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Arbitrary stop and search operations: Migrants caught up in dragnet controls, from Burgerrchte & Polizei/CILIP 65 no 1/2000

by Martina Kant (1)

The relationship between migrants and the German police is not only under strain because of racist abuse in the form of bodily harm and harassment. With the legalisation of stop and search operations, independent of "reasonable suspicion" or specific incident, in several regional (Länder) police regulations as well the Federal Border Law, the police has gained another instrument which, as practice has shown, is being used increasingly to criminalise migrants.

Bavaria was the first Land to introduce "non suspect and event related" controls (hereafter: arbitrary stop an search) in its regional police regulation in 1994. Since then, several German Länder, such as Baden-Württemberg, Lower Saxony, Thuringia, Mecklenburg-Vorpommern, Brandenburg, Berlin, Saxony as well as the Federal Government have followed the example and have, in one form or another, enabled their police and Federal Border Guards (BGS) to conduct dragnet controls (2). Depending on the law's regional variations, police forces are allowed to conduct arbitrary stop and search operations within 30 km of the German border region: on thoroughfares (motorways, through-routes in Europe and other important cross border traffic roads), in public international transport facilities, at airports, in trains and train stations or in principle in public transport areas (Lower Saxony, Berlin). During these operations, police are allowed to stop any person, to ask for identification, "to look closely" at objects carried or even to search the person and vehicle. Only the Berlin police and the BGS are constrained in their remits by "situation related findings", or rather "border police experiences." All other regional police forces can conduct unregulated arbitrary stop and search operations.

Aims and objectives

The reasoning behind arbitrary stop and search, according to police regulations and the Federal Border Law, is the "prevention and ending of illegal crossings of national boundaries" and "illegal residence" as well as the "preventative fight against cross border crime". The reasoning behind the alleged necessity of the controls is similarly stereotypical: due to the cessation of internal border controls in the framework of the Schengen Agreement, the crime filtering effect of border controls is no longer present. "Criminal or offensive goods and illegal services", it is claimed, can now be transported easily from one country to another. Furthermore, the high "pressure of illegal migration" on borders is undiminished (3). The necessity of BGS controls was justified by the then government fractions of the CDU/CSU (Christlich Demokratische Union and Christlich Soziale Union) and the FDP (Freie Demokratische Partei) with the "disproportionably high contribution of non-German suspects to serious violent offences" as well as the "considerable increase in trafficking through professional trafficking organisations." (4)

Selection criteria

During dragnet controls on motor ways, in trains, train stations etc., it is not possible to control every traveller. For legal reasons (due to "reasonableness" and "from the efficiency point of view") the "pre-selection" is all the more important when conducting arbitrary controls (5). Police regulations themselves do not delineate that certain groups of persons should be controlled. According to the Interior Ministry of Lower Saxony, the implementation regulations of the laws do not impose selection criteria on police officers either (6). A situation report by the Interior Ministry of Bavaria from September 1996 however, conveys a different image: "One or two selecting officers (particularly trained eyes!) are positioned in a closed off lane just before the place of control and they select the vehicles to be controlled by looking into the vehicle interior, according to established criteria" (7). Further, according to the police spokesman for the police headquarters Würzburg, the "police officers...depending on their specific work experiences and the control objectives, follow a certain investigative grid" (8). In Bavaria, the Crime Police Force is constructing "investigation grids serving the selection process" for the specially created control forces, targeting the "blitz burglaries by the Rumanian safe cracking groups or Polish car smuggling gangs" amongst others (9). These investigation grids are therefore being used to track down certain groups of foreigners.

Apart from the established selection criteria, the officers are supposed to draw on their work- and life experiences (10). But here also, it is predominantly outward appearances such as skin colour or life styles which lead to controls, especially if in the eyes of the police "something does not match". For example, if someone "whom one doesn't trust to have ever earned 100 Marks himself" sits in an expensive car (11). The mobile task forces which conduct arbitrary controls on Bavarian motorways for example, critically observe vehicles with number plates from the former Yugoslavia, the Czech Republic, Slovakia, Rumania, White Russia, Ukraine and the Baltic States. All Polish travellers from the Zielona Gora area for example are said to be controlled without exception; the city is seen to be a centre for well organised crime gangs (12).

The very logic of arbitrary stop and search itself suggests such mechanisms of selection. If there is talk of imported crime, illegal migration flows and violent foreigners, the politics produces a racist template according to which the police divide people into suspects and non-suspects. Moreover, the only way the police can successfully control violations of the Aliens Act, is through the control of supposed non-Germans (13).

Successful Controls? Control of Successes!

"Sensational hit rates" were proclaimed by Bavaria's interior minister Beckstein (CSU) in his annual assessment in 1996 after the introduction of arbitrary police controls in Bavaria (14). In Baden-Württemberg also, dragnet controls have "proved very reliable" according to interior minister Schäuble (CDU) (15). However, these "success stories" are difficult to comprehend, as there is no statistical investigation as to location, scope and outcome of the controls. The Interior Ministries of the Länder do not even seem to be interested in hard facts, as evaluations could show that dragnet controls do not counter cross-border, or even well organised, crime. In Bavaria, the data protection official and the SPD (Sozial Demokratische Partei Deutschlands) fraction of the regional parliament have long demanded a control mechanism to evaluate the successes of arbitrary police controls. The regional parliament however, voted against this proposal with a CSU majority (16). Baden-Württemberg also does not produce details of investigations, in order "not to unnecessarily waste capacities for statistical objectives" (17). Apart from this, the regional CDU fraction holds its own success criteria: it is of the opinion that the authorisation of dragnet controls "is in itself a success for the police, because they need the new legal basis on grounds of experiences deriving from praxis" (18). The German parliament (Lower House) on the other hand has asked the government to evaluate arbitrary police controls conducted by the BGS before the limited authorisation order runs out at the end of 2003 (19). The Saxony police regulation even lays down an annual evaluation of scope and outcome of the controls.

Who gets caught up in the mesh of dragnet controllers then? Is it really "organised criminals", large scale drug smugglers and professional traffickers? The few available statistics only allow for limited, but fairly unambiguous, conclusions.

After the results of an eight month evaluation of arbitrary controls in trains between 1997/98 in Bavaria in the framework of the "Investigation Concept Schiene", the police reached a "success quota" of 16% (20), which implies that every sixth police control leads to the detection or arrest of a person. At first sight therefore, arbitrary controls seem to be rather efficient. A closer look however, drastically qualifies these "success stories": around three quarters of those arrested were refugees going through the asylum process or those with a temporary residence permit who violated the imposed travel restrictions, the so-called Residenzpflicht, which means they were caught outside their allocated district around the Aliens Office. In Germany, leaving one's allocated district (Landkreis) constitutes an infringement of the asylum procedure, or the Aliens Act. The fight against cross border or organised crime is not even peripherally tackled here. Barely 3% of those arrested had an outstanding arrest warrant and the amount of drugs confiscated fell within "personal consumption" limits. Drug dealers therefore, were not caught in the net either. Only every fourteenth person was an "illegal" immigrant. The high proportion of migrants and refugees (around 82%) on the other hand, reveals the strategy of the police, which is solely aimed at outer appearances allegedly outing all non-Germans. The six month evaluation of arbitrary controls in Western Munich shows similar results. Out of a "success rate" of 22.6% over half of the offences were related to infringements of the Aliens Act or the asylum procedure law (21).

The above suspicions are entirely confirmed when looking at the new arrest statistics for the police headquarters [AT] Mittelfranken. In 1999, 692 persons were controlled in trains and train stations in the area of Mittelfranken (22). Police officers do not conduct daily controls here but mainly at the weekend when many people travel with a cheap "weekend ticket". The following offences were recorded: around 32 criminal offences and 103 legal infringements relating to the Aliens Act and the asylum procedure regulations, many of them dealing with violations of the so-called Residenzpflicht. In relation to the overall number of persons controlled, these figures prove nothing other than the Bavarian police officers specifically target migrants during controls. There is no other way to explain this "success rate": every fifth control leads to the detection of a breach of the Aliens Act. Furthermore, the strategy of targeting regional trains completely defies the proclaimed objectives of arbitrary stop and search operations: the objectives after all are claimed to be the prevention and ending of unauthorised border crossings, illegal residency or the fight against cross border crime. Instead, the police spins its "successful" results on the backs of asylum seekers, who want to visit friends and acquaintances at the weekend.

At times, so-called arbitrary controls [stop and search] have the explicit purpose of systematically controlling migrants. One of these examples is the "Pilot Project [on] Illegal Immigration and Human Trafficking" which was created through a decision of the Schengen Executive Committee. In October 1998, the German Federal Crime Office, the Federal Border Guards and regional police forces took part in a three day international operation with coordinated border controls and inland stop and search operations which specifically targeted refugees along the "main trafficking routes". Around 706 refugees, who illegally entered or resided in Germany, were caught during this operation (23).

Suspect unrelated controls = Foreigner controls

Suspect unrelated controls [arbitrary stop and search] violate the principle of equality as laid down in the German Basic Law, because even if only indirectly, they are tied to specific groups of persons, in this case migrants. They open doors for the arbitrary criminalisation of migrants. Furthermore, the present control practice will lead to an even higher representation of foreigners in police crime statistics than exists already (24). This in turn, will lead to more discrimination and legal repression for migrants. Due to its proclaimed aims, objectives and praxis, arbitrary stop and search is in the final instance nothing but a new instrument for the control of refugees and migrants. The stigmatising of human beings who, judging from their outer appearances, are seen to be "non-German" (and citizenship does not play a role here) is not only accepted by politicians, but is a deliberate strategy (25).

However, the police also targets migrants without the authorisation of arbitrary stop and search. In addition to the monthly regional stop and search operations, the regional police headquarters in Baden-Württemberg for example is instructed "to conduct at least one monthly stop and a search operation targeting illegally resident foreigners" (26). In police jargon, this is called "to go into the foreigners..."

Martina Kant is co-editor of Bürgerrechte & Polizei/CILIP and research fellow at the Freie Universität Berlin.

1) Parts of this article are based on material by Fredrik Roggan, Bremen, who I want to thank at this point for his support.

2) See also: Maurer, A. Schleierfahndung im Hinterland [Dragnet Controls in the Hinterland] in: Bürgerrechte & Polizei/ CILIP 59 (1/98), pp51-56.

3) Walter, B. Verdachts- und ereignisunabhängige Polizeikontrollen [Suspect- and event unrelated police controls] in Kriminalistik 1999. No 5, pp290-295 (290).

4) BT-Drs. 13/10790, 26.5.1998.

5) Koch, H. Anlaß- und verdachtsunabhängige Polizeikontrollen in Bayern - ein Erfahrungsbericht [Arbitrary Police Stop and Search Operations in Bavaria - a situation report] in Bündnis 90/ Die Grünen im Landtag von Baden-Württemberg (eds.): Anlaßunabhängige Polizeikontrollen im Spannungsfeld zwischen Polizeipraxis und Bürgerrechten. Anlaßunabhängig oder willkürlich? ["Event unrelated" police controls in the conflict area of police praxis and civil rights. Event unrelated or arbitrary?] Stuttgart 1996, p4 ff.

6) Correspondence with the Interior Ministry of Lower Saxony dated 12.10.1999; see for example the implementation regulations for paragraph 12 (6) Niedersächsisches Gefahrenabwehrgesetz [Lower Saxony Crime Prevention Law] in Nds. Mbl. Nr.31/1998, pp1078 ff.

7) cited from Gössner. R. Erste Rechts-Hilfe, Göttingen 1999, p37, emphasis added by the author.

8) Volksblatt Würzburg, 22.9.1999

9) Spörl, K.-H. Zur Einführung einer verdachts- und ereignisunabhängigen Personenkontrolle ("Schleierfahndung") in Bayern [On the introduction of arbitrary person controls ("Dragnet Controls") in Bavaria] in Die Polizei 1997, No.8 pp217-219 (219).

10) Süddeutsche Zeitung, 30./31.1.1999.

11) Bavaria's interior minister Beckstein in Frankfurter Rundschau, 24.6.1998.

12) Berliner Zeitung, 23.7.1997.

13) compare with Waechter, K. "Schleierfahndung" als Instrument der indirekten Verhaltenssteuerung durch Abschreckung und Verunsicherung ["Dragnet control" as an instrument for indirect behaviour determination through deterrence and intimidation] in Die Öffentliche Verwaltung 1999, No.4, pp138-147 (141).

14) Süddeutsche Zeitung, 9.1.1996.

15) Press release of the Interior Ministry of Baden-Württemberg, 3.9.1997.

16) LT Bayern, Drs. 14/1033, 14/1304, 14/1565, 14.7.1999.

17) LT Baden-Württemberg, Drs. 12/1023, 12.2.1997.

18) LT Baden-Württemberg, Drs. 12/1023, 15.5.1997, p. 32.

19) Walter, B. (see footnote 3), p.295. According to the border protection headquarters (Grenzschutzdirektion), the Interior Ministry is planning to publish a press release in the near future, evaluating the arbitrary stop and search operations conducted by the BGS in 1999.

20) Richter, D. & Dreher, U. Fahndungskonzept "Schiene": Zugkontrollen im Rahmen der Schleierfahndung [Investigation Concept "Schiene": controls in trains in the framework of dragnet controls] in Die Polizei 1998, H. 10, pp. 277-281 (280), also see the situation report Fahndungsprogramm Schiene der Polizeidirektion Ansbach [Investigation Programme Schiene of the police headquarters Ansbach] from July 1998.

21) Süddeutsche Zeitung, 18.3.1998.

22) The statements derive from a written answer of the police headquarters Mittelfranken to the editors and a telephone conversation from 31.3.2000.

23) Press Release of the Interior Ministry, 19.10.1998.

24) compare Feltes, Th. Anlaßunabhängige Kontrollen aus der Sicht des Polizeirechts [Arbitrary stop and search operations from the viewpoint of police regulations] in Bündnis 90/ Die Grünen im Landtag von Baden-Württemberg (footnote 5).

25) for an overall discussion on this issue with numerous examples see Herrnkind, M. Verdacht des Verdachtes in Unbequem 2000 No.41 (March), pp4-13.

26) Regional data protection officer for Baden-Württemberg: Stellungnahme zu der mit dem Gesetz zur Änderung des Polizeigesetzes geplanten Einführung sog. verdachts- und ereignisunabhängiger Personenkontrollen [Position paper regarding the planned legal changes to introduce suspect and event unrelated stop and search operations] (LT-Drs. 12/52) in Bündnis 90/ Die Grünen im Landtag von Baden-Württemberg (footnote 5).

(Statewatch translation)


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