VERDICT
In the administrative law case
1. xxx
2. xxx,
– Plaintiff –
Legal representative:
for 1-2: Attorney Adam,
Lange Geismarstraße 55, 37073 Göttingen
against
Lüneburg Police Headquarters,
Auf der Hude 2, 21339 Lüneburg – 22 – 22.21 –
– Defendant –
because of a house search,
The Administrative Court of Lüneburg – 5th Chamber – without oral proceedings, rendered the following judgment on September 11, 2020, through Judge xxx of the Administrative Court, acting as a single judge:
It is determined that the house search carried out by officers of the defendant at the plaintiffs' premises in the early morning hours of September 19, 2018, was unlawful
The defendant shall bear the costs of the proceedings; in this respect, the judgment is provisionally enforceable.
The defendant may avert enforcement by providing security or depositing 110% of the enforceable amount, unless the plaintiffs provide security in the amount of 110% of the amount to be enforced before enforcement takes place.
FACTS
The plaintiffs, who live in a house in xxx in xxx, seek a declaration that a police operation in their apartment on September 19, 2018 was unlawful.
By letter dated August 14, 2018, the Lower Saxony State Reception Authority requested assistance from the defendant in carrying out the deportation of three Nigerian asylum seekers to Italy on September 19, 2019. The flights were scheduled to depart from Hamburg at 7:30 a.m. and 8:00 a.m., respectively.
On September 19, 2018, at approximately 1:45 a.m., five police officers, along with two employees of the Lower Saxony State Reception Authority and an employee of the responsible immigration office, visited the refugee accommodation assigned to the foreigners at [address redacted] in [city redacted]. The foreigners were not found there. A written notice was discovered in the entrance area indicating that at least one of the foreigners should be staying with "xxx" at [address redacted] in [city redacted].
Subsequently, the police officers, together with employees of the state reception authority and the immigration office, went to the plaintiffs' residence. Initially, the plaintiffs' roommate answered the door before the second plaintiff spoke with the police officers. In consultation with the first plaintiff, the police officers were not granted entry to the apartment. The police officers then entered the apartment and inspected the interior and the courtyard surrounding the building. The individuals they were looking for could not be found there.
The plaintiffs filed their lawsuit on October 7, 2019.
They argue that the police operation was unlawful. Neither they nor their roommate told the police officers that the three foreigners were in their apartment. Furthermore, no door in their apartment slammed shut, as no one was in the back. The lawsuit should be directed against the defendant, since it was not the apartment of the deportees, but their apartment that was searched. The officers also failed to disclose that they were acting in an assistance capacity for the immigration authorities. The manner of the search was also unlawful, as a total of seven police officers searched the apartment. This was unnecessary.
The plaintiffs submit a written request,
to determine that the house search carried out by officers of the defendant in the early morning hours of September 19, 2018, was unlawful.
The defendant submits a written request,
to dismiss the lawsuit.
She argues that the lawsuit is inadmissible because it should have been filed against the Lower Saxony State Reception Authority. This authority is responsible for carrying out the deportation; she herself merely provided administrative assistance. No genuine police measures were applied. Entering the apartment was part of the basic measure, namely the execution of the deportation. The correct defendant for this basic measure is the competent authority. Two employees of the Lower Saxony State Reception Authority and one employee of the immigration office were present. The actions of the police officers did not constitute an independent infringement of the plaintiffs' legal rights. Furthermore, there is no legitimate interest in a declaratory judgment, as there is no risk of recurrence. The lawsuit is also unfounded because it was merely an entry into the apartment, not a search. This was lawful under Section 24 Paragraph 5 No. 2 of the Lower Saxony Public Safety and Order Act (NSOG) and permissible at any time. No targeted or purposeful search took place, therefore it was not a search. Based on information from the refugee accommodation, as well as statements from the roommate and the plaintiffs themselves, the police officers involved were justified in assuming, and indeed convinced, that they would find the foreigners in the apartment. Furthermore, they heard noises from a door at the rear of the apartment during their conversation with the plaintiffs. However, they had no visual contact with the individuals. Based on the noises, the police officers assumed that the foreigners were attempting to flee the ground-floor apartment. For the purpose of verifying their presence, the officers entered the apartment and, for their own safety, inspected the adjacent living areas, an open, obscured hallway with a curtain, and the living area itself. They also entered the adjacent garden. At the beginning of the operation, the officer in charge had informed the officers that a search of the apartment was not permitted. The foreigners were not found. Had a search of the apartment been considered, there would have been imminent danger.
For further details of the facts and the legal arguments, reference is made to the contents of the court files and the administrative records of the defendant.
REASONS FOR DECISION
The lawsuit is successful.
The single judge was able to decide the case without an oral hearing, as the parties had given their consent (§ 101 para. 2 VwGO [German Code of Administrative Procedure]). The defendant, in a letter dated May 4, 2020, declared her "agreement to the intended transfer of the case to the single judge and to her decision without an oral hearing." The plaintiffs, in a letter dated September 4, 2020, also agreed to a decision without an oral hearing. The fact that the defendant revoked her consent in a letter dated September 8, 2020, is irrelevant in this respect. She justified this revocation with legal advice from the single judge, in particular the legal advice of August 24, 2020, which had resulted in a new procedural situation.
The consent to a decision without oral proceedings is, in principle, an irrevocable and unappealable procedural act (Schenke, in: Kopp/Schenke, VwGO, 26th ed. 2020, § 101 para. 5; Federal Administrative Court, decision of June 4, 2014 – 5 B 11/14 –, juris, para. 11). The waiver of oral proceedings, by its very nature, relates only to the next decision of the court and is thereby exhausted if this decision is not a final judgment. It is therefore no longer effective if, after this waiver, an order for the taking of evidence is issued, the parties are required to submit a statement by means of an order imposing conditions, files are obtained for evidentiary purposes, or other new evidence is introduced into the proceedings. In administrative proceedings, a change in the procedural situation does not automatically render a previously declared waiver of oral proceedings ineffective, nor—as provided for in Section 128 Paragraph 2 Sentence 1 of the German Code of Civil Procedure (ZPO)—do it make such a waiver revocable (Federal Administrative Court, Decision of June 4, 2014 – 5 B 11.14 –, juris, para. 11). The procedure for deciding without oral proceedings is governed by an independent regulation in Section 101 Paragraph 2 of the German Code of Administrative Procedure (VwGO), which is why there is no room for applying Section 128 ZPO via Section 173 VwGO (Federal Administrative Court, Decision of December 13, 2013 – 6 BN 3.13 –, juris, para. 10). While it is within the court's discretion whether to decide without oral proceedings despite a valid waiver, this does not preclude the application of Section 128 ZPO in conjunction with Section 173 VwGO. In this context, the court must ensure that the parties' right to be heard is not violated despite the absence of an oral hearing. Accordingly, scheduling an oral hearing may be necessary if a party argues that a significant change in the procedural situation necessitates its scheduling from the perspective of their right to be heard (Federal Administrative Court, Decision of 13 December 2013 – 6 BN 3.13 –, juris, para. 12).
Such a situation does not exist here. A material change in the procedural situation can occur both when the substantive law relevant to the judgment changes and when the facts of the case relevant to the decision change (e.g., due to new submissions) (Störmer, in: Fehling/Kastner/Störmer (eds.), Administrative Law, 4th ed. 2016, § 101 VwGO para. 9). However, an unfavorable outcome for the plaintiff in the taking of evidence does not constitute a material change in the procedural situation, because it is inherent in the nature of the matter that the taking of evidence can lead to such a result (Higher Administrative Court of Lüneburg, decision of December 16, 2003 – 13 LA 355/03 –, juris, paras. 2 et seq.). In the present case, neither the substantive law nor the facts relevant to the decision have changed. Rather, the single judge merely issued legal guidance on June 3, 2020, and August 24, 2020, to indicate his preliminary legal assessment and to give the parties the opportunity to comment on it—in order to ensure their right to be heard. The defendant availed herself of this opportunity. In particular, the reference in the legal guidance of August 24, 2020, to a judgment of the Higher Administrative Court of Hamburg, which had to decide on a similar issue, does not constitute a change in the procedural situation, contrary to the defendant's view. The judgment does not alter the relevant substantive legal situation. A mere deviation of the single judge's legal opinion from that of a party to the proceedings, communicated in a guidance notice, does not, however, constitute a material change in the procedural situation. The defendant had sufficient opportunity to present her legal opinion in writing—which she did—which is why holding an oral hearing was unnecessary.
The lawsuit is admissible and well-founded.
The action is admissible as a declaratory judgment pursuant to Section 43 Paragraph 1 of the Code of Administrative Court Procedure (VwGO). According to Section 43 Paragraph 1 VwGO, an action may be brought to establish the existence or non-existence of a legal relationship if the plaintiffs have a legitimate interest in obtaining a prompt determination. These requirements are met. The interest in a declaratory judgment required under Section 43 Paragraph 1 VwGO arises from the aspect of rehabilitation, because a particularly important fundamental right, the protection of the inviolability of the home (Article 13 of the Basic Law), has been infringed. Even in the case of measures that occurred in the past – as here – the interest in a declaratory judgment must be affirmed, especially in cases of profound infringements of fundamental rights, if a judicial decision could not be obtained before the termination of the measure infringing on the fundamental rights (Federal Constitutional Court, Decision of January 31, 2017 – 1 BvR 1259/16 –, juris, para. 14). Therefore, whether there is a risk of repetition is irrelevant.
The defendant is also the correct defendant. She, and not the competent immigration authority, has standing to be sued. The defendant acted directly against the plaintiffs when the defendant's police officers entered the plaintiffs' apartment. The immigration authority's standing to be sued does not arise from the fact that it requested administrative assistance from the defendant in the deportation proceedings. Insofar as an act of official assistance consists of an independent interference with the legal positions of a citizen, it can be challenged independently and submitted to judicial review (Ramsauer, in: Kopp/Ramsauer, VwVfG, 21st ed. 2020, § 7 para. 12a; Shirvani, in: Mann/Sennekamp/Uechtritz, VwVfG, 2nd ed. 2019, § 7 para. 16; see also VG Oldenburg, judgment of 06.06.2012 – 11 A 3099/12 –, juris, para. 16). This also follows from Section 51 Paragraph 2 Sentence 1 of the Lower Saxony Law on Public Safety and Order (Nds. SOG) of January 19, 2005 (Nds. GVBl. p. 9), in the version applicable at the time of the house search, dated May 25, 2018 (Nds. GVBl. p. 66). According to this provision, the police, when providing enforcement assistance, are only responsible for the manner in which the action is carried out. This corresponds to the regulation in Section 7 Paragraph 2 Sentence 2 of the Administrative Procedure Act (VwVfG), according to which, in the case of administrative assistance, the requested authority is responsible for carrying out the administrative assistance. The requesting authority, here: the competent immigration authority, is therefore responsible for the main measure, which is why the persons affected by the main measure must, in principle, assert their rights against the requesting authority responsible for it. The requested authority, here the defendant, is responsible for the legality of the legal assistance measure itself (see Ramsauer, in: Kopp/Ramsauer, VwVfG, 21st ed. 2020, § 7 para. 12 et seq.). However, the present case does not concern the legality of the main measure, i.e., the legality of the deportation. This is particularly true since the plaintiffs were not the addressees of the main measure and could not have objected to the deportation of the foreigners. The plaintiffs were solely affected by the legal assistance measure in the form of the police officers' entry into their apartment, which is why the plaintiffs can bring their declaratory action directly against the defendant, who carried out this measure. It is irrelevant that employees of the responsible immigration authority were also involved in the operation. The operation in the apartment was carried out and ultimately the responsibility of the defendant's officers. The operational report of the participating chief police inspector shows that the persons being sought could not be located within sight, and the operation was subsequently terminated by her. This demonstrates that the defendant's officers entered the apartment and decided on this part of the operation, not the immigration authorities.
The declaratory judgment action is also well-founded. The defendant was not entitled to search the plaintiffs' apartment in the early morning hours of September 19, 2018.
The legal basis for entering and searching a dwelling is regulated in Section 24 of the Lower Saxony Public Safety and Order Act (Nds. SOG). Section 24, paragraph 5, number 2 of the Nds. SOG permits entry into a dwelling at any time if there are grounds to believe that persons are present who are violating immigration law. Section 24, paragraphs 1 to 4 of the Nds. SOG, on the other hand, regulate the legal requirements for searching a dwelling.
The defendant's action cannot be based on the specific statutory provision of Section 58 Paragraph 5 or Paragraph 6 of the Residence Act (AufenthG) in the version applicable at the time of the single judge's decision. While Section 58 Paragraph 5 of the Residence Act authorizes, insofar as the purpose of carrying out the deportation requires, entry into the residence of the foreigner to be deported for the purpose of apprehension, if there are facts from which it can be concluded that the foreigner is there, and Section 58 Paragraph 6 of the Residence Act authorizes the authority carrying out the deportation, insofar as the purpose of carrying out the deportation requires, to search the residence of the foreigner to be deported and, if there are facts from which it can be concluded that the foreigner is in the premises to be searched, to search the residence of a third party for the purpose of apprehension. The decisive point in time for assessing the factual and legal situation, however, is the actual action of the defendant, since this is the point in time for which the determination of the unlawfulness of the measure is sought (see Hamburg Higher Administrative Court, judgment of August 18, 2020 – 4 Bf 160/19 –, juris, para. 28). Sections 58(4) to (10) of the Residence Act, however, were only inserted with the Second Act to Improve the Implementation of the Obligation to Leave the Country (of August 15, 2019, Federal Law Gazette I, p. 1294), which entered into force on August 21, 2019, and thus after the measure in dispute on September 19, 2018.
The police action on September 19, 2018, to deport the three foreigners, constituted a house search in the opinion of the single judge, meaning that the requirements of Section 24, paragraphs 1 to 4 of the Lower Saxony Public Safety and Order Act (Nds. SOG) must have been met. However, this was not the case.
In its judgment of August 18, 2020 (Case No. 4 Bf 160/19 -, juris, para. 33), the Higher Administrative Court of Hamburg stated the following regarding the distinction between entering and searching:
"b) The defendant's action constituted a search. A search within the meaning of Article 13 Paragraph 2 of the Basic Law is characterized by the targeted and purposeful search by state authorities for persons or objects or for the purpose of ascertaining a fact. The purpose of a search is to uncover something that the occupant of the dwelling does not wish to surrender or disclose voluntarily (Federal Constitutional Court, Decision of September 18, 2008, 2 BvR 683/08, ZIP 2008, 2027, juris para. 17; Decision of May 5, 1987, 1 BvR 1113/85, BVerfGE 75, 318, juris para. 26). Searches are therefore a means of locating and apprehending a person, of finding, securing, or seizing an object, or of pursuing evidence; in this context, 'searching' means, The purpose of a search is to uncover something not readily apparent, perhaps something hidden, or to reveal a secret within the apartment (Federal Administrative Court, Decision of June 7, 2006, 4 B 36.06, NJW 2006, 2504, juris para. 3). The search is not limited to entering the apartment, but also includes, as a second element, the performance of actions within the premises (Federal Constitutional Court, Decision of June 16, 1987, 1 BvR 1202/84, BVerfGE 76, 83, juris para. 26; Higher Administrative Court of Hamburg, Decision of October 23, 1996, Bf V 21/96, NJW 1997, 2193, juris para. 12). Therefore, simply entering and inspecting an apartment does not automatically constitute a search if items are noticed that are readily apparent but which the resident wishes to keep secret from the authorities (Federal Administrative Court, Decision of June 7, 2006, 4 B 36.06, NJW 2006, 2504, juris para. 4). A search is thus not deemed to have occurred if the intrusion into the inviolability of the apartment does not extend beyond entering and inspecting readily apparent objects, even if the resident would have preferred to conceal these objects (Higher Administrative Court of Hamburg, Decision of October 23, 1996, Bf V 21/96, NJW 1997, 2193, juris para. 12). The rights of entry and inspection of building supervisory authorities (Federal Administrative Court, Decision of June 7, 2006, 4 B 36.06, NJW 2006, 2504, juris para. 4) as well as of supervisory authorities in the areas of pharmacy, trade, food and housing protection law (cf. Federal Constitutional Court, Judgment of February 13, 1964, 1 BvL 17/61 et al., BVerfGE 17, 232, juris para. 70; Decision of October 13, 1971, 1 BvR 280/66, BVerfGE 32, 54, juris para. 48; Federal Administrative Court, Judgment of November 5, 1987, 3 C 52.85, BVerwGE 78, 251, juris) Paragraph 25; OVG Hamburg, decision of 23.10.1996, Bf V 21/96, NJW 1997, 2193, juris paragraph 13) are therefore not classified as a search by the courts.”
The single judge agrees with this distinction.
Applying this standard, the defendant's action constituted a search of the apartment. Based on the facts as described by the defendant, her intention was not merely to enter and inspect the plaintiffs' apartment, but specifically to locate the foreigners she suspected were present. She thereby interfered in the plaintiffs' private lives and their sphere of influence in a manner typical of searches, since the object of the defendant's investigation was the plaintiffs' private living space and any persons who might be present there. Determining whether the foreigners were in the apartment was not merely an incidental step in exercising an official right of inspection and entry serving another purpose, but rather the direct and sole objective of the action. The defendant did not merely enter the plaintiffs' apartment to remain there and ascertain a specific set of facts, but rather expended some effort – albeit minimal according to her own statements – by inspecting the plaintiffs' premises to determine whether the plaintiffs were in the apartment or not (cf. Higher Administrative Court of Hamburg, Judgment of 18.08.2020 – 4 Bf 160/19 –, juris, para. 34 with further references; Regional Court of Verden, Decision of 06.07.2004 – 6 T 120/04 –, InfAuslR 2004, 453 (454)).
Normally, when entering a residence to enforce an unannounced deportation, a search is regularly conducted, as the search is specifically for the person to be deported, who is then to be apprehended. A different rule may apply if – unlike in the present case – the foreign national subject to deportation can be readily identified simply by entering the residence, particularly because the resident does not intend to conceal their identity (see Oldenburg Administrative Court, Judgment of June 6, 2012 – 11 A 3099/12 –, juris, para. 22).
Although the defendant assumed that the foreigners were in the apartment, as the plaintiffs and their roommate had previously confirmed this, the officers, according to the defendant's account, did not know whether they would (still) find the foreigners in the apartment. They stated that they had heard noises from a door in the rear of the apartment and suspected the foreigners were attempting to leave through the area away from the main entrance, across the adjacent property, in order to evade the measure – a tactic known from experience in similar operations. Furthermore, the officers themselves stated that it was unclear whether the obstruction of the measure was at the request of the foreigners or solely at the plaintiffs' instigation, as they had been unable to speak with the foreigners or maintain visual contact. The officers inspected the "open [...] obscured [...] hallway with a curtain, as well as the living area" for the purpose of the operation. This shows that the defendant's intention was precisely to uncover something not readily apparent, something the defendant could not be certain of and, as her own statements demonstrate, was not even sure she would actually find. The inspection of the cluttered hallway and the living area—conducted by no fewer than five police officers—also fulfills the second element of the offense of a house search: the performance of actions within the premises. The measure was not merely a matter of entering the apartment, but required, since the foreigners were not in the room first entered by the officers, a targeted search to ascertain whether the foreigners were present. The purpose of entering the apartment—locating the foreigners—could not be achieved simply by entering; rather, it required a focused—albeit superficial—search within the plaintiffs' apartment. The assertion that the deployed Chief Inspector xxx repeatedly warned the officers that no search of the apartment was permitted does not alter this assessment. Even if the officers intended only to enter the apartment, their entry to locate the foreign nationals and to inspect the cluttered hallway and living areas, as described above, legally constitutes a search.
No taking of evidence requested by the defendant is necessary, as the defendant's factual assertions are assumed to be true.
The search of the plaintiffs' apartment was unlawful. Regardless of whether a judicial warrant was unnecessary due to imminent danger (Section 25 Paragraph 1 of the Lower Saxony Public Safety and Order Act), the search was unlawful because it violated Section 24 Paragraph 4 of the Lower Saxony Public Safety and Order Act. According to this provision, entering and searching a residence during nighttime is only permissible in the cases specified in Paragraph 2 Numbers 3 and 4 and in the cases specified in Paragraph 3. In this case, the apartment was searched at approximately 3:00 a.m., i.e., during nighttime hours within the meaning of Section 104 Paragraph 3 of the Code of Criminal Procedure. The aforementioned exceptions did not apply, as the search was not necessary to avert an imminent danger to the life, limb or liberty of a person or to property of significant value (para. 2 no. 3), no emissions emanated from the apartment which, by their nature, extent or duration, were likely to damage the health of persons living in the neighborhood (para. 2 no. 4), and no facts justified the assumption that there was a person in the building who was being unlawfully detained or was helpless and for whom there was a danger to life or limb (para. 3).
The decision on costs is based on Section 154 Paragraph 1 of the Administrative Court Procedure Act (VwGO). The decision on provisional enforceability follows from Section 167 of the Administrative Court Procedure Act (VwGO) in conjunction with Sections 708 No. 11, 711, and 709 Sentence 2 of the Code of Civil Procedure (ZPO).
There are no grounds for the admission of the appeal pursuant to Section 124a Paragraph 1 in conjunction with Section 124 Paragraph 2 No. 3 or 4 of the Code of Administrative Court Procedure by the Administrative Court.
The following is information on legal remedies.
