Today, the Administrative Court of Baden-Württemberg, based in Mannheim, published its second-instance ruling (Case No.: 1 S 1469/17) in another case of racial profiling. A German man with dark skin was subjected to a "suspicionless" identity check by federal police officers on a train between Baden-Baden and Offenburg during a business trip. The circumstances of the check suggest that the plaintiff was stopped solely because of his skin color. With the grounds for the judgment published today, the Administrative Court has now declared the long-standing practice of random identity checks by the federal police between 2008 and 2016 incompatible with European law, thereby removing the legal basis for millions of such checks.
In November 2013, the plaintiff was traveling first class on an ICE train from Berlin to Freiburg for business. Between Baden-Baden and Offenburg, he was subjected to a supposedly suspicionless identity check by three federal police officers. The plaintiff presented his German identity card. No other persons within his field of vision were checked. He subsequently filed a lawsuit with the Stuttgart Administrative Court (Case No. 1 K 5060/13) seeking a ruling that the check constituted unconstitutional discrimination based on his skin color. The check was justified in court proceedings by the provision in Section 23 Paragraph 1 No. 3 of the Federal Police Act (BPolG) – the so-called "sweeping search" provision. In a judgment dated October 22, 2015, the Stuttgart Administrative Court had already ruled this legal basis in the Federal Police Act to be incompatible with European law (Case No. 1 K 5060/13). The Federal Police appealed this decision.
Following a preliminary ruling in a parallel case (Case C-9/16) by the Court of Justice of the European Union that Section 23(1)(3) of the Federal Police Act (BPolG) does not, in itself, meet the requirements of EU law and requires further clarification, the appeal hearing before the Higher Administrative Court of Baden-Württemberg in Mannheim (Case No. 1 S 1469/17) took place on February 13, 2018. In the meantime, the Federal Police submitted a previously confidential administrative regulation (BRAS 120) intended to specify the powers of control.
The Higher Administrative Court of Mannheim (VGH Mannheim) ruled today that the legal basis on which the Federal Police relied for border-area border checks, at least until 2016, violates the provisions of the Schengen Borders Code. The legal requirements, particularly those outlined in BRAS 120, were deemed too vague; the court further ruled that border checks could not be based on supposedly more specific but largely secret administrative regulations. The court thus retroactively revoked the legal basis for the ongoing practice of so-called border checks and the millions of checks carried out in the border region. However, the court ultimately left open the question of whether the plaintiff's check, which violated EU law and was based on his skin color, also infringed upon the prohibition of discrimination enshrined in the German Basic Law (Article 3, Paragraph 3, Sentence 1).
Attorney Sven Adam is the plaintiff's legal representative; the Office for the Implementation of Equal Treatment provided legal support to the plaintiff. In their assessment, the court's requirement for a publicly accessible and sufficiently specific legal basis will already counteract the risk of biased police checks.
“This procedure is another significant step towards removing the legal basis for discriminatory checks. Should the Federal Police now improve their practices with new and, above all, publicly available administrative regulations, we will also challenge these in administrative court, so that ultimately the practice of racial profiling as a whole can be reviewed by the Federal Constitutional Court,” commented attorney Sven Adam on the VGH's decision.
Alexander Tischbirek from BUG eV stated: “Today’s ruling has made it clear that the legal requirements for suspicionless identity checks must be precisely defined. This not only helps to avoid violations of the Schengen Borders Code, but also prevents racial profiling and thus institutional racism in police work.”
Since 2011, lawsuits have been filed with administrative courts with the support of the BUG (Federal Office for the Protection of the Constitution). These lawsuits challenge the practice of racial profiling, suspicionless identity checks carried out based on phenotypic characteristics such as skin color.
