DECISION
3 W 30/20
64 XIV 55/18 Göttingen District Court
In the procedure according to the Nds.
Regarding SOG
1.xxx,
– Affected person and complainant –
Legal representative:
Attorney Sven Adam,
Lange Geismarstraße 55, 37073 Göttingen,
2. City of Göttingen, represented by the Mayor,
Resident Affairs Department, Immigration Office,
Hiroshimaplatz 1-4, 37083 Göttingen,
– Applicant –
The 3rd Civil Senate of the Braunschweig Higher Regional Court decided through the presiding judge at the Higher Regional Court xxx, the judge at the Higher Regional Court xxx and the judge at the Higher Regional Court xxx on April 11, 2020:
The decision of the Göttingen District Court of December 10, 2018 - 64 XIV 55/18 B - violated the complainant's rights.
There are no costs for the complaint procedure. The second party involved must reimburse the complainant for the necessary out-of-court costs of the complaint procedure.
The business value for the complaint procedure is set at €5,000.00.
REASONS
I
The person concerned requests a declaration of the unlawfulness of a search of his apartment initiated by the immigration authorities “to enforce ID obligations”.
1. The person concerned is a Lebanese citizen and entered Germany for the first time on May 3, 2015. According to his statements during the asylum procedure, he left his identity card in Lebanon and lost his passport between Turkey and Greece when the boat capsized during his first attempt to cross.
The Federal Office for Migration and Refugees did not recognize the person concerned as a refugee in a decision dated April 22, 2017 (pages 5-15 of BA 64 It also did not grant him subsidiary protection status, asked him to leave the country within 30 days of completing the asylum procedure and threatened him with deportation if he did not.
In a letter dated July 11, 2018 (pages 1-4 of BA 64 SOG in conjunction with Section 49 Residence Act to search the person and apartment of the person concerned in order to locate, secure and confiscate the national passport or other documents or other media that could provide information about the identity and/or nationality of the person concerned. The person concerned has been legally obliged to leave the country since June 23, 2017; He had been asked several times to obtain a passport and had verbally declared on August 17, 2017 that he would not leave the Federal Republic of Germany voluntarily and that he did not intend to obtain a national passport. He also did not participate in the application for a replacement passport document in November 2017. There are doubts about the description of the loss of the passport: the person concerned repeats it when asked about the whereabouts of his passport and laughs every time he tells the story. The person concerned intentionally does not present his passport in order to avoid repatriation; he is “almost certainly” in possession of a passport. Securing the passport is to avert a current danger within the meaning of Section 2 No. 1 lit. b Nds. SOG necessary; the person concerned is violating the German legal system; he does not fulfill his obligation under Section 48 Paragraph 1 of the Residence Act to present his passport upon request; In doing so, he is committing an administrative offense in accordance with Section 98 Paragraph 2 No. 3 of the Residence Act and is fulfilling the criminal provisions of Section 95 Paragraph 2 No. of the Residence Act.
The application was accompanied by, among other things, copies of the decision from the Federal Office for Migration and Refugees dated April 22, 2017, the minutes of the hearing in the asylum procedure dated December 20, 2016 and a note apparently from an employee of the applicant's immigration office, including the text:
Apparently he lost his passport on the Turkey-Greece crossing when the boat capsized. However, the manner and manner of his descriptions leave considerable doubt as to their truthfulness! (laughs every time he says that)
By decision of July 12, 2018 (page 24 fd BA 64 XIV 21/18 L), the district court has
Search of the person concerned's apartment as well as his person and the things belonging to him ... ordered to enforce the person concerned's obligations under ID law, Sections 48 Paragraph 1 and Paragraph 3 Sentences 2 and 3 Residence Act in conjunction with Sections 25, 26 Number 1 Nds. SO-CALLED.
The responsible officer at the immigration office did not consider the statement about the loss of the passport to be credible, especially since the person concerned laughed every time he reported this incident. “In particular due to the specified flight” - which according to the description of the person concerned during the hearing by the Federal Office for Migration and Refugees on December 20, 2016 (page 16 ff. of BA 64 XIV 21/18 L, especially page 18
2. In a letter dated December 6, 2018 (page 1 dA) received on December 10, 2018, the applicant asked for the decision to be “reissued” because it could not be carried out within three months due to staff shortages at the police. The letter did not contain any further information.
On December 10, 2018, the district court issued a decision with the same tenor and reasons (page 2 of the DA), and on April 25, 2019, the person concerned's apartment was searched.
In a lawyer's letter dated April 29, 2019 (page 7 fdA), the person concerned lodged a complaint against the search warrant of December 10, 2018, requested access to the files and announced further presentation after inspection of the files.
In its decision of May 16, 2019 (page 9 fdA), the district court did not resolve the complaint and referred the matter to the higher regional court for a decision (page 14 dA).
The person concerned justified the complaint in a written statement dated June 18, 2019 (page 30 ff. dA).
The applicant countered the complaint in a written statement dated July 15, 2019 (page 35 ff. dA).
For details, reference is made to the grounds of appeal and the response to the complaint.
II.
The complaint is admissible and justified.
1. The complaint is admissible and otherwise admissible. Legal recourse to the Higher Regional Court is open, §§ 25 para. 1 sentence 3, 19 para. 4 Nds. SOG in the version valid until May 23, 2019 (since May 24, 2019: Lower Saxony Police and Regulatory Authorities Act [NPOG]), Section 58 FamFG. The necessary legitimate interest after the measure has been completed arises in accordance with Section 62 Paragraph 2 No. 1 FamFG from the serious encroachment on fundamental rights associated with an apartment search (OLG Munich, decision of November 14, 2018 - 34 Wx 42/18 -, NZM 2019, p 69 [70 Rn. 17]; OLG Düsseldorf, decision of January 23, 2018 - I-3 Wx 239/17 -, NVwZ-RR 2018, p. 670 [671 Rn. 9] mwN; OLG Karlsruhe, decision of 23 August 2016 - 11 W 79/16 -, NJW 2017, p. 90 [91 Rn. 12] mwN). The complaint was also filed within the one-month deadline of Section 63 FamFG, because the decision was only announced to the person concerned as part of the search on April 25, 2019 within the meaning of Section 63 Paragraph 3 Sentence 1 FamFG.
2. The complaint is also justified.
a) The resolution of July 12, 2018 is not sufficiently specific.
There is a constitutional obligation to ensure, through appropriate wording of a search warrant, that the interference with fundamental rights remains measurable and controllable (BVerfG, approving chamber decision of July 5, 2016 - 2 BvR 1710/15 -, juris para. 11). With regard to a search warrant based on Section 102 of the Code of Criminal Procedure, this also includes, in particular, information on the evidence to which the search applies if such markings are readily possible based on the results of the investigation (BVerfG, decision of May 26, 1976 - 2 BvR 294/ 76 –, BVerfGE 42, 212, cited in Juris, there paragraph 32). This requirement is intended to prevent the coercive measure from extending to objects that are not covered by the search warrant and thus has a further protective effect in favor of the fundamental rights of the person concerned (BVerfG, ibid., juris para. 34). These principles can be applied to a search in accordance with Sections 24 Para. 2 No. 2, 26 No. 1 Nds. SOG transmitted. In this respect, too, the principle of proportionality dictates that the scope and content of the coercive measures should be sufficiently clearly defined by appropriate wording in the search warrant.
The contested search warrant does not meet these minimum legal requirements. The resolution orders a general search of the person concerned's apartment, his person and the items belonging to him "to enforce the person concerned's ID obligations". The object of the intended seizure, for the purpose of which the search is to be carried out, is not specified in any way, although this would have been possible without further ado. It may often be difficult to specifically name the items to be confiscated, as often only the search will reveal whether or which specific items can be found on the person concerned. However, this does not exclude the possibility of at least approximately describing the expected matters - if necessary in the form of exemplary information (cf. BVerfG, decision of May 26, 1976 - 2 BvR 294/76 -, BVerfGE 42, 212, quoted from Juris, there para .32). The application from the immigration office of the city of G. dated July 11, 2018 takes this into account with the wording “Documents to clarify identity and nationality”. The contested decision, however, does not contain such specification.
b) Regardless of this, the decision is also substantively unlawful.
aa) It is already questionable whether the factual requirements of the legal basis on which it is based are met.
(1) Section 48 Paragraph 3 Sentence 2 and 3 Residence Act does not provide a suitable legal basis for an apartment search. According to Article 13 Paragraph 2 of the Basic Law, a specific simple legal basis is always required for this (see paper, in: Maunz/Dürig, Basic Law Commentary, as of October 2019, Article 13 Rn. 21). According to the clear wording, Section 48 Paragraph 3 Sentence 2 Residence Act only allows the search of the foreigner and the items he is carrying with him. The legal reservation precludes an analogous application of the regulations (as a result: Möller, in: NK-AuslR, 2nd edition 2016, § 48 AufenthG, Rn. 37; Hörich/Hruschka, in: BeckOK AuslR, as of: May 1, 2019, § 48 AufenthG, Rn. 49.1; Winkelmann/Wunderle, in: Bergmann/Dienelt, Aliens Law, 13th edition 2020, § 48 AufenthG, Rn. 6; a. A. Senge, in: Erbs/Kohlhaas, 228. EL January 2020 , Section 48 Residence Act, Rn. 3).
(2) The only possible basis for authorization is the police law powers from the Nds. SOG into consideration.
The administrative authorities and the police can, in accordance with Section 24 Paragraph 2 No. 2 Nds. SOG can enter and search an apartment without the consent of the owner if facts justify the assumption that there is an item in it that is in accordance with Section 26 No. 1 Nds. SOG can be ensured.
According to Section 26 No. 1 Nds. SOG allows the administrative authorities and the police to secure a matter in order to avert a current danger. A danger according to § 2 No. 1 lit. a Nds. SOG is a situation in which there is sufficient probability in the individual case that damage to public safety or order will occur in the foreseeable future. Public security includes in particular the inviolability of the legal system (Ullrich, in: BeckOK PolR Nds, as of May 1, 2019, § 2 Nds. NOG, Rn. 9). This primarily concerns the legal norms of public law, including criminal and administrative offense law (Ullrich, ibid., para. 13).
In the present case, by refusing to cooperate in accordance with Section 48 Paragraph 3 Sentence 1 of the Residence Act, the person concerned is continually committing the administrative offense of Section 98 Paragraph 2 No. 3 of the Residence Act. There is therefore a current threat to public safety.
However, it is questionable whether, from the relevant ex-ante point of view, there were facts that justified the assumption that there were items in the person concerned's apartment that were in accordance with Section 26 No. 1 Nds. SOG could be ensured. Facts in this sense require concrete evidence (OLG Düsseldorf, decision of January 23, 2018 - I-3 Wx 239/17 -, NVwZ-RR 2018, 670 [671]; similar OLG Frankfurt, decision of July 19, 2006 - 20 W 181/06 –, FGPrax 2007, 42). However, the simple possibility that identification papers or other documents suitable for identification could be found on the person concerned is not sufficient for the issuance of a search order (OLG Düsseldorf, ibid; LG Ravensburg, decision of March 24, 2003 - 6 T 364/01 -, NVwZ-RR 2003, 650 [651]).
In the present case, the immigration authority of the city of G. bases its suspicion that the person concerned, contrary to his claims, is still in possession of identification documents, on his consistent refusal to expressly announce that he will not return to his home country and the fact that, in the course of his description, he lost his passport, laugh every time.
It is doubtful whether these circumstances can provide sufficiently concrete evidence that the person concerned actually has a passport or other identification documents. To the extent that individual voices in the literature take the view in this context that the requirements for an apartment search are “not overstretched in a way that is impractical,” the refusal to cooperate in obtaining replacement passport papers justifies the factual suspicion that the foreigner has hidden real papers in his apartment or on his body in order to continue his illegal stay (so Neuhäuser, in: BeckOK PolR Nds, as of May 1, 2019, § 24 Nds. SOG, Rn. 35a with incorrect reference to OLG Düsseldorf, decision of May 5, 2004 - I -3 Wx 333/03 –, BeckRS 2004, 30336591), the Senate does not follow this.
The fact that a foreigner stubbornly violates his obligation to cooperate under Section 48 Paragraph 3 of the Residence Act and thereby at the same time violates the fines set out in Section 98 Paragraph 2 No. 3 of the Residence Act undoubtedly represents a consistent attitude of refusal. The conclusion should also be drawn from this that he wants to achieve the goal of not having to return to his home country. However, neither of these clearly indicates that he keeps identification documents in his apartment. Against this background, concrete evidence for this can only be found in the present case from the brief note in the file by the responsible clerk that there are considerable doubts about the truthfulness of the applicant's description because he laughs every time he talks about the circumstances of the loss of his passport. Whether the responsible clerk's impression of the credibility of the description, recorded in a file note, alone is suitable for establishing a decision within the framework of Section 24 Paragraph 2 No. 2 Nds. The concrete evidence required by SOG is at least doubtful. However, this aspect does not require a decision in the present case. The decision or the search measure based on it is in any case disproportionate in the present case (see bb below).
bb) According to the case law of the Federal Constitutional Court, a search of an apartment seriously interferes with the sphere of life protected by Article 13 of the Basic Law and can only be ordered taking into account the importance of the fundamental right and the principle of proportionality (specified in Section 4 Nds. SOG) (see BVerfG , decision of August 21, 2009 - 1 BvR 2104/06 -, FamRZ 2009, 1814). It follows from this that the interference with the fundamental right of Article 13 Paragraph 1 of the Basic Law associated with an apartment search must be proportionate to the seriousness of the crime and the strength of the suspicion (BVerfG, decision of October 29, 2013 - 2 BvR 389 /13 –, juris para. 16). The degree of suspicion relating to the information relevant to the proceedings must also be taken into account (BVerfG, ibid., juris para. 17).
With regard to the suspicion of an administrative offense due to a violation of the ID requirements under the then applicable Aliens Act (Section 93 Para. 2 No. 1 in conjunction with Section 40 of the Aliens Act), the Federal Constitutional Court considered an apartment search to be unlawful (BVerfG, decision of March 22, 1999 – 2 BvR 2158/98 –, NJW 1999, 2176). In the case of the presumption of an administrative offense that is punishable by a fine of a maximum of 5,000 DM (§ 93 Para. 5 AuslG), the principle of proportionality is no longer maintained (BVerfG, ibid).
In the present case, the administrative offense in question can be punished with a maximum of 3,000 euros (Section 98 (5) Residence Act). The current danger to public safety associated with the commission of the administrative offense as such does not justify a search measure.
The point highlighted by the immigration authority of the city of G., that the Federal Constitutional Court's case law on searches in the area of criminal procedure cannot simply be transferred to searches under police and regulatory law, does not lead to a different assessment. This applies in particular to the point that the violation of the law is ongoing and therefore for a period of time that is no longer acceptable. In this respect, according to the principles set out above, it is also necessary to take into account the probability with which it can be expected that identification documents can be found during a search of the person concerned's home. The circumstances cited for the assumption that the person concerned is in possession of a passport are extremely vague (see above). Ultimately, this assessment is based only on the clerk's impression of the credibility of the person concerned's account, recorded in a brief note.
The resulting low probability of detection in conjunction with the fact that the current danger in question only concerns an administrative offense, which carries a maximum fine of 3,000 euros, means that the search warrant also takes into account the fact that the legal violation had already lasted for a considerable time at the time the decision was issued, as not being proportionate (even for a general disproportionality of a search order under police law due to a violation of the obligation to cooperate under Section 48 Paragraph 3 Sentence 1 Residence Act: Möller, NK-AuslR, 2nd ed . 2016, § 48 Rn. 37; Zschieschack, in: NJW 2005, 3318, 3319; probably also AG Hameln, decision of December 7, 2004 - 38 UR II 3/04 -, Nds. Rpfl. 2005, 230, juris- 4 ff.).
The decision of the Mannheim Administrative Court (decision of December 10, 1999 - 11 S 240/99 -, NVwZ-RR 2000, 394) referred to by the immigration authority of the city of G. does not give rise to a different assessment. It deals with the enforcement of a passport requirement set by an administrative act and thus a different case scenario. The decision also does not address the special requirements formulated by the Federal Constitutional Court regarding the appropriateness of an apartment search.
III.
The cost decision follows from Section 19 Paragraph 4 Sentence 1 Nds. SOG in conjunction with Section 81 FamFG.
The determination of the goodwill results from Section 19 Paragraph 4 Sentence 5 Nds. SOG in conjunction with Sections 61, 36 Paragraphs 2 and 3 GNotKG.
There is no reason to admit the legal complaint in accordance with Section 70 (2) FamFG.
