DECISION
In the deprivation of liberty proceedings
concerning xxx,
residing at xxx,
– affected party and appellant –
legal representative: Attorney Adam from Göttingen,
Involved: State of Lower Saxony,
represented by the Hanover Police Directorate
– Respondent in the application and appeal –
The 22nd Civil Senate of the Higher Regional Court of Celle, upon the appeal and application of the appellant, decided on January 24, 2017, through the judges of the Higher Regional Court xxx, xxx and xxx:
The decision of the Hanover District Court of 31 May 2016 and the decision of 11 July 2016 not to grant relief are hereby overturned.
The case is referred back to the Hanover District Court for a new review and decision, including on the costs of the appeal proceedings.
The value of the transaction is set at 5,000 euros (§ 36 para. 2 GNotKG).
REASONS
I.
The Hanover Local Court, by order of May 31, 2016, upheld the legality of the detention of the person concerned from February 29, 2016, following his initial detention for criminal proceedings at 6:20 p.m. until 8:40 p.m., for the purpose of preventing danger. The person concerned appeals this decision, arguing, among other things, that he was not given an oral hearing. The Local Court did not grant the appeal and submitted the matter to the Senate for a decision. In the appeal proceedings, the person concerned requested that the proceedings be remanded to the Hanover Local Court pursuant to Section 69 Paragraph 1 Sentence 3 of the Act on Proceedings in Family Matters and Matters of Non-Contentious Jurisdiction (FamFG). The police directorate involved was given the opportunity to be heard on this matter; it did not respond.
II.
Upon the request of the affected party, the proceedings were to be remanded to the Local Court pursuant to Section 69 Paragraph 1 Sentence 3 of the Act on Proceedings in Family Matters and Matters of Non-Contentious Jurisdiction (FamFG). While, according to Section 69 Paragraph 1 Sentence 1 FamFG, the appellate court must generally decide the matter itself, a remand is permissible under Section 69 Paragraph 1 Sentence 3 if the proceedings suffer from a fundamental defect and extensive or costly taking of evidence would be necessary for a decision, and a party requests such remand. These conditions are met.
1. The proceedings suffer from a fundamental defect. A procedural defect is considered sufficiently fundamental for dismissal if it is so significant that the proceedings no longer provide a proper basis for the decision (Federal Court of Justice, MDR 2001, 1313, 1314). This is the case, in addition to the existence of absolute grounds for appeal, if there is a violation of the right to be heard, an erroneous finding of fact due to insufficient or improper investigation of the facts (Schulte-Brunert/Weinreich, FamFG, 5th ed., § 69 para. 20), or if a party was not given the necessary hearing (Keidel, FamFG, 19th ed., § 69 para. 15a).
According to Section 34 para. 1 of the Act on Proceedings in Family Matters and Matters of Non-Contentious Jurisdiction (FamFG), the court must generally hear a party personally. The local court failed to do so, instead deciding the case in written proceedings based solely on the case file. No reasons are apparent, nor were any presented by the local court, that would have rendered a personal hearing of the person concerned unnecessary. This is all the more true since the measure in question had already been completed, and thus there was no urgency to issue the contested decision.
Furthermore, pursuant to Section 26 of the Act on Proceedings in Family Matters and Matters of Non-Contentious Jurisdiction (FamFG), the court is obligated to conduct the necessary investigations ex officio to establish the facts relevant to the decision. While the nature of the investigations to be carried out is generally at the court's discretion, independent investigations in this sense are not typically conducted if the court unilaterally bases its decision solely on the submissions of one of the parties. This is particularly true when differing accounts of the facts by the parties warrant further investigation and clarification. In this case, the court based its decision solely on the submissions of the police department involved – largely verbatim – without addressing the submissions of the person concerned, which differed in some respects, including factually. The local court had ample opportunity and reason to do so, at least within the context of its decision not to grant relief. Simply regurgitating the statement of the police department involved does not meet the requirement of independent fact-finding. Therefore, the decision not to grant relief could not stand.
2. It is already evident from the foregoing that extensive or costly evidence gathering would be necessary for a decision in the appeal proceedings.
3. The application required under Section 69 Paragraph 1 Sentence 3 of the Act on Proceedings in Family Matters and Matters of Non-Contentious Jurisdiction (FamFG) was submitted by the person concerned.
III.
This decision is final and unappealable according to § 19 para. 4 sentence 4 Nds. SOG.
