DECISION
Regarding the previous investigation proceedings
against xxx,
authorized representative: Attorney Sven Adam, Lange Geismarstraße 55, 37073 Göttingen
due to suspicion of a criminal offense under the Assembly Act
Upon the appellant's appeal of 10 September 2014, the decision of the Frankfurt am Main Local Court of 30 July 2014 is amended and the legal dispute is referred to the Frankfurt am Main Administrative Court.
REASONS:
The complaint regarding the right to be heard, or alternatively, the objection filed by the appellant on September 10, 2014, in response to the Chamber's decision of September 3, 2014, was to be reinterpreted as an appeal against the Local Court's failure to refer the case to the competent Administrative Court, since only such an interpretation, as evidenced by the appellant's counsel's statements of grounds dated August 6, 2014, and September 10, 2014, takes into account his legal interests and his actual request. The complaint regarding the right to be heard, or the objection, is inadmissible. It serves the purpose of subsequently granting the right to be heard or correcting other incurable legal defects or serious procedural errors. Such defects have neither been demonstrated nor are apparent. The right to be heard was granted.
The admissible appeal is successful on the merits.
As the Chamber already explained in detail in its decision of 03.9.2014, it considers the administrative legal process pursuant to Section 40 Paragraph 1 Sentence 1 of the Code of Administrative Court Procedure (VwGO) to be open for the present legal dispute, which is why, in view of the Local Court's decision of 1.00.2014 not to grant relief due to the failure to refer the case, it now additionally refers the legal dispute to the competent Administrative Court pursuant to Section 17a Paragraph 2 of the Courts Constitution Act (GVG).
The Chamber maintains its position, with reference to the relevant case law of the Frankfurt am Main Administrative Court (including the partial judgment of May 9, 2014, BeckRS 2014, 51133, and the decision of March 10, 2014, BeckRS 2014, 48806, and most recently the decision of June 3, 2014, file no. 5 K 659/14.F, cited according to juris), that the legality of dual-purpose police measures is at issue here, for which, from an objective standpoint, the protection of the undisturbed course of the assembly was paramount. In the Chamber's view, the only recourse for reviewing such police measures, which are directly related to the freedom of assembly, lies in the administrative courts. For further details, reference is made in full to the reasoning of the Chamber's decision of September 3, 2014.
In addition, reference is made to the corresponding statements of the Administrative Court of Frankfurt am Main in another parallel case (decision of June 3, 2014, file no. 5 K 659/14.F, cited according to juris), in which the Administrative Court again explains that, for the question of jurisdiction, the single set of facts – regardless of whether the legal nature of the deprivation of liberty in dispute objectively changed after the exclusion of the demonstrator from the assembly and transformed from preventive custody into a repressive arrest – cannot be artificially divided and that the Administrative Court must decide the legal dispute pursuant to Section 17 Paragraph 2 Sentence 1 of the Courts Constitution Act (GVG) in conjunction with Section 173 Sentence 1 of the Code of Administrative Court Procedure (VwGO) under all relevant legal aspects.
