DECISION
In the administrative law case
of xxx,
plaintiff and
applicant for admission,
Legal representative: Attorney Adam,
Lange Geismarstraße 55, 37073 Göttingen, – 0290/13 –
against
the police directorate xxx,
defendant and
respondent in the application for admission,
Subject of the dispute:
Determination of the illegality of a police coercive measure
– Application for leave to appeal –
The Higher Administrative Court of Lower Saxony – 11th Senate – decided on September 15, 2015:
Upon the plaintiff's application, the appeal against the judgment of the Göttingen Administrative Court - 1st Chamber - of October 1, 2014 is admitted.
The decision regarding costs is reserved for the final decision.
REASONS
The plaintiff's application for leave to appeal is successful.
The parties are in dispute over the legality of the use of so-called nerve pressure techniques as a measure of direct coercion. Following a demonstration in Göttingen on January 16, 2013, a vacant former student dormitory belonging to the University of Göttingen was occupied later that same day, with the plaintiff participating. On the following day, January 17, 2013, the eleven squatters still present in the building, who had been on the upper floor, were repeatedly and unsuccessfully ordered to leave by both university representatives (via verbal demand with immediate effect) and by the police, who had been called to the scene. As a result, they were escorted out by police officers using direct force. The plaintiff was taken from the building by police officers xxx and xxx after they had again unsuccessfully asked him to come along voluntarily. The subsequent details of the events are partially disputed between the parties. It is undisputed that on the ground floor, at the stairwell landing, Police Officer xxx applied the so-called nerve pressure technique to the plaintiff. During this incident, Police Officer xxx pressed his open left hand against the back of the plaintiff's head and placed his open right hand on the plaintiff's nose. As a result, the plaintiff suffered minor abrasions between his nose and upper lip on the left side of his face. The criminal proceedings initiated against both the plaintiff for resisting arrest and assault – 32 Js 5063/13 – and against the two police officers for assault in office – 32 Js 8042/13 – were provisionally discontinued by the Göttingen Public Prosecutor's Office pursuant to Section 154d of the German Code of Criminal Procedure (StPO) pending the outcome of the present legal proceedings.
The Administrative Court dismissed the plaintiff's claim for a declaratory judgment that the use of direct force in the form of a painful nerve pressure technique was unlawful. In its reasoning, the court stated that the nerve pressure technique constituted a measure of averting danger in the form of the application of direct force and was lawful both formally and substantively. The use of the nerve pressure technique was proportionate, particularly considering the specific circumstances and the relevant ex-ante perspective of the police officers, because carrying the plaintiff away, as a less intrusive form of direct force, was neither possible nor suitable for enforcing the plaintiff's obligation to leave the building due to the slippery stone floor on the ground floor and the associated risk of serious injury to the plaintiff, as well as his physical resistance. The plaintiff's partially differing account did not lead to a different conclusion. Since the two police officers summoned as witnesses had legitimately invoked their right to refuse to testify during the oral proceedings, it could not be clarified which of the partly contradictory accounts of the facts was correct, so that the plaintiff, who bore the burden of proof and presentation, lost the case.
The plaintiff appeals this decision. In his application for leave to appeal, the plaintiff argues, among other things, that the case presents particular factual and legal difficulties within the meaning of Section 124 Paragraph 2 No. 2 of the Code of Administrative Court Procedure (VwGO). The plaintiff has presented these difficulties in a manner sufficient to meet the requirements of Section 124a Paragraph 4 Sentence 4 VwGO, and they are substantively present. The appeal proceedings will likely require a more detailed examination of the legal assessment of the nerve pressure technique used and the factual circumstances of the events on the day of the incident.
The appeal proceedings will be conducted under the new file number
11 LB 209/15
continued.
No formal appeal is required (§ 124a para. 5 sentence 5 of the Code of Administrative Court Procedure). The grounds for the appeal must be submitted within one month of service of the decision granting leave to appeal. The statement of grounds must be filed with the Higher Administrative Court of Lower Saxony, Uelzener Straße 40, 21335 Lüneburg, or P.O. Box 2371, 21313 Lüneburg. The statement of grounds must be submitted in writing or electronically in accordance with the Lower Saxony Ordinance on Electronic Legal Transactions in the Judiciary. The presiding judge may extend the deadline for submitting the statement of grounds upon application submitted before its expiry. The statement of grounds must contain a specific request and the detailed grounds for the appeal. If any of these requirements are not met, the appeal is inadmissible (§ 124a para. 3 sentences 3 to 5 and para. 6 of the Code of Administrative Court Procedure).
This decision is final and cannot be appealed (§ 152 para. 1 VwGO).
