VERDICT
1 A 191/23
In the administrative law case
xxx,
– Plaintiff –
Legal representative:
Attorney Adam,
Lange Geismarstraße 55, 37073 Göttingen – 0739/23sva –
against
State of Lower Saxony, represented by the Göttingen Police Directorate,
Groner Landstraße 51, 37081 Göttingen – 22.2-12205-67/23 –
– Defendant –
concerning
the right of assembly (determination of the illegality of the use of a pain grip during the compulsory enforcement of a measure to end an assembly)
The Administrative Court of Göttingen – 1st Chamber – has ruled on the oral proceedings of September 3, 2025, through the President of the Administrative Court xxx as single judge:
It is determined that the pain grip (nerve pressure technique) applied to the plaintiff's temple by police officer PK'in xxx on October 6, 2022, was unlawful.
The defendant shall bear the costs of the proceedings.
The judgment is provisionally enforceable due to the costs.
The defendant may avert enforcement by providing security in the amount of the enforceable costs if the plaintiff does not provide security in the same amount before enforcement.
FACTS
The plaintiff objects to the use of a pain-inducing hold in the enforcement of a measure under assembly law.
The plaintiff participated in an unannounced assembly that took place in Göttingen on October 6, 2022. The assembly, with approximately 160 participants, began in front of the New Town Hall and ended in front of the entrance to the former Göttingen Prison on Obere-Masch-Straße. The building had been occupied on October 2, 2022, and on October 4, 2022, the City of Göttingen, as the building's owner, demanded its eviction by 10:00 a.m. on October 6, 2022. During the march, announcements were made via megaphone expressing "solidarity with the occupation.".
When the demonstrators arrived at the building at 9:47 a.m., people were still illegally inside. A forced eviction could not take place because of the demonstration.
At approximately 2:17 p.m., the police officers on site decided to treat the crowd (how many) as an assembly. According to a video recording made by the citizens' initiative "Citizens Observing Police and Justice," a female police officer announced the following from a loudspeaker vehicle (transcription BA 006):
“…Your gathering is now considered an assembly. This means you now enjoy the protection of Article 8 of the Basic Law. Of course, this also entails obligations. To conduct a so-called cooperation meeting, you need a contact person, a so-called assembly leader. This person now has approximately 10 minutes to join us here at LauKW. End of announcement.”
After a pause of almost two minutes, the officer continued the announcement with the words:
"This is the police speaking again, specifically for the people standing directly in front of the entrance to the former prison. You can use the synagogue square as your assembly area, or you can clear the sidewalk and gather in the street. Please cooperate with us. Of course, we will respect your right to freedom of assembly. End of announcement."
After another 20 seconds:
"Once again, we urge you to clear the door. You can choose your assembly area here on the street or go to the square opposite the synagogue. Please comply with our order."
At approximately 2:41 p.m., the following announcement was made:
“This is the police speaking again. Unfortunately, no organizer of the assembly has contacted us yet, which is very regrettable, as we would like to have a so-called cooperation meeting with you. Furthermore, we reiterate our request that you clear the entrance to the former prison. Please go to the street or to the synagogue square. End of announcement.”
Finally, at 3 p.m., the following announcement was made:
“This is your police speaking again. Unfortunately, you have not complied with our request to clear the entrance to the former prison. I am asking you one last time to clear the entrance and go out onto the street. [unintelligible due to interjections] End of announcement.”
Three people – including the plaintiff – were sitting with their arms folded in front of the entrance to the former prison at approximately 3:30 p.m. According to the incident report (BA 003), they were approached and given two minutes to leave the entrance area. The plaintiff was threatened with the use of simple physical force and pain holds. The plaintiff refused to leave his position in front of the former police station entrance, whereupon a female police officer applied a pain hold to his temple, and the plaintiff was carried away by police officers.
In the administrative fine proceedings against him for violating an assembly law order, the plaintiff was acquitted by the Göttingen District Court by decision of 7 November 2023.
The plaintiff filed suit on June 21, 2023. He essentially argues that the use of a restraint to enforce the clearing of the area in front of the former prison entrance was unlawful because no local restriction on the assembly had been issued. The announcements made by the police officer did not constitute such an order, he contends, because they were vague. The term "street" also included the sidewalk, precisely the location where the assembly participants were situated. Furthermore, the police had intended to hold a cooperative discussion, which also argues against the existence of an order.
The plaintiff requests
a ruling that the pain grip (nerve pressure technique) applied to the plaintiff's temple by police officer PK'in xxx on October 6, 2022, was unlawful.
The defendant requests
that the action be dismissed.
He argues that the announcements contained a restriction on the right of assembly. They were also not vague. In particular, video recordings show that some participants in the assembly moved to the synagogue square opposite the prison. The order was issued because disrupting the eviction of the former prison building posed a threat to public safety. It also constituted a proportionate infringement on the plaintiff's freedom of assembly, as he could have easily communicated his concerns from the street.
By decision of 17 June 2025, the Chamber referred the legal dispute to the rapporteur as a single judge for a decision.
For details of the facts and the legal arguments, reference is made to the contents of the court file and the files submitted by the defendant.
REASONS FOR DECISION
The action is admissible (see I.) and well-founded (see II.).
I.
The action is admissible. A declaratory action pursuant to Section 43 Paragraph 1 of the Code of Administrative Court Procedure (VwGO) is the appropriate type of action. According to this provision, an action may be brought to establish the existence or non-existence of a legal relationship if the plaintiff has a legitimate interest in obtaining a prompt determination. These requirements are met. The necessary public-law legal relationship arises here from a public-law factual act, namely the removal of the person from the entrance area of the former correctional facility by police officers. A constitutive action (Section 43 Paragraph 2 Sentence 1 VwGO), which would have to be brought first, is precluded here due to the absence of an administrative act.
The plaintiff has standing to sue pursuant to Section 42 Paragraph 2 of the Code of Administrative Court Procedure (VwGO). According to this provision, an action is only admissible if the plaintiff claims to have been violated in their rights by an administrative action or its omission. It is necessary, but also sufficient, that, based on the plaintiff's submissions, the violation of a subjective public right appears possible (Federal Administrative Court, Judgment of April 5, 2016 – 1 C 3.15 –, juris para. 16). This is the case here, as the plaintiff was the addressee of an enforcement measure and was thus restricted in their physical integrity and freedom of assembly, or at least in their general freedom of action. Due to the associated infringement of fundamental rights, the plaintiff can invoke a legitimate interest in a declaratory judgment within the meaning of Section 43 Paragraph 1 of the Code of Administrative Court Procedure (VwGO).
Contrary to what was announced at the oral hearing, the plaintiff did not additionally object to the threat of the pain hold. His legal representative submitted the claim as stated in the complaint, which is limited to the declaratory judgment at issue.
II.
The claim is well-founded. The plaintiff has a right to a declaration that the enforcement measure in question was unlawful, because it was indeed unlawful.
In declaratory judgment actions, the relevant point in time for assessing the factual and legal situation is determined by the claim and the statement of grounds, in which the plaintiff specifies the point in time at which the existence or non-existence of the legal relationship is to be established (Happ, in: Eyermann, VwGO, 16th ed. 2022, § 43 para. 18). Here, that is the point in time of the measure on October 6, 2022. The decision is therefore based on the Lower Saxony Police and Public Order Act (NPOG) as amended by the Act of January 19, 2005 (Lower Saxony Law Gazette, p. 9), and further amended by the Act of September 22, 2022 (Lower Saxony Law Gazette, p. 589).
The legal basis for the application of the pain hold was found in Sections 64 Paragraph 1, 65 Paragraph 1 No. 3, Paragraph 3, 69 Paragraphs 1, 2, 3, 7, 70 Paragraphs 1, 3, 6, and 74 Paragraphs 1 and 3 of the Lower Saxony Public Order Act (NPOG). The pain hold constituted a measure to enforce the immediately enforceable spatial restriction of the assembly and thus represented a factual act. In the absence of a specific provision in the Lower Saxony Assembly Act, the general enforcement provisions of the NPOG, Sections 64 et seq. NPOG, are applicable (see Federal Administrative Court, Decision of May 3, 2019 – 6 B 149.18 –, juris para. 9).
The police officers used direct force as a means of coercion, §§ 65 para. 1 no. 3, 69 NPOG. Direct force is the use of physical violence, tools, or weapons against persons or property (§ 69 para. 1 NPOG). In any case, if the specific coercive measure constitutes a significant infringement of physical integrity, a qualified warning specific to the particular means of coercion is required. The principle of legal certainty in enforcement proceedings, as codified in Section 70 Paragraph 3 Sentence 1 of the Lower Saxony Police and Public Order Act (NPOG), which is intended to ensure the predictability of police action even outside of proceedings aimed at issuing an administrative act, requires that the person affected by a coercive measure receive clarity about the expected infringements on their physical integrity (Lower Saxony Higher Administrative Court, Judgment of October 28, 2016 – 11 LB 209/15 –, juris para. 28; Chamber Judgment of May 22, 2019 – 1 A 296/16 –, not published, p. 11 of the transcript; regarding pepper spray: Chamber Judgment of May 12, 2021 – 1 A 130/16 –, BeckRS 2021, 17959).
The formal requirements for the application of the pain hold were met. In particular, a specific (§ 37 para. 1 VwVfG) and therefore enforceable order from the police to clear the entrance area in front of the former prison was in place. Reference is made to the reasoning of the single judge's decision of today's date in case 1 A 190/23, which is known to the parties involved.
The application of the pain hold was disproportionate (§ 4 NPOG). The plaintiff stated in the oral proceedings that he was already lying on the ground when the pain hold was applied. The defendant's representative did not dispute this. In the absence of other evidence that could justify it, the use of physical force by means of a so-called pain hold (nerve pressure technique) is therefore not a necessary means of administrative enforcement. It is not apparent that the pain hold could have further contributed to enforcing the imposed spatial restriction, which was achieved by carrying the plaintiff away as a less intrusive means of enforcement (cf. regarding the relationship between carrying away and a pain hold, also the Chamber's judgment of October 1, 2024 – 1 A 167/13 –, juris para. 20 et seq.; Berlin Administrative Court, judgment of March 20, 2025 – 1 K 281/23 –, juris para. 48). In particular, it is not apparent from the defendant's administrative records (especially BA 005) or from the submissions of the parties that the pain grip was necessary to bring the plaintiff, who was already lying on the ground, under control and to make carrying him away possible.
III.
The decision on costs is based on Section 154 Paragraph 1 of the Administrative Court Procedure Act (VwGO), the decision on provisional enforceability on Section 167 of the Administrative Court Procedure Act (VwGO) in conjunction with Sections 708 No. 11, 711 of the Code of Civil Procedure (ZPO).
The following is information on legal remedies.
