DECISION
In the administrative litigation
Mr. xxx,
Plaintiff,
Authorized representative:
Attorney Sven Adam,
Lange Geismarstraße 55, 37073 Göttingen
against
the Hessian State Criminal Police Office,
defendant,
due to regulatory law
The Administrative Court of Kassel, through presiding judge xxx as rapporteur in place of the 2nd Chamber, decided on March 17, 2016:
The proceedings, which have been largely concluded, are discontinued.
The defendant shall bear the costs of the proceedings.
The amount in dispute is set at 5000 euros.
REASONS
Since the parties have unanimously declared the main issue of the legal dispute resolved, the proceedings are to be discontinued in accordance with Section 92 Paragraph 3 of the Code of Administrative Court Procedure (VwGO), and a decision on costs is to be made at the court's discretion pursuant to Section 161 Paragraph 2 of the VwGO, taking into account the previous state of the case and the merits of the dispute. Based on considerations of equity, these costs are to be borne by the defendant, since, based on the factual and legal situation as it existed up to the relevant point in time for the assessment—namely, the occurrence of the event rendering the case moot (i.e., the deletion of the data stored about the plaintiff in POLAS-HE upon expiry of the retention period)—the defendant would in all likelihood have lost had the case been contested.
The data storage in question was carried out on the basis of Section 20 Paragraph 4 of the Hessian Public Safety and Order Act (HSOG). According to the first sentence of this provision, police authorities may, insofar as provisions of the Code of Criminal Procedure or other legal regulations do not preclude this, store or otherwise process personal data that they have obtained in the course of prosecuting criminal offenses, among other things, for the purpose of preventing criminal offenses. Storage or other processing in automated procedures is only permissible if the data concerns persons suspected of having committed a criminal offense; if the suspicion is dispelled, the data must be deleted (second sentence of the regulation).
Within the framework of the application of the aforementioned provisions, a constitutionally compliant interpretation and the principle of proportionality, which also applies here, dictate that minor offenses and negligent acts may not lead to statewide data processing (cf. Hornmann, HSOG, 2nd ed., § 20 para. 64). This is also reflected in § 15 para. 1 sentence 2 HSOG-DVO, according to which the review period for segregation in cases of minor importance is reduced from ten years to three years for adults up to the age of seventy.
Based on this, the contested decision of July 4, 2013, as amended by the also contested appeal decision of February 6, 2014, does not contain a legal error simply because of the finding therein that the suspicion of having committed a criminal offense is not dispelled merely by the discontinuation of proceedings pursuant to Sections 153 et seq. of the Code of Criminal Procedure. The defendant's legal opinion, that even with the termination of proceedings in this manner the suspicion of an offense is not necessarily dispelled, is consistent with the prevailing view in case law and legal literature on this matter (see Meixner/Friedrich, HSOG, 11th ed., Section 20, marginal note 17 with extensive references to case law; contra, apparently, only Hornmann, loc. cit.).
It must be taken into account, however, that Section 28, paragraphs 1 and 2 of the Administrative Procedure Act (HVwVfG) also—and especially—gives rise to the administrative obligation in such a case to investigate the circumstances for and against data processing pursuant to Section 20, paragraph 4, sentence 2 of the Public Safety and Order Act (HSOG) in each individual case. Actual evidence is required to sufficiently support the suspicion; mere assumptions are insufficient (cf. Hornmann, loc. cit., para. 63). The reasoning behind the contested orders does not indicate that the data collection carried out to the detriment of the plaintiff was based on an investigation and – measured against Section 15 Paragraph 1 Sentence 2 of the HSOG-DVO (Hanau Public Safety and Order Ordinance) – assessment of the factual circumstances that led to the initiation of the investigations – later discontinued pursuant to Sections 153 Paragraph 1 and Paragraph 2 of the Code of Criminal Procedure – for violation of the Assembly Act (March 29, 2003 in Hanau) and trespassing/violation of the Assembly Act (February 10, 2005 in Frankfurt am Main). The documents contained in the administrative file also provide no information on this point.
Furthermore, a further prerequisite for data processing in automated systems is the existence of a risk of repetition. Otherwise, this method is unsuitable and therefore unlawful. In this respect as well, the police authority must make a predictive decision after clarifying the facts of the case. A purely schematic data processing in automated files is inadmissible (see again Hornmann, loc. cit., para. 69). In the present case, it is not apparent that, based on all the circumstances, there were any reasonable grounds to believe that the plaintiff would reoffend. In any event, the reasoning behind the challenged decisions provides no basis for such an assumption.
The overall circumstances of the present case indicate that a review based on the requirements of Section 15 Paragraph 1 Sentence 2 HSOG-DVO was ultimately omitted, which makes the data storage appear legally flawed.
The defendant's assessment, communicated in his letter of March 9, 2016, that the plaintiff would have had to bear the costs of the proceedings in view of the legality of maintaining the data storage, if the legal dispute had not been settled in view of the expiry of the segregation review period, cannot therefore be followed in the end.
The rapporteur interprets the statement in this pleading—that the defendant was not given an opportunity to comment during the nearly two-year duration of the proceedings, until the event rendering the case moot—as an expression of criticism of the manner in which the proceedings were handled and their excessive length. Whether this criticism is justified is a matter to be decided elsewhere. In any case, this does not open the possibility of making a cost decision, based on considerations of equity, against the plaintiff. Furthermore, it should be noted that the chamber now responsible for the decision can hardly be faulted for a hesitant handling of the case and the resulting "termination of proceedings by mere expiration of the deadline." This is because the case was only transferred from the previously responsible 5th Chamber to the 2nd Chamber, effective January 1, 2016, as part of the revision of the court's business allocation plan for 2016. A procedural order by the rapporteur was then issued on January 12, 2016, after an initial review of the files and the resulting knowledge of the interim state of affairs, and was transmitted to the parties involved.
The determination of the value in dispute is based on §§ 1 para. 2 no. 1, 52, 63 GKG.
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