DECISION
In the investigation proceedings
against xxx
due to suspected violation of the copyright law
The Kassel District Court, through Judge xxx of the Regional Court, decided on February 24, 2020:
It is determined that the seizure of the applicant's "Huawei" smartphone, ordered by the police on September 7, 2018, was unlawful.
REASONS
I.
On Friday, September 7, 2018, an AfD party campaign event took place in the Schauenburghalle in Schauenburg-Hoof. The applicant participated in a counter-demonstration.
The applicant's "Huawei" smartphone was confiscated after he used his smartphone to take portrait photos of police officers.
A standardized "brief report" was prepared on site, which included the following information:
"Start of action: 19:52
Location of action: Schauenburghalle, Schauenburg
(...)
Alleged offense/event: Copyright infringement
Location of offense/event: Schauenburghalle, Wahlgemeinde 21
Time of offense/event: 07.09.18, 18:00"
BS took individual and portrait photos of participants and police officers at a counter-demonstration. The photos of the AfD event participants were uploaded directly to a cloud service using BS's mobile phone.
Witnesses: xxx, PK; xxx, PK
In his memorandum dated October 2, 2018, witness xxx further states the following regarding the measure:
“As part of the AfD election campaign event on September 7, 2018 in Schauenburg-Hoof, the UZ. (…) was deployed as a security officer.”.
Opposite the Schauenburg Hall, a counter-demonstration was taking place, separated from the campaign event by barriers. Police were informed by other officers that a man, located directly behind the barrier, was conspicuously photographing and videotaping campaign participants and police officers with his smartphone. According to the police spokesperson, there was suspicion that this man was taking portrait photos, in particular, for later publication and was therefore to be subjected to a subsequent check.
Subsequently, Uz. was able to make videographic recordings of the aforementioned male person, xxx (…), using the officially issued video equipment. (…).
The BS xxx was subjected to an inspection by Police Constable Feldmann and Police Inspector Heidebauer (…) during the final stages of the counter-demonstration. During this inspection, Uz. took photographs of the BS xxx using the officially issued video equipment. (…)
The defendant did not inspect the smartphone of the officer
In the memorandum dated October 10, 2018, witness PK xxx states the following regarding the accusation:
“During this event, the accused xxx (…) took portrait photographs of the police officers present.
Police officer xxx, PK, together with officers xxx, PK, carried out the provisional arrest of the accused towards the end of the counter-demonstration.
Following his arrest, the accused, identified as xxx, was informed of his rights as a suspect in a criminal offense by police officer xxx, PK. He was accused of taking portrait photographs of police officers.
After being informed of his rights and having understood them, the accused commented on the matter as follows:
I admit to having taken portrait photographs of police officers. I have nothing to do with the other crimes committed in connection with the counter-demonstration.
The officer then asked xxx, PK, whether the accused owned a "cloud" and whether the portrait photos taken were automatically uploaded to it.
The accused answered this question in the affirmative.
The mobile phone was not examined on site
In a further short report dated September 7, 2018, the pattern for unlocking the smartphone was graphically recorded.
According to the final report dated December 29, 2018, the smartphone was accessed and reviewed by witness KOK xxx, who limited his review to image and video data. The analysis revealed that the applicant took a total of 64 photographs of the campaign event. These were primarily of the participants and organizers of the event. The applicant did not record any video files on that day. In particular, no image or video file that was publicly uploaded to Snapchat by an unknown person on that day could be found. The analysis did not establish that the Snapchat app was even installed on the smartphone.
In a memo dated December 18, 2018, Police Officer xxx documented that during an ongoing operation, he received a photo from a named acquaintance in which he and Police Officer xxx were clearly recognizable. This photo was taken from a video uploaded to Snapchat by the user "haite_heckspoiler." The acquaintance had seen the video on Snapchat, taken a screenshot, and asked Police Officer xxx if he was in the video. The officer then showed this to his colleague xxx, who said he would take further action. Initially, the photo was not to be forwarded to his colleague xxx. The screenshot submitted to the file shows the time as "20:51.".
In a letter from his lawyer dated October 8, 2018, the applicant requested a "judicial decision regarding the seizure that had taken place".
It subsequently emerged that the matter had already been handled by the public prosecutor's office in the related proceedings 2660 Js 4058/19, and that the proceedings there had been discontinued on January 25, 2019, pursuant to Section 170 Paragraph 2 of the Code of Criminal Procedure, as it could not be proven with the certainty required for an indictment that the applicant had made portrait photographs of police officers accessible to other persons. On January 29, 2019, the public prosecutor's office released the smartphone for collection by the applicant.
The public prosecutor's office believes that the measure taken on September 7, 2018 was lawful, as there was at least an initial suspicion of a crime under the Copyright Act.
II.
The seizure of the smartphone ordered by the police officers was unlawful.
Based on the records, the police officers involved in the matter, and the resulting objective sequence of events, it cannot be established that there was initial suspicion of a criminal offense by the applicant at the relevant time when the seizure was ordered.
In particular, at the relevant time of the seizure order, there was no initial suspicion of the commission of a prosecutable offense pursuant to Section 33 of the German Copyright Act (KunstUrhG).
An initial suspicion pursuant to Section 152 Paragraph 2 of the German Code of Criminal Procedure (StPO) must be based on sufficient factual indications, that is, on concrete facts that suggest that the specific set of circumstances under investigation constitutes a criminal offense (cf. Federal Court of Justice, NStZ 1994, 499 with further references). Mere assumptions not supported by concrete circumstances or purely theoretical possibilities are insufficient.
In connection with taking photographs of police officers at a demonstration, it should be noted that filming and photographing police operations is generally permissible. Even when close-up shots of police officers are taken, Sections 22 and 23 of the German Copyright Act (KunstUrhG) in conjunction with Section 33 of the German Copyright Act stipulate that only the distribution and public display of such images, but not the creation of portraits, is punishable. It can be assumed that images created unlawfully within the meaning of Sections 22 and 23 of the German Copyright Act are not always distributed (see Federal Constitutional Court, Decision of July 24, 2015, 1 BvR 2501/13, para. 14; Federal Administrative Court, Judgment of July 14, 1999 – 6 C 7/98, para. 27 = BVerwGE 109, 203 = NVwZ 2000, 63). Future unlawful conduct cannot be presumed from the outset and without further evidence (cf. Administrative Court of Baden-Württemberg, Judgment of August 19, 2010 – 1 S 2266/09, para. 36 with further references). Rather, the assumption that there is a concrete risk of such unlawful dissemination in a specific case requires sufficiently robust evidence (cf. Federal Constitutional Court, loc. cit., para. 14). In particular, if participants in an assembly who are being filmed or videotaped by the police themselves make audio and video recordings of the officers involved, it cannot be assumed, without further justification, that a violation of Section 33 Paragraph 1 of the German Copyright Act (KunstUrhG) is to be expected and thus that there is a concrete risk to a protected legal interest of the police. Rather, it must first be examined whether a dissemination or public display of the recordings made, sanctioned by Section 33 Paragraph 1 of the Copyright Act, is actually to be expected, or whether the making of the recordings is merely a reaction to the image and sound recordings made by the police, for example for the purpose of securing evidence in view of possible legal disputes (cf. Federal Constitutional Court, loc. cit., para. 15).
Therefore, substantial evidence is required to demonstrate that, at the time of seizure in the specific case, there was a concrete risk of the applicant's photographs being unlawfully disseminated. However, such substantial factual evidence cannot be found in the file.
The testimony of witness PK xxx merely indicates that he was informed by other police officers that a man, later identified as the applicant, was located directly behind the barrier and was allegedly "conspicuously" photographing and videotaping. According to the police commander, there was suspicion that this man had taken portrait photographs, in particular, for later publication, which is why an order was issued for him to be subjected to a subsequent check. The memorandum merely states that, for reasons not further explained, the police commander concluded that a man – later identified as the applicant – had taken portrait photographs, in particular, for later publication. There were no concrete and sufficiently substantiated factual indications, based on criminal investigation experience, that would have led to the suspicion that the applicant had disseminated or publicly displayed images in violation of Sections 22 and 23 of the German Copyright Act (KunstUrhG) and thus committed an offense under Section 33 Paragraph 1 of the German Copyright Act (KunstUrhG). However, these general statements do not reveal any potential culpability. They merely reproduce a conclusion drawn by the police commander, the factual basis of which is not documented in the file. The factual basis on which the police commander arrived at his assessment remains unclear.
Furthermore, it must be noted that, based on the assessment of the police commander documented by witness PK xxx, there was only reason to fear that the then-unknown male individual – i.e., the applicant – was taking portrait photographs, particularly for later publication , but not that the dissemination or public display of the photographs, punishable under Section 33 Paragraph 1 of the German Copyright Act (KunstUrhG), had already occurred. However, the suspicion of merely preparing such an act does not establish initial suspicion of a prosecutable offense under Section 33 Paragraph 1 of the German Copyright Act (KunstUrhG).
In the event that, based on sufficiently credible evidence, the police could assume that, in a specific case, there was a concrete risk of such unauthorized dissemination, preventive police intervention may be justified, taking into account the prerequisites for intervention under police law. Whether such intervention can even be the subject of these proceedings and thus a standard of review for the court's decision can remain undecided, since in the present case no sufficiently credible factual evidence has been documented to suggest that a public display of photographs or video recordings obtained in violation of Sections 22 and 23 of the German Copyright Act (KunstUrhG) was a concrete risk.
The mere fact that the recordings – as in the present case – were made using a smartphone, and thus a device that allows a participant in the assembly to immediately disseminate or publish any recordings with an internet connection, does not in itself constitute a sound factual indication that, in the specific case, there was a concrete risk of such unlawful dissemination or publication. This applies all the more in the present case, since there was a serious possibility that the applicant's making of the recordings was merely a reaction to the image and sound recordings made by the police.
The statements of witness PK xxx also fail to provide sufficient factual evidence to establish initial suspicion of a criminal offense under Section 33 of the German Copyright Act (KunstUrhG). In particular, such initial suspicion does not arise from the applicant's own statements on site. The applicant allegedly admitted – which he denies – after being informed of his rights, that he had taken portrait photographs of police officers and that he "owned" a "cloud" to which the photographs were automatically uploaded. However, even such an upload to one's own cloud does not, in principle, constitute the distribution or public display of images punishable under Section 33 of the German Copyright Act (KunstUrhG).
Finally, even considering the observations of Police Officer xxx, documented in the memorandum of December 18, 2018, more than three and a half months after the event, the applicant's suspicion of an offense punishable under Section 33 Paragraph 1 of the German Copyright Act (KunstUrhG) cannot be established based on facts. The file does not indicate that the events described therein—namely, the publication of a photograph of Police Officer xxx and Police Officer xxx via the Snapchat app—were already known to the police at the time the measure in question was carried out. On the contrary, this assumption is contradicted by the fact that, in this case, it would have been expected that the directly affected witness, Police Officer xxx, would have already addressed this in his memorandum of October 10, 2018. Furthermore, the fact that the screenshot of the recording submitted to the file shows the time as "20:51" also argues against the assumption that this information was already available to the police officers who ordered the seizure at the relevant time.
