VERDICT
In administrative law matters
of Mr. xxx
xxx Göttingen,
plaintiff and appellant,
prosecuting attorney: Adam,
Lange Geismarstraße 55, 37073 Göttingen
against
the Göttingen Police Department,
Groner Landstrasse 51, 37081 Göttingen,
defendant and respondent,
Subject of the dispute: Determination of the illegality of a coercive police measure
The Lower Saxony Higher Administrative Court - 11th Senate - recognized the oral hearing on October 28, 2016 by the presiding judge at the Higher Administrative Court xxx, the judge at the Higher Administrative Court xxx, the judge at the Higher Administrative Court xxx as well as the honorary judge xxx and the honorary judge xxx for law :
The ruling of the Göttingen Administrative Court - 1st Chamber - of October 1, 2014 is changed.
It is found that the use of direct force on January 17, 2013 in the form of a painful nerve pressure technique over the plaintiff's nose by a defendant officer was unlawful.
The defendant bears the costs of the proceedings.
The judgment is provisionally enforceable with regard to the costs. The defendant can avert enforcement by providing security in the amount of the enforceable amount unless the plaintiff first provides security in the same amount.
The revision is not permitted.
FACT
The plaintiff seeks a declaration that a measure of direct coercion was unlawful.
On January 16, 2013, a demonstration on the topic of “Good education and housing for all” took place in Göttingen. This was followed by the squatting of an empty former student residence at the University of Göttingen at Geiststrasse 10 in Göttingen. The plaintiff was also involved in this. On the morning of January 17, 2013, representatives of the University of Göttingen appeared on site and repeatedly asked the squatters to vacate the building, to no avail. The last request was made on January 17, 2013, 10:00 a.m., ordering immediate execution with a deadline of 11:30 a.m. The university then filed a criminal complaint.
When the police arrived on site on January 17, 2013, there were still eleven people in the building, including the plaintiff, sitting on the floor in a room on the first floor. They were asked to vacate the building twice by the police, most recently under threat of immediate coercion. They were then carried out by police officers. The plaintiff was the first person taken out of the building by Police Commissioner xxx and Police Commissioner xxx. The police officers previously asked him to come along voluntarily; otherwise he would have to expect coercive measures. Since the plaintiff did not comply with this request, the two police officers carried him to the stairs that lead to the ground floor. Because of the great risk of slipping, the plaintiff agreed to climb down the stairs independently. On the ground floor, the plaintiff fell back to the ground at the landing. The police then tried to stand him up and carry him away. Since they were initially unable to do this, xxx used a nerve pressure technique on the plaintiff. He pressed his open left hand against the back of the plaintiff's head and placed his open right hand on his nose in order to get him to get up on his own. As a result, the plaintiff suffered, in addition to pain, slight abrasions to the skin between his nose and upper lip on the left side of his face, as well as a slight nosebleed. After this pressure technique, as well as the attempt to handcuff the plaintiff, did not lead to the desired result, the police officers finally managed to carry the plaintiff to the back exit of the building. There is a dispute between those involved as to whether and to what extent the plaintiff resisted at the landing on the ground floor and in particular before and during the use of the nerve pressure technique and to what extent there was an increased risk of slipping on the ground floor due to the winter weather.
On July 11, 2013, the plaintiff filed a lawsuit seeking a declaration that the use of the nerve pressure technique was illegal. His main justification was that the use of the painful nerve pressure technique was disproportionate. The police officers could have carried him the remaining ten meters to the exit of the building without their intervention and ultimately actually carried him. The defendant's objection that his posture prevented him from being carried away, particularly by folding his arms in front of his upper body, is not convincing.
The plaintiff has requested
a declaration that the use of direct coercion in the form of a painful nerve pressure technique over his nose by a defendant officer on January 17, 2013 was unlawful.
The defendant applied
to dismiss the action,
and pointed out that the nerve pressure technique involved the use of direct coercion and that this means of coercion was used without discretion. It is irrelevant that the police officers alternately used various coercive measures such as carrying him away and the nerve pressure technique. Coercive means could be repeated and changed until the administrative act to be enforced has been implemented. In principle, carrying someone away is a milder means than using the nerve pressure technique. However, it should be taken into account that there was a great risk of slipping in the occupied building, especially on the ground floor, due to the winter weather conditions. Since the plaintiff did not provide any carrying points on his body for carrying away, carrying away was associated with significantly higher risks for everyone involved.
Both the plaintiff and the two police officers have filed mutual criminal complaints. The Göttingen public prosecutor's office has temporarily discontinued both criminal proceedings (32 Js 5063/13 and 32 Js 8042/13) with a view to the present legal proceedings in accordance with Section 154d StPO.
In its judgment of October 1, 2014, the administrative court dismissed the lawsuit and essentially stated that it had not been proven that the coercive measure in question was disproportionate and therefore unlawful. The nerve pressure technique used by the police officers on the plaintiff was the use of direct coercion in accordance with Section 69 Paragraphs 1 and 2 Nds. SOG traded. The formal requirements for this means of coercion were present. The use of direct coercion was verbally threatened against the squatters. The threat of coercive measures was also unnecessary because there was a current danger. Based on the information provided by the two police officers, the use of the nerve pressure technique would have been proportionate because carrying the plaintiff away as a milder embodiment of direct coercion would not have been possible and suitable for enforcing the plaintiff's obligation to leave the building. According to the two police officers, the conditions on the ground floor and on the upper floor were significantly different. On the ground floor, the plaintiff's risk of injury when being carried away would have been significantly higher because of the slippery floor and his physical resistance. The police officers therefore decided to first try to get the plaintiff to stand up and walk independently by using elbow levers, using the nerve pressure technique on the nose and using handcuffs. In the specific situation, PK xxx would have viewed the nerve pressure technique as the milder means of coercion compared to carrying him away. The plaintiff's different representation does not lead to any different result. Afterwards he behaved completely peacefully. He gave no reason to get him to get up by using the nerve pressure technique, among other things. The court was unable to obtain the necessary conviction that the plaintiff's account was correct and that of the police officers was incorrect. The police officers invited as witnesses had permissibly invoked their right to refuse to testify in the oral hearing with a view to the criminal proceedings initiated against them by the Göttingen public prosecutor's office for bodily harm in office in accordance with Sections 98 VwGO and 384 No. 2 ZPO. It was therefore not possible to confront the police officers with the plaintiff's different account and to gain any further information. The court could not judge which of the two contradictory statements of facts corresponded to the truth. Therefore, the lawsuit proceeds to the plaintiff's disadvantage. He bears the burden of proof for the facts he alleged and was unable to provide the necessary proof.
In support of his appeal, which was approved by the Senate, the plaintiff essentially submits the following: Regardless of the questions as to whether there is a contradiction between his and the two police officers' representations and who is responsible for presenting and providing evidence, it is clear that PK xxx did not use the nerve pressure technique not to break his resistance, but to get him to get up. The use of the nerve pressure technique associated with pain does not constitute direct coercion according to Section 69 Paragraphs 1 and 2 Nds. SOG, if - as in his case - an action, namely walking independently to the exit of the building, and not an omission should be enforced. The sole aim of this technique is to inflict pain in order to force the person affected to do a certain action after the pain has ended by threatening further pain. The nerve pressure technique with the express aim of inflicting pain is described in the catalog of Section 69 Paragraph 3 Nds. SOG not explicitly named. In addition, it would be more appropriate to use this technology as a weapon within the meaning of Section 69 Para. 4 Nds. because of the training required for police officers. to classify SOG. He was also not specifically threatened by the police officers about using the nerve pressure technique, which was only aimed at pain. However, the infliction of pain represents an independent and more serious enforcement measure compared to simply carrying it away, which was previously required under Sections 70 Paragraph 1, 74 Paragraph 1 Sentence 1 Nds. SOG must be threatened separately. A general threat of direct coercion does not automatically include any form of direct coercion. The uniform enforcement order in the form of the order to vacate the building does not make such an additional threat unnecessary from the perspective of proportionality. In addition, the nerve pressure technique used to force him to get up was disproportionate in the specific situation. It was already not suitable for immediately causing him to get up and leave the building on his own. Since he was ultimately carried away by the police officers, it was not necessary. The alternative of carrying away the ground floor of the building was not ruled out due to difficult external conditions.
The plaintiff requests that
the judgment of the Göttingen Administrative Court - 1st Chamber - of October 1, 2014 be changed and that the use of direct coercion in the form of a painful nerve pressure technique over his nose by an official of the defendant on January 17, 2013 was unlawful .
The defendant applied
to reject the appeal.
She defends the contested judgement. The plaintiff is to be followed in saying that the facts supporting the proportionality considerations of the deployment are essentially established and are not in dispute. Contrary to his representation, the plaintiff actively resisted. The threat of immediate coercion also includes the nerve pressure grip. The plaintiff had to expect that gripping techniques would also be used that were associated with a certain amount of pain, especially since his behavior made it impossible to simply carry him away and thus predictably provoked further measures. The printing technology used was proportionate. Their primary purpose was not to inflict pain, but rather to enforce an order. For further details of the parties' submissions and the facts of the case, reference is made to the court files, the defendant's administrative procedures and the criminal investigation files of the Göttingen public prosecutor's office - 32 Js 5063/13 and 32 Js 8042/13 - which were the subject of the oral hearing.
REASONS FOR
The plaintiff's appeal was successful.
The use of direct force in the form of a painful nerve pressure technique over the plaintiff's nose by a defendant officer on January 17, 2013 was unlawful. The administrative court therefore wrongly dismissed the plaintiff's action for declaratory judgment, which was correctly viewed as admissible, as unfounded.
Contrary to the plaintiff's opinion, the nerve pressure technique at issue is a measure of direct coercion within the meaning of Sections 65 (1) No. 3 and 69 Nds. SOG (see 1.). However, the prerequisites for the application of direct coercion were not fully met (see 2.).
1. The nerve pressure technique represents a measure of direct coercion. According to Section 69 Paragraph 1 Nds. SOG is direct coercion as a means of coercion within the meaning of Section 65 Paragraph 1 No. 3 Nds. SOG is the impact on people, among other things, through physical violence, through their aids and through weapons. Physical violence is according to the legal definition of Section 69 Paragraph 2 Nds. SOG any direct physical impact on people, among others. This influence occurs - unlike the use of physical means of force and weapons, where the influence is only "mediated" - through the direct use of physical forces by the police officers, including the use of police grabs (Rachor, in: Lisken/Denninger , Handbook of Police Law, 5th ed. 2012, Section E, para. 831).
This applies not only if an omission is to be enforced, but also in the event that the obligated person is required to take an active action, i.e. an action such as getting up and leaving the occupied building independently. This already follows from Section 64 Paragraph 1 Nds. SOG legally defined essence of administrative coercion, which serves the compulsory enforcement of an administrative act that is aimed at the performance of an action or at toleration or omission. That the nerve pressure technique is in the catalogs of Section 69 Paragraphs 3 and 4 Nds. SOG is not expressly mentioned is, contrary to the plaintiff's opinion, irrelevant. In Section 69 Paragraph 3 Nds. SOG are certain means of physical violence. This does not include the nerve pressure technique, although the list is only an example and not exhaustive due to the use of the wording “in particular”. In contrast, the list of weapons in Section 69 Paragraph 4 Nds. SOG in conclusion. However, the use of the nerve pressure technique does not constitute the use of a weapon. The nerve pressure technique is a measure in which a feeling of pain is caused by generating pressure on sensitive areas of the body. It is therefore influenced by the direct application of physical force by the police officers acting on the body of the person concerned.
Against the subsumption of the nerve pressure technique under the term physical violence within the meaning of Section 69 Paragraph 2 Nds. SOG does not say that this technique involves the infliction of pain. Contrary to what the plaintiff believes, the infliction of pain is not the “purpose” of the nerve pressure technique, and certainly not the “only” purpose. Rather, it is a “means to an end”, as is also the case in the examples given by the plaintiff of laying on of hands, leading away, being carried away and being grabbed by the police. As with these, when using the nerve pressure technique, the focus is on the success of the action - in this case getting up and leaving the occupied building independently.
2. The requirements for the application of direct coercion were not completely met.
The administrative court correctly stated that according to Section 64 Paragraph 1 Nds. SOG executable administrative act in the form of a verbal request from the University of Göttingen to vacate the occupied building within a precisely specified period of time, which was declared to be immediately enforceable. The plaintiff does not object to this in his appeal. The Senate therefore adopts the relevant considerations of the administrative court.
In the present case, the nerve pressure technique should have been separately threatened against the plaintiff in the specific operational situation of PK xxx. Direct coercion is in accordance with Section 74 Paragraph 1 Sentence 1 Nds. to threaten SOG before its use. According to Section 70 Paragraph 3 Sentence 1 Nds. SOG, the threat must relate to specific means of coercion. This regulation in enforcement law is an expression of the generally standardized requirement in Section 37 Paragraph 1 VwVfG that the content of administrative acts should be sufficiently specific. The requirement of certainty is intended to ensure the predictability of police actions. If direct coercion is used, the person concerned should be given clarity about the expected interference with their physical integrity. In principle, it is sufficient if the threat of the use of direct coercion is sufficiently clear. As a rule, it is not necessary to threaten the use of a specific form of direct coercion before each individual physical impact on the person. This is particularly true if it is a uniform enforcement measure without a time limit. Before the application of direct coercion, it is not always possible to understand exactly which applications are required. Should aids of physical violence be used in accordance with Section 69 Paragraph 3 Nds. SOG or weapons according to Section 69 Paragraph 4 Nds. However, if SOG is used, these must be mentioned when there is a threat of immediate coercion (Rachor, in: Lisken/Denninger, op. cit., section E, paras. 867 and 868).
An exception to the aforementioned principle that in cases of impact on people through physical violence in accordance with Section 69 Paragraphs 1 and 2 Nds. Even if the announcement that direct coercion will be used is sufficient, it is necessary if the affected person - as here - is to be forced to perform an action through the use of a nerve pressure technique. The aforementioned grip technique seriously interferes with the physical integrity of the person affected. The pressure on nerve points immediately causes significant pain. The person affected does not necessarily have to expect such painful treatment. The principle of predictability of police action therefore requires that the conscious and intentional infliction of not only insignificant pain through the use of a nerve pressure technique as part of direct coercion be separately threatened. Only through such a prior threat will the person affected be able to prevent the infliction of pain by carrying out the requested action. This also allows the flexion function of the coercive device to be better clarified.
According to these principles, the approach of the police officers on the upper floor of the occupied building towards the squatters located there and thus also towards the plaintiff met the requirements of the prior threat of coercive measures. Both the group of squatters as a whole and the plaintiff personally were asked by the police at the beginning of the eviction to leave the building voluntarily, with the use of immediate coercion being verbally threatened in each case. However, PK xxx should have supplemented this general threat on the ground floor of the building by announcing to the plaintiff that he was now using a nerve pressure technique that could be painful if the plaintiff did not voluntarily get up and leave the building. Whether the plaintiff actively resisted being carried away is irrelevant. According to PK xxx's account, the plaintiff's resistance was limited to tensing his arms, lying on his side from a sitting position or turning from his side to his stomach while crossing his arms on his chest. In this operational situation, the threat of using the nerve pressure technique was still possible.
In the present case, the prior threat of using the nerve pressure technique was also not in accordance with Section 70 Paragraph 1 Sentence 3 Nds. SOG was unnecessary because the circumstances did not allow it, in particular the immediate use of coercive force was necessary to avert a current danger. According to the legal definition of Section 2 No. 1b Nds. SOG is a current danger, a danger in which the impact of the damaging event has already begun or in which this impact is imminent either immediately or in the very near future with a probability bordering on certainty. Such a situation did not exist on the day of the operation when PK xxx used the nerve pressure technique on the plaintiff. The plaintiff, who was the first of the group of squatters to be led down the stairs, immediately fell back to the ground at the landing after voluntarily and independently descending the stairs on the ground floor. However, it cannot be seen that the plaintiff's behavior on the stairs threatened to create a backlog, which exposed the police officers immediately behind and the other squatters on the slippery stairs to the risk of slipping and the risk of serious injury. This danger could easily be countered by having those following briefly remain in front of or on the stairs without being harmed until the area near the stairs on the ground floor was clear again.
Since the use of direct coercion in the form of the nerve pressure technique over the plaintiff's nose does not meet the requirements for the threat of a coercive measure, the question disputed between the parties as to whether this pressure technique was proportionate is not relevant to the decision.
The cost decision follows from Section 154 Paragraph 1 VwGO.
The decision on provisional enforceability follows from Sections 167 VwGO, 708 No. 10, 711 ZPO.
There are no reasons for allowing the appeal in accordance with Section 132 Paragraph 2 VwGO.
Instructions on legal remedies follow.
