VG Potsdam - VG 3 K 1458/19

VG Potsdam - VG 3 K 1458/19
Court:	VG Potsdam (Germany)
Jurisdiction:	Germany
Relevant Law:	Article 17 GDPR Article 24(1) Regulation 2018/1861 Article 24(2) Regulation 2018/1861
Decided:	14.12.2023
Published:
Parties:	A Pakistani national, the plaintiff Federal Police Presidium, the defendant
National Case Number/Name:	VG 3 K 1458/19
European Case Law Identifier:	ECLI: DE: VGPOTSD: 2023: 1214.3K1458.19.00
Appeal from:
Appeal to:	Unknown
Original Language(s):	German
Original Source:	Recht des Landes Brandenburg (in German)
Initial Contributor:	Norman.aasma

A German Court ruled that an erasure request under Article 17(d) GDPR does not require a controller to delete personal data when the data has been processed lawfully.

English Summary

Facts

A Pakistani national residing in Germany (the data subject) is suspected of having killed a person together with his brother and other persons in Pakistan, where he is wanted by warrant. This created an alert on the Schengen Information System (SIS) stating that he should be denied entry into the Schengen zone. The data subject upon travelling to Italy was arrested at the border to be exrtradited to Pakistan. Pakistan however, failed to submit an extradition document despite Italy's requests. Therefore, the arrest was revoked by the Italian Court of Appeal in Brescia. Based on this, the data subject argued that he was now innocent and requested the deletion of the alert on the SIS system under Article 17(d) GDPR.

The Federal Police Headquarters of Germany rejected the request for deletion multiple times. The alert was lawful and according to national law, data of foreigners who are the subject of an alert for refusal of entry can be stored on the basis of public safety. The voiding of the arrest warrent in Italy could not be held to override this public safety. The extradition had failed for formal reasons rather than because the data subject was innocent. The arrest warrant issued by Interpol Pakistan had not been withdrawn and therefore, there was still a valid reason to hold the alert in the SIS system.

The data subject appealed the decision to the German Court in Potsdam arguing, among other reasons, that his rights had been infringed and that the data should be deleted because it had been unlawfully processed.

Holding

The court held that the plaintiff's request was unfounded and dismissed it. The requirements of Article 17(d) GDPR are not met as the data was processed lawfully.

First, data processing is only unlawful if there is neither the consent of the data subject nor any other legal basis for it. In this case, the Federal Police Headquarters has a legal basis under the Federal Police Act. This Act states that Member States shall keep an alert if the prescence of a third-country national cinstitutes a threat to public safety. There is a threat to public safety if there are reasonable grounds to suspect that a third-country national has committed a serious criminal offense.

Second, the Court on the facts decided that there were reasonable grounds to suspect that the applicant was involved in a murder in Pakistan. The warrant issued by Pakistan sufficiently individualises the plaintiff , substantiates the accusation with the time of the crime, the place of the crime, the victim and witnesses and therefore, justifies the conclusion that the suspicion in the plaintiff's case is well-founded.

Third, there is no obligation on the Federal Police Headquarters to question the arrest warrant. Under EU Law, whether there is reasonable suspicion and thus a threat to public order, the authority has a broad scope of discretion. The assumption of a threat to public policy is based on an "individual assessment" by the Member State.

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English Machine Translation of the Decision

The decision below is a machine translation of the German original. Please refer to the German original for more details.

The admissible lawsuit is unsuccessful. It is unfounded.
1. The plaintiff is not entitled to have the entry refusal alert deleted from the SIS.
a) The basis for this claim is now Article 17 letter d Regulation (EU) 2016/679 of the European Parliament and of the Council of April 27, 2016 on the protection of natural persons with regard to the processing of personal data, on the free movement of such data and repealing Directive 95/ 46/EC (General Data Protection Regulation, OJ L 119 of May 4, 2016, p. 1, hereinafter: GDPR) in conjunction with Art. 53 Para. 1 Regulation (EU) 2018/1861 of the European Parliament and of the Council of 28. November 2018 on the establishment, operation and use of the SIS in the field of border control, amending the Convention implementing the Schengen Agreement and amending and repealing Regulation (EC) No 1987/2006.
According to Article 66 paragraph 5, Regulation (EU) No. 2018/1861 applies from the date set in accordance with paragraph 2, i.e. with the entry into operation of the so-called third generation SIS on March 7, 2023 in accordance with Article 1 of the implementing decision (EU ) 2023/201 of the Commission of 30 January 2023 (OJ L 27 of 31 March 2023, p. 29). With effect from the same time, Regulation (EC) No. 1987/2006, on which those involved had previously relied, was repealed, see Article 65 (1) of Regulation (EU) 2018/1861.
b) The requirements of Article 17 letter d GDPR, to which Article 53 paragraph 1 of Regulation (EU) 2018/1861 refers, are not met.
According to Article 17 letter d of the GDPR, the data subject has the right to demand that the person responsible delete personal data concerning him or her immediately if they have been processed unlawfully, which also includes the storage of the data, cf. Article 4 No .2 GDPR.
The plaintiff's data was not processed unlawfully.
Data processing is unlawful if there is neither the consent of the data subject nor any other legal basis for it (Herbst, in: Kühling/Buchner/Herbst, GDPR, 4th edition 2024, Art. 17 Rn. 28), whereby the legal basis may be justified in Union law or in the national law of the respective member state, Art. 6 Para. 3 Sentence 1 GDPR. The relevant time for assessing the legality of data processing is the time of the oral hearing (see Herbst, in: Kühling/Buchner, GDPR, 4th edition 2024, Art. 17 Rn. 28a: “current time”).
In this case, the legal basis for the plaintiff's alert to refuse entry is Article 24 Paragraph 1 Letter a, Paragraph 2 Letter b Regulation (EU) 2018/1861 (corresponds to Article 24 Paragraph 1, Paragraph 2 Letter b Regulation ( EC) No. 1987/2006) in conjunction with Section 30 Paragraph 5 of the Federal Police Act [BPolG]). According to Article 24(1)(a) of Regulation (EU) 2018/1861, Member States shall issue an alert for refusal of entry and stay if the Member State, on the basis of an individual assessment, which includes an assessment of the personal circumstances of the third-country national concerned and the consequences of the refusal of entry and stay for the third-country national concerned, concludes that the presence of that third-country national in its territory constitutes a threat to public policy or to public security or national security in its territory, and the Member State is therefore in accordance has issued a judicial or administrative decision to refuse entry and stay with its national legislation and has issued a national alert for the refusal of entry and stay. The situations according to paragraph 1 letter a are given in accordance with Article 24 paragraph 2 letter b of Regulation (EU) 2018/1861, among other things, if there is reasonable suspicion that a third-country national has committed a serious crime. Such a situation exists here.
aa) There is reasonable suspicion against the plaintiff that he was involved in a homicide committed in Pakistan.
When there is a “threat to public order or security” within the meaning of Article 24 Paragraph 1 Letter a of Regulation (EU) 2018/1861 and a “reasonable suspicion” within the meaning of Article 24 Paragraph 2 Letter b Regulation ( EU) 2018/1861, the existence of which justifies the assumption of a danger within the meaning of paragraph 1, is not explained in more detail either in the regulation or elsewhere.
The statements of the European Court of Justice in the judgment of December 12, 2019 (C-380/18) on the interpretation of the concept of danger within the meaning of Article 6 Paragraph 1 Letter e of Regulation (EU) 2016/399 of the European Court of Justice provide clues for the interpretation of the terms European Parliament and of the Council of March 9, 2016 on a Union code for the movement of persons across borders (Schengen Borders Code - SBC). According to this provision, the entry of a third-country national into the territory of the Union requires, among other things, that he or she does not pose a threat to public order. In the preliminary proceedings the question arose as to whether the mere suspicion of the commission of a crime could be viewed as a threat to public order. The Court stated that when interpreting the concept of danger in Article 6(1)(e) of the SBC, the national authorities have a wide margin of appreciation based on the wording, context and objectives of the regulation (see ibid., paragraph 33) ( ibid., paragraph 37). The provision should be viewed in connection with the further entry requirement according to Article 6 Paragraph 1 Letter d SGK (see ibid., paras. 35, 40), according to which a third-country national who wants to enter the Union territory is not advertised in the SIS may be. The provision of Article 24 Paragraph 1 of Regulation (EC) No. 1987/2006 (now Article 24 Paragraph 1 Letter a of Regulation (EU) 2018/1861), which is relevant for the assessment, shows that, according to the will of the Union legislature mere suspicion of a committed crime could constitute a threat to public order (ibid., para. 31). The danger concepts in Article 6 Paragraph 1 Letters d and e SGK should be interpreted in the same way (ibid., paragraph 43). However, since the principle of proportionality must be observed here, a threat to public order can only be established if the crime that the third-country national is suspected of having committed is of sufficient gravity in view of its nature and the threat of punishment (ibid., para. 48 ) and there was consistent, objective and clear evidence that the third-country national in question had committed such a crime (ibid., para. 49).
Since, according to the above, the danger concepts in Article 6 Paragraph 1 Letter e SGK and Article 6 Paragraph 1 Letter d SGK in conjunction with (now) Article 24 Paragraph 1 Letter a Regulation (EU) 2018/1861 are to be interpreted with the same content the requirements formulated by the European Court of Justice regarding the degree of suspicion exceeding the threshold of a threat to public order can also be transferred to Article 24 Paragraph 2 Letter a of Regulation (EU) 2018/1861. A “well-founded” suspicion within the meaning of Article 24 Paragraph 1 Letter a of Regulation (EU) 2018/1861 can therefore be concluded if there is consistent, objective and clear evidence that the third-country national has committed a serious crime.
This must be answered in the affirmative in the plaintiff's case.
According to the search request from the Interpol central office in Pakistan, which the defendant, according to her uncontradicted statements, checked to ensure it was up to date the day before the oral hearing, the plaintiff is suspected of having been involved in a homicide in Pakistan. According to the defendant's assessment, the mere existence of the search request, which sufficiently individualizes the plaintiff and sufficiently specifies the accusation with the time of the crime, the crime scene, the victim and witnesses, justifies the conclusion that the suspicion in the plaintiff's case is justified. This is enough.
To the extent that the plaintiff claims that the content of the wanted letter is contradictory, the defendant is not (was) obliged to investigate the contradictions and examine the content of the wanted letter. With regard to the question of whether there is a justified suspicion and thus a danger to public order, the authority has a wide scope for assessment, which is directly dictated by EU law and can only be reviewed to a limited extent by the chamber. The wording of Article 24 Paragraph 1 Letter a of Regulation (EU) 2018/1861, according to which the assumption of a threat to public order is based on an “individual assessment” by the Member State, speaks in favor of such an understanding. The European Court of Justice also accepted in its decision of December 19, 2013 (C-84/12 - Koushkaki) that the competent authorities of the Member States have a wide margin of appreciation when examining an application for the issuance of a visa, which applies to both requirements for the application of the relevant regulations as well as the assessment of the facts (ibid., tenor to 1, paras. 55, 63). In the decision of the European Court of Justice cited above on the interpretation of Article 6(1)(e) of the SBC, the Court referred to the decision of December 19, 2013 (C-84) by stating that the law granted to the authorities of the Member States broad scope of assessment must also be given when they determine whether a third-country national poses a threat to public order within the meaning of Article 6 Paragraph 1 Letter e SBC (C-380/18 –, juris para. 37). Since the risk concepts in Article 6 Paragraph 1 Letters d and e SGK and Article 24 Paragraph 1 Letter a of Regulation (EU) 2018/1861 must be interpreted in context, this leads to the conclusion that the responsible authorities Further scope for assessment is also granted with regard to the requirements of Article 24 Paragraph 1 Letter a of Regulation (EU) 2018/1861.
Since EU law itself does not set any requirements for the extent of judicial review of the official scope for decision-making, which is referred to as the “wide scope of assessment”, the control standards are based on the principles that the Federal Administrative Court has developed for the judicial review of scope for assessment under German administrative law (as the Federal Administrative Court subsequently stated to the Koushkaki decision: judgment of September 17, 2015 - 1 C 37/14 -, juris para. 21 with further references). According to this, the exercise of discretion on the factual side is only checked to see whether the authority has complied with the valid procedural provisions, has assumed a correct understanding of the applicable legal concept, has fully and accurately determined the relevant facts and has adhered to generally applicable assessment standards in the actual assessment , in particular the prohibition of arbitrariness has not been violated (ibid. with further references).
Such an error of assessment is not apparent in the present case. The defendant stated that it based the assumption of reasonable suspicion on the findings of the Pakistani search request, in which the plaintiff was sufficiently identified individually and the accusation was substantiated in sufficient detail with the time of the crime, the crime scene, the victim and witnesses. There is no evidence of an arbitrary decision that deviates from their usual procedure or of an inadequate investigation of the facts.
In addition, it should be noted that the (supposed) contradictions asserted by the plaintiff do not exist with regard to the content of the wanted letter circulating via Interpol. The plaintiff states that his brother, Zahid Hussein, is or has been wanted for the same crime, but that he, the plaintiff, is not named as an accomplice in the identical wanted letter concerning his brother. On the one hand, he overlooks the fact that the “summary of the facts” states that “nine other […] people” were involved in the crime, but then only eight accomplices are listed by name. There remains room for the assumption that the plaintiff is the ninth accomplice. On the other hand, it is noticeable that ...in the wanted letter concerning him, he is not only listed as the perpetrator, but also as an accomplice, so that even two other suspects were not named. The wanted letter concerning the brother therefore does not force the conclusion that the plaintiff could not have been involved in the crime. There are no doubts about the existence of a well-founded suspicion of a crime due to the fact that the search request mentions other criminal offenses that at first glance have no connection with a homicide. On the one hand, due to the lack of a detailed description of the facts, it is unclear which behavior the plaintiff is specifically accused of. In particular, it cannot be ruled out that the plaintiff not only committed manslaughter but also facilitated the crime. To the extent that he suspects in this context that the alleged homicide is just a pretext to persecute him for other motives, the plaintiff has not stated, nor is it otherwise apparent, why the Pakistani state should have any other interest in him . Furthermore, the General Secretariat of Interpol examines a search request before its publication for compatibility with, among other things, Article 3 of the Constitution of the ICPO - Interpol (Interpol Statutes). According to this, the organization is prohibited from taking action in matters that have a political, military, religious and racist character. Furthermore, if the plaintiff considers the search request to be unlawful, it is the responsibility of the plaintiff to submit a request for its deletion to Interpol (via the internal legal remedy of the so-called red notice challenge) or Pakistan. The presumption of innocence on which the plaintiff relies does not apply to measures to avert danger, including the alert for refusal of entry in accordance with Article 24 (1) of Regulation (EU) 2018/1861.
Even to the extent that the plaintiff claims that the cancellation of the arrest warrant issued in Italy shows that the suspicion against the plaintiff has been removed, the objection does not apply. The cancellation of the arrest warrant and the extradition of the plaintiff to Pakistan failed because Pakistan did not respond to Italy's request to send documents to examine the reasons for his arrest and did not submit an extradition request. Formal reasons were therefore the cause, but the suspicion of the crime was not examined by the Italian judiciary.
bb) Homicide is a serious crime as it is punishable by at least one year's imprisonment (see Article 24 Paragraph 2 Letter a of Regulation (EU) 2018/1861).
cc) The existence of a reasonable suspicion of the commission of a serious crime leads to the assumption of a situation in accordance with paragraph 24 paragraph 1 letter a of Regulation (EU) 2018/1861, i.e. a danger to public order, Article 24 paragraph 2 letter b Regulation (EU) 2018/1861.
dd) This assumption is based on an individual assessment of the defendant, in which the personal circumstances of the plaintiff and the effects of the refusal of entry were taken into account, cf. Article 24 (1) (a) of Regulation (EU) 2018/1861. This element of the offense is an expression of the principle of proportionality according to Article 21 of Regulation (EU) 2018/1861, which, according to paragraph 1, requires that the appropriateness, relevance and importance of the case sufficiently justify an alert in the SIS. In this respect, the defendant correctly stated that the measure was appropriate in view of the danger to public order resulting from entry. In this respect, it should be noted that a homicide is a particularly serious crime and the dangers associated with the plaintiff's entry and stay are therefore particularly significant (cf. BVerfG, Chamber decision of October 24, 2006 - 2 BvR 1908/03 –, juris paragraph 27). The defense against this danger outweighs the plaintiff's interest in entering and staying in the federal territory. To the extent that he claims that he wants to enter the federal territory in order to be able to visit his brother who lives here, nothing different arises, even taking into account his rights under Article 6 of the Basic Law. It should be noted here that, unlike the wife and children, the brother is not part of the nuclear family and the plaintiff can maintain contact with him in other ways, such as by telephone or video call. In any case, personal meetings are possible outside the Schengen area, if not even in France, where the plaintiff is currently staying. According to the defendant's risk forecasts of February 16, 2021, March 4, 2022 and February 15, 2023, the extensions of the alert for refusal of entry for another year are also based on an individual assessment and are proportionate.
2. The cost decision is based on Section 154 Paragraph 1 VwGO. The subsidiary decision on provisional enforceability follows from Section 167 VwGO in conjunction with Sections 708 No. 11, 711 ZPO.

decision

The amount in dispute is set at 5,000 euros.

Reasons:

The determination of the amount in dispute is based on Section 52 Paragraph 2 GKG.