A pro-Schengen verdict gives police much leeway

In a complicated ruling released Wednesday, the European Court of Justice (ECJ) determined that Germany's Federal Police can stay within the legal norms of the Schengen Agreement if they ensure that identity checks in border regions, on trains and at transit centers are, generally speaking, genuinely random and not a backdoor means of restricting movement.

"The ECJ has left open the question open of whether German law has sufficient constraints on such controls," said David Werdermann, a researcher at the University of Freiburg's Institute for Political Science and the Philosophy of Law. "I read it as an order to change the law and make it more concrete. That will be a task for the Bundestag to lay out: that only in clear individual cases can people be controlled."

Currently, Federal Police may demand ID within 30 kilometers (18 miles) of borders and nationwide at airports and on trains. But the agency's mandate to enforce the frontiers has seemingly been read flexibly enough that some advocates say ID checks have effectively become a form of border control - even deep in the country's interior.

 

'Not definitively answered'

The ECJ received the case from a court in Kehl, where a man claimed that police unreasonably punished him for refusing to show his identification after they stopped him when he crossed the border from France. His attorneys argue that officers cannot penalize someone for resisting an illegal stop. The ECJ offered guidance - "the exercise of those checks is subject under national law to detailed rules and limitations determining the intensity, frequency and selectivity of the checks" - but returned the case to the court in Kehl to determine whether the claimant had the right to resist.

"The question of whether the border check was justified was not definitively answered," Werdermann said, adding that he expects the court in Kehl to ultimately rule that the check was permissible. "One could now consider whether the Federal Police law could be changed," he added. That would be up to the Bundestag, which might find the topic too hot to handle this close to September's federal elections. In fact, he said, it could even take a few years, but at least the court's ruling "made it clear that there are limits."

As an example of what might be considered legally random enough, Werdermann said officers could perhaps check "every 10th passenger on every 15th train." In that case, however, "it must then be ensured that the Federal Police don't discriminate - i.e., check passengers according to skin color," he said. "That was a question that didn't have a concrete role in this case."

Verdict avoids R-word

The decision comes as some officials have called for allowing police to check anyone at any time nationwide. German police have long denied accusations of institutional racism. But their track record on the matter has drawn attention from the United Nations. 

Members of minority populations have long attempted to call attention to the fact that they feel singled out by police because their skin color does not match an antiquated-but-widespread conception of a "German" phenotype. 

"After this ruling, people who are marked as 'not German' will continue to be treated as 'not German,'" said Tahir Della, the spokesperson for the ISD, an initiative that advocates for black people in Germany. "This is of course a legal question, but it's also a political question and even a societal question that needs to be dealt with," he added. "And that is still lacking in this court decision."

 

Until a more instructive verdict comes back from a future case, the Bundestag legislates a more instructive law, or activists successfully campaign for checks on police checks, the enforcement of Germany's clearly defined borders will continue with court-ordered limits but considerably less clear boundaries.