Top German court criminalises police action
Diet Simon - 06.01.2006 22:09
When more than four years ago police detained a woman protesting against transportation of nuclear waste for more than 22 hours, they were breaking the law, Germany’s supreme court has ruled. The Federal Constitutional Court was passing judgment on a complaint by Martina Lammers, chair of The Greens organisation in the north German county of Lüchow-Dannenberg where a nuclear waste storage hall is located at Gorleben.
Lammers, then aged 34 and a mother of four, was one of almost 1,000 people seized by police and detained in various ways for trying to stop another waste convoy going into the Gorleben compound in November 2001.
Lammers argued to the supreme court that her detention from 10:20 a.m. on 13 November 2001 until 8:23 a.m. the next day was tantamount to “surrogate punishment” and that two lower courts denied her the legal aid she was entitled to.
Police had seized her with hundreds of other demonstrators who refused to leave a sit-down road blockade by about 200 people in the village of Splietau despite police orders over loudspeakers to do so.
Martina Lammers says she still has nightmares about what happened more than four years later.
After hours of being “locked in” by a police cordon on an open field, she was locked up in a police vehicle for a long time in a cell of about 2 m² for four people. Left standing on a barracks square, the prisoners had to shout and knock for attention to be allowed to use a portable toilet. No hand washing was possible. Mobile phones, food and drinks were taken away from the detainees. What was handed out to them in the afternoon and at night was not enough or was spoilt.
Only at about 5 p.m. Lammers was allowed to phone the emergency attorney service. Only after 11 p.m. she was allowed to phone her family that someone else needed to take care of her children, then aged between four and ten. In the dusty air of a vehicle hall serving as a mass cell for 100 detainees, Lammers, who suffers from asthma, had difficulty breathing.
On top of this police abuse came the inability or unwillingness of a lower court judge on duty to rule quickly whether the detention was legal. Even after the event, two lower courts in Dannenberg and Lüneburg refused the nuclear opponent the legal protection she was entitled to.
The constitutional judges (case file 2 BvR 447/05 of 13. 12. 2005) see Lammers’ constitutional rights to freedom and entitlement to effective legal protection violated.
They emphasise that in principle freedom can only be withdrawn on the order of a judge. Only in exceptional cases could a subsequent decision suffice, but it had to be made “without delay”.
The state of Lower Saxony, in which Gorleben is located, denied any violation of constitutional rights but did note cynically in its argumentation that the organisation of the legal handling of the detentions “may not yet have been optimal”. The state has been ordered to pay all of Frau Lammers’ costs.
The next lower court in Lüneburg has to try the case again.
Martina Lammers and her attorney, Ulrike Donat of Hamburg, are satisfied with the ruling. The lawyer emphasised that the supreme judges again criticised the police practice or slowing everything down in detentions and ruled that keeping in detention must not be a surrogate punishment.
Demonstrators who are detained have to be presented to a judge without delay. Arresting judges did not have to wait until they had police files to hand but could make decisions after oral questioning.
Lammers says she is grateful for her lawyer’s tenacity. She adds that it’s probably due to the case going to the supreme court that the police and judiciary handling of nuclear opponents had changed greatly since 2001.
Donat rates the judgment as a success of the anti-nuclear movement and the persistent work of a group of lawyers calling themselves the Association of Republican Lawyers (Republikanischer Anwaltsverein).
“The ruling shows that the constitutional court attentively follows events in Gorleben. More constitutional suits on deprivation of freedom by police and the practice of banning demonstrations by declaring large areas off limits are in train in the court. The ruling of 13 December indicates that the constitutional court is going to handle this matter very thoroughly.”
Donat said the ruling came in the sensationally short time of half a year. “The high standing of the basic right to freedom and the procedural guarantees provided by the constitution require especially careful investigation by judges, which in this case was not carried out by the lower courts. Every delay in a judge’s decision demands an explanation and justification by the judge, or it is illegal and unconstitutional.”
The top court’s ruling crowns a number of trial successes in lower courts which have already led to changed police practices, points out the Bürgerinitiative Umweltschutz Lüchow Dannenberg, the umbrella organisation of the Gorleben resistance.
Instead of 700 to 1,400 detentions of several hours per waste transport, the number has dropped to between 50 and 80 detentions in collection points. Instead of deprivations of freedom of 20 to 24 hours, in the 2004 and 2005 transports the police used blockades and encirclements only in the last two to four hours before the transports.
A collection point at Neu Tramm with unsuitable rooms has been given up and replaced by a more modern one in Lüchow. Arrest judges and police have improved and speeded up procedures. Despite this, judges last year rejected two thirds of the police applications for approval of detentions.
Donat rates as a special success the supreme court’s clear emphasis of the importance of the involvement of judges and the duty of courts to deal with the legality of detentions even after they have happened.
Donat recalls: “Again and again prisoners complained of intolerable detention conditions, such as lacking toilets, hygiene and food, hours of being locked up in tight cells in prisoner vehicles and untenable placement of more than 100 people in former vehicle halls without furniture, water and toilets. Detention must not be allowed to be a ‘surrogate punishment’.”
(Bürgerinitiative: Francis Althoff 05843 986789, Ulrike Donat 040 3193971.)
The spokesperson of the Federal Constitutional Court, Dietlind Weinland, noted that this was “the first case of this kind” to be decided by it. She listed six more similar cases being handled, four of them constitutional complaints by nuclear opponents against police detentions in 2001 and two because of a “police encirclement” in 2002.
Nuclear opponents in the Wendland, as the Gorleben area is called, feel vindicated by the ruling. “The mass detentions of nuclear opponents during previous transports were an intolerable situation,” said Jens Magerl, in Dannenberg, speaking for Initiative Widersetzen.
Magerl said he’s “very happy” about the ruling. The waste transports are no local Gorleben matter, he points out. At stake was also “a threat to the political culture in Germany” because during waste transports people in the Wendland “live in a state of legal insecurity without parallel anywhere in the country”.
He hoped, he said, that the judgment would improve the political culture during nuclear waste transports.
Responding to the supreme court ruling, the police directorate in Lüneburg said it would have no influence on future police work at nuclear waste transports to Gorleben. A statement says in recent years police detentions were shorter and kept local, rather than people being transported away. In 2004 one of the most modern detainee collection facilities had been built at Lüchow with space for legal process. A judge was always on duty.
“It has to be emphasised in this context,” says a police statement, “that all tactical, legal and logistical measures are constantly changing. But current court rulings usually relate to matters a considerable time in the past and frequently deal with events or general conditions that no longer correspond to current conditions.”
Make sense of that one! Are they saying, we got it wrong then, we’ve improved since? (Questions to Polizeidirektion Lüneburg, Pressestelle, Torsten Oestmann, Postfach, 21332 Lüneburg, phone: 04131/29-1011, mobile: 0175/1848408, fax: 04131/29-1005,  torsten.oestmann@polizei.niedersachsen.de,  http://www.polizei.niedersachsen.de/dst/pdlg/pd_lueneburg/.)
Meanwhile the investigating committee of the Gorleben resistance (Ermitlungsausschuss Gorleben) has put out a call for witnesses of what it claims were police excesses during the waste transport last November.
“There was a number of excesses by male and female police during the last transport to Gorleben,” says a statement by the group. “Two especially serious cases were the violence perpetrated by Magdeburg officers against participants in a demonstration by school children and the actions against people who tried to chain themselves fast in Pommoisel.
“In the pupils’ demonstration several youngsters aged 12 to 14 were injured by police beating them with rubber truncheons, fist blows to the face and twisting of arms. In Pommoisel people were injured, some seriously, when eight officers simultaneously mistreated someone lying on the ground. The list could go on….”
The investigating committee continues: “We in the EA have the impression that at least some police had changed their tactics from encirclement to truncheon use. No large-scale encirclements and detentions were used, possibly because courts years later declared most of them to have been illegal. Were people this time to be intimidated by violence against them to stop them putting up direct resistance? If that was in fact the strategy, it didn’t work. There was plenty of resistance – but still not enough.
“The Gorleben investigation committee is now looking for people who themselves experienced, observed, photographed or filmed police excesses. We want to collect, document, publish and possibly make legal use of this information – it goes without saying only with the approval of those concerned and with strictest discretion. Anyone with useful information, please post it to EA Gorleben, c/o BI- Büro, Drawehnerstraße 3, 29439 Lüchow, or email it to ea-gorleben@nadir.org. We’re contactable by phone every Wednesday between 7.30 and 9 p.m., 05841-979430. Homepage: http://www.ea-gorleben.de.”
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