DECISION
In administrative law matters
xxx,
– Plaintiff –
– Respondent –
Legal representation:
Attorney Sven Adam,
Lange Geismarstraße 55, 37073 Göttingen
against
State of Baden-Württemberg,
represented by the Stuttgart Police Headquarters - Human Resources Department -, Hahnemannstraße 1, 70191 Stuttgart
– Defendant –
– Applicant –
Due to the determination of the illegality of police measures
here: Application for permission to appeal
The 1st Senate of the Baden-Württemberg Administrative Court has the President of the Administrative Court xxx, the presiding judge at the Administrative Court xxx and the judge at the Administrative Court xxx
on August 11, 2022
decided:
The defendant's application for admission to appeal against the ruling of the Stuttgart Administrative Court of November 10, 2021 - 5 K 2034/20 - is rejected.
The defendant bears the costs of the admission procedure.
The amount in dispute for the admission procedure is set at EUR 5,000.
REASONS
The timely submission and justification based on the merits of the serious doubts about the correctness of the judgment (Section 124 Paragraph 2 No. 1 VwGO; I.), the fundamental significance of the case (Section 124 Paragraph 2 No. 3 VwGO ; II.) and the divergence (Section 124 Paragraph 2 No. 4 VwGO; III.) based application for admission to appeal was unsuccessful.
I. For the reasons presented by the defendant, there are no serious doubts as to the correctness of the contested judgment.
a) The presentation of serious doubts within the meaning of Section 124 Para. 2 No. 1 VwGO requires that a legal principle supporting the administrative court's decision or a factual finding that is relevant to this decision is questioned with conclusive counter-arguments (BVerfG, decision of June 23 .2000 - 1 BvR 830/00 - VBlBW 2000, 392; VGH Bad.-Württ., decision of May 3, 2011 - 10 S 354/11 - VBlBW 2011, 442). To do this, on the one hand, the challenged legal principles or factual findings must be correctly worked out - at least in essence (VGH Bad.-Württ., decision of August 11, 1999 - 6 S 969/99 - juris). On the other hand, conclusive objections to these legal principles or findings of fact must be demonstrated, whereby the burden of presentation in each individual case depends on the circumstances of the respective proceedings (VGH Bad.-Württ., decision of August 11, 1999, ibid., and of February 27, 1998 - 7 S 216/98 – VBlBW 1998, 378 mwN), in particular the scope and depth of the reasons given for the decision of the administrative court. The reason for admission exists if a review of the arguments presented based on the files shows that there are actually serious doubts about the correctness of the judgment under appeal.
If serious doubts are to be raised about the correctness of the judgment, particularly with regard to an assessment of facts or evidence, special requirements must be placed on the presentation of the reason for admission (cf. NdsOVG, decision of January 18, 2001 - 4 L 2401/00 - juris ). According to Section 108 Paragraph 1 Sentence 1 VwGO, the court decides according to its free conviction based on the overall result of the proceedings. It is therefore the task of the factual court to form its conviction about the facts relevant to the decision based on the overall result of the proceedings by freely assessing the evidence. How it forms its conviction, i.e. how it evaluates the facts and evidence available to it, is subject to its freedom. Compliance with the resulting procedural obligations is not called into question if a party involved wants to assess the available factual material differently or draw different conclusions from it than the court. The freedom of the court is only exceeded when it either does not base its assessment of the facts and evidence on the overall result of the proceedings, but rather, according to its legal opinion, ignores the content of the file that is relevant to the decision or accepts facts that are contrary to the file, or if the conclusions it draws violate the laws of thought ( St. case law, cf., among others, BVerwG, decision of May 17, 2011 - 8 B 88.10 - juris and decision of March 28, 2012 - 8 B 76.11 - LKV 2012, 409).
With objections to the judge's free conviction gained from the overall result of the procedure, the correctness of the administrative court's decision is only called into question when good reasons are shown that the conviction formed by the administrative court is inadequate, for example because the administrative court did so in its decision The decision was based on incorrect facts with regard to a fact that is relevant to the decision or the assessment of the evidence shows gaps or inconsistencies. The latter is to be assumed in particular in the event of a violation of legal rules of evidence, laws of thought or general principles of experience, if the facts of the case are assumed to be contrary to the documents or if the assessment of evidence is obviously improper and therefore arbitrary. The mere possibility of a different assessment of the result of taking evidence is not sufficient to justify serious doubts (NdsOVG, decision of January 18, 2001 - 4 L 2401/00 -; OVG LSA, decision of February 28, 2012 - 1 L 159/ 11 -; OVG NRW, decision of June 21, 2012 - 18 A 1459/11 -; all in juris; VGH Bad.-Württ., decision of July 12, 2012 - 2 S 1265/12 - NVwZ-RR 2012 , 778).
b) Based on these standards, the defendant has not put forward any significant reasons to suggest that the administrative court judgment could be incorrect.
aa) In this regard, he stated that the system used by the administrative court, the circumstances that could indicate that the plaintiff was apparently a disruptor, and the protected interests affected in each case should first be examined in isolation and that the denial of the apparent disruptive character in the isolated examination also applies when viewed as a whole the denial of the plaintiff's apparent disruptive nature is not suitable for depicting and evaluating a police assessment of a danger from an ex ante perspective. This restricts the overall view in an inadmissible and inaccurate manner. In addition, the overall view carried out by the administrative court is incomplete. The police operations manager did not assume ex ante that the plaintiff had merely followed the group of masked people. Rather, the head of operations assumed that the plaintiff was part of the group that walked through the royal building wearing masks. The administrative court pointed this out in the facts of the case, but did not go into it in the reasons for its decision. However, the ex ante assumption that the walk through the Königsbau as part of the group underlined the encounter situation in such a way that it could be concluded that there was a disturbance by the plaintiff. The head of operations also had to conclude this after he received the report that a demonstration observer had been expelled from the square because of disrupting an identity check, that a group of around 20 people were walking through the Königsbau wearing masks, and finally the plaintiff, as a former demonstration observer , was found directly with this group, far away from any meeting, and did not want to distance himself from it without further ado.
According to the case law of the Baden-Württemberg Administrative Court, the location and time connection required for the assumption that the plaintiff appeared to be a disruptor existed because insults and physical attacks on police officers had occurred in the immediate vicinity of the plaintiff and the group had previously run through the Königsbau have given. It was likely that the plaintiff took part in this run because there were constant disruptions and a demonstration observer was sent off.
Furthermore, the administrative court's assumption that only disruptions or threats to the same protected assets could be taken into account in the overall view is systematically incorrect. Because for the affirmation of police responsibility according to § 6 PolG a. F. could not be required to claim that the apparent disruptor had created an increased risk through his behavior. In addition, only those who have already caused a danger or disruption to the same legal interest can then be prosecuted as a troublemaker. It must be taken into account that the intensity of intervention in a simple identity check is comparatively low, so that the threshold for an apparent risk cannot be set as high as the administrative court did. Furthermore, there was ex ante evidence that the plaintiff was supporting the group of troublemakers. In addition, the plaintiff's personal identification also aimed to prevent further disruptions in identity checks. Contrary to the administrative court's opinion, the fact that the plaintiff showed solidarity with the group of troublemakers also follows from the fact that the plaintiff was with the group of troublemakers even though the meeting had already ended at that time. The fact that the group of troublemakers were young Kurds did not correspond to the operations manager's ex ante view. In addition, the head of operations had information that violent people from the so-called “left-wing scene” had also expressed solidarity with the violent meeting participants. The warning vest as a demonstration observer cannot justify an observer role outside, far away and clearly after a meeting. The plaintiff was on the edge of the enclosure. However, due to the limited space, he was still standing directly next to the group of troublemakers. There were therefore indications that the plaintiff had left his neutral position and expressed solidarity with the group of troublemakers. There was also no talk of the situation calming down. A prior verification of the disturbing property also clearly exceeds the requirements for the apparent disturbing property. It cannot be concluded from the fact that the plaintiff did not cause any further disruption or danger during the police encirclement that the plaintiff was not a troublemaker. The operations manager could not have known ex ante about the plaintiff's later reports. Therefore, it cannot be taken into account in the examination. The offer to uninvolved people to be able to leave the enclosure after providing their personal details was only based on the principle of proportionality. Unlike uninvolved people, the plaintiff initially did not attempt to move away from the group of troublemakers. However, anyone who consciously seeks proximity to a group of disruptors also runs the risk of being considered part of this group. The plaintiff then tried to leave the enclosure. However, this was not done to distance oneself from the group of troublemakers, but rather to avoid identification of their identities. According to the facts of the administrative court, the plaintiff's companion stated that he had been sent off and threatened with detention. This, together with the other evidence, shows that he has abandoned his neutral observer role. The data that the plaintiff left with the police was not sufficient to establish his identity (see the defendant's written statement of March 10, 2021, pp. 1 to 11).
bb) This reasoning, which goes against the opinion of the administrative court, according to which the plaintiff could not have been viewed as a prima facie disturber with regard to the police measure carried out by the defendant to identify the person, does not raise serious doubts about the correctness of the administrative court's judgment .
The administrative court denied that the plaintiff appeared to be a nuisance with regard to the identification of the person on the grounds that there were no sufficiently established factual circumstances for police intervention (UA p. 25).
There was a lack of sufficient factual evidence to show that the plaintiff had left his observer role and expressed solidarity with or supported the group. The fact that the plaintiff is standing with the encircled group alone is not sufficient for this assumption. The plaintiff avoided any appearance of support, both externally and through his actions. As far as can be seen, he refrained from any interaction with the members of the group and was consistently identified as not belonging to the group by his high-visibility vest. In addition, the plaintiff also positioned himself inside the police cauldron at the edge, standing against the wall of the building, and neither the defendant's statements nor the video material viewed revealed any actual evidence of the plaintiff's association with the group, such as a conversation or gestures from the communication or similar. The plaintiff was clearly dressed as a meeting observer and was present as such throughout the meeting. There are no indications that he would have left this neutral role. The situation has also calmed down again as a result of the encirclement. Instead of a short-term reaction to a dynamic event, a decision had to be made under less time pressure, so that there was, among other things, the opportunity to further clarify the facts. The specific situation in which the plaintiff was encountered in the encirclement did not provide sufficient evidence to establish his status as a troublemaker. According to the Chamber's conviction, the plaintiff followed the running group, but in no way consciously entered the cauldron. In addition, the plaintiff consistently distanced himself from the possible troublemakers. He was almost always on the edge of the encircled group with his back to the building and was clearly visible to the outside world through his vest as a demonstration observer and thus identified as a third party who did not belong to a group. He also distanced himself from the group by repeatedly asking to be released from the cauldron. Furthermore, as a member of the Southwest Demonstration Observation, the plaintiff had provided the police with a name and telephone number in advance, so that direct telephone contact was possible at any time. Sufficient facts for the assumption of an apparent disruptive quality do not arise from the plaintiff's behavior after the encirclement. To the extent that the plaintiff did not provide his personal details in order to be released from the encirclement in advance, the establishment of identity is precisely an act of sovereignty under attack here and therefore a state measure that can be justified by the existence of other facts. Failure to perform this act voluntarily is not sufficient to constitute a risk. Even the subsequent reporting on the police operation cannot justify such suspicion. It is not suitable for this in terms of time because there must be sufficient suspicion at the time the police action is taken. The expulsion that was issued could also not justify the apparent nuisance liability because the expulsion related to another protected item, namely ensuring that the personal checks were carried out undisturbed following the demonstration. The protective purpose of the personal arrest, on the other hand, was to prevent dangers to the health and property of passers-by in the Königsbaupassage. There is also no connection between the measures taken of such a nature and quality that the disruption of police work following the demonstration would also have justified disruptive status with regard to the measures after the encirclement.
Even from an overall view of the above-mentioned circumstances, there would be no sufficient factual evidence to view the plaintiff as a prima facie disturber. According to the above, neither the expulsion of a demonstration observer nor the suspicion of support for the members of the disruptive group were based on actual evidence that would have suggested that the plaintiff posed a threat to the legal interests of passers-by in and around the Königsbau. Accordingly, they were unable to underline the encounter situation as the remaining factual indication in such a way that a disturbance by the plaintiff could legally be concluded not from the plaintiff's stay in the boiler alone, but from a combination of these other circumstances (UA pp. 24 to 34).
cc) The administrative court's reasoning is not called into question by the admission submission to such an extent that serious doubts would arise as to the correctness of the judgment.
Insofar as it is claimed that the overall view carried out by the administrative court was incomplete because the head of operations had to assume ex ante based on the overall circumstances that the plaintiff was part of the group that walked through the Königsbau masked, the admission argument is without success - and assessment of the facts by the administrative court.
Because of the plaintiff's positioning on the edge of the cauldron, his clothing as a demonstration observer, his lack of support for the group of troublemakers during his stay in the police cauldron and his repeated requests to be released from the cauldron, the administrative court assumed that the plaintiff was sufficiently safe distanced myself from the group (UA pp. 28 to 29). The defendant counters this assessment by the administrative court with his own assessment of the facts and, on this basis, comes to the conclusion that the plaintiff did not distance himself sufficiently from the group. However, the application for admission cannot be successful because the assessment of the facts and evidence is a matter for the court and the court's freedom in this regard - as shown - is only exceeded if it does not base its assessment of the facts and evidence on the overall result of the proceedings , but according to his legal opinion he ignores the content of the file that is relevant to the decision or accepts facts that are contrary to the file, or if the conclusions he draws violate the laws of thought. However, there is no evidence of this, either from the defendant's statement or otherwise.
Furthermore, the administrative court's assessment is also compatible with the Senate's case law. Because according to the case law of the Senate (cf. judgment of December 14, 2010 - 1 S 338/10 - juris Rn. 26), someone who does not actually cause a danger ex post, but does ex ante in the case of a capable, level-headed person, is a person who appears to be disturbing the appearance and knowledgeable police officers gave the impression of causing danger. Two groups of cases can be distinguished. The prevailing opinion understands an apparent disruptor to be a person who has either created an apparent danger through their behavior or has caused a real danger through their behavior. In the second group of cases, the term apparent disturber is applied to constellations in which the danger is probable or even certain, but in which there is only a possibility or a suspicion regarding the person responsible. If it is not the existence of a danger but rather its originator that is unclear, i.e. if there is a suspicion that the danger has been caused, the person concerned should be able to be held liable as the apparent cause (Stephan/Deger, Police Act for Baden-Württemberg, 7th ed., § 7 Rn. 6 ). In the literature, in this group of cases it is also sometimes required that the person has directly caused the appearance through their behavior or something that can be attributed to them (e.g. Schenke/Ruthig, legal liability in police and regulatory law? - On the police law responsibility of the so-called Apparent disruptors, VerwArch 87 (1996), 329, 331). Even according to this view, direct causation does not necessarily require a violation of a specific legal norm. It is sufficient if conduct is objectively capable of giving third parties the impression that there is a risk of damage to a legal interest protected by the police (risk of misleading). Even those who do not know that they are being watched by the police assume the risk that their behavior in public will lead to conclusions that they are a disruptor (Schenke/Ruthig, ibid. p. 340 f.).
Based on this, the administrative court rightly denied that the plaintiff was a disruptor. In contrast to the fact that the administrative court first examined the possible starting points for the plaintiff's apparent nuisance liability in isolation and then made another overall assessment, there is nothing to be legally recalled. The defendant does not explain why the overall view is intended to be inadmissibly and inaccurately restricted and is not otherwise apparent.
The so-called risk of misleading would be borne by the plaintiff. Such deception can occur if a person is in a very close time and place connection to a public security disturbance committed by a group and does not distance themselves sufficiently from the group. Whether there is sufficient distancing can only be determined by taking into account the specifics of the individual case (cf. Senate, decision of March 10, 2015 - 1 S 1225/14 -). However, this is also what the administrative court assumed (UA p. 31). However, it saw sufficient distancing on the part of the plaintiff in the context of an overall assessment, in particular in the fact that the plaintiff was almost always on the edge of the encircled group, was clearly identified from the outside by his vest as a demonstration observer and asked several times to leave the group Kessel to be released (UA pp. 28 to 29). There is nothing wrong with this. In particular, the plaintiff's distancing in the present case went beyond describing himself as a demonstration observer and merely putting on special clothing (cf. Senate, decision March 10, 2015 - 1 S 1225/14 -)
In addition, the administrative court also rightly assumed that the expulsion issued cannot lead to the plaintiff being assumed to be liable for apparent disturbance because the expulsion related to another protected interest, namely ensuring that the personal checks were carried out undisturbed following the demonstration (UA p. 32). The dangerous situation in this regard had already ended when the group of around 20 people started running through the Royal Building and the resulting danger to the health and property of passers-by in and around the Royal Building. However, a disruptive property can only be examined in relation to the danger it causes. The administrative court did this without any legal errors. By asserting that the plaintiff's personal identification was also intended to prevent further disruptions in identity checks, the defendant is once again attacking the administrative court's assessment of facts and evidence, without showing that the administrative court ignored file content that was relevant to the decision or accepted facts that were contrary to the file.
II. The case has no fundamental significance within the meaning of Section 124 Paragraph 2 No. 3 VwGO. This is only the case if the desired further legal proceedings could contribute to answering specific legal questions that are relevant to the decision or questions that have not been clarified in the area of factual findings and have implications that go beyond the individual case and which require clarification by higher courts in the interest of the uniformity of case law or the further development of the law. The presentation of these requirements requires that, while going through the content of the first-instance judgment, a specific legal or factual question is identified, that is, named, which was crucial for the decision of the administrative court and which will also be significant for the decision in the appeal proceedings, and that a reference the reason is given that is intended to justify their recognition as fundamentally significant (cf. VGH Bad.-Württ., decision of June 5, 1997 - 4 S 1050/97 - VBlBW 1997, 420 mwN; decision of August 19. 2010 - 8 S 2322/09 - ZfWG 2010, 424). Admission in accordance with Section 124 Paragraph 2 No. 3 VwGO is not possible due to the lack of relevance to the decision on a fundamental question raised if the contested judgment is based on several independent supporting reasons and one of the supporting reasons is not or not successfully challenged in the application for approval. In the case of such multiple reasons, the admission requirements must generally be met for each of the reasons (cf. OVG NRW, decision of April 15, 2008 - 6 A 185/06 - juris Rn. 4, with further references; BayVGH, decision of March 10 .2011 - 14 ZB 09.2479 - juris paragraph 7; decision of June 8, 2011 - 12 ZB 10.1727 - juris paragraph 10).
The admission argument does not succeed in penetrating the content of the first instance judgment to identify a specific legal or factual question that was crucial for the decision of the administrative court and that will also be relevant for the decision in the appeal proceedings, and also an indication of the reason for it that justifies their recognition as fundamentally important.
The only question that is actually formulated by the defendant is what role the overall view plays in the examination and whether it is correct to reduce it de facto to a repetition of the isolated examination of the individual circumstances that speak for the disruptive nature (written statement of the defendants of March 10, 2022 p. 13), does not arise in this way. The administrative court did not reduce the overall view to a repetition of the isolated examination of the individual circumstances that speak for the disruptive nature, but rather examined whether all possible starting points for the plaintiff's possible apparent disruptive nature could, in an overall view, lead to a different result than in the context the isolated consideration (UA pp. 33 to 34).
III. The defendant's complaint of divergence cannot be successful either. The presentation of a divergence opening the appeal according to Section 124 Paragraph 2 No. 4 VwGO first requires that an abstract legal sentence that is specific to the content and supports the contested decision is named and compared with a legal sentence of the divergence court relating to the same legal provision that is in turn relevant to the decision (see case law ., cf. only BVerwG, decision of December 20, 1995 - 6 B 35.95 - NVwZ-RR 1996, 712). The mere incorrect application of a legal sentence established by the divergence court is not a deviation in this sense (st. case law, cf. BVerwG, decision of July 10, 1995 - 9 B 18.95 - NVwZ-RR 1997, 101), nor is the overlooking of a legal question or a legal sentence (st. case law, cf. BVerwG, decision of February 17, 1997 - 4 B 16.97 - NVwZ-RR 1997, 512). A hidden divergence that leads to approval can only exist if the administrative court has implicitly assumed a divergent legal principle (cf. BVerwG, decision of March 26, 2012 - 2 B 26.11 - juris).
The defendant's arguments clearly do not suffice. He does not name any abstract legal sentence that determines the content of the contested decision, but rather repeats his criticism of the administrative court's decision. As a result, he fails to meet the presentation requirements for a complaint of divergence.
The cost decision follows from Section 154 Paragraph 2 VwGO. The determination of the amount in dispute is based on Section 63 Paragraph 2 Sentence 1, Section 47 Paragraphs 1 and 3, Section 52 Paragraph 2 GKG.
This decision is incontestable (Section 152 Paragraph 1 VwGO).
