DECISION
33 b XIV 247/20 L
09.12.2020
In the appeal proceedings
concerning
1)
xxx,
Legal representative:
Attorney Sven Adam, Lange Geismarstraße 55, 37073 Göttingen
-Complainant-
2.)
Braunschweig Police Inspectorate,
Friedrich-Voigtländer-Str. 41,
38104 Braunschweig
– Participants in point 2) —
The appeal of the person concerned against the decision of the Braunschweig District Court of 12.09.2020 (33b XIV 247/20) is granted.
The decision of the Braunschweig District Court of 12 September 2020 (33b XIV 247/20) is overturned.
It is determined that the detention of the complainant by party 2) on 12 September 2020 was unlawful.
No costs will be charged for the appeal procedure.
The necessary extrajudicial costs of the appellant shall be borne by the party listed as number 2).
The value in dispute for the appeal proceedings is set at €5,000.00.
REASONS
The decision is based on Section 18 Paragraph 1 Number 2 NPOG; according to this, a person may be taken into custody if this measure is essential to prevent the imminent commission or continuation of a criminal offense or an administrative offense of considerable danger to the public.
These conditions are not met in the present case.
The aforementioned decision states that, without the intervention of the police officers, the person concerned would have committed a serious crime or administrative offense, namely resisting law enforcement officers and serious breach of the peace, without any specific actions by the person concerned from which past or imminent criminal conduct can be inferred. Mere reference to the "police report" is insufficient.
Moreover, neither the short report nor the summary report of the police, which was attached to the application for a judicial decision on the admissibility of the police order for detention, reveals any individual, concrete action by the person concerned.
While the brief report on the facts refers to the summary report, the summary report describes the behavior of a group of approximately 30 people, from which a group of 5 people managed to reach the street through a gate at the exit of a plot in the Weinberg allotment garden association, which was being held shut by police officers. Neither the brief report nor the summary report specifies whether the person in question was part of this group of 5.
A “supplementary form SV” listed in the summary report for “4. Facts” is not in the file.
In the absence of a concrete act by the person concerned, it cannot be assessed whether the continuation of a criminal offense or the commission of a criminal offense or administrative offense posing a significant danger to the public was imminent.
According to established case law, the concept of the imminent commission of a crime must be interpreted in light of the high value placed on personal liberty (see Higher Regional Court of Braunschweig, decision of June 1, 2020, 3 W 67/20 with further references). It is equivalent to "imminent danger" or "present danger" within the meaning of Section 2 No. 2 of the Lower Saxony Public Safety and Order Act (NPOG). Accordingly, particular requirements must be met regarding the temporal proximity of the occurrence of the damage (Higher Regional Court of Celle, decision of July 3, 2017 — 22 W 4/17). There must be verifiable, specific facts that justify the assumption that the damage will occur immediately or in the very near future and, moreover, with near certainty (Higher Regional Court of Braunschweig, AAO; Federal Administrative Court, judgment of February 26, 1974 – IC31.72-NJW 1974 807).
From an objective standpoint, at the time the detention order was issued, there was insufficient factual evidence to suggest that the appellant was likely to commit a crime or an administrative offense posing a significant danger to the public in the very near future. It was not stated whether the individual belonged to the group that entered xxx Street through the gate or to those carrying a wooden plank. Based on the police reports, it could not be determined whether he had already committed any offenses – specifically, breach of the peace and resisting arrest.
Even the completion of such acts, in itself, would not have justified detention. The decisive factor is whether it could be expected with near certainty that the individual, after pepper spray was used and he was restrained by police officers in a head hold, would commit or continue further criminal offenses and misdemeanors posing a significant danger to the public after the conclusion of the criminal proceedings. There is no evidence of this in the present case. Group membership alone is insufficient. The described circumstances provide no indication whatsoever that the participants constitute a cohesive group acting in a targeted and coordinated manner, and from whom further unrest and collective actions could be expected even after the conclusion of the legal proceedings.
The decision on costs is based on Sections 81 FamFG and 19 Paragraph 4 Sentence 1 NSOG. Given the circumstances, it is equitable to order the second party to bear the necessary extrajudicial costs incurred by the appellant.
The determination of the value of the appeal is based on Sections 36 Paragraph 3, 61 GNotKG.
