Germany – Higher Regional Court Brunswick, Order of 11 April 2020, 3 W 30/20
Country of Decision:
Country of Applicant:
Date of Decision:
11-04-2020
Citation:
3 W 30/20
Court Name:
Higher Regional Court Brunswick (Oberlandesgericht Braunschweig)
Relevant Legislative Provisions:
Council of Europe Instruments > EN - Convention for the Protection of Human Rights and Fundamental Freedoms
Council of Europe Instruments
Council of Europe Instruments > EN - Convention for the Protection of Human Rights and Fundamental Freedoms > Article 8
Council of Europe Instruments
Council of Europe Instruments > EN - Convention for the Protection of Human Rights and Fundamental Freedoms > Article 8
National / Other Legislative Provisions:
§§ 48 para. 3
98 para. 2 Nr. 3 AufenthG
§§ 24 para. 2
Nr. 2
26 Nr. 1 Nds. SOG (now §§ 24
26 NPOG)
§§ 93 para.2 Nr. 1 and 40 AuslG
Art. 13 para. 1 and 2 GG
98 para. 2 Nr. 3 AufenthG
§§ 24 para. 2
Nr. 2
26 Nr. 1 Nds. SOG (now §§ 24
26 NPOG)
§§ 93 para.2 Nr. 1 and 40 AuslG
Art. 13 para. 1 and 2 GG
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Headnote:
Article 48 para. 3 sentence 2 and 3 AufenthG does not offer a suitable legal basis for the search of homes.
The issue of a search warrant according to police and public order law requires concrete evidence that certain documents could be detected. The violation of the obligation to cooperate according to § 48 para. 3 sentence 1 AufenthG (refusal of the applicant to obtain a passport or similar), as well as vaguely expressed doubts of the authorities about the passport loss, are not sufficient to issue a warrant for the search of homes. Such a search warrant is in any case not proportionate if the probability of detection is low.
Facts:
The Federal Office of Migration and Refugees (BAMF) did not grant the applicant’s refugee status or subsidiary protection and requested the departure within 30 days after the conclusion of the asylum procedure. Otherwise, he would be deported. Since 23 June 2017, the applicant was obliged to leave the country.
The applicant asserts he left his identity card in Lebanon and lost his passport while fleeing. An employee of the Foreigners Authority noted in 2016 that she had serious doubts about the loss of the passport because the applicant laughed when telling the story.
The applicant was asked several times to get a new passport. In August 2017 he declared he would not leave the country voluntarily and had no intention to get a new passport. He also did not cooperate in applying for a passport substitute document.
By repeated order of December 10, 2018, the Local Court of Göttingen ordered the search of the applicant's home, his person and the things belonging to him “for enforcement of the identification obligations of the applicant according to §§ 48 para. 1 and 3 sentences 2 and 3 AufenthG in connection with §§ 25, 26 number 1 Nds. SOG.”
Decision & Reasoning:
Firstly, the court finds that the order of 12 July 2018 is not sufficiently specified. Severe interferences with the fundamental right of Art. 13 para. 1 GG require that the items to be found during the search must be specifically named or described in the order (same requirements as for § 102 StPO).
Secondly, the court determines that § 48 para. 3 sentence 2 and 3 AufenthG is not a sufficient legal basis for the search of homes, as it clearly is not covered by the wording.
Thirdly, the court concludes that the conditions for a search warrant according to police and public order law (§§ 24 para. 2 Nr. 2, 26 Nr. 1 Nds SOG) were not met either.
The refusal to comply with the obligation to cooperate according to § 48 para. 3 sentence 1 AufenthG is an administrative offence according to § 98 para. 2 Nr. 3 AufenthG. However, the court doubts that the lack of cooperation of the applicant to apply for new documents and the circumstances of the story suffice as concrete evidence that items according to § 26 Nr. 1 Nds SOG (in this case identity cards or alike) are to be detected during the search. At least it could not generally be assumed that the documents would be detected but rather that the applicant does not want to go back to his home country. The mere note of doubts of an employee would probably not suffice to undermine the credibility of the applicant.
The question of concrete evidence was not fully decided by the court as it concludes that the warrant was at least not proportionate. The interference with the fundamental right according to Art. 13 GG requires an appropriate balance between the seriousness of the offence and the strength of suspicion as well as the probability of detection.
The offence can be charged with a maximum of 3.000 € which is relatively low and as already determined, the probability of detection based on mere doubts is also low. The search warrant is therefore not proportionate even though the violation of the obligation to cooperate was upheld a long time.
Outcome:
Application granted, order of the District Court of Göttingen found illegal.
Observations/Comments:
This case summary was written by Lea Kolligs, trainee lawyer at the Düsseldorf Regional Court and member of the research group of the Refugee Law Clinic Cologne.
Other sources cited:
Domestic Case Law Cited
OLG Düsseldorf, order of 23 January 2018, I-3 Wx 239/17 (NVwZ-RR 2018, 670 [671]) – concrete evidence for search warrants.
BVerfG, order of 29. October 2013, 2 BvR 389/13, juris-Rn. 16, 17 – requirements for the proportionality of the search of homes.
BVerfG, order of 22. March 1999, 2 BvR 2158/98 (NJW 1999, 2176) – no proportionality of the search of homes in case of violation of §§ 93 para.2 Nr. 1 and 40 AuslG.
AG Hameln, order of 7. December 2004, 38 UR II 3/04 (Nds. Rpfl. 2005, 230, juris-Rn. 4 ff.) – for a general unproprtionality of a search of homes in case of a violation of the obligation to cooperate according to § 48 para. 3 sentence 1 AufenthG.Other Sources Cited
Möller, NK-AuslR, 2016, § 48 Rn. 37; Zschieschack, in: NJW 2005, 3318, 3319 – for a general unproprtionality of a search of homes in case of a violation of the obligation to cooperate according to § 48 para. 3 sentence 1 AufenthG.
