JUDGMENT
In the administrative law case
of Mr. xxx,
– plaintiff –
Legal representation:
Attorney Sven Adam
Lange Geismarstr. 55, 37073 Göttingen
against
the Federal Republic of Germany
represented by the Federal Police Directorate Pirna
xxx
– Defendant –
due to personal identification
The 6th Chamber of the Dresden Administrative Court has the presiding judge at the administrative court xxx, the judge at the administrative court xxx and the judge xxx as well as the honorary judges Mr. xxx and Mr. xxx based on the oral hearing
from August 9, 2017
found to be in law:
It is determined that the identification of the defendant's personal details and the comparison of the plaintiff's personal details carried out by the defendant's officials on September 7, 2014 on the regional express 3811 in the direction of Würzburg were unlawful.
The defendant bears the costs of the proceedings.
The judgment is provisionally enforceable because of the cost. The defendant may prevent enforcement by providing security or depositing 110 percent of the amount enforceable according to the judgment, unless the plaintiff provides security amounting to 110 percent of the amount to be enforced before enforcement.
FACT
The plaintiff is seeking a declaration that an identity check and a data comparison were illegal.
The dark-skinned plaintiff is an Algerian citizen and was enrolled as a student at the TU Ilmenau in 2014. On Sunday, September 7, 2014, at around 2 p.m., the plaintiff was on the way home to his former home in Meiningen on the regional express 3811 in the direction of Würzburg main station. He was sitting in an open-plan compartment in the rear of the two railcars in use, in the first row of seats to the right the rear entrance door. Witness xxx sat in the row of seats in front of the plaintiff.
The defendant's officers, the witnesses POM xxx and POM xxx, were on patrol that day as part of their railway police duties. At 2:03 p.m. they boarded the regional express at Gräfenroda station via the rear entrance door of the second railcar. There they met the plaintiff, whom the witness POM xxx spoke to. The content of the address and the plaintiff's specific behavior after being contacted by the defendant's officials are disputed between the parties involved.
The officers asked for the plaintiff's identification documents, who handed them his student ID card and a certificate of toleration. A personal comparison was carried out. The documents were then handed back to the plaintiff.
After arriving in Meiningen at 2:50 p.m., the plaintiff went to the federal police station there and lodged a complaint against the identity check. He stated that the defendant's officers on the regional express had given out his personal details for data comparison at a volume that would have enabled other passengers to listen. The officials also commented loudly about his tolerance and nationality (page 1 of the administrative file).
On September 10, 2014, the witness POM xxx filed a complaint against the plaintiff for insult in accordance with Section 185 of the Criminal Code (StGB). The plaintiff was acquitted of the charge of insult by the Arnstadt District Court's ruling on May 28, 2015.
The plaintiff filed suit on February 11, 2015. He claims that he was the only person in the train compartment and was approached by the defendant's officers solely because of his skin color. In the past, he was repeatedly subjected to identity checks without suspicion solely because of his skin color. He is of the opinion that the identification of personal details and the data comparison infringes his right to informational self-determination under Article 2 Paragraph 1 i. In accordance with Article 1 Paragraph 1 of the Basic Law, an intervention has been made. In addition, the measures constituted discrimination against him as a person, as he was the only person on the train who was checked preventively and independently of suspicion. He could claim an interest in rehabilitation because the measures at issue could and had to be observed by other people in the wagon. In addition, there is a legitimate interest in subsequent legal protection because these are measures that are typically completed at short notice. There is also a risk of repetition. The identification of personal details and the data comparison constituted serious and lasting interference with fundamental rights in the right to informational self-determination and the basic right to equality. The interference with fundamental rights was substantively unlawful and erroneous in its discretion, as it constituted a violation of the absolute prohibition of discrimination in Article 3 Paragraph 3 of the Basic Law.
The plaintiff requests
a declaration that the plaintiff's personal identification check carried out by the defendant's officials on September 7, 2014, as well as the immediate personal identification comparison and search query carried out were unlawful.
The defendant requests
that the lawsuit be dismissed.
She claims that the point of departure for the inspection at issue was the plaintiff's sitting position, which led to him being the first person to be questioned. From this sitting position he was able to see the entire open-plan compartment. Throughout the train, people of different nationalities and different skin colors were questioned before and after the plaintiff. She is of the opinion that, from the point of view of the interest in rehabilitation, the plaintiff cannot claim a legitimate interest in establishing the illegality of the measure, since it is not clear to what extent the verification of his personal details, which only took a few minutes, led to a significant loss of reputation and stigmatization in the public was able to lead. Only the emotional behavior of the plaintiff himself, which was not attributable to the defendant, was capable of arousing public attention. There is also no serious, lasting encroachment on fundamental rights. The intervention was carried out lawfully, so that there was no reproachable interference with fundamental rights. The measure was also limited to a few minutes and therefore did not go beyond a mere restriction of freedom. The right to informational self-determination was only restricted by the slightly intrusive collection and subsequent use of personal data. The authorizing basis for the police questioning is Section 22 Paragraph 1 BPolG. The purpose of the inspection was to gather information about crimes and administrative offenses in order to prevent or stop future crimes and thus avert a threat to public safety. The authorizing basis for the identification itself is Section 23 Paragraph 1 BPolG. Due to the plaintiff's behavior, in particular the persistent insults towards the officers, it was assumed that he had already appeared in a police-relevant manner or was planning a crime. The ID check was necessary to prevent the continuation of a crime or to clarify other police-relevant INPOL entries. The plaintiff is a behavioral disorder. S.d. § 17 BPolG. The authorization basis for data comparison is Section 34 Paragraph 1 No. 2 BPolG. The measures were proportionate. The plaintiff's attention-grabbing behavior cannot be attributed to the defendant.
The court took evidence during the oral hearing by examining the witnesses POM xxx and POM xxx as well as the witnesses xxx and xxx. For further details of the facts and the status of the dispute as well as the results of the taking of evidence, reference is made to the court file, the administrative process used and the minutes of the meeting.
REASONS FOR THE DECISION
The lawsuit is admissible and justified.
The action is admissible as a continuation action for a declaratory judgment aimed at establishing the illegality of the identification of personal details and as an action for a declaratory judgment aimed at establishing the illegality of the data comparison.
Insofar as the action is aimed at establishing the illegality of the plaintiff's personal identification through the request to present the identification documents by the defendant's officials, it is admissible as a continuation action for a declaratory judgment analogous to Section 113 Paragraph 1 Sentence 4 VwGO. According to the established case law of the Federal Administrative Court, Section 113 Paragraph 1 Sentence 4 VwGO applies accordingly in cases in which - as here - the administrative act has already been completed before the action is filed (cf. BVerwG, judgment of July 14, 1999 - 6 C 7.98 – juris para. 20).
However, due to the lack of regulations, the data comparison that takes place after the identification of personal details is not an administrative act, but rather an actual measure. A data comparison is simply checking and determining whether there is data stored in specific files for a specific person (Drewes/Malmberg/Walter, BPolG, 5th edition 2015, § 34 Rn. 1). In this respect, the action is admissible as a declaratory action pursuant to Section 43 Paragraph 1 VwGO, since a declarable legal relationship also includes the power of a sovereign authority, which is in dispute here, to issue a real act that burdens the citizen (cf. OVG Rh.-Pf., judgment of . January 24, 2013 – 7 A 10816/12 – juris para. 15).
The plaintiff has a legitimate interest in the desired determination. From the wording of Section 113 Paragraph 1 Sentence 4 VwGO and the systematic connection with Section 42 VwGO it follows that the administrative courts can only be called upon to review completed administrative acts in exceptional cases. After the complaint associated with the administrative act has ceased to exist, judicial legal protection is generally only made available if the plaintiff has a legitimate legal, economic or non-material interest in a subsequent determination of the illegality of the measure taken (cf. Kopp/Schenke, VwGO, 23. Edition 2017, § 113 Rn. 129). Both the identification of personal details and the subsequent data comparison are typically - that is, in accordance with the nature of the administrative act - short-term police measures that fall into the plaintiff's fundamental right to informational self-determination from Article 2 Paragraph 1 in conjunction with Article 1 Paragraph 1 GG intervened. Since measures that are completed at short notice without the assumption of an interest in continued determination cannot normally be subject to review in main court proceedings, Article 19 Paragraph 4 of the Basic Law opens up the possibility of clarifying the legality of the completed administrative act by means of subsequent determination (cf. BVerfG, decision of April 30, 1997 – 2 BvR 817/90 – juris para. 56 f.). Taking into account the circumstances of the individual case, the plaintiff can – unlike in the Chamber in proceedings 6 K 961/13 (cf. SächsOVG, decision of November 17, 2015 – 3 A 440/15 – juris para. 7). The underlying facts – a legitimate interest in the requested findings cannot be denied. It is true that the identification of personal details without subsequent data storage represents only a minor police intervention in informational self-determination, which is limited to the short-term, one-off disclosure of data and has no longer-lasting consequences. However, in cases of this type, in which requests for a declaratory judgment concern police measures in areas protected by fundamental rights, a denial of the interest in the declaratory judgment and thus the administrative court's review of police actions would open up a legal vacuum that is consistent with the principle of the rule of law from Article 20 para 3 GG and the right to effective legal protection guaranteed by Art. The fact that the present intervention was not profound is therefore harmless, because the guarantee of effective legal protection under Article 19 Paragraph 4 of the Basic Law does not differentiate according to the intensity of the intervention carried out and the rank of the rights affected (cf. BVerwG, judgment of 16. May 2013 - 8 C 20.12 - juris para. 32; VG Freiburg, judgment of September 25, 2015 - 4 K 35/15 - juris para. 36 with further references; see also SächsOVG, judgment of January 27, 2015 – 4 A 533/13 – juris para. 29). In contrast to the facts underlying the case 6 K 961/13, the inspection of the plaintiff by the defendant's officials took place in the presence of other people. The plaintiff also objected to the contested measure promptly, namely directly after his arrival in Meiningen, and thus made it clear that he subjectively attributed it to be of more than just a low quality of intervention.
In the Chamber's opinion, the plaintiff can also base his interest in continued determination on a potential risk of repetition. This is to be assumed if there is a sufficiently certain risk that a similar administrative act will be issued again under essentially unchanged factual and legal circumstances. As the plaintiff explained in the oral hearing, he travels by train four to five times a month in the direction of Erfurt and Weimar and thus in the area of responsibility of the Pirna Federal Police Directorate. Therefore, it cannot be ruled out with sufficient certainty that a comparable situation cannot occur again.
The lawsuit is also successful in this matter.
The determination of the plaintiff's personal details and the data comparison were unlawful. As a result of the personal identification, the plaintiff's rights were violated, Section 113 Paragraph 1 Sentence 4 in conjunction with Sentence 1 VwGO.
In its decision, the chamber was able to leave aside the question, which was disputed between the parties involved, as to whether the plaintiff's skin color gave rise to the identification of his personal details. The Chamber was also able to leave unanswered the question of whether the prerequisites for a subsequent exchange of the authorization basis for the disputed measure actually exist here, because the identification of personal details and the subsequent data comparison are in any case not covered by any of the authorization bases that come into consideration for such measures.
The defendant cannot base the request for ID and the subsequent ID check by its officials on Section 22 Paragraph 1a BPolG. According to Section 22 Paragraph 1a BPolG, the Federal Police can prevent or stop unauthorized entry into the federal territory on trains and in the area of the railway facilities of the federal railways, if it can be assumed based on knowledge of the situation or border police experience that these are being used for unauthorized entry , stop each person briefly, question them and demand that any identification documents they are carrying be handed over for examination. Section 22 Paragraph 1a BPolG then allows so-called situational surveys and, as accompanying and follow-up measures, stopping and asking people to present identification documents. The elements of the offense “knowledge of the situation” and “border police experience” are not legally defined. However, as indefinite legal terms, they are subject to unrestricted administrative court control. At the same time, this requires that the assessments and facts or actual indications on which the situation findings or border police experiences are based can be proven in a way that enables content control (OVG Rh.-Pf., judgment of April 21, 2016 — 7 A 11108/14 — juris Rn 100 with reference to SächsVerfGH, judgment of July 10, 2003 — Vf. 43-II-00 — juris Rn. 221 f.). For this purpose, it is sufficient if the Federal Police can refer to the situation reports it has prepared with regard to the situation's findings and if the factual and forecast basis on which the situation reports are based are presented and these are thus made accessible to judicial review. Neither in the preparatory pleadings nor in the oral hearing did the defendant describe to the court any facts that would allow conclusions to be drawn about such knowledge of the situation or border police experience. No status report was also presented. This means that the factual requirements of Section 22 Paragraph 1a BPolG are not met.
The defendant cannot base the request for identification on Section 22 Paragraph 1 BPolG. According to Section 22 Paragraph 1 Sentence 1 BPolG, the Federal Police can question a person if facts justify the assumption that the person can provide relevant information for the fulfillment of a specific task incumbent on the Federal Police. According to sentence 3, the person must, upon request, hand over the identification documents they are carrying for inspection. The delimitation of these powers according to Section 22 Paragraph 1 BPolG to the identification of identity according to Section 23 BPolG can cause difficulties in individual cases. Both standards contain, as an accompanying intervention, the authority to stop the addressee of the measure and to demand that identification documents be handed over for examination. The demarcation must therefore be based on the (focal) objective of the police measure (Drewes/Malmberg/Walter, BPolG, 5th edition 2015, § 22 Rn. 7). While Section 22 BPolG is aimed at obtaining police-relevant information and the issuance of ID cards primarily serves to assign information to a person or to carry out a plausibility check, the identity check is primarily aimed at identifying unknown persons or at an identity comparison (OVG Rh.- Pf., judgment of April 21, 2016 — 7 A 11108/14 — juris para. 35 with further references). Therefore, a measure according to Section 22 Paragraph 1 BPolG without a prior questioning will regularly be ruled out and an ID check carried out without such a questioning will constitute an identity check according to Section 23 Paragraph 1 BPolG (OVG Rh.-Pf., judgment of April 21, 2016 — 7 A 11108/14 — juris para. 35).
The defendant bears the burden of demonstrating and proving that the prerequisites for the respective authorization to intervene were actually met. The defendant was unable to prove to the court's satisfaction that the request for ID and the ID check by its officials were intended to function solely as a so-called accompanying measure to check the plausibility of a previous questioning of the plaintiff. As a result of the taking of evidence, the chamber came to the conclusion that the plaintiff's address by the defendant's officials was primarily intended to identify him. Witness xxx stated that the plaintiff was loudly upset because the defendant's officers wanted to carry out an ID check. They said “ID cards please”.
One officer then dealt with the plaintiff while the other continued through the train and checked another person's ID. He was also asked for his ID without prior questioning. Witness xxx's statements are credible. In particular, they correspond to the information provided by the witness in the criminal proceedings against the plaintiff before the Arnstadt District Court in the administrative file and the administrative case involved. As part of these criminal proceedings, the witness stated in a written hearing on October 8, 2014, i.e. shortly after the event in question, that the officers wanted to see the plaintiff's ID after entering the compartment. It was explained to him that it was a random check. On May 28, 2015, the witness in the same criminal case stated in the oral hearing before the Arnstadt district court that there had been a police check and the officers had wanted to see the ID cards. The officers asked the plaintiff to check his ID. His ID was also checked. One of the officers checked one or two other people. The checks were carried out randomly. When the officers entered the compartment, he had already pulled out his ID. The witness described the facts he perceived in a consistent, consistent and stringent manner, both in the context of his witness interviews in 2014 and 2015 and in the oral hearing before the sentencing court. The court is also convinced of the credibility of the witness. He made his statement calmly and showed no signs of pressure. He acknowledged existing gaps in knowledge, although these were limited to insignificant detailed questions about the course of events.
The statements of witness xxx are also confirmed by the statement of witness xxx. Witness xxx himself was not able to make any observations about the specific wording of the plaintiff's first speech by the officers. However, he stated in the oral hearing that the officers had informed the plaintiff during the conversation that an identity check would be carried out. He also stated that the defendant's officers regularly patrol the train and, as part of this, ask for ID cards and carry out identity checks. The statements of witness xxx support the statement of witness xxx, as it can be concluded from them that the actions of the defendant's officials alleged by the plaintiff are in no way an exception. The statements of witness xxx have therefore confirmed the Chamber's conviction, gained from the statement of witness xxx, that the measure in question was primarily aimed at checking the plaintiff's identity and that no prior questioning took place. The Chamber is therefore convinced that the factual requirements of Section 22 Para. 1 BPolG are also not met.
The defendant cannot base the disputed measure on Section 23 Paragraph 1 BPolG. According to Section 23 Paragraph 1 BPolG, the Federal Police can determine the identity of a person, in particular to avert danger (No. 1). The danger to be averted must be a concrete danger (Drewes/Malmberg/Walter, BPolG, 5th edition 2015, § 23 Rn. 14), whereby the defendant is again obliged to provide evidence regarding the facts that justify such a danger . A concrete danger only exists if there is sufficient probability that damage will occur in the near future. The defendant has neither presented such facts that justify the probability of damage occurring at the time the plaintiff is approached, nor are such facts apparent, so that the disputed measure cannot be justified on the basis of Section 23 Paragraph 1 No. 1 BPolG. Furthermore, the requirements for establishing identity according to numbers 2 to 4 are obviously not met.
The data comparison measure that followed the plaintiff's identity was therefore also carried out illegally. According to Section 34 Paragraph 1 Sentence 2 BPolG, the Federal Police can compare the personal data obtained in the course of carrying out their duties with the wanted database. Afterwards, all personal data that has become legally known to the Federal Police can be compared with the existing data (cf. Drewes/Malmberg/Walter, BPolG, 5th edition 2015, § 34 Rn. 12). Since the defendant obtained the plaintiff's personal data - as stated - in an unlawful manner, the factual requirements of Section 34 Paragraph 1 Sentence 2 BPolG are not met (cf. VG Stuttgart, judgment of October 22, 2015 - 1 K 5060/13, juris para. 35).
The cost decision is based on Section 154 Paragraph 1 VwGO and corresponds to the outcome of the proceedings.
The decision on provisional enforceability follows from Section 167 Paragraph 1 Sentence 1, Paragraph 2 VwGO in conjunction with Section 708 No. 11, Section 711 ZPO. The appeal was not permitted because the requirements for this pursuant to Section 124a Paragraph 1, Section 124 Paragraph 2 No. 3 or No. 4 were not met.
Instructions on legal remedies follow.
