DECISION
In the administrative law case
xxx,
– Plaintiff –
Legal representative:
Attorney Sven Adam,
Lange Geismarstraße 55,
37073 Göttingen,
against
Free and Hanseatic City of Hamburg,
represented by the Authority for the Interior and Sport
-Police-
Legal Department (J),
Bruno-Georges-Platz 1,
22297 Hamburg,
– Defendant –
The Hamburg Administrative Court, Chamber 19, issued the following decision on September 20, 2021, through Judge xxx as rapporteur pursuant to Section 87a Paragraph 1 Nos. 3 and 5, Paragraph 3 of the Code of Administrative Court Procedure
It was decided:
The proceedings are discontinued.
The defendant shall bear the costs of the proceedings.
Legal notice:
This decision is final and not subject to appeal (§§ 92 para. 3 sentence 2 analogously, 158 para. 2 VwGO).
REASONS
I.
Since the parties already unanimously declared this procedure settled in December 2020 (see written submissions of December 9 and 28, 2020, pp. 55 and 60 of the file respectively), the procedure is to be discontinued in accordance with Section 92 Paragraph 3 Sentence 1 of the Administrative Court Procedure Act.
II.
The defendant shall bear the costs of the proceedings in accordance with Section 161 Paragraph 2 Sentence 1 of the Administrative Court Procedure Act (VwGO).
Once the main issue in the legal dispute has been resolved, the court decides on the costs of the proceedings at its equitable discretion, taking into account the previous state of the proceedings and the merits of the case. In this instance, following the legal assessment expressed in Section 155 Paragraph 4 of the Code of Administrative Court Procedure, it is equitable to order the defendant to bear the costs of the proceedings.
Pursuant to Section 155 Paragraph 4 of the Code of Administrative Court Procedure (VwGO), costs incurred through the fault of a party may be imposed on that party. According to the summary review merely indicated under Section 161 Paragraph 2 Sentence 1 VwGO, the costs of this legal dispute would not have been incurred had the defendant served the remedial decision of November 15, 2019, on the plaintiff's representative as their authorized agent in these administrative proceedings. Had this been done, the plaintiff would most likely have refrained from filing the lawsuit on September 19, 2020. Insofar as the defendant argues that, based on a letter from the plaintiff's representative dated December 1, 2017, it was correct to assume that the plaintiff's representative had withdrawn from the administrative proceedings (also) pursuant to Section 81b of the Code of Criminal Procedure (StPO), the court cannot concur with this assessment after a summary review. The notification of resignation, sent by letter dated December 1, 2017, was not addressed to the defendant (the police) – but rather to the Hamburg Public Prosecutor's Office – nor did the letter bear the file number "0581/17sva" assigned to this administrative proceeding by the plaintiff's representative (see the objection of September 27, 2017, case file regarding this file number) – but rather the file number "0580/17sva" assigned to the criminal proceeding (see the notification from the defense counsel dated September 27, 2017, case file regarding this file number). Furthermore, all of the plaintiff's representative's written submissions concerning the administrative proceeding bore the subject line "Order for the identification procedures of Bastian Brücker, decision of August 28, 2017…" and were addressed to the Hamburg Police. In contrast, the letter dated November 15, 2017, addressed to the Hamburg Public Prosecutor's Office and cited by the defendant, bears the subject line “…re: suspicion of serious breach of the peace, …”. Therefore, the defendant should not have automatically assumed that the mandate had been resigned (also) in these administrative proceedings. In case of doubt, a request for clarification would have been appropriate.
Regardless, the defendant should have been aware of the continued existence of the plaintiff's administrative mandate upon receiving the plaintiff's representative's reminder letter of December 16, 2019. This should have prompted the defendant to subsequently inform him of the remedial decision of November 15, 2019. While the defendant initially denied receiving the aforementioned letter of December 16, 2019, citing a missing transmission confirmation, it did not contest the corresponding fax transmission report of December 29, 2019, subsequently submitted by the plaintiff's representative (but before submitting its declaration of settlement). Further clarification of the facts is not required within the scope of the decision pursuant to Section 161 Paragraph 2 Sentence 1 of the Code of Administrative Court Procedure.
Insofar as the action for annulment, initially brought as an action for failure to act against the decision of August 28, 2017, would have had to be dismissed due to the remedial decision already issued to Mr. Attorney Elster at the time the action was brought, this did not lead to a different discretionary decision under Section 161 Paragraph 2 Sentence 1 of the Code of Administrative Court Procedure, since the plaintiff's representative indisputably had no knowledge of this due to the lack of service of the remedial decision (also) on him, and the statutory assessment expressed in Section 155 Paragraph 4 of the Code of Administrative Court Procedure takes precedence.
No other discretionary decision under Section 161 Paragraph 2 Sentence 1 of the Code of Administrative Court Procedure (VwGO) justifies the amendment to the complaint filed on November 6, 2020, to which the defendant responded on the merits in its written submission of December 2, 2020 (Section 91 Paragraph 2 VwGO). The court therefore considers an allocation of costs in accordance with Section 156 VwGO, even taking into account the acknowledgment of the amended claim in the written submission of December 2, 2020, to be unreasonable in light of the preceding explanations regarding the grounds for filing the complaint. (However, the substitution of the subject matter of the dispute by the subsequent amendment of the claim should not have a detrimental effect on the value [§§ 6, 39 GKG] for the defendant, since a aggregation of different subject matters of dispute pursuant to § 39 GKG only occurred if the different subject matters of dispute had been pursued at least temporarily concurrently [cf. Schindler in BeckOK Kostenrecht, Dörndorfer/Wendtland/Gerlach/Diehn, 34th edition, as of 1 July 2021, § 40 para. 8 f. ], which did not happen). Regardless, given the defendant's statement in the written submission of December 2, 2020, that their declaration that the involvement of a representative in the preliminary proceedings was necessary did not imply that the plaintiff's representative should be considered that representative, the existence of a procedural acknowledgment required for the application of Section 156 of the Code of Administrative Court Procedure (VwGO) is already doubtful (see Neumann/Schaks in Sodan/Ziekow, VwGO Großkommentar, 5th edition 2018, Section 156, marginal note 12).
