DECISION
3 W 30/20
64 XIV 55/18 Göttingen Local Court
In the proceedings under the Lower Saxony Public Safety and Order Act (Nds. SOG)
concerning
1. xxx,
– Affected party and complainant –
Legal representative:
Attorney Sven Adam,
Lange Geismarstraße 55, 37073 Göttingen,
2. City of Göttingen, represented by the Mayor,
Residents' Affairs Department, Immigration Office,
Hiroshimaplatz 1-4, 37083 Göttingen,
– Applicant –
The 3rd Civil Senate of the Higher Regional Court of Braunschweig, composed of the presiding judge of the Higher Regional Court xxx, the judge of the Higher Regional Court xxx and the judge of the Higher Regional Court xxx, decided on April 11, 2020:
The decision of the Göttingen District Court of 10 December 2018 – 64 XIV 55/18 B – violated the appellant's rights.
No costs are charged for the appeal proceedings. The second party involved must reimburse the appellant for the necessary extrajudicial costs of the appeal proceedings.
The value in dispute for the appeal proceedings is set at €5,000.00.
REASONS
I.
The person concerned seeks a declaration that a search of his apartment ordered by the immigration authorities "for the purpose of enforcing identity document obligations" was unlawful.
1. The person concerned is a Lebanese national and first entered the Federal Republic of Germany 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 a first crossing attempt.
The Federal Office for Migration and Refugees, in its decision of April 22, 2017 (pp. 5–15 of file 64 XVI 21/18 L), did not recognize the applicant as a refugee and rejected his asylum application. It also did not grant him subsidiary protection status, ordered him to leave the country within 30 days of the conclusion of the asylum procedure, and threatened him with deportation if he failed to do so.
By letter dated July 11, 2018 (pp. 1–4 of file 64 XVI 21/18 L), the applicant requested a judicial order pursuant to Sections 25 and 26 Paragraph 1 of the Lower Saxony Public Safety and Order Act (Nds. SOG) in conjunction with Section 49 of the Residence Act (AufenthG) for the search of the person and residence of the person concerned in order to locate, secure, and seize his national passport or other documents or media that could provide information about his identity and/or nationality. The person concerned had been subject to an enforceable deportation order since June 23, 2017; he had been repeatedly requested to obtain a passport and had orally stated on August 17, 2017, that he would not leave the Federal Republic of Germany voluntarily and did not intend to obtain a national passport. He also failed to cooperate in the application for a substitute travel document in November 2017. There were doubts about the account of the passport loss: the individual repeated it when asked about the whereabouts of his passport and laughed every time he told the story. The individual was deliberately withholding his passport to avoid deportation; he was "almost certainly" in possession of a passport. Securing the passport was necessary to avert an imminent danger within the meaning of Section 2 No. 1 lit. b of the Lower Saxony Public Safety and Order Act (Nds. SOG); the individual was violating German law; he was failing to comply with his obligation under Section 48 Paragraph 1 of the Residence Act (AufenthG) to present his passport upon request; he was thus committing an administrative offense under Section 98 Paragraph 2 No. 3 of the Residence Act (AufenthG) and fulfilling the penal provision of Section 95 Paragraph 2 No. 1 of the Residence Act (AufenthG).
The application included, among other things, copies of the decision of the Federal Office for Migration and Refugees dated April 22, 2017, the transcript of the hearing in the asylum proceedings dated December 20, 2016, and a note apparently written by an employee of the applicant's immigration authority, containing, among other things, the following text:
He claims to have lost his passport during the crossing from Turkey to Greece when the boat capsized. However, the way he tells his story casts considerable doubt on its veracity! (laughs every time he tells it)
By decision of July 12, 2018 (pp. 24 et seq. of file 64 XIV 21/18 L), the Local Court decided
Search of the residence of the person concerned, as well as his person and his belongings… ordered to enforce the person concerned's obligations under identification law, §§ 48 para. 1 and para. 3 sentences 2 and 3 of the Residence Act in conjunction with §§ 25, 26 number 1 of the Lower Saxony Public Safety and Order Act.
The responsible case worker at the immigration office deemed the account of the passport loss not credible, especially since the individual laughed every time he recounted the incident. "Particularly due to the stated flight"—which, according to the individual's account during the hearing before the Federal Office for Migration and Refugees on December 20, 2016 (pp. 16 ff. of file BA 64 XIV 21/18 L, in particular p. 18 X), led to Turkey and thus allegedly took place between Turkey and Greece before the passport loss—there were indications that the individual was in possession of a valid national passport.
2. By letter dated December 6, 2018, received on December 10, 2018 (p. 1 of the file), the applicant requested a "reissuance of the order" because it could not be executed within three months due to staff shortages at the police department. The letter contained no further details.
On December 10, 2018, the local court issued a decision identical in wording and reasoning (p. 2 of the file), and on April 25, 2019, the apartment of the person concerned was searched.
By letter from his lawyer dated April 29, 2019 (p. 7 fdA), the person concerned filed a complaint against the search warrant of December 10, 2018, requested access to the files and announced further submissions after reviewing the files.
By decision of 16 May 2019 (p. 9 fdA), the Local Court did not grant the appeal and submitted the matter to the Higher Regional Court for a decision (p. 14 dA).
The person concerned substantiated his complaint in a written submission dated June 18, 2019 (pp. 30 ff. of the file).
The applicant opposed the appeal by letter dated July 15, 2019 (pp. 35 ff. of the file).
For details, reference is made to the grounds of appeal and the response to the appeal.
II.
The complaint is admissible and well-founded.
1. The appeal is admissible and otherwise permissible. Legal recourse to the Higher Regional Court is available, §§ 25 para. 1 sentence 3, 19 para. 4 Nds. SOG in the version applicable until 23 May 2019 (since 24 May 2019: Lower Saxony Police and Public Order Act [NPOG]), § 58 FamFG. The necessary legitimate interest after completion of the measure arises pursuant to Section 62 Paragraph 2 No. 1 of the Act on Proceedings in Family Matters and Matters of Non-Contentious Jurisdiction (FamFG) from the serious infringement of fundamental rights associated with a search of a residence (Higher Regional Court of Munich, decision of November 14, 2018 – 34 Wx 42/18 –, NZM 2019, p. 69 [70 para. 17]; Higher Regional Court of Düsseldorf, decision of January 23, 2018 – I-3 Wx 239/17 –, NVwZ-RR 2018, p. 670 [671 para. 9] with further references; Higher Regional Court of Karlsruhe, decision of August 23, 2016 – 11 W 79/16 –, NJW 2017, p. 90 [91 para. 12] with further references). The appeal was also filed within the one-month period stipulated in Section 63 of the Act on Proceedings in Family Matters and Matters of Non-Contentious Jurisdiction (FamFG), because the decision was only communicated to the person concerned during 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 decision of 12 July 2018 is not sufficiently specific.
The Constitution requires that search warrants be formulated appropriately to ensure that the infringement of fundamental rights remains measurable and controllable (Federal Constitutional Court, 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 includes, in particular, details of the evidence to which the search applies, provided such identification is readily possible based on the results of the investigation (Federal Constitutional Court, decision of May 26, 1976 – 2 BvR 294/76 –, BVerfGE 42, 212, cited in Juris, there para. 32). This requirement is intended to prevent the coercive measure from extending to objects not covered by the search warrant and thus provides further protection for the fundamental rights of the person concerned (Federal Constitutional Court, loc. cit., juris para. 34). These principles can be applied to a search pursuant to Sections 24 para. 2 no. 2, 26 no. 1 of the Lower Saxony Public Safety and Order Act (Nds. SOG). In this respect as well, the principle of proportionality requires that the scope and content of the coercive measures be sufficiently defined through appropriate wording in the search warrant.
The challenged search warrant does not meet these minimum requirements of the rule of law. The warrant authorizes a blanket search of the suspect's residence, person, and belongings "to enforce the suspect's obligations under identification law." 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 easily possible. While it may regularly be difficult to specify the items to be seized precisely, since often only the search itself will reveal whether, and if so, which specific items are to be found at the suspect's residence, this does not preclude describing the expected items at least approximately – possibly by providing examples (cf. Federal Constitutional Court, decision of May 26, 1976 – 2 BvR 294/76 –, BVerfGE 42, 212, cited according to Juris, there para. 32). The application submitted by the immigration office of the city of G. on July 11, 2018, addresses this with the wording "documents to clarify identity and nationality." The challenged decision, however, does not contain such a specific definition.
b) Regardless of this, the decision is also materially unlawful.
aa) It is already questionable whether the factual prerequisites of the legal basis on which it is based are met.
(1) Section 48 paragraph 3 sentences 2 and 3 of the Residence Act do not provide a suitable legal basis for a search of a residence. According to Article 13 paragraph 2 of the Basic Law, such a search always requires a specific statutory basis (see Papier, in: Maunz/Dürig, Basic Law Commentary, as of October 2019, Article 13, marginal note 21). According to its clear wording, Section 48 paragraph 3 sentence 2 of the Residence Act only permits the search of the foreigner and the belongings he or she is carrying. The principle of legality precludes an analogous application of the regulations (similarly: Möller, in: NK-AuslR, 2nd edition 2016, § 48 AufenthG, para. 37; Hörich/Hruschka, in: BeckOK AuslR, as of 01.05.2019, § 48 AufenthG, para. 49.1; Winkelmann/Wunderle, in: Bergmann/Dienelt, Ausländerrecht, 13th edition 2020, § 48 AufenthG, para. 6; contra Senge, in: Erbs/Kohlhaas, 228th supplement January 2020, § 48 AufenthG, para. 3).
(2) Therefore, the only possible legal basis for authorization is the police powers under the Lower Saxony Public Safety and Order Act (Nds. SOG).
According to Section 24 Paragraph 2 No. 2 of the Lower Saxony Public Safety and Order Act (Nds. SOG), administrative authorities and the police may enter and search a dwelling without the consent of the occupant if there are grounds to believe that it contains an item that may be seized according to Section 26 No. 1 of the Nds. SOG.
According to Section 26 No. 1 of the Lower Saxony Public Safety and Order Act (Nds. SOG), administrative authorities and the police may seize an object to avert an imminent danger. A danger, as defined in Section 2 No. 1 lit. a Nds. SOG, is a situation in which, in the specific case, there is a sufficient probability that damage to public safety or order will occur in the foreseeable future. Public safety encompasses, in particular, the inviolability of the legal order (Ullrich, in: BeckOK PolR Nds, as of May 1, 2019, Section 2 Nds. SOG, para. 9). This primarily concerns the legal norms of public law, including criminal and administrative offense law (Ullrich, ibid., para. 13).
In the present case, the person concerned, by refusing to perform the acts of cooperation incumbent upon him pursuant to Section 48 Paragraph 3 Sentence 1 of the Residence Act, is continually committing the administrative offense defined in Section 98 Paragraph 2 Number 3 of the Residence Act. There is therefore a present danger to public safety.
However, it is questionable whether, from the relevant ex-ante perspective, there were facts that justified the assumption that the person concerned's apartment contained items that could be seized pursuant to Section 26 No. 1 of the Lower Saxony Public Safety and Order Act (Nds. SOG). Facts in this sense require concrete indications (Higher Regional Court of Düsseldorf, decision of January 23, 2018 – I-3 Wx 239/17 –, NVwZ-RR 2018, 670 [671]; similarly, Higher Regional Court of Frankfurt, decision of July 19, 2006 – 20 W 181/06 –, FGPrax 2007, 42). The mere possibility that identity documents or other documents suitable for identification might be found on the person concerned is not sufficient for issuing a search warrant (OLG Düsseldorf, loc. cit.; 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 identity documents, on his consistent refusal to comply, his explicit announcement not to return to his home country, and the fact that he laughs every time he describes having lost his passport.
It is doubtful whether these circumstances can provide sufficiently concrete evidence that the person concerned is actually in possession of a passport or other identification documents. While some legal scholars argue that, in order to avoid setting impractical requirements for a search warrant, the mere refusal to cooperate in obtaining substitute travel documents justifies the factually grounded suspicion that the foreigner is concealing genuine documents in their home or on their person to continue their illegal stay (as argued by Neuhäuser, in: BeckOK PolR Nds, as of May 1, 2019, § 24 Nds. SOG, para. 35a, with an incorrect reference to OLG Düsseldorf, decision of May 5, 2004 – I-3 Wx 333/03 –, BeckRS 2004, 30336591), the Senate does not follow this view.
The fact that a foreigner persistently violates his duty to cooperate under Section 48 Paragraph 3 of the Residence Act and thereby also violates the administrative offense defined in Section 98 Paragraph 2 Number 3 of the Residence Act undoubtedly constitutes a consistent refusal to cooperate. It would also generally be reasonable to conclude from this that he intends to avoid having to return to his home country. However, neither of these points clearly indicates that he keeps identity documents in his apartment. Against this background, the only concrete indication of this in the present case can be found in the brief file note by the responsible case worker, stating that there were considerable doubts about the veracity of the applicant's account because he laughed every time he recounted the circumstances of losing his passport. Whether the impression of the responsible case worker regarding the credibility of the account, as recorded in a file note, is sufficient to establish a concrete indication required under Section 24 Paragraph 2 No. 2 of the Lower Saxony Public Safety and Order Act (Nds. SOG), is at least doubtful. However, this point does not require a decision in the present case. In any event, the warrant and the search warrant based thereon are disproportionate (see below, section bb).
bb) According to the jurisprudence of the Federal Constitutional Court, a search of a residence constitutes a serious infringement of the sphere of life protected by Article 13 of the Basic Law and can only be ordered in consideration of the significance of this fundamental right and the principle of proportionality (specified in Section 4 of the Lower Saxony Public Safety and Order Act) (see Federal Constitutional Court, decision of August 21, 2009 – 1 BvR 2104/06 –, FamRZ 2009, 1814). It follows that the infringement of the fundamental right under Article 13 Paragraph 1 of the Basic Law associated with a search of a residence must be proportionate to the seriousness of the offense and the strength of the suspicion (Federal Constitutional Court, decision of October 29, 2013 – 2 BvR 389/13 –, juris-Rn. 16). Furthermore, the degree of suspicion relating to the information relevant to the proceedings must be taken into account (BVerfG, aaO, juris-Rn. 17).
The Federal Constitutional Court ruled that a search of a residence was unlawful in connection with the suspicion of an administrative offense due to a violation of the identification requirements under the then-applicable Aliens Act (§ 93 para. 2 no. 1 in conjunction with § 40 Aliens Act) (Federal Constitutional Court, decision of March 22, 1999 – 2 BvR 2158/98 –, NJW 1999, 2176). The court held that the principle of proportionality was no longer upheld when the suspicion of an administrative offense was punishable by a fine of no more than DM 5,000 (§ 93 para. 5 Aliens Act) (Federal Constitutional Court, ibid.).
In the present case, the potential administrative offense can be punished with a maximum fine of €3,000 (§ 98 para. 5 of the Residence Act). The present danger to public safety associated with the commission of the administrative offense does not, therefore, justify a search.
The point raised by the immigration office of the city of G., namely that the Federal Constitutional Court's jurisprudence on searches in criminal proceedings cannot simply be applied to searches under police and public order law, does not lead to a different assessment. This applies in particular to the point that the violation of law is being perpetuated continuously and thus for an unacceptable period of time. In this respect, according to the principles outlined above, it must also be considered how likely it is that identity documents will be found during a search of the person's residence. The circumstances cited to support the assumption that the person possesses a passport are extremely vague (so). Ultimately, this assessment is based solely on the case worker's impression, recorded in a brief memorandum, of the credibility of the person's account.
The resulting low probability of discovery, combined with the fact that the present danger in question only concerns a minor offense punishable by a maximum fine of €3,000, means that the search warrant is disproportionate, even considering that the violation had already been ongoing for a considerable time at the time the warrant was issued (even for a general disproportionality of a police search warrant due to a violation of the duty to cooperate under Section 48 Paragraph 3 Sentence 1 of the Residence Act: Möller, NK-AuslR, 2nd ed. 2016, Section 48, marginal note 37; Zschieschack, in: NJW 2005, 3318, 3319; presumably also Hameln Local Court, decision of December 7, 2004 – 38 UR II 3/04 –, Lower Saxony). Rpfl. 2005, 230, juris para. 4 ff.).
The decision of the Mannheim Administrative Court of Appeal (decision of December 10, 1999 – 11 S 240/99 –, NVwZ-RR 2000, 394), cited 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 restriction imposed by administrative act and thus with a different set of circumstances. The decision also does not address the special requirements for the proportionality of a search of residence formulated by the Federal Constitutional Court.
III.
The decision on costs follows from Section 19 Paragraph 4 Sentence 1 of the Lower Saxony Public Safety and Order Act (Nds. SOG) in conjunction with Section 81 of the Family Proceedings Act (FamFG).
The determination of the business value results from Section 19 Paragraph 4 Sentence 5 of the Lower Saxony Public Safety and Order Act (Nds. SOG) in conjunction with Sections 61, 36 Paragraphs 2 and 3 of the Court Fees Act (GNotKG).
There is no reason to grant leave to appeal on points of law pursuant to Section 70 Paragraph 2 of the Act on Proceedings in Family Matters and Matters of Non-Contentious Jurisdiction (FamFG).
