DECISION
33 b XIV 249/20 L
14.12.2020
In the appeal proceedings
concerning
xxx,
– Party involved in point 1) –
Legal representative:
Lawyer 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 249/20) is granted.
The decision of the Braunschweig District Court of 12 September 2020 (33b XIV 249/20) 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 makes a blanket assertion that, were it not for the intervention of the police officers, the individual in question would have committed a serious crime or administrative offense, namely resisting law enforcement officers and aggravated breach of the peace. However, no specific actions by the individual that would demonstrate past or imminent criminal conduct are mentioned.
Referring to "the police report" is insufficient in this respect.
Furthermore, the police's "collective report" submitted with the application does not reveal any individual conduct of the person concerned; rather, it describes the behavior of a group of approximately 30 people. Only the fact that a group of 5 people managed to reach the street through a gate held shut by police at the exit of a plot in the Weinberg allotment garden association, the personal details listed in the summary report, and the fact that the person concerned was brought before the police allow us to conclude that he was apparently part of this group of 5 people.
The supplementary fact sheet referenced in the summary report regarding the facts of the case cannot be found in the file. Only a "brief report" is attached. This report contains personal details of the individuals involved and the officers involved, and under the heading "Alleged Offense/Incident," it only lists the relevant penal provisions and otherwise refers to the summary report.
In the absence of a concrete act by the person concerned, it is particularly impossible to assess 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.
The mere fact that the person concerned managed to reach the street through the gate held shut by the police is not sufficient in this respect.
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. The lack of any description of the individual actions taken by the person concerned, in particular whether, for example, he carried one of the wooden slats, makes it questionable whether he had already committed any acts and thus committed any offenses—in this case, breach of the peace and resistance against law enforcement officers.
The decisive factor, however, is whether it could be expected with near certainty that the appellant, after being brought to the ground by police officers and following the conclusion of the criminal proceedings, would commit or continue further criminal offenses and administrative violations posing a significant danger to the public. There is no evidence of this in the present case. Group membership alone is insufficient. The police summary report, in conjunction with the brief report, indicates at most that the individual in question, along with four other people, managed to break through the police cordon and reach the street. The described circumstances provide no indication whatsoever that the participants constitute a cohesive group acting in a purposeful and coordinated manner, and that further unrest and collective actions could be expected from them even after the conclusion of the legal proceedings.
The decision on costs follows from §§ 81 FamFG, 19 para. 4 sentence 1 NPOG.
Given the circumstances, it is equitable to impose the necessary extrajudicial costs incurred by the appellant on the party referred to in point 2).
The determination of the value of the appeal is based on Sections 36 Paragraph 3, 61 of the Court and Notary Fees Act.
