JUDGMENT
IN THE NAME OF THE PEOPLE
In the administrative law dispute
1. of xxx
2. of xxx
– Plaintiffs –
Legal representative for 1-2: Attorney Sven Adam, Lange Geismarstraße
55, 37073 Göttingen,
against
The Federal Republic of Germany, represented by the Head of the
Federal Police Directorate, Roonstraße 13, 56068 Koblenz,
– Defendant –
because of police law
The 1st Chamber of the Koblenz Administrative Court, based on the oral
hearing of October 23, 2014, in which xxx participated, has ruled as follows:
recognized as rightful:
It is determined that the determination of the plaintiffs' personal details by officials of the defendant on January 25, 2014, as well as the subsequent immediate telephone comparison of personal details, were unlawful.
The defendant shall bear the costs of the proceedings.
The judgment is provisionally enforceable with respect to costs. The defendant is permitted to avert enforcement of the judgment by the plaintiffs by providing security in the amount of the costs to be assessed, unless the plaintiffs provide security in the same amount beforehand.
The appeal is admitted.
Facts of the case:
The plaintiffs are challenging the determination of their personal details.
The plaintiffs are German citizens. On January 25, 2014, at approximately 12:20 p.m., they were traveling with their two children on the regional train "trans regio MRB 32" from Mainz to Cologne. After three officers of the defendant boarded the train, one of them asked the plaintiffs to present their identification. The plaintiffs complied. The officer then made a phone call and provided his contact with the plaintiffs' personal details. According to the incident chronology recorded in the files, no further action was taken on the train that day.
On March 24, 2014, the plaintiffs filed a lawsuit. They argue that they were only stopped and searched because they are dark-skinned. This is evidenced by the fact that the officers walked past approximately 20 people on the train without conducting any further checks. Such conduct, they contend, is incompatible with Article 3, Paragraph 3 of the Basic Law (GG).
The plaintiffs request
to establish that the identity check carried out by the defendant's officers on January 25, 2014, and the subsequent immediate telephone comparison of personal data were unlawful.
The defendant requests that
to dismiss the lawsuit.
She argues that the plaintiffs lack the necessary legal interest in a declaratory judgment because there is no risk of recurrence. During the checks carried out, the officers on site decided which individuals would be subjected to measures under Section 22 Paragraph 1a of the Federal Police Act (BPolG). This decision is made by the police officers based on objective criteria and their experience. The plaintiffs should explain why questioning and identity checks were not permissible in their cases, considering that such measures serve to gather police information related to the illegal entry of individuals. The railway line used by the plaintiffs is a known "smuggling route.".
For further details of the facts and the legal arguments, reference is made to the written submissions exchanged between the parties.
Reasons for the decision
The action is admissible as a declaratory judgment action analogous to Section 113 Paragraph 1 Sentence 4 of the Code of Administrative Court Procedure (VwGO). The plaintiffs have a legitimate interest in the requested declaration. The questioning of the plaintiffs on January 25, 2014, on the regional train from Mainz to Cologne, as well as the telephone-based personal data comparison, constituted short-term police measures that infringed upon the plaintiffs' general right of personality (Article 2 Paragraph 1 in conjunction with Article 1 Paragraph 1 of the Basic Law). In cases of this kind, where a police measure becomes moot without the affected party having had the opportunity to seek legal recourse, there is always a legitimate interest in reviewing the administrative act (see Federal Administrative Court, Judgment of June 20, 2013 – 8 C 39.12 –, juris). Otherwise, a lawless space would be created, which would be incompatible with the right to effective legal protection guaranteed by Article 19 Paragraph 4 of the Basic Law.
The claim is also well-founded. The police action carried out on January 25, 2014, was unlawful and violated the plaintiffs' rights. The prerequisites of Section 22 Paragraph 1a of the Federal Police Act (BPoIG), on which the defendant based the questioning of the plaintiffs, were not met.
According to this regulation, the Federal Police, in order to prevent or stop illegal entry into the federal territory, may, among other things, briefly stop and question any person on trains and on the premises of the federal railways, demand that any identification documents or border crossing documents be presented for inspection, and examine any belongings, insofar as, based on intelligence or border police experience, it can be assumed that the train or railway facilities are being used for illegal entry. In the present case, according to the defendant's statement of defense, the police measure was based on the fact that the railway line used by the plaintiffs was a known "smuggling route." However, the defendant overlooks the fact that it is not sufficient for train checks that the railway line in question is used by "smugglers"; rather, the train in which the identity check takes place must be used for illegal entry. A regional train that originates and terminates within Germany and whose journey does not involve passing through airports or seaports, nor reaching or crossing borders with other countries, cannot, however, be used for illegal entry within the meaning of this provision (see also Wehr, Bundespolizeigesetz [Federal Police Act], 1st ed., 2013, § 22 para. 9, cited from beck-online; contra: VG Köln, Judgment of 13.06.2013 — 20 K 4683/12 — juris, as well as Hoppe/Peilert in Heesen/Hönle/Peilert/Martens, Bundespolizeigesetz [Federal Police Act], Verwaltungs-Vollstreckungsgesetz [Administrative Enforcement Act], Gesetz über den direkten
Zwang [Act on Direct Coercion], 5th ed. 2012, § 22 BPolG, paras. 31–34).
This interpretation is initially supported by the wording of the regulation. It governs two scenarios: firstly, police measures on trains, and secondly, corresponding measures on the premises of the federal railways, each provided that these are used for illegal entry. The term "entry" literally means travel from one state to another (see also Higher Regional Court of Karlsruhe, judgment of November 20, 1984, NJW 1985, 2906). It describes a process that is completed when the traveler is in the other state. This corresponds to the provision in the Residence Act (AufenthG) that a foreigner is generally considered to have entered a country when they have crossed the border (see Section 13, Paragraph 2, Sentences 1 and 3 of the Residence Act). Therefore, the term "using a train for illegal entry" must be understood to mean that the train in which the identity check takes place must have a direct connection to crossing the national border. A train that has its starting point and end point within the territory of the Federal Republic of Germany, that only travels across German territory, and that does not touch any airports or seaports or national borders, is inherently unsuitable for use in crossing borders and therefore also for entry.
The admissibility of the measure cannot be justified by arguing that a police action on a train simultaneously takes place on railway premises and is therefore covered by the wording of the second variant of the enabling provision. Such an interpretation of the provision would render the authorization for identity checks on trains pursuant to Section 22 Paragraph 1a of the Federal Police Act (BPoG) superfluous. If a train is used for illegal entry, this necessarily also applies to the railway premises it traverses. Section 22 Paragraph 1a of the BPoG can therefore only be interpreted as distinguishing, with regard to the police measures mentioned in the provision, between those carried out inside and outside of trains, requiring, in the former case, the use of the train for illegal entry and, in the latter case, the use of the railway premises for illegal entry.
This understanding is also reflected in the legislative history of Section 22 Paragraph 1a of the Federal Police Act (BPolG). The provision was subsequently inserted into the then Federal Border Guard Act in 1998 by the First Act Amending the Federal Border Guard Act (BGSG) – initially for a period of five years – from which the Federal Police Act emerged in 2005 (Federal Law Gazette I, p. 1818). The draft bill, introduced on May 26, 1998, by members of the Bundestag and simultaneously by the Federal Government, originally proposed an amendment to Section 23 Paragraph 1 of the Federal Border Police Act (BGSG) with the aim of granting the Federal Border Police, in addition to its existing powers of control for averting dangers (Section 23 Paragraph 1 No. 1 BGSG 1994), for controlling cross-border traffic (Section 23 Paragraph 1 No. 2 BGSG 1994), and for preventing or suppressing unauthorized entry into the federal territory and preventing certain crimes in the border area up to a depth of thirty kilometers (Section 23 Paragraph 1 No. 3 BGSG 1994), a further, suspicion-independent power to establish the identity of persons during train accompaniment and at all railway facilities and stations, in addition to the existing powers of control for preventing or suppressing unauthorized entry into the federal territory (see BT-Drs. 1). 13/10790, p. 4 f.).
In its statement on the government draft, the Federal Council, however, raised fundamental concerns about suspicion-independent checks and the planned geographical scope of the Federal Border Guard's control measures, and further stated that, regardless of this, there were significant concerns regarding the principle of proportionality against measures that, particularly within Germany, focus on border-related aspects and for which there is no evidence whatsoever (see Annex 2 to BT-Drs. 13/1119).
In the Internal Affairs Committee of the German Bundestag, Section 22 Paragraph 1a of the Federal Law on the Protection of the Constitution (BGSG) received its current wording, which apparently addressed the concerns of the Bundesrat (Federal Council), as the latter subsequently refrained from invoking the Mediation Committee pursuant to Article 77 Paragraph 2 of the Basic Law (GG) against the objection law (see Bundesrat Plenary Minutes 728 of July 10, 1998, p. 350 C). The report of the Internal Affairs Committee of June 23, 1998 (Bundestag Printed Matter 13/11159) states:
"The Federal Border Police may only exercise their authority in the railway sector and on trains if, according to a border police situation assessment, these are being used for illegal entry. This situational limitation precludes comprehensive identity checks in (rail) travel, which would not be possible given the limited personnel resources of the Federal Border Police."
By linking the power of control to a border police assessment of the situation regarding whether and to what extent certain trains and railway facilities are being used for illegal entry, the legislator, while simultaneously reducing the intensity of the intervention by downgrading it from identity verification as defined in Section 23 of the Federal Police Act (BPolG) to the power to question individuals with an obligation to provide information, intended to visibly restrict the very broad scope of the originally intended Section 23 Paragraph 1 Number 3 of the draft law and, outside of the existing control options, only permit an additional suspicion-independent control option where, according to border police intelligence or experience, there is a direct connection to a person's illegal entry. The legislative materials do not indicate that the legislator intended to
grant the Federal Border Guard, or now the Federal Police, even more extensive suspicion-independent control options beyond the wording of the law through the wording of Section 22 Paragraph 1a of the Federal Border Police Act (BGSG).
This assessment remains unchanged even though the initially planned expiry date of the regulation, December 31, 2003, was subsequently extended but has since been lifted on the grounds that, without the filtering function of border controls, the detection of illegal entry and human smuggling could only be relegated to random checks on main domestic transport routes (see the explanatory memorandum to the draft of the Second Act Amending the First Act Amending the Federal Border Guard Act of February 16, 2007, Federal Council Document 119/07, p. 4). The explanatory memorandum also points out that all German states and almost all European countries possess corresponding control powers with the same objective (in border areas, on transit roads, and public facilities of international transport). Regardless of the fact that these control powers of the state police authorities are not linked to the means of transport used, but rather to the transport routes ("transit roads"), international traffic nevertheless means cross-border traffic and not local passenger transport without any border connection. In light of this, the legislative history of Section 22 Paragraph 1a of the Federal Police Act (BPoIG) also supports the assumption that this provision only permits police measures on trains and railway facilities with a direct connection to cross-border traffic.
This interpretation is not called into question by the legal framework. The special case of situation-dependent questioning to prevent or stop unauthorized entry into the federal territory in Section 22 Paragraph 1a of the Federal Police Act (BPoIG) is systematically linked to the fundamental possibility of questioning persons for whom there are grounds to believe that they can provide relevant information for the performance of a specific task incumbent upon the Federal Police (Section 22 Paragraph 1 BPoIG). The position of the provision within the law only indicates that it is a special regulation, not that it is intended to have a scope extending beyond the wording of the law.
Finally, a teleological interpretation of Section 22 Paragraph 1a of the Federal Police Act (BPoIG) does not justify a different assessment. The Chamber is aware that it is indeed a legitimate state concern to counteract the perpetuation of an illegal entry. From a legal policy perspective, it may therefore be desirable or even necessary to grant the Federal Police suspicionless powers of inspection on regional trains to combat illegal migration and human trafficking, especially given the concern that checks on long-distance trains could lead to a displacement effect, such that after an illegal entry, travelers would primarily use local trains rather than long-distance ones for onward travel (see also the reasoning of the Cologne Administrative Court, loc. cit.). On the other hand, however, the substantive requirements for an infringement of fundamental rights must be clearly defined (see Federal Constitutional Court, Judgment of November 22, 2000, BVerfGE 102, 254 [337]). If the legislator expressly links the power of intervention under Section 22 Paragraph 1a of the Federal Police Act (BPoIG) to unauthorized entry and the trains used for this purpose according to situational awareness or border police experience, i.e., to the means of transport used and not—as in comparable state regulations (cf., among others, Section 26 Paragraph 1 No. 6 of the Baden-Württemberg Police Act (PolG BW), Section 14 Paragraph 1 No. 5 of the Thuringian Police Act (ThürPAG))—to the transport routes or train lines, this legislative decision may not be overridden for reasons of expediency and the power of control extended to trains that cannot be used for entry. Any other interpretation would circumvent the rule-of-law requirement of legal certainty in cases of state intervention in fundamental rights (see also Wehr, aa 0., § 22 Rn. 9) and would also contradict the wording of the norm, which marks the limit of interpretation (cf. also BVerfG, Judgment of 30 March 2004, BVerfGE 110, 226 [267]).
Since, after all this, the questioning of the plaintiffs on the regional train MRB 32, which runs from Mainz via Koblenz to Cologne, found no legal basis in Section 22 Paragraph 1 a of the Federal Police Act (BPolG) and no other legal basis for this measure, for which the plaintiffs had given no cause, is apparent, this measure as well as the subsequent personal data comparison was unlawful and the action should therefore be granted.
The decision on costs follows from Section 154 Paragraph 1 of the Administrative Court Procedure Act (VwGO) and the decision on the provisional enforceability of the judgment regarding costs follows from Section 167 of the Administrative Court Procedure Act (VwGO).
The appeal was admissible due to its fundamental importance (§ 124 para. 2 no. 3 VwGO), as the scope of the intervention powers under § 22 para. 1 a BPoIG has not yet been clarified in the higher court case law.
