VERDICT
In the administrative law case
of Mr. xxx,
– Plaintiff –
represented by:
Attorney Sven Adam
Lange, Geismarstr. 55, 37073 Göttingen
against
Federal Republic of Germany
xxx
– Defendant –
because of
Personal check
The 6th Chamber of the Administrative Court of Dresden, composed of the presiding judge of the Administrative Court xxx, Judge xxx and Judge xxx, as well as the lay judges Ms. xxx and Ms. xxx, rendered the following decision
based on the oral hearing of November 2, 2016.
court ruled as follows:
1. It is determined that the identity check of the plaintiff carried out by the defendant's officers on March 31, 2014 at Erfurt train station was unlawful.
2. The defendant shall bear the costs of the proceedings.
FACTS OF
The plaintiff seeks judicial review of a surveillance of his person.
On March 31, 2014, at approximately 12:00 PM, the plaintiff was subjected to a check by two officers of the Federal Police—witnesses PHM xxx and PK xxx—at Erfurt Central Station. The details of the check are disputed between the parties. The plaintiff was asked to identify himself. After the plaintiff complied with this request and the verification of his personal details was negative, the check was terminated.
On March 31, 2014, the plaintiff complained to the Federal Police Inspectorate in Erfurt via email about the check. He stated that he had asked the officers about the basis for the check and their official identification. It was undisputed that the officers did not have their identification with them. The officers were unwilling to go with him to the station and show him their identification. He was clearly and explicitly stopped and asked for his identification because of his skin color. Since his train was delayed, he was on the platform for almost 15 minutes. No one else was checked during this time.
On July 7, 2014, the Pirna Federal Police Directorate informed the plaintiff that, according to the officers, the plaintiff confronted them immediately after being approached, accusing them of being stopped solely because of his skin color. Without allowing the reason for the stop to be explained to him, he cited relevant court rulings and the prohibition of discrimination. The officers informed the plaintiff that the stop was not based on skin color. Other individuals had also been subjected to stops that day pursuant to Section 22 Paragraph 1a of the Federal Police Act (BPoIG), as evidenced by operational records. The plaintiff had already attracted the officers' attention upon arrival at approximately 9:00 a.m. because, presumably upon seeing the patrol, he changed direction or turned away, and again during a later encounter at approximately 11:15 a.m. in the train station hall. His identity was established during the questioning regarding the aforementioned legal basis.
The plaintiff filed suit on August 6, 2014. In support of his claim, he argues that, contrary to the defendant's assertion, he never changed direction or turned away after seeing the officers. He first noticed the officers at platform 10. The plaintiff's legitimate interest in a declaratory judgment arises from his interest in rehabilitation. The check on the platform could have been observed by other people. He, the plaintiff, has a legitimate interest in being cleared of the stigma of being a seemingly dangerous troublemaker. Furthermore, this is a measure that typically resolves itself quickly, so he is dependent on subsequent legal protection. There is also a risk of recurrence, as he has repeatedly experienced being subjected to suspicionless identity checks solely because of his skin color. Under the described circumstances, the identification process constitutes a serious and lasting infringement of the plaintiff's right to informational self-determination and his right to equality, which far exceeds the threshold of triviality. Section 22 Paragraph 1a of the Federal Police Act (BPoIG), on which the measure is based, is incompatible with European law. The reasons that argue for the incompatibility of Section 23 Paragraph 1 Number 3 of the BPoIG with European law also apply to Section 22 Paragraph 1a of the BPoIG.
The plaintiff requests
a ruling that the identity check carried out by officials of the defendant on March 31, 2014 at the train station in Erfurt was unlawful.
The defendant requests that
the action be dismissed.
In support of its position, the defendant reiterates its argument that the check was prompted by the plaintiff's conspicuous behavior. As a result, the officers decided to question the plaintiff, among other things, about his travel intentions. The officers' impression that the plaintiff had something to hide was reinforced by his behavior during the intended questioning, leading them to determine the plaintiff's identity. The lawsuit is inadmissible because there is no legitimate interest in a declaratory judgment. In this regard, the defendant refers to the decision of the Higher Administrative Court of Saxony of November 17, 2015 (3 A 440/15; Basu), according to which an identity check lasting only a few minutes does not constitute a significant or even serious infringement of fundamental rights, and therefore no legitimate interest in a declaratory judgment exists. The circumstances here are similar. The verification of the plaintiff's identity was limited to just a few minutes. There is also no interest in rehabilitation, as the brief detention of individuals at train stations by the Federal Police is not an unusual measure that would have attracted public attention. The surrounding circumstances were also not likely to lead to the stigmatization of the plaintiff. In any case, the lawsuit is unfounded. The legal basis for the intended questioning is Section 22 Paragraph 1 of the Federal Police Act (BPoIG), as is already evident from the official statement of Police Officer xxx dated April 1, 2014. The questioning was conducted, among other things, to prevent or investigate pickpocketing. Based on the plaintiff's behavior, there were facts that made him suspicious. The sole reason for the questioning was his conspicuous behavior, which, according to the witness Police Officer xxx's many years of experience in pickpocketing investigations, fell within the behavioral pattern of a corresponding group of offenders. The very fact that the plaintiff was only checked on the third encounter argues against a check based on skin color. The identification of the plaintiff's personal details was carried out on the basis of Section 23 Paragraph 1 Number 1 of the Federal Police Act (BPoIG). There were concrete indications of a suspected threat. The check was conducted to determine whether the plaintiff had a prior criminal record or was wanted by the police.
By decision of 27 January 2015, the Chamber granted the plaintiff legal aid and appointed his legal representative.
In the oral hearing of November 2, 2016, the Chamber heard the plaintiff informally and took evidence by examining witnesses xxx and xxx. For the results of the hearing and the taking of evidence, reference is made to the transcript of the oral hearing.
For further details, reference is made to the contents of the court file and the administrative file.
REASONS FOR THE DECISION
The admissible claim is successful on the merits.
In the Chamber's view, the plaintiff has a legitimate interest in a declaratory judgment, as he can at least rely on the risk of recurrence. As he explained during the oral proceedings, he travels by train between Leipzig and Erfurt several times a year as a court interpreter. Therefore, it cannot be ruled out with sufficient certainty that a comparable situation could not recur.
The defendant failed to convince the court that the prerequisites for the identity check and verification were met. The legal basis for the identity check is Section 22 Paragraph 1 of the Federal Police Act (BPoIG). According to this provision, the Federal Police may question a person if there are grounds to believe that the person can provide relevant information for the performance of a specific task incumbent upon the Federal Police. For the purpose of questioning, the person may be detained. Upon request, the person must present any identification documents they are carrying for inspection. The threshold for intervention in Section 22 of the BPoIG was deliberately set low to allow the police to come into contact with citizens and, if necessary, ask them questions in the course of their duties. The defendant cited Section 23 Paragraph 1 Number 1 of the BPoIG as the legal basis for the verification of identity. According to this provision, a person's identity may be established to avert a danger. Identity checks are also permissible as measures for investigating potential dangers (Drews/Malmberg/Walter, Commentary on the Federal Police Act, Section 23 BPoIG, para. 15, referring to Higher Administrative Court Berlin-Brandenburg, Decision of June 6, 2012, 1 N 28.11). This includes measures taken in the context of an existing suspicion of danger, where there are factual indications of a danger, but more concrete information is needed to predict with sufficient probability the occurrence of harm in the near future.
The defendant failed to convince the court that the sufficient facts required by both Section 22 Paragraph 1 and Section 23 Paragraph 1 of the Federal Police Act (BPoIG) existed to establish at least a suspicion of danger. In the opinion of the court, the defendant bears the burden of proof, and consequently the burden of establishing, that the conditions for the respective authorizations for intervention were actually met. While Article 3 Paragraph 3 Sentence 1 of the Basic Law (GG) does not impose a procedural reversal of the burden of proof such that the defendant must demonstrate and prove that a characteristic under Article 3 Paragraph 3 Sentence 1 GG was not a contributing or decisive criterion for the selection, this does not apply in this case. However, if the underlying rationale (decision-making process) of a targeted selection decision—as in this case—proves to be at least inconclusive upon judicial review, the authority must demonstrate and, if necessary, prove the legality of the selection decision (Higher Administrative Court of Rhineland-Palatinate, Judgment of April 21, 2016, 7 A 11108/14, juris). Thus, if there are indications that a particularly protected characteristic within the meaning of Article 3 Paragraph 3 Sentence 1 of the Basic Law may have been used as at least a contributing factor in the decision, the authority ultimately bears the burden of proof and the burden of production to demonstrate that no selection decision violating Article 3 Paragraph 3 Sentence 1 of the Basic Law was made.
Based on this, the check based on Section 22 Paragraph 1 of the Federal Police Act (BPoIG) and the identity check of the plaintiff based on Section 23 Paragraph 1 of the BPoIG are unlawful because the justification given by the defendant for the selection decision is not convincing in light of the evidence presented. The precise motives of the federal police officers who checked the plaintiff could not be established to the court's satisfaction, even after extensive examination of the evidence.
The witnesses' statements were inconsistent with the plaintiff's account. In his informal hearing, the plaintiff stated that he had moved purposefully through the train station that day. He said that on his way to work as a court interpreter, he went directly from the platform down to the tram. Upon returning to the station and the platform in question, he was checked by the police in close temporal proximity. He claimed that he had not noticed the federal police officers before this. However, witness PHM xxx stated that the plaintiff appeared startled when he saw him around 9:00 a.m. and changed direction. He said the plaintiff behaved in the same way around 11:15 a.m. Therefore, because he had many years of experience in crime prevention and was familiar with the plaintiff's behavior from observing suspects of pickpocketing, he considered the plaintiff's actions "odd." Witness PK xxx confirmed that he, too, had noticed the plaintiff around 11:15 a.m. Furthermore, the plaintiff looked in a different direction twice while on the escalator during eye contact.
The court was not convinced that the witnesses' accounts were accurate. In this respect, contradictory statements exist, without either statement inherently carrying more weight. Rather, there is fundamentally no evidence to suggest that either the plaintiff's account or the police officers' statements are inaccurate. However, it is noteworthy that witness xxx states he already spoke to his colleague xxx at 9:00 a.m. about the plaintiff's unusual behavior, which the plaintiff did not mention. Therefore, the credibility of the individuals involved in the incident is crucial. Even in assessing credibility, the court has no decisive indications that the witnesses' statements as police officers carry more weight than the account of the plaintiff, who is also without a criminal record. While the witnesses' statements largely coincide and are internally consistent, the court is not convinced that this leads to the conclusion that the witnesses are more credible in this case. The court takes into account that witness PK xxx admitted during his testimony, in response to questioning, that he had prepared his official statement with knowledge of the two official statements made by witness PHM xxx, which could also explain the essentially consistent accounts. Furthermore, the witnesses disclosed that in May, at the headquarters of the Federal Police Directorate in Pirna, both witnesses had a conversation lasting between half an hour and 45 minutes with the then legal counsel, Mr. xxx. According to witness PK xxx, the course of a trial was discussed. Upon further questioning, he admitted that they had also discussed the case in general, specifically the timeline and the legal framework. Given that witness xxx traveled from Bayreuth to Pirna for this meeting as part of a business trip, it seems implausible that the meeting was merely intended to provide an explanation of the general procedure for the upcoming hearing. Rather, it cannot be ruled out that the specific facts of the case also played a role. Against this backdrop, the court cannot exclude the possibility that the individual witnesses' recollections may have been altered by this meeting compared to their actual perceptions, such that circumstances perceived by only one witness may now be adopted by the other. Furthermore, the mere fact that this meeting took place gives rise to concerns that agreements were made regarding details, even if this were not actually the case. It is also unnecessary to question the defendant's legal counsel, who was also present at the meeting, about the specific course and content of the conversation, as the testimony of witness PK xxx has already raised such doubts for the court that they cannot be definitively dispelled. No other independent investigative resources are available.
Therefore, the court cannot be convinced that the measures taken by the witnesses were based on facts that are beyond reproach. Under the given circumstances, the court finds the facts of the case insufficient to clarify them further, so the burden of proof lies with the defendant. Consequently, it was determined that the identity check carried out was unlawful.
The compatibility of Section 22 Paragraph 1a of the Federal Police Act (BPoIG) with European law is irrelevant in this case, as the defendant did not base the measure on this legal ground. This is already evident from the official statements of the witnesses.
The decision on costs is based on Section 154 Paragraph 1 of the Administrative Court Procedure Act (VwGO).
The appeal was not admissible because the requirements of Section 124a Paragraph 1 Sentence 1 in conjunction with Section 124 Paragraph 2 No. 3 or No. 4 of the Administrative Court Procedure Act (VwGO) are not met.
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