Press release – Higher Administrative Court confirms: Personal identification of demo observers was unlawful

On August 11, 2022, the 1st Senate of the Administrative Court of Baden-Württemberg rejected the admission on appeal against the judgment of the Administrative Court of Stuttgart of November 10, 2021 – 5 K 2034/20. The Administrative Court of Baden-Württemberg has thus confirmed the decision of the Administrative Court of Stuttgart. The decision is not subject to appeal (Section 152 (1) VwGO).

What happened?

Two members of the civil rights organization Demobeobachtung Südwest, an organization that advocates the strengthening of a broadly defined right to demonstrate, had observed a demonstration “Solidarity with the hunger strikers” (in Turkey) on 25.5.2019. After its end, they had followed a group of young people, assuming that they could be people who had just participated in the demonstration. These had been “tied up” afterwards by the police.
Although the two were clearly recognizable as demonstration observers (by vests with appropriate imprint) and had previously announced their observation in writing, they were subjected like the surrounded young people to a personal identification and search, because they – according to the police – had left their observer role and had shown solidarity with the surrounded.
The members of Demobeobachtung Südwest filed a complaint against this before the Stuttgart Administrative Court and won in the first instance.
The police did not want to accept this verdict and applied for permission to appeal to the Administrative Court of Baden-Württemberg in Mannheim. This admission was denied.
The Administrative Court of Stuttgart had ruled, “It is determined that the ascertainment of the plaintiff’s personal data, his search and that of his backpack, as well as the making of the film recordings of him after the encirclement on 25.05.2019 were carried out unlawfully. The defendant shall bear the costs of the proceedings.”

What was important?

The police measures would have been lawful if the two had been disruptors or “apparent disruptors”, i.e. such people who at the beginning “would have given the impression to a capable, prudent and knowledgeable police officer that they were causing danger” (above-mentioned judgment p. 10). The two demo observers were therefore not troublemakers, not even apparent troublemakers.
We are pleased that the two lawsuits were successful. “We see our claim to repression-free observation of police actions in and around demonstrations clearly confirmed by this.” – said Bernhard Höll, one of the two plaintiffs. The police cannot declare observers as apparent troublemakers and treat them for identification purposes, regardless of their behavior. Konrad Nestle adds: “In a pleasing clarity, the police implicitly admits that it is not only about ‘disturbances’, but that the police pursued the goal to prevent further disturbances by demo observers during people controls’ (so the judgment – p. 5 – in the summary of the police’s statement of claim). Thus, the determination of personal data should have a deterrent effect.”