a legitimate interest in a declaration of illegality because there is a risk of recurrence. The plaintiff remains a member of the ultra fan scene. It is to be expected that the defendant will again issue a ban on the plaintiff being present at matches of SV Eintracht Trier and KSV Hessen Kassel.
The action for a declaratory judgment is also well-founded. The challenged administrative act was unlawful at the relevant time of the administrative decision and infringes the plaintiff's rights, § 113 para. 1 sentence 4 VwGO.
The legal basis for the prohibition order is Section 13 Paragraph 3 Sentence 1 of the Police and Public Order Act (POG) as amended on November 10, 1993 (GVBI. p. 595). According to this provision, the police may prohibit a person from entering or remaining in a specific location or area within a municipality or municipal territory if there are grounds to believe that this person will commit a crime there. The prohibition order must be limited in time and space to the extent necessary to prevent the crime and may not include access to the residence of the person concerned (Sentence 2).
In formal terms, the issuing authority must, above all, comply with the requirement to state reasons pursuant to Section 39 Paragraph 1 of the Administrative Procedure Act (VwVfG). This requires that the administrative act contain the essential factual and legal reasons that led the authority to its decision (Kopp/Ramsauer, VwVfG, 14th edition 2013, Section 39, marginal note 2). The reasoning must, in principle, be based on the specific case and may not be limited to general, formulaic statements. The affected parties must be enabled to make a substantive decision regarding their right to legal recourse (Kopp/Ramsauer, VwVfG, Section 39, marginal note 19). A vague statement of reasons is insufficient.
Whether the justification given by the defendant, which mainly refers to a general reference to the plaintiff's conduct on April 5, 2013, without specifying and individualizing his conduct and the offenses he is accused of, still meets these requirements can ultimately remain undecided, since the order is also unlawful in substantive terms.
The requirements of Section 13 Paragraph 3 of the Police Law (POG) are not met in this case. According to the contested decision, the facts justifying the assumption that the plaintiff will commit criminal offenses within the city limits of Trier and at the specifically identified locations have not been sufficiently and legally presented.
When assessing potential danger ex ante from the perspective of a reasonable police officer, it must be considered whether there are facts that justify the assumption that the person is inclined to commit a crime and whether the circumstances, in terms of location and time, are such that they are particularly conducive to criminal activity (see Administrative Court Neustadt aW, judgment of July 15, 2014 – 5 K 996/13.NW –). The requirement that there must be "facts that justify the assumption" that the person will commit further offenses implies a lower degree of probability of future criminal activity than would be the case, for example, with a required present danger. These facts also include circumstantial evidence, provided there is a discernible connection to a criminally relevant event. Both an ongoing criminal investigation in connection with a football match and a record as a "violent sports offender" are among the significant external facts that are relevant under Section 13 Paragraph 3 of the Police Act. However, the greater and more serious the potential harm, the lower the threshold for the probability of its occurrence (Federal Administrative Court, Judgment of February 26, 1974 – IC 31.72 –, BVerwGE 45, 51). Furthermore, the risk assessment must relate to the specific individual case (cf. Higher Administrative Court of Bremen, decision of February 10, 2010 – 1 B 30/10 – regarding the file “Violent Sports Offenders”, Higher Administrative Court of Baden-Württemberg, decision of October 4, 2003 – 1 F 1963/02VG “Persons belonging to the so-called ‘punk scene’”, Administrative Court of Hamburg, judgment of October 2, 2012 – 5 K 1236/11 – regarding the police database “Left-Wing Motivated Offender”). It is qualified insofar as it must relate to a criminal offense.
The core issue here is whether the defendant, based on the events of April 5, 2013, established facts that justify the assumption that the plaintiff would commit (further) criminal offenses during the game on July 27, 2013.
However, the investigation of the facts conducted by the defendant did not allow for such a risk assessment. There was insufficient evidence to suggest that the plaintiff was likely to commit criminal offenses.
The contested decision reveals that, after more general statements about the ultra fan scene, the defendant bases his ban on the plaintiff's presence on the following facts: According to police information, the plaintiff is a member of the KSV Hessen Kassel's known and violence-prone problem fan scene. A total of three investigations have been initiated against him for various offenses directly related to football matches. He has two prior convictions as a "violent sports offender." Based on his past behavior, particularly at the last football match between the two teams on April 5, 2013, at 7 p.m. in Trier, there is a justified prediction that he will use the upcoming match to commit further offenses.
In the expedited proceedings, the defendant supplemented his reasoning by stating that on April 5, 2013, the plaintiff had been part of a group of KSV Kassel hooligans who, at approximately 8:40 p.m., had forcibly opened and stormed a barrier gate of the away fans' section in the Moselstadion in Trier in order to gain access to the Trier fan area. Considerable damage had occurred.
Regarding the individual pieces of information supporting the defendant's risk assessment, the following should be said:
Facts are events or conditions in the past or present that have become perceptible and are therefore accessible to proof. This requires concrete, verifiable events. Inclusion in the police database "Violent Sports Offenders" alone is not such an event, but at best an indication of such events. It gives rise to the establishment of concrete facts, but cannot replace them (Bremen Higher Administrative Court, decision of February 10, 2010 - 1 B 30/10 -, juris).
Even the justified assumption that the applicant is an active member of the ultra scene was not sufficient in itself to justify the ban on entering the premises. However, the relevant factor for the prognosis under Section 13 Paragraph 3 of the Police Law (POG) is the factual situation underlying the investigation by the Kassel Public Prosecutor's Office – case numbers 4760 Js 4283/14 Jug and 4760 Js 9602/14 Jug. The following emerges from the case file, as well as from the stadium surveillance video: At approximately 8:40 p.m., a group of problematic fans of KSV Kassel forcibly opened a barrier gate of the away fans' section in the Moselstadion in Trier in order to gain access to the Trier fan section. Police Officer xxx identified the plaintiff, as also recorded in the investigation report, as part of this group based on his red jacket. No specific act was identified. He was investigated, among other things, for breach of the peace. The established facts clearly offered the investigating authorities no grounds for further investigation, so the investigation was discontinued pursuant to Section 170 Paragraph 2 of the Code of Criminal Procedure. However, the discontinuation only occurred after the issuance of the contested order.
In its decision of July 26, 2013 – 7 B 10771/13.OVG – the Higher Administrative Court of Koblenz points out that the vague allegation of an offense made in the decision requires further clarification. Within the framework of the criminal prosecution reservation of Article 11 Paragraph 2 of the Basic Law, it is necessary that the acting authority base its required prognosis on a sound factual basis. There must be compelling factual indications that a criminal offense is intended to be committed (Administrative Court of Stuttgart, decision of June 8, 2006 – 5 K 2106/06 –, para. 12, juris).
In the oral proceedings, Police Officer xxx identified the plaintiff in the video as part of the fan group in the stadium based on his red jacket, his build, his body language, and his profile. As an officer familiar with the scene, he has known the plaintiff for years. He also recognizes the plaintiff's red jacket from previous matches. This is confirmed by witness Police Officer xxx. Independently of the video, he can describe the plaintiff's behavior at football matches in detail (motivational clapping, jumping, broad-shouldered stance) and, despite the poor quality of the footage, identify the plaintiff in the video based on these various characteristics. The described behavior is also present in the video. Furthermore, witness xxx recognizes other problematic fans, including the plaintiff, in the footage, even when they are not filmed head-on. This demonstrates a good knowledge of the scene and the individuals involved, so the court is convinced of the plaintiff's identification by witness Police Officer xxx. The video shows that a group forcibly opened the gate to the so-called buffer zone at approximately 8:35 p.m. The plaintiff was not involved in this act; however, the video shows him clapping his hands in a motivating manner before the group moved towards the gate. He also stepped into the buffer zone himself after the gate had already been opened.
The defendant based the police order on the investigation without any scrutiny; even in the court proceedings, the defendant maintains that the photographic and video material was never part of the administrative file. No further specification of the plaintiff's actions was provided—the prognosis must focus on the individual and their conduct—nor was the degree of their involvement in the aforementioned breach of the peace. The additional offenses of assault and property damage cited in the investigation were no longer mentioned. Nor was a more detailed investigation of the alleged conduct, such as the one now undertaken in the oral hearing, conducted. Consequently, no conclusive factual indications of an impending criminal offense existed at that time.
The findings made, namely the mere existence of an investigation, are insufficient to justify the ban on entering the premises. The evidence presented shows that, firstly, the defendant could have conducted a more thorough investigation of the facts by reviewing the video footage and questioning Police Officer xxx. Secondly, such investigations would have revealed that Police Officer xxx's identification of the plaintiff is plausible and credible, but that the plaintiff's potential contribution to a breach of the peace is so minor that it cannot support the resulting prognosis without more detailed and in-depth justification. Further evidence of the insufficient factual basis lies in the Kassel Public Prosecutor's Office's decision to discontinue proceedings pursuant to Section 170 Paragraph 2 of the Code of Criminal Procedure, which stated briefly that no significant contribution beyond entering the playing field was apparent. Regarding Section 123 of the Criminal Code, a formal complaint was lacking. Even though the order of March 5, 2014, was not available at the time of the ex ante prognosis, it can still provide an indication of the seriousness of the alleged offense. This is especially true because the review of the video material, which was already available at that time, readily confirmed the prosecution's assessment during the oral proceedings. Witness POK xxx also did not observe any acts of violence on the part of the plaintiff, nor was there any reason for him to write an incident report based on his observations during this match, particularly given his position in the buffer zone that was initially entered. This information—the video recording and POK xxx's follow-up question—was available to the defendant at the time of his prognosis decision and was easily assessable. In light of this finding, the plaintiff's objection to the inadmissibility of POK xxx's testimony is unfounded. Furthermore, there is no apparent reason why the testimony should be subject to an exclusionary rule altogether. The established facts therefore do not justify the risk assessment made; the requirements of Section 13 Paragraph 3 POG are thus not met.
Furthermore, the proper exercise of discretion under Section 40 of the Administrative Procedure Act (VwVfG), particularly when dealing with such a minor suspicion of a criminal offense, requires a justification that goes beyond a mere reference to proportionality. By basing its decision solely on the existence of an investigation without further clarification, the defendant failed to fully investigate the facts. For this reason alone, its discretionary decision is flawed (Kopp/Schenke, VwGO, 20th edition 2014, Section 114, para. 12). If a ban on entering a certain area is based on a weak factual foundation and only a minor allegation of wrongdoing, the discretionary considerations cannot simply be limited to declaring the chosen measure suitable, necessary, and appropriate. Rather, this justification reveals a deficiency in the investigation.
This deficiency could not be remedied by the court proceedings. The subsequent submission of reasons is only permissible within the framework of Section 114 Sentence 2 of the Administrative Court Procedure Act (VwGO), insofar as it concerns supplementation (Kopp/Ramsauer, VwVfG § 39 Rn. 3). However, supplementation of discretionary considerations is not possible if the legal dispute concerning the annulment of an administrative act – as in this case – has already been settled on the merits, the defendant authority no longer attributes any legal effects to the administrative act, and the action is directed at a declaratory judgment (cf. Higher Administrative Court of North Rhine-Westphalia, decision of February 20, 2001 – 18 A 1520/92 –, juris; Kopp/Schenke, § 113 Rn. 73). After the occurrence of the event rendering the matter moot, a supplement to discretionary considerations pursuant to Section 114 Sentence 2 of the Administrative Court Procedure Act (VwGO) is naturally precluded, because the supplement to discretion necessarily presupposes a still effective administrative act to which it can refer and which, pursuant to Section 43 Paragraph 2 of the Administrative Procedure Act (VwVfG), is lacking after the mooting of the administrative act (Higher Administrative Court of Bautzen, Judgment of 01.09.2008 – 2 B 461/07).
Accordingly, a supplement to the discretionary considerations pursuant to Section 114 Sentence 2 of the Code of Administrative Court Procedure (VwGO) could only have been made here until the administrative act was completed on July 27, 2013. However, the defendant did not make any supplements to the discretionary considerations during this period. In particular, the written submission of July 26, 2013, contains no relevant arguments in this regard. Furthermore, the admissibility of subsequently adding discretionary considerations is determined by substantive law and administrative procedural law. Section 114 Sentence 2 VwGO merely regulates the conditions under which such amended discretionary considerations must be taken into account in the proceedings (Federal Administrative Court, Judgment of June 20, 2013 – 8 C 46/12 –, BVerwGE 147, 81). However, any subsequent addition of discretionary considerations must be sufficiently specific, Section 37 Paragraph 1 of the Administrative Procedure Act (VwVfG). If the amendment is declared only during ongoing administrative proceedings, the authority must make it unequivocally clear that this is not merely a procedural defense, but an amendment to the administrative act itself. Furthermore, it must be clear which of the previous considerations remain valid and which are rendered obsolete by the new considerations. Otherwise, the affected party would be unable to mount a proper legal defense. This would be incompatible with the guarantee of effective legal protection under Article 19 Paragraph 4 of the Basic Law (Federal Administrative Court, Judgment of June 20, 2013 – 8 C 46/12 –, BVerwGE 147, 81). The defendant's submissions in the proceedings also fail to meet these requirements.
The decision on costs is based on Section 154 Paragraph 1 of the Administrative Court Procedure Act (VwGO). The decision on provisional enforceability, which was only required with regard to the cost decision, since the declaratory judgment action follows the action for annulment, is based on Section 167 Paragraph 2 of the Administrative Court Procedure Act (VwGO) in conjunction with Sections 708 No. 11 and 711 of the Code of Civil Procedure (ZPO).
There are no grounds for granting leave to appeal (§§ 124, 124a VwGO).
The following is information on legal remedies.
