DECISION
11 LA 66/18
10 A 1242/17
In the administrative law case
of Mr. xxx,
xxx,
– Plaintiff and applicant for leave to appeal –
Legal representative:
Attorney Sven Adam,
Lange Geismarstraße 55, 37073 Göttingen, – 0119/17sva –
against
Hanover Police Directorate,
xxx,
– Defendant and respondent in the application for leave to appeal –
due to the finding that a police surveillance was unlawful
– Application for leave to appeal –
The Higher Administrative Court of Lower Saxony – 11th Senate – decided on December 17, 2018:
Upon the plaintiff's application, the appeal against the judgment of the Administrative Court of Hanover – 10th Chamber – of December 12, 2017 is admitted.
The appeal proceedings are being conducted under file number 11 LB 665/18.
The decision regarding costs is reserved for the final decision.
REASONS
The plaintiff's application for leave to appeal is successful.
The plaintiff is an active supporter of the "Independent Youth Center Kornstraße" (hereinafter: UJZ Korn), where he previously worked as managing director and office manager. According to the defendant, it had received information indicating that meetings of supporters of the so-called Kurdistan Workers' Party (PKK) – an organization banned in the Federal Republic of Germany and classified as a terrorist organization – were planned at UJZ Korn. Subsequently, officers from the defendant's State Security Service conducted covert surveillance from a building opposite the center for approximately six hours each time on July 27, 2014, March 8, 2015, and July 26, 2015. Some of the photographs taken during the surveillance on July 26, 2015, show the plaintiff in contact with individuals whom the defendant suspected of supporting the PKK.
Subsequently, the Lüneburg Public Prosecutor's Office initiated criminal investigations against the plaintiff and the three board members of the sponsoring association of the UJZ Korn – the "Association for the Promotion of Political Youth Cultures" – on suspicion of violating Section 20 Paragraph 1 Sentence 1 No. 4 of the Associations Act. As part of these investigations, the Lüneburg Local Court, by order dated February 4, 2016, authorized a search of the UJZ Korn, which took place on February 15, 2016. By order dated October 2, 2017, the Lüneburg Public Prosecutor's Office discontinued the investigations initiated against the plaintiff, among others, pursuant to Section 170 Paragraph 2 of the Code of Criminal Procedure. The Public Prosecutor's Office essentially reasoned that, in the absence of evidence of specific, individually attributable contributions to the offense, there was insufficient suspicion of a crime.
In his lawsuit filed with the Administrative Court on February 6, 2017, the plaintiff sought a declaratory judgment that the surveillance of the Korn Youth Center on July 26, 2015, was unlawful. He argued, among other things, that the surveillance ultimately led to the initiation of criminal proceedings against him. The Administrative Court dismissed the lawsuit in the contested judgment. It reasoned that the lawsuit was inadmissible. While a legal relationship capable of being established by a declaratory judgment existed, the plaintiff lacked the necessary qualified legal interest for the lawsuit to be admissible. Such an interest did not arise from a risk of recurrence, because it had neither been demonstrated nor was it apparent that a comparable surveillance operation would soon occur again. Furthermore, there was no interest in rehabilitation, because the surveillance had been conducted covertly and therefore did not inherently carry any outwardly apparent ethical or moral condemnation. No legitimate interest in a declaratory judgment arises from the initiation of criminal proceedings, as these have since been discontinued and a resumption is not to be expected. The assumption of a legitimate interest in a declaratory judgment due to a serious infringement of fundamental rights is also precluded, because the infringement of the plaintiff's rights is merely marginal and not serious, since neither he himself nor his actions were recognizably the cause or target of the surveillance.
The appeal against this decision by the plaintiff is admissible because, for the reasons he has presented in a timely and sufficient manner, there are serious doubts as to the correctness of the grounds supporting the judgment of the Administrative Court (§ 124 para. 2 no. 1 VwGO).
The administrative court's view that there is no qualified legal interest is subject to serious doubt for the reasons put forward by the plaintiff. While the Administrative Court initially correctly assumed that the admissibility of a declaratory action, which – as in this case – relates to the determination of a past legal relationship, requires, in addition to the existence of a legal relationship capable of being determined, that the plaintiff has a qualified interest in legal protection (see Federal Administrative Court, Judgment of 23 January 2008 – 6 A 1/07 –, NJW 2008, 2135, juris, para. 26; Sodan, in: Sodan/Ziekow, VwGO, 5th ed. 2018, § 43, para. 16 et seq.; Möstl, in: Posser/Wolff, BeckOK, VwGO, 47th ed. 2018, § 43, para. 24, each with further references). To determine a qualified legal interest, one can refer to the criteria known from the declaratory judgment action for establishing such an interest (Möstl, in: Posser/Wolff, aaO, § 43, Rn. 24; W.-R. Schenke, in: Kopp/Schenke, VwGO, 24th ed. 2018, § 43, Rn. 25).
Based on this, the Administrative Court, contrary to the plaintiff's view, correctly concluded that there is no sufficiently concrete risk of repetition in this case. A risk of repetition exists if there is a sufficiently specific danger that a similar measure is to be expected under essentially unchanged factual and legal circumstances (see Federal Administrative Court, Judgment of November 25, 1986 – 1 C 10/86 –, juris, para. 11; the same court, Judgment of June 3, 1988 – 8 C 18/87 –, juris, para. 7; Decision of October 16, 1989 – 7 B 108/89 –, juris, para. 5). The claim that a similar covert surveillance of the entrance area of the Korn Juvenile Detention Center will occur in the foreseeable future, comparable to the surveillance carried out on July 26, 2015, and that the plaintiff will again be captured in photographs, has neither been specifically asserted nor is it otherwise apparent. Furthermore, the fact that more than three years have passed since the surveillance in question on July 26, 2015, during which time there has apparently been no comparable surveillance involving the plaintiff, also argues against the existence of a risk of recurrence.
The plaintiff has, however, sufficiently demonstrated that the Administrative Court's reasoning is subject to serious doubts because it incorrectly recognized the scope of the constitutionally guaranteed right to effective legal protection under Article 19 Paragraph 4 of the Basic Law. When, as in the present case, the measure in question is one that is typically resolved quickly, the guarantee of effective legal protection under Article 19 Paragraph 4 of the Basic Law applies not only—as apparently assumed by the Administrative Court—to serious infringements of fundamental rights, but also to violations of ordinary law that—apart from the general freedom of action under Article 2 Paragraph 1 of the Basic Law—do not affect any fundamental right, and to less serious infringements of fundamental rights and freedoms. If and insofar as the short-term nature of the measure results from the nature of the measure itself, and the affected party cannot otherwise obtain legal protection precisely because of this short-term nature, the requirement of effective legal protection demands that the affected party be able to have the measure imposing a burden on them reviewed in a main judicial proceeding, irrespective of the severity of the associated infringement of rights (see Federal Administrative Court, Judgment of May 16, 2013 – 8 C 20/12 –, juris, para. 22 et seq.; the same court, Judgment of May 16, 2013 – 8 C 38/12 –, juris, para. 20; the same court, Judgment of January 23, 2008 – 6 A 1/07 –, BVerwGE 130, 180, juris, para. 26; Higher Administrative Court of Saxony, Judgment of January 27, 2015 – 4 A 533/13). -, juris, para. 29; OVG Bremen, Judgment of 27 March 1990 – 1 BA 18/89 -, juris, para. 44; W.-R. Schenke, in: Kopp/Schenke, aaO, § 113, para. 145; Wolff, in: Sodan/Ziekow, aaO, § 113, para. 282, each with further references).
Based on this, the plaintiff has a qualified interest in legal protection in the present case. The surveillance in question is a police measure that typically resolves itself quickly, or whose immediate legal effect ceases upon its termination. Therefore, to realize the constitutionally protected right to effective legal protection, it is necessary to subject the surveillance in question to judicial review, without it being (additionally) relevant whether the interference with the plaintiff's right to informational self-determination (Article 1 Paragraph 1 in conjunction with Article 2 Paragraph 1 of the Basic Law) caused by the surveillance is to be considered particularly serious.
The admission procedure will continue as an appeal procedure; filing a separate appeal is not required (§ 124a para. 5 sentence 5 of the Code of Administrative Court Procedure). The appeal must be substantiated within one month of service of the decision granting leave to appeal. The statement of grounds must be submitted in writing to the Higher Administrative Court of Lower Saxony, Uelzener Straße 40, 21335 Lüneburg, or P.O. Box 2371, 21313 Lüneburg, or electronically in accordance with § 55a of the Code of Administrative Court Procedure and the Ordinance on the Technical Framework for Electronic Legal Transactions and on the Special Electronic Mailbox for Public Authorities (ERVV). 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 lacking, the appeal is inadmissible (§ 124a para. 3 sentences 3 to 5 and para. 6 VwGO).
This decision is final and cannot be appealed (§ 152 para. 1 VwGO).
