The first part of the judgment from the Higher Administrative Court of Rhineland-Palatinate (7 A 11108/14.OVG) can be found here.
…
Even though Section 22 Paragraph 1a of the Federal Police Act (BPolG) permits measures independent of suspicion, it is not an unconditional intervention provision that would allow completely arbitrary checks without any objective. The purpose is sufficiently clear and unambiguous. According to its wording, Section 22 Paragraph 1a BPolG authorizes control measures to prevent or stop illegal entry. According to the explanatory memorandum to the law, the provision aims to combat illegal entry and human smuggling after the elimination of the filtering function of border controls within the Schengen Area by means of random checks on the main domestic transport routes (see Bundestag Printed Matter 16/4665, p. 7). In addition to clearly defining the occasion and purpose of the regulation, it also contains – insofar as this is structurally possible in the context of a discretionary power of control without cause – elements that limit the scope of action, stipulating that measures under Section 22 Paragraph 1a of the Federal Police Act (BPoIG) may only be taken on trains and at stations where, based on intelligence or border police experience, it can be assumed that these are being used for illegal entry (cf., regarding the significance of the situational dependency in so-called covert surveillance, Constitutional Court of Mecklenburg-Western Pomerania, Judgment of October 21, 1999 – 2/98 –, juris, para. 117 et seq.; Constitutional Court of Saxony, Judgment of July 10, 2003 – Vf. 43-II-00 –, juris, para. 213; Constitutional Court of Bavaria, Decision of February 7, 2006 – Vf. 69-VI-04, juris, para. 34). (See also Hamburg Higher Administrative Court, judgment of May 13, 2015 — 4 Bf 226/12 —, juris, para. 53 et seq., regarding the determination of identity).
The elements of the offense, namely situational awareness and border police experience, which limit the spatial scope of application and establish the connection to the purpose of the regulation, are themselves sufficiently clear and precise (for the definition, see Drewes, in: Drewes/Malmberg/Walter, BPolG, 5th ed. 2015, § 22 para. 27; Hoppe/Peilert, in: Heesen/Hönle/Peilert/Martens, BPolG, 5th ed. 2012, § 22 para. 32 et seq.; Wehr, BPoIG, 1st ed. 2013, § 22 para. 10). The fact that situational awareness and border police experience are legal concepts requiring interpretation and elaboration, and which, in addition to being based on facts, also contain evaluations and assessments, does not preclude sufficient precision. The objection raised against this, namely that the police themselves determine the specific conditions for the intervention and bring about the existence of the relevant elements of the offense themselves (cf. Hamburg Higher Administrative Court, judgment of May 13, 2015 – 4 Bf 226/12 –, juris, para. 53 et seq., regarding the establishment of identity), is unfounded. The legislature has defined the specific threshold for intervention by, on the one hand, providing for checks without cause in principle, and on the other hand, limiting the geographical scope of application depending on the situation. The limitation formulated by the legislature is not called into question by the fact that an indeterminate legal term on the elements of the offense must be interpreted by the user of the law – here, the Federal Police – and that, in addition to factual circumstances, assessments and predictions also play a role. In this respect, situational awareness or border police experience does not differ from the concept of danger, which is not in doubt as to its definiteness and which also contains – based on a factual basis – a (subjective) assessment of a future course of events (cf. Denninger, in: Lisken/Denninger, Handbook of Police Law, 5th ed. 2012, D Rn. 46 f.).
The question of judicial review must be distinguished from this. As indeterminate legal concepts, situational awareness and border police experience are subject to unrestricted administrative judicial review (see Hoppe/Peilert, in: Heesen/Hönle/Peilert/Martens, BPoIG, 5th ed. 2012, § 22 para. 34; Müller-Terpitz, DÖV 1999, 329 [336]). There is no indication that the legislature intended to grant the administration a discretionary scope of assessment subject only to limited judicial review or a prerogative of assessment in this area—regardless of whether there would be any objective justification for this. Judicial review ensures that the user of the law does not exceed the legally established framework and cannot create the conditions for intervention unilaterally. It is not apparent that subsequent judicial review would be meaningless due to the assessments already received (as argued by the Higher Administrative Court of Hamburg, judgment of May 13, 2015 – 4 Bf 226/12 –, juris, para. 54, regarding the establishment of identity). However, it is necessary that the assessments and facts or factual indications on which the situational awareness or border police experience is based be adequately documented and accessible to substantive review by the court (cf. the Constitutional Court of Saxony, judgment of July 10, 2003 – Vf. 43-II-00 –, juris, paras. 221 et seq.). The specific requirements for such documentation, however, depend on the individual case. In view of the defendant's presentation in the oral proceedings, it is sufficient if the Federal Police can refer to the situation reports it has prepared regarding existing situational information and if the factual and prognostic basis underlying the situation reports can be presented and thus made accessible to judicial review, if necessary in the specific proceedings.
Finally, even the phrase "used for illegal entry," despite its openness to interpretation, is susceptible to an interpretation that sufficiently defines the limits of the law's application. It is primarily the responsibility of the legal authorities to clarify any doubts and resolve problems of interpretation using the conventional methods of legal reasoning. The Senate has fulfilled this responsibility with its interpretation.
dd. Furthermore, Section 22 Paragraph 1a of the Federal Police Act (BPoIG) is also compatible with the principle of proportionality. The principle of proportionality requires that the law serves a legitimate purpose, is suitable and necessary for this purpose, and that it strikes a reasonable balance between the severity of the infringement of fundamental rights and the importance of the legitimate purpose.
The measures pursuant to Section 22 Paragraph 1a of the Federal Police Act (BPoIG) serve a legitimate aim. The provision itself states its purpose as the prevention or suppression of illegal entry. Beyond the literal wording, a further (legitimate) aim is to counteract the commission of criminal offenses in connection with illegal entry—particularly those facilitated by organized and/or commercial smuggling of foreigners (see Drewes, in: Drewes/Malmberg/Walter, BPoIG, 5th ed. 2015, Section 22, marginal note 18).
The measures are also appropriate. Their appropriateness is not called into question by the fact that, in the measures carried out between 2013 and 2015 pursuant to Section 22 Paragraph 1a of the Federal Police Act (BPoIG) in Germany (trains and train stations) and at airports, only approximately 0.3% (2013), 1.1% (2014), and 4.4% (2015) of the checks resulted in findings of illegal entry, and that, with regard to checks carried out in Germany alone in 2013 and 2014, the success rates were even less than 1 per mille (see Bundestag printed matter 18/4149, pp. 4 ff. [regarding 2013 and 2014] and Bundestag printed matter 18/8037, pp. 5 f. [regarding 2015]). Firstly, a law is already suitable if the abstract possibility of achieving its purpose exists, meaning that the permitted measures are not inherently unsuitable but can be conducive to the desired outcome (see, for example, Federal Constitutional Court, Judgment of July 14, 1999 — 1 BvR 2226/94, et al. —, BVerfGE 100, 313 [373] = juris, para. 214). Secondly, within the scope of its prerogative to assess the suitability of the measures, the legislature was also entitled to consider the general deterrent effects of the enabling provision, which cannot be reflected in concrete successes (see, in this regard, Saxon Constitutional Court, Judgment of July 10, 2003 — Vf. 43-II-00 juris, para. 226, concerning dragnet searches; see also Bundestag Printed Matter 15/1861, p. 6).
A statutory regulation is also necessary. This requirement is only lacking if another, equally effective, but clearly less restrictive means is available (see, for example, Federal Constitutional Court, Judgment of July 14, 1999 — 1 BvR 2226/94, et al. —, BVerfGE 100, 313 [375] = juris, para. 219). Measures with a narrower scope are not suitable as less restrictive alternatives because, although a higher intervention threshold would affect a smaller group of addressees, the general deterrent effect of Section 22 Paragraph 1a of the Federal Police Act (BPoIG) is based precisely on random checks of a broad group of addressees (see also Saxon Constitutional Court, Judgment of July 10, 2003 — Vf. 43-II-00 juris, para. 227, regarding covert searches). Furthermore, under the European legal framework, which excludes systematic controls at internal Schengen borders (see Art. 20, Art. 21 Schengen Borders Code), a suitable control area for preventing or stopping unauthorized entry by means of random checks should not, according to the legislator's unobjectionable assessment, be limited to the immediate border area (see Bavarian Constitutional Court, decision of 28 March 2003 — Vf. 7-VII-00, Vf. 8-VIII-00 juris, para. 111).
Finally, Section 22 Paragraph 1a of the Federal Police Act (BPoIG) is also proportionate in the narrower sense. The principle of proportionality requires that the infringements on constitutionally protected freedoms are not disproportionate to the legitimate public interest purposes that the restriction of fundamental rights serves. Given the low level of intervention required by the measures under Section 22 Paragraph 1a BPoIG—as explained above—the low threshold for intervention and the associated range of measures are harmless. This is particularly true because, as an element of border protection, these measures serve to protect important interests, the violation of which is punishable by law. This includes not only illegal entry itself (§ 95 para. 1 no. 3 of the Residence Act), but also human smuggling, which is sometimes punishable by up to ten years' imprisonment (§ 96 of the Residence Act), as a concomitant of illegal entry (see also Bavarian Constitutional Court, decision of March 28, 2003 — Vf. 7-VII-00, Vf. 8-VIII-00 juris, para. 118). Furthermore, the protection of these interests is achieved precisely through the general deterrent effect of the measures, which are designed to have a certain breadth of scope. Moreover, the powers granted under § 22 para. 1a of the Federal Police Act are indeed without cause with regard to the person called upon; However, by limiting the scope of application to trains and train stations where, based on intelligence or border police experience, there is reason to believe they are being used for illegal entry, or to airports with cross-border traffic, only persons who—from a geographical perspective—have a certain proximity to the public interest objectives pursued by Section 22 Paragraph 1a of the Federal Police Act (BPolG) are affected. When weighing the minor infringement of fundamental rights against the preventive protection it provides, the provision is not objectionable.
c. Section 22(1a) of the Federal Police Act (BPolG) is compatible with European law. Articles 20 and 21 of the Schengen Borders Code do not preclude the application of Section 22(1a) of the Federal Police Act. Since the measures under Section 22(1a) of the Federal Police Act are not carried out at the border or upon border crossing, they constitute controls within the territory of the Federal Republic of Germany within the meaning of Article 21 of the Schengen Borders Code (see ECJ, Judgment of 22 June 2010 – Case C-188/10 et al., [Melki and Abdeli], para. 68; Judgment of 19 July 2012 – Case C-278/12 [Adil], paras. 55 et seq.), which are permissible under Article 21(a) of the Schengen Borders Code, taking into account the case law of the European Court of Justice.
aa. According to Article 21(a), first sentence, of the Schengen Borders Code, the abolition of border controls at internal borders (see Article 20 of the Schengen Borders Code) does not affect the exercise of police powers by the competent authorities of the Member States in accordance with national law, provided that the exercise of such powers does not have the same effect as border crossing controls (see ECJ, Judgment of 22 June 2010 — Case C-188/10 et al., [Melki and Abdeli] juris, para. 69).
According to paragraph 2 of the provision, the exercise of police powers may not be equated with the carrying out of border crossing controls, in particular if the police measures (i.) do not have the aim of border controls; (ii.) are based on general police information and experience regarding possible threats to public security and are aimed in particular at combating cross-border crime; are designed and carried out in a manner that is clearly different from systematic identity checks at the external borders; (iv.) are carried out on the basis of random sampling. Therefore, among the situations listed in Article 21(a), second sentence (i) to (iv) of the Schengen Borders Code (see, in this regard, ECJ, judgment of 19 July 2012 – Case C-278/12 [Adil] –, juris, para. 59), it must be assumed that the measures do not have the same effect as border controls and are accordingly permissible under Article 21(a), first sentence, of the Schengen Borders Code.
According to the case law of the European Court of Justice, however, it is not sufficient if the checks do not have the same effect as border controls in practice, for example, because they are only carried out on a random basis – as cannot be denied for the checks under Section 22(1a) of the Federal Police Act. Rather, the case law requires a normative limitation of the powers of inspection to ensure that they cannot have the same effect as border controls that are inadmissible under Article 20 of the Schengen Borders Code (see ECJ, Judgment of 22 June 2010 – Case C-188/10 et al., [Melki and Abdeli] –, juris, paras. 73 et seq.; Judgment of 19 July 2012 – Case C-278/12 [Adil] –, juris, para. 68). In this context, the more numerous the indications of a possible effect equivalent to border control, the more precise the normative restrictions on control powers must be (see ECJ, Judgment of 19 July 2012 — Case C-278/12 [Adil] juris, para. 75).
bb. According to these standards, Section 22 Paragraph 1a of the Federal Police Act (BPoIG) establishes powers that, within the meaning of Article 21(a) of the Schengen Borders Code, do not have the same effect as border crossing controls. This is also sufficiently secured normatively (contra, arguably, Stuttgart Administrative Court, judgment of October 22, 2015 – 1 K 5060/13 –, juris, para. 33, although without further explanation of the differences to Section 23 Paragraph 1 No. 3 of the Federal Police Act (BPolG), which was examined there in substance).
First, it should be noted that there is little evidence to suggest an effect equivalent to border control. The control powers under Section 22 Paragraph 1a of the Federal Police Act (BPolG) are, on the one hand—even though this would be permissible in principle, as can be seen from Article 21(a), first sentence, second half-sentence of the Schengen Borders Code—not limited to the border area, but on the other hand, they also do not authorize comprehensive controls in the border area. Insofar as, according to the case law of the European Court of Justice, a special rule for the territorial scope is used as an indication of the existence of equivalent effect within the meaning of Article 21(a), first sentence, of the Schengen Borders Code (see ECJ, Judgment of 22 June 2010 – Case C-188/10 et al., [Melki and Abdeli], para. 72; Judgment of 19 July 2012 – Case C-278/12 [Adil], para. 70), it must therefore be borne in mind with regard to Section 22(1a) of the Federal Police Act (BPoIG) that, due to its limited territorial scope, it is structurally incapable of establishing the same effect as border crossing controls. For example, the establishment of a so-called “second line of control” is not possible because only selected means of transport and routes are covered. Therefore, Section 22 Paragraph 1a BPoIG is conceived and actually applied in a manner that clearly differs from systematic personal checks at the external borders, in accordance with Article 21 lit. a sentence 2 iii) of the Schengen Borders Code.
With regard to checks on trains and at train stations, it should be noted that questioning may only be carried out there depending on the situation. In this area, checks are therefore conducted in accordance with Article 21(a), second sentence (ii) of the Schengen Borders Code, according to which police measures may not be equated with border crossing controls if they are based on general police information and experience regarding potential threats to public security (see ECJ, Judgment of 19 July 2012 – Case C-278/12 [Adil], para. 72). The obligation to base checks on such information and experience also contributes significantly to the selectivity of the checks carried out – in contrast to general border controls (see ECJ, Judgment of 19 July 2012 – Case C-278/12 [Adil], para. 78).
In fact, the checks pursuant to Section 22 Paragraph 1a of the Federal Police Act (BPoIG) are only carried out on a random basis (see also BT-Drucks. 16/4665, p. 7: “Detection in the form of random checks”), so that, from an indicative point of view, the measures pursuant to Section 22 Paragraph 1a of the Federal Police Act (BPoIG) do not have the same effect as border crossing controls, even from this perspective, in accordance with Article 21 lit. a sentence 2 iv) of the Schengen Borders Code.
The only point of contention is the objective of Section 22(1a) of the Federal Police Act (BPoIG), which aims to prevent and stop unauthorized entry. This close connection to border controls provides an indication of such control, as stipulated in Article 2, Nos. 9 to 11 of the Schengen Borders Code. These controls are intended, firstly, to determine whether the persons in question are permitted to enter or leave the territory of a Member State, and secondly, to prevent persons from circumventing border controls (see judgment of 22 June 2010 – Case C-188/10 et al., [Melki and Abdeli], juris, para. 71). However, considering that border controls or border crossing controls within the meaning of the Schengen Borders Code—insofar as they are permissible—are designed to subject every person to a minimum check (cf. Art. 7 para. 2 Schengen Borders Code), whereas the objective of Section 22 para. 1a of the Federal Police Act (BPoIG), according to the explanatory memorandum, is to be able to combat illegal entry and human smuggling without the filtering function of border controls by means of "detection […] in the form of random checks […] without the filtering function of border controls" (cf. BT-Drucks. 16/4665, p. 7), this also confirms that Section 22 para. 1a BPoIG does not pursue the objective of carrying out border controls.
If there are only minor indications suggesting a possible effect equivalent to border control, the requirements for a regulatory safeguard are not particularly stringent, because ultimately the achievement of the objective of abolishing controls at internal borders is not significantly jeopardized (see ECJ, Judgment of 19 July 2012 – Case C-278/12 [Adil], para. 75). The provision thus meets the regulatory requirements to be met, which prevent the exercise of powers based on Section 22(1a) of the Federal Police Act (BPoIG) that have the same effect as border crossing controls.
Given that, according to Article 21(a), second sentence, of the Schengen Borders Code, the exercise of police powers may not be equated with the carrying out of border crossing controls, particularly if "one or more of the conditions listed therein are met" (see ECJ, Judgment of 19 July 2012 – Case C-278/12 [Adil], para. 59), the requirements for a normative safeguard must consequently be met if such safeguards can be established for one or more of the conditions listed therein. Against this background, it is conversely harmless if individual conditions mentioned in Article 21(a), second sentence, of the Schengen Borders Code, which – as in this case – are factually present and must therefore be taken into account in the evidence-based assessment of the threat situation to the objective of Article 20 of the Schengen Borders Code, are not normatively safeguarded. This applies here with regard to Article 21(a), second sentence (i) and (iv) of the Schengen Borders Code, since, according to the explanatory memorandum to the law and the actual exercise of the control powers, these do not aim at border controls (Article 21(a), second sentence (i) of the Schengen Borders Code) and are only carried out on the basis of random samples, but corresponding restrictions are not legally stipulated.
In contrast, the territorial scope of application of Section 22 Paragraph 1a of the Federal Police Act (BPolG) is sufficiently regulated by law. As explained above, this already precludes systematic control activities and thus limits the powers to a level that, in accordance with Article 21(a), second sentence (iii) of the Schengen Borders Code, clearly differs from systematic personal checks at the external borders (cf. Article 7 Paragraph 2 of the Schengen Borders Code). Similarly, it is legally guaranteed that checks on trains and at train stations may only be carried out depending on the situation; thus, the requirements, based on Article 21(a), second sentence (ii) of the Schengen Borders Code, have also been incorporated into the law. Insofar as the normative safeguard also aims to subject both the necessity of the controls and the specific control measure permitted to review (cf. ECJ, Judgment of 19 July 2012 — Case C-278/12 [Adil] juris, para. 76), this is ensured in view of the administrative judicial review, which extends to the location-dependency as well as to the — partly related — spatial scope of application.
3. While, after all the above, the provision of Section 22 Paragraph 1a of the Federal Police Act (BPolG) is legally unobjectionable, its application in the present case is unlawful. The Senate therefore refrains from taking further evidence regarding the existence of the elements of the offense—in particular, the relevant situational awareness or border police experience—(a.) because, at least with regard to the selection of the plaintiffs as persons to be checked, the application of the provision must be considered an abuse of discretion based on the evidence already gathered (b.). Consequently, the data comparison pursuant to Section 34 Paragraph 1 Sentence 2 of the Federal Police Information Act (BPoIG) is also unlawful (c.).
a. As already explained in connection with the spatial scope of the standard, Section 22 Paragraph 1a of the Federal Police Act (BPoIG) does not refer to the individual train crossing the border, but to a specific railway line with the trains operating on it and the stations located along it. Consequently, the relevant situational awareness and border police experience must also relate to the specific railway line.
The terms "situational intelligence" and "border police experience" are not legally defined. Situational intelligence—as building blocks of police situational reports, which in turn represent a systematically condensed description of police-relevant data and facts for a specific area and time—can be understood as encompassing any police information relevant to the respective police purpose (see Drewes, in: Drewes/Malmberg/Walter, BPoIG, 5th ed. 2015, § 22 para. 27; Wehr, BPoIG, 1st ed. 2013, § 22 para. 10). The concept of border police experience refers to recurring, police-relevant incidents from the past, from which, based on experience, conclusions are drawn regarding the existence of an abstract danger—here: the use of the border for illegal entry (see Drewes, in: Drewes/Malmberg/Walter, BPoIG, 5th ed. 2015, § 22 para. 27; Wehr, BPoIG, 1st ed. 2013, § 22 para. 10; see also Hoppe/Peilert, in: Heesen/Hönle/Peilert/Martens, BPoIG, 5th ed. 2012, § 22 para. 34, proximity to “suspicion of danger”).
As indeterminate legal concepts, situational awareness and border police experience are subject—as already explained—to unrestricted judicial review by the administrative courts (see Hoppe/Peilert, in: Heesen/Hönle/Peilert/Martens, BPoIG, 5th ed. 2012, § 22 para. 34; Müller-Terpitz, DÖV 1999, 329 [336]). This simultaneously presupposes that the assessments and facts or factual indications on which the situational awareness or border police experience is based can be substantiated in a manner that allows for substantive review (see Saxon Constitutional Court, judgment of July 10, 2003 — Vf. 43-II-00 juris, paras. 221 et seq.). With regard to the arguments presented by the defendant's representatives at the oral hearing, it is generally sufficient if the Federal Police can refer to its own situation reports regarding its situational intelligence and if it can explain the factual and prognostic basis underlying these reports, thus making them subject to judicial review. In this context, the defendant's representatives at the oral hearing plausibly and comprehensibly described how the specific situation reports submitted in the proceedings were developed. They also explained that while the data used to create the situation reports was not explicitly named in the report itself, it was possible to trace the data back to its source because all findings were recorded comprehensively.
Based on the situation report for operational services—searches in the border region, on railway lines, and at Hahn Airport—of the Trier Federal Police Directorate (3rd quarter 2013), it is reasonable to assume, based on intelligence regarding the route between Mainz and Koblenz, part of the so-called Rhine corridor, that this route is being used for illegal entry. This is because, firstly, section 4.1.1 states that persons who have entered and are staying illegally outside the border region are predominantly found on the Rhine corridor and at the Koblenz interchange station. Secondly, section 7.2.2 provides location-specific instructions for action pursuant to Section 22 Paragraph 1a of the Federal Police Act (BPolG) and identifies the left and right Rhine railway lines as hotspots in the Koblenz area, as these lines offer direct connections to the Rhine-Main region, the Ruhr area metropolitan areas, and neighboring Western European countries. However, further judicial review could not be carried out because the defendant did not further specify the data material on which the aforementioned evaluation results and conclusions were based, and the plaintiffs denied that a correspondingly reliable data basis existed.
Due to the lack of relevance to the decision, the Senate refrains from further clarifying the facts in this respect. The duty to investigate does not require the court to conduct inquiries that, in its view, are unnecessary because, according to its legal position, their outcome is irrelevant to the outcome of the legal dispute (cf. Federal Administrative Court judgment of October 24, 1984 – 6 C 49.84 –, BVerwGE 70, 216 [221 f.] = juris, para. 16; decision of March 22, 2010 – 2 B 6.10 –, juris, para. 6). Here, it is irrelevant whether the Senate can form a conviction regarding the existence of the sole contested element of the offense, namely situational awareness or border police experience, because even assuming, for the sake of argument, that the situational assessments cited by the defendant were plausible, the challenged measures would still be deemed valid. The measures taken would have been specified and substantiated, but would have been unlawful due to a selection of persons to be controlled that is to be treated as an error of discretion (see b. and c.).
b. Based on the evidence presented, the control of the plaintiffs based on Section 22 Paragraph 1a of the Federal Police Act (BPoIG) appears to be flawed due to an error of discretion, because the Senate could not be convinced that the plaintiffs' skin color was not at least a decisive criterion for their control.
aa. According to Article 3 Paragraph 3 Sentence 1 of the Basic Law, no one may be disadvantaged or favored because of their sex, descent, race, language, homeland and origin, faith, religious or political opinions. Article 3, paragraph 3 of the Basic Law (GG) specifies – as does paragraph 2 – the general principle of equality and thereby sets firm limits on the legislative discretion granted therein (cf. Federal Constitutional Court, decision of April 11, 1967 – 2 BvL 3/62 –, BVerfGE 21, 329 [343] = juris, para. 32; judgment of January 28, 1992 – 1 BvR 1025/82, et al. –, BVerfGE 85, 191 [206] = juris, para. 52; decision of June 18, 2008 – 2 BvL 6/07 –, BVerfGE 121, 241 [254] = juris, para. 48; established case law). The characteristics mentioned in paragraph 3 may not be used as a basis for legal unequal treatment. This also applies if a regulation is not designed to create unequal treatment prohibited under Article 3 paragraph 3 of the Basic Law, but primarily pursues other objectives (see, for example, Federal Constitutional Court judgment of January 28, 1992 – 1 BvR 1025/82, inter alia –, BVerfGE 85, 191 [206] = juris, para. 52; decision of June 18, 2008 – 2 BvL 6/07 –, BVerfGE 121, 241 [254] = juris, para. 48; established case law).
The jurisprudence of the Federal Constitutional Court—particularly with regard to the terminology used—does not provide a clear line as to the qualitative conditions under which prohibited discrimination "because of" the characteristics mentioned therein is assumed (for the state of the debate, see Heun, in: Dreier, GG, 2nd ed. 2004, Art. 3 para. 119 et seq. with further references). Regardless of the terminology, an impermissible connection within the meaning of Art. 3 para. 3 sentence 1 of the Basic Law ("because of") ultimately relates to the question of a causal link. Therefore, at least in the context of applying the law, the decisive factor is whether a (plausible) justification for the unequal treatment is provided without recourse to a characteristic under Art. 3 para. 3 sentence 1 of the Basic Law.
Discrimination requiring justification under Article 3 Paragraph 3 of the Basic Law therefore already exists if unequal treatment is causally linked to a characteristic mentioned therein in this sense; whether other reasons were also decisive in a cluster of motives is then irrelevant (cf. Federal Constitutional Court, decision of November 16, 1993 — 1 BvR 258/86 —, BVerfGE 89, 276 [288 f.] = juris, para. 49).
Therefore, an infringement of Article 3 Paragraph 3 Sentence 1 of the Basic Law does not only occur if the unequal treatment is based exclusively or decisively on one of the characteristics mentioned therein (cf. Higher Administrative Court of Rhineland-Palatinate, Judgment of March 27, 2014 — 7 A 10993/13.OVG juris, para. 36, “solely on the basis of skin color”; Higher Administrative Court of Rhineland-Palatinate in the oral proceedings in the now-dismissed case 7 A 10532/12.OVG, Press Release 30/2012 of October 30, 2012, “decisive criterion”; regarding the prohibition of discrimination under Article 14 of the European Convention on Human Rights, see also ECtHR, Judgment of December 13, 2005 — No. 55762/00, inter alia, Timishev v. Russia, para. 58, “exclusively or to a decisive extent” [available at: www.hudoc.echr.coe.int]; Judgment of 13 November 2007 — No. 57325/00, DH et al. v. Czech Republic, para. 176, “exclusively or substantially” NVwZ 2008, 533 [534]), but already when, in a cluster of motives, an impermissible differentiating characteristic has been a key criterion among several. A suspicionless check pursuant to Section 22 Paragraph 1a of the Federal Police Act (BPoIG) based on skin color is inadmissible.
bb. According to these standards, there is an infringement of Article 3 Paragraph 3 Sentence 1 of the Basic Law, since the Senate, after hearing the evidence, could not be sufficiently convinced that the plaintiffs' skin color, which is covered by the characteristic of race in Article 3 Paragraph 3 Sentence 1 of the Basic Law (see, for example, Jarass, in: Jarass/Pieroth, Basic Law, 13th ed. 2014, Art. 3 para. 122), was not in fact a decisive factor in their review. In the present constellation at issue, this is to the detriment of the defendant.
(1) Contrary to the plaintiffs' assertions, Article 3(3), sentence 1 of the Basic Law does not entail a reversal of the burden of proof in the proceedings. If the defendant, based on Section 22(1a) of the Federal Police Act (BPoIG), monitors persons, it is generally not required to demonstrate and prove that a characteristic under Article 3(3), sentence 1 of the Basic Law was not a contributing or decisive criterion for the selection.
This follows directly from the fact that Section 22 Paragraph 1a of the Federal Police Act (BPoIG) authorizes random checks of anyone within the scope of the provision's purpose and territorial application. Given the primarily general deterrent effect of Section 22 Paragraph 1a BPoIG (as discussed above), pre-selection of individuals to be checked below a threshold of suspicion or danger is not required, particularly to safeguard the provision's purpose. If such random checks are carried out—for example, solely at random—and include individuals with a specially protected characteristic as defined in Article 3 Paragraph 3 Sentence 1 of the Basic Law (GG), there is no burden of proof or justification to demonstrate that the selection decision was not based on an impermissible reference to one of the differentiating characteristics mentioned therein. It should be noted, however, that in this scenario, judicial review must also address whether such random checks were actually conducted.
(2) A different starting point arises if the checks pursuant to Section 22 Paragraph 1a of the Federal Police Act (BPoIG) are based on a pre-selection of the persons to be checked, because these persons—still below a concrete suspicion or danger threshold—are assumed to have a non-specific but increased proximity to the purpose of the regulation (prevention and suppression of illegal entry). Such targeted selection requires a coherent justification supporting the selection decision, which in turn must not violate constitutional requirements. If, in the course of such targeted selection, persons who possess a particularly protected characteristic within the meaning of Article 3 Paragraph 3 Sentence 1 of the Basic Law are checked, the defendant also does not bear a general burden of proof to demonstrate that the selection decision is not based on an impermissible connection to one of the differentiating characteristics mentioned therein.
However, a different rule applies if the justification supporting a targeted selection decision proves to be unreliable or incomprehensible. In discretionary decisions, it is crucial that the decision-making process is free from errors, since the legality or illegality of a decision—in this case, the specific selection decision—cannot typically be determined solely from the outcome (see Federal Administrative Court, Judgment of September 20, 1984 – 7 C 80/82 –, juris, para. 29). Furthermore, considering that the error-free nature of the decision-making process is intended to guarantee the error-free outcome, the burden of proof that identified errors in the decision-making process also influenced the outcome cannot rest with the affected party (see Federal Administrative Court, Judgment of September 20, 1984 – 7 C 80/82 –, juris, para. 29). Therefore, in this case, it is incumbent upon the authority to prove the legality of the decision-making process, despite an error in the decision-making process.
Applied to the review process under Section 22 Paragraph 1a of the Federal Police Act (BPolG), this means that if a targeted selection decision is found to be flawed or at least inconclusive upon judicial review, the authority must demonstrate and, if necessary, prove the legality of the selection decision (decision outcome). Therefore, if there are indications in this situation that a specially protected characteristic within the meaning of Article 3 Paragraph 3 Sentence 1 of the Basic Law (GG) may have been used as at least a contributing factor, 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.
(3) Based on the foregoing, the check of the plaintiffs based on Section 22 Paragraph 1a of the Federal Police Act (BPoIG) is found to be flawed due to an abuse of discretion, because the justification given by the defendant for the selection decision is not conclusive in light of the evidence presented. The precise motives of the federal police officers who checked the plaintiffs could not be established even within the framework of the extensive taking of evidence. The Senate could not be sufficiently convinced that the plaintiffs' skin color was not at least a contributing factor in their being checked.
(a) The federal police officer carrying out the check, witness xxx, justified the decision to approach the plaintiffs pursuant to Section 22 Paragraph 1a of the Federal Police Act (BPoIG), to check their identity documents and subsequently to carry out a data comparison, with the overall impression and ruled out a selection decision based on skin color.
He stated that he had taken a look around the carriage while still standing in the boarding area. He noticed the plaintiffs' family, who were sitting directly in front of him in the first group of four seats on the right-hand side. He hadn't noticed anything else unusual in the boarding area, particularly no luggage. Only when he was standing near the plaintiffs' family did he notice plastic bags and a handbag. He estimated there were two or three plastic bags. He could not recall any labels on the bags. He had already heard the plaintiffs conversing in very good English while still in the boarding area. He had wanted to speak to them because he wanted to be certain whether they were tourists or military personnel. He had already made this decision in the boarding area (see minutes of the public hearing of April 21, 2016, p. 9). If the overall impression he described included smart clothing, such clothing could be an indication of an effort to avoid attracting attention during illegal entry and transit (see minutes of the public hearing of April 21, 2016, p. 11). The Rhine route from Mainz to Koblenz and further north is frequently used by people who want to travel through Germany to enter other countries illegally, mostly Scandinavia. These people are often well-dressed, carry plastic bags, and have light luggage (see minutes of the public hearing of July 17, 2015, p. 9). He could personally rule out with absolute certainty that he had checked the plaintiffs because of their skin color (see minutes of the public hearing of April 21, 2016, p. 11). He was quite certain that he had begun the conversation by asking about their travel route, and in English. The plaintiff initially replied in English, but then switched to German. He indicated to the plaintiff that this made things much easier for him (see minutes of the public hearing of April 21, 2016, pp. 10f.).
While witness xxx had stated in his written statements of January 5 and 11, 2015, that the plaintiff had handed him two German passports and that he found it suspicious that these were being carried on a domestic trip, he testified in the oral proceedings that the plaintiffs had identified themselves with identity cards (see minutes of the public hearing of July 17, 2015, p. 9 and of April 21, 2016, p. 10). Since only the plaintiff had conducted the conversation and had also given him the female plaintiff's identity card, he had carried out a data comparison based on the overall impression (see minutes of the public hearing of July 17, 2015, p. 9). He also stated that the relationship between the individuals was unclear to him (see minutes of the public hearing of April 21, 2016, p. 10). He stated that the data comparison was intended to clarify whether the identity cards had been reported stolen or had previously been linked to human trafficking (see minutes of the public hearing of April 21, 2016, p. 10). Based on the overall picture observed during the check, he already suspected that the plaintiffs' family might be residing or transiting illegally (see minutes of the public hearing of April 21, 2016, pp. 11-12).
(b) The circumstances put forward to justify the selection decision are at least partly incomprehensible and incomprehensible.
Initially, there is no objection to the witness's having become aware of the plaintiffs due to their conversation, which was conducted in fluent English. While language is indeed mentioned in Article 3, Paragraph 3, Sentence 1 of the Basic Law as an inadmissible connecting factor, its inclusion in Article 3, Paragraph 3, Sentence 1 aims to protect all linguistic minorities from discrimination and thereby guarantee the use of their mother tongue and access to their own cultural institutions (see Heun, in: Dreier, GG, 2nd ed. 2004, Art. 3, para. 129; Stark, in: v.Mangoldt/Klein/Stark, GG, 5th ed. 2005, Art. 3, Paragraph 3, para. 389; Kischel, in: Epping/Hillgruber, BeckOK GG, as of March 2016, Art. 3, para. 228). However, in this protected function, language is not affected if it is used merely as an element supporting or promoting the assumption of a foreign nationality, taking into account its indicative content – language is also an expression of a national identity.
While the decision already made in the entrance area to address the plaintiffs initially appears to be plausible, the overall picture described by the witness, which the defendant also relies on, is insufficient to support the final decision to carry out a check, nor the actual execution of the check.
This applies first and foremost to the witness's statement regarding conspicuous luggage in the form of several plastic bags: According to the plaintiffs' credible testimony during their hearing at the oral proceedings, they did not carry such luggage, but only the female plaintiff's handbag and a plastic bag containing provisions purchased at the train station. The plaintiffs' descriptions of the items they carried—including those for the children—were entirely convincing. In particular, their statements did not appear to be rehearsed in any way, but rather, considering the passage of time, exhibited natural differences attributable to memory loss and only very minor contradictions (e.g., regarding the magazines purchased). The plaintiffs clearly indicated when they could no longer recall specific details and simultaneously described peripheral events, which suggests an experience-based recollection. They were able to provide coherent and comprehensible answers to follow-up questions (e.g., about jackets, diaper-changing supplies for their younger daughter, or toys for the children)—again acknowledging their existing gaps in memory.
The plaintiff stated that it was a day trip. They had a buggy with them because their youngest daughter was only 1 1/2 years old at the time. They had the diaper-changing supplies on the tray in the lower part of the buggy. These were not in plastic bags, but loose. She could not recall that they had backpacks with them (see minutes of the public hearing of April 21, 2016, p. 3). The buggy was not directly next to them because it was too bulky. It was near the door (see minutes of the public hearing of April 21, 2016, p. 4). She assumed that they were no longer wearing their coats; she could no longer say where they were during the trip. She knew exactly which toys the children had with them. If the children had brought toys, they would generally have carried them themselves. There were no bags or similar containers, not even plastic bags containing toys (see minutes of the public hearing of April 21, 2016, p. 6). The children's jackets were probably among them, and their hats were tucked into the sleeves. She herself had a photo of them on her cell phone (see minutes of the public hearing of April 21, 2016, p. 7). The plaintiff also stated that the children had not brought any bags, backpacks, or anything similar. There was no question of them having several plastic bags. At most, they had a bag for magazines (see minutes of the public hearing of July 17, 2015, p. 4). The plaintiff further stated that she had her handbag with her, which she was also carrying today, at the oral hearing. She added that they had bought snacks for the children at Mainz train station, which were in a plastic bag. At Mainz main station, she also bought a magazine, namely DIE ZEIT. This magazine was not packaged in a plastic bag; rather, she had it in her hand or arm (see minutes of the public hearing of April 21, 2016, p. 3).
The fact that both plaintiffs stated they were addressed in German (see minutes of the public hearing of July 17, 2015, p. 3 and of April 21, 2016, pp. 4, 7), while witness xxx testified that the address was in English, does not in itself undermine the credibility of the plaintiffs. This is supported by the plaintiffs' prior conversation in English and the witness's detailed testimony in this regard (see minutes of the public hearing of July 17, 2015, pp. 8-9 and of April 21, 2016, pp. 9-10). The testimony of witness xxx is also corroborated by the statements of the two other federal police officers involved, witnesses xxx and xxx (see minutes of the public hearing of July 17, 2015, pp. 14-15, 16). Since the plaintiffs speak both fluent German and English, and the plaintiff, according to witness xxx, switched languages effortlessly, it cannot be ruled out that they were mistaken about the language in which they were addressed by witness xxx, because this was not linked to any particular memories.
In comparison to the plaintiffs' specific and convincing statements regarding their luggage, the testimony of witness xxx appears vague and does not cast doubt on the plaintiffs' account. Witnesses xxx and xxx were also unable to provide specific details about the luggage. Witness xxx already stated in his written statement of December 30, 2014, p. 3 (file no. 596 of the court file), that he had no recollection of the luggage. In his written statement of March 30, 2015, p. 3 (page 17 of the administrative file "VerwV BPOLP Ref. 23 Fragen I 23-180402-0001-19"), witness xxx stated that he had noticed several plastic bags. However, this statement was ultimately unspecific, and furthermore, he testified during his subsequent testimony that he could no longer recall any details of the check. He had been concentrating on his role as a security guard (see minutes of the public hearing of July 17, 2015, p. 14).
This eliminates luggage as an essential component of the alleged overall picture that was supposed to have formed the basis of the selection decision.
The use of English as a basis for the check no longer appears sufficiently plausible given the subsequent conduct of the check—now in German. The moment the plaintiff answered witness xxx in fluent German, and certainly at the latest when two German identity cards were presented, clarifying not only nationality but also the relationship between the individuals, nothing remained of the alleged initial understanding of the reason for the check. Nevertheless, the measures pursuant to Section 22 Paragraph 1a of the Federal Police Information Act (BPoIG) were continued, and a data comparison pursuant to Section 34 Paragraph 1 Sentence 2 of the Federal Police Act (BPolG) was also carried out. The Senate is aware that some findings, which gradually refuted the stated basic assumption, only emerged during the check. However, the fact that the check was nevertheless continued and even intensified—ultimately without any discernible evidence—by replacing one assumption with the next, allows for inferences to be drawn regarding the plausibility of the considerations existing before the measure was initiated. Ultimately, the Senate remains unclear about the motives.
The two other federal police officers, witnesses xxx and xxx, were also unable to provide any further information regarding the motives of witness xxx, who made the selection and carried out the check, either in their written statements or during their questioning. Both stated in their written statements that, as a rule, no coordination takes place between federal police officers before a check, but rather the officer conducting the check makes the decision alone (see written statements of March 30, 2015, p. 2 [Witness xxx] and of December 30, 2014, p. 2 [Witness xxx], p. 16 or p. 20 of the administrative file "VerwV BPOLP Ref. 23 Fragen I 23-180402-0001-19"). Witness xxx further testified that Witness xxx had informed him before the check that he intended to speak to the plaintiffs because they were conversing in English (see minutes of the public hearing of July 17, 2015, p. 14 and written statement of December 30, 2014, p. 2, ibid.). Witness xxx stated that they had discussed the The reasons for questioning the plaintiffs were not discussed. In the subsequent discussions, it became clear that the English language was the reason for the questioning. Furthermore, the discussion initially concerned bags, and later, so-called "carried luggage" (see minutes of the public hearing of July 17, 2015, pp. 16-17).
This means there is no conclusive justification to support the selection decision.
(c) Consequently, it is incumbent upon the defendant to demonstrate and prove that the checks of the plaintiffs were not based on their skin color and thus in violation of Article 3(3), first sentence, of the Basic Law.
To the extent that the plaintiffs attribute indicative value to the external sequence of events—in which only one check was carried out on the specific train and this check involved a family with dark skin—the Senate does not share this assessment. The defendant has provided a plausible, objective reason why no further checks were conducted on that particular train. The federal police officers disembarked at the next station after checking the plaintiffs in order to catch a train in the opposite direction shortly before the end of their area of responsibility. Nevertheless, the effect on outsiders, who are unaware of the reasons for the singular check on that train, must be considered and may give rise to questioning the motives behind the check.
The testimony of witness xxx, that he could personally rule out with absolute certainty having checked the plaintiffs because of their skin color, cannot be refuted—regardless of whether he thereby merely ruled out skin color as the sole or decisive factor. At the same time, however, the course of the check, with the underlying assumption of conspicuous luggage (which the Senate finds refuted), and in particular the continuation and intensification of the check despite the gradually emerging evidence arguing against its continuation, indicate that other reasons for the selection decision were also conceivable. Against this background, despite the extensive taking of evidence, the Senate cannot rule out with the necessary certainty that the plaintiffs' skin color was, in fact, a contributing factor in the check, contrary to Article 3, Paragraph 3, Sentence 1 of the Basic Law. This lack of clarity is to the detriment of the defendant.
cc. The resulting interference with Article 3 Paragraph 3 Sentence 1 of the Basic Law is not justified. Since Article 3 Paragraph 3 of the Basic Law does not contain a statutory reservation, justification is generally only possible through conflicting constitutional law (see Federal Constitutional Court, Decision of January 24, 1995 — 1 BvL 18/93, et al. —, BVerfGE 92, 91 [109] = juris, para. 68; Decision of October 7, 2003 — 2 BvR 2118/01 —, juris, para. 27). In accordance with the purpose of Section 22 Paragraph 1a of the Federal Police Act (BPoIG), the restriction to be considered here is the prevention and suppression of illegal entry, which serves to protect important interests whose violation is punishable by law. This includes not only illegal entry itself (Section 95 Paragraph 1 No. 3 of the Residence Act), but also human smuggling, which is sometimes punishable by up to ten years' imprisonment (Section 96 of the Residence Act), as a concomitant of illegal entry (see also Bavarian Constitutional Court, decision of March 28, 2003 — Vf. 7-VII-00, Vf. 8-VIII-00 juris, para. 118).
However, a selection decision based on race during a check pursuant to Section 22 Paragraph 1a of the Federal Police Act (BPolG) is disproportionate. The principle of proportionality requires that the infringement of constitutionally protected freedoms must not be disproportionate to the legitimate public interest purposes that the restriction of fundamental rights serves. The infringement of Article 3 Paragraph 3 Sentence 1 of the Basic Law, and thus the fundamentally impermissible reliance on a specially protected criterion for differentiation, is offset by a success rate of (rounded) only 0.3% (2013), 1.1% (2014), and 4.4% (2015) with regard to the purpose of the regulation. This rate decreases further to less than 0.1% (2013 and 2014) if airport checks are disregarded (see Bundestag Printed Paper 18/4149, pp. 4 ff. [regarding 2013 and 2014] and Bundestag Printed Paper 18/8037, pp. 5 f. [regarding 2015]). In this context, the general deterrent effect cannot be considered, as this is achieved even without targeted pre-selection of the persons to be checked. Therefore, the proportionality of a discriminatory pre-selection must be measured solely by the specific "hits" that result from it, in line with the purpose of the regulation. Based on this, it cannot be determined that the authority granted under Section 22 Paragraph 1a of the Federal Police Act (BPoIG) is of such great importance for the protection of the aforementioned public interests that it could exceptionally justify unequal treatment based on race.
c. The subsequent telephone comparison of the plaintiffs' personal data with the wanted persons database pursuant to Section 34 Paragraph 1 Sentence 2 of the Federal Police Information Act (BPoIG), conducted after the request for identification, was therefore also unlawful. The provision does not authorize data collection, but rather requires lawful data collection (see Drewes, Drewes/Malmberg/Walter, BPoIG, 5th ed. 2015, Section 34, marginal note 12), which—as explained above—was lacking here.
III.
The decision on costs follows from Section 154 Paragraph 1 of the Administrative Court Procedure Act (VwGO).
The decision regarding the provisional enforceability of the judgment concerning costs is based on Section 167 of the Administrative Court Procedure Act (VwGO) in conjunction with Section 708 No. 11 of the Code of Civil Procedure (ZPO).
The appeal on points of law is admissible pursuant to Section 132 Paragraph 2 No. 1 of the Administrative Court Procedure Act (VwGO) due to the fundamental importance of the legal matter.
The following is information on legal remedies.
