VERDICT
In the administrative dispute proceedings
the woman xxx,
Plaintiff and appellant
Authorized:
Attorney Sven Adam,
Lange Geismarstraße 55, 37073 Göttingen
against
the Free State of Thuringia,
represented by the President of the Thuringian State Police Directorate,
Andreasstraße 38, 99084 Erfurt
Defendant and appellant
because of
police law,
here: appeal
the 3rd Senate of the Thuringian Higher Administrative Court through the Vice President of the Higher Administrative Court, the judge at the Higher Administrative Court xxx and the judge at the Higher Administrative Court xxx
without a hearing on August 29, 2022
recognized as right:
In response to the plaintiff's appeal, the ruling of the Weimar Administrative Court of March 21, 2017 - Ref.: 1 K 597/16 We - is changed.
Based on the defendant's acknowledgment, it is determined that the expulsion given to the plaintiff by one of the defendant's officials on May 28, 2016 at around 4 p.m. in Leinefelde was unlawful.
The defendant bears the costs of the proceedings in both legal proceedings.
The decision on costs is provisionally enforceable. The defendant can avert enforcement by providing security or depositing the enforceable amount unless the plaintiff first provides security in the same amount.
The revision is not permitted.
ACT
The plaintiff is seeking a declaration of the illegality of a police expulsion issued to her by means of a judgment of recognition.
The plaintiff works as a journalist with a focus on right-wing extremism and was on a wall in Leinefelde at around 4 p.m. on May 28, 2016, from which she and other journalists took photos and films of the stage of an NPD demonstration. One of the defendant's police officers gave her a dismissal.
On June 7, 2016, the plaintiff filed a lawsuit with the Weimar Administrative Court to determine that the expulsion was illegal.
On October 28, 2016, the defendant in these proceedings stated:
[In the administrative dispute case xxx ./. Free State of Thuringia, Ref.: 1 K 597/16 We], after a thorough examination of the factual and legal situation, inform you that the requirements for issuing the expulsion in question were not met. At this point we agree to the expected declaration of settlement and declare that we will cover the costs of the procedure.
The plaintiff then declared in a letter dated November 18, 2016 that she would accept the defendant's acknowledgment and applied for a judgment of acknowledgment to be issued.
With a judicial notice of November 29, 2016, the administrative court classified the defendant's declaration not as a statement of recognition, but as a revocation of the decision. It stated that there was no scope for a recognition judgment in this respect, nor was the plaintiff entitled to one. It is therefore requested to state whether a declaration terminating the proceedings should be made or - despite the annulment of the decision - the proceedings should be continued.
With a ruling of March 21, 2017, the Weimar Administrative Court dismissed the lawsuit. As justification, the administrative court essentially stated that the plaintiff had no particular interest in having the fact of illegality confirmed by a (recognition) judgment, after the authority had already expressly recognized the illegality of the expulsion issued and informed the court of this in a written submission have.
The plaintiff applied for permission to appeal against the judgment served on her on May 2, 2017, which the Senate granted permission to appeal by decision of November 7, 2019, served on the plaintiff on November 15, 2019.
The plaintiff justifies the appeal to the court on November 17, 2019, with reference to her admission submission, essentially by saying that the administrative court wrongly did not issue a judgment of recognition. The defendant's statement should be interpreted as an acknowledgment. However, the legal protection interest in a judgment of recognition does not disappear simply because of this declaration.
The plaintiff accordingly requests that
the judgment of the Weimar Administrative Court of March 21, 2017 be overturned and that the expulsion of the plaintiff by the defendant's police officers on May 28, 2016 was unlawful.
The defendant contends that
the appeal should be rejected.
He believes that the plaintiff has no legal interest in issuing a recognition judgment after he made the binding declaration that the measure at issue was unlawful.
For further details, reference is made to the court file and the defendant's official file, which were the subject of the consultation.
REASONS FOR DECISION
It remains to be seen whether the decision has already been made in accordance with Section 173 VwGO in conjunction with. V. in accordance with Section 307 Sentence 2 ZPO can be issued in the written procedure, since the parties involved have waived this in accordance with Section 101 Paragraph 2 VwGO. The Senate decides on the appeal, since the decision in the appeal procedure, in which the admissibility of a recognition judgment is essentially disputed, is not in the preparatory procedure within the meaning of Section 125 Paragraph 1 Sentence 1 i. In accordance with Section 87a Paragraph 1 No. 2, Paragraph 3 VwGO.
The permissible appeal is successful on the merits.
Contrary to the opinion of the administrative court, the defendant was to be sentenced in accordance with his acknowledgment in accordance with Section 173 Sentence 1 VwGO in conjunction with Section 307 Sentence 1 ZPO.
If the defendant recognizes the claim asserted as part of a continuation declaratory action in court proceedings, the provisions of the Code of Civil Procedure regarding the admissibility of a judgment of recognition must be applied accordingly in the administrative process (see only BVerwG, judgment of September 27, 2017 - 8 C 21.16 - juris Rn . 4 mw N.; Bavarian VGH, judgment of April 8, 2019 - 10 B 18.483 - juris Rn. 11; VG Freiburg, judgment of February 23, 2012 - 4 K 2649/10 - - NVwZ-RR 2012, 535, 536; VG Munich, judgment of April 24, 2015 - M 1 K 15.554 - juris; Clausing, in: Schoch/Schneider, VwGO, as of February 2022, § 107 Rn. 8; Wolff, in: Sodan/Ziekow, Administrative Court Regulations, 5th ed. 2018, § 107 Rn. 22; Neumann, in: Sodan/Ziekow, VwGO, 4th edition 2014, § 156 Rn. 5, 8). On the one hand, Section 87a Paragraph 1 No. 2 and Section 156 VwGO presupposes the possibility of acknowledgment, and on the other hand, Section 307 ZPO also corresponds to the disposition maxim applicable in the administrative process, which guarantees the parties the authority to dispose of the subject matter of the dispute. In addition to other procedural actions in the event of dispute resolution, the acknowledgment represents a suitable means of completely or partially vacating the plaintiff from legal action (BVerwG, court decision of January 7, 1997 - 4 A 20.95 - juris Rn. 5). In the event of recognition, he does not have to rely solely on the possibility of a declaration of settlement in the context of a continued declaratory action. There is no need to decide whether something different applies in the event of an action for annulment that has not been settled. The older judgment of the Federal Administrative Court (BVerwG, judgment of February 26) cited the opposite view (OVG Berlin-Brandenburg, decision of August 8, 2012 - 1 L 94.12 -; Saxon OVG, decision of March 6, 2015 - 5 A 119/12 - juris). .1981 - 3 C 6.80 - BVerwGE 62, 18, 19) refers to a different constellation in which, in a challenge situation, the plaintiff's ongoing complaint could not be remedied by a judgment of recognition, but only by a judgment on the facts.
The defendant also effectively declared his acknowledgment of the disputed claim on October 28, 2016. The notification that the conditions for issuing the expulsion in question were not met is an acknowledgment and not a revocation of the expulsion. This would be in vain because it had already been completed. In addition, the declaration of connection to an “expected” but not completed declaration of settlement by the plaintiff cannot be understood as an (unconditional) declaration of settlement.
Furthermore, the factual judgment requirements required for the issuance of a recognition judgment are met in the continuation declaratory action brought by the plaintiff. In particular, the plaintiff has a legitimate interest in the requested determination. This follows from the fact that an expulsion typically takes place at such short notice that it would not normally be open to review in the main court proceedings without the assumption of an interest in continued determination. The short-term settlement, which excludes an action for rescission and obligation, results from the nature of the administrative act itself (cf. BVerwG, judgment of May 16, 2013 - 8 C 14/12 - BVerwGE 146, 303, para. 32 with further references). It can be left open whether even minor encroachments on fundamental rights such as expulsions give rise to an interest in continued determination solely because legal protection would otherwise not be possible for such administrative acts, which are typically completed quickly (Riese, in Schoch/Schneider VwGO § 113 Rn. 142; Buchberger, in: . Lisken/Denninger, Handbook of Police Law, 7th edition 2021, Rn. 110, also m. ; Schenke, Administrative Procedural Law, 17th edition 2021, Rn. 630). In the plaintiff's case, the expulsion is not limited to a minor encroachment on fundamental rights. Rather, there is a significant interference with the fundamental right to freedom of the press (Article 5, Paragraph 1, Sentence 2 of the Basic Law) in the fact that the plaintiff was no longer able to pursue her journalistic work as a result of the expulsion (see also OVG on the interference with freedom of the press as a serious, completed sovereign act Berlin-Brandenburg, judgment of June 22, 2011 - OVG 10 B 1/11 - juris Rn. 37).
This legitimate interest of the plaintiff does not expire as a result of the defendant's acknowledgment in a written statement (Schenke/Schenke, in: Kopp/Schenke, VwGO, 27th edition 2021, § 113 para. 130; otherwise in the case of a determination of illegality Administrative act or objection decision ibid. Rn. 133). Rather, regardless of the declaration of recognition, this continues to exist without restriction for the reasons mentioned (cf. VG Freiburg, judgment of February 23, 2012 - 4 K 2649/10 - NVwZ-RR 2012, 535).
A further substantive examination takes place in accordance with Section 173 Sentence 1 VwGO in conjunction with. V. m. § 307, § 313b para. 1 ZPO does not apply (cf. BVerwG, judgment of September 27, 2017 - 8 C 21.16 - juris Rn. 7; BGH, judgment of October 8, 1953 - III ZR 206/51 - juris Rn. 18; Saenger, in: Saenger, ZPO, 9th edition 2021, § 307 Rn. 9).
The cost decision is based on Section 154 Paragraph 1 VwGO.
The ruling on provisional enforceability results from § 167 VwGO, §§ 708 No. 10, 711 ZPO in corresponding application.
There are no reasons for allowing the appeal (Section 132 (2) VwGO).
Instructions on legal remedies follow.
