VERDICT
1 A 296/16
In administrative law matters
xxx,
– Plaintiff –
Legal representative:
Attorney Adam,
Lange Geismarstraße 55, 37073 Göttingen
against
State of Lower Saxony,
represented by the Göttingen Police Department,
Groner Landstraße 51, 37081 Göttingen
– Defendant –
because of police law (declaratory action; police operation)
The Göttingen Administrative Court - 1st Chamber - recognized the following at the oral hearing on May 22, 2019 by the President of the Administrative Court, Judge xxx, Judge at the Administrative Court xxx and the honorary judges xxx and xxx:
It is determined that the use of irritant gas and physical violence in the form of pain grabs and punches against the plaintiff by the defendant's officers on April 10, 2014 was unlawful.
The defendant bears the costs of the proceedings.
The judgment is provisionally enforceable because of the cost.
The defendant can avert enforcement by providing security in the amount of the enforceable costs if the plaintiff does not provide security in the same amount before enforcement.
ACT
The plaintiff seeks to establish that the use of gas and physical violence against him during a police operation in 2014 was unlawful.
The city of Göttingen intended to deport two people to European member states on April 10, 2014 as part of the Dublin II procedure. Since the Göttingen Working Group for the Support of Asylum Seekers had announced protests in advance, the city called in police officers to secure the measure.
The police operation by officers from the Göttingen police station and the evidence preservation and arrest unit of the Lower Saxony Central Police Directorate began at around 5:30 a.m. at the xxx residential building on the day of the planned deportation. One of the people to be deported lived in the house, which is owned by the city. At the beginning of the police operation, four deportation opponents, who were carrying a banner with the inscription “Refugees welcome”, were in front of the entrance door of the building. The partially glazed entrance door was also covered with a banner from the inside. There were a number of other people in the hallway.
The police officers treated the four people in front of the front door as participants in a meeting and tried to have a cooperative conversation that did not take place. The people did not respond to the request to move the meeting location behind the police barrier that had been set up. They were carried away from the house entrance after the threat of immediate coercion.
The plaintiff was behind the front door in the hallway of the building with another 20 to 30 people, some of whom were masked. The employee of the immigration office of the city of Göttingen who was present ordered the person to be deported to be visited in her apartment on the top floor of the building. The police officers therefore initially intended to enter the house via the entrance by trying to push the door open.
At around 7:04 a.m., around 10 police officers managed to briefly overcome the resistance of the crowd behind the door in the hallway and open the front door a crack. Police officer xxx used this gap to spray irritant gas into the hallway in order to get people to reduce the pressure on the door. This didn't work. The plaintiff, who was standing inside the door at the time, was hit by the gas.
With the consent of the tenant in the basement of the house, four police officers initially gained access to the hallway via the basement apartment at around 7:10 a.m. There they met deportation opponents who chanted slogans such as “German police officers, murderers and fascists” or “Fuck off, nobody misses you.” In any case, some of them attacked the police officers with punches and tore at their equipment. Additional police officers subsequently gained access to the hallway via the basement.
The police officers did not take any measures regarding assembly law; in particular, they did not order the dispersal of a meeting. The police officers used police leverage and pressure point techniques (squeezing and pulling) to dislodge the entangled people from each other and from objects such as the stair railing or the entrance door to which they were clinging. The plaintiff also belonged to this group of people.
After police officers xxx and xxx had initially tried in vain to remove the plaintiff from the handle on the door using release techniques that included setting pain pressure points, police officer xxx took over this task. During the course of the operation, the officer first tried to loosen the plaintiff's fingers from the door handle by bending them back and to force him to let go using pain grips. Only when he took the plaintiff into a so-called head control hold, in which he grasped the plaintiff's head with his right arm and pressed it against his body armor, did he let go of the door handle. The officer then held the plaintiff and moved him towards the staircase in order to take him outside via the basement apartment. During the incident, the officer hit the plaintiff's face twice with his fist. Another police officer, officer xxx, then brought the plaintiff under his control with a head control grip and led him to the top of the stairs. He tightened his grip and applied pressure to the plaintiff's lower jaw. The officer and the plaintiff then fell on the stairs and fell down the stairs. From the basement, the plaintiff was brought outside via a basement window. There he collapsed and received emergency medical care.
There is a dispute between the parties as to whether police officers xxx and xxx in the hallway asked the group of people in a loud voice to clear the entrance area, and whether the plaintiff violently resisted the police measures after his grip was released.
The preliminary investigation against the plaintiff for resisting law enforcement officers was discontinued by the Göttingen public prosecutor's office on January 6, 2015 in accordance with Section 170 Paragraph 2 of the Code of Criminal Procedure (StPO) on the grounds (BA 006, p. 1 f.) that the plaintiff's behavior, namely his attempt, holding on to the door handle did not exceed the relevance threshold of Section 113 of the Criminal Code. The public prosecutor's office brought charges against three people for resisting law enforcement officers and two people for committing bodily harm. The Göttingen District Court acquitted two of these people in its judgment of July 3, 2017 (34 Ds 32 Js 21154/14, BA 006, p. 216 ff.). The district court assumed, among other things, that the crowd in the hallway was a meeting in a closed room.
The plaintiff filed suit on June 3, 2014. He claims that the coercive measures against him and the use of irritant gas were unlawful. At the beginning of the police operation he was standing near the front door when irritant gas was sprayed into his face immediately and without warning. He behaved peacefully when police officers entered the hallway from the basement. He then held on to other people. When trying to separate him and the other people, police officers hit him repeatedly on the head with their fists and used pain grips. He was not spoken to by the police officers.
The plaintiff requests
to determine that the use of irritant gas and physical violence in the form of painful grips and punches against him by the defendant's officers on April 10, 2014 was unlawful.
The defendant requests
reject the complaint.
It essentially points out that the use of force to the detriment of the plaintiff served, on the one hand, to enforce the measure under immigration law and, on the other hand, to restore public security. It also had a repressive police aim because the occupation of the hallway constituted a criminal offense according to Sections 113 Paragraph 1 and 125 Paragraph 1 StGB. After all, it was also done in self-defense and emergency aid. The use of the nerve pressure technique against the plaintiff did not need to be specifically threatened here, as the immediate use of the coercive force was necessary to avert a current danger. When assessing the appropriateness of the police measures, it must be taken into account that the plaintiff himself caused the danger. He was asked several times to leave the door and did not respond. He also attacked officers. The measures against him only increased in intensity because he defied police orders with increasing intensity. The principle of predictability of police actions, in particular the expected interference with physical integrity in the sense of the decision of the Lower Saxony Higher Administrative Court on nerve pressure technology, can only apply to a limited extent and must be given priority when weighing up interests worthy of protection if the aim is to eliminate acute dangerous situations. In such a situation, the plaintiff had to expect that the blockade situation would not be resolved painlessly, even without any concrete indication. The use of the irritant gas through the entrance door served to restore public safety and represented repressive police activity. The use of physical violence or other means of physical violence within the meaning of Section 69.3 of the implementing regulations for Section 69 Paragraph 3 Nds. SOG would not have been successful.
In view of an expected decision by the Lower Saxony Higher Administrative Court on the use of so-called nerve pressure technology by the police (11 LA 258/14), the chamber ordered the proceedings to be suspended in a decision dated December 15, 2015. After the ruling of the Lower Saxony Higher Administrative Court of October 28, 2016 (11 LB 209/15) was available, the proceedings were continued under the current file number.
For further details of the facts and the status of the dispute, reference is also made to the content of the court file, the defendant's administrative process and the investigative files from the Göttingen public prosecutor's office.
REASONS FOR DECISION
The lawsuit is admissible (I.) and justified (II.).
I.
The administrative legal process in accordance with Section 40 Paragraph 1 VwGO has been opened. In the case of so-called dual-functional measures, in which the police acted with independent preventative and repressive objectives, their quality is determined by their focus (cf. BVerwG, judgment of December 3, 1974 - IC 11.73 -, BVerwGE 47, 255, juris Rn. 23; BVerwG, decision of June 22, 2001 - 6 B 25.01 -, NVwZ 2001, 1285, juris Rn. 6). In any case, the police measures at issue here are primarily intended to avert danger. This also applies in view of the fact that the police operation was followed by investigations against the plaintiff and other involved deportation opponents for breach of the peace, bodily harm, damage to property, resistance to law enforcement officers and other offenses and that the measures also partly served to establish the identity of the later accused. Here the disputed measures were clearly visible to the plaintiff (cf. BVerwG, judgment of December 3, 1974, ibid., Rn. 24; Nds. OVG, decision of November 8, 2013 - 11 OB 263/13 -, juris Rn. 4) to enforce the clearing of the hallway of deportation opponents and to enable the planned deportation of a resident of the house Neuer Weg 3 by the immigration authorities of the city of Göttingen by means of administrative assistance. The measures at issue (see below) are measures to avert danger, namely measures of direct coercion in accordance with Section 69 Paragraphs 1, 2 and 3 Nds. SO-CALLED.
The action for declaratory judgment pursuant to Section 43 Paragraph 1 VwGO is the permissible type of action here. According to this provision, the determination of the existence or non-existence of a legal relationship can be sought through a lawsuit if the plaintiff has a legitimate interest in the early determination. These requirements are met. The necessary legal relationship under public law arises here from a real act under public law, namely the use of physical violence and the use of irritant gas by the police. A formal action to be brought as a matter of priority (Section 43 Para. 2 Sentence 1 VwGO) is ruled out due to the lack of an administrative act.
As a person directly affected by the police measures, the plaintiff has the right to bring a lawsuit and can also rely on the interest in declaratory judgment because of the profound interference with his physical integrity that this entails. In the case of serious encroachments on fundamental rights - primarily those encroachments that are subject to judicial review - there is an interest in legal protection protected by Article 19 Paragraph 4 of the Basic Law in cases in which, according to the typical course of the procedure, the direct burden caused by the contested sovereign act is limited to a period of time in which the person concerned can hardly obtain the court decision in the instance opened by the procedural rules (BVerfG, decision of December 13, 2005 - 2 BvR 447/05 -, juris Rn. 54). There are short-term police measures here. They are also associated with a serious interference with the physical integrity of the person affected. Police grips using so-called nerve pressure techniques cause considerable pain, which is said to cause the affected person to lose control of their own movements. Irritants can cause irritation of the skin and mucous membranes and lead to nausea and vomiting (Rachor/Graulich, in: Lisken/Denninger, Handbook of Police Law, 6th edition 2018, Rn. 868, with reference to the description of the toxicological consequences of the use of irritant gases CN and CS gas in BVerwG, NVwZ 1989, 872 f. and Bay. VGH, NVwZ 1988, 1056 f.).
II.
The action for declaratory judgment is also justified. The disputed measures based on the Lower Saxony Security and Order Act (see 1.) were illegal for formal reasons (see 2.).
1.
The legal basis for the measures in dispute, which can be qualified as an exercise of direct coercion, are Sections 65 Para. 1 No. 3, 69 Nds. SOG in the version of the law dated June 19, 2013 (Nds. GVBl. p. 158) applicable at the time of the official measures that is relevant for assessing the factual and legal situation.
The Lower Saxony Law on Public Safety and Order applies here. Its application is not excluded by the overriding Lower Saxony Assembly Act. This is not applicable here because the gathering of people in the hallway of building xxx on April 10, 2014 was not a gathering within the meaning of Article 8 of the Basic Law. In particular, there was no meeting in a closed room.
A meeting is a local gathering of several people for joint discussion or demonstration in participation in the formation of public opinion (BVerfG, decision of June 20, 2014 - 1 BvR 980/13 -, NJW 2014, 2706; BVerfG, decision of October 24. 2001 - 1 BvR 1190/90, 2173/93, 433/96 -, BVerfGE 104, 92, 104 = NJW 2002, 1031, 1032). Art. 8 GG is not limited to meetings at which arguments and disputes take place, but includes a variety of forms of common behavior including non-verbal forms of expression (BVerfG, decision of May 14, 1985 - 1 BvR 233/81, 1 BvR 341 /81 -, BVerfGE 69, 315, 343 = NJW 1985, 2395, 2396; BVerfG, decision of December 1, 1992 - 1 BvR 88/91, 576/91 -, BVerfGE 87, 399, 406 = NJW 1993, 581 ). If a meeting contains both opinion elements and other elements, the overall character is important (BVerwG, judgment of May 16, 2007 - 6 C 23.06 - BVerwGE 129, 42, Rn. 16 = juris Rn. 16). The physical prevention of the criticized activity or the self-help-like enforcement of one's own demands is not protected, since it is then not primarily about participation in the formation of public opinion (BVerfGE 104, 92, 105).
According to this standard, the gathering of people in the hallway of building xxx on April 10, 2014 was not a gathering within the meaning of Article 8 Paragraph 1 of the Basic Law because this gathering was intended to physically prevent the deportation of a resident of the building in accordance with Dublin II regime was in the foreground. This act of prevention does not represent a means of symbolic support for a protest against the deportation practice of the immigration authorities, which is subordinate to the communication concern. According to the written report of the head of operations, PHK xxx, those gathered in the hallway initially remained quiet and did not reveal themselves to the outside world recognize (BA 007, page 36). There was obviously no communicative concern, but was conveyed by the posters in front of the door.
The gathering was also not protected by Article 8 of the Basic Law because it took place in a house that was not open to the general public and to which the participants in the gathering, including the plaintiff, had no special right of access. Article 8 Paragraph 1 of the Basic Law also guarantees the right to decide when, where and under what modalities a meeting should take place. As a right of defense, which also and above all benefits minorities who think differently, the fundamental right guarantees those with fundamental rights not only the freedom to take part in a public meeting or to stay away from it, but at the same time the right to self-determination about the place, time, type and content of the event (cf . BVerfGE 69, 315, 343). However, freedom of assembly does not provide the right of access to any place. In particular, it does not grant citizens access to places that are not generally accessible to the public or to which, due to external circumstances, access is only granted for specific purposes. The holding of meetings, for example in administrative buildings or in enclosed facilities that are not open to the general public, is no more protected by Article 8 Paragraph 1 of the Basic Law than, for example, in a public swimming pool or hospital (BVerfG, judgment of February 22, 2011 - 1 BvR 699 /06 -, BVerfGE 128, 226 Rn. 65 = NJW 2011, 1201, 1204). If this applies to public facilities, then it applies even more to publicly owned residential buildings such as building xxx. The city of Göttingen, as the owner of the building, was also not obliged to tolerate a meeting in the building as a public authority. There is no legal reason for this obligation to tolerate, which the plaintiff's representative postulated in the oral hearing, and in particular does not arise from the citizen's right to protection under Article 8 Paragraph 1 of the Basic Law, because such a gathering of people in a building that is not open to the public, as stated, does not fall within the scope of protection of the fundamental right to freedom of assembly.
2.
The measures at issue, which were taken as part of the enforcement of a dismissal that was also addressed to the plaintiff, are unlawful due to the lack of a sufficiently qualified threat.
The use of physical violence against the plaintiff by means of pain grips by the police officers PK xxx, PK xxx and by punches by PK xxx each constitutes a measure of direct coercion in accordance with Section 69 Paragraph 2 Nds. SOG.
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 force and weapons, where the influence is only "mediated" - through the direct use of physical strength by the police officers. This also includes the use of police force (Rachor/Graulich, ibid., para. 862). 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 (Nds. OVG, judgment of October 28th .2016 – 11 LB 209/15 -, juris para. 23). The aim of the pain grips used against the plaintiff was to force him to let go of the handle of the door to building xxx; the punches were thrown at him to force him to move on.
The formal requirements for the use of direct coercion through pain grips and punches according to §§ 64, 65, 69, 70, 74 Nds. SOG were only partially fulfilled.
A according to Section 64 Paragraph 1 Nds. SOG immediately enforceable administrative act, which also became effective against the plaintiff, was in place. According to the reports of police officers xxx (BA 007, p. 44) and xxx (BA 007, p. 98, 102; also BA 005, not in foil) they asked the people in the hallway several times and - as officer xxx expressly said in his report – shouted loudly to clear the hallway. According to the report of police officer xxx, he spoke to everyone in the hallway, including a male person not specified in the report directly in front of him at the front door. Only subsequently did the situation escalate after this report and the official could not rule out that further speeches were either ignored or not understood. Based on the police reports, the Chamber has no doubt that such a dismissal was issued. The request corresponds to police practice, as is known from a large number of other procedures.
The Chamber is also convinced that the plaintiff heard the expulsion and that it was therefore effective against him, Sections 41 Paragraph 1, 43 Paragraph 1 Sentence 1 VwVfG. An oral administrative act, also in the form of the general decree (§ 35 sentence 2 VwVfG), is not already announced with its announcement or announcement, but only when the person concerned has heard the declaration and understood it as such (Stelkens in: Stelkens/Bonk/ Sachs, Administrative Procedure Act, 9th edition 2018, § 41 Rn. 96; further Daniel Couzinet/Daniel Fröhlich in: Mann/Sennekamp/Uechtritz, Administrative Procedure Act, 2nd edition 2019, § 41 Rn. 74). The Chamber assumes that the plaintiff understood the request to clear the hallway, even in view of the “loud background noise” in the hallway (Report PK xxx BA 007, p. 44). The police officers made their request loudly and repeatedly, and officer xxx also specifically addressed the people individually, including at least one male person in the area of the entrance door. The fact that this was the plaintiff can be seen from the report of officer xxx (BA 007, p. 98), where the person addressed is described as corpulent and tightly gripping the door handle. At a later point in this report (BA 007, page 100) the person is named as the plaintiff. In view of the police reports, the plaintiff's blanket denial that there was any expulsion at all is not sufficient and, in particular, did not give the chamber any reason to investigate the question of the announcement and the plaintiff's perception of the announcement of the expulsion by taking evidence.
The request constitutes an expulsion of the individual people in the hallway and therefore a measure that cannot be postponed within the meaning of Section 80 Paragraph 2 Sentence 1 No. 2 VwGO. According to this, the suspensive effect of objections and legal challenges no longer applies to orders and measures taken by police officers that cannot be postponed. The expulsion ordered by police officers xxx and xxx could not be postponed because it served to enable the scheduled deportation of a resident of the house and there was no time left for a written order.
The expulsion was also legal. The legal basis was Section 17 Paragraph 1 Sentence 1 Nds. SO-CALLED. According to this, the police can temporarily expel any person from a place or temporarily prohibit them from entering a place in order to avert a danger. There was a danger to public safety at the time of the expulsion because those affected, including the plaintiff, were hindering deportation and thus an enforcement measure under immigration law. There is no evidence that the deportation could have been unlawful.
However, there was no qualified threat of coercive measures. 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. 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 which applications are required in detail (Nds. OVG, judgment of October 28, 2016, loc. cit., para. 27). This is a uniform measure in that police officers first used physical force to release the plaintiff from the door, the handle of which he was clutching, and then continued to use physical force to take him from the hallway through the basement to the outside area. Overall, these actions served to enforce the expulsion against the plaintiff.
However, according to the convincing case law of the Lower Saxony Higher Administrative Court, which the Chamber follows, this principle must be restricted in cases in which the specific coercive measure represents a significant interference with physical integrity. Because that in Section 70 Paragraph 3 Sentence 1 Nds. The enforcement law requirement of certainty standardized by the SOG, which is intended to ensure the predictability of police actions even outside the procedure aimed at issuing an administrative act, requires that those affected by a coercive measure receive clarity about the expected interference with their physical integrity (Nds. OVG, judgment of . October 28, 2016, loc. cit., paragraph 28). In this respect there is no difference to aids within the meaning of Section 69 Paragraph 3 Nds. SOG, the use of which regularly causes significant pain, such as tear gas or batons; In the literature, for constitutional reasons, a qualified threat has long been considered necessary for their use (Rachor/Graulich, ibid., para. 893).
The Lower Saxony Higher Administrative Court affirmed the requirement of a threat of a specific coercive measure before the use of the so-called nerve pressure technique in a case in which considerable pain was caused to the person affected by pressure on the nose while simultaneously fixing the head from behind (ibid.). In such a case, the announcement of the use of immediate coercion to enforce a dismissal must be supplemented by an announcement to the person concerned that the police officer is now using a nerve pressure technique, which could be painful if the person concerned does not comply with the order (Nds. OVG, judgment . dated October 28, 2016, loc. cit., paragraph 29). The threat must therefore specify the technology used as well as the consequences (triggering pain). This also applies to the pain grips used here.
Such a qualified threat was not made before the pain grips were applied to the plaintiff. To the extent that the defendant's representative stated for the first time in the oral hearing that police officer xxx had expressly announced that his measures would be painful, this submission is irrelevant. There is no corresponding information in the reports of police officers xxx, xxx and xxx (BA 007). All that is mentioned there is the threat of immediate coercion. The chamber did not have to concern itself with whether it had to follow up on the declaration, even though the deadline set with the summons to the oral hearing in accordance with Section 87b Paragraphs 1 and 2 VwGO had already passed. Because even if the police officers or one of them had accompanied the threat of immediate coercion with the indication that the exercise of the coercion would be painful, this threat did not meet the requirements for the threat before using a nerve pressure technique. In such cases, the threat also requires the technology used to be named.
However, it is undisputed that there was no specific threat naming the technique used (here: pain grips or nerve pressure technique); From the perspective of the police at the time, it was not necessary because the case law had not yet specified the relevant obligations.
The threat was also not in accordance with Section 70 Paragraph 1 Sentence 3 Nds. SOG is unnecessary, as the defendant believes. According to this, the threat can be waived if the circumstances do not allow it, especially if the immediate use of the means of coercion is necessary to avert a current danger. There was no such exceptional case here. A current danger is a danger in which the impact of the damaging event has already begun or in which this impact is imminent immediately or in the very near future with a probability bordering on certainty (§ 2 No. 1 b) Nds. SO-CALLED). There was a present danger here because the plaintiff hindered the official deportation measure by holding on to the door handle, the legality of which the Chamber has no reason to doubt. However, in this specific case, the use of pain grips on the plaintiff was not necessary to avert the danger because the plaintiff clung to the front door and remained static there. It is not apparent that the time required for the threat would have affected the clearing of the hallway and the enforcement of the deportation measure. Under these circumstances, it would have been possible to threaten the use of pain in advance (orally).
Whether a separate threat was made during further measures in the course of removing the plaintiff from the building, in particular the punches carried out by police officer xxx against the plaintiff, and whether this, if no threat was made, is unnecessary according to Section 70 Paragraph 1 Sentence 3 Nds. SOG was can remain an open question. The plaintiff's further treatment on the way out of the building is part of a uniform enforcement measure without any time gap. There was also no qualitative break. Rather, further painful measures were taken against the plaintiff. It can therefore remain open whether a (renewed) threat of coercive measures must be made as part of a uniform enforcement measure if the intensity of the encroachment on fundamental rights increases significantly as a result of the coercive measure. The entire coercive measure is formally illegal.
Since the use of direct coercion against the plaintiff to enforce the expulsion did not meet the formal legality requirements, the question of whether the measure was also substantively illegal because it was disproportionate is not relevant to the decision.
3.
The use of irritant gas against the plaintiff by police officer xxx also represents a measure of direct coercion, namely using an aid. This measure is also illegal because there is no qualified threat.
The Chamber does not assess the use of irritant gas as part of the uniform enforcement measure to remove the plaintiff from the hallway (see Section II.2.), but as a separate measure. According to the report (BA 007, p. 59 f.), police officer xxx did not use the irritating gas specifically against the plaintiff, but rather sprayed it with a spray from outside into the hallway after he and his colleagues who were deployed in front of the front door had succeeded to push the front door open a crack. The plaintiff was exposed to the effects of the gas spreading around the front door.
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. SOG are used, these must be mentioned when there is a threat of immediate coercion (Nds. OVG, judgment of October 28, 2016, ibid., Rn. 27). The fact that the use of irritant gas was specifically threatened was neither stated nor does this emerge from the investigative files consulted. In this specific case, the threat of using irritant gas was also not in accordance with Section 70 Paragraph 1 Sentence 3 Nds. SOG unnecessary. The police officers held the crack in the door open with the piece of wood (spoon); Given the timing, it would have been possible to first shout the threat of using irritant gas into the hallway. It is not clear that this threat was unnecessary for actual reasons because no one among the people gathered in the hallway would have heard it.
The use of irritant gas from outside against those gathered in the hallway, to which the plaintiff was also exposed due to the scattering effect of the gas, is therefore formally illegal in the absence of a threat.
Here, too, it remains an open question whether the use of irritating gas was proportionate, in particular whether the route into the hallway should have been found via an access route other than the door, which is actually what happened.
The cost decision follows from Section 154 Paragraph 1 VwGO.
The decision on provisional enforceability follows from Section 167 VwGO in conjunction with Section 708 No. 11, 711 ZPO.
There are no reasons for allowing the appeal.
Instructions on legal remedies follow.
