DECISION
In the determination process
xxx,
legal representative:
Attorney Sven Adam
Lange Geismarstraße 55, 37073 Göttingen
against
xxx,
The Frankfurt am Main Regional Court – 28th Large Criminal Chamber – decided on November 5th, 2014:
The decision of the Frankfurt am Main District Court of July 30, 2014 is revoked and the matter is referred back to the Frankfurt am Main District Court for a decision on the matter.
The costs of the procedure and the necessary expenses are borne by the state treasury.
REASONS
I.
The applicant took part in the demonstration approved for the period from 10 a.m. to 6 p.m. on June 1, 2013 with the theme “European solidarity against the ECB and Troika crisis regime” in Frankfurt am Main.
At around 12.40 p.m., the overall police operations manager is said to have made the decision to stop so-called “problem groups” by drawing in two police lines. This decision was implemented at 12:49 p.m., with a total of 943 people being surrounded for identification purposes.
In a letter dated June 17, 2013, the applicant applied to the Frankfurt am Main district court to determine that the deprivation of liberty carried out by officials of the state of Hesse on June 1, 2013 was unlawful. In the justification for the application, reference was made to Section 32 HSOG.
The Frankfurt am Main district court rejected the application as inadmissible in a decision dated July 30, 2014. It justified the decision by saying that the measure carried out was to be classified as repressive and that only a court decision could be requested in accordance with Section 98 Paragraph 2 of the Code of Criminal Procedure. The application for a declaratory judgment is therefore inadmissible.
The applicant appeals against this decision in a complaint dated August 6, 2014, received at the Frankfurt am Main district court on the same day.
II.
The complaint is admissible and, to the extent apparent from the operative part, also justified.
In this case, the chamber considers legal recourse to the ordinary courts to be inadmissible. Rather, in accordance with Section 40 Paragraph 1 VwGO, administrative legal proceedings are opened.
According to Section 40 Paragraph 1 VwGO, the administrative legal process is available in all public law disputes of a non-constitutional nature, unless there is a special assignment to another court. The purpose of the challenged police measure is crucial for determining the legal course of action. The contested measure of deprivation of liberty by the police officers of the state of Hesse on June 1, 2013 is to be classified as a measure to avert danger and is therefore part of public law, as the Frankfurt am Main Administrative Court has already stated in several parallel cases (including judgment of June 23, 2014 - 5 K 2334/13.F; decision of January 22, 2014 - V1 - K -46/13).
The chamber sees the focus of the measure, which is to prevent the participants of the meeting from moving by drawing in two police lines, as a means of averting danger.
The measure was ordered by the police operations manager and not by the public prosecutor; the reason was not readily apparent to those attending the meeting. Due to the immediate dangers to public safety and order, the head of operations decided to “initially give priority” to averting danger, as he stated in his report on the police operation. As a result of this decision, the collection of police cordons began at 12.49 p.m. The respondent argues that the police action under attack was based on Section 163 b of the Code of Criminal Procedure and was therefore repressive.
However, from the Chamber's point of view, the requirements for this are not met. Section 163 b of the Code of Criminal Procedure allows the arrest of a person who is suspected of a crime if the arrest is necessary to establish identity. According to the standard, the purpose of the arrest is solely to establish identity for the purpose of criminal prosecution.
The measures required to establish identity must not be interpreted too broadly. The use of direct coercion to enforce an identity determination permitted under Section 163 b of the Code of Criminal Procedure must therefore be assessed in accordance with police law (Karlsruhe Commentary on the Code of Criminal Procedure, 7th edition 2013, Section 163 b, paragraph 8). When viewed objectively, the separation of supposedly violent assembly participants (“encirclement”) is a specifically police measure to ensure the peaceful conduct of the assembly. The administrative court states: “The withdrawal of the two police lines is undoubtedly directed against a gathering […J. Obligations and powers under assembly law therefore come into consideration for the assessment. On the other hand, relying on criminal procedural powers, such as Section 163 b of the Code of Criminal Procedure listed here […] is not possible” (decision of January 22, 2014 – V1 – K -46/13).
The fact that negotiations were entered into with the participants who were separated by encirclement also indicates that the primary purpose of the measure was to avert danger and not to prosecute. The police offered to refrain from verifying their identity as long as the separated meeting participants removed all prohibited items and passed through a police passage point. Such an approach is not compatible with Section 163 of the Code of Criminal Procedure. In this respect, the chamber follows the convincing statements of the administrative court. The resolution of January 22, 2014 states that with this offer, the police have proposed a “procedure […] that, once a decision has been made, for repressive action with regard to Section 163 Paragraph 1 Sentence 1 StPO, 258 a StGB would be difficult to justify”.
In this case, however, the chamber felt prevented from referring the legal dispute to the administrative court due to Section 17a Paragraph 5 GVG.
Accordingly, the court that decides on an appeal against a decision on the merits does not examine whether the legal action taken is permissible. A decision on the main issue does not exist if the court of first instance dismisses a lawsuit solely because the legal process is inadmissible through a judgment rather than through a decision per se provided for in Section 17a Paragraph 2 Sentence 1 GVG (cf. BGH, judgment of 19. March 1993 - VZR 247/9 - MDR 1993, 755; VGH Kassel, judgment of December 9, 1993 - 6 UE 571/93). The district court then made a decision on the main issue, although it did not carry out a substantive examination of the application. Through the decision, the district court affirmed its jurisdiction by stating in the decision that the admissible application would be analogous to an application for a court decision in accordance with Section 98 (2) StPO, for which the district court is responsible. The district court therefore did not base the rejection of the application on the inadmissibility of the legal process, but rather on citing the wrong legal basis.
The legal dispute had to be referred back to the district court for a decision on the matter. The appeal court generally makes the necessary decision on the matter itself in accordance with Section 309 Paragraph 2 of the Code of Criminal Procedure. However, a remittance is possible if the lower court has wrongly rejected the application as inadmissible for formal reasons and there is no substantive decision at all (cf . OLG Frankfurt, decision of October 22, 1982 - 1 Ws 266/82).
Since the district court was not allowed to reject a factual decision solely based on the incorrect application, remittal was necessary here. If the district court considers legal recourse to the ordinary courts to be permissible, it must decide on the application for a declaration that the measure carried out was unlawful from all relevant legal aspects (Section 17 (2) GVG).
The cost decision is based on Section 473 StPO.
