Federal Police Act: Veil searches in the 30 km border area are contrary to European law

Verwaltungsgerichtshof Baden-Württemberg, Judgment of the First Senate of 13.02.2018, 1 S 1468/17 and 1 S 1469/17

The Administrative Court of Baden-Württemberg had to decide on the admissibility of police identity checks in the border area within the framework of the so-called “Schleierfahndung” (veil search) according to § 23 para. 1 no. 3 BPolG.

The Verwaltungsgerichtshof Baden-Württemberg (Administrative Court of Baden-Württemberg) found that the Schleierfahndung (veil search) based on § 23 (1) No. 3 BPolG and the corresponding identity checks by the Federal Police in the 30 km border area are contrary to European law. The Schengen Borders Code adopted by the European Union has abolished border controls between countries participating in the Schengen system, but allows them to exercise general police powers even in border areas, provided that the exercise of such powers does not have the same effect as border controls.

According to the case-law of the European Court of Justice, in particular after its judgment of 21 June 2017 (see below), Germany-in order to exclude such a similar effect-must create a legal framework which specifies the conditions under which checks may take place in the 30 km border area and thus limits the intensity and frequency of such checks.

The provision of Section 23 (1) No. 3 BPolG does not contain the concretisations and restrictions required by the ECJ, not even in conjunction with the "BRAS 120" administrative provisions applicable to the Federal Police at the time. These administrative provisions cannot provide the necessary legal framework simply because they are not generally published. They are therefore not accessible to the citizens concerned and the application of the law resulting from them cannot be foreseen by the persons concerned. Nor were the contents of the BRAS 120 sufficient to effectively limit the frequency of checks in the border area as a whole, since they only regulated checks in individual cases and did not, for example, limit them to random checks.


Measures in the Schengen area which are not border controls, but which nevertheless have the same effect violate Union law if they are not sufficiently narrowly defined by law

ECJ, Judgment of the First Chamber of 21.06.2017, criminal proceedings against A. before the AG Kehl, C-9/16

The defendant before the district court of Kehl (AG Kehl, decision of 22.04.2016, 3 Cs 302 Js 10848/15) Mr. A., had attempted to forcibly evade identity card control by the German Federal Police at the Kehl railway station after crossing the Europabrücke from Strasbourg to Kehl. Thereupon he was accused of resisting enforcement officers according to § 113 StGB. According to AG Kehl, the defendant should no longer be liable to prosecution if the identity check had been unlawful. Although it would have been permissible for the Federal Police to check the identity of the accused under Section 23 (1) No. 3 or Section 22 (1a) BPolG, AG Kehl had doubts as to the compatibility of these provisions with Union law (see ECJ of 22 June 2010 on Melki and Abdeli, see above) and therefore submitted a reference for a preliminary ruling to the ECJ.

The ECJ first stressed that the internal borders of the EU are not controlled in accordance with Article 67 (2) TFEU and Articles 20 and 21 of the Schengen Borders Code. This is without prejudice, however, to the exercise of police powers under national law, provided that they do not have the same effect as border checks.

However, the checks standardised in § 23 (1) no. 3 and § 22 (1a) BPolG suggest that they are permitted irrespective of the conduct of the person concerned and of circumstances from which the danger of an impairment of public order arises. In addition, the above legal bases do not appear to contain, as regards the intensity and frequency of the checks based on them, any specific provisions or restrictions which would prevent the application and practical usage of this power by the competent authorities from leading to checks having the same effect as border checks. The ECJ clarified that the necessary framework must be sufficiently precise and detailed to allow both the need for controls and the specific control measures allowed to be subject to judicial controls themselves.

Due to the factual vagueness of these legal bases, however, an administrative practice threatens in the German case which could have the same effects as border controls and thus violate the Schengen Borders Code. However, it is for the national court alone, which has jurisdiction to make findings of fact, to determine whether that is the case in practice. In contrast to the ruling on Melki and Abdeli (see below), the ECJ is now also satisfied with mere administrative regulations and administrative decrees for the purposes of concretisation.


"Racial Profiling" in the regional railway as discrimination, BUG e.V. as support

Higher Administrative Court Koblenz, judgment of 21.04.2016, 7 A 11108/14

The applicants, German nationals of dark skin colour, travelled with their two children on the regional train from Mainz to Koblenz and spoke in English. They were the only passengers on the train to be asked by a police officer to present their identity cards, although the parties involved disagree as to whether and how an interrogation had taken place before. The police officers carried out a data comparison as part of this suspicion-independent check in accordance with § 22 (1a) BPolG and then left the train again.

In the first instance, the Administrative Court ruled in favour of the plaintiffs that the measures taken by the Federal Police had been unlawful. The federal police then appealed.

The Higher Administrative Court in Koblenz found that the defendant's appeal was unfounded and that the measure taken by the Federal Police was vitiated by an error of assessment due to a violation of the constitutional prohibition of discrimination under Article 3.3 sentence 1 of the Basic Law.

The OVG Koblenz emphasised that Section 22 (1a) BPolG had a general preventive function in preventing and preventing unauthorised entry into federal territory and contained no structural violation of the prohibition of discrimination under Article 3 (3) sentence 1 of the Basic Law. Nor is the geographical scope limited to cross-border trains. Furthermore, the standard is proportionate and compatible with Union law. If the Federal Police refer to findings of the situation, these must be controllable by the courts.

However, a violation of the prohibition of discrimination under Article 3 (3) sentence 1 of the Basic Law does not only exist if the unequal treatment is exclusively or decisively linked to one of the features mentioned there, but already if, in the case of a bundle of motifs, an inadmissible differentiation feature has been a supporting criterion among several. A control independent of suspicion according to § 22 para. 1a BPolG in connection with the skin colour is inadmissible. However, Art. 3 (3) sentence 1 of the Basic Law does not result in a procedural reversal of the burden of proof. In the case of controls pursuant to § 22 para. 1a BPolG, if a pre-selection of the persons to be controlled is made instead of an "inspection of all persons", such a targeted selection requires a conclusive justification supporting the selection decision. Only if the reasons given for the selection prove to be unstable or incomprehensible does the Federal Police ultimately bear the burden of proof that no selection decision was made that violated Article 3.3 sentence 1 of the Basic Law. In the present case, the control was unlawfully linked to the colour of the applicants' skin and was therefore unlawful.


No entitlement to the best possible distribution of pupils* among their classes in terms of their language of origin

Administrative Court Berlin, judgment of 26.09.2013, 3 K 269.12, 3 K 270.12, 3 K 271.12

The plaintiff always received grades between 1 and 3 in primary school and her work and social behaviour was also assessed positively throughout. During primary school attendance she took part in support measures for German language skills sharing. In a support forecast, the primary school confirmed an average grade of 2.15 and recommended the secondary school or an integrated secondary school for further school attendance. Her parents then enrolled her in a grammar school where she was assigned to a class where French was taught as a second foreign language because of her choice of language. In a letter, the school informed the applicant's parents that she had not passed the probationary period in the 7th grade because her performance in six subjects was no longer sufficient. The assessment of her work and social behaviour was also negative.

The applicant sought a declaration that its non-displacement was unlawful. She argued that she had been discriminated against in several ways as a secondary school pupil, including by being assigned to a class with too high a proportion of predominantly Turkish-speaking pupils. As a result, it had not been able to implement its capacity. Therefore, its reduced performance, which would have led to the absence of the probationary period, was not due to circumstances for which it was responsible.

The Court dismissed the action as unfounded. The formation of classes and the assignment of individual pupils to certain classes are measures of school organisation in which the school has a wide scope of action to ensure an effective course of instruction. There is no entitlement under individual law to the best possible distribution of pupils among the individual classes of a multi-grade school year in terms of the language of origin. If class groups are not compiled according to the pupils' language of origin, this does not lead to structural discrimination, because it cannot be shown that a higher proportion of pupils of non-German language of origin in a school class leads to a reduction in performance for the individual pupil in that class which cannot be attributed to him.

From statistically determined "compositional effects" an individual pupil cannot derive a claim to a better mark or even a transfer claim despite insufficient performance for this.


Requirements for a national power norm for identity control after abolition of internal border controls

ECJ, Judgment of the Grand Chamber of 22.06.2010, Aziz Melki and Sélim Abdeli, C-188/10 and C-189/10

A reference for a preliminary ruling from the European Court of Justice by the French Court of Cassation, France, concerned the question of the requirements for a national norm of competence to carry out identity checks following the abolition of internal border controls under the Schengen Borders Code (Art . 20 and 21 of Regulation (EC) No 562/2006) in the area between the land border from France to the Schengen States and a line drawn this side of the border at a distance of 20 km from it.

Art. 67 (2) TFEU as well as Art. Article 20 and 21 of the Schengen Borders Code preclude national legislation which confers on the police authorities of the Member State concerned the power, in an area 20 km deep along its national border with other Schengen States, to establish the identity of any person, irrespective of his behaviour and of the existence of special circumstances giving rise to the risk of public policy being adversely affected, to monitor compliance with the legal obligations relating to the possession, carrying and production of documents and attestations, without that system providing the necessary framework for that power, which ensures that the effective exercise of that power cannot have the same effect as border checks. Thus, the ECJ does not declare the controls independent of suspicion to be in principle incompatible with Union law. However, one of the high requirements for such checks is that the checks are not carried out at the border but on the territory and that the checks are carried out independently of the person checked crossing the border. Moreover, in order to meet the requirement of legal certainty, such a rule of law must itself provide the necessary framework to guide the exercise of discretion by the authorities in the actual exercise of that power.


ICCPR Human Rights Committee (new): Racial profiling by Spanish police is ethnic discrimination

International Covenant on Civil and Political Rights, Human Rights Committee, CCPR/C/96/D/1493/2006, 17.08.2009, Views, Communication No. 1493/2006, Lecraft vs. Spain

The complainant, who was travelling with her husband and son, was the only traveller to be asked by a police officer to prove her identity when she arrived at a Spanish railway station. In response to an inquiry, the police officer stated that the Spanish police were primarily controlling people with dark skin, such as the complainant, to combat illegal immigration.

All Spanish courts rejected the complainant's complaint against the police action.

The complainant then referred the matter to the UN Human Rights Committee in 2006 and alleged a violation of the prohibition of discrimination under Article 26 of the UN Civil Covenant.

The UN Human Rights Committee stressed that police controls in general and the fight against illegal immigration had a legitimate purpose. In addition, however, reasonable and objective grounds are needed to justify unequal treatment. In the present case, it clarified that skin colour is not a reliable criterion to conclude the illegal presence of a person in Spain. If checks are carried out only on persons with certain physical or ethnic characteristics, this amounts to inadmissible direct discrimination.