VERDICT
In the administrative law case
Mr. xxx,
– Plaintiff –
Legal representative: Attorney Adam,
Lange Geismarstraße 55, 37073 Göttingen,
against
Lübeck Police Directorate, Possehlstraße 4, 23560 Lübeck
– Defendant –
Procedural authority: Ministry of the Interior, Rural Areas and, Mühlenweg 166, 24116 Kiel
Subject of dispute: Police law
The 3rd Chamber of the Schleswig-Holstein Administrative Court, without oral proceedings, rendered the following judgment on June 13, 2018, through the presiding judge of the Administrative Court xxx, acting as a single judge:
It is determined that the seizure of the plaintiff's mobile phone by officers acting on behalf of the defendant on April 14, 2015, was unlawful.
It is determined that the search of the plaintiff and his backpack by officers acting on behalf of the defendant on April 14, 2015, was unlawful.
It is determined that the prohibition issued to the plaintiff by officers acting on behalf of the defendant against taking photographs with the plaintiff's mobile phone was unlawful.
The defendant shall bear the costs of the proceedings.
The judgment is provisionally enforceable against security in the amount of 110% of the enforceable sum due to the costs.
Evidence of the facts
The plaintiff – a lawyer – was in the old town of Lübeck on April 14, 2015, at approximately 2:20 p.m., together with his colleague, lawyer xxx, in connection with the G7 foreign ministers' meeting. Shortly after the plaintiff and his companion crossed the Holsten Bridge and were walking along Holstenstrasse, they were stopped by police officers from North Rhine-Westphalia, who were working for the defendant. The plaintiff and his companion were asked to identify themselves. A personal identification card was not explicitly mentioned at that time, nor was it mentioned later. The plaintiff then handed over his lawyer's ID; he did not show the personal identification card he was carrying. The police officer took the lawyer's ID against the plaintiff's will, and other police officers surrounded the plaintiff and his companion, preventing them from leaving the area under control. The plaintiff then began taking photos with his mobile phone. A police officer confiscated the phone. Later, the officer returned the phone to the plaintiff but forbade him from taking any more photos. Subsequently, the plaintiff was ordered to submit to a search. The plaintiff objected, which led to a police officer threatening the use of force. The plaintiff then allowed himself to be searched, but pointed out that the items in his backpack were necessary for carrying out his legal practice. The search was nevertheless conducted. At approximately 2:50 p.m., the search was completed, and the plaintiff received his bar card back.
One year later – on April 14, 2016 – the plaintiff filed a declaratory judgment action.
The plaintiff argues that
the action is admissible as a declaratory judgment action pursuant to Section 113 Paragraph 1 Sentence 4 of the German Administrative Court Procedure Act (VwGO), as it concerns police officers' actions in the context of preventing danger. A declaratory judgment action is the appropriate type of action because it concerns administrative acts by the police that have become moot. The plaintiff also has a legitimate interest in a declaration that the seizure of the mobile phone, the search of the plaintiff and his backpack, and the prohibition against taking photographs were unlawful. A rehabilitative interest can be assumed here because the challenged administrative acts took place in public and could have been observed by other people in the vicinity. The plaintiff wishes to be freed from the stigma of being a seemingly dangerous troublemaker. Furthermore, it cannot be ruled out that the plaintiff will face similar treatment during other major incidents. The decision should therefore serve as a guideline for the plaintiff's future conduct. Consequently, there is also a risk of recurrence. The investigation also constitutes a significant infringement of fundamental rights, specifically the right to freedom of action and the freedom to pursue one's profession.
The police actions were unlawful. The grounds for the intervention were not disclosed, and there was no legal basis for the search or the orders concerning the mobile phone. The plaintiff correctly identified himself with his attorney's ID, so there was no reason to search him. He did not show his personal identification card because he was not explicitly asked for it, and his attorney's ID was entirely sufficient. The police were actually looking for dangerous objects, but there was no justification for this, especially since the plaintiff was not traveling with a group of suspicious individuals. The plaintiff's fundamental rights were severely infringed upon by the measures, particularly as he was hindered in the exercise of his professional duties as a lawyer; for example, his professional notebook, containing numerous entries, was in his backpack and was unpacked by the police officers.
The plaintiff requests:
1. It is determined that the seizure of the plaintiff's mobile phone by officers of the defendant on April 14, 2015, was unlawful.
2. It is determined that the search of the plaintiff and the plaintiff's backpack by officers of the defendant on April 14, 2015, was unlawful.
3. It is determined that the prohibition issued to the plaintiff by officers of the defendant against taking photographs with the plaintiff's mobile phone was unlawful.
The defendant requests that
to dismiss the lawsuit.
The defendant argues that the action is inadmissible due to a lack of legitimate interest in a declaratory judgment. Alternatively, she asserts that the police measures were lawful.
The chamber has transferred the legal dispute to a single judge for decision in accordance with Section 6 of the Administrative Court Procedure Act.
By judgment of November 8, 2016, the action was dismissed on the grounds that the plaintiff lacked the necessary legal interest for a declaratory judgment action. The Higher Administrative Court of Schleswig-Holstein, upon the plaintiff's appeal, which was granted, set aside the aforementioned judgment and remanded the case to the Administrative Court pursuant to Section 130 Paragraph 2 Number 2 of the Code of Administrative Court Procedure. The court reasoned that the action was admissible because there was a risk of recurrence.
The parties have waived their right to a further oral hearing. The plaintiff has submitted supplementary motions for the taking of evidence.
For further details of the facts and the legal arguments, reference is made to the written submissions of the parties and to the administrative file.
REASONS FOR DECISION
The lawsuit is admissible and well-founded.
The Higher Administrative Court of Schleswig-Holstein affirmed the admissibility of the present action in its judgment of January 25, 2018 (4 LB 36/17). Pursuant to Section 130 Paragraph 3 of the Code of Administrative Court Procedure (VwGO), the court hearing the case is bound by this legal assessment of the appeal decision and bases its decision on it.
The action is well-founded because the police measures of April 14, 2015, challenged by the plaintiff (seizure of the mobile phone, search of the plaintiff and his backpack, prohibition of taking photographs with the mobile phone), were unlawful and violated the plaintiff's fundamental right under Article 2 Paragraph 1 of the Basic Law. The considerations discussed in the judgment of November 8, 2016, regarding the plaintiff's contributory negligence in the events and the (rather minor) weight of the alleged violations of fundamental rights relate only to the question of the admissibility of the action and are not relevant to the merits of the case.
The conditions of Section 181 Paragraph 3 Sentence 3 of the State Administrative Procedure Act (LVwG), under which a person and their belongings may be searched for the purpose of establishing identity, were not met here, because the less intrusive option could have been used first: the plaintiff, who had only presented a lawyer's identification card, could have been asked to hand over all documents he was carrying. This would likely have made a search unnecessary, as the plaintiff was carrying a personal identification card.
The prerequisites of Section 210 of the State Administrative Procedure Act (LVwG) for the temporary seizure of the plaintiff's mobile phone (for the duration of the search) were not met. While the fact that the plaintiff made recordings with his mobile phone during the search for the purpose of securing evidence may have been inconvenient, it did not pose an immediate threat to public safety.
Insofar as the police have ordered a ban on photography after the conclusion of the measure, the prerequisites for an administrative order under the only applicable general police clause (§ 174 LVwG in conjunction with § 176 LVwG) are not met here due to the lack of a disturbance of or danger to public safety.
The decision on costs is based on Section 154 Paragraph 1 of the Administrative Court Procedure Act (VwGO).
The enforceability decision is based on Section 167 Paragraph 1 of the Administrative Court Procedure Act (VwGO) in conjunction with Section 709 of the Code of Civil Procedure (ZPO).
The following is information on legal remedies.
