In case of discriminating identity checks by public authorities, courts have to examine whether these checks can, for instance, be substantiated with aspects concerning the public interest. In practice, racial profiling can hardly be justified for identity checks. 

In April 2016, the Higher Administrative Court of Rhineland-Palatinate had to rule on a case where Federal Police officers had checked the identity of a black German family on a regional train. As for the questioning and the identity checks, the police officers referred to Section 22 (1a) of the Act on the Federal Police. Pursuant to that, the Federal Police may stop, question and check the identity of persons on certain trains to prevent or stop the illegal entry into the federal territory.

The court ruled that the police measure was unlawful. The skin colour of the persons checked had at least been one criterion (among others) leading to the decision to perform an identity check. The infringement of the prohibition of discrimination pursuant to Article 3 Para. 3 of the Basic Law had not been justified by a legitimate purpose of public interest. For a selection decision during a check to be based on “race” was serious to the point that it could not be justified with the purpose of preventing illegal entry into a territory (decision of 21 April 2016, reference number: 7 A 11108/14).

In a different case, on which the Higher Administrative Court of Northrhine-Westphalia had to rule in 2018, a black German was checked at the central station by two Federal Police officers. The police officers based their check on Section 23 (1) No. 1 of the Act on the Federal Police, pursuant to which the Federal Police is allowed to perform identity checks to avert danger. They justified the performed check by stating, among other things, that most thefts at the train station and in trains were carried out by men from the Maghreb states and/or by North African nationals. Moreover, they argued that it was predominantly “North and Black African perpetrators” who dealt with narcotic drugs at the central station.

The court ruled that the check was not justified because the allegations made by the police officers could not be confirmed by statistical evidence. Furthermore, the court pointed out that a measure based on grounds of discrimination had a stigmatising effect and that, for this reason, there were also increased requirements with respect to a justification (decision of 7 August 2018, reference number: 5 A 294/16).